Forming Your Case
| Author | Rebecca Ann Taylor |
| Profession | Writer and attorney |
| Pages | 181-220 |
181
Some states may offer more expansive civil rights than what is provided by
federal law. Therefore, when deciding what causes of action and remedies
you will seek for your client, make sure you carefully examine the case law,
statutes, and regulations of your state and local government. Sometimes,
even more expansive rights may be granted by your specic locality. Be
exhaustive in your search for relief.
Many civil rights cases today include claims brought in conjunction with
42 U.S.C.A. § 1983, such as claims for false arrest, violation of freedom
of speech, injunctive relief, and other causes of action such as intentional
and negligent iniction of emotional distress, contempt of cop, overcharg-
ing, malicious prosecution, municipal and supervisory liability, improper
photographing and retention of data, First Amendment retaliation, failure
to train and supervise, conspiracy, and declaratory relief. (A good pleading
form for these causes of action, when crafted to t your local laws, is the
complaint led in Rodriguez v. Winski.1)
In deciding the strategy for your case, it will probably be helpful for
you to look at other cases with similar issues, both in your jurisdiction and
nationwide, to ascertain how you should word your causes of action and
which burdens of proof will be the most difcult to demonstrate. Though
many civil rights plaintiffs do not receive everything they ask for, they often
1. Case No. 1:12-cv-03389-NRB (S.D.N.Y. 2012), available at http:// www .scribd .com /
doc /91815944 /Rodriguez-Et-Al-v -Winski-Et-Al-COMPLAINT.
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Forming Your Case
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receive at least partial relief. Increase your chances of receiving all requested
relief by making sure you assert the necessary elements in your complaint
to survive a motion to dismiss, which, in the wake of Ashcroft v. Iqbal,2 is
more of a threat to your client’s day in court than ever before.
Precedent and Case Strategies for Protesters
Your case might be factually similar to cases involving Occupy movement
plaintiffs, and you can look to those cases (preferably successful ones) for
guidance as you draft your initial pleadings and form the strategy for your
case. Many Occupy cases might involve issues of rst impression, either
locally or nationally. It may be that through your legal research engine you
cannot nd any cases at the appellate level, either state or federal, that are
helpful precedents to your issue. However, there may have been orders issued
at the trial, circuit, or county court level that are not listed in the usual
places. If an order is on all fours with your case and is helpful to you, your
judge may nd it to be persuasive authority. How do you nd such an order?
At the time of this writing, there is a sufciently nite and ascertainable
number of cases in the courts nationwide that involve Occupy or similar
protest issues. You can check Pacer online for federal cases, and many local
courts now have online dockets as well so that you can lter cases to which
an Occupy group is a party. It may be a good idea to keep tabs on the prog-
ress of all of these cases, or at least those that contain issues parallel to
yours. While case information, dockets, or even case documents will often
be available online, for others you or an assistant will need to telephone
or go down to the courthouse and review the court le on a regular basis.
What Would You Have Done?
The following examples of key events in the Occupy movement impli-
cate a number of First Amendment and other constitutional rights. As you
2. 556 U.S. 662 (2009).
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read through the summaries of these events, consider how you might have
approached the case if the protesters at issue had come to you for assistance,
in light of the law and strategies discussed in this book and elsewhere. Ask
yourself these questions:
• Would you have sought legal relief and in what forum?
• Would you have reached out to the local government rst and tried to
arrive at an amicable solution?
•
Would you have attempted to negotiate an ongoing solution for future
relations between the protesters and the government, so that interests
of both parties could be met?
• Would you have pursued administrative remedies?
• Would you have asked for mediation or arbitration?
•
Would you have turned to social media and asked your audience to
take action and if so, what would it have been?
•
What cases would you have turned to as precedent in formulating
your strategy?
• What relief would you have ultimately pursued for your clients?
Occupy’s Harnessing of t he Media for a
Homeowner Facing a Foreclosure Eviction
In a California case where a foreclosure judgment and an eviction notice had
already been issued against Rose Gudiel and her family, Occupy stepped in
to help make a stand with the Gudiels at their home, sending the message to
the bank that the family was not leaving.
3
Instead of the confrontation that
had been anticipated with the Gudiels, the protesters, and the sheriff’s ofce,
the bank suddenly had a change of heart. The investor Fannie Mae and its
servicer OneWest, while refusing to discuss the case with the media, offered
the Gudiels a new loan modication proposal even after the homeowners
had previously completed numerous loss mitigation packages to no avail.
Gudiel’s loan troubles were rst caused by a mortgage payment made
only two weeks late in 2009. If there are any families who are deserving of
3. Kari Huus, Homeowner Taps “Occupy” Protest to Avoid Foreclosure, MSNBC.
(Oct. 17, 2011), http:// www .msnbc .msn .com /id /44908122 /ns /us _news-life /t /homeowner-taps-
occupy-protest-avoid-foreclosure / #.
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