June 2012 Visa Bulletin

Number 45
Volume IX
Washington, D.C.

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What is Discrimination?

In plain English, to “discriminate” means to distinguish, single out, or make a distinction. In everyday life, when faced with more than one option, we discriminate in arriving at almost every decision we make. But in the context of civil rights law, unlawful discrimination refers to unfair or unequal treatment of an individual (or group) based on certain characteristics, including:

  • Age
  • Disability
  • Ethnicity
  • Gender
  • Marital status
  • National origin
  • Race,
  • Religion, and
  • Sexual orientation.

Lawful vs. Unlawful Discrimination

Not all types of discrimination will violate federal and/or state laws that prohibit discrimination. Some types of unequal treatment are perfectly legal, and cannot form the basis for a civil rights case alleging discrimination. The examples below illustrate the difference between lawful and unlawful discrimination.

Example 1: Applicant 1, an owner of two dogs, fills out an application to lease an apartment from Landlord. Upon learning that Applicant 1 is a dog owner, Landlord refuses to lease the apartment to her, because he does not want dogs in his building. Here, Landlord has not committed a civil rights violation by discriminating against Applicant 1 based solely on her status as a pet owner. Landlord is free to reject apartment applicants who own pets.

Example 2: Applicant 2, an African-American man, fills out an application to lease an apartment from Landlord. Upon learning that Applicant 2 is an African-American, Landlord refuses to lease the apartment to him, because he prefers to have Caucasian tenants in his building. Here, Landlord has committed a civil rights violation by discriminating against Applicant 2 based solely on his race. Under federal and state fair housing and anti-discrimination laws, Landlord may not reject apartment applicants because of their race.

Where Can Discrimination Occur?

Federal and state laws prohibit discrimination against members of protected groups (identified above) in a number of settings, including:

  • Education
  • Employment
  • Housing
  • Government benefits and services
  • Health care services
  • Land use / zoning
  • Lending and credit
  • Public accommodations (Access to buildings and businesses)
  • Transportation
  • Voting

Anti-Discrimination Laws

Most laws prohibiting discrimination, and many legal definitions of “discriminatory” acts, originated at the federal level through either:

  • Federal legislation, like the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1992. Other federal acts (supplemented by court decisions) prohibit discrimination in voting rights, housing, extension of credit, public education, and access to public facilities.

OR

  • Federal court decisions, like the U.S. Supreme Court case Brown v. Board of Education, which was the impetus for nationwide racial desegregation of public schools. Other Supreme Court cases have shaped the definition of discriminatory acts like sexual harassment, and the legality of anti-discrimination remedies such as affirmative action programs.

Today, most states have anti-discrimination laws of their own which mirror those at the federal level. For example, in the state of Texas, Title 2 Chapter 21 of the Labor Code prohibits employment discrimination. Many of the mandates in this Texas law are based on Title VII of the Civil Rights Act of 1964, the federal law making employment discrimination unlawful.

Municipalities within states (such as cities, counties, and towns) can create their own anti-discrimination laws or ordinances, which may or may not resemble the laws of the state itself. For example, a city may pass legislation requiring domestic partner benefits for city employees and their same-sex partners, even though no such law exists at the state level.

Discrimination: Getting a Lawyer’s Help

If you believe you have suffered a civil rights violation such as discrimination, the best place to start is to speak with an experienced Discrimination Attorney. Important decisions related to your case can be complicated — including which laws apply to your situation, and who is responsible for the discrimination and any harm you suffered. A Discrimination Attorney will evaluate all aspects of your case and explain all options available to you, in order to ensure the best possible outcome for your case.

Police Misconduct and Civil Rights

Police officers generally have broad powers to carry out their duties. The Constitution and other laws, however, place limits on how far police can go in trying to enforce the law. As the videotaped beating of motorist Rodney King, in Los Angeles and several recent cases in New York have illustrated, police officers sometimes go too far, violating the rights of citizens. When this happens, the victim of the misconduct may have recourse through federal and state laws. A primary purpose of the nation’s civil rights laws is to protect citizens from abuses by government, including police misconduct. Civil rights laws allow attorney fees and compensatory and punitive damages as incentives for injured parties to enforce their rights.

