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Suing for a Civil Rights Violation - Module 5 of 5

Module V- Suing for a Civil Rights Violation


Protests rocked the college town of Charlottesville, Virginia in August, 2017. The city found itself thrust uncomfortably into the national spotlight as a white nationalist rally and a counter protest took place in a Charlottesville city park, Emancipation Park.


White nationalists had long planned a demonstration, called “Unite the Right”, over the city’s decision to remove a statue of Robert E. Lee.[1] As the date of the planned rally approached, the City revoked a permit for the rally to take place. In its place, the City offered rally organizers a permit that would have allowed the planned protest at another park.


Jason Kessler, the white nationalist rally organizer, sued the City over its revocation of the Emancipation Park permit under Title 42 of the United States Code, Section 1983. The day before the scheduled rally, a federal judge issued an order prohibiting the City from revoking the original permit, and the protest went ahead as scheduled.[2] During the protest, at least 34 people were injured, and one lost her life.[3]


When a state deprives a person of rights guaranteed by the Constitution or by federal law, or threatens to do so, Section 1983 provides the ability to sue for damages, an injunction and other relief.[4] In this module, we will examine how Section 1983 actions are made, the elements a plaintiff must establish and the potential remedies a court may award. We’ll also learn about the federal “counterpart” to Section 1983 claims, Bivens actions, and finally, we’ll discuss the role of state law on the vindication of civil rights.


Section 1983 Actions


Section 1983 provides that any person who “under color of” state law subjects any person “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.”[5]


Professor Myriam E. Gilles refers to Section 1983 as a law “intended to combat the widespread practices of local officials”[6] and the Supreme Court has described it as a law that should prevent “abuses of power by those acting under color of state law.[7]          


Very little Section 1983 litigation occurred until the 1961 Supreme Court decision, Monroe v. Pape.[8] There, 13 Chicago police officers broke into the petitioner’s home without a warrant and made him and his family stand naked in the living room while they ransacked every other room. Soon after, Monroe was taken to the police station where he wasn’t permitted to call his family or attorney until he was eventually released without charges.[9]


He sued the officers, alleging a warrantless search that violated his constitutional rights. The Court held that Monroe’s lawsuit against the Chicago police detectives and other state officers could move forward so long as they were acting under color of law when they violated his constitutional rights, even though no state law authorized the officers’ actions.


Section 1983 is not itself a source of substantive rights.[10] It provides a person with a method for vindicating existing constitutional or federal rights, such as the rights to free speech, to be free from a warrantless search or to bear arms. Section 1983 creates a vehicle for enforcing these existing rights.[11] State and local government officials who deprive people of constitutional rights may be held personally liable under Section 1983 for damages caused by their illegal conduct.[12]


Elements of a Civil Rights Action


A Section 1983 lawsuit consists of two elements that a plaintiff must prove by a preponderance of the evidence. First, he must prove a violation of a right secured by the Constitution or laws of the United States.[13] Let’s return to our example involving Kessler and the city of Charlottesville. Kessler argued that the city’s revocation of the permit to protest violated his constitutional rights to freedom of speech, of assembly and petition guaranteed to him under the First and Fourteenth Amendments.


While there are thousands of federal laws, and while many of those laws impose obligations or duties on state governments, not every federal statute creates a “right” that can be vindicated via a Section 1983 claim. For a federal statute to be enforceable under Section 1983, a plaintiff must assert the violation of a right, not merely a violation of federal law. How can someone know whether she has been deprived of a “right” “created” by a federal statute?


The Supreme Court has established a three-factor test when considering whether a federal statute grants a claimant an enforceable right.[14] First, when examining the text of the statute, it must be clear that Congress intended that the provision in question benefit the claimant. Second, the claimant must show that the right protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Finally, the statute must unambiguously impose a binding obligation on the states.


Another necessary element for a 1983 action is that the violation must have been committed by a person acting under the color of state law.[15] The Supreme Court has found that “state employment is generally sufficient to render the defendant a state actor.”[16] Thus, if a state employee was acting in his employment capacity, the person is acting under the color of state law.


However, even private people can be said to be acting “under color” of state law, which is a fact-specific determination and depend on the ties between the person and the action to state law and officials.[17] Factors relevant to determining whether a private person’s actions are under color of state law include whether the government accepted benefits from the unconstitutional behavior, whether the party acted with the help of state officials and whether the state or state officials provided encouragement for the party to act.


