Judge rules public officials can not use debt adjustment plan as legal shield for civil rights violations

U.S. District Judge Laura Taylor Swain

By THE STAR STAFF

After years of unjustly putting court cases on hold in Puerto Rico, U.S. District Judge Laura Taylor Swain has clarified that the protections provided by the commonwealth’s Debt Adjustment Plan under the Puerto Rico Oversight, Management and Economic Stability Act (PROMESA), cannot be used as a legal shield for current and former public officials facing personal lawsuits for civil rights violations.

Judge Swain’s comprehensive opinion and order respond to a protracted litigation initiated by the American Civil Liberties Union of Puerto Rico (ACLU of PR). The ACLU argued for the necessity of holding those accused of abuses individually accountable, regardless of the ongoing fiscal restructuring process of the Puerto Rican government. The ruling allows individuals to pursue their claims for damages, a move that the Financial Oversight and Management Board and the commonwealth government sought to obstruct.

“We wholeheartedly welcome Judge Swain’s order, which paves the way to justice for all whose rights have been violated by current or former officials who, under the guise of the public debt restructuring process, have largely acted with impunity in our community,” stated Fermín Arraiza Navas, legal director of the ACLU of PR.

The ACLU of PR’s case is linked to a lawsuit filed by Jonathan Hernández Zorrilla and Yadira Carrasquillo González, who alleged violations of their rights to freedom of expression and protection against unreasonable searches. They also cited excessive use of force by the Puerto Rico Police, alongside violations of due process and equal protection under the law, stemming from incidents that occurred during a demonstration in San Juan on May 1, 2018. In that case, former Gov. Ricardo Rosselló Nevares and former Public Safety Secretary Héctor Pesquera are named as defendants.

“This ruling establishes an important precedent regarding the limits of the PROMESA Act in exempting public officials from the consequences of their actions,” emphasized ACLU of PR Executive Director Annette Martínez Orabona. “It underscores that the fiscal crisis of the Puerto Rican government cannot be employed as an excuse to undermine individual accountability for civil rights violations.”

The litigation was paused in September 2023 due to the Title III Adjustment Plan. That same month, the ACLU of Puerto Rico sent a letter to the oversight board requesting the lifting of the automatic stay. They argued that such a stay should not apply to civil rights lawsuits against officials in their personal capacities.

Following the board’s silence on the matter, on Feb. 15, 2024, the legal director of the ACLU of PR and attorney Steven Lausell Recurt -- who represents the plaintiffs -- filed a Request for Stay Relief in the Title III case. The attorneys contended that PROMESA should not be interpreted as a “free pass” for government officials who are sued for violations of fundamental rights in their personal capacities.

The civil rights organization warned that a misinterpretation of the law could deny litigants fair access to judicial redress and send a troubling message to police officers regarding their duty to respect civil liberties and the fundamental rights of citizens. The attorneys stressed that the financial crisis that PROMESA aimed to address should not impose additional burdens on individuals seeking judicial relief in federal court.

On March 14, 2024, the government of Puerto Rico filed an objection to the plaintiffs’ request for de-paralysis. Represented by the oversight board, the commonwealth allowed the plaintiffs to pursue non-monetary claims but strongly opposed reactivating monetary claims (damages) against the officials, even in their personal capacities.

After another round of argument and counterargument, Swain affirmed in her order dated Sept. 30 that claims for damages against officials in their personal capacities are not barred by the commonwealth’s Plan of Adjustment. She dismissed the government’s main objection, emphasizing that the presence of a promise of indemnification does not change the nature of the liability.