Tag Archives: civil rights

An inspiring evening with the ACLU of Colorado

We went to the ACLU of Colorado’s annual dinner on Friday.  This is always a very energizing experience — to be surrounded by friends and allies who are working hard (and/or donating boatloads of money) to protect civil rights and civil liberties.   It was especially inspiring this year for a number of reasons.  Our friend Laura Rovner was honored with an award for her amazing work on behalf of inmates in solitary confinement and other extreme conditions.  We all cheered our behinds off for a trio of recent court victories in police abuse cases.  And I enjoyed hanging with the next generation of civil rights advocates.

Laura’s friend and colleague Jeanne Theoharis introduced her, and spoke about the long struggle for civil rights and civil liberties.  Laura “walks in the shoes of Rosa Parks,” not because she is herself a Black woman standing up (sitting down) to racism, but because Rosa Parks was more than just a single moment in 1955.  She was an experienced civil rights worker, who had been advocating throughout the 1930s and 1940s as well, laboring for decades without much success.  Jeanne made me imagine a far more just future, in which Laura’s work will be remembered for the ground-breaking qualities it truly has.

Image: distance shot of white woman with black hair standing behind a podium addressing an audience.  The backs of several people's heads are visible in the foreground.

As an aside, I got into an interesting discussion after about the pros and cons of comparing a white lawyer to an African-American activist.  My thoughts, which probably need their own post at some point, are summed up much more eloquently by this graphic by Dan Wilkins:

Image: A circle the interior of which has been divided into 4 quarters.  Top left has the image of the sun rising over a mountain top with the words "I have a dream."  Top right has the symbol for "women"; bottom left has the rainbow stripes; bottom right has the international symbol of accessibility - white wheelchair against blue background.  Around the circumference of the circle are the words "Same Struggle. Different  Difference."

As the graphic says at the bottom, “There is power in knowing my struggle is your struggle and yours mine.”  If we are too quick to cordon off one set of struggles as the unique property of their protagonists, we miss the opportunity to perceive and fight the common enemies of fear, ignorance, and hatred of the unknown.

OK, where was I?  Oh right – the trio of amazing police abuse cases.  Our friends at Rathod Mohamedbhai achieved a $3.25 million settlement on behalf of Jamal Hunter against the Denver Sheriff Department, and our friends at Killmer, Lane & Newman, won back to back verdicts, first (with co-counsel Kate Stimson) $1.8 million against the Denver Police for a warrantless raid on the wrong house, resulting in wrongful prosecution, then $4.65 million against the Sheriff Department for the jail abuse death of homeless pastor Marvin Booker.  The first article stated that Denver had paid $16.7 million in damages since 2004 before these three cases; if my math is correct, the total now stands at $26.4.  And that’s just in damages — it doesn’t count the vast City resources (my tax dollars!) that go toward defending the indefensible.  It’s frustrating, after all those years and dollars, that the Denver Department of Safety can’t prevent these abuses.  It was satisfying to be able to congratulate breaking-news civil rights heroes Rathod Mohamedbhai and Killmer, Lane & Newman on Friday.

Now for the fun part (with apologies for incompetent phone photography).  I was so glad Laura brought her amazing daughter Claire

Image: white girl with blond hair and white woman with dark hair - with her arm around the white girl - facing the camera smiling.

and that we got to sit with Brittany Glidden and The Littlest Civil Rights Advocate, Ellie:

Image: white woman sitting at a dinner table holding a white toddler, both smiling for the camera.

And after the main event, dancing happened:

Image: slightly blurry photo of white woman in pink coat dancing with blond girl (from photo 2 above) in a black dress.


Who Would Jesus Fear?

The residents of Indian Village are fighting mad about the potential location of a group home for mentally ill youth in southwest Louisiana’s Allen parish.

“We don’t have a problem helping people,” said 57-year-old resident Beth Courville. “We are a Christian community, a hard-working community.”

“Our fear is fear itself. We don’t know what’s going to be in our backyard,” said Courville. “We would like to stop this nightmare from happening to another community.”

You keep using that word. I do not think it means what you think it means.

