The State of Justice 20 Years After 9/11
Today, despite calls for justice and atonement, we live in a system where justice is no longer delayed, it is denied.
After four years of stewing and with the approach of the twentieth anniversary of 9/11, I finally wrote the below op-ed about two civil procedure cases that changed our civil justice system. In law school, the two cases discussed in the op-ed are often treated as a natural evolution in Supreme Court jurisprudence, not as the glaringly obvious efforts of a Court intentionally scaling back access to justice, particularly for civil rights’ plaintiffs following 9/11. As with many pivotal cases taught in law school, the story of the people involved and the historical-political contexts are rarely, if ever, discussed—an issue I believe is neglectful, at best, dangerous, at worst. You will see why below.
Though this op-ed addresses the civil system, the issues discussed deeply impact the broader criminal legal system. For many people wrongfully arrested or convicted, for those whose rights were violated by law enforcement, and for many other seeking redress for related issues, the civil legal system is the place they go for justice. Post-9/11, that system became significantly more difficult to access.
Some Personal Context
I was 22-years-old when I watched in horror as the planes flew into the World Trade Center towers, the Pentagon, and the grassy knoll in Pennsylvania. Stranded in San Francisco, I felt immense fear as I witnessed armored vehicles roll on to the Golden Gate Bridge in anticipation of other attacks. Five days later, I was on one of the very first flights to take off, a hushed, pregnant silence filled the plane and I shook for the entire six hour flight back to Providence.
Like so many, I was horrified and heartbroken by what I saw that day. That heartbreak has been compounded many times over as I have borne witness to the many injustices that followed, caused by our governments’ and my neighbors’ reaction to 9/11. In the twenty years since, this country has invaded and bombed countries all over the Middle East, North Africa, and Central Asia, operated black sites, large military prisons and Guantanamo Bay, conducted summary executions of American citizens abroad, all in the name of national security, and so much more.1
Not to be forgotten, however, is the profound effect 9/11 has had on the U.S. criminal and civil legal systems. One such legacy is discussed below.
As the twentieth anniversary of 9/11 beckons, the struggle toward a more just and equitable society persists. In response to the police killings of Breonna Taylor, George Floyd and 1,100 others in 20202, Americans again filled the streets proclaiming that Black, Brown and Indigenous lives matter and that justice and accountability are imperatives. The events of 20203 demonstrated with urgency and clarity that the U.S. remains an inequitable nation.
Because of another cataclysmic event in American history—9/11—demands for accountability and justice through the courts are often denied.4 In the 20 years since 9/11, many seeking legal remedies for abuses of government power face a carefully constructed barrier crafted by the U.S. Supreme Court. Between 2006 and 2009, the Court struck two stunning blows to those seeking redress for civil rights violations by attacking an area of law that is typically only discussed by legal nerds—the standard of pleading.5
Legal beagles around the U.S. shiver down their spines when they hear the term “Twiqbal,” a moniker for the two Supreme Court cases that limited access to the civil justice system: Bell Atlantic Corp. v. Twombly6 and Ashcroft v. Iqbal7. Yet in a quick review of the mainstream media from the aughts, these decisions were barely a blip in the 24-hour news cycle. Pleading standards are neither scintillating nor easily understood. Nonetheless, pleading standards are the first hurdle that must be cleared to get justice.
Pleadings are the beginning stages of a civil lawsuit where the parties outline their claims and defenses. Before 2006, a plaintiff needed to submit a “short and plain statement,” outlining the alleged harm for which relief is sought and giving the defendant fair notice. In the 1953 Conley v. Gibson decision, Justice Hugo Black noted “the purpose of pleading is to facilitate a proper decision on the merits.”8 If a person could explain that they had been harmed and facts to support the claim would be discovered during litigation, the complaint should be determined on its merits. The goal was to make justice accessible for all.
After 9/11, everything changed. In 2001, Javaid Iqbal, a Pakistani citizen and Muslim, was held indefinitely with hundreds of Muslim men in harsh conditions, which included “serial strip and cavity searches,” physical abuse and prohibition of prayer.9 Mr. Iqbal did not know the names of the specific law enforcement officers who did these things; instead, he filed suit against high-level government officials, alleging they instituted the policies that violated his constitutional rights. The Supreme Court did not apply the Gibson standard, but heightened the pleading standard, making it a formidable barrier for those seeking justice.
Because of Iqbal, plaintiffs must provide significant factual detail about the who, what, where, when and why and show how they can prove it — previously a level of detail that would only be required once the case was underway and plaintiffs could compel the defendants to turn over the evidence. Plaintiffs must now find evidence to support their claims without the power of the court to compel the defendant to give it over.10 Remember the lawsuit to get the police body cam videos of the Laquan McDonald shooting?11
As Dr. Martin Luther King, Jr. said, “It may be true that the law cannot make a man love me, but it can keep him from lynching me . . .”12 With the 20th anniversary of 9/11 approaching and our nation still reeling from the events of 2020 and the first half of 2021, Iqbal looms large. In the stroke of a pen, the Supreme Court sealed out of the courts thousands of plaintiffs harmed by law enforcement. Without access to the courts, our communities lose one of the most powerful tools of accountability and protection, as imperfect as that tool may be. Today, despite calls for justice and atonement, we live in a system where justice is no longer delayed, it is denied.
Here is a paper I wrote about the U.S. effort to transfer American citizens determined by the U.S. military to be enemy combatants to foreign countries for trial. “Does Doe v Does Doe v. Mattis Open the Door the Door to Citiz o Citizen-Detainee T en-Detainee Transfer?", Roger Williams University Law Review, located at: https://docs.rwu.edu/cgi/viewcontent.cgi?article=1693&context=rwu_LR
“2020 Police Violence Report,” Mapping Police Violence, located at: https://policeviolencereport.org/
“2020: The Year in Events,” History.com, located at: https://www.history.com/topics/21st-century/2020-events
“Human Rights and Civil Liberties,” The Costs of War Project, located at: https://watson.brown.edu/costsofwar/costs/social/rights
556 U.S. 662 (2009), located at: https://www.oyez.org/cases/2008/07-1015. In his opinion, Justice Kennedy wrote:
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).
For more on Javaid Iqbal’s story, see Shirin Sinnar’s “The Lost Story of Iqbal,” in The Georgetown Law Journal, located at: https://www-cdn.law.stanford.edu/wp-content/uploads/2017/02/sinnar-lost-story-of-iqbal.pdf
“What is a Motion to Compel?”, Valiente Mott, located at: https://valientemott.com/blog/motion-to-compel/. See also Monette Davis, “Applying Twombly/Iqbal on Removal,” ABA Journal, located at: https://www.americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2020/applying-twombly-iqbal-on-removal/
Jeremy Borden, “How a little-known, Uber-driving freelancer brought the lawsuit that forced Chicago to release a police shooting video,” Columbia Journalism Review, located at: https://www.cjr.org/united_states_project/brandon_smith_chicago_police_laquan_mcdonald.php. See also, Nausheen Husain, “Laquan McDonald timeline: The shooting, the video, the verdict and the sentencing,” located at: https://www.chicagotribune.com/news/laquan-mcdonald/ct-graphics-laquan-mcdonald-officers-fired-timeline-htmlstory.html
An Address by the Reverend Dr. Martin Luther King, Jr., Cornell College, Mount Vernon, Iowa, October 15, 1962, located at: https://news.cornellcollege.edu/dr-martin-luther-kings-visit-to-cornell-college/