42 USC 1983

42 USC 1983

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.
42 USC § 1983 (Ku Klux Act of 1871, § 1)

(a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
. . .
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.
28 USC § 1343(a)(3)–(4)

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.
Constitution, Amendment XI

§ 1983 jurisdiction

Jurisdiction over § 1983 suits comes both from § 1331, which grants general federal question jurisdiction to the courts, and from § 1343(a)(3) above, which grants jurisdiction over Constitutional or federal statutory provisions intended to protect "equal rights." Note that § 1343(a)(3) is now effectively superfluous since the amount-in-controversy requirement has been removed from § 1331.

§ 1983 is not limited to claims that a provision of the Constitution or the federal laws which guarantees "equal rights" has been violated, [Maine v Thiboutot] (allowing § 1983 claim premised on denial of welfare benefits, but not any equal-rights claim), even if brought under 28 USC § 1343(a)(3) or a similar jurisdictional statute limited to "equal rights" claims. See also [Wright v Roanoke] (extending Thiboutot to federal regulations not premised on "equal rights"). The Court justified expanding jurisdiction due to existing practice and a lack of contrary statements in legislative history, but see [Maine v Thiboutot] (Powell dissenting) (arguing that legislative history did support limiting § 1983 statutory rights to equal-rights claim, as well as a equal-rights provision of the Ku Klux Klan Act that was accidentally left out of the Revised Statutes).

Note, however, that there must still be federal question jurisdiction over the federal law whose violation gives rise to the § 1983 claim. Federal law has been held most often to not create a § 1983 action for legislation passed under the Taxing and Spending Clause. Some justices have argued that Taxing and Spending Clause legislation cannot as a rule create private rights of action. See, for example, [Pharmaceutical Research v Walsh] (Thomas concurring) (arguing that Spending Clause legislation is like a contract between the states and the federal government, and that individual citizens, like any [third party beneficiary], cannot sue to enforce the contract unless explicitly given such right in the contract). Even if the Court has not explicitly accepted Thomas' argument, however, § 1983 claims based on a statute passed under Congress' Taxing and Spending Clause authority typically lose under some theory or another.

Note further that [Monroe v Pape] implicitly holds that a § 1983 plaintiff does not need to first exhaust his state remedies, as other constitutional claims (for example, a Amendment V or federal habeas corpus claim) would. There is an exception here, however, in certain procedural due process cases (see below for the Parratt-Zimermon exception).

Elements of § 1983

Proper defendants ("person(s)")

Individual actors

Individual actors may be liable under § 1983 as "persons," at least where they act under color of state law. [Monroe v Pape]; compare [Monell v Dept of Social Services] (describing how the framers of § 1983 did not intend to make states liable under § 1983 for the acts of private parties). Note that Amendment XI does not grant immunity against state officers who are sued in their individual capacity, but that qualified immunity protections may be available to such defendants. [Tenney v Brandhove]. In contrast, a municipality sued under § 1983 does not enjoy immunity against liability for the actions of its officials, given that a strong common-law tradition of immunity for officials but not for municipalities existed when § 1983 was enacted. [Owen v City of Independence]; but see [City of Newport v Fact Concerts] (municipalities may not be liable under § 1983 for punitive damages).

An official can be sued also in his "official" capacity, which means that the government entity is itself the real party in interest, [Kentucky v Graham], thus invoking state sovereign immunity. In official capacity suits, the government, and not the individual defendant, would have to pay any damages (including any fees awarded).

When an equitable remedy is sought, the defendant official is normally named in an official capacity. See, for example, [Hutto v Finney]. However, it ordinarily makes no difference whether an § 1983 seeking equitable relief names the defendant in a personal or an official capacity; only where the plaintiff is seeking prospective equitable relief does Amendment XI require that he name an official and not merely the government involved. Punitive damages are also available against individual defendants facing § 1983 liability (compare municipalities below, who do not), but individual defendants may also enjoy qualified immunity. (The idea is to immunize individual defendants against liability for good-faith mistakes about the law; qualified immunity, by focusing on "clearly established" law, creates a sort of negligence standard of care for constitutional torts).

States

The Court has held that Congress did not abrogate state sovereign immunity under Amendment XI through § 1983. [Quern v Jordan]. A state or state agency is not a "person" under § 1983, at least not when sued for retrospective relief. [Will v Michigan Dept of State Police] (arguing that in common usage, "person" does not include the sovereign); but see [Will v Michigan Dept of State Police] (Brennan dissenting) (pointing to the Dictionary Act enacted shortly before § 1983 was enacted, and which defined "person(s)" to include "bodies politic and corporate"). Compare [NV Dept of Human Resources v Hibbs] (holding that Congress did use its power under § 5 of Amendment XIV to abrogate state sovereign immunity through the FMLA, given that Congress had devised a "congruent and proportional" response to a "pattern of constitutional violations on the part of the States in this area"); [Tennessee v Lane] (holding that Title II of the Civil Rights Act had abrogated sovereign immunity through § 5 by finding "pervasive unequal treatment" as applied to the individual plaintiffs).

