CIVIL RIGHTS WITHOUT REPRESENTATION.

• Author: Schwartz, Joanna C.

TABLE OF CONTENTS INTRODUCTION 644 I. THE RIGHTEOUS CIVIL RIGHTS CASES LAWYERS WILL NOT TAKE 652 A. The False Promise of Fee Shifting 653 B. Private Attorneys' Case Selection Decisions 657 C. Nonprofits' Case Selection Decisions 662 II. PRO SE EXCEPTIONALISM 663 A. Alex Baxter 664 B. Trent Taylor 670 III. PRO SE REALISM 675 A. Pro Se Litigation in Five Districts 676 B. Pro Se Litigation in Vallejo, California 679 1. Joshua Deleon 684 2. Javier Leiva 685 3. Frederick Marceles Cooley 687 4. Anthony Garrison 688 5. Alfred Foy 690 IV. How THE LACK OF LAWYERS UNDERMINES [SECTION] 1983's GOALS 694 A. Qualified Immunity 695 B. Municipal Liability 697 C. Injunctive Relief 699 V. CIVIL RIGHTS REPRESENTATION REFORMS 700 CONCLUSION 704 INTRODUCTION

In the first days of January 2014, a major arctic cold front moved through Tennessee, bringing snow and freezing temperatures. It was the coldest it had been in that part of the country for almost twenty years. (1) On the morning of January 8, 2014, Alex Baxter, a fifty-five-year-old Black man, woke up in the abandoned tool shed in Nashville where he had been sheltering for several days. (2) Snow and slush had soaked through his shoes and clothes, and he had the flu. (3) Baxter decided that he was going to burgle a house. (4) He knew someone who would buy anything that he stole, and he was determined to get enough money to rent a room, get better, and let the cold front pass. (5)

Someone called the police when they saw Baxter breaking into a neighbor's home. (6) When Baxter saw a police helicopter circling overhead, he hid in the basement of another unlocked house that he had burgled before. (7) Nashville officers Spencer Harris and Brad Bracey entered the basement of that house with their police dog, Iwo. (8) Officer Harris stood in front of Baxter. (9) Baxter raised his hands high in the air in surrender. (10) Both officers could see Baxter--he was sitting next to a window and there was plenty of light shining through. (11) But Officer Harris released Iwo anyway, and the dog's jaws locked onto Baxter, tattering the flesh of his armpit while his hands were in the air. (12) After letting Iwo attack Baxter for thirty or forty seconds, the officers called the dog off and arrested Baxter for burglary. (13) Baxter was taken to the hospital for emergency medical treatment and then was taken to jail. (14) The jail's nurse saw him every day for the next month for his injuries. (15)

Baxter brought a [section] 1983 lawsuit against the officers, arguing that they had violated his Fourth Amendment rights by releasing their police dog on him after he had surrendered and posed no threat. (16) The district court denied the officers qualified immunity, but in 2018, the Sixth Circuit reversed. (17) Qualified immunity protects police and other government officials from damages liability in [section] 1983 cases unless they violated "clearly established law." (18) In recent years, the Supreme Court has repeatedly chided lower courts that deny officers qualified immunity and reiterated the "longstanding principle that 'clearly established law' should not be defined 'at a high level of generality,'" and should instead "be 'particularized' to the facts of the case." (19) In Baxter [upsilon]. Bracey, the Sixth Circuit demonstrated that it had heard the Supreme Court's message loud and clear. The Sixth Circuit had previously recognized that it clearly violates the Fourth Amendment for the police to use force against a suspect who has surrendered. (20) In fact, the Sixth Circuit had previously ruled that police violate the Fourth Amendment when they release a police dog on a person who has surrendered by lying down. (21) But, according to the panel that decided Baxter's case, that prior decision did not "clearly establish[]" that it is unconstitutional for officers to release their police dog on a person, such as Alex Baxter, who is seated with their hands in the air. (22)

After the Sixth Circuit issued its decision in Baxter [upsilon]. Bracey, the case quickly became what Time Magazine called a "famous example" of all that is wrong with qualified immunity. (23) Legal scholars and organizations across the political and ideological spectrum submitted briefs to the Supreme Court, asking it to reinstate Baxter's claims and arguing that the Court should limit or abolish the doctrine. (24) Baxter's petition for review was one of several qualified immunity cases that the Supreme Court declined to hear in June 2020, in the midst of nationwide protests prompted by the murder of George Floyd. (25) But in Baxter, Justice Clarence Thomas chose to dissent and write his own opinion recounting the facts of Baxter's case and urging the Supreme Court to reconsider qualified immunity. (26) The Supreme Court's denial of certiorari and Justice Thomas's dissent in Baxter led to news articles describing what happened to Baxter as "truly outrageous" and criticizing qualified immunity doctrine as unjust. (27)

