Maine Bar Journal
July 1994
FOR EVERY RIGHT THERE IS A REMEDY:
CIVIL RIGHTS LITIGATION
PURSUANT TO 42 U.S.C. § 1983
By Brett D. Baber, Esquire
The headlines tell us that attorneys must understand the basis for the
position of civil rights liability: a motorist is severely beaten by police
during an arrest; a homeowner is shot by police responding to a
complaint; a government official is fired for comments to a
newspaper critical of a municipality. The most commonly used
statute for the enforcement of civil rights is 42 U.S.C. § 1983.
Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof 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, suit in equity, or other proper proceeding for redress. . . .
By its terms, Section 1983 provides a cause of action for anyone
who has suffered from a violation of one's constitutional rights at the
hands of a "person" who was acting under "color of law." Section
1983 has broad application to a wise variety of constitutional
violations including, for example, suppression of free speech,
unlawful searches and seizures (arrests), claims of cruel and unusual
punishment, and the denial of due process or equal protection under
the law.
Despite the direct language of Section 1983, there has been an
explosion of case law, both state and federal, interpreting the statute
as more practitioners assert civil rights claims on behalf of their
clients. Every significant phrase in the section has been interpreted
extensively. To complicate matters, the courts have adapted
common law principles to augment the basic tenets of Section 1983.
As a result, a dense thicket of underbrush must be explored before
the essence of Section 1983 may be fully understood.
This article will discuss the essential elements of a Section 1983
action. Attention will also be given to the various defenses that are
unique to Section 1983 litigation. Emphasis will be given to the
absolute and qualified immunities available to distinct categories of
defendants.
A. The Elements of a Section 1983 Action
1. "Every Person"
a. Municipal entities and county governments
Before Monell v. Department of Social Services of the City of
New York,(1) claims could not be asserted against municipal
governments, counties or states which were not considered to be
"persons" within the meaning of Section 1983.(2) Monetary claims
against state governments were also precluded by the Eleventh
Amendment to the United States Constitution.(3)
In Monell, the Supreme Court overruled Monroe v. Page,(4)
which had held that municipalities were not "persons" subject to
Section 1983 liability. Monell involved a suit by female employees
of a school department which required pregnant employees to take
a paid leave of absence before leave was medically necessary. The
Supreme Court granted certiorari to consider "[w]hether local
governmental officials and/or local independent school boards are
'persons' within the meaning of 42 U.S.C. § 1983. . . ."(5)
As is its practice in many Section 1983 cases, the Supreme Court
undertook an extensive analysis of the legislative history of the
statute. The Court's analysis of this history "compels the conclusion
that Congress did intend municipalities and other local government
units to be included among those persons to whom § 1983
applies."(6) Following Monell, local entities could be subject to
claims for monetary damages, and declaratory or injunctive relief
under Section 1983.(7)
Although Monell is notable for its recognition that local governments
could be held liable under Section 1983, its lasting legacy is its
prohibition of vicarious liability. The Court did not find sufficient
language in the statute "to impose liability vicariously on governing
bodies solely on the basis of the existence of an
employer--employee relationship with a tortfeasor.(8) The Court
concluded that
a local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents. Instead, it is when
execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an
entity is responsible under § 1983.(9)
What the Supreme Court gave with one hand, it took away with the
other. Following Monell, the doctrinal limitation on local
governmental entity liability is whether there is a governmental policy
or custom that caused a constitutional deprivation. Now, when a
local entity is sued, the plaintiff must establish that a municipal policy
or custom was the "moving force" behind a constitutional violation.
Claims against a municipality based merely on a constitutional
violation by an employee will fail.(10)
From the defense perspective, a motion for summary judgment
should succeed if there are no policies or customs that are directly
implicated.(11) For example, a city will not be held liable if a
particular officer uses excessive force in making an arrest unless the
city's own policies or customs permitted or condoned the use of
excessive force.
Unconstitutional policies or customs may be found in a governmental
entity's hiring, training or supervisory practices. In City of Canton
v. Harris,(12) the Supreme Court articulated the standard for liability
based on a claim that a municipality failed to properly hire or train its
employees. Where the policies of a municipality are facially
constitutional, inadequate training may serve as the basis for Section
1983 liability "only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the [municipal
officers] come into contact."(13) In other words, the plaintiff must
establish that the municipality made a deliberate or conscious choice
which establishes a "policy."(14) The Court reasoned:
It may seem contrary to common sense to assert that a municipality
will actually have a policy of not taking reasonable steps to train its
employees. But it may happen that in light of the duties assigned to
specific officers or employees the need for more or different training
is so obvious, and the inadequacy so likely to result in the violation
of constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the
need.(15)
The court also made it clear that liability cannot be imposed merely
because an officer violated a plaintiff's constitutional rights: "That a
particular officer may be unsatisfactorily trained will not alone suffice
to fasten liability on [a] city . . . ."(16) "Neither will it suffice to prove
that an injury or accident could have been avoided if an officer had
had better or more training, sufficient to equip him to avoid the
particular injury-causing conduct."(17)
The Supreme Court has imposed a stringent test for causation.