Dicta in [Monell v Dept of Social Services] also argued that § 1983 did not provide [respondeat superior] liability against state governments for the acts of their employees. Compare [Oklahoma City v Tuttle] (Stevens dissenting) (arguing that § 1983 was enacted against a common-law background that explicitly recognized respondeat superior suits against governments, and that the usual principles of tort liablity supported respondeat superior here). Note, however, that many states effectively provide a [respondeat superior] regime by idemnifying their employees for damages incurred by § 1983 liability; furthermore, since individuals will face only punitive damages, and since the individuals will almost certainly be judgment-proof, the city ends up paying only compensatory damages either way. Compare [Board of Co Commrs of Bryan Co v Brown] (Breyer dissenting) (arguing for a respondeat superior standard, given that the standard largely exists in practice, effectively adopting strict liability for municipalities).

Note also that the Court has extended immunity against § 1983 suits to Indian tribes on the same theory through which states are immune; furthermore, Indian tribes may not bring suits under § 1983. [Inyo Co v Palute-Shoshone Indians] (rejecting § 1983 claim by Indian tribe challenging state search warrants, on the ground that Indian tribes are not "person(s)" under § 1983)

Local governments

The Court originally held that cities are not liable as "persons" under § 1983, given that (1) the Congress enacting § 1983 rejected amendments to make cities liable and (2) Amendment XIV, which specifically protects against the "state(s)," may not apply to cities. [Monroe v Pape]. However, in 1978, the Court changed course, holding that Monroe had misread the legislative history of § 1983, and the Congress did intend to make local governments liable as "persons." [Monell v Dept of Social Services] (arguing that the rejected amendment to § 1983 would have made private individuals liable, not just people acting under state authority). Note that because Monell rejected a respondeat superior theory of strict liability for the constitutional torts of its employees, a plaintiff must show that the action "implements or executes a policy statement, ordinance, regulation or decision officially accepted and promulgated by that body's officers." [Monell v Dept of Social Services].

Note the conflict between Monell and Monroe; if a plaintiff sues both a city and its officials (for example police), the city will argue that the offending actions were not "under color of state law," but for qualified immunity purposes the officials will want to argue that the actions were under color of state law, or at least unclear enough to avoid liability.

Note also that municipal defendants do not enjoy qualified immunity, see [Owen v City of Independence], but that they are also not subject to [punitive damages]. [City of Newport v Fact Concerns Inc]. Since individual defendants have qualified immunity, but municipal defendants cannot be liable without finding an official custom or policy, the result is typically that an individual is held liable only for compensatory damages, which are then idemnified by the city.

"Under color" of law

The question of whether a state action is "under color of state law," etc., reaches two questions: (1) the extent to which state law authorizes the offending action and (2) the extent to which a parallel state-law remedy is available.

"Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color' of state law." [US v Classic], quoted in [Monroe v Pape] (holding that policemen who broke into house illegally acted "under color of state law," even though no state law justified their actions."). Compare the Hobbs Act (which allows for criminal liability of private parties if they pass themselves off as state actors in order to commit extortion). Note also that a state actor may be possibly liable for making it possible for private parties to deprive others of civil rights (for example, handing out guns and police uniforms to private parties), although a proximate cause issue may arise.

Likewise, an action may be under "custom . . . of state law," and thus open to § 1983 liability, even if the custom "has not received formal approval through the (government) body's official decisionmaking channels." [Monell v Dept of Social Services]. (Mortara: note that a § 1983 plaintiff cannot tell usually whether a "custom," usually secret, authorized the offending conduct, so that [Monroe v Pape] and Monell may ease the burden on plaintiffs to show an explicit "custom" or authorized state action; however, because state law tort actions are not as premissive here as § 1983, the two actions really aren't parallel.). In practice, however, a plaintiff can almost never prove a "custom or policy" exists for a certain government.

A "policy or custom" must be more than a "single, unusually excessive" or "random" action of a state official. [Oklahoma City v Tuttle] (random use of force by police officer did not create § 1983 liability against city without showing of "deliberate indifference").

A government may be held liable for negligence in training its employees only if such negligence amounts to "deliberate indifference to the rights of persons with whom (the relevant employees) came into contact." [City of Canton v Harris]; see also [Board of County Commrs v Brown] (holding that an inadequate-hiring claim also requires deliberate indifference).

Finally, note that (at least in the Seventh Circuit) a government cannot have a "policy" or "custom" to do something if it is under injunction not to do so.

