Suing a state....

Texasgrillchef · Jan 18, 2020

When a State makes a law that we feel is unconstitutional, we take the state to court. To get them to rule that the law is unconstitutional and to overturn the law.

Along the way appeals to higher courts are made along the way. Sometimes multiple appeals for various different items and motions.

Eventually makeing its way up the ladder and eventually to making a petition to SCOTUS to have them hear the case. Only once cert is give does SCOTUS hear the case. If they refuse the lower circuit courts ruling stands. This could be in our favor or this could be against us. The vast majority of the time it is against us and our 2A rights.

Even when SCOTUS hears a gun case they may not always find in our favor. Although they have found in our favor a few times. Just as the lower circuit courts have found in our favor a few times as well. Although rare.

However, please correct me if I am wrong. In all the readings i have read, i have never found once where when we have won in our favor, where the courts have awarded us any monetary amount to either cover all the legal fees and costs etc, or any punitive damages, or any other monetary amount.

So my question to the lawyers is this.

Is it not possible to sue for monetary amounts to cover legal fees, punitive damages as well as a monetary amount for damages to loss of my constitutional rights for the time period the case was fought?

Is this not possible? if it is possible why hasnt it been done?

Maybe if we sued the State for massive monetary damages punitive and otherwise, millions upon millions if not hundreds of millions of dollars, and actually won a few states coating them hundred of millions of dollars, maybe some of the Democrats would start thinking twice before they push through bills that might cost the state hundreds of millions of dollars???

CapnMac · Jan 18, 2020

Well, that's not how the system works.

Officers'Wife · Jan 18, 2020

I'm not a lawyer but it's my understanding to sue for monetary damages you would have to prove you have actually lost money.

boom boom · Jan 18, 2020

Texasgrillchef said:
When a State makes a law that we feel is unconstitutional, we take the state to court. To get them to rule that the law is unconstitutional and to overturn the law.

Along the way appeals to higher courts are made along the way. Sometimes multiple appeals for various different items and motions.

Eventually makeing its way up the ladder and eventually to making a petition to SCOTUS to have them hear the case. Only once cert is give does SCOTUS hear the case. If they refuse the lower circuit courts ruling stands. This could be in our favor or this could be against us. The vast majority of the time it is against us and our 2A rights.

Even when SCOTUS hears a gun case they may not always find in our favor. Although they have found in our favor a few times. Just as the lower circuit courts have found in our favor a few times as well. Although rare.

However, please correct me if I am wrong. In all the readings i have read, i have never found once where when we have won in our favor, where the courts have awarded us any monetary amount to either cover all the legal fees and costs etc, or any punitive damages, or any other monetary amount.

So my question to the lawyers is this.

Is it not possible to sue for monetary amounts to cover legal fees, punitive damages as well as a monetary amount for damages to loss of my constitutional rights for the time period the case was fought?

Is this not possible? if it is possible why hasnt it been done?

Maybe if we sued the State for massive monetary damages punitive and otherwise, millions upon millions if not hundreds of millions of dollars, and actually won a few states coating them hundred of millions of dollars, maybe some of the Democrats would start thinking twice before they push through bills that might cost the state hundreds of millions of dollars???

Yes, you are correct that states, local governments, and even individual government officials in some cases can be sued under some circumstances. And, if you prevail, you can then ask the court to pay reasonable attorney fees which can vary by state and the amount of time involved for the attorneys.

Heller for example won attorney fees as did MacDonald in their cases from DC and the City of Chicago. I have also seen state groups when they win litigation versus the state also get their attorneys compensated. Those type of court orders are generally in ancillary motions made after winning the case and not generally put into the opinion itself. The anti-gun media doesn't really like to report this stuff either. A lot of times you will either have to dig for the information on court sites or find it published in specialty type publications like this example https://legaltimes.typepad.com/blt/...d-11m-in-fees-one-third-of-their-request.html

What you generally cannot do is sue for attorney fees only. Often the plaintiffs in the lawsuit may get only damages of $1 that are nominal in nature but get attorney fees paid.

