42 U.S.C. § 1983

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Background

In the United States, 42 U.S.C. § 1983 provides a mechanism by which defendants who have had their constitutional rights violated may seek a remedy against individual state actors. The doctrine has evolved over the last hundred years and is a very complex area of civil rights litigation.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

State Sovereign Immunity

At common law states were immune from any suit for damages. In Chisholm v. Georgia [1], the U.S. Supreme Court broke with tradition by permitting lawsuit by an out of state resident against a state. Outraged by this usurpation of the common law tradition of sovereign immunity, Congress quickly passed the 11th Amendment:

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

On its face the amendment appears to prohibit suits from out-of-state residents against foreign states. However, in Hans v. Louisiana [2], the amendment was interpreted to prohibit lawsuits against states by both their own citizens and citizens of other states.

A threshold question for the application of 42 U.S.C. § 1983 is whether the defendant can sue the state at all, as the 11th Amendment appears to provide sovereign immunity to states. Despite this amendment, the Supreme Court has identified several other ways in which a citizen can receive relief against "the states":

1. Injunctive Relief Suits

In Ex Parte Young [3] the United States Supreme Court concluded that the 11th Amendment did not bar suits against state officers in federal court for injunctive relief. The state argued that the suit was probibited under the 11th Amendment because they were the real party in interest. The court concluded that the state was not the real party in interest because when he acted unconstitutionally, his authority under the state was stripped.

2. State Officer Suits

Under 42 U.S.C. § 1983, the Supreme Court has allowed individuals to sue state actors for violations of their constitutional rights.

3. Waiver Also, in Lapides v. Board of Regents of Univ. System of Georgia <reg>Lapides v. Board of Regents of Univ. System of Ga., 535 U.S. 613 (2002)</ref>, the Supreme Court concluded that the state could voluntarily waive sovereign immunity by utilizing a federal removal procedure.

4. Abbrogation Using its powers under Article 5 of the 14th Amendment, Congress may abbrogate a state's sovereign immunity.[4]Congress may not abrogate sovereign immunity by the commerce clause or any other Article I power.[5]. Since Fitzpatrick was decided the Supreme Court has emphasized that abbrogation requires:

  1. A validly enacted statute pursuant to Article 5 of the 14th Amendment and
  2. Clear statement from Congress of their intent to abrogate sovereign immunity

In order for a statute to be validly enacted under Article 5 of the 14th Amendment it must be "proportionate and congruent" to preventing and remedying Constitutional violations as defined by the court.[6] In different cases, the Supreme Court has determined that Congress has exceeded their Section 5 powers when:

  1. There is insufficient legislative record to demonstate a patern of state violation of Constitutional provisions that they want to remedy[7]
  2. Congress has attemped to provide more protection thatn the Constitution would allow.[8]

Suits Against Federal Officers

Although 42 U.S.C. § 1983 does not explicitly permit suits against Federal officers for violations of Constitutional Rights, the Supreme Court recognized that a federal remedy exists which is parallel to 42 U.S.C. § 1983. [9] An alternative remedial provision enacted by Congress may foreclose a Bivens action. [10]. Finally, a Bivens" action may only be brought against individual officers, not against agencies.[11]

Color of Law

In Monroe v. Pape [12] the Supreme Court held for the first time that the 11th Amendment did not bar a suit by a plaintiff against police officers who violated the plaintiff's Fourth Amendment rights. The court held that if you are acting in your official capacity, and you violate the Constitution of the United states, you are acting under color of law, even if you are violating state laws. Many critics have concluded that the "color of law" requirement under 42 U.S.C. § 1983 is virtually identical to the "state action" requirement.

Immunity

Absolute Immunity

  • Legislative Immunity - Legislators have immunity from suits alleging Constitutional violations as long as the activities are "legislative" in nature. [13] For instance, if a Congressman terminates an employee in violation of equal protection, this is not shielded by Absolute Immunity since the act is not "legislative" in nature [14]
  • Prosecutorial Immunity - Prosecutors are immune from suits for money damages under 42 U.S.C. § 1983 but they may be required to answer suits for injunctive relief.
  • Judicial Immunity
  • Witness Immunity - Individuals who provide witness at trial, even police officers, have absolute immunity from suits pursuant to 42 U.S.C. § 1983.[15]
  • Federal Officers - Since Federal Officers are not acting under "color of state law" they have absolute immunity from suits brought under 42 U.S.C. § 1983. However, they may be liable for the same actions under Bivens.[16]

Qualified Immunity

Qualified Immunity is extended to all other individuals who might be liable under 42 U.S.C. § 1983 but who do not otherwise quality for absolute immunity.

The Supreme Court outlined a new standard for qualified immunity in Harlow v. Fitzgerald [17]:

"We generally hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Municipal Liability

In Monroe v. Pape [18] the United States Supreme Court concluded that municipalities were not "persons" under 42 U.S.C. § 1983 and therefore could not be sued for damages. This decision was reversed 17 years later in Monell v. City of New York Department of Social Services [19] In Monell the court concluded that local governing bodies could be sued directly under 42 U.S.C. § 1983 for monetary, declaratory, or injunctive relief where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by the body's officers. The Monell decision states specifically that municipalities cannot be held liable solely because they are employees are tortfeasors.

