It has been said that a right without a remedy is no right at all.  It is important that citizens have a proper way of enforcing their constitutional rights against the government in the courts.  Constitutional rights may be asserted both offensively and defensively.  The most common defensive use of constitutional rights is by criminal defendants. Persons may also assert constitutional rights offensively, bringing a civil suit against the government or government officials for a variety of relief: declarative, injunctive and monetary.


            One example may be used to show the various ways that the same right may be asserted.  Let us assume that the state of Maine has a law making it illegal to carry certain symbols of hate (i.e., a swastika) in a parade on a public street.  Such a law would be a violation of the First Amendment.  The Ku Klux Klan announces that they will display swastikas in a march in Portland, Maine the following week. The mayor announces that if they do, they will be arrested.  The Klan goes ahead and holds the march and some members are arrested.  When making the arrests, the police use excessive force (a violation of the Fourth Amendment), and several of the marchers are injured.


A.  Declarative and Injunctive Relief


            The first question is whether the Ku Klux Klan could have done anything before the march to prevent their arrests.  The answer is yes.  They could have brought suit to have the state law declared unconstitutional and also to have the city authorities enjoined (prohibited by court order) from enforcing the statute against them.  Persons may bring suits to have a law declared unconstitutional (declaratory judgement suit) if they can establish standing, by showing there is an actual dispute. 


Persons may not merely choose a law they think is unconstitutional and sue to have it declared unconstitutional.  They must first establish that it is likely that they will violate the law and also likely that they will be prosecuted for it.  The Ku Klux Klan could make the necessary showing in this case.


Plaintiffs, if they believe it necessary, may also go further and ask for an injunction prohibiting the city from enforcing the law, if it has been declared unconstitutional.  In order to obtain an injunction they must show that they will suffer irreparable harm.  This means that they will suffer some harm that cannot be completely remedied by money damages afterwards.  Loss of their rights of free speech could be considered irreparable, and they should be able to obtain an injunction in this case.  If the injunction is issued and city officials try to enforce the law, they may be found guilty of contempt of court, which may result in fines or a jail sentence. 


Such a declaratory or injunctive lawsuit could be brought in either federal or state court.  Most often, however, it would be brought in federal court, with the hope that a federal judge, who was appointed by the President, rather than by the state’s governor or elected by the public, would be more willing to declare a state law unconstitutional.


B.  Defending Criminal Charges


Now let’s assume that they did not bring suit beforehand (which they are not required to do) and instead held the march and were arrested.  They may bring their constitutional challenge defensively at their criminal trial. The state judge presiding over the case would be obligated to hear the constitutional claim, and if it were found valid, to dismiss the criminal charges.


Taking this route is riskier than asking for an injunction because, if the statute is found to be constitutional, the defendant may be held criminally liable and subject to prison or fines.  Also, in the criminal case, the defendant’s constitutional claim will be heard, at least in the first instance, by a state, rather than federal judge.  A state judge, who might have to run for re-election, might be less likely to hold a state statute unconstitutional and rule in favor of such an unpopular defendant.


C.  Suing for Damages


If  members of the Ku Klux Klan were arrested or prevented from marching because of the unconstitutional statute, they could also bring a suit for damages against the city.  They would do so under a statute passed originally to protect African Americans after the Civil War, 28 U.S.C.§ 1983 (commonly referred to as Section 1983).  This statute allows a person whose constitutional rights have been violated to sue the responsible public official or governmental body for money damages.  In this case, the Klan members could receive money damages from the city, since the arrests were made by authority of the mayor and thus constituted city policy.  One problem for the plaintiffs in this case is that the amount of damages might not be very great.  Although the right of free speech may be very important, it does not have an intrinsic monetary value.  They would have to show some additional, more concrete harm as a result of the arrests.


