ACLU Blogburst

Image: Chronwatch.com

Intimidation and extortion

ACLU-watchers say the group’s tactic of sueing individuals along with the government bodies can have the effect of intimidating defendants into settling rather than risk suffering potential personal financial loss, regardless of the strength or weakness of any ACLU lawsuit.

“It’s a perfectly human reaction,” says Jordan Lorence, senior counsel for the Alliance Defense Fund in Scottsdale, Arizona. “They can be afraid of losing their homes, their kids’ college education or other assets.”

The Civil Rights Attorneys’ Fees Act requires that states and local jurisdictions pay the legal fees of even partially successful plaintiffs who sue them. The ACLU can also use that same statute to target government employees in their individual capacities, leaving them, as well as their employer, liable for huge attorney bills.

When individual employees are also named in the suit such as council members or board members, then defendants are suddenly wearing “two hats”. That is, they are being threatened with the potential of financial disaster while, at the same time, -as representative of government, they can make a decision to settle with the ACLU.

Sometimes just the threat of a local government entity having to cover legal fees and costs can be worrisome enough. Small wonder many local government officials are choosing to settle quickly rather than fight:

• The Redlands California City Council, under advice of Counsel, ordered the removal of a cross from the city’s seal rather than engage in a costly, time-consuming and “almost certainly unsuccessful” legal battle with the ACLU. Redlands Mayor Susan Peppler sympathized with community members who protested the move, but told them fighting the ACLU in court “would be like taking taxpayer money and flushing it down the drain.”
• The ACLU then warned the Board of Supervisors of Los Angeles that they also needed to remove a tiny cross ferom their seal or face a lawsuit. Although members acquiesced, no government official could estimate the cost of replacing the seal, which appears on stationary, badges, trucks and in many other locations.
• After the ACLU challenged the Boy Scouts’ discounted use of San Diego’s Balboa Park, and a judge found it a violation of “separation of church and state”, the city caved and settled with the ACLU for close to a whopping $1 million dollars.
• In Alabama, as a result of the Ten Commandments suit, involving Judge Moore, taxpayers there were ordered to pay the ACLU “at least half a million dollars.”
• A decision of the Ninth Circuit Court of Appeals upheld the ACLU’s claim that the solitary cross at what is now officially the Mojave Desert Veterans Memorial violates the First Amendment and must be taken down.
• In the Moeller v. Bradford County case, it states that Bradford County Pennsylvania and a self-proclaimed ‘prison ministry’ are violating the Constitution by using government funding to advocate religion. The county and the ministry operate a vocational training program for inmates in which a significant proportion of inmates’ time is spent on compulsory religious discussions, religious lectures and prayer, rather than on learning job skills. The complaint also alleges that program administrators discriminate in hiring workers based on their religious beliefs and affiliation.

Even if a lawsuit hasn’t been filed, sometimes just threatening a lawsuit is enough to get members of government moving. Because of highly publicized suits–including those that name government employees in their individual capacities-individuals can feel intimidated when the ACLU comes knocking. Lorence believese the pressure brought to bear on individuals is so great that they sometimes decline to fight lawsuits they could have won.

“It’s a very odious tactic to use, it’s intimidation,” Lorence said, “a misuse of the law, namely the spirit of the law, not the letter of the law.”

Lorence’s organization, the Alliance Defense Fund, also recoups fees under the same federal statute, but the ADF does not sue government employees in their individual capacities.

The statute, Lorence argues, was originally intended for cases like this: If a police officer brutalized an African-American and the city argued it didn’t condone such police behavior, the plaintiff would be left with no recourse if it weren’t for the ability to go after the police officer himself for absuing his authority as a government agent.

“For a lawyer to sue individuals under this statute and have integrity, the individual would have had to have misused their authority,” Lorence said. “Otherwise, it’s coercing people who could probablky win, but cave in because of threats to their personal assets. It’s unconscionable.”

He added, “It gives some explanation of the great leverage the ACU wields. Congress never intended an extortion-type misuse of this statute. It really puts the sequeeze on people to settle.”

Lorence also notes that when groups settle out of court, this benefits the ACLu because judges tend to be skeptical of the ACLU’s billing. Preferring to settle out of court, the ACLU routinely warns defendants to comply before they are sued.

But whether the group settles or the case goes to trial, the ACLU brings in millions of dollars in attorney fees and court costs.

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