Iqbal and the Altered Landscape for § 1983 Litigation

For a primer on the case that single-handedly rocked the legal world and altered the Federal Rules of Civil Procedures with the swipe of the pen, take a look at this great article by Adam Liptak.

For federal practitioners around the country, especially those practicing employment and civil rights law, a daily question we face when receiving a call from a potential client is… how do I prove that to withstand Iqbal? The standard created by Iqbal requires a complaint to state “plausible” allegations, unlike the “short and plaint statement” required by FRCP 8. The Court, citing to its predecessor Twombly, stated that claims needed to nudge “across the line from conceivable to plausible.”

For someone like Justice Scalia, the definition of “conceivable” and “plausible” should be relevant to this discussion. According to Merriam-Webster’s dictionary:

• Conceivable, adj. “imaginable or possible”
• Plausible, adj. “superficially fair, reasonable, or valuable but often specious” or “appearing worthy of belief”

All this to say that the many lower courts have interpreted “plausible” to nearly mean “proven.” Especially in civil rights litigation, a plaintiff bringing suit against a police department, city, or county is at an extreme disadvantage of information. The problem then becomes, when the family of a man who has been killed by the police, attempts to bring suit, what facts do they have? They may or may not have been present, and are relying mainly on common sense facts – an unarmed man is dead, he was outnumbered 5 to 1, and no officer was harmed.

In the Fifth Circuit, this would likely not be enough to withstand a motion to dismiss against any defendant aside from the shooting officer. While an average person would think these facts appear worthy of belief – How could the other officers allow this to happen? Aren’t these officers trained? The others didn’t feel the need to shoot. Surely you can’t shoot an unarmed man who poses no threat – the courts have held time and again that facts such as these are not up to snuff. There must be specific facts, that you likely won’t have access to until discovery, that must be pleaded in order to hold the City or a supervisor accountable. Yet therein lies the rub, you can’t get the discovery you need to plead at this higher standard until you’ve beaten your motion to dismiss.

So how has this affected litigation overall? The honest answer is that attorneys are much less inclined to get involved in a case that does not have an obvious bell-ringer. In turn, that means there are several cases that may have merit (i.e. a constitutional violation occurred), but because of the high pleading standard, unequal access to information, and inevitable expense of defending your case from it’s inception, relatively low-value cases are turned away. Litigation decreases and officers/guards get away with violating people’s rights. This is yet another gate-keeper preventing the disadvantaged from seeking justice.