For decades, a myth about civil-rights lawyers has been spread by court decisions, legislative testimony, and popular culture. Courthouses, the story goes, are filled to the brim with plaintiffs’ attorneys desperate to make a dollar off someone else’s misery; ambulance chasers all too happy to file frivolous civil-rights cases and squeeze a few bucks out of a cash-strapped city that would otherwise spend the money on its community center or library.
In fact, the opposite is true. The cities of the Great Migration—New York, Los Angeles, San Francisco, Chicago, and Philadelphia—are home to small, tight-knit communities of experienced civil-rights lawyers. Yet few practice outside those urban areas, and they are in particularly short supply in the South. As a result, many people who have suffered clear constitutional violations can’t find a lawyer to take their case. And they are unlikely to want to go it alone. Winning is hard even when you have a lawyer; you’re almost certain to lose if you don’t.
Recently, much attention has been paid to the bulwark of laws and rules that courts and local governments use to deny justice to people who have been harmed by police officers. Calls to reform the doctrine of qualified immunity, which in effect protects officers from liability so long as a previous court has not found that precise behavior unconstitutional, have been especially loud. As I wrote in this magazine in January, the criticism is well earned—the doctrine is nonsensical and unjust. But limiting or abolishing qualified immunity will not have its intended effect if people can’t find lawyers to seek justice on their behalf. Only 1 percent of people who believe that their rights have been violated by the police ever file a lawsuit. Finding a lawyer is, and has always been, one of the most challenging first steps.
In September 2013, Trent Taylor, a 25-year-old white man, overdosed on pain medication while in a Texas prison. In response, prison officials forced Taylor to spend six days in the prison’s psychiatric unit in what the United States Supreme Court called “shockingly unsanitary” conditions.
Taylor was first put, naked, in a cell with feces on every surface—the floor, the ceiling, the walls, and the windows. Even the faucet that offered his only source of water was packed with feces. When Taylor complained, three corrections officers laughed at him, and one said Taylor was “going to have a long weekend.” Taylor did not eat or drink for four days for fear of getting sick. Taylor was then moved—still naked—to an ice-cold cell, where a prison official said he hoped Taylor would “fucking freeze.” The cell had no bed or toilet—just a drain hole in the middle of the floor, clogged with raw sewage, that overflowed when he finally had to relieve himself. Days later, Taylor was taken to the emergency room; he had a distended bladder from trying to hold his urine for so long, and had to be catheterized.
Taylor sued, alleging that corrections officers had placed him in conditions of confinement that violated the Eighth Amendment. The district court dismissed the claims and the court of appeals affirmed. Although it was clear, in the appeals court’s view, “that prisoners couldn’t be housed in cells teeming with human waste for months on end,” the officers were entitled to qualified immunity because no prior case held that six days in filthy cells violated the Constitution.
In a short, unsigned opinion issued on November 2, 2020, the Supreme Court reversed that decision: “Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”
This Court has been notoriously hostile to civil-rights cases, and especially prisoners’-rights cases. Taylor is among its most plaintiff-friendly civil-rights decisions in recent memory. It has been analyzed by journalists, lawyers, and academics; cited in hundreds of opinions and briefs; and celebrated as an indication that the Court might be stepping back from its most robust descriptions of qualified immunity’s power.
But we should pay close attention to Taylor’s case for another reason. Despite the fact that Taylor was held in obviously unconstitutional conditions—“in the filthiest cells imaginable,” to quote Justice Samuel Alito—he spent years searching, in vain, for a lawyer willing to represent him.
The scarcity of experienced civil-rights attorneys is a direct result of how these attorneys are paid—and, in many cases, not paid—for their work.
Most people whose rights have been violated by police or other government officials do not have the money to pay a lawyer for their time. Instead, beginning in the early 1960s, when the Supreme Court first recognized the right to sue government officials for constitutional violations, private lawyers took these cases pro bono or on contingency, meaning that they were paid nothing if their client lost, and a percentage of any winnings if their client prevailed.
Under this arrangement, people who stood a high chance of being awarded large damages would have a relatively easy time finding lawyers to represent them. People whose constitutional rights were violated but suffered little in the way of compensable damages, however, were unlikely to find a lawyer. In 1976, to address this concern, Congress enacted a statute allowing plaintiffs who won their civil-rights cases to recover “reasonable” fees from government defendants. The House Report on the bill explained that it would “promote the enforcement of the Federal civil rights acts, as Congress intended, and to achieve uniformity in those statutes and justice for all citizens.”
But the Supreme Court’s crabbed interpretation of that statute undermined its goal. In 1986, the Court ruled that a defendant could offer to waive a plaintiff’s entitlement to attorneys’ fees as part of a settlement agreement. Today, when plaintiffs receive money it is almost always through settlements, and settlement agreements with police departments almost always waive lawyers’ ability to recover attorneys’ fees, limiting their payment to a portion of their clients’ awards—just as it has always been for contingency-fee lawyers.