The major problem is that most gun laws are criminal in nature coupled with the fact that laws are generally presumed constitutional. Thus, to get standing (show injury) in most cases, you would actually have to be tried, convicted and imprisoned. There is such a thing as interlocutory appeals that is complicated but the easiest way to get standing in a criminal matter is to be convicted. Most people decline that experience. The other way is to challenge the constitutionality of the new law before it goes into effect as unconstitutional. This is called a facial challenge rather than the more difficult as applied challenge which generally requires being injured by the law. Courts in areas that are having trouble with new regulations right now have been deferring to governments on new restrictions rather than considering the 2A seriously and thus gun rights groups have been losing facial challenges to new regulations in blue states with some regularity.

The reason is due to Scotus decisions in Heller and MacDonald that left the level of scrutiny required for lower courts to examine firearm regulations unclear. As a result, lower courts, by and large, have not really treated the 2A with much respect compared with other Bill of Rights protections. The whole NYSRA v. NYC case might provide the answer to this question which is why NYC tried to moot the case which might or might not work. There is a serious conflict on the 2A among the circuits which the Supreme Court has left unresolved, most probably due to Dred Justice Roberts who is not the 2A's friend by all appearances.

Texasgrillchef · Jan 18, 2020

Officers'Wife said:
I'm not a lawyer but it's my understanding to sue for monetary damages you would have to prove you have actually lost money.

I don’t think that’s entirely so, you can sue for monetary damages for physical injury as well as emotional injury as well. Depending the circumstances, if a state government confiscated a family heirloom firearm, or one of great significant value. That would be a loss, including emotional. Assuming let’s say Worman in Worman v Healy had a gun confiscated in the AW ban that was of great value or even failmy heirloom.

Texasgrillchef · Jan 18, 2020

boom boom said:
Yes, you are correct that states, local governments, and even individual government officials in some cases can be sued under some circumstances. And, if you prevail, you can then ask the court to pay reasonable attorney fees which can vary by state and the amount of time involved for the attorneys.

Heller for example won attorney fees as did MacDonald in their cases from DC and the City of Chicago. I have also seen state groups when they win litigation versus the state also get their attorneys compensated. Those type of court orders are generally in ancillary motions made after winning the case and not generally put into the opinion itself. The anti-gun media doesn't really like to report this stuff either. A lot of times you will either have to dig for the information on court sites or find it published in specialty type publications like this example https://legaltimes.typepad.com/blt/...d-11m-in-fees-one-third-of-their-request.html

What you generally cannot do is sue for attorney fees only. Often the plaintiffs in the lawsuit may get only damages of $1 that are nominal in nature but get attorney fees paid.

The major problem is that most gun laws are criminal in nature coupled with the fact that laws are generally presumed constitutional. Thus, to get standing (show injury) in most cases, you would actually have to be tried, convicted and imprisoned. There is such a thing as interlocutory appeals that is complicated but the easiest way to get standing in a criminal matter is to be convicted. Most people decline that experience. The other way is to challenge the constitutionality of the new law before it goes into effect as unconstitutional. This is called a facial challenge rather than the more difficult as applied challenge which generally requires being injured by the law. Courts in areas that are having trouble with new regulations right now have been deferring to governments on new restrictions rather than considering the 2A seriously and thus gun rights groups have been losing facial challenges to new regulations in blue states with some regularity.

The reason is due to Scotus decisions in Heller and MacDonald that left the level of scrutiny required for lower courts to examine firearm regulations unclear. As a result, lower courts, by and large, have not really treated the 2A with much respect compared with other Bill of Rights protections. The whole NYSRA v. NYC case might provide the answer to this question which is why NYC tried to moot the case which might or might not work. There is a serious conflict on the 2A among the circuits which the Supreme Court has left unresolved, most probably due to Dred Justice Roberts who is not the 2A's friend by all appearances.

That explains why I haven’t found why I have seen legal expenses paid. I am wondering though about cases maybe where they are questioning constitutionality on a gun ban, DA may have dropped the charges, but the weapon was confiscated. Maybe this weapon was a family heirloom, or maybe of high value for some reason. Could the state be sued for monetary damages? Assuming of course that the courts found that the laws was unconstitutional and struck down the law.

I do realize that lately the lower courts have not been very nice to us in how they have handled various 2A cases. However that’s on the change in our favor as more conservative judges are being appointed. Case in point is Judge Benitez in California. Even Gorsuch, and Kavanaugh are in our favor. Kavanaugh having written a 50 page dissent in the Healy case number two before he became a Justice on SCOTUS.

injury mental or physical damage is enough to sue for money. I am sure there could be other times and cases where mental or physical damage could result from violating ones 2A rights with an unconstitutional law.

