The Bane Act is a California state law that allows you to bring a lawsuit for damages against someone who uses violence, threats, intimidation or coercion to interfere with your civil rights. The Bane Act allows victims to seek compensatory and punitive damages, attorney’s fees, and civil penalties.
The civil rights to which the Act applies include your right to:
- Bear arms,
- Speak, or
- Associate with certain people.
A Bane Act lawsuit can be filed against anyone who interfered with your right through the use of:
- Threats of violence,
- Intimidation, or
A Bane civil action typically demands that the defendant pay:
- Compensation for the interference,
- Punitive damages,
- Attorneys’ fees, and
- A civil penalty of $25,000.
In this article, our California personal injury lawyers explain:
- 1. What are lawsuits under the Bane Act in California?
- 2. What are considered civil rights?
- 3. What do I have to prove in a Bane Act lawsuit?
- 4. What damages are available in a Bane Act lawsuit in California?
- 5. Is the Bane Act only in California?
- 6. Can police officers assert a qualified immunity defense in a Bane Act lawsuit?
- 7. What is the statute of limitations for the Bane Act?
1. What are lawsuits under the Bane Act in California?
Bane Act lawsuits are civil claims filed under the Tom Bane Civil Rights Act.1 You can file a Bane Act lawsuit against someone who interfered with your civil rights. That interference can take the form of such constitutional violations as:
- Threats of violence,
- Actual violence,
- Intimidation, or
Anyone can file a Bane claim, even if they are not part of a protected class. Common plaintiffs in Bane cases are hate crime victims harmed due to their sexual orientation, national origin, or race. It does not matter whether the perpetrators were private citizens or law enforcement using excessive force. And it does not matter whether the plaintiff was the sole victim or part of a group of persons who were harmed.
Because a Bane lawsuit is a civil cause of action, rather than a criminal one, victims can recover monetary damages in the form of compensation.
Bane Act lawsuits can be filed against anyone, including individual people, corporations,2 and even the government.3
2. What are considered civil rights?
Under the Bane Act in the state of California, your civil rights are any legal right you have under the:
- U.S. Constitution,
- California state constitution,
- Laws of the United States (federal law), or
- State law.4
These rights include, for example:
- Your right to be free from police searches or seizures that are unreasonable under the Fourth Amendment to the U.S. Constitution,5
- Your right to vote under the California Voting Rights Act, and
- Your right to file a civil rights complaint in federal court under 42 U.S.C. § 1983.
3. What do I have to prove in a Bane Act lawsuit?
To succeed in a Bane lawsuit under California law, you have to prove either that:
- The defendant made threats of violence against you or your property that made you reasonably believe that they would be carried out if you exercised your civil right, or
- The defendant acted violently against you or your property to prevent you from exercising your rights or to retaliate against you for doing so.
In addition to one of these options, you also have to show that:
- You were harmed, and
- The defendant’s conduct was a substantial factor in causing your harm.6
3.1. Attempted violations are sufficient
It is not necessary to show that the defendant actually kept you from exercising your rights. An attempt to keep you from exercising your rights can lead to liability under the Bane Act.7
3.2. No discriminatory intent necessary
You also do not need to show that the defendant acted with discriminatory intent.8 It is enough for the defendant to try to keep you from exercising your rights. This makes Bane lawsuits different from Ralph Act lawsuits.
3.3. Mere speech cannot lead to liability
However, without more, speech alone cannot lead to liability under the Bane laws.9 The speech has to be a threat of violence that creates a reasonable fear of imminent harm.
4. What damages are available in a Bane Act lawsuit in California?
Bane Act lawsuits can recover monetary damages that compensate you for your actual damages, including:
- Medical bills from any violence or other medical conditions,
- Mental anguish and emotional distress,
- Lost wages during your recovery,
- Lost earning capacity,
- Pain and suffering, and
- Loss of consortium for your family during the ordeal.
