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Pottawattamie County v. McGhee: Reversal Hurts

Pottawattamie County v. McGhee Amicus Brief: Lawsuit Doublespeak

[Editor: In Pottawattamie County v. McGhee, the most interesting Section 1983 case this Term, the Supreme Court will determine whether a prosecutor who manufactured evidence should be held liable for money damages.  An amicus brief, filed on behalf of state and federal prosecutors, is unpersuasive.  In three separate posts, we'll examine why.  Below is the third post.  Click here for the second post; here for the third.]

Showing that they did not sleep through 1984, the Brief contains this doublespeak:

There is no evidence that the further prospect of civil liability is necessary to deter prosecutorial misconduct. To the contrary, evidence suggests that civil liability will not be an effective remedy for would-be plaintiffs. The most thorough study of constitutional tort claims found that "constitutional tort plaintiffs do significantly worse than non-civil rights litigants in every measurable way." Eisenberg & Schwab, supra, at 677. 

[The footnote reads]: "Overall, plaintiffs prevailed in only fourteen percent of constitutional claims, compared to fifty-nine percent in all other civil claims (excluding default judgments). Eisenberg & Schwab, supra, at 677."

Immunity should be denied because civil rights plaintiffs do bad enough already! Why let them sue, because, after all, it'll just give them false hope. How kind.  

Perhaps the prosecutors are arguing that most civil rights suits are frivolous. Why allow more frivolous suits. Assuming that's the argument, it's a false one.

Remember how civil rights lawsuits operate.  Even in cases where you can show a civil rights violation, you might lose.  Qualified immunity kills.

Under the Supreme Courts qualified immunity cases, it's not enough to show that your rights were violated.  You must show that your rights were violated at the time of the violation.  Ignorance of the law is an excuse - when police and prosecutors have been sued.  

Unlike every other area of tort law, in Section 1983 litigation, someone must lose a lawsuit before the law can be clearly established.  Read that over and over again, and you'll understand why these cases are blood-pressure elevating.  Current plaintiffs must lose so that future plaintiffs must win.

Thus, statistics comparing ordinary tort claims with Section 1983 claims have no merit.  The only valid comparison would require one to compare Section 1983 cases with other lawsuits that give bad actors a free pass - so long as the bad actors had to vision to be the first ones to violate the Constitution.