Nahmod Law

This post is intended primarily for those lawyers, law students and members of the public who are not very familiar with 42 U.S.C. section 1983. It is the first in an introductory series on section 1983 that I will occasionally post.

History and Purposes

At the outset, observe the very close connection between section 1983 and the Fourteenth Amendment.

Section 1 of the Fourteenth Amendment to the Constitution of the United States, ratified in 1868, declares that states may not abridge the privileges or immunities of citizens of the United States and sets out the protections of due process and equal protection for “any person,” none of which states (and local governments) may deprive or deny.  Section 5 of the Fourteenth Amendment gives Congress the power to enforce section 1 by appropriate legislation.

Section 1983 was enacted in 1871 by the 42nd Congress pursuant to its section 5 power in order to enforce the Fourteenth Amendment. It effectively creates a Fourteenth Amendment action for damages (and for injunctive relief) against “Every person,” acting under color of state or local law, who deprives a person of his or her Fourteenth Amendment rights and thereby causes damage. As it turns out in Supreme Court case law, “Every person” includes state and local government officials as well as local governments themselves (but not states).

The Broad Scope of Section 1983

The scope of section 1983 is as broad as the scope of the Fourteenth Amendment itself, which includes not only the Due Process and Equal Protection Clauses but also, through a process that judges and lawyers call “incorporation,” many of the provisions of the Bill of Rights which on their face apply only to the federal government. Currently incorporated are the First Amendment, the Fourth Amendment, most of the Fifth, the Sixth and the Eighth.  Whether the Second Amendment, dealing with the right to bear arms, is also incorporated and applies to states and local governments is now before the Supreme Court in McDonald v. Chicago, No. 08-1521.

In real world terms, this means that whenever a state or local law enforcement officer makes an arrest, conducts a search or uses force in alleged violation of the Fourth Amendment, section 1983 is potentially implicated. Whenever a public school official punishes a student or teacher for what is said or written on school premises in alleged violation of the First Amendment, section 1983 is potentially implicated. Whenever a prison official imposes conditions of confinement on inmates in alleged violation of the Eighth Amendment, section 1983 is potentially implicated. And whenever a public employer discharges an employee for racial or sex-based reasons in alleged violation of the Equal Protection clause, section 1983 is potentially implicated. Note the obvious:  these examples are far from exhaustive.

Complications

On the face of it, section 1983 litigation appears very straightforward. One would think that the major issues in such cases are whether the Fourteenth Amendment was violated by a state or local government official or a local government (the defendant) and whether the person suing (the plaintiff) was injured. If so, liability for damages ought to follow.

However, much section 1983 doctrine has become increasingly technical. For example, the Supreme Court has created a plethora of defenses called “immunities” that may protect individual state and local government officials against liability for damages in certain circumstances. In addition, the Court has progressively made it quite difficult for section 1983 plaintiffs to successfully sue local governments for damages.

Future Posts

In future posts, I will address these and similar matters in a manner appropriate for those not familiar with the subject.