There Never Was a Golden Age

I keep meaning to write a long, interconnected, analytical post about how annoyed I get with the concept that Times Are Bad Now, Not Like the Olden Days.  My theory is that the Olden Days were good and bad in many and varying ways, just as our present times are good and bad in many and varying ways, and all of this for the simple reason that we’re talking about the history of human beings, a notoriously brilliant, stupid, open-minded, prejudiced, generous, stubborn, violent, peaceful, and above all self-centered species.

But another signal trait of our species is procrastination — think any other species would have survived, evolutionarily speaking, if they procrastinated like we do?  “I’ll worry about gathering acorns later.”  etc. — so of course I have never gotten around to writing that definitive, all-encompassing psycho-history-of-the-human-race post.  So I thought I’d start a new category — #thereneverwasagoldenage — and just add examples as I find them.

Today’s example:  there never was a golden age of lawyerly civility.  Every time some lawyer does something buttheaded these days, you hear the unison tsking of mainstream tongues about how it didn’t used to be like that, when we could settle a case over a G&T at the club instead of having to fight about depositions and interrogatories and (big, privileged, sigh) metadata.  Herewith, an example of legal argumentation in the good ol’ days of mid-1960s Mississippi.  First, the background of the case:

[P]etitioners and other Negro and white Episcopal clergymen undertook a ‘prayer pilgrimage’ in 1961 from New Orleans to Detroit. The purpose of the pilgrimage was to visit church institutions and other places in the North and South to promote racial equality and integration, and, finally, to report to a church convention in Detroit. Letters from the leader of the group to its members indicate that the clergymen intended from the beginning to go to Jackson and attempt to use segregated facilities at the bus terminal there, and that they fully expected to be arrested for doing so. The group made plans based on the assumption that they would be arrested if they attempted peacefully to exercise their right as interstate travelers to use the waiting rooms and other facilities at the bus terminal, and the letters discussed arrangements for bail and other matters relevant to arrests.

Pierson v. Ray, 386 U.S. 547, 552 (1967).  The point of the case is that the clergymen had standing to challenge segregation despite the fact that they did so knowing they were going to be arrested.  But here is an example of just how civil it was in court in the olden days:

the Court of Appeals reversed and remanded for a new trial on the . . . claim against the police officers because defense counsel had been allowed to cross-examine the ministers on various irrelevant and prejudicial matters, particularly including an alleged convergence of their views on racial justice with those of the Communist Party.

Id. at 551.  Something (one small example among many) to think about next time some old fart lawyer (in whose ranks I now count myself) tries to explain how much better it used to be.

Prior litigation: admissible; evidence of life with a disability: inadmissible.

[Cross posted at FoxRobBlog, which is involved in some sort of DNS attack.  Whatever that is.]

In Yates v. Sweet Potato Enterprises, Inc., 2013 WL 3662645 (N.D. Cal. July 12, 2013), the plaintiff — a guy who uses a wheelchair — alleges that he encountered barriers at a Popeyes restaurant.  In the order, the judge addresses questions from both the plaintiff and the defendant about what evidence can be used at trial.  In so doing, she does two things that are stunning individually, but that — taken together — turn the plaintiff into the defendant, defending his right to equal access to the businesses that non-disabled people patronize everyday without a second thought.

First, the court grants the defendant’s motion to exclude “sympathy-inducing evidence regarding Plaintiff’s disability” that is not directly relevant to his experience at Popeyes, including “testimony regarding his day-to-day hardships.” The court just doesn’t see how that’s relevant.

Second, the court denies the plaintiff’s motion to exclude evidence that he has filed a large number of other access lawsuits.


If people who use wheelchairs filed a lawsuit challenging every illegal barrier they encountered each day, most would file — I’m guessing — five to ten lawsuits each day.  Instead, most people go about their days, swearing at the illegal and thoughtless barriers, but without the time or resources to file those tens and eventually hundreds of lawsuits.  A brave and energetic few take the time to bring the lawsuits that remain necessary — twenty years after the effective date of the ADA’s architectural provisions and thirty years after California’s — to achieve a modicum of compliance.  For their trouble, these people are dubbed — in the press and in court — “serial litigators.”