Before liability may be imposed, the alleged municipal policy must
be "the moving force of the constitutional violation."(18) The
Supreme Court requires that "there must be an affirmative link
between the policy and the particular constitutional violation
alleged."(19) As one decision explained:
Proof of a single incident of unconstitutional activity is not sufficient
to impose liability under Monell, unless proof of the incident
includes proof that it was caused by an existing, unconstitutional
municipal policy, which policy can be attributed to a municipal
policymaker. . . . But where the policy relied upon is not itself
unconstitutional, considerably more proof than the single incident will
be necessary in every case to establish both the requisite fault on the
part of the municipality, and the causal connection between the
"policy" and the constitutional deprivation.(20)
Before reflexively asserting a Section 1983 claim against a local
entity, plaintiff's counsel should be prepared to establish the
applicable policies and customs raised in a particular case. Policy
and training manuals should be obtained during discovery. Experts
should be consulted to determine whether a policy or custom is
implicated by the actions of a particular officer. Case law from
Maine and elsewhere may also provide some insight on whether
there is a basis for municipal liability in a particular instance. For
example, the use of choke holds and various training techniques
have been extensively litigated. Failure to plead and have some
basic proof of a policy or custom before a complaint is filed will
invite a motion for summary judgment ion the issue of entity liability.
b. Federal and State Government
Federal and state governments and agencies, and their officials in
their official capacities, are not "persons" subject to suit under 42
U.S.C. § 1983.(21) In Will v. Michigan Dept. of State Police,(22)
the Supreme Court relied on the express language of Section 1983
and the congressional intent in passing the legislation to hold that a
State was not a "person" within the meaning of Section 1983.(23)
The Court specifically held that suits against state officials in their
official capacities were barred because the suit was not against the
individual, but was instead a suit against the official's office.(24)
However, federal and state officials may still be sued in their
individual capacities.(25)
2. "Under Color of State Law"
The question of which individuals may be sued for a constitutional
violation is raised by the Section 1983 requirement that the person
must have acted "under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . ."(26) Ordinarily, this question is
not difficult to resolve. If the potential defendant was acting in a
capacity as a state or local government official at the time of the
offending conduct, the "color of state law" requirement is satisfied.
A more problematic situation arises when a private citizen violates
the constitutional rights of another. It is not enough to impose liability
on a person who does not work in government that the person
violated the constitutional rights of another.(27) For example, in
Tauver v. Bar Harbor Congregation of the Jehovah's
Witnesses, Inc.,(28) the United States District Court for the District
of Maine dismissed a claim by "disfellowshipped" members of a
particular church against a local church congregation and its elders
for failure to satisfy the "color of state law" requirement. The court
recognized that private individuals may only be held liable under
Section 1983 if they "conspire with or are otherwise willful
participants in joint activity with the state or its agents.(29) Tauver
illustrates that merely calling the police for assistance will not satisfy
the "color of state law" requirement.(30) To satisfy this element, the
plaintiff must plead and offer material facts to demonstrate the
relationship or nature of the cooperation between government
officials and private individuals. If the private individuals could exert
unique pressure or influence on government officials or the officers
participated in every step of the actions taken by the individuals, the
individuals could be exposed to potential liability.(31)
There is a distinct advantage to a plaintiff who can overcome the
limitations on the liability of private individuals under Section 1983.
Private individuals, unlike their governmental counterparts, are not
entitled to immunity. As outlined later in this article, governmental
officials may be entitled to either a dismissal of the Section 1983 suit
or summary judgment if they are within a class of officials entitled to
some form of immunity. In contrast, a private individual who
conspires with an official who is entitled to immunity will not be able
to assert the official's immunity as her own.(32) Thus, a lawsuit may
progress against the private conspirators even if the claims against
the governmental conspirators are dismissed. For these reasons,
plaintiff's counsel should evaluate whether there may be viable
claims against private individuals who have acted in concert with
governmental officials to deprive the plaintiff of her constitutional
rights.
