Section 1983 and the Keys to the Courthouse
By Clarence Guthrie, Guthrie Law Firm


The history of Section 1983 of Title 42 of the U.S. Code (42 U.S.C. § 1983) begins in section 1 of the “Ku Klux Klan Act” of 1871, but § 1983 did not emerge as a viable procedure for enforcing constitutional rights until 1961, when the Supreme Court decided Monroe v. Pape, 365 U.S. 167 (1961).  The Monroe decision clarified that the purposes of § 1983 are to (1) “override certain kinds of state laws”; (2) provide “a remedy where state law was inadequate”; and (3) “provide a federal remedy where the state remedy, though adequate in theory, was not available in practice.”  At that point the door to the federal courthouse was opened much wider than before, and the past 40 years have seen tremendous growth in the use of § 1983 to sue not only state officials, but cities and counties as well.

Section 1983’s goal is to provide a federal remedy for unconstitutional state action, and potential claimants include victims of police misconduct, prisoners, public employees, property owners, and potential and actual recipients of public benefits.  The causes of action are limited only by one’s imagination, and of course the traditional limitations on federal jurisdiction, such as standing, mootness, the Eleventh Amendment, and various abstention doctrines.

The Supreme Court has identified two main elements of a § 1983 case: (1) deprivation of a federal right; and (2) deprivation of that right “under color of state law.  West v. Adkins, 487 U.S. 42, 48 (1988).  Actually, and perhaps more usefully, a § 1983 claim can be broken down into four elements:

        (1)    conduct by a “person”;
        (2)    acting “under color of state law”;
        (3)    that proximately causes;
        (4)    the deprivation of a federally protected right.

If liability is to be established against a municipality, a fifth element is that the deprivation of the federal right must be (5) attributable to the enforcement of a municipal custom or policy.  See Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978).

From a practical standpoint, filing a § 1983 case is fraught with potential pitfalls, much like an action based on the Mississippi Tort Claims Act, and it is important when analyzing a case to plan it strategically from the outset.  Each year the federal courts are faced with large numbers of  § 1983 cases.  A good many of them are pro se actions filed by prisoners, and without comment on the potential merits of these actions, suffice it to say that the courts are very attuned to pleading requirements and jurisdictional issues that may preclude relief.

Section 1983 litigation is frequently complex, requiring courts to examine state law, abstention issues, and sometimes to interpret the federal Constitution.  Even so, several issues seem to recur in § 1983 litigation: (1) whether a federal constitutional right has been violated; (2) whether municipal liability has been established through enforcement of a municipal policy, practice or decision of a policy maker; and (3) whether “qualified immunity” protects an official from personal liability.

Plaintiffs may enforce a large range of federal constitutional rights under § 1983 against defendants who act under color of state law.  Most notable are lawsuits to protect rights secured under the Eighth and Fourteenth Amendments, free speech and religion rights under the First Amendment, and Fourth Amendment protections against unreasonable searches and seizures.  Less frequently, § 1983 is used to enforce rights guaranteed under the Commerce Clause, the Dormant Commerce Clause, and other constitutional clauses that most lawyers leave behind at law school.

The potential causes of action are certainly finite, as federal jurisdiction itself is finite, but the following is a far-from-complete list of potential causes of action under § 1983:

        (1)    use of force by government officials;
        (2)    free speech retaliation;
        (3)    property interests safeguarded by procedural due process;
        (4)    “legitimate claims of entitlement” to government dispensed commodities;
        (5)    prisoner’s rights cases;
        (6)    government publication of a defamatory stigma occurring in conjunction with the deprivation of a tangible interest;  
        (7)    Fourth Amendment malicious prosecution claims;
        (8)    political patronage claims;
        (9)    voting rights cases.

The full range of remedies are available to successful plaintiffs in § 1983 actions, including nominal and compensatory damages, punitive damages (but not against municipalities or states), and attorney’s fees. 

In summary, any time one of your clients “butts heads” with the government – and loses – the situation should be analyzed for state action that has deprived them of a constitutional right.   Section 1983 litigation is a fascinating area of law, and it should not be overlooked as a potential avenue for relief against constitutional torts committed against your clients.   There are several members of our organization that litigate these cases frequently and are willing to share their time and knowledge, and one of the major benefits of this organization is the ability to take advantage of this invaluable resource.