The Ninth Circuit — the court with appellate authority over the Yates court — has recognized the role of these brave and energetic people in enforcing the law:

Courts must tread carefully before construing a Disability Act plaintiff’s history of litigation against him. As we have noted more than once, “[f]or the [Disabilities Act] to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the [Disabilities Act].” We must therefore be “particularly cautious” regarding “credibility determinations that rely on a plaintiff’s past [Disabilities Act] litigation.”

Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010) (internal cites omitted; emphasis — though not nearly enough — added).   One of the cites I pulled out to make that quote more readable was Sam Bagenstos’s excellent article The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L.Rev. 1 (2006).

So despite the fact that the Ninth Circuit has instructed courts to be particularly cautious about credibility determinations relying on past litigation, the Yates judge — without citing Antoninetti — holds that

Plaintiff’s  filing  of  well  over  a  hundred  disability  lawsuits  in  which  he  alleges  identical injuries bears directly upon his credibility.  . . . Plaintiff’s  alleged  scheme  to  generate  income  through  the  serial  filing  of  lawsuits  in  an  effort  to  extract  settlements  from businesses, may, in fact, be probative of his credibility.

More than simply disregarding controlling precedent, this decision has the very immediate and apparently intended effect of converting Mr. Yates from a real, live person who navigates his day to day world  in a wheelchair to a greedy serial litigant, judged on the fact that he has filed other complaints, the legitimacy of which he will likely not be able to prove before the jury.  (This question is not addressed in the decision, but my strong guess is that the defendant will be allowed to show the fact of hundreds of lawsuits, while the plaintiff will not be permitted to show that, in each one, the facility in question was indeed out of compliance.  That would, in essence, require hundreds of mini-trials within this single trial.)

On another level — about which I’ll write more later, as I have to get back to the other outrages on my desk — this is part of the broader scheme on the part of the business world to spin the fact that — 20-30 years after the federal and state standards took effect — there is still massive noncompliance.  When you’re really really wrong, accuse the other guy of “serial litigation” to correct your many many failures.

El Diablo closed. Donate to CCDC. QED.

This may be the strangest charitable donation request you’ve ever gotten.  I’m asking you to donate to the Colorado Cross-Disability Coalition because the El Diablo restaurant closed.*



CCDC’s legal team of Kevin Williams and Andrew Montoya represented CCDC and several Mexican food enthusiasts who use wheelchairs in challenging the fact that the owners of El Diablo took an accessible space — in, btw, a beautiful old building in a booming neighborhood — and turned it into a largely inaccessible restaurant by adding raised areas that were not originally there.

Two years, summary judgment for plaintiffs, and a couple hundred thousand in legal fees later — just at the point where the judge was about to order El Diablo to restore accessibility — the city shut it down for (unrelated) code violations.  It reopened, reshut, reopened, reshut, declared bankruptcy, reopened, and — after the latest violation notice from the city — closed for good.

Bottom line:  CCDC spent a lot of attorney time on this case, won the case on summary judgment, and will not see a dime in attorneys’ fees.  Please join us in contributing to CCDC.**

If you’ve heard enough, just click on through to the donation page and send them some cash.  If you want to know more about this case, here are some links:

  • More snarky commentary about the defense counsel’s accusation that alleging discrimination when an accessible space is rendered inaccessible constitutes defamation.

This part of the ADA — requiring businesses to be accessible — has no damages remedy.  The only way lawyers can bring these cases is because the ADA makes defendants pay the plaintiffs’ attorneys’ fees when they lose.  But lawyers like the great team at CCDC always work under the threat that they’ll spend years on a case — and achieve excellent legal results — only to have it disappear.  That happened here.

Please support CCDC’s excellent legal work.  Thanks!


* This photo is actually from January, but it’s more dramatic than anything I could find for the Final Shut Down.

** If you’re not comfortable with the online donation site — which seems highly unlikely if you’re reading a cutting edge blog like this one! — you can send a check to CCDC at 655 Broadway, Suite 775, Denver, Colorado 80203.