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Section 1983 Litigation
Section 1983 of Title 42 of the U.S. Code is a vital part of American law. The statute authorizes private parties to enforce their federal constitutional rights, and some federal statutory rights, against municipalities, state and local officials, and other defendants who acted under color of state law. Section 1983 reads as follows:
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.
When interpreting § 1983, the Supreme Court has considered congressional intent, common-law principles, policy concerns, and principles of federalism. The Supreme Court has relied on the historical background behind the statute in several major decisions interpreting § 1983. Congress passed 42 U.S.C. § 1983 in 1871 as § 1 of the “Ku Klux Klan Act.” The statute, however, did not emerge as a tool for checking abuses by state officials until 1961, when the Supreme Court decided Monroe v. Pape. In Monroe, the Court articulated three purposes for passage of the statute: (1) to “override certain kinds of state laws”; (2) to provide “a remedy where state law was inadequate”; and (3) “to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.”
Monroe resolved two important issues that allowed 42 U.S.C. § 1983 to become a powerful statute for enforcing rights secured by the Fourteenth Amendment. First, the Court held that actions taken by state governmental officials in carrying out their official responsibilities, even if contrary to state law, were nevertheless actions taken “under color of law.” In the course of reaching this conclusion, the Court established the important principle that § 1983 “should be read against the background of tort liability that makes a [person] responsible for the natural consequences of his actions.” Second, the Court held that individuals who assert a violation of federally protected rights have a federal remedy under § 1983 even if the officials’ actions also violated state law for which the state affords a remedy. In short, the Court in Monroe held that Congress enacted § 1983 to provide an independent federal remedy supplemental to available state law remedies. The federal judicial forum was necessary to vindicate federal rights because, according to Congress in 1871, state courts could not be counted on to protect Fourteenth Amendment rights because of their “prejudice, passion, neglect, [or] intolerance.” The Supreme Court has identified the policies underlying § 1983 as including compensating persons whose federally protected rights are violated by action under color of state law, and preventing future violations.
With Monroe opening the door to the federal courthouse, constitutional litigation against state and local officials developed. Later, plaintiffs seeking monetary damages sued not only state and local officials, but began to sue cities and counties as well. They also sought prospective injunctive relief against state officials. Ultimately, the federal courts became the principal forum for bringing state and local governmental policies and practices into compliance with federal law.
In Monell v. Department of Social Services, the Supreme Court overruled the part of Monroe that had found that Congress did not intend to subject municipal entities to liability under § 1983. Employing a “fresh analysis” of the legislative history of the Civil Rights Act of 1871, the Court found that Congress intended to subject municipal entities to liability under § 1983, though not on the basis of respondeat superior. Monell held that Congress intended that municipal entities would be liable under § 1983 only when an official’s unconstitutional action carried out a municipal policy or practice.
In Hudson v. Michigan, the Supreme Court acknowledged that § 1983 had undergone a “steady expansion” since the Court’s 1961 decision in Monroe, including the recognition of municipal liability claims in Monell and the availability of attorneys’ fees under 42 U.S.C. § 1988(b), the Civil Rights Attorney’s Fees Awards Act of 1976. Hudson rejected the exclusionary rule for violations of the Fourth Amendment knock-and-announce rule, in part because a § 1983 damages claim provided an adequate alternative remedy. The Court emphasized the importance of the § 1988 attorney’s fee remedy, namely, that “[c]itizens and lawyers are much more willing to seek relief in the courts for police misconduct” and other constitutional violations. The Court in Hudson affirmed the importance of both the federal § 1983 remedy for unconstitutional state action, and § 1988’s authorization of attorneys’ fees in § 1983 actions.
Nature of § 1983 Litigation
A wide array of claimants file § 1983 lawsuits in federal and state courts. These claimants include alleged victims of police misconduct; prisoners; present and former public employees and licensees; property owners; and applicants for and recipients of public benefits. Claimants may name as defendants state and municipal officials, municipal entities, and private parties who acted under color of state law.
Section 1983 litigation often requires courts to examine complex, multifaceted issues. Courts may have to interpret the federal Constitution, federal statutes (including § 1983 itself), and even state law. In addition, even if a plaintiff establishes a violation of a federally protected right, she may not necessarily obtain relief. Courts may deny relief after resolving numerous other issues: jurisdictional questions, such as the Rooker-Feldman doctrine, the Eleventh Amendment, standing, and mootness; affirmative defenses, such as absolute and qualified immunity; procedural issues, such as the statute of limitations and preclusion; and the various abstention doctrines.
The three most recurring issues in § 1983 cases are (1) whether a plaintiff has established a violation of a federal constitutional right; (2) whether qualified immunity protects an official from personal monetary liability; and (3) whether a plaintiff has established a basis for imposing municipal liability through enforcement of a municipal policy, a municipal practice, or a decision of a municipal policy maker.
The last stage of a § 1983 action is normally an application by the prevailing party for attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988(b). Section 1988 fee applications often generate a wide range of issues, including whether the plaintiff was a “prevailing party”; whether “special circumstances” justify the courts’ denying fees to a prevailing plaintiff; whether a prevailing defendant should be awarded fees; what constitutes a reasonable hourly rate; what constitutes a reasonable number of billable hours; and whether the circumstances justify an upward or downward departure from the “lodestar” (the number of reasonable hours times the reasonable hourly market rates for lawyers in the community with comparable background and experience).
Each year the federal courts face dockets filled with huge numbers of § 1983 cases. The lower court decisional law is voluminous. Federal district courts should be aware that there might be conflicts in approaches among the circuits.
There are frequently sharp factual disputes in § 1983 actions alleging constitutional violations. For example, in § 1983 excessive force claims, the plaintiffs and the defendant-officers typically assert very different versions of the encounter. In § 1983 First Amendment retaliation cases, the defendant will almost certainly deny having acted with a retaliatory motive. Factual disputes are much less frequent in cases alleging violations of federal statutory rights.
As in other federal court civil cases presenting disputed issues of material facts, pretrial discovery can play an important role in a § 1983 action. There are two major issues that present unique discovery considerations in § 1983 actions. First, because qualified immunity is not only an immunity from liability, but also an immunity “from suit,” that is, from the burdens of litigation, the Supreme Court has directed the district courts to decide qualified immunity, whenever possible, as a matter of law, usually on a motion for summary judgment, pretrial and even pre-discovery. The reality, however, is that it is often not possible to determine whether the defendant violated clearly established federal law until disputed issues of fact have been resolved. The Third Circuit has quoted the author’s position that “‘[t]he overwhelming problem [with qualified immunity] is the Supreme Court’s insistence that the [qualified] immunity defense be decided as a matter of law, when the reality is that factual issues must frequently be resolved in order to determine whether the defendant violated clearly established federal law.’” Supreme Court and lower federal court decisions do allow carefully tailored discovery addressed to factual issues pertinent to the qualified immunity defense.
The second discovery issue deserving special attention is evidentiary privileges. Two privilege issues of particular importance are the applications of the attorney–client privilege to governmental entities and governmental officials and the various governmental privileges. The extensive decisional law concerning governmental privileges generally requires weighing the need for confidentiality and secrecy against the need of the information and evidence for litigation.
Right to Trial by Jury
The Seventh Amendment guarantees the right to a jury trial in suits “at common law, where the value in controversy shall exceed twenty dollars.” Despite the reference to suits “at common law,” it is settled that the “right to a jury trial includes more than common law forms of action recognized in 1791” when the Seventh Amendment was adopted, and “extends to causes of action created by Congress.” The reference to “common law” suits refers to suits for legal, i.e., monetary, as opposed to equitable relief.
It is well established that there is a right to a jury trial in federal court § 1983 actions when a claim is asserted in excess of $20 for compensatory or punitive damages. Because the Seventh Amendment applies to claims in excess of $20, if the complaint allegations entitle the plaintiff “to no more than nominal damages, the Seventh Amendment will not be applicable. . . .” There is no right to a jury trial in a § 1983 action in which only equitable relief is sought. When a federal court plaintiff seeks both legal and equitable relief, there is a right to a jury trial on the claim for legal relief, which normally should be tried first.
Because § 1983 litigation is frequently multifaceted and complex, the jury instructions may encompass a wide range of issues and run for many pages. In addition to the general instructions used for civil actions, such as the preponderance-of-the-evidence standard, instructions are needed to explain the function of § 1983, the elements of the § 1983 claim for relief, the elements of the particular constitutional claims, causation, and state action. Instructions may also be necessary for such issues as municipal liability, the liability of supervisors, and nominal, compensatory and punitive damages. The district court’s challenge is to provide the jury with instructions that are complete and accurate yet in language lay jurors can understand. The Fourth Circuit, in a § 1983 excessive force case, opined that “what good instructions often do [is] let counsel argue factually in terms of a legal standard, rather than having the judge make counsel’s particularized arguments for them.” The court said that it has left the choice between generality and specificity in the charge to the sound discretion of the trial court.
The Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits have promulgated model jury instructions for civil actions, including for § 1983 actions. The fact that the district court employed a model instruction from its own circuit does not preclude a determination on appeal that the instruction was erroneous. The Seventh Circuit stated that district judges have an obligation to give instructions that are accurate on the law, and may give instructions differing from pattern instructions. It cautioned, however, that “when a judge varies from the pattern instructions, he should do so to make things clearer for the jury, not more confusing.”
A sampling of model circuit court jury instructions for § 1983 actions is contained in the Appendix.
- 42 U.S.C. § 1983 (1996).
- See, e.g., L.A. Cnty. v. Humphries, 131 S. Ct. 447, 451–53 (2010) (legislative history of § 1983 supports conclusion that municipality may be subject to prospective relief only when violation of federal rights is attributable to enforcement of municipal policy or practice); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66–71 (1989) (states and state agencies are not suable “persons”); Patsy v. Bd. of Regents, 457 U.S. 496, 501–02 (1982) (exhaustion of state remedies not required under § 1983); Quern v. Jordan, 440 U.S. 332, 341–42 (1979) (Congress enacted original version of § 1983 pursuant to § 5 of Fourteenth Amendment but did not intend to override Eleventh Amendment); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978) (municipalities are suable persons under § 1983 but not on basis of respondeat superior liability); Monroe v. Pape, 365 U.S. 167, 170–71 (1961) (§ 1983 provides federal remedy independent of state law remedies and is available even when state official acted in violation of state law), rev’d on other grounds, Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
- 365 U.S. 167 (1961), rev’d on other grounds, Monell, 436 U.S. 658.
- Monroe, 365 U.S. at 173–74.
- Id. at 186.
- Id. at 187.
- Id. at 183–87.
- Id. at 180.
- Robertson v. Wegmann, 436 U.S. 584, 590–91 (1978). See also Wyatt v. Cole, 504 U.S. 158, 161 (1992); Hardin v. Straub, 490 U.S. 536, 539 (1989); Burnett v. Grattan, 468 U.S. 42, 53 (1984).
- See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978).
- 436 U.S. 658 (1978).
- See infra Chapter 11. The Supreme Court recently reaffirmed Monell and held that its rejection of respondeat superior and the requirement that the violation of plaintiff’s federal rights be attributable to enforcement of a municipal policy or practice is not limited to claims for damages, and applies also to claims for prospective relief. L.A. Cnty. v. Humphries, 131 S. Ct. 447, 451–54 (2010).
- 547 U.S. 586 (2006).
- Id. at 597–98.
- Id. (citing Michael Avery, David Rudovsky, & Karen Blum, Police Misconduct: Law and Litigation, p. v (3d ed. 2005)).
- Id. at 597–98.
- Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Ct. of Appeals v. Feldman, 460 U.S. 462 (1983).
- See generally Perdue v. Kenny A., 130 S. Ct. 1662 (2010); Blum v. Stenson, 465 U.S. 886 (1984). For an extensive analysis of § 1988 attorney’s fees, see 2 Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Statutory Attorney’s Fees (4th ed. 2014).
- Pretrial discovery is governed by Fed. R. Civ. P. 26–37.
- See infra Chapter 16, § IV.D.b.
- Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996) (quoting Martin A. Schwartz, Section 1983 in the Second Circuit, 59 Brook. L. Rev. 285, 309 (1993)).
- See infra Chapter 16, § IV.D.b. On the other hand, to determine whether the plaintiff has alleged a “plausible” § 1983 claim, the Supreme Court has directed the districts not to consider whether they may be able to carefully manage discovery. See infra Chapter 3, § III.C.
- Application of privileges in § 1983 litigation is covered in detail in 3 Martin A. Schwartz, Section 1983 Litigation: Federal Evidence, Chs. 7 & 8 (5th ed. 2014).
- See, e.g., In re City of N.Y., 607 F.3d 923, 945 (2d Cir. 2010).
- Chauffers Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 564 (1990).
- In City of Monterey v. Del Monte Dunes, 526 U.S. 687, 707–22 (1999), the Court held that there is a right to a jury trial on a § 1983 regulatory taking claim. The decision, however, strongly supports the right to a jury trial in all § 1983 federal court actions for monetary relief in excess of $20. Id. at 709–11. See 1B Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 16.02[l] (4th ed. 2014). The Seventh Amendment guarantees the right to a jury trial on a federal court claim for punitive damages. Jones v. UPS, Inc., 674 F.3d 1187, 1202–06 (10th Cir.) (non-§ 1983), cert. denied, 133 S. Ct. 413 (2012).
- Burt v. Abel, 585 F.2d 613, 616 n.7 (4th Cir. 1978).
- Wilson v. Bailey, 934 F.2d 301, 306 (11th Cir. 1991) (§ 1983 injunctive and declaratory relief not triable by jury).
- See generally Dairy Queen v. Wood, 369 U.S. 469, 472–73 (1962); Beacon Theatres v. Westover, 359 U.S. 500, 510–11 (1959).
- For an extensive compilation of § 1983 instructions with commentary and annotations, see 4 Martin A. Schwartz & George C. Pratt, Section 1983 Litigation: Jury Instructions (2d ed. 2014).
- Noel v. Artson, 641 F.3d 580, 587 (4th Cir.), cert. denied, 132 S. Ct. 516 (2011).
- Id. at 590.
- See, e.g., Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009). See also Dang v. Cross, 422 F.3d 800, 805 (9th Cir. 2005).
- Cotts v. Osafo, 692 F.3d 564, 568 (7th Cir. 2012).
- Id. at 569.