If, during the arrests, the police used excessive force that caused them physical injury, they might be able to sue the police officers individually for violation of their Fourth Amendment right against unreasonable seizure.  They would, of course, prefer to sue the city itself, because it would probably be able to pay a larger damage award than the individual police officers.  A city, however, will not normally be responsible for the constitutional violations of its employees, unless they were acting in accordance with government policies.  In this case, if the police officers were acting in violation of city policy when they used too much force, then the city could not be held liable.


There are several additional impediments to recovering damages from certain defendants for constitutional violations.  Although damages may be recovered against a city for enforcing an unconstitutional law or policy, the same is not true for state governments.  States are protected by the doctrine of sovereign immunity from having to pay damages in most cases.  They may only be sued for injunctive relief to prohibit constitutional violations, not afterwards for any damages caused.


There are also problems recovering damages from individual government officials.  All government officials receive some form of immunity from damages.  A few officials, most notably judges, legislators and prosecutors, are completely immune from damages, no matter how bad their behavior.  For example, a prosecutor who knowingly presents false testimony that wrongly convicts an innocent defendant may not be sued for damages.  This protection is given to them so they can exercise their best judgment without fear of lawsuits.  In some cases, however, this leaves injured citizens with no legal recourse.  These officials may be subjected to criminal prosecution in cases of truly illegal conduct, but this happens quite rarely and does not help the injured persons.


Most other government officials and employees are given only partial, or qualified immunity.  This means that they may be held liable for damages for violating someone’s constitutional rights, but not in all cases.  The injured party must show that the right that was violated was “clearly established” by the courts before the official took the action.  This rule is imposed because it would not be fair to hold government employees personally liable for their actions unless they could know, in advance, that the actions were unconstitutional.  In our case, since the right not to be subjected to unreasonable force during an arrest has been established by the courts in the past, damages could be awarded against the individual officers.


D.  Class Actions


The examples used so far have all involved a small group of persons suing to enforce their constitutional rights.  Most lawsuits are brought on behalf of one or several persons and the results affect only those few people.  There are times, however, when unconstitutional government actions affect large numbers of persons.  For example, if a state is running an overcrowded, unsafe prison system, this may violate the Eighth Amendment’s ban on “cruel and unusual punishment.”  The rights of thousands of prisoners may be affected.


In such a case, a small number of prisoners may bring suit against the government on behalf of the larger class of all “similarly situated” persons.  Such lawsuits are known as class actions.  Any relief obtained will be granted to all members of the class, not just the few who brought the suit.  Class action lawsuits are difficult and expensive to bring, but are often the best way to make large, institutional changes.  Lawsuits to integrate southern schools, to force police departments to hire women and minorities, and to close down antiquated mental hospitals are just a few examples of some important class action lawsuits.


E.  Attorneys’ Fees


It is sometimes very difficult for persons to find attorneys willing to bring suits to enforce constitutional rights.  In the United States, attorneys are paid by the party who hired them, either by the hour, or with a percentage of any money recovered.  This may not be sufficient to attract attorneys to take civil rights cases.  Consider the example of the suit to reform an unconstitutional prison system.  The prisoners will not have the money to pay their attorneys by the hour, nor will there be any money awarded to share with their attorneys even if they are successful with their case.  Yet this will be a long, difficult, expensive, and unpopular case for any attorney to take on.  While there may be a small group of attorneys who have dedicated their lives to helping minorities, the poor, prisoners, and others needing legal representation, there are not nearly enough.  In many other countries, the losing party in a lawsuit may be ordered to pay the winning party’s attorneys’ fees.  This is not the normal rule in America, however.  In a typical lawsuit, each party must pay its own attorney, win or lose.


To help with this problem, Congress passed the Attorneys’ Fees Awards Act.  Under this Act, courts normally award attorneys’ fees, to be paid by the defendant, when plaintiffs bring a successful suit against the government for violating their constitutional rights.  The purpose of the Attorneys’ Fees Award Act is to allow deserving plaintiffs to attract competent lawyers to represent them in constitutional litigation.  It has been successful in doing so, but has been criticized for encouraging frivolous litigation.  This probably is not true, since the attorney will only recover the fees if the lawsuit is, in the end, successful.