In Benn v. Universal Health System, the plaintiff was involuntarily committed to a psychiatric facility in Pennsylvania for an emergency examination after exhibiting suicidal thoughts. Upon arrival at the facility, he was put into an isolated waiting room. After his release, Benn brought federal and state claims against the doctors involved in his commitment, asserting claims under Section 1983 for alleged violations of his due process rights.[18]


The court dismissed the lawsuit, finding that the psychiatrists did not act under the color of state law. The court found that, though the psychiatrists were licensed by Pennsylvania, they did not operate as "willful participants” in joint activity with Pennsylvania or its agents. Second, the psychiatrists were employed by a private mental health facility and weren’t controlled by an agency of the state. Finally, there was no “entwinement” between what the psychiatrists did and the state. Instead, they were private actors who’s only association with the state was that Pennsylvania licensed them. As such, Benn’s Section 1983 claim couldn’t move forward.[19]


Section 1983 Remedies


There are several remedies available to an aggrieved party who prevails on a Section 1983 claim. First, he can be awarded damages, including compensatory damages such as actual losses and out-of-pocket costs sustained.[20] However, the Supreme Court has held that no compensatory damages can be awarded for violation of a constitutional right “absent proof of actual injury.”[21]


Second, a plaintiff can seek injunctive relief to stop the state actor’s activities if he can demonstrate irreparable injury that isn’t merely speculative.[22] An injunction is an “extraordinary remed[y] involving the exercise of very far-reaching power” and is “granted only sparingly and in limited circumstances.”[23] Injunctive relief is the remedy the court awarded to Kessler after he filed a Section 1983 claim disputing the revocation of his protest permit. The court enjoined the city of Charlottesville from revoking the white nationalist group’s permit to protest at the city park.


Bivens Actions


Section 1983 creates a cause of action that a claimant may bring against a person acting under color of state law. When a federal official inflicts a loss of federal rights on a claimant, Section 1983 does not provide the claimant an avenue for vindicating the loss of rights.


Instead, the federal counterpart of a civil rights action brought under Section 1983 is known as a Bivens action,[24] named after the lawsuit Bivens v. Six Unknown Federal Narcotics Agents.[25] There, the Supreme Court found it inherently unfair that someone whose constitutional rights were violated could be deprived of redress simply by virtue of the fact that the wrongdoer was a federal rather than state official.[26]


To prevail on a Bivens claim, a claimant must prove two elements. First, the claimant must prove that she had a constitutionally-protected right at stake. Second, she must prove that a federal official or someone acting on behalf of the federal government violated that right.


Bivens actions, however, are subject to the potential defense of sovereign immunity, a principal that sovereign nations cannot be sued without their consent.[27] There are two types of immunity: absolute and qualified. Absolute immunity is granted to judges, prosecutors, legislators, and many members of the executive branch who act within the scope of their duties. For example, individual Congressmen cannot be sued personally for passing “bad” laws. By the same token, people cannot sue the President personally for failing to enforce federal law through the Department of Justice.


Qualified immunity applies to federal officials and protects them from liability for civil rights violations committed during the exercise of their discretionary duties.[28] Discretionary duties are those where the federal official is exercising his own judgment in the performance of his duties. Qualified immunity generally protects people if they acted in good faith even if the result of the action was to deny someone of her rights.


The Supreme Court has limited the availability of Bivens actions to a narrow range of cases. It has found that they’re not appropriate if there are reasons to disallow such suits, especially in the absence of clear intent by Congress to establish a federal remedy. Bivens actions are also unavailable where Congress has provided an alternative remedy as a substitute for recovery and the other remedy is effective to protect the rights at issue.[29]


State Law and Civil Rights


Many states have also addressed discrimination and civil rights, often extending the protections further than does federal law. California, for example, has established a vigorous state law framework for the vindication of state law-based civil rights.


The California Unruh Civil Rights Act provides:[30]


All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.


The law applies to all businesses such as hotels, restaurants, hospitals, and retail establishments.


Some states that have not adopted laws like California’s provide alternative approaches to vindicating civil rights. One common method used by state courts is to refer to the provisions of state constitutions to vindicate rights that have not yet been recognized by federal courts or to recognize rights that federal courts have refused to recognize.

The late Supreme Court Justice, William Brennan, published his view on the important role of state courts and state constitutions in securing individual liberties. He wrote:[31]

State courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretations of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law-for without it, the full realization of our liberties cannot be guaranteed.


Justice Brennan’s view found support among judges of state appellate and supreme courts. In one case, the Minnesota Supreme Court explained, “The states may, as the United States Supreme Court has often recognized, afford their citizens greater protection than the safeguards guaranteed in the Federal Constitution. Indeed, the states are 'independently’ responsible for safeguarding the rights of their citizens.”[32]


The quest by same sex couples for marriage equality illustrates this role of state courts and state constitutions. In Bowers v. Hardwick, the Supreme Court held that a Georgia state law criminalizing sodomy did not violate any fundamental right under the Constitution.[33] It was 17 years before the Supreme Court reversed this decision and held that a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause.[34] It was another 12 years until the Supreme Court recognized a constitutional right to same-sex marriages.[35]


In that interim, equality advocates pursued relief in state courts, seeking state court interpretations of these rights under state constitutions, thus eliminating the risk of federal court interference. While these efforts were met with mixed results, they resulted in same-sex marriage being recognized in 37 states before the Obergefell decision crystalized it nationwide.[36]


In another example, abortion advocates have sought to vindicate the right to abortion under state constitutional laws. In Iowa, for example, a 2018 state Supreme Court decision invalidated mandatory 72-hour waiting periods for abortion under a state law.[37] It is improbable that this waiting period would have been invalidated under the federal Constitution.[38]


 These cases, along with many criminal procedural rights cases, are being argued and decided under reinvigorated state constitutions and securing rights under state constitutions in a manner that eludes the possibility of reversal by federal courts.


