Civil Rights, Justice, and Representation There is much to "Civil Rights Without Representation"↱, the 2022 Wythe Lecture delivered at William & Mary Law School last month by UCLA Law professor Joanna Schwartz, and while in its way all of it is important, one point that stands out on first reading has to do with the idea and implications of what circumstances are exceptional. The lecture generally examines what happens when criminal defendants are left to struggle for their civil rights pro se against state authorities. Baxter v. Harris was filed in April, 2015 and, as Baxter v. Bracey, reached the Supreme Court in 2020; the underlying claim is that police sicced a dog on a suspect who had surrendered. Schwarz suggests, "In fact, the most remarkable thing about Alex Baxter and Trent Taylor is not that they couldn't find a lawyer, lawyer—but that they got as far as they did litigating without one" (17). When Alex Baxter filed in 2015, he asked the court to appoint counsel; this was a civil rights claim, though, and the court said no. "The judge noted that appointment of counsel is limited to 'exceptional circumstances'" (18). And this is an important standard: Not having access to the legal documents and reference materials one needs is an acceptable hindrance to the pursuit of justice because it is not an exceptional circumstance. Moreover, despite the court finding that Baxter's pro se complaint "concluded that it stated a claim" (19): After the complaint was served on the officers, one moved to dismiss, arguing in part that Baxter had not alleged a constitutional violation and that the officer was entitled to qualified immunity. As Baxter described it to me, in their motion "they threw everything at me including the kitchen sink, the toilet, the doghouse and the gopehr's den." Then Baxter had to figure out how to respond to all of the arguments in the motion. Remember that at this point, Baxter has also struggled through a $350 filing fee that many cannot afford; while sua sponte dismissal clearly led dispositions in a sample of five federal court districts, motions to dismiss (32.5%) and failure to prosecute (15.6%) make up nearly half the dispositions of cases that remain.(29) Baxter, learned how to draft a motion "by looking at examples of other motions I found in the library and flipping through the pages of different law books." He continued, It got a little confusing at times, like th e difference between state and federal courts, or the distinction between respondents and defendants, or how to word the tile of the request in a motion. What I found out however, is that was the easy part. I had to learn what to put in the body of the pleadings and how to sum it all up to make a meaningful opposition or meaningful request. Despite these challenges, Baxter did file an opposition to the motion, and also amended his complaint … The officer then filed a motion to dismiss the amended complaint. (19) And while the magistrate judge recommended on Baxter's behalf, "that's where it got interesting" (20); Baxter had to learn how to write an appeal. He did well enough; the Sixth Circuit sent the case back to the district court for discovery, and then Alex Baxter filed a second motion for appointment of counsel, over two years after his first request. Baxter's renewed request for counsel described the challenges of pursuing discovery as a prisoner proceeding pro se. Baxter wrote: The plaintiff is an incarcerated, pro se prisoner, and appointment of counsel is needed because the defendants are represented by two highly skilled, highly experienced, and highly trained attorneys .... The Court has entered a scheduling order for the mananagement of the case. Issues like voir dire, motions in limine, jury questions, jury instructions, as wwell as numerous others are beyond the scope of the plaintif's ability .... Appointment of counsel is needed to locate, identify, and interview material witnesses. Family members informed plaintiff that signifant portions of the event was recorded and posted on social media by several bystander/witnesses, and appointment of counsel is needed to interview family members and to locate, identify, and interview any material witnesses .... Appointment of counsel is needed because of extensive and excessive lockdowns at the prison. The plaintiff moves the Court to appoint counsel because he is being subjected to extensive and excessive lcokdowns at the Trousdale Turner Correctional Complex .... A couple lockdowns lasted for three or four days only, but most lasted for weks at a time. During lockdowns at TTCC inmates are forced to remain seated on their bunks all day and night, with the only break allowed for a short trip to use the restroom and back. Even the so-called "modified lockdowns" doesn't allow inmates access to the law