Overcoming Immunity

Being stopped and questioned by police in connection with a crime is an unsettling experience for most anyone. As long as the officer is performing his job properly, however, there is no violation of a suspect’s rights. In fact, police are immune from suit for the performance of their jobs unless willful, unreasonable conduct is demonstrated. Mere negligence, the failure to exercise due care, is not enough to create liability. Immunity therefore means that in the typical police-suspect interaction, the suspect cannot sue the police. Civil rights remedies come into play for willful police conduct that violates an individual’s constitutional rights.

Civil Rights Laws and Police Misconduct

A statute known as Section 1983 is the primary civil rights law victims of police misconduct rely upon. This law was originally passed as part of the Civil Rights Act of 1871, which was intended to curb oppressive conduct by government and private individuals participating in vigilante groups, such as the Ku Klux Klan. It is now called Section 1983 because that is where the law has been published, within Title 42, of the United States Code. Section 1983 makes it unlawful for anyone acting under the authority of state law to deprive another person of his or her rights under the Constitution or federal law. The most common claims brought against police officers are false arrest (or false imprisonment), malicious prosecution, and use of excessive or unreasonable force.

False Arrest
The claim that is most often asserted against police is false arrest. Persons bringing this claim assert that police violated their Fourth Amendment right against unreasonable seizure. If the officer had probable cause to believe the individual had committed a crime, the arrest is reasonable and the Fourth Amendment has not been violated. Police can arrest without a warrant for a felony or misdemeanor committed in their presence. (Some states also allow warrantless arrests for misdemeanor domestic assaults not committed in the officer’s presence.) Even if the information the officer relied upon later turns out to be false, the officer is not liable if he believed it was accurate at the time of the arrest. To prevail on a false arrest claim, the victim must show that the arresting officer lacked probable cause, that is, facts sufficient to cause a reasonable person to believe that a crime had been committed.

Malicious Prosecution
A malicious prosecution claim asserts that the officer wrongly deprived the victim of the Fourteenth Amendment right to liberty. To win this type of claim, the victim must show four things: 1) the defendant police officer commenced a criminal proceeding; 2) the proceeding ended in the victim’s favor (that is, no conviction); 3) there was no probable cause; and 4) the proceeding was brought with malice toward the victim. As with false arrest, this claim will fail if the officer had probable cause to initiate criminal proceedings.

Excessive Force
Excessive force claims receive the most publicity, perhaps because the results of excessive force seem the most outrageous, involving serious physical injury or death. Whether the officer’s use of force was reasonable depends on the surrounding facts and circumstances. The officer’s intentions or motivations are not controlling. If the amount of force was reasonable, it doesn’t matter that the officer’s intentions were bad. But the reverse is also true: if the officer had good intentions, but used unreasonable force, the excessive force claim will not be dismissed.

Failure to Intervene
Officers have a duty to protect individuals from constitutional violations by fellow officers. Therefore, an officer who witnesses a fellow officer violating an individual’s constitutional rights may be liable to the victim for failing to intervene.

The Qualified Immunity Defense

Defense attorneys representing a police officer for any of these claims will raise a defense of qualified immunity. This defense exists to prevent the fear of legal prosecution from inhibiting a police officer from enforcing the law. The defense will defeat a claim against the officer if the officer’s conduct did not violate a clearly established constitutional or statutory right. In other words, the specific acts the officer prevented the individual from engaging in must be legally protected, otherwise there is no civil rights violation. In order to win a civil rights claim, an individual bringing a police misconduct claim must prove that the actions of the police exceeded reasonable bounds, infringed the victim’s constitutional rights, and produced some injury or damages to the victim.

Police Misconduct: If You’ve Been Affected

Civil rights claims are an important part of our legal system, providing a balance between the duty of law enforcement to uphold the laws, and the rights of individuals to be free from police misconduct. Yet cases against police officers can be difficult. Officers may be immune from suit, even though an individual feels he or she was mistreated. Claims against police departments can also be expensive to bring because a lot of evidence must be secured, including records, statements of police, statements of witnesses, and various other documentation, to prove the misconduct.

The evidence supporting your claim is the most important element in a police misconduct suit. If you feel you’ve been the victim of police misconduct, contact a Civil Rights Attorney promptly so that valuable evidence does not disappear. Take photographs of any injuries or damage caused by the police, and set aside clothing or other objects that was torn or stained with blood from the incident. Try to get the names and addresses or telephone numbers of anyone who may have witnessed the incident. Also, write down exactly what happened as soon as you can, so that you don’t forget important details.