            This concludes our program on civil rights law. Constitutional guarantees and laws enacted in the last half century have had a profound impact on our society and the progress made towards limiting discrimination. Thank you for your participation and we encourage you to take advantage of our other course offerings.


[1] Sheryl G. Stolberg & Brian M. Rosenthal, “Man Charged After White Nationalist Rally in Charlottesville Ends in Deadly Violence,” N.Y. Times, (Aug. 12, 2017), https://www.nytimes.com/2017/08/12/us/charlottesville-protest-white-nationalist.html.

[2] Opinion, Kessler v. City of Charlottesville, No. 3:17CV00056, (Aug. 11, 2017), http://www.vawd.uscourts.gov/OPINIONS/CONRAD/kesslercitycharlottesvilleopor.pdf.

[3] Sheryl G. Stolberg & Brian M. Rosenthal, “Man Charged After White Nationalist Rally in Charlottesville Ends in Deadly Violence,” N.Y. Times, (Aug. 12, 2017), https://www.nytimes.com/2017/08/12/us/charlottesville-protest-white-nationalist.html.

[4] Edward S. Harmening & Craig M. Sandberg, “Litigating Damages and Attorney Fees in Section 1983 Litigation: Capitalizing on the Law,” American Bar Association (Spring 2006), https://www.sandberglaw.com/wp-content/uploads/sites/49/2014/01/sandberg-spring2006.pdf.

[7] Robertson v. Wegmann, 436 U.S. 584, 591 (1978).

[8] Brad Reid, “A Legal Overview of Section 1983 Civil Rights Litigation,” Huffington Post, (Apr. 14, 2017), https://www.huffingtonpost.com/entry/a-legal-overview-of-section-1983-civil-rights-litigation_us_58f0e17ee4b048372700d793.

[9] Monroe v. Pape, 365 U.S. 167, 169 (1961).

[10] Albright v Oliver, 510 U.S. 266, 271 (1994).

[11] Robert P. Capistrano, “5.1.A Express Causes of Action, Section 1983, Elements of the Claim,” Federal Practice Manual for Legal Aid Attorneys, http://federalpracticemanual.org/chapter5/section1a (last visited Aug. 22, 2018).

[13] Id. at 560.

[14] Blessing v. Freestone, 520 U.S. 329, 340-41 (1997).

[15] West v. Atkins, 487 U.S. 42, 48 (1988).

[16] Lugarv. Edmondson Oil Co., Inc., 457 U.S. 922, 935 n.18 (1982).

[17] Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).

[18] Benn v. Universal Health Sys., 371 F.3d 165, 167-68 (3d Cir. 2003).

[19] Id. at 171-73.

[20] Borunda v. Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988).

[21] Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986).

[22] Kent Brintall, “Section 1983 Outline,” U.S. Ct. App. for the Ninth Cir., (2002), http://cdn.ca9.uscourts.gov/datastore/uploads/guides/Section_1983_Outline_2012.pdf.

[23] MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001).

[24] “Bivens Actions,” EricJohnson.com,http://www.eejlaw.com/courses/torts_1011/Torts_one-sheet_Bivens_actions.pdf (last visited Aug. 22, 2018).

[26] Id. at 389; Perry M. Rosen, “The Bivens Constitutional Tort: An Unfulfilled Promise,” 67 N.C.L. Rev. 337, 338 (1989).

[27] Edward Richards, “Constitutional Torts – Bivens Actions,” LSU Law Center, https://biotech.law.lsu.edu/map/ConstitutionalTorts-BivensActions.html (last visited Aug. 22, 2018).

[28] John D. Kirby, Qualified Immunity for Civil Rights Violations: Refining the Standard,” 85 Cornell L. Rev. 461, 469 (2000).

[29]Bivens Actions -- United States Supreme Court Cases,” 22 A.L.R. Fed. 2d 159.

[30] Cal. Civ. Code § 51-52.

[31] William J. Brennan, Jr., “State Constitutions and the Protections of Individual Rights,” 90 Harv. L. Rev. 489, 491 (1977).

[32] O'Connor v. Johnson, 287 N.W.2d 400, 405 (Minn. 1979).

[33] Bowers v. Hardwick, 478 U.S. 186, 189-91 (1986).

[34] Lawrence v. Texas, 539 U.S. 558, 578 (2003).

[35] Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).

[36]State Same-Sex Marriage State Laws Map,” Governing,http://www.governing.com/gov-data/same-sex-marriage-civil-unions-doma-laws-by-state.html (last visited Aug. 22, 2018).

[37] Planned Parenthood of the Heartland v. Reynolds, et. al., No. 17-1579 at *67 (Iowa June 29, 2018).