In the rare event that a plaintiff goes to trial and wins, plaintiffs’ lawyers are still entitled to their “reasonable” fees. And the Supreme Court has allowed attornies to recover more in fees than their client was awarded at trial. But whether a fee application is “reasonable” often turns into its own satellite litigation about how much the lawyer should be paid for each hour of work and how many hours they should have spent litigating the case—a process that can take months or years to resolve. During those months and years, the attorney will not get paid. And in the end, judges commonly give plaintiffs’ attorneys’ fees applications a haircut, either because they conclude that the lawyers could have done the work in less time, or that they have billed their time at too generous a rate, or both. For cases brought by prisoners challenging the conditions of their confinement—such as Trent Taylor—the Prison Litigation Reform Act, which became law in 1996, further limits attorneys’ fees to whichever is less: 150 percent of a jury’s award, or 150 percent of the rate ($158 an hour) for court-appointed counsel.
Under this fee structure, the risks of bringing civil-rights cases often outweigh the rewards. Winning a civil-rights lawsuit is already staggeringly difficult. In addition to overcoming qualified immunity, lawyers must write a complaint with enough detail that a judge will find the allegations “plausible”; they must prove that their client’s constitutional rights were violated, which can be especially challenging in police and prison-conditions cases, given the Court’s interpretation of the Fourth and Eighth Amendments; and they may need to establish local government liability, which requires plaintiffs to find a pattern of prior unconstitutional conduct by officers in the department that should have put the chief on notice of a problem.
Even when a lawyer believes that they can surmount all of these barriers, they will often have strong financial incentives to decline the case. When I interviewed dozens of civil-rights lawyers across the country, most said they were disinclined to take a case on behalf of a person whose rights had clearly been violated unless the potential damages were significant enough that one-third of the plaintiff’s award would adequately compensate them for their time. For many lawyers, if a case did not involve death or a serious physical injury, it wasn’t worth the risk. “It sounds crass,” one lawyer told me, “but we say, ‘Well, is there blood on the street?’ Because if there isn’t, why are we doing it?”
These same considerations also made attorneys I interviewed reluctant to represent people whom a judge or jury would not find sympathetic. They looked, many told me, for cases with plaintiffs who were “likable,” “credible,” and “articulate”—criteria that may make attorneys less likely to represent people of color, LGBTQ people, people with mental illness, people previously convicted of crimes, and members of other marginalized groups, who are the very ones subject to disproportionate levels of unconstitutional policing.
Trent Taylor reached out to dozens of lawyers; he never heard back from most of them, and those who responded declined his case. One wrote: “These cases are very difficult and time consuming. I regret not being able to help you.” Another wrote: “Free world lawyers can’t afford [prisoners’] cases. Takes too long, too expensive.”
Lawyers who received Taylor’s letters might well have declined his case in favor of other civil-rights cases likely to be more remunerative or less risky, or they might have been unwilling to take any civil-rights cases at all. Most lawyers who bring civil-rights cases are jacks of many trades whose dockets include personal injury, medical malpractice, criminal defense, and commercial litigation. The lawyers I have interviewed see civil-rights cases as riskier prospects because it is harder to get information from the government, harder to prove a legal violation and overcome qualified immunity, harder to get to a jury, and harder to win.
An attorney I spoke with from Florida used to bring only police-misconduct cases but switched to dental malpractice in hopes that “the dental stuff perhaps will pay some bills.” An attorney from Pennsylvania who used to focus on civil-rights cases now spends most of his time on personal-injury and medical-malpractice cases, which he considers “easier work that pays a lot more money.”
When people cannot find lawyers to represent them, they can represent themselves. Taylor represented himself in the trial court and on appeal, and his many handwritten filings with the court reflect just how difficult it can be to go it alone. Taylor’s prison classification prevented him from going to the law library; instead, three times a week, he was allowed to request material from the library. But these requests were limited too—he could ask for just three “case cites” at a time. (As a point of comparison, the defendants’ motion to dismiss Taylor’s complaint cited 150 cases).
Only after the Fifth Circuit ruled against him did Taylor’s case come to the attention of the civil-rights lawyer Sam Weiss of Rights Behind Bars. Unable to reach Taylor by phone, Weiss flew from Washington, D.C., to Houston, drove to the prison where Taylor was housed, offered to represent him, and fought mightily to get his case heard by the Supreme Court. But most cases brought without counsel will never get that far.
Qualified immunity deserves all the scorn that it has received. But when someone like Trent Taylor—whose constitutional rights were obviously and egregiously violated, in the view of a Supreme Court usually hostile to prisoners’ civil-rights cases—struggles to find a lawyer to represent him, we have an even bigger problem on our hands. Civil-rights enforcement depends on lawyers’ willingness to represent people whose constitutional rights have been violated. Until more lawyers are willing to take these cases, reforms to qualified immunity will not achieve their intended aims. Any plan to restore the power and potential of civil-rights litigation must include a blueprint to expand the number of civil-rights lawyers, the types of cases that they are bringing, and the places where they are willing to work.
This essay was adapted from “Civil Rights Without Representation,” published in the William and Mary Law Review.