Foreword: Is Civil Rights Law Dead?

• Author: John Valery White
• Position: J. Dawson Gasquet Memorial Associate Professor of Law
• Pages: 609-644

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J. Dawson Gasquet Memorial Associate Professor of Law, Paul M. Hebert Law Center, Louisiana State University; J.D., 1991 Yale Law School; B.A. Southern University.

A Hypothetical:

A man walks into your office seeking representation. He has just been released from prison, cleared, by DNA testing, of a crime he did not commit. He tells you that when he first heard of DNA testing he knew he would finally prove he was wrongly convicted. You are suspicious of his legal claims from the start. His conviction would have been reviewed on direct appeal and probably via state and perhaps federal habeas proceedings. But he tells you something that catches your ear. He recounts how some ten years ago he requested DNA testing and was told flatly, "No." You are outraged but not really shocked. You understand that this is not necessarily the basis for a legal claim; DNA testing is an expensive technique that might be refused to someone who had been duly convicted and whose conviction had been repeatedly upheld. But when he says his family and attorney at the time had been able to put together sufficient funds to finance the testing at discounted rates graciously offered by a recognized forensic laboratory, you start to believe there might be something here. Weeks of preliminary research and a review of several court transcripts reveals a shocking circumstance: DNA testing had been denied to this man for no reason at all-simply refused. You think, this man has been denied reasonable access to the very evidence used to convict him. The prosecutor did not offer any of the reasons that might implicate the state's interest-limited material for testing,¹ minimal probative value to be derived from testing,² tests of similar accuracy having already been done,³ or the Page 610 plaintiff's failure to request testing at the appropriate time.⁴ Rather, they defend their refusal on no reason at all. The upshot is that the man, now your client (you fool!), endured an additional, needless decade in prison for a crime he did not commit.

You think: dream case! This is just what civil rights law is designed to address: unjustified abuses of power by state officials that cause injury to individual citizens-you are thinking Monroe v. Page 611 Pape.⁵ This is what civil rights law is all about: institutional behavior born of bureaucratic incentives that cause government actors to blindly harm society's scorned populations-you are thinking Brown v. Board of Education,⁶ Carolene Products' footnote 4,⁷ and structural reform.

You are relishing the little things about the case which you know have averted insurmountable hurdles. First, your client has already been proven innocent of the crime and released from prison. Apart from the substantial difficulty to be encountered in obtaining DNA testing⁸ and securing a convicted prisoner's release,⁹ there are Page 612 insurmountable bars to civil rights suits of this type for incarcerated prisoners. Not only must any challenge directly or indirectly implicating the fact or duration of confinement be brought in difficult to win habeas proceedings,¹⁰ no 1983 cause of action challenging problems with the conviction (and perhaps other defects of confinement) arises until after the equivalent of a judicial finding of innocence.¹¹ Second, you realize that, despite your client's thirst to challenge his initial conviction, this is a rare case, early in the life of DNA testing, where your client was refused testing in isolation from Page 613 the complexities of his conviction, appeals, and habeas proceedings.¹²So while your client does not have a claim for false or malicious prosecution,¹³ his claim is neatly framed as an access to courts claim.¹⁴ Although this is not the clearest claim in the Constitution, Page 614 you suspect its novelty and the fact of your client's innocence will buttress your case.¹⁵ Third, you are pleased to discover that, though you need not challenge the conduct of the trial itself, the conviction turned on only two pieces of evidence: notoriously unreliable eyewitness identification evidence¹⁶ and forensic comparison of blood and semen evidence. Sadly, but advantageous to your client at this stage, the case was a rape case-the prime candidate for DNA testing to establish innocence.¹⁷ Fourth, you are somewhat outraged to discover that, all the while the prosecutor's office was refusing your client access to the evidence in the case to test, they were employing DNA testing in their prosecution.¹⁸

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As it turns out, many of these facts will prove detrimental to your client's case, but oblivious to the minefield that is civil rights litigation, you head off to battle, utterly unprepared for what you will encounter. Indeed, everyone you describe your client's tale to is certain, like you, that you will succeed fabulously. Oh, but what you do not know. You are about to discover the truth about civil rights litigation.