3. "Deprivation of Any Rights"
The heart of a Section 1983 case is the redress of a constitutional
deprivation. Section 1983 was not intended to provide a federal
cause of action for common law torts.(33) "Section 1983 'is not itself
a source of substantive rights,' but merely provides 'a method for
vindicating federal rights elsewhere conferred.'"(34) Unless a plaintiff
has alleged and proved a violation of constitutional rights, no relief
will be available under Section 1983.
This article does not discuss substantive constitutional law; each
protection guaranteed by the Bill of Rights has its own body of law.
What the practitioner should understand for purposes of evaluating a
Section 1983 claim is that each guaranty has its own elements of
proof. The proof necessary to sustain a First Amendment Claim is
much different from the proof necessary to sustain a Fourth
Amendment search and seizure claim or a Fourteenth Amendment
due process violation. Even within the confines of a particular
amendment, the elements of proof may differ. For example, a
different standard is applied to substantive due process claims from
the standard applied to procedural due process claims. Thus, a
proper inquiry under Section 1983 requires the identification and
analysis of the particular constitutional right at issue.(35)
Section 1983 does not have a separate mens rea requirement.(36)
The requisite mental state is defined by the constitutional protection
at issue. While mere negligence is insufficient to establish a due
process violation,(37) a violation of an objective reasonableness
standard may give rise to liability for an illegal search or seizure.(38)
Even certain identical types of governmental action may require a
different analysis depending on the circumstances of the alleged
violation. For example, all excessive force claims are not analyzed
under one particular set of constitutional principals.(39) Different
constitutional rights are implicated when the force is used against a
criminal suspect from instances when the force is used against a
prisoner.(40) Accordingly, counsel must be prepared to prove the
mental state required under the particular constitutional right at issue.
4. "The Party Injured"
For the most part, common law principals of causation and damages
are generally applicable in Section 1983 litigation.(41) In contrast to
the mens rea requirement, the same basic tests for causation and
damages are applied to the various constitutional rights that may be
implicated in a Section 1983 action.(42) While the elements to prove
a constitutional violation may vary depending on the constitutional
interests to be protected, the Supreme Court has declined to
distinguish between substantive rights and procedural rights in the
context of causation and damages.(43) However, given the unique
context of constitutional litigation, the Supreme Court has imposed
certain limitations on causation and damages which are either not
clearly articulated or for which there is no need for similar
restrictions at common law.
With respect to causation, a plaintiff is initially required to prove that
his rights were constitutionally protected and that the defendant's
actions were a "substantial factor" in depriving the plaintiff of his
constitutional rights.(44) The "substantial factor" test is virtually
identical to the common law test of causation.(45) There may be
instances, however, when a defendant may have violated the
plaintiff's constitutional rights by taking a particular action, although
the defendant could have taken the same action, based on different
justifications, without violating the plaintiff's rights. In these so-called
"mixed motive" cases, the Supreme Court has permitted the
defendant to establish that it would have taken the same action
against a plaintiff for constitutional reasons notwithstanding plaintiff's
ability to demonstrate that an unconstitutional reason was a
"substantial factor" in the defendant's conduct.(46)
The Supreme Court established the principles of causation in a
mixed-motive case in Mt. Healthy City Bd. of Ed. v. Doyle.(47) In
Mt. Healthy, the board of education dismissed a teacher, in part,
because the teacher had forwarded a school dress code
memorandum to a local radio station. However, the school board
informed the teacher of numerous other reasons for termination that
did not implicate his First Amendment rights. The district court
entered judgment in favor of the teacher, finding that the
unconstitutional basis for termination--the violation of plaintiff's First
Amendment rights--was a substantial factor in the termination, but
the court noted that the board had reasons independent of the
exercise of First Amendment rights for the termination.
On appeal, the Supreme Court reversed:
A rule of causation which focuses solely on whether protected
conduct played a part, "substantial" or otherwise, in a decision not
to rehire, could place an employee in a better position as a result of
the exercise of constitutionally protected conduct than he would
have occupied had he done nothing.(48)
To avoid creating a permanent shield when a defendant violates a
plaintiff's constitutional rights, the court articulated a burden-shifting
approach to causation. The initial burden is placed on the plaintiff to
show that a violation of his rights was a "substantial factor" or a
"motivating factor" in defendant's actions. The burden then shifts to
the defendant to demonstrate by a preponderance of the evidence
"that it would have reached the same decision. . . even in the
absence of the protected conduct."(49)
The Court's approach in evaluating damages also involves a careful
analysis of causation. The Court has emphasized that compensatory
damages are available under Section 1983 "for actions 'found . . . to
have been violative of . . . constitutional rights and to have caused
compensable injury . . . .'"(50) Damages will not be presumed to
flow from a constitutional deprivation and cannot be awarded in the
absence of proof of an actual injury.(51) The abstract value of
constitutional rights may not form the basis for Section 1983
damages.(52) Accordingly, the Supreme Court has held that a trial
court commits error by instructing a jury that it may award damages
based on the abstract "value" or "importance" of constitutional
rights.(53)
The Court's decision in Carey v. Piphus(54) demonstrates that a
plaintiff must prove that his damages were caused by a constitutional
violation. In Carey, two public school students were suspended
without a hearing after one was caught smoking marijuana and the
other wore an earring in violation of a dress code. Although the
district court found that the school officials violated the students'
procedural due process rights, plaintiffs did not introduce evidence
to establish that they suffered damaged from the due process
violations.
The Supreme Court granted certiorari "to consider whether, in an
action under § 1983 for the deprivation of procedural due process,
a plaintiff must prove that he actually was injured by the deprivation
before he may recover substantial 'non-punitive' damages.'"(55) After
examining the legislative history of Section 1983, the Court adopted
the common law principle of compensation as the basis for
damages. The Court refused to adopt a per se rule of damages
similar to the law of defamation because
it is not reasonable to assume that every departure from procedural
due process, no matter what the circumstances or how minor,
inherently is as likely to cause distress. . . .(56)
The Court also reasoned that
where a deprivation is justified but procedures are deficient,
whatever distress a person feels may be attributable to the justified
deprivation rather than to deficiencies in procedure.(57)
While damages for mental and emotional distress may be recovered
for a constitutional deprivation, the court held that "neither the
likelihood of such injury nor the difficulty of proving it is so great as
to justify awarding compensatory damages without proof that such
injury actually was caused."(58) Nominal damages are available in
those instances in which a constitutional violation is established but a
basis for compensatory damages has not been proven.(59)
Punitive damages are recoverable against the individuals who
caused a constitutional violation, but are not available against
governmental entities.(60) In City of Newport v. Fact Concerts,
Inc.,(61) the Supreme Court found that Congress did not intend to
override the common law immunity of municipalities from punitive
damages when it adopted Section 1983. The Court did not find any
reason to suggest that Congress sought to punish "innocent
taxpayers" or to bankrupt local governments by permitting "the
novel specter of punitive damages against municipalities."(62) The
Court reasoned that the public's interest in preventing repeated
constitutional deprivations was advanced by allowing the assessment
of such damages "in appropriate circumstances against the offending
official, based on his personal financial resources. . . ."(63) Thus, the
Court held that municipalities, and presumably counties and states as
well, are "immune from punitive damages under 42 U.S.C. §
1983."(64)
It was not until 1983 that the Supreme Court was asked to define
the circumstances under which punitive damages were appropriate.
In Smith v. Wade,(65) a juvenile prisoner was awarded
compensatory and punitive damages against a guard who placed
violent prisoners in a cell with the plaintiff who subsequently
assaulted the plaintiff. Previously, the plaintiff had placed himself
voluntarily in protective custody. The district court had instructed the
jury that punitive damages could be awarded if a defendant
displayed "a reckless or callous disregard of, or indifference to,
the rights or safety of others . . . ."(66) The guard appealed,
arguing that punitive damages could only be awarded if a defendant
acted with "actual malicious intent--'ill will, spite, or intent to
injure.'"(67)
With only five justices joining in the decision, the Supreme Court
disagreed with the guard and affirmed the district court. The Court
found that the majority of jurisdictions permitted an award of
punitive damages for conduct that did not amount to actual
malice.(68) It could not discern any policies or purposes of Section
1983 that required a departure from the common law majority
rule,(69) nor did it believe that a recklessness standard was too
vague to be fair or useful.(70) The Court further reasoned that
governmental officials should be guided by the substantive principals
of law, and not a higher standard for punitive damages, in
determining how to perform their jobs. Thus, the majority was
content to adopt the policy judgment of the common law--that
reckless or callous disregard for the plaintiff's rights, as well as
intentional violations of federal law, should be sufficient to trigger a
jury's consideration of the appropriateness of punitive damages.(71)
The Court also rejected the guard's argument that the threshold for
punitive damages should always be higher than the threshold for
compensatory damages.(72) Because an award of punitive damages
is discretionary, while