library. With deadlines looming and trial now scheduled a few months away, it is impossible to prepare a competent case for the Court let alone present a meaningful case to the jury. (20-21) It took four days for the court to say no, explaining that his case "fails to show exceptional circumstances that would justify the appointment of counsel", and observing, "all pro se petitioners face these struggles—they are nothing exceptional." (21) And here we need to take a moment to consider: While the court recognizes the apperance of actionable complaint, and the state has the power to prevent the plaintiff from fulfilling his obligations to the Court, there is no need to grant relief because all such plaintiffs face such a conflict of interest without aid of competent counsel. This is what stands out: There is nothing wrong, here, because this is how it always goes. Sometimes we might hear talk about "the System", and it is unclear what that system is supposed to be. This can range from crackpot rants about complex conspiracies to everyday laments that the whole damn System is corrupt or broken or some such. But as an arrangement of tangible rules, definitions, and processes, the idea of a justice system is not nearly so abstract. The system is not corrupt throughout, as demonstrated by the fact that Baxter's case made it as far as it did, but this isn't justice. After the 2017 denial of appointed counsel, Baxter filed sufficient motions that the police officers filed for summary judgment for qualified immunity, and the court refused them, as well. In late 2018, the Sixth circuit quashed that, finding a new hair to split on behalf of law enforcement. The actual decision went unpublished, but an industry newsletter on appellate decisions noted the case, and at long last, attorneys answered. In April, 2019, the ACLU, both National and Tennessee, filed Baxter's case before the Supreme Court of the United States. (21-22) In June, 2020, the Supreme Court said no in an unsigned opinion; Justice Thomas dissented. The hairsplitting offered law enforcers is the sort of stuff that, once upon a time, was the legend of sleazy defense lawyers winning on technicality. Baxter's case path could, and probably should, have been different. The Sixth Circuit considered whether Baxter's particular version of surrender was covered by a recent SCOTUS reversal of the Tenth Circuit (3, 20) and asserted a lack of "any clearly established right" (qtd., 20). That is, the difference between being seated with one's hands in the air according to an officer's instructions, or lying down, is why the Sixth does not see any clearly established right being violated. And for that ultrafine distinction, Alex Baxter's legal obligations became what they were. Questions of police brutality are what they are; the larger scope of Schwartz's lecture makes clear there are plenty; there were over 1.2 million pro se civil rights cases filed in federal courts between 2000 and 2019. And the courses of those that survive sua sponte are brutal. The other case Schwartz discusses, Taylor v. Riojas, includes a part when the court refused to appoint counsel because Taylor seemed to be doing well enough on his own (24). Our courts, too, are brutal; our justice is brutal. And this is what stands out. None of what law enforcement and the courts do in all this seems exceptional. And if the costs of legal representation might be symptomatic of some systemic trait of "capitalism", the obstacles challenging petitioners like Baxter and Taylor are not accidents of systemic flaw, but inflictions of systemic design. Schwartz presents for a law school, reminding, "Any plan to restore the power and potential of Section 1983 must include a blueprint to expand the number of lawyers who are bringing civil rights cases, expand the types of cases that they are bringing, and expand the locations where they are bringing them", because, "When a meritorious pro se civil rights case is dismissed, it is not only the named plaintiff who is harmed." (1) It seems possible to reasonably suggest that if we ever want to see a genuinely rigged system, these two cases give us a glimpse. The legal landscape for these petitioners is absurdly brutal. That Taylor, six years later, won the right to go to court and argue about what happened, does not mean they are doing well enough on their own. ____________________ Notes: Schwartz, Joanna C. "Civil Rights Without Representation". 28 February 2022. Papers.SSRN.org. 4 March 2022. https://bit.ly/3Cg5D4R
enforceMENT(rs) it reads like the denial was used without consideration to see the law be served instead denial was used as punishment based on a perceived position of accepted privilege it reminds me of slavery and how most American law appears to be pro slavery & then adjusted to be not quite soo bad
