Nahmod Law

Bill of Attainder Violations and Section 1983

By its terms, section 1983 creates damages and prospective relief remedies for deprivations by state and local government officials, and by local governments themselves, of rights, privileges and immunities secured by the Constitution and laws. But what constitutional violations are covered?

It might be thought that, inasmuch as section 1983 was enacted in 1871 by Congress under its Fourteenth Amendment section 5 powers, only violations of the Fourteenth Amendment (equal protection and due process) and incorporated provisions (the First, Second, Fourth, Fifth, Sixth and Eighth Amendments) of the Bill of Rights are covered. However, that turns out not to be the case.

Violations of Article I, §10, prohibiting Bills of Attainder, may also be actionable. See Zilich v. Longo, 34 F.3d 359 (6th Cir. 1994), where the plaintiff, a former city council member, sued a mayor and other officials under section 1983, alleging that a city council resolution denouncing him was, among other things, a Bill of Attainder prohibited by Article I, §10 of the Constitution. After canvassing Supreme Court case law which set out the three elements of a Bill of Attainder–specificity, punishment and lack of a judicial trial–the Sixth Circuit found that the element of punishment was missing. All the ordinance did was authorize the law director of the city to go to court to seek recovery of amounts considered illegally obtained by the plaintiff. There was no confiscation of plaintiff’s property. The fact that the resolution criticized the plaintiff by name and accused him of improper behavior was not sufficient. “Plaintiff has not cited, and our research has not disclosed, a single case in which a court has held that judging a member’s qualifications constitutes a bill of attainder.” 34 F.3d at 362. The court thus reversed the district court’s denial of summary judgment to the defendants on this issue.

Compare, though, Reynolds v. Quiros, 990 F.3d 286 (2nd Cir. 2021), where the plaintiff state prisoner, who was serving a life sentence for murder, sought prospective relief under section 1983 against corrections officials. He alleged, among other claims, that they violated Article I, §10 through his placement in a special circumstances unit pursuant to a Connecticut statute governing his conditions of confinement that was enacted after his offense, trial and conviction. The Second Circuit did not expressly address the question whether Bill of Attainder violations are actionable under section 1983 but assumed that they were and went on to affirm the district court’s grant of prospective relief. It found that the defendants’ challenged conduct per the Connecticut statute satisfied the requirements of an unconstitutional Bill of Attainder: specification of the affected persons, punishment and the lack of a judicial trial.


Not only may Bill of Attainder violations be actionable under section 1983, but so too may violations of the Ex Post Facto Clause and the Contracts Clause. See Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 sec. 3:3 (2022-23 Edition)(West/Westlaw).

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

October 13, 2022 at 9:37 am

Posted in Uncategorized

%d bloggers like this: