Page 13 - MarchApril26 Report

government. While Section 1983 can be a
potent tool for accountability, it faces the
following significant limitations, among
others:
•
Section 1983 does not apply to federal
law enforcement officers, meaning the
conduct of officers from the Federal
Bureau of Prisons, Immigration and
Customs Enforcement, Border Patrol,
Federal Bureau of Investigation, and
many others is beyond the reach of
1983’s promise of accountability.
•
In recent years, the U.S. Supreme Court
has severely limited alternative reme-
dies for holding federal law enforcement
accountable, such as Bivens lawsuits,
narrowing them to the point of near
obsolescence.
•
Defenses such as qualified immunity
can make it extremely hard to success-
fully challenge civil rights violations
under Section 1983.
•
The Prison Litigation Reform Act
(PLRA) adds numerous roadblocks to
1983 accountability, preventing many
legitimate claims from ever being
heard simply because a plaintiff was
incarcerated.
•
Over time, courts have raised the bar
for what conduct amounts to a consti-
tutional violation, especially under
the Fourth and Eighth Amendments,
making 1983 lawsuits challenging to win.
•
There is no Section 1983 analogue under
Ohio state law, meaning that Ohioans
cannot sue in state court for violations
of rights under Ohio’s constitution.
The result is an accountability vacuum.
When misconduct occurs, whether by
prison guards, sheriff’s deputies, police, or
ICE agents, many victims have no mean-
ingful legal avenue to challenge the abuse.
This gap becomes even more pressing
as federal law enforcement expands into
everyday American life. Ohio has seen
increasing ICE operations and detention
involving state prisons and jails. Reports
nationwide, including recent killings and
controversial incustody deaths, highlight
the urgent need for legal mechanisms
that allow courts to examine whether law
enforcement has violated constitutional
rights.
Without access to the courts, there is
no accountability. Without accountability,
abuses multiply.
Much has been written about problems
with qualified immunity and the PLRA
from an access to justice perspective. Less
has been said about the need for fixes or
workarounds addressing other problems
inherent in Section 1983. At least two legal
reforms should be considered.
First, Congress should resolve a gap in
accountability with a simple one-sentence
update to Section 1983 that applies its
coverage to federal officials, not just state
and local actors. In the wake of the killings
of Alex Pretti and Renee Good in Minne-
apolis, OJPC has called on Congress to
take that step. Versions of such a bill
have already been introduced by federal
lawmakers over time. Passing one would
allow people harmed by federal actors to
be heard in court. It would restore parity
between state and federal abuses and
provide a straightforward, predictable
mechanism for courts to adjudicate claims
of excessive force, unlawful detention,
retaliation, and denial of medical care.
Second, at the state level, Ohio needs
a Universal Constitutional Remedies
Act similar to that advanced by Protect
Democracy and by former DOJ Civil
Rights Division attorneys Kristy Parker
and Samantha Trepel in a recent article
published in The Guardian. The Universal
Constitutional Remedies Act is a state
law that would authorize any person
whose rights under the U.S. Constitu-
tion have been violated by a government
actor, irrespective of whether that actor
was federal, state, or local, to sue in state
court. Versions of this law have already
been introduced in places like New York
and California. Such an act could also
authorize lawsuits in state court for viola-
tions of the Ohio Constitution.
Such changes in the law would not
guarantee relief. They would simply guar-
antee access to justice, the opportunity
to test whether rights were violated and
whether a remedy is appropriate.
Every member of the bar has an
interest in ensuring the courts remain
open and the Constitution remains
enforceable. Access to justice requires
more than rhetoric. It requires willing
advocates and open legal pathways for
protecting the “lowest” among us.
Gabe Davis is the Chief Executive Officer of the Ohio
Justice & Policy Center and formerly led Cincinnati’s
Citizen Complaint Authority. He previously served
in the Civil Rights Division of the U.S. Department of
Justice and later practiced at Frost Brown Todd after
beginning his career as an Assistant District Attorney
in New York City. A Cincinnati native, Davis is a
graduate of Yale University and Harvard Law School.
ETHICAL
QUANDARY?
The CBA is proud to offer ethical guidance to Greater
Cincinnati attorneys through our Ethics Committee's hotline.
March
Janice Barr 513-520-9142
Sean Vicente 513-946-3715
April
G. Todd Hoffpauir 513-768-5238
Terry Patterson 513-841-1495
Stephen A. Simon 513-946-3289
The members of the CBA Ethics & Professional Responsibility Committee listed above are available
to help you interpret your obligations under the Ohio Rules of Professional Conduct. Questions posed
should be framed hypothetically and should relate to your own prospective conduct. The committee also
accepts requests for written opinions.
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