Municipalities are strictly liable for their Constitutional torts and are not eligible for qualified immunity. [20] If a municipality cannot be strictly liable under respondeat superior, in what cases can an act of government agency be attributed to the agency itself? Several cases provide illumination:

  • Single Decision Policy - Municipality should be held under 1983 when and only when a deliberate choice is made through various alternatives by an official or officials responsible for establishing final policy with respect to the subject matter in question:
"[W]e hasten to emphasize that not every decision by municipal officers automatically subjects the municipality to 1983 liability. Municipal liability attaches only where the decision maker possesses final authority to establish municipal policy with respect to the action ordered. We hold that municipal liability under 1983 attaches where - and only where - a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.[21]
  • Failure to Train - A municipality may be liable for a tort committed by an employee if the city could have prevented the injury through training.
"The inadequacy of police training may serve as the basis for 1983 liability only where the failure to train in a relevant respect amounts to deliberate indifference to the constitutional rights of persons with whom the police come into contact... Only where a failure to train reflects a "deliberate" or "conscious" choice by the municipality can the failure be properly thought of as an actionable city 'policy.'
Moreover, the identified deficiency in the training program must be closely related to the ultimate injury. Thus, respondent must still prove that the deficiency in training actually caused the police officers' indifference to her medical needs. To adopt lesser standards of fault and causation would open municipalities to unprecedented liability under 1983; would result in de facto respondeat superior liability...; would engage federal courts in an endless exercise of second-guessing municipal employee-training programs, a task that they are ill suited to undertake; and would implicate serious questions of federalism."[22]
  • Negligent Hiring - Where adequate scrutiny of an applicant’s background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party’s federally protected right, an official’s failure to adequately scrutinize the applicant’s background may constitute “deliberate indifference”. [23]

Rights Enforceable under 42 U.S.C. § 1983

Section 1983 is not a source of rights. At least three categories of rights are protected:

  1. Some Bill of Rights are made applicable to the states by incorporation or “fundamental rights”.
  2. Substantive component of due process that bars government action “regardless of the fairness of the procedure used to implement them” (Example: right to privacy, reproductive freedom, contraception, sexuality).
  3. Due process provides guarantee of “fair procedures” whenever a state deprives individuals of life, liberty or property. (So called “procedural due process”)
    1. Is there a cognizable life, liberty or property interest.
    2. Is the loss of that right fairly attributable to the state?
    3. If the state did deprive, was that done without due process of law?

Remedies

Under Section 1983 damages can take the form of nominal damages, compensatory damages and punitive damages.

  • Compensatory Damages may include lost earnings, loss of earning capacity, out of pocket expenses, pain/suffering, mental anguish and emotional distress suffered. There is no inherent “value” in constitutional rights. Damage awards for 1983 actions , separate and aside from normal tort standards, may not be based on the abstract “value” or “importance of constitutional rights" [24] There may, however, be inferred damages, which arise in situations where the circumstances themselves surrounding the violation imply actual damages.
  • Punitive Damages may be assessed when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected right. Punitive damages may be found even when the underlying threshold for liability is recklessness.[25]. Municipalities are immune from punitive damages. [26]
  • Injunctive Relief may be awarded.
  • Nominal Damages may be awarded by the jury if they determine that the plaintiff's Constitutional rights were violated but they do not believe that they suffered substantive damages.

Entitlement to Fees

An attorney who prevails in a section 1983 case may be entitled to recover attorneys' fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988:

(a) Applicability of statutory and common law - The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.
(b) Attorney’s fees - In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.
(c) Expert fees - In awarding an attorney’s fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.

Only prevailing parties are able to collect attorneys' fees under this provision. The Supreme Court has concluded that a prevailing party must either receive a judgement, or a judicially approved settlement agreement. Plaintiffs who succeed in achieving victory through other means, such as legislative change, are not prevailing parties under this statute. [27]

Fees are generally calculated by multiplying the reasonable number of hours worked by the reasonable rate for the attorney. This calculation, called the Loadstar Method will be upheld regardless of whether the attorney fees are in proportion to the damages suffered by the defendant.[28]


See Civil Action

Notes

  1. Chisholm v. Georgia, 2 U.S. 419 (1793)
  2. Hans v. Louisiana, 134 U.S. 1 (1890)
  3. Ex parte Young, 209 U.S. 123 (1908)
  4. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
  5. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)
  6. City of Boerne v. Flores, 521 U.S. 507 (1997)
  7. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999
  8. Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)
  9. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
  10. Bush v. Lucas, 462 U.S. 367 (1983)
  11. Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001)
  12. Monroe v. Pape, 365 U.S. 167 (1961)
  13. Bogan v. Scott-Harris (1998)
  14. Davis v. Passman, 442 U.S. 228 (1979)
  15. Briscoe v. LaHue, 460 U.S. 325 (1983)
  16. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
  17. Harlow v. Fitzgerald, 457 U.S. 800 (1982)
  18. Monroe v. Pape, 365 U.S. 167 (1961)
  19. Monell v. City of New York Department of Social Services, 436 U.S. 658 (1978)
  20. Owen v. City of Independence, 445 U.S. 622 (1980)
  21. Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)
  22. City of Canton, Ohio v. Harris et al., 489 US 378 (1989)
  23. Board of the County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397 (1997)
  24. Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986)
  25. Smith v. Wade, 461 U.S. 30 (1983)
  26. Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)
  27. Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001)
  28. City of Riverside v. Rivera, 473 U.S. 1315 (1985)