Existence of state law remedies as affecting the "color of state law" question

The purpose of § 1983 is to protect federal rights against state action, even a state remedy is available (for example under a common-law tort theory); § 1983 is designed to enforce rights that might be protected in theory by state law, but which might be applied or enforced unjustly in practice. Therefore, state action that violates state law can still be heard under § 1983 even if a state-law remedy is available. [Monroe v Pape] (holding that § 1983 extended to action against state policemen, even though state common law remedy was available, and rejecting city's argument that it was violating and thus could not be "under color" of state law); compare [Monroe v Pape] (Frankfurter dissenting) (arguing from legislative history that § 1983 was only intended to provide federal liability where the plaintiff lacked an adequate state remedy, and that "custom or usage" meant acts systematically endorsed by the state, not acts "in defiance" of state law). Note that every unconstitutional state action, even if "authorized" under state law, would be effectively unauthorized, given the Supremacy Clause. Note also that both Frankfurter and Douglas in Monroe would allow a § 1983 remedy for an exclusively constitutional claim against a state actor.

federal jurisdiction

Violations of federal law

After [Maine v Thibotout] expanded the reach of § 1983 beyond only federal statutes that protected "equal rights" (see above), the Court held that § 1983 may be precluded if a federal statute already provides for "comprehensive enforcement mechanisms" of its guarantees. [Middlesex Co Sewage Authority v National Sea Clammers Assn] (Federal Water Pollution Control Act did not provide § 1983 implied remedy). The Court argued that if Congress has provided "comprehensive enforcement mechanisms," it has intended to "supplant any remedy that otherwise would be available under § 1983." [Middlesex Co Sewage Authority v National Sea Clammers Assn]; compare [Wright v Roanoke Redevelopment and Housing Authority] (holding that federal statute setting rent controls and giving HUD regulatory power did not preclude § 1983 suit without "express provision or other specific evidence"); but see the recent case [City of Rancho Palos Verdes v Abrams] (2005) (holding that "the provision of an express, private means of redress in (a federal) statute itself is ordinarily an indication that Congress did not intend to leave open a more expansive remedy under § 1983"). Note the problem that otherwise the Court is very hesitant to find that Congress meant implicitly to repeal old legislation through new legislation (although the Court did not say in Sea Clammers et al that it was finding implied repeal).

Wright limited the reach of Middlesex Co, holding that the Court would not "lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy." Recent cases, however, have read this requirement has effectively foreclosed a § 1983 claim whenever a federal statute provides its own enforcement regime, [City of Ranchos Palos Verdes v Abrams], while statutes that do not provide an implied cause of action are likewise held not to provide a § 1983 claim.

Constitutional claims

Note that both Frankfurter and Douglas in [Monroe v Pape] would allow a § 1983 remedy for an exclusively constitutional claim against a state actor.

In order to recover under § 1983 for a violation of Amendment XIV (which, due to [constitutional incorporation], includes any Bill of Rights claim against the states), a plaintiff must show "state action." See, for example, [Flagg Bros Inc v Brooks]. As a result, a private actor cannot be liable under § 1983, given that private actors have little opportunity to violate the Constitution, unless cloaked with state authority in some way. See also [DeShaney v Winnebago Co DSS] (Amendment XIV does not protect against state inaction, or at least a state's failure to protect its citizens).

In 1989, the Court went further and held that plaintiffs could bring preemption claims through § 1983, at least where federal rights granted under a statute trumped state law. [Golden State Transit Corp v City of LA] (holding that plaintiffs could bring claim under § 1983 that NLRB preempted CA state law); but see [Golden State Transit Corp v City of LA] (Kennedy dissenting) (arguing that preemption was an issue of federalism, not of individual rights, and that the plaintiffs' only relief was declaratory relief under 28 USC § 1331 federal question jurisdiction).

Likewise, the Court has held that plaintiffs could bring Dormant Commerce Clause claims against protectionist state actions under § 1983, on the theory that "the Clause was intended to benefit those who . . . are engaged in interstate commerce." [Dennis v Higgins]; but see [Dennis v Higgins] (Kennedy dissenting) (arguing that the Commerce Clause as a "prerogative to the general government," not a "personal right()"). Note that without a § 1983 claim for private actors, few people would bring Dormant Commerce Clause claims; otherwise, private actors would (besides perhaps a diversity jurisdiction claim) only be able to bring a DCC claim as a defense to a state suit, creating incentive problems.

Procedural due process claims

In 1981, the Court held that § 1983 relief was not available for a procedural due process claim under Amendment XIV against negligence by a state actor whose actions were "random" or "unauthorized." [Parratt v Taylor] (holding that a state prisoner whose hobbykit had been lost by prison officials had failed to state a § 1983 claim). The Court (through Rehnquist) argued that procedural due process did not require a state to provide predeprivation hearing for property rights when such hearing would be impractical, that the state could not predict when property would be lost through negligence, and that a post-deprivation state-law tort remedy would thus provide adequate "due process" of law. [Parratt v Taylor]; compare [Parratt v Taylor] (Blackmun concurring) (arguing that a similar rationale would not hold for a deprivation of life or liberty, and that a state should be required when possible to take safeguards against the negligence of its employees); [Parratt v Taylor] (Powell concurring in judgment) (arguing that "depriv(ation)" in Amendment XIV covered only intentional deprivations of property). Further, the court pointed out that allowing § 1983 liability for negligence would require the federal courts to create a new common law binding upon the states. [Parratt v Taylor]. The Court further held that the remedies under state tort law need not be as great as the remedies possible under § 1983 in order to provide the necessary "due process." [Parratt v Taylor] (rejecting § 1983 claim even though parallel state claim did not provide for jury trial or punitive damages).

Mortara: the difference between procedural due process claims and other constitutional claims is that the state itself must act somehow to complete the due process violation (by denying adequate post-deprivation relief or otherwise); in comparison, for example an Amendment IV violation during search would be completed by the policeman who was performing the search. Parratt can thus be read as a sort of ripeness or exhaustion case.

Later decisions extended the Parratt rule to even intentional but unauthorized deprivations of property, holding that an adequate postdeprivation remedy satisfies due process whenever deprivation is caused by "random and unauthorized conduct." [Hudson v Palmer]. Hudson appeared to argue that when conduct was "random and unauthorized," there would be no state policy to attack. Compare [Zimermon v Burch] (systematic policy leading to "voluntary admission" of incompetent patients); but note that the policy itself was not attacked in Zimermon.

Further, the Court eventually accepted Powell's rationale in Parratt that negligent deprivation of property was not a "deprivation" actionable under Amendment XIV [Daniels v Williams] (state prisoner who tripped over pillow accidentally left on stairs by guard failed to state a claim). Mortara: [Hudson v Palmer] might be an outlier, and the cases may be better reconciled if Parratt is made into a negligence or exhaustion rule; compare [Zimermon v Burch], where no postdeprivation hearing or process could be adequate. Compare [Easter House v Felder] (Easterbrook) (arguing that no tenable distinction could be drawn between Zimermon and Parratt based on foreseeability)

And in [Zimermon v Burch], the Court extended the rationale of Parrat to deprivations of liberty. [Zimermon v Burch] (§ 1983 case brought by person voluntarily admitted into psychiatric hospital). However, in [Zimermon v Burch], the Court created an exception where state officials could adequately foresee and provide safeguards against random or unauthorized deprivation of life, liberty, or property. [Zimermon v Burch] (arguing that state psychiatric officials could foresee and prevent "voluntary" admission of patients without informed consent). Note the problem of what level of abstraction to characterize what is predictable about Zimermon's case: to predict, for example, that cases like Zimermon's would recur (which seems indistinguishable from the intentional acts in [Hudson v Palmer]), or that Zimermon's personal outcome was predictable.

[Zimermon v Burch] further held that Parratt does not apply to substantive due process or [constitutional incorporation] claims. Finally, [Zimermon v Burch] held that Parratt does not apply where postdeprivation due process is "sufficient," and measured sufficiency by the balancing test of [Mathews v Eldridge]. Not much parity seems to be required between state and federal remedies for the Parratt rule to apply; for example, a state remedy might be "adequate" even if the state officer defendants would have absolute immunity in state court. [Davidson v Cannon].

Note, however, that if the state's negligence deprives a prisoner of post-deprivation remedies, a § 1983 action will still lie (as compared to negligence that originally causes a deprivation of property). [Logan v Zimmerman Brush Co] (§ 1983 action for employment discrimination claim, where the state agency usually hearing such claims caused the action to be dismissed by failing to act as it should within the state's 120-day [statute of limitations]); but see [Davidson v Cannon] (holding that a state statute immunizing officials in suits by prisoners for harm caused to them by other prisoners was an adequate state remedy sufficient to foreclose § 1983 under Parratt).

Substantive due process claims

Note also that dicta in Parratt argued that the doctrine does not apply to deprivations of substantive due process. In this light, the Parratt decision might be best read as a doctrine trying to limit the scope of what substantive due process remedies may be available. See, for example, [Albright v Oliver] (holding that arrest without probable cause does not violate substantive due process); [Albright v Oliver] (Kennedy concurring in judgment) (arguing that no § 1983 action lay for the remedy because a state post-deprivation remedy was available, and claiming that the Court's opinion had reduced Parratt to a "mere pleading exercise" in trying to transform procedural complaints into substantive due process complaints).

[alias: Ku Klux Klan Act]
federal jurisdiction

[color: MEDIUM SPRING GREEN]