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Filing a § 1983 civil rights action does not require exhausting state law remedies

Aug 25, 2011 Filing a § 1983 civil rights action does not require exhausting state law remedies

While criminal defense comprises the bulk of my law practice, I also do First Amendment defense, with the view that government misconduct is better remedied by not only sticking to criminal defense.

Before I started doing criminal defense twenty years ago, I already had gotten some great civil litigation experience at the first law firm where I worked, and got more civil litigation and civil trial experience at the last law firm where I worked before becoming my own boss thirteen years ago. Suffice it to say, plenty of procedural landmines and hurdles await those who sue the government over civil liberties violations. One of them is the Younger abstention doctrine, which generally closes the doors of the federal courthouse while state-level enforcement action is pending, thus leaving the private litigant to file suit in state court. Younger v. Harris, 401 U.S. 37 (1971), thus being deprived of having more than one choice of a potentially favorable court forum.  

Offsetting Younger, at least, litigants need not exhaust state law remedies before filing for civil rights relief under 42 U.S.C.  § 1983. Felder v. Casey, 487 U.S. 131 (1988). Thanks to a listserv member for referencing Felder.

Interestingly, Felder not only is penned by the late Justice William Brennan — my favorite justice — but Justice Brennan managed to get six justices to join him, including Justice Scalia, who more often falls in the Court’s conservative camp.

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