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Civil Rights Attorneys' Fees

Fox v. Vice, being argued today, is a somewhat crime-related case in that it involves attorneys' fees for a prevailing defendant in a suit against a law enforcement officer.  Unfortunately, the late Chief Vice is a particularly unsympathetic defendant.  He did, in fact, commit extortion against plaintiff Fox and was convicted of that crime.  He did not, though, commit the federal civil rights violation that Fox sued him for.  The District Court awarded him attorneys' fees, and the Fifth Circuit affirmed.

On its face, the civil rights suit attorneys' fee statute, 42 U.S.C. ยง1988, is symmetrical, applying exactly the same to plaintiffs and defendants.  The Supreme Court's rewrite of that statute to say that prevailing plaintiffs nearly always get fee awards and prevailing defendants almost never do was raw judicial activism.  It is also bad policy.

Falsely accusing someone of a civil rights violation is just as bad as committing a civil rights violation.  The victims of false accusations should be made whole just as the victims of real violations should be.

The asymmetry of the present rule is especially bad when litigation is used to influence public policy.  If the side opposed to a particular policy can position itself as the plaintiff in a civil rights case, then the threat of ruinous litigation expense can be used to convince a city council or school board not to a adopt a policy in the first place, even if the policy is actually constitutional and good policy.  If, for example, the ACLU sues a school district for hanging a "God Bless America" banner on a school the day after 9/11, then they should pay the district's attorneys' fees after their suit is thrown out.

But the issue before the Court in Fox is narrower than that.  Restoring the symmetry that the statute actually provides is not on the table.  Amy Howe has this argument preview at SCOTUSblog.

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