Nahmod Law

Introduction

Are there state of mind requirements for the section 1983 cause of action? The answer is NO as a statutory matter and YES as a constitutional matter.

The Background

Recall that the Supreme Court stated in Monroe v. Pape, 365 U.S. 167 (1961), that section 1983 is to be interpreted against “the background of tort liability.” What does that mean? One possibility is that there is some sort of state of mind requirement, stemming from section 1983 itself, for the 1983 cause of action. If so, is it negligence, deliberate indifference, intent or something else?

After some confusion in the circuits, the Supreme Court finally put the matter to rest in Parratt v. Taylor, 451 U.S. 527 (1981),when it declared as a statutory matter that there is no state of mind requirement for the section 1983 cause of action.

However, it turns out that there are state of mind requirements for the section 1983 cause of action that are based on the underlying constitutional claim.

Constitutional States of Mind, Variable and Otherwise

Simply put, different constitutional provisions have their own state of mind requirements. Thus, it has been the rule since Washington v. Davis, 426 U.S. 229 (1976), that equal protection violations require purposeful discrimination. There is therefore no such thing as a negligent or deliberately indifferent equal protection violation. Similarly, the Supreme Court declared in Daniels v. Williams, 474 U.S. 327 (1986), that due process violations require an abuse of government power, so that negligence is not sufficient. And Eighth Amendment violations require at least deliberate indifference, according to the Court in Farmer v. Brennan, 511 U.S. 825 (1994).

However, it is a bit more complicated than that: different states of mind may be required under the same constitutional provision where the circumstances are different. I call these variable state of mind requirements. For example, while the general rule in substantive due process cases is that deliberate indifference is required, in high speed police pursuit cases where police have little or no time to deliberate, the state of mind required, as ratcheted up by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998), is “purpose to cause harm.” Similarly, while the general rule in prison condition of confinement cases is that the Eighth Amendment requires deliberate indifference in the sense of subjective criminal recklessness, in prison security cases the state of mind required, as ratcheted up by the Supreme Court in Whitley v. Albers, 475 U.S. 312 (1986), is conduct engaged in “maliciously and sadistically for the very purpose of causing harm.”

Why Different Constitutional States of Mind?

At the most superficial level, the Court engaged in constitutional interpretation when it ruled that equal protection requires purposeful discrimination, that due process requires at least deliberate indifference and that the Eighth Amendment requires at least deliberate indifference in the sense of subjective criminal recklessness. In reality, there is considerably more going on.

First, these state of mind requirements are fault or culpability requirements. The particular constitutional provision implicated in a section 1983 case, which includes its state of mind requirement, constitutes the constitutional norm applicable to the defendant’s conduct. Without fault, there can be no section 1983 cause of action.

Second, these state of mind requirements can serve functions other than setting out the applicable fault or constitutional norm. Notice how the scope of  section 1983 liability decreases the higher or more culpable the applicable state of mind requirement. Proving  purpose to do harm in a high speed police pursuit case, for example, is much more difficult for plaintiffs than proving deliberate indifference. In this way, the need to compensate for harm caused is reduced .

Perhaps more important, higher state of mind requirements reduce what the Supreme Court increasingly views as the improper chilling effect of potential damages liability on independent decision-making by government officials. Put differently, the Supreme Court is increasingly concerned with over-deterrence.

While this concern with over-deterrence is most obvious in the individual immunities context, it plays a major role in determining applicable constitutional states of mind and is therefore frequently determinative of the scope of the section 1983 cause of action as well.