The Bane Act requires this compensation to be at least $4,000. It also allows the jury to triple this amount of compensation.10
Successful Bane claims can also recover:
- Attorney’s fees,
- Punitive damages (also called exemplary damages),
- A civil penalty of $25,000, and
- Injunctive relief/equitable relief,
- Restraining orders against the defendant.
5. Is the Bane Act only in California?
Yes, the Bane Act is a California state law. But it protects people whose state or federal rights are interfered with by threats, intimidation, or coercion. And it is common for victims to sue for Bane Act violations along with § 1983 violations in federal court rather than state court.11
6. Can police officers assert a qualified immunity defense in a Bane Act lawsuit?
Probably not. Law enforcement used to be able to raise a qualified immunity defense in Bane Act cases where they violated a person’s constitutional rights while investigating a crime.
The defense worked as a complete bar to liability.
However, recent California law says that police officers can no longer raise this defense in cases brought under the Bane Act. The new law also states that prison guards and their employers cannot use a qualified immunity defense in cases where they injure prisoners or fail to provide them with medical care.12
7. What is the statute of limitations for the Bane Act?
The Bane Act statute does not spell out a specific statute of limitations. So depending on the case, courts apply one of the following time limits to sue:
“For liability arising out of common law neglect or personal injury, a two-year statute of limitations applies, but for statutory actions, a three-year limitation applies.”13
Furthermore, these statutes of limitations can be prolonged by six months pursuant to the Tort Claim Act.14
- California Civil Code Section 52.1. Also see the Ralph Act (a.k.a Ralph Civil Rights Act) and Unruh Civil Rights Act. And plaintiffs can also file criminal complaints implicating the defendants for violating the penal code; then the defendants may face criminal charges as well.
- See Jones v. Kmart Corp., (California Supreme Court, 1998) 17 Cal.4th 329.
- See Gatto v. County of Sonoma, (Cal. 2002) 98 Cal.4th 744.
- California Civil Code § 52.1(c). There is uncertainty if this only includes rights under state statutes or if rights guaranteed by court cases is also included. Venegas v. County of Los Angeles, (Cal. 2004) 32 Cal.4th 820 applied the Bane laws and said that it was only rights under state statutes. But Rojo v. Kliger, (Cal. 1990) 52 Cal.3d 65 applied an identical phrase in the Fair Employment and Housing Act and said that it also included common law.
- Venegas v. County of Los Angeles, Supra.
- California Civil Jury Instructions (“CACI”) 3066; see Shoyoye v. County of Los Angeles, (Cal. App. 4th 947) 203 Cal.App.4th 947; see Zamora v. Sacramento Rendering Co. (E.D. Cal. 2007) No. Civ. S-05-00789 DFL KJM, 2007 WL 137239; see O’Toole v. Superior Court, 140 Cal.App.4th 488, 502 (Cal. App. 4th 2006); see Winarto v. Toshiba America Electronics Components, Inc., (9th Cir. 2001) 274 F.3d 1276.
- See Austin B. v. Escondido Union School District, (California Court of Appeals, 2007) 149 Cal.App.4th 860.
- Venegas v. County of Los Angeles, Supra.
- California Civil Code § 52.1(k).
- California Civil Code § 52.1(c).
- Reese v. Cty. of Sacramento, (9th Cir. 2017) 888 F.3d 1030.
- See Senate Bill 2 (approved by Governor September 30, 2021).
- See K.S. ex rel. P.S. v. Fremont Unified Sch. Dist., (N.D. Cal. 2007) No. C 06-07218, 2007 WL 915399 (citing Gatto v. County of Sonoma, (2002) 98 Cal. App. 4th at 760); Kramer v. Regents of Univ. of Cal.,(N.D. Cal., 1999) 81 F. Supp. 2d 972, 978; Mitchell v. Sung, (N.D. Cal. 1993) 816 F. Supp. 597, 602 (N.D. Cal. 1993).
- Cal. Gov’t Code § 905, et seq.