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Civil Rights – Constitutional – Right to Counsel – Municipal Courts

Where plaintiffs allege that defendants’ municipal courts incarcerated the unrepresented indigent plaintiffs, plaintiffs have stated claims under 42 U.S.C. § 1983 for violation of the Sixth Amendment and the Equal Protection Clause.

The court denies defendants’ motion to dismiss.

Municipal Duty

Reed v. Town of Lexington, 902 F.2d 1566 (4th Cir. 1990) (unpublished), which held that South Carolina municipalities have no legal duty to provide legal counsel for indigent defendants in municipal courts, is inapplicable to this case. In Reed, the Fourth Circuit reasoned that the town had no control over the Lexington municipal judge because “the municipal courts in South Carolina are, by statute, a part of the state’s unified judicial system” and “[u]nder South Carolina law, administration of the unified judicial system is the responsibility of the judicial branch . . . and is not a matter of local concern.” However, state law enacted after Reed makes counsel for indigent defendants “a matter of local concern” by requiring municipalities to provide funding for such counsel in their municipal courts.

Federal Action

In Proviso 61.12, the state legislature required municipalities that elect to have a municipal court to provide adequate funds for representation of indigent defendants. Defendants argue that a municipal failure to comply with a state law is not actionable under § 1983.

However, a deliberate decision to create criminal courts that operate without providing counsel to indigent defendants is a violation of the Sixth Amendment, which certainly is actionable under § 1983.


Defendants argue that the failure to fund defense counsel did not proximately cause the violation of plaintiffs’ rights because defendants have no control over the municipal judge. They argue the municipal judge should have ordered some member of the bar to represent indigent defendants. According to defendants, that lawyer could then sue the municipalities for fees pursuant to Proviso 61.12.

An alternative would be for the municipal judge simply not to sentence unrepresented persons to a term of imprisonment. Either way, there would be no constitutional violation.

Those arguments imply the municipal judge’s decision to violate the Constitution is a superseding cause of the alleged violation, relieving the municipalities of liability. Superseding causation is usually a rule allowing a defendant to avoid liability where damages have been caused by a third party or a force that was entirely unforeseeable, so much so that it could hardly be said that the injury was the result of the defendant’s negligence.

Here, it was foreseeable that defendants’ failure to provide for indigent defense in courts of their own creation, as required by state law, would result in a violation of the Sixth Amendment. Defendants were on notice that their courts had been sentencing unrepresented persons to incarceration for years and in large numbers. They were also on notice that they had a duty to provide counsel.

Indeed, in 2013 – years before plaintiffs were denied counsel – the ACLU brought the issue to defendants’ attention. A counterfactual hypothesis that the municipal judges appointed by defendants might have intervened to prevent an ongoing constitutional violation known to defendants does not make the violation unforeseeable.

It is true that some actual harm must be shown to establish liability for compensatory damages, but the alleged deprivation of counsel suffices to support a claim for nominal damages.

Heck v. Humphrey

Heck v. Humphrey, 512 U.S. 477 (1994), does not bar this case because plaintiffs have plausibly pleaded that habeas relief was unavailable due to the short periods of imprisonment involved.


Plaintiffs’ claims under § 1983 are not an attempt to “sidetrack” the direct appeal process for state convictions for shoplifting, assault, or motor vehicle violations; rather, they are claims independent of the underlying state criminal judgments. The complaint does not ask this court to review state-court findings of fact or conclusions of law supporting plaintiffs’ criminal convictions. Instead, plaintiffs seek to force two South Carolina municipalities to comply with the Constitution’s requirement to provide counsel for indigent defendants appearing in criminal courts created and managed by those municipalities, and to remedy the municipalities’ past failure to meet that basic constitutional requirement.

Motion denied.

Bairefoot v. City of Beaufort (Lawyers Weekly No. 002-105-18, 16 pp.) (Richard Mark Gergel, J.) 9:17-cv-02759; Benjamin Rush Smith III, Ezekiel Reifler Edwards, Stuart Murray Andrews Jr., Susan King Dunn and Twyla Carter for plaintiffs; Kenneth Paul Woodington and William Henry Davidson II for defendants. D.S.C.


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