I Modern Civil Rights Litigation: Is There Anything Left?

Whether our naive lawyer can succeed in his civil rights suit turns out to be an enormously complicated question. In this foreword I hope to highlight some of the perils she will encounter, but first a few simplifying assumptions. Although the reported cases do not clearly set out whether a convicted prisoner has a right to access to courts, which includes the right to inspect the physical evidence actually used to convict him, I will assume such a right exists (subject to reasonable restrictions aimed at protecting the evidence).¹⁹ In doing so I am putting aside likely disputes over what is reasonable inspection and who bears the cost of such inspections. However, like the right to a trial transcript, the right to inspect physical evidence, however conditioned, seems essential to any reasonable right to access the courts.²⁰ I am also assuming away the most difficult Page 616 questions related to DNA testing of convicts by assuming the unlikely case that prosecutors would refuse testing without articulating any valid state interests.²¹ Most reported cases involving DNA testing testify to the ingenuity of prosecutors at perceiving reasons that testing should be denied a convict.²² Finally, it is fair to say that the hypothetical case is inspired by an actual case in which I was involved on behalf of a freed prisoner.²³

The difficulties our attorney will encounter begin at the very start of litigation. Knowing that these cases present a minefield for Page 617 plaintiffs, few defendants are going to engage in early settlement negotiations;²⁴ indeed, the defendant is likely to be adversarial from the start, given the subject matter of the suit and the antagonistic view many have of civil rights litigation. If our attorney is a typical Page 618 plaintiff's attorney, this alone will come as quite a shock. But when the formal process begins²⁵ she will be in for quite a few more.

In several jurisdictions she will be required to comply with heightened pleading rules. Although, in Leatherman v. Tarrant County²⁶ the Supreme Court invalidated such rules for suits against municipal defendants, several circuits, including the Fifth Circuit where the Leatherman case originated, have read that opinion narrowly and continue to apply heightened pleading requirements to cases against individuals.²⁷ The pleading rule is justified as Page 619 facilitating individual immunities (which municipalities do not enjoy)²⁸ by providing detailed information on the basis of the suit with which a judge can dispose of the case on the pleadings.²⁹

However, this basis for heightened pleading creates a contradiction which circuits requiring heightened pleading have not resolved. In cases naming official policy makers in both their individual and official capacities, the policy goals of heightened pleading are necessarily unfulfilled because the individual defendant will be involved in the litigation-subject to discovery, required to testify, etc.-whether he remains in the suit in his individual capacity. Indeed, even non-policymaking individual defendants, for whom there is no good reason to name in their official capacity,³⁰ will usually still be subject to many of the inconveniences of trial, if only as witnesses.³¹ If an individual is named in his individual and Page 620 official capacities and that official is an official policy maker, heightened pleading ought not apply because the policy goals underlying heightened pleading are unfulfilled. Rather, heightened pleading should be understood as a gratuitous barrier in civil rights litigation, erected to discourage such suits.

In any case, this distinction is important because courts employing heightened pleading rules also routinely issue protective orders barring all discovery against individual defendants until the immunity questions are answered.³² These protective orders are also rooted in the policy bases behind individual immunities.³³ Like heightened pleading, however, they are strictly inapplicable to an official policymaker who is named in his official capacity.³⁴ That officer will be the subject of discovery no matter the resolution of his individual immunities. By the same token, so long as the official policy maker or the municipality is named, the protective order would seem to be inapplicable since the individual officers might still be subject to discovery in the suit against their superior or employer. Courts employing these techniques have often ignored these arguments, seeming to use heightened pleading and protective orders as a replacement for the notice of claims rules that states unsuccessfully sought to impose on civil rights claims in the 1980s.³⁵ Page 621 Defendants get the benefit of a full...