BSA1 · Jan 18, 2020

[QUOTE="Texasgrillchef, post: 11360958, member: 257253”]
So my question to the lawyers is this.

Is it not possible to sue for monetary amounts to cover legal fees, punitive damages as well as a monetary amount for damages to loss of my constitutional rights for the time period the case was fought?

Is this not possible? if it is possible why hasnt it been done?

Maybe if we sued the State for massive monetary damages punitive and otherwise, millions upon millions if not hundreds of millions of dollars, and actually won a few states coating them hundred of millions of dollars, maybe some of the Democrats would start thinking twice before they push through bills that might cost the state hundreds of millions of dollars???[/QUOTE]

It will not work because it is not their money. Government agencies are funded by taxpayers and they can simply get more money by raising taxes, user fees and fines.

Texasgrillchef · Jan 18, 2020

BSA1 said:
[QUOTE="Texasgrillchef, post: 11360958, member: 257253”]
So my question to the lawyers is this.

Is it not possible to sue for monetary amounts to cover legal fees, punitive damages as well as a monetary amount for damages to loss of my constitutional rights for the time period the case was fought?

Is this not possible? if it is possible why hasnt it been done?

Maybe if we sued the State for massive monetary damages punitive and otherwise, millions upon millions if not hundreds of millions of dollars, and actually won a few states coating them hundred of millions of dollars, maybe some of the Democrats would start thinking twice before they push through bills that might cost the state hundreds of millions of dollars???

It will not work because it is not their money. Government agencies are funded by taxpayers and they can simply get more money by raising taxes, user fees and fines.[/QUOTE]

yeah you make a good point.

boom boom · Jan 20, 2020

BSA1 said:
Texasgrillchef said:

It will not work because it is not their money. Government agencies are funded by taxpayers and they can simply get more money by raising taxes, user fees and fines.

Click to expand...

You can actually sue each official AS AN INDIVIDUAL in some circumstances. For example, where the law is clearly stated and been adjudicated, a government official that ignores such can be sued, depending on the circumstances, as an individual. That is not necessarily picked up by the taxpayers. See Bivins v. Six Unknown Named Agents, 403 U.S. 388 (1971) where DEA agents that ignored the fact that they were using an informant giving unreliable information broke into a person's house, terrorized the family, and found no drugs. They were sued individually. However, the major block to suing law enforcement is that prosecutors and judges are given absolute immunity and officers are given qualified immunity. Violations by law enforcement have to be pretty clear cut to win.

Similarly, other government officials are given qualified immunity for their actions so their actions must go far beyond the law in order to be sued and to collect personal damages. That, however, is not unheard of.

RickD427 · Jan 20, 2020

boom boom said:
You can actually sue each official AS AN INDIVIDUAL in some circumstances. For example, where the law is clearly stated and been adjudicated, a government official that ignores such can be sued, depending on the circumstances, as an individual. That is not necessarily picked up by the taxpayers. See Bivins v. Six Unknown Named Agents, 403 U.S. 388 (1971) where DEA agents that ignored the fact that they were using an informant giving unreliable information broke into a person's house, terrorized the family, and found no drugs. They were sued individually. However, the major block to suing law enforcement is that prosecutors and judges are given absolute immunity and officers are given qualified immunity. Violations by law enforcement have to be pretty clear cut to win.

Similarly, other government officials are given qualified immunity for their actions so their actions must go far beyond the law in order to be sued and to collect personal damages. That, however, is not unheard of.

I think that you're giving way too much credit to the Bivens Case. All that Bivens did was to create a legal cause of action against the federal government where a constitutional right has been violated. It sounds like you're trying to mis-apply Bivens to create a cause of action against state and local officials.

Also please note that the U.S. Supreme Court significantly reigned in the holding of Bivens, although not overturning it, in their 2017 decision in Ziglar v Abbasi.

You've correctly identified the issue with "Qualified Immunity." Qualified Immunity is going to prevent any recovery of damages where the right alleged to have been violated has not been clearly established. That's the problem with the "Anti-Gun" laws currently being debated. A right is not clearly established until there is published case law defining the extent of the right. With regard to the Second Amendment, it was on open question whether it even applied to individuals until we had the Heller decision. When the question is open, there is no clearly established right. All that Heller did was to clearly establish an individual right to keep certain types of firearms inside the home. Now, that much is clearly established. It's still an open question whether the Second Amendment applies to individuals outside the home, and to what types of weapons it protects.

