Nahmod Law

In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.

Below is the third of these posts. I hope you find it to be informative. The next post in this series will deal with cause-in-fact and the Mt. Healthy burden-shift

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 from my previous post 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 was 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 this kind of 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 (about which I have posted a great deal on this blog), 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.

In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.

Below is the second of these posts. I hope you find it to be informative. The next post in this series will deal with the important but somewhat confusing topic of constitutional states of mind.

The Seminal Decision: Monroe v. Pape, 365 U.S. 167 (1961)

This sixty-three year old decision is where section 1983, enacted long ago in 1871, first had life breathed into it. The themes it announced continue to be important to this day.

Monroe involved a plaintiff’s allegations that police officers entered his home without warning and forced the occupants to stand naked while the entire house was ransacked. The plaintiff was thereafter arrested but released without being charged. According to the plaintiff, the police officers violated his Fourth (and Fourteenth) Amendment rights and were personally liable to him for damages under section 1983.

In response, the officers made three arguments, all of which the Court rejected.

The First Defense Argument: “Chutzpa” and Color of Law

The officers’ first argument was one that I have elsewhere characterized as “chutzpa” (meaning “lots of nerve”). Focusing on section 1983’s color of law requirement, they maintained that they did not act under color of law because they allegedly violated the Illinois constitution and much statutory and common law. In their view, section 1983 defendants could only be liable for federal constitutional violations where they acted in a manner consistent with state law. For this reason, the officers did not act under color of law and were not liable for damages under section 1983.

The Court, in an opinion by Justice Douglas, responded by saying that section 1983’s statutory color of law requirement was essentially the same as the Fourteenth Amendment’s state action requirement: once there was state action, there was color of law. (Justice Frankfurter dissented on this issue). And since in this case it was clear that the plaintiff alleged an abuse of state law and power that violated the plaintiff’s Fourth Amendment rights, state action was present. It followed from this that the plaintiff properly alleged acts under color of law. To put it another way, the Court said that the scope of section 1983 was as broad as the scope of the Fourteenth Amendment.

This turned out to be very significant as the scope of the Fourteenth Amendment expanded, by the process of incorporation, to include most of the provisions of the Bill of Rights.

The Second Defense Argument: State of Mind and Specific Intent

The officers next argued that they were not liable under section 1983 because the plaintiff did not allege that they specifically and knowingly intended to violate his Fourth Amendment rights. Disagreeing, the Court interpreted section 1983 against what it called the “background of tort liability” under which a person is responsible for the natural consequences of his or her conduct. Specific intent was not required as a matter of section 1983 statutory interpretation.

Note, though, that different constitutional violations have their own required states of mind (the subject of the next post in this series). For example, equal protection violations require purposeful discrimination, Washington v. Davis, 426 U.S. 229 (1976), and Eighth Amendment violations require at least deliberate indifference, Farmer v. Brennan, 511 U.S. 825 (1994). But these examples are matters of constitutional interpretation, not section 1983 interpretation.

The Third Defense: Exhaustion of State Remedies

Finally, the officers made an express federalism argument, namely, that every section 1983 plaintiff first had to go to state court and seek whatever judicial remedies were available under state law. Only then was he or she permitted to sue under section 1983 in federal court. Again disagreeing, the Court emphasized that the federal section 1983 remedy was supplementary to any available state remedies and, consequently, a section 1983 plaintiff need not first exhaust his or her judicial remedies.

This no-exhaustion rule, a matter of section 1983 statutory interpretation, was thereafter extended to include administrative remedies in Patsy v. Florida Bd. of Regents, 457 U.S. 496 (1982). However, in many prisoner litigation cases, there is now an exhaustion of administrative remedies requirement. See 42 U.S.C. § 1997e, as amended by the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, Title VIII, 110 Stat. 1321-66 (1996).

Observations

Federalism was implicated not only in the exhaustion argument of the officers but in their color of law argument as well. Had the scope of section 1983 been limited in conformity with these arguments, plaintiffs would have to resort to state court, not federal court, and seek redress under available state remedies. Not surprisingly, federalism concerns continue to drive much of section 1983 jurisprudence. After all, section 1983 is a federal statute enforced by federal courts against state and local governments and their officials and employees.

Additionally, the “background of tort liability” approach to section 1983 was to become quite significant in connection with the immunities of state and local government employees and officials sued personally for damages under section 1983. In general, tort law concepts play an important, even if not necesarily dispositive, role in interpreting the statute. This approach, based on the common law of torts in 1871, is broadly consistent with the current’s Court’s originalist approach to statutory interpretation.