August 31, 2020

BY Senior Scholar, Dean Institute for Corporate Governance and Integrity, Lipscomb University

A Legal Overview Of Section 1983 Civil Rights Litigation

04/14/2017 11:12 am ET Updated Apr 14, 2017

A Legal Overview of Section 1983 Civil Rights Litigation

If a governmental police department, in contrast to a private security company, was involved in the recently widely reported removal of a passenger from an airplane, there is a possibility, depending upon the specific facts, of a successful Section 1983 lawsuit that would impose liability upon that governmental entity. Police action may extend liability for injuries such as assault and battery to government in addition to private individuals and businesses.

The federal Civil Rights Act of 1871 (yes, 1871), also known as the Ku Klux Klan Act, was part of post Civil War legal developments that include the Thirteenth, Fourteenth, and Fifteenth Amendments. This comment briefly provides an incomplete educational overview of litigation under this significant legislation. Always consult an experienced attorney in all civil rights cases.

42 U.S.C. Section 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.”

Dormant Until the 1960s

Very little Section 1983 litigation occurred until the U.S. Supreme Court’s 1961 decision in Monroe v. Pape. This case involved a warrantless breaking into a home by 13 Chicago police officers. While the city of Chicago could not be sued (municipal liability was added in 1978) the police officers could be sued as acting “under the color of state law” even though they were not authorized and may have been forbidden to act. This decision allowed individual governmental employees to be sued for acts that violate the Constitution or statutes.

Meaning of “Person”

The judicial interpretation of “person” under Section 1983 is complex and requires that one seek experienced legal counsel. The following provides only an extremely brief and incomplete overview.

The Supreme Court has decided that a state and state agencies are not “persons” subject to suit under Section 1983. However, municipalities and other local governmental units such as school districts may be sued when official policies are in clear violation of constitutional rights according to the Supreme Court’s 1978 decision in Monell v. Department of Social Services.

One cannot sue a state officer under Section 1983 for the typical actions routinely undertaken in an official capacity. For example, denying a driver’s license due to a failing grade on a driving test does not create a Section 1983 case. However, merely being an official does not provide blanket immunity for the violation of an individual’s rights.

A 1971 Supreme Court decision, Bivens v. Six Unknown Named Agents, stated that lawsuits could be brought for violations of Fourth Amendment rights even in the absence of a statute that authorizes litigation holding, in essence, for every wrong there is a remedy. The Bivens decision has been interpreted broadly to allow lawsuits for a variety of violations, such as “excessive force,” unless a specific statute clearly provides an alternative remedy or some special factors mitigate against allowing the particular lawsuit.

Purely private persons or businesses not acting under “color of state law” are immune from a Section 1983 lawsuit [Morris v. Dillard’s Department Stores, Fifth Circuit, 2001]. Other state tort (personal injury) legal remedies may exist.

Acting Under “Color of State Law”

The Supreme Court has traditionally indicated that “color of state law” means power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law” [West v. Atkins, 1988]. This means that a state employee performing a governmental function, even if exceeding her/his authority, is acting under color of law. Additionally, a non-governmental person or entity may also act under color of law.

Rights “Secured by the Constitution and Laws”

Section 1983 does not create new legal rights. Rather, it is focused on the violation of existing rights. A given situation may involve state laws and state remedies such as tort (personal injury) law. However, most of the Bill of Rights have been held to apply to state and local entities and officials. Violations of rights such as due process, the Fourth Amendment (searches) and Fifth Amendment (self-incrimination) are common examples.

Immunity Issues

Historically public officials are granted either absolute or qualified immunity from lawsuit (can’t be sued) when performing official duties. Examples of absolute immunity involve a limited group of officials such as the President, legislators, or judges carrying out official duties. Qualified immunity is the general rule for individuals such as police officers and other officials unless they violate clearly established Constitutional rights or act in a grossly unreasonable fashion. The Supreme Court has held that Section 1983 does allow immunity defenses with some caveats. Actions taken with “deliberate indifference” may impose liability [Farmer v. Brennan, 1994]. This is a very high standard beyond negligence (recklessness) and involves conscious disregard.

Bottom of Form

There are numerous Section 1983 First Amendment cases in which harassment and inconvenience, alone, do not produce official liability. Would a “person of ordinary firmness” be deterred from speaking or acting by the official’s conduct? [Friedmann v. Corrections Corporation of America, Ninth Circuit, 2001].

Fourth Amendment cases involving police stops and investigations find no violation of Section 1983 if there were “reasonable suspicion” for the initial stop, and the detention was only long enough to carry out the purposes of the stop. Probable cause exists for an arrest if there is a reasonable belief that criminal activity has occurred, even if a subsequent trial results in a not guilty verdict. As the Supreme Court has stated: “The Constitution does not guarantee that only the guilty will be arrested. If it did, Section 1983 would provide a cause of action for every defendant acquitted — indeed, for every suspect released.” [Baker v. McCollan, 1979].

Off-Duty Incidents

Often off-duty Section 1983 lawsuits involve police officers. Traditional employer liability for an employee’s actions (respondeat superior) will not impose Section 1983 liability on a municipality. Rather, the city must have either an express policy or a well-established custom or common practice that produces a violation of constitutional rights.

Consistently enforced personnel and municipal policies will prevent a claim. For example, a 2016 Fifth Circuit decision involving an off-duty intoxicated Houston police officer who killed an individual involved in a bar fight did not impose liability on the city of Houston since Houston rules prohibited police officers from carrying a firearm while intoxicated [Rodriguez v. City of Houston]. A similar no-municipal-liability decision, with a different factual background, was reached in 2015 by the Seventh Circuit [Rossi v. City of Chicago].

However, off-duty police officers employed as security guards who routinely exercise arrest and booking functions in coordination with business owners and the local police department may impose Section 1983 liability on the municipality [Lusby v. City of Lawton, Tenth Circuit, 1984]. Has the officer acted under an assertion of official status and are the actions in some way connected to this official status, even if exceeding his/her authority? Does a particular local custom rise to level of color of law?

Procedural Considerations

While Section 1983 contains no statute of limitations (time in which a suit must be brought), federal courts tend to apply the personal injury statute of limitations of the state where the action occurred. Also, a plaintiff must possess “standing to sue,” that is a specific concrete actual or imminent injury to himself/herself. One cannot typically seek redress for others. Additionally, the claim must be “ripe.” Is the case one that a court may appropriately decide now rather than await the unfolding of future events? Is the case only hypothetical?

Generally speaking, a successful Section 1983 plaintiff may collect typical state tort compensatory damages such as those for medical expenses, lost income, pain and suffering, emotional distress, reputational injury, etc. Punitive damages are available against individuals (but not municipalities) in cases involving “reckless or callous disregard for the plaintiff’s rights, as well as intentional violations of federal law” [Smith v. Wade, 1983]. Finally, reasonable attorney’s fees and expert witness fees are also available [42 U.S.C. Section 1988]. As a matter of practice, municipalities frequently indemnify their officials and police officers if a financial judgment is rendered against them individually.

A Brief Section 1983 Litigation Checklist

1. Has there been a violation of a Constitutional or statutorily protected right?

2. Is the actor a person that is subject to Section 1983?

3. Did this person act under color of law or local governmental custom or practice?

4. Are the actions complained of connected to the deprivation of rights in a reasonably foreseeable manner (proximate causation)?

5. Are there defenses to liability such as immunity, lack of standing to sue, or a lack of ripeness?

6. Is a monetary judgment collectable from a governmental entity or, in the case of an individual defendant, personal assets or personal insurance policies?

This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.

By Connie Reguli

So this information just came in on the ABA parent representation listserve.

    Dear Parent Advocates:

    I’m very excited to report to you that Rep. Gwen Moore, a  life-long champion of family-centered child welfare reforms, has just introduced H.R. 7976 in Congress.  This bill’s central focus is on suspending the ASFA    timeline requiring states to petition for termination of parental rights if a child has been in care for 15 of the most recent 22 months.

    Rep. Moore has issued the attached statement in support of the bill.  Here  is the entry on Congress.Gov:

https://www.congress.gov/bill/116th-congress/house-bill/7976/tex

    <https://www.congress.gov/bill/116th-congress/house-bill/7976/text>t.

The text of the bill is attached to this email but we expect the actual bill     text with the bill number to be available at this link soon.   The release that Rep. Moore’s office just issued is attached below this email.

    The following is directed to this listserve specifically. The bill would, if passed, make it clear that states do not have to file petitions for termination of parental rights during times of public health crisis.  It does so in two ways: (1) by directly suspending the requirement of filing a petition for termination of parental rights during any public health crisis that has been declared federally or in the state, and (2) expanding the list of “compelling reasons” not to petition for termination to include times of “public health crisis.” The bill also proposes a one-year time frame after public health emergencies are no longer in effect so that parents can resume services and in effect have some opportunity to make up for the terrible effects of the health crisis that set them back.    The bill also clarifies that reasonable efforts must continue and defines reasonable efforts more specifically by a variety of alternative methods for providing services during times of public health crisis.

    This bill is the result of very hard work by a number of members of this     listserve and others who have joined together to make draft proposals and    seek out Congressional support. Members of the strategic planning group for this effort include a number of National Alliance for Parent Representation Steering Committee members. The bill has strong bipartisan allies including leadership by A Texas Public Policy Foundation and ParentalRights.org  and the Shriver Center who have worked together to bring this issue to the attention of lawmakers.  The states that our working group members represent include the following (in the order of the names listed above), Illinois, New York, New Jersey, California. Pennsylvania, Oregon, Texas, and Virginia.

  Currently, our group is looking for more allies in every state who can help connect us to other groups that may support this bill and identify parents who have compelling stories of why they would need more than 15 months to reunite with their families, especially during times of public help crisis.

     We especially are looking for people who help in states where we don’t yet have active representation in our group. We have had a few folks volunteer to be in our new state network from additional states, but if you are from a state that isn’t listed here and have any political connections or    connections to groups that you think would be in support of the bill, please contact me and I will let you know of next steps for this network of advocates.

    We also view this bill as providing a means of educating members of     Congress as to the real-life harm to children and families of too-speedy    termination especially in times o COVID. This will help Congressmembers    gain a better picture than the media often presents about what the    timelines actually mean.  The bill is consistent with the guidance we have    seen from the Children’s Bureau but it goes further by actually providing    in law the clarity that termination of parental rights is not required states will not forfeit federal dollars if they do not petition for TPR.

    Thank you  Diane Redleaf Co-chair, United Family Advocates Principal, Family Defense Consulting

    Member, Steering Committee, National Alliance for Parent Representation Congresswoman Gwen Moore Introduces the Suspend the Timeline Not Parental Rights During a Public Health Crisis Act*

    Today, Congresswoman Moore introduced H.R. 7976, legislation to pause the federal timeframe for states to file a petition to terminate parental    rights for a child and guarantee that states do not receive federal funding    cuts due to this change in policy. In response, she released the following    statement:

    “COVID-19 has created great uncertainty for many, causing millions to face housing, health, food, and job insecurity. It has also hindered parents    from being able to utilize the services now unavailable in the COVID    closedown that would normally help them reunify with their children. This unprecedented crisis should not lead to permanent damage to families    because of a federal timeline created before this pandemic.”

    This bill already has bipartisan backing from numerous advocacy groups across the aisle, who note the importance of preserving children’s family   ties:

    “Parents who were diligently working services required to provide a safe,  stable home for their children suddenly, and through no fault of their own, found themselves unable to access these services due to COVID-19    pandemic-related lockdowns,” said *Andrew C. Brown, Distinguished Senior  Fellow of Child and Family Policy with the Texas Public Policy Foundation*.

    “But the clock continues to run on arbitrary case timelines governing    termination of parental rights, robbing them of precious time. A temporary  suspension of termination timelines gives these parents a fair opportunity    to restore their families and honors their decision to take personal    responsibility by doing the hard work necessary to achieve reunification.”

    “Children in foster care have a heightened need and clear right to visit    their parents. At the start of the pandemic, many child welfare agencies    suspended in-person family time for children and their parents and    siblings. Before the pandemic, many of these children would have been returned to their  families, but agencies have been unable to provide the services needed to facilitate reunification. We should not allow this pandemic to lead to   unnecessary permanent termination of parent-child relationships,” *Jey Rajaraman, Chief Counsel, Family Representation Project, Legal Services of New Jersey*.

    “We should not allow the unprecedented challenges of this public health  situation to take away a family’s chance to reunite. Children deserve the    right to be with their families whenever safely possible,” *Chris Gottlieb,    Co-Director, NYU School of Law, Family Defense Clinic*.

    *Rep. Gwen Moore has long been a leader on child welfare reform.  She looks forward to working with her colleagues from both parties to ensure these families are given the opportunity they deserve to safely reunify. COVID has led to an immense amount of uncertainty in the lives of families  struggling with poverty.  This bill prevents a temporary, though severe,    health crisis from causing irrevocable separation of children from their    parents and a permanent loss of their vital family times who have lost the    opportunities every family deserves.*

    Read more information about the legislation *here    <https://gwenmoore.house.gov/uploadedfiles/background_information_on_the_suspend_the_timeline_not_parental_rights_during_a_public_health_crisis_act_.pdf>.*