Until the provisions of the Second Amendment become clearly established, Bivens (or what's left of it after Ziglar) ain't gonna help much.

Frank Ettin · Jan 20, 2020

Texasgrillchef said:
When a State makes a law that we feel is unconstitutional, we take the state to court. To get them to rule that the law is unconstitutional and to overturn the law.
....
....However, please correct me if I am wrong. In all the readings i have read, i have never found once where when we have won in our favor, where the courts have awarded us any monetary amount to either cover all the legal fees and costs etc, or any punitive damages, or any other monetary amount.

So my question to the lawyers is this.

Is it not possible to sue for monetary amounts to cover legal fees, punitive damages as well as a monetary amount for damages to loss of my constitutional rights for the time period the case was fought?...

Most litigation to overturn a law thought to be unconstitutional is not brought under a legal theory that includes a claim for damages. Such litigation usually arises as a declaratory relief action seeking a declaration that a law is unconstitutional or when the defendant raises the claimed unconstitutionality of a law as a defense to a criminal charge.

As for suing for damages for enacting a law found to be unconstitutional and therefor void, there's the old and well established doctrine of legislative immunity. Basically, a legislator may not be sued for actions performed and decisions made within the scope of his responsibilities as a legislator. This principle has a long history under the Common Law and is enshrined in the Constitutions of a majority of the States.

Legislative immunity is arguably essential to effective implementation of the separation of powers and system of checks and balances core to our democratic republic. As the Supreme Court said in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), at 372 -- 374:

......The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries. As Parliament achieved increasing independence from the Crown, its statement of the privilege grew stronger. In 1523, Sir Thomas More could make only a tentative claim. Roper, Life of Sir Thomas More, in More's Utopia (Adams ed.) 10. In 1668, after a long and bitter struggle, Parliament finally laid the ghost of Charles I, who had prosecuted Sir John Elliot and others for 'seditious' speeches in Parliament. Proceedings against Sir John Elliot, 3 How. St.Tr., 294, 332. In 1689, the Bill of Rights declared in unequivocal language: 'That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.' 1 Wm. & Mary, Sess. 2, c. II. See Stockdale v. Hansard, 9 Ad. & El. 1, 113—114 (1839).

Freedom of speech and action in the legislature was taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation. It was deemed so essential for representatives of the people that it was written into the Articles of Confederation and later into the Constitution. Article V of the Articles of Confederation is quite close to the English Bill of Rights: 'Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress * * *.' Article I, § 6, of the Constitution provides: '* * * for any Speech or Debate in either House, (the Senators and Representatives) shall not be questioned in any other Place.'

The reason for the privilege is clear. It was well summarized by James Wilson, an influential member of the Committee of Detail which was responsible for the provision in the Federal Constitution. 'In order to enable and encourage a representative of the public to discharge his public trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offense.' II Works of James Wilson (Andrews ed. 1896) 38. See the statement of the reason for the privilege in the Report from the Select Committee on the Official Secrets Acts (House of Commons, 1939) xiv.

The provision in the United States Constitution was a reflection of political principles already firmly established in the States. Three State Constitutions adopted before the Federal Constitution specifically protected the privilege. The Maryland Declaration of Rights, Nov. 3, 1776, provided: 'That freedom of speech, and debates or proceedings in the Legislature, ought not to be impeached in any other court or judicature.' Art. VIII. The Massachusetts Constitution of 1780 provided 'The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever.' Part I, Art. XXI. Chief Justice Parsons gave the following gloss to this provision in Coffin v. Coffin, 1808, 4 Mass. 1, 27:

These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered....

Some may complain that this frees legislators from accountability for their acts. But our system was designed to hold them accountable at the ballot box. If we fail to do so, it's our fault.

But, as Boom Boom outlined, in certain cases a claim for damages may be pursued under 42 USC 1983 against a public official. Spats McGee discusses some facets of 42 USC 1983 jurisprudence in this thread.

Spats McGee · Jan 20, 2020

boom boom said:
Yes, you are correct that states, local governments, and even individual government officials in some cases can be sued under some circumstances.....

I would say even more than 'in some cases.' I worked at the municipal level, but every Section1983 case in my memory started with something like "John Smith, individually and in his official capacity."

boom boom · Jan 20, 2020

RickD427 said:
I think that you're giving way too much credit to the Bivens Case. All that Bivens did was to create a legal cause of action against the federal government where a constitutional right has been violated. It sounds like you're trying to mis-apply Bivens to create a cause of action against state and local officials.

Also please note that the U.S. Supreme Court significantly reigned in the holding of Bivens, although not overturning it, in their 2017 decision in Ziglar v Abbasi.

You've correctly identified the issue with "Qualified Immunity." Qualified Immunity is going to prevent any recovery of damages where the right alleged to have been violated has not been clearly established. That's the problem with the "Anti-Gun" laws currently being debated. A right is not clearly established until there is published case law defining the extent of the right. With regard to the Second Amendment, it was on open question whether it even applied to individuals until we had the Heller decision. When the question is open, there is no clearly established right. All that Heller did was to clearly establish an individual right to keep certain types of firearms inside the home. Now, that much is clearly established. It's still an open question whether the Second Amendment applies to individuals outside the home, and to what types of weapons it protects.

Until the provisions of the Second Amendment become clearly established, Bivens (or what's left of it after Ziglar) ain't gonna help much.

Interesting case and opinion and thanks for point it out to me.

After reading the full opinion, it is clear that the court does not want to extend Bivins but leaves it in place for now. It is said that hard cases make bad law. In this case, the policy actions of the government after 9/11 were at issue which like Korematsu decision during WWII typically leads to qualified approval of the actions taken post hoc . In part, the plaintiffs were attempting pattern litigation to affect policy which the court more or less barred because of the separation of powers doctrine. The court majority mentioned the chilling of decision making by high officials as a reason to bar seeking damages from officials personally who created the government policies. Instead, the court suggested that injunctive relief or use of habeas corpus instead of monetary suits was the proper remedy. The court here also mandates application of Bivins as requiring special factor analysis before it can be considered as a remedy. Otherwise any extension of Bivins, even in the modest one claimed by plaintiffs in IV of the opinion regarding a Warden's tolerance for inmate mistreatment was rejected. In part, the plaintiffs seemed to have used the 5th Amendment substantive due process instead of the 8th which the precedent of Carlson applied. Again, the court held that other remedies were preferred than constitutional torts like Bivins.

But, this decision by the court was decided by 4-2 with three justices not participating. Furthermore, Justice Thomas suggests in his concurrence about reining in qualified immunity as has become overextended to situations beyond the common law applications that he holds was enacted into code via civil rights acts post Civil War. There are some other hints that other justices are becoming unsatisfied with the qualified immunity doctrine as currently applied. It is clear that three of the justices for the majority in this decision probably still hold the same opinion if they accept stare decisis. However, Gorsuch has proven to be a bit of a wild card and Kavanaugh is yet to make his mark. My personal guess is that existence of widespread government misconduct is forcing a reconsideration of qualified immunity and perhaps even absolute in the case of prosecutorial misconduct by the Court and the right case might lead to some interesting developments.

boom boom · Jan 20, 2020

Frank Ettin said:
Most litigation to overturn a law thought to be unconstitutional is not brought under a legal theory that includes a claim for damages. Such litigation usually arises as a declaratory relief action seeking a declaration that a law is unconstitutional or when the defendant raises the claimed unconstitutionality of a law as a defense to a criminal charge.

As for suing for damages for enacting a law found to be unconstitutional and therefor void, there's the old and well established doctrine of legislative immunity. Basically, a legislator may not be sued for actions performed and decisions made within the scope of his responsibilities as a legislator. This principle has a long history under the Common Law and is enshrined in the Constitutions of a majority of the States.

Legislative immunity is arguably essential to effective implementation of the separation of powers and system of checks and balances core to our democratic republic. As the Supreme Court said in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), at 372 -- 374:

Some may complain that this frees legislators from accountability for their acts. But our system was designed to hold them accountable at the ballot box. If we fail to do so, it's our fault.

But, as Boom Boom outlined, in certain cases a claim for damages may be pursued under 42 USC 1983 against a public official. Spats McGee discusses some facets of 42 USC 1983 jurisprudence in this thread.

Frank,
RickD247 in his post above, highlighted a case that passed by without me noticing it in Ziglar v. Abbasi, 15-1358 slip op. (2017). Justice Thomas has a history lesson in his concurrence regarding government immunity in the case and indicates his increasing dissatisfaction with the court's current qualified immunity decisions. Pretty interesting reading that might portend a shift in the future.

Suing a state....

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