Dana Berliner
Dana Berliner  ·  November 19, 2019

IJ files lawsuits to right government wrongs against not just our clients but others like them. The best way to secure that far-reaching impact is to set strong precedent through court rulings in our favor. And getting those decisions often means finding a way to keep our cases alive and in front of judges in the face of government attempts to make them go away by righting the wrong against our client—but no one else.

We’ve described in past issues of Liberty & Law one way we’ve addressed this challenge: class action lawsuits. We’ve also increasingly come to rely on a new tactic, particularly in our forfeiture litigation. That’s asking the court for “retrospective relief.”

When plaintiffs in a lawsuit ask for “prospective relief,” they are asking the court to order the government to stop its unconstitutional behavior and to act differently in the future. Retrospective relief then, as you might guess, means asking a court to find that the government has acted unconstitutionally in the past and to order some kind of compensation for that previous violation of someone’s rights.

In a forfeiture case, for instance, prospective relief is getting your car back. Retrospective relief is getting back the money you had to pay while the government had your car, even if you already have your vehicle back. Retrospective relief can come in a number of forms, but it is almost always some amount of money. You can ask for one dollar in “nominal damages.” You can ask for interest on the money that the government has held. Or you can ask for reimbursement for expenses like car rentals if the government unjustly seized your car.

IJ’s litigation team expected that asking for both prospective and retrospective relief would return wrongly taken property or compensation to our clients while—crucially—helping ensure that a court would review and decide on the constitutionality of the government’s actions.

What we didn’t expect was to run headlong into a whole new area of injustice in law.

The culprit? Government immunity doctrines. These court-created protections for governments and government agents shield them from a crucial form of accountability by dictating that they—unlike private organizations and individuals—do not have to pay damages, even when they have egregiously violated someone’s rights. And since they don’t have to pay damages, courts can escape even deciding whether anyone’s rights were violated.

IJ’s forfeiture cases, for example, are often directed toward prosecutors, who have a strong financial incentive to pursue forfeiture. IJ argues that allowing prosecutors to profit from forfeiture violates due process. Unfortunately, prosecutors enjoy “prosecutorial immunity,” which means they are completely immune from any suit for damages.

Police and other government agents, too, have a lot of protection from suit—a doctrine called “qualified immunity,” which has become an almost insurmountable obstacle to liability for misconduct. When suing federal agents, there is yet a different doctrine, and one can bring Bivens suits (named after the seminal case) only in very limited contexts.

In the real world, this complex system of government immunity means that it is virtually impossible to hold the government accountable in a crucial way. Prosecutorial immunity, qualified immunity, and the Bivens doctrine all mean that even if your rights are indisputably violated, there may be no way to get that determination from a court.

As IJ learned more about all these legal impediments, we became more and more interested in challenging them directly. We have begun asking for small amounts of money for our clients in forfeiture and impoundment cases and then fighting back when the government tries to claim immunity. We also now file friend-of-the-court briefs advocating for holding the government and individual government agents accountable when they violate someone’s rights. And in the coming years, you can expect other legal challenges as we explore this injustice and strategically challenge it.

Dana Berliner is IJ’s senior vice president and litigation director.

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