In November 2020, less than five months after the Supreme Court refused to hear Alex Baxter's case, the Court issued a decision in another case, Taylor [upsilon]. Riojas, that has been hailed as a subtle but important shift in the Supreme Court's qualified immunity jurisprudence. (28)

In September 2013-three months before Nashville police officers ordered Iwo to attack Alex Baxter--Trent Taylor spent six days in cells in a Texas prison's psychiatric unit that were, in the words of the Supreme Court, "shockingly unsanitary." (29) Taylor, a twenty-five-year-old white man, was first put, naked, in a cell with feces on every surface--the floor, the ceiling, the walls, and the windows. (30) Even the faucet that offered his only source of water was packed with feces. (31) When Taylor complained about the conditions in his cell, three corrections officers laughed at him, and one said Taylor was "going to have a long weekend." (32) Taylor did not eat or drink for four days for fear of contamination. (33)

Taylor was then moved--still naked--to a freezing cold cell, where a prison official said he hoped Taylor would "fucking freeze." (34) The cell had no bed or toilet--just a drain hole in the middle of the floor, clogged with raw sewage. (35) After holding his bladder for more than a day, Taylor relieved himself, the drain overflowed, and human waste spilled everywhere. (36) Taylor slept, naked, on the cell's sewage-covered floor. (37) After two days in the cold cell, 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. (38)

Taylor sued, alleging that corrections officers had placed him in conditions of confinement that violated the Eighth Amendment. (39) The trial court granted the officers qualified immunity, and the Fifth Circuit Court of Appeals affirmed. (40) Although the Fifth Circuit assumed that the officers had violated Taylor's constitutional rights, it found that those rights were not clearly established. (41) The Fifth Circuit wrote that it was clear "that prisoners couldn't be housed in cells teeming with human waste for months on end," but--repeatedly citing the Supreme Court's qualified immunity decisions--concluded that it was not clearly established that holding someone in filthy cells for just six days violated the Constitution. (42) Thus, the officers were entitled to qualified immunity. (43)

In a short, unsigned opinion issued on November 2, 2020, the Supreme Court granted certiorari, reversed the Fifth Circuit, and remanded Taylor v. Riojas back to the lower court. (44) "Confronted with the particularly egregious facts of this case," the unsigned opinion explained, "any reasonable officer should have realized that Taylor's conditions of confinement offended the Constitution." (45)

The Atlantic, USA Today, and the Harvard Law Review, along with a slew of other legal publications, journals, and podcasts, described and analyzed the Supreme Court's decision in Taylor v. Riojas. (46) The Court's decision in Taylor, allowing the plaintiff to overcome qualified immunity without a nearly identical case to "clearly establish" the law, was celebrated as an indication by the Supreme Court that it wishes to step away from its most robust descriptions of the doctrine's power. (47) And the case has played a significant role in the application of qualified immunity ever since: as of November 2, 2022, two years after the Supreme Court decided Taylor, the Court's decision had been cited in 236 court opinions and 336 trial and appellate briefs.

Baxter v. Bracey and Taylor v. Riojas are critically important decisions defining the contours of qualified immunity's protections and shaping public debate about the doctrine. But this Article focuses on another aspect of both cases that is equally, if not more, important to the future of civil rights enforcement yet is virtually always overlooked: Alex Baxter and Trent Taylor spent years searching, in vain, for lawyers willing to represent them.

Both Alex Baxter and Trent Taylor filed their lawsuits pro se. (48) Both wrote to a dozen or more lawyers from jail; none would agree to take their cases. (49) Both Baxter and Taylor repeatedly asked the judges hearing their cases to appoint counsel; those requests were repeatedly denied. (50) Both men represented themselves in district court and on appeal. (51) Only when the Sixth Circuit ruled that the Nashville officers were entitled to qualified immunity in Baxter v. Bracey and the Fifth Circuit ruled the Texas corrections officers were entitled to qualified immunity in Taylor [upsilon]. Riojas did the cases come to the attention of civil rights attorneys who agreed to represent Baxter and Taylor and fought mightily to get their cases heard by the Supreme Court. (52)

It may come as a surprise that no attorney was willing to represent Alex Baxter in a case that ultimately attracted so much national attention or to represent Trent Taylor...