42 USC 1983: CIVIL ACTION FOR DEPRIVATION OF RIGHTS

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Just so people know we have these rights under 42 USC 1983...

42 USC 1983: CIVIL ACTION FOR DEPRIVATION OF RIGHTS

§1983. Civil action for deprivation of rights

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.

View: https://uscode.house.gov/view.xhtml?req ... on:prelim)

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Action Under Color of State Law

Action under color of state law, sometimes referred to as state action, is action taken with the appearance that the state government authorizes the action. Public employees act under the color of state law when they are acting in their official capacity or exercising the authority that state law gives them, even if they abuse that authority. (Monroe v. Pape, 365 U.S. 167, 184 (1961); Monell v. Dep't of Social Servs., 436 U.S. 658 (1978).). To be liable under Section 1983, the public employee must have been acting under color of state law at the time of the complained-of conduct. Even if an individual falls into one of the categories generally considered a person under Section 1983, that individual may not qualify as a person acting "under color of state law" in the circumstances of the case. When engaging in the complainedof conduct, if the individual was acting in the capacity of someone not subject to Section 1983 liability, a Section 1983 claim against the individual fails. For example, in McMillian v. Monroe County, the Supreme Court held that a county sheriff was immune from suit under the Eleventh Amendment because he was acting as a final policymaker for the state (not a final policymaker for the county) when acting in his law enforcement capacity (520 U.S. 781 (1997)). The Court explained that under the applicable state law, the sheriff is an executive officer of the state when exercising law enforcement duties, even though the sheriff only had jurisdiction in the county and the county paid the sheriff's salary. The sheriff was therefore not subject to liability under Section 1983 because the state and state officials acting in their official capacity are immune from suit under the Eleventh Amendment.

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Constitutional Rights

Plaintiffs may enforce a wide variety of constitutional rights by using Section 1983, the bulk of which originate from Section

1 of the Fourteenth Amendment. Rights created by the Fourteenth Amendment include:

• Procedural due process. Requires the government to use constitutionally adequate procedures to deprive someone of life, liberty, or property interests (Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)).

• Substantive due process. Requires the government to refrain from interfering with individuals' fundamental rights and from engaging in conscience-shocking conduct. (See County of Sacramento v. Lewis, 523 U.S. 833, 842, 845-46 (1998).)

• Equal protection of the law. Requires the government to treat similarly situated individuals the same (City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985)).

• Rights incorporated from the Bill of Rights (the first ten amendments to the US Constitution). The Fourteenth Amendment's Due Process Clause incorporates these rights and makes them applicable to the States (see McDonald v. City of Chicago, 561 U.S. 742, 763 (2010)). Examples of these incorporated rights include the:

• First Amendment's rights of freedom of speech, press, assembly, petition, and religion;

• Second Amendment's right to keep and bear arms;

• Fourth Amendment's protections against unreasonable searches and seizures;

• Fifth Amendment's protection from self-incrimination and the right to just compensation for property taken by the government;

• Sixth Amendment's rights to confront and cross examine witnesses, trial by jury, and counsel; and

• Eighth Amendment's protections against excessive bail and cruel and unusual punishment. (McDonald, 561 U.S. at 764 and 791.)

Whether a party has alleged a proper constitutional claim under Section 1983 depends on the constitutional provision at issue. For example, courts evaluate Fourth Amendment claims, such as use of force claims, under an objective reasonableness standard (see Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014)). Eighth Amendment claims require a plaintiff to show that the defendant acted with deliberate indifference. An equal protection claim requires a showing of differential treatment of similarly situated individuals with a purpose to discriminate.

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Theories of Liability

Individual or Personal Capacity Liability

Individuals are personally liable under Section 1983 when their actions, under color of law, deprive another of a federal right protected by Section 1983. Suits seeking damages against an individual are called personal capacity or individual capacity lawsuits.

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Supervisory Capacity Liability

A supervisor of a federal rights violator can be liable on a theory that the supervisor indirectly violated plaintiff's rights by facilitating, encouraging, condoning or acquiescing in the subordinate's violation of the plaintiff's rights. Plaintiffs asserting supervisory capacity claims often allege that the supervisor's failure to adequately train, supervise or discipline the subordinate caused the deprivation. Traditionally, to be liable, the supervisor also must have acted with deliberate indifference. This means the supervisor must have had actual or constructive knowledge that the subordinate posed an unreasonable risk of harm to others and consciously disregarded that risk.

In 2009, the United States Supreme Court cast doubt on the continuing viability and contours of a supervisory liability claim (see Ashcroft v. Iqbal, 556 U.S. 662 (2009)). In Iqbal, a prisoner sued federal officials under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), alleging that FBI Director Robert Mueller and Attorney General John Ashcroft "condoned and agreed" to their subordinates' discriminatory actions. The Supreme Court dismissed the claims against Mueller and Ashcroft, suggesting that "supervisory liability," or liability based on one's seniority over a federal rights violator, does not exist. According to the Court, Section 1983 liability can only be predicated on one's own misconduct, committed with the requisite mens rea. (Iqbal, 556 U.S. at 677.)

After Iqbal, the circuit courts went their separate ways, all but one continuing to recognize supervisory liability, but under varying standards. For a thorough analysis of pre- and post-Iqbal supervisory liability case law by circuit, see William N. Evans, Supervisory Liability in the Fallout of Iqbal, 65 Syracuse L. Rev. 103 (2014)

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Entity Liability

Monell Actions

Claims seeking to hold a local government entity liable under Section 1983 are sometimes referred to as Monell claims (see Monell v. Dep't of Social Servs., 436 U.S. 658 (1978)).

Similar to an individual, the municipality can be liable only for its own misconduct (see Monell, 436 U.S. at 691). A local government is not liable under Section 1983 merely because it employs a tortfeasor. There is no vicarious or respondeat superior liability under Section 1983.

To establish Section 1983 liability against a local government, the plaintiff must prove that a municipal "policy or custom" is the "moving force" of a constitutional violation. Monell, 436 U.S. at 694. A municipal "policy or custom" may take the form of the following:

• A formal regulation or policy statement.

• An informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled that it constitutes a custom or usage with the force of law.

• The decisions of employees with final policymaking authority.

• The ratification by these final policymakers of the decisions, and the basis for them, of subordinates to which authority was delegated subject to these policymakers' review and approval.

• The failure to adequately train or supervise employees if that failure results from deliberate indifference to the injuries that may be caused.

(See Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (internal quotations and citations omitted), cert. denied, 131 S. Ct. 3030 (2011); Monell, 436 U.S. at 694.)

Rarely does a single incident give rise to municipal liability. Only where "the particular illegal course of action was taken pursuant to a decision made by a person with authority to make policy decisions on behalf of the entity being sued" can a single incident result in municipal liability. Moss v. Kopp, 559 F.3d 1155, 1169 (10th Cir. 2009).

Where an employee acts inconsistently with municipal policy, municipal liability should not be imposed because municipal policy is not the "moving force" of the constitutional violation (see Monell, 436 U.S. at 694).

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Official Capacity Suits

A Section 1983 claim asserted against an individual in the individual's "official capacity" is synonymous with a Section 1983 claim against the municipality that employs the individual. "[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent…" (Monell, 436 U.S. at 690 n.55). If a plaintiff sues both an individual (for example, the police chief) in that individual's official capacity as well as the municipality itself, dismissal of the police chief may be obtained because the claims are duplicative (see, for example, Doe v. Douglas Cnty. Sch. Dist., 775 F. Supp. 1414, 1416 (D. Colo. 1991) ("Where a suit contains both entity and official capacity claims, the only defendant is the entity.")).

An entity only is liable for the acts of an individual if the individual acted as a policymaker for the entity. Whether an individual has policy-making authority is a question of state law (City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988)).

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Causation

Courts analyze causation under Section 1983 using common law tort principles. Causation requires proof of:

• Cause in fact. Sometimes referred to as "but for" cause or actual cause, cause in fact exists if the harm cannot result without the government action at issue.

• Proximate cause. Sometimes referred to as a legal cause, proximate cause exists if the harm was a reasonably foreseeable result of the government action.

(Powers v. Hamilton Cnty. Public Def. Comm'n, 501 F.3d 592, 608-09 (6th Cir. 2007).)

Causation in a personal capacity suit (see Individual or Personal Capacity Liability), requires that the plaintiff show proximate cause by evidence that the individual defendant did any of the following:

• Participated directly in the alleged violation.

• Created the policy or custom under which violations occurred.

• Failed to remedy a known violation.

• Supervised in a grossly negligent manner subordinates committing the violations.

• Exhibited deliberate indifference by failing to act on information indicating that violations were occurring. (Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015).)