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CIVIL LITIGATION FOR CRIMINAL LAWYERS

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Agenda

  1. How to get your feet wet in civil
  2. Common civil issues in criminal practice
  3. Frequent civil rights claims arising from criminal cases

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Part One

How to get your feet wet in civil

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Quick primer on civil litigation

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Complaint is the “charging” document

Defendant files “answer” or Rule 12(b)(6) motion to dismiss

Interlocutory 10th Cir. appeal for denial of qualified immunity

If not dismissed, case enters discovery

Rule 56 Motion for summary judgment at end of discovery

Trial

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Quick primer on civil discovery

    • Rule 26(a)(1) disclosures – witnesses, documents you possess, experts
    • Rule 34 - Requests for production of documents
    • Rule 36 - Requests for admission by opposing party
    • Depositions of parties, witnesses, experts
    • Rule 30(b)(6) depositions of entity (i.e. CDOC representative)

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Same, same … but different

    • Fact driven. Jury instructions. Targeted caselaw.
    • Most cases settle.
    • Slower. No speedy trial. Extensions easier to come by.
    • Stakes feel lower compared to criminal.
    • Civil procedure very rule based. Read and reread the rules.
    • Fewer trials = criminal lawyers have more trial experience.

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How to try civil?

    • Civil Pro Bono Panel, where counsel appointed – pro se prisoner and other cases. www.cod.uscourts.gov ; email Ashley_sheehan@cod.uscourts.gov
        • Limited representation may be possible.
        • Costs reimbursable; fees may be recoverable.
    • Federal Pro Se Clinic, https://www.cobar.org/fpsc

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Pro Bono Case Example

    • Prisoner alleging religious freedom violation and excessive force; court deemed case meritorious, dismissal denied.
    • Conducted discovery and settlement conference.
    • Settled, recovering all costs and fees through contingency agreement with client.

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Pro Bono Case Example

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  • Brooks v. Colo. Dept. of Corrections, 13-cv-02894. In 2023, a jury awarded $3.5 million in damages to a man in prison where prison offered him adult diapers in which he soiled himself, which was not reasonable accommodation of his disability, ulcerative colitis. Filed pro se, counsel appointed in 2015.

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Part Two

Common civil issues in criminal practice

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Civil Issues in Criminal Practice

      • Your client may be a defendant in related civil action
      • Deposition practice during criminal investigation
      • 5th amendment rights must be asserted

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Deposition Prep of Client

      • Similar to trial prep, except broader
      • Prep client for unpleasant questions
      • Privilege – instruct client not to answer
      • Objections to form must be raised (but deponent answers)

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Prep Your Client?

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Prep Your Client?

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Civil Issues in Criminal Practice

      • Settlement – be aware of criminal liability

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      • Colo. RPC 4.5(a): lawyer may not threaten criminal charges to obtain civil case advantage

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      • Settlement term to not pursue criminal charge void as against public policy. Rademacher v. Becker, 374 P.3d 499 (Colo. 2015)

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Part Three

Frequent civil rights claims arising from criminal cases

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Civil rights claims arising from criminal practice

      • 42 U.S.C. 1983: federal Const. rights
      • C.R.S. 13-21-131: state Const. rights (no qualified immunity)
      • Americans with Disabilities Act
      • RFRA/RLIUPA: religious claims

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What CO statute says

    • C.R.S. § 13-21-131 (SB217), effective June 19, 2020.
    • (1) “A peace officer [who causes] deprivation of any individual rights … secured by the bill of rights, article II of the state constitution, is liable to the injured party for legal or equitable relief or any other appropriate relief.”
    • Qualified immunity not a defense

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What CO claims can be filed?

Violations of rights under Article II, the Bill of Rights, include:

      • § 7, unreasonable searches and seizures – includes excessive force
      • § 10, freedom of speech
      • § 18, right against self-incrimination
      • § 20, no cruel and unusual punishment
      • § 25, due process including equal protection and discrimination

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Common claims during arrest

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Excessive force

Arrest without probable cause

Search without probable cause

First Amendment violations

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Example: excessive force

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Example: excessive force

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  • The “gratuitous use of force” against a subdued arrestee is excessive. McCowan v. Morales, 945 F.3d 1276, 1283 (10th Cir. 2019)

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Common jail claims

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Excessive force within jail

Failure to provide medical/mental health care

Failure to protect from suicide

Failure to protect from overdose

Failure to protect from violence

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Example: failure to provide medical care

  • Jail fails to treat infection for several weeks
  • Serious injury (death, amputation)
  • “deliberate indifference” must be shown
  • Denial or “brief” delay in care may be unconstitutional. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)

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Challenges with jail/prison claims

  • Prison Litigation Reform Act – federal court
  • State PLRA – when filing in state court
  • Exhaustion required prior to filing
  • Physical injury requirement
  • Damages/fees caps

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Systemic Litigation Arising From Criminal Practice

  • Carranza v. Reams – federal COVID injunction re jail
  • Raven v. Polis – state consent decree re transgender rights in prison
  • Lilgerose v. Polis – pending state class action re forced labor in state prison

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Steps to preserve a claim

Preservation letter

        • Puts the agency on notice
        • Creates record for use in sanctions motion in civil case if there is loss or destruction

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Steps to obtain records

      • Criminal discovery
      • CORA/CCJRC/FOIA requests
      • Investigate lawsuits against officers
      • SDT for personnel or other records
      • Investigate entities

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Where to file suit?

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State district court where venue lies.

Federal court bringing 1983 claims, and state claims under pendant jurisdiction.

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What the Heck???

    • What happens when a civil rights lawsuit makes allegations conflicting with a criminal conviction? You can’t sue.

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    • Heck v. Humphrey, 512 U.S. 477 (1994): Heck convicted of manslaughter and serving a prison term. Sues under 1983 for destruction of evidence and other due process violations. SCOTUS rules the claim is barred because it would invalidate the conviction.

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Heck Example

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Client is shot by a federal officer during a traffic stop. Client pleads guilty to assaulting or resisting a federal officer.

Client would likely be precluded from suing the officer for excessive force.

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How can I avoid Heck for a client with a civil rights claim?

    • Ensure (1) statute of conviction and (2) facts supporting the conviction do not conflict with any aspect of the civil rights claim.

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    • Factually specific inquiry. Research the cases.

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    • Consult with a civil rights lawyer. Think of it similarly to Padilla obligations or any other issue we’d consult or refer out.

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How to try civil?

    • Civil Pro Bono Panel, where counsel appointed – pro se prisoner and other cases. www.cod.uscourts.gov ; email Ashley_sheehan@cod.uscourts.gov
        • Limited representation may be possible.
        • Costs reimbursable; fees may be recoverable.
    • Federal Pro Se Clinic, https://www.cobar.org/fpsc

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QUESTIONS?��

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