Civil Rights Claims in Wisconsin
|
In
1871 the United States Congress passed a law,
originally part of the Ku Klux Klan Act, to
enforce the 14th Amendment of the United States
Constitution on the states. The Civil Rights
Act, now part of the United States Code, 42
U.S.C.
§ 1983, has colloquially been referred to as
the remedy for “constitutional torts.” The evil
that the legislation sought to remedy was
state-sponsored infringement of federally
protected constitutional rights. This law
provides a remedy to parties who are deprived of
federal rights and privileges by state and local
governmental officials who abuse their positions
of power.
American citizens file thousands of civil rights lawsuits per year, alleging various wrongs such as discrimination in education, vocational rehabilitation, employment, public accommodations or housing, denial of welfare benefits, interference with voting rights, police misconduct, violations of the right to privacy, freedom of speech, association and religion, and deprivations of life, liberty or property rights without due process of law or equal protection of the law. The purpose of this essay is to outline some of the landmark Wisconsin and federal cases that have applied the most popular statute that creates a remedy for the deprivation of civil rights, § 1983. A § 1983 action may be brought in a state court or a federal court. Terry v. Kolski, 78 Wis. 2d 475, 254 N.W.2d 704 (1977); Riedy v. Sperry, 83 Wis. 2d 158, 265 N.W.2d 475 (1978). The plaintiff’s attorney should be able to provide a good reason for recommending whether to file suit in state or federal court. Cases tried in federal court draw from a much larger jury pool. Federal juries are less likely to be influenced by local political attitudes than a jury in a state court trial that is chosen only from the registered drivers and voters in the county. Federal judges are usually more familiar with these types of cases, than state judges. A federal jury consists of six persons, while a state jury usually consists of twelve. The choice of venue might also be influenced by additional state tort claims that are joined with the federal civil rights claims. Most states, including Wisconsin, have enacted laws making it more difficult for any aggrieved person to bring suit in state court against any governmental body or its employees. The Wisconsin statute, § 893.80 has several procedural roadblocks, including a 120 day notice of claim requirement, qualified immunities for discretionary conduct by governmental employees, and a limitation of damages provision in the amount of $50,000.00 that applies to most state law claims. However, according to a United States Supreme Court decision in Felder v. Casey, 487 U.S. 131 (1988), the plaintiffs in a federal civil rights case brought in state court pursuant to 42 USC § 1983 do not have to comply with the Wisconsin notice of claim statute in order to bring their federal constitutional claims. The Supreme Court held that a federal civil rights action brought in state courts pre-empts Wis. Stat. § 893.80(1)’s notice requirements. Whether state or federal qualified immunity for discretionary acts might shield a defendant from liability under the civil rights act depends on whether the defendant violates a plaintiff’s clearly established statutory or constitutional right of which a reasonable person would have known. Allen v. Guerrero, 276 Wis.2d 679, 688 N.W.2d 673 (Ct. App. 2004)(deliberately holding a person in prison beyond a statutorily prescribed release date violates the 8th Amendment proscription against cruel and unusual punishment). The plaintiff must prove unconstitutional conduct and that the applicable constitutional standards were clearly established at the time in question. Saucier v. Katz, 533 U.S. 194 (2001)(excessive force during an arrest); Newsome v McCabe, 319 F.3d 301 (7th Cir. 2003)(procurement of false testimony); Magdziak v. Byrd, 96 F.2d 1045 (7th Cir. 1996)(high speed chase by police). The Wisconsin Supreme Court has held that the $50,000.00 municipal liability cap on damages prescribed by Wis. Stat. § 893.80(3) does not apply in a civil rights lawsuit. Thompson v. Village of Hales Corners, 115 Wis. 2d 289, 340 N.W.2d 704 (1983). Wisconsin’s state law that puts a $350,000 cap on damages for loss of society and companionship arising out of the death of an adult family member or a $500,000 cap on damages for loss of society and companionship of a minor is likewise inapplicable in a civil rights case. Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984). In any lawsuit brought pursuant to the federal civil rights law, the plaintiff must prove that he or she has been deprived of a right “secured by the Constitution and laws” and secondly, that the defendant was acting “under color of” any state law. There is much litigation over the question whether a particular wrong allegedly perpetrated by a defendant upon a plaintiff is the type of conduct that the civil rights act was designed to remedy. Many claimed infractions of the law do not give rise to a civil rights violation. Suit is allowed only if the defendant deprives a person of his or her rights under the federal laws or the United States Constitution. Weber v. City of Cedarburg, 129 Wis. 2d 57, 384 N.W.2d 333 (1986). The civil rights statute does not create any substantive rights. Penterman v. Wisconsin Electric Power Co., 211 Wis. 2d 458, 565 N.W.2d 521 (1997). The procedural protections of the Due Process Clause of the 14th Amendment will only be triggered if state action implicates a constitutionally protected interest in life, liberty or property. Board of Regents v. Roth, 498 U.S. 564 (1972)(no constitutional tort was involved in non-renewal of contract of non-tenured teacher). Nothing in the 14th Amendment protects against all government deprivations of life, liberty or property. Only deprivations without due process of law are protected. Hudson v. Palmer, 468 U.S. 517, (1984)(shakedown of prison inmate not actionable unless solely for the purpose of harassing or humiliating plaintiff). 42 USC § 1983 is not “a general font of tort law.” Paul v. Davis, 424 U.S. 693 (1976)(police chief not liable for distributing a flyer warning area merchants to be aware of plaintiff, a suspected shoplifter, despite allegation of a violation of plaintiff’s 14th Amendment liberty and property interest in maintaining a good reputation). The Civil Rights Act does not create liability arising out of negligence. Daniels v. Williams, 474 U.S. 327, (1986)(sheriff’s deputy not liable for negligently leaving a pillow on staircase, on which plaintiff-inmate slipped and fell, sustaining injuries, and alleging violation of his 14th Amendment liberty interest in being free from bodily injury); Parratt v. Taylor, 451 U.S. 527 (1981)(prison officials not liable for negligently losing inmate’s hobby materials as no constitutional tort was implicated). In order for the plaintiff to prevail, he must prove that the defendant’s conduct was either intentional or reckless. This standard is often quite difficult to meet. In County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Supreme Court held that a police officer’s deliberate or reckless indifference to life in a high speed automobile chase aimed at apprehending a suspected offender did not constitute a civil rights violation, even though the chase ended up in the death of the suspect, since there was no proof that the officer had a purpose to cause harm unrelated to the legitimate object of arrest. In Enright v. Milwaukee School Director’s Board, 118 Wis. 2d 236, 346 N.W.2d 771 (1984), the Wisconsin Supreme Court held that an injury caused by negligence will not sustain a § 1983 action if a state remedy provides adequate redress. If the state has provided a tort remedy as a means of redress for the deprivation of constitutional rights, then the requirements of procedural due process – notice and an opportunity to be heard – are satisfied. In civil rights cases, a government agency is not vicariously liable for wrongs perpetrated by its employees. Monell v. Dept. of Social Services, 436 U.S. 658 (1978). In order to recover against a governmental employer, the plaintiff must prove municipal liability other than through vicarious liability. A municipality is subject to liability under § 1983 only if the action that is alleged to be unconstitutional or in violation of federal laws implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by the state governmental body. Monell v. Dept. of Social Services, 436 U.S. 658 (1978). Put another way, municipal liability under § 1983 must be based on something more than merely the employer’s right to control employees or the simple failure of an employee to measure up to the conduct of a reasonable person. Daniels v. Williams, 474 U.S. 327 (1986). In Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), the court held that municipal liability under §1983 attaches only where a governmental body or persons who are responsible for establishing final policy with respect to the subject in question make a deliberate choice to follow a course of action from among various alternatives. Inaction by a public agency is insufficient participation in a subordinate's misconduct to make the agency liable in a suit under 42 U.S.C. § 1983 unless the policymaking level at the agency has deliberately decided to take no action against, and thus in effect to condone or ratify the misconduct and so adopt it as the agency's unofficial policy. City of Canton v. Harris, 489 U.S. 378 (1989)(failure to train police regarding need to provide medical care to prisoner); Lenard v.Argento, 699 F.2d 874 (7th Cir.1983)(indifference to beating of prisoner while in police custody). State officials may be held liable when they affirmatively place an individual in a position of danger that the individual would not otherwise have faced. Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993). But see Davidson v. Cannon, 474 U.S. 344 (1986)(prison guards’ negligent failure to protect one inmate from another, despite threats, did not involve a constitutional violation). There is much litigation over whether the defendant was acting “under color of” any state law. The phrase, “under color of state law,” is defined as a “’[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law . . .’” Weber v. City of Cedarburg, 129 Wis.2d 57, 65 n.3, 384 N.W.2d 333 (1986). The law is designed to remedy wrongs committed by government agents and employees against private citizens. The law protects the people from situations when the government abuses its power or authority. Courts frequently must decide the liability of supervisory officials and governmental agencies for having failed adequately to train, supervise or control individual employees who violate a plaintiff’s civil rights. See Annot., 70 A.L.R. Fed. 17 (2005). The law is clear that the liability of supervisory personnel must be based on more than mere negligent exercise of control over employees – in the absence of a direct causal link between the acts of the individual employees and those of supervisory defendants, no liability will lie under the Civil Rights Act. Rizzo v. Goode, 423 U.S. 362 (1976). In a case involving allegations of a failure to train, supervise, control and discipline police officers, the Supreme Court held that inadequacy of police training can be a basis for § 1983 liability only where the failure to train amounts to deliberate indifference to constitutional rights. City of Canton v. Harris, 489 U.S. 378 (1989). Since vicarious liability does not apply in civil rights law, it is often difficult to prove that the governmental employer of a wrongdoing governmental employee is directly responsible for the employee’s conduct. In many cases the plaintiff can only obtain his judgment against the employee, but not the employer. However, if the plaintiff can prove that the employee was not only acting under color of state law, but that the employee was also acting within the scope of employment, the government must indemnify the employee and pay the plaintiff the full judgment amount pursuant to Wis. Stat. § 895.46, despite the fact that the judgment may not be obtained directly against the government. Hibma v. Odegaard, 769 F.2d 1147 (7th Cir. 1985). A plaintiff need not exhaust his administrative remedies before bringing a § 1983 action in state court. Casteel v. Vaade, 167 Wis. 2d 1, 481 N.W.2d 476 (1992). A state law statute of limitations that governs the type of tortious conduct in question is applicable in a civil rights action. Board of Regents v. Tomanio, 446 U.S. 478 (1980). Wisconsin has a three-year statute of limitations for negligence actions resulting in personal injury, Wis. Stat. § 893.54 and a two-year statute of limitations for intentional torts causing personal injury, Wis. Stat. § 893.57. Punitive damages may be awarded against a defendant if the plaintiff can prove intentional or reckless indifference to a federally protected right. Smith v. Wade, 461 U.S. 30 (1983). The court will consider several factors in determining whether punitive damages are appropriate: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award by the jury; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. BMW of North America, Inc. v. Gore, 517 U.S. 559 (1966); Cooper Industries v. Leatherman Tool Group, Inc. 532 U.S. 424 (2001). The degree of reprehensibility is the most significant factor. State Farm Mutual Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003). A single digit multiplier of compensatory damages to punitive damages is presumptively not excessive. Id. A prevailing plaintiff in a civil rights claim is entitled to an award of attorney fees. The Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. §1988, provides that the trial court in its discretion may award reasonable attorney’s fees to parties who prevail in a § 1983 Action. City of Riverside v. Rivera, 477 U.S.561 (1986). Plaintiffs may be considered prevailing parties for purposes of attorney fees if they succeed in any significant issue on litigation which achieves some of the benefits the parties sought in bringing suit. Wisconsin Civil Jury Instruction number 2151 is read to the jury before deliberations in any civil rights cases involving § 1983. It is set forth below in full:
Several significant Wisconsin civil rights cases are summarized below, as examples of how the civil rights laws have been enforced in the past. Allen v. Guerrero, 276 Wis.2d 679, 688 N.W.2d 673 (Ct. App. 2004). The Wisconsin Court of Appeals held that Department of Corrections employees were not entitled to qualified immunity from suit by a prisoner who claimed a violation of the Eight Amendment right not to be subjected to cruel and unusual punishment, when the prison kept him as an inmate 377 days beyond his mandatory release date. Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984). The Seventh Circuit Court of Appeals held that the siblings and estate of a black man who was shot to death by police officers could sue for deprivation of due process and racial equality resulting from a conspiracy to cover up the facts relating to the victim’s death. The officers had planted evidence, filed false reports and gave fabricated testimony to conceal the true nature of a fatal shooting. Board of Regents v. Roth, 408 U.S. 564 (1972). The United States Supreme Court held that a non-tenured teacher who was laid off without notice or an opportunity to be heard had no right to pursue a civil rights claim under the 14th Amendment, because he did not have a liberty interest or property interest in continued employment under state law. Cameron v. City of Milwaukee, 102 Wis.2d 448, 307 N.W.2d 164 (1981). The Wisconsin Supreme Court held that the question of whether a municipal employee was acting under color of state law in depriving a citizen of his rights is separate and distinct from the question of whether the employee was acting within the scope of employment and thereby entitled to indemnification for the judgment against him and reimbursement of court costs from the employer under Wis. Stat. § 895.46, thereby requiring a separate hearing on both issues. DeShaney v. Winnebago County Department of Health & Soc. Serv., 489 U.S. 189 (1988). The United States Supreme court held that the state and county had no obligation to protect a child from abuse by his father despite having received prior reports of possible abuse. Desotelle v. Continental Cas. Co., 136 Wis.2d 13, 400 N.W.2d 524 (Ct. App. 1986). The Wisconsin Court of Appeals held that a county and its insurer were not required to indemnify a sheriff for a federal civil rights judgment against him, because although he was found to have been acting under color of state law in falsely imprisoning some citizens, he was also found by an advisory jury not to have been acting within the scope of employment. Estate of Moreland v. Dieter, 395 F.3d 747 (7th Cir. 2005). The Seventh Circuit Court of Appeals upheld a verdict of $29 Million in compensatory damages and $27.5 Million in punitive damages for police brutality involving pepper spray that resulted in a prisoner’s death while in police custody. Harris v. Harvey, 605 F.2d 330, (7th Cir. 1979), cert. denied 445 U.S. 938 (1980). The Seventh Circuit Court of Appeals held that an allegedly racially motivated campaign by a county judge to discredit and damage a city police lieutenant, which was perpetrated under color of state law, constituted a denial of equal protection of laws and was cognizable under the civil rights act. Hibma v. Odegaard, 769 F.2d 1147 (7th Cir. 1985). The Seventh Circuit Court of Appeals upheld a verdict against deputy sheriffs who violated a citizen’s constitutional rights by framing him for burglaries that they had committed. The court found that the deputies’ conduct was under color of state law and within the scope of their employment, thereby satisfying the predicate for requiring the county to indemnify them for their liability pursuant to Wis. Stat. § 895.46. Radke v. Fireman’s Fund Ins. Co., 217 Wis.2d 39, 577 N.W.2d 366 (Ct. App. 1998). The Wisconsin Court of Appeals held that a homeowner’s insurer was liable for defense costs and a settlement paid by a teacher to a student who had alleged civil rights violations, assault and infliction of emotional distress, when the insurer had declined to accept the teacher’s tender of the defense with a reservation of rights. Thorp v. Town of Lebanon, 235 Wis.2d 610, 612 N.W.2d 69 (2000). The Wisconsin Supreme Court held that a rezoning classification of land from rural development to general agricultural stated a valid civil rights claim for violation of the landowner’s rights to equal protection of law, because the landowner did not have adequate notice and opportunity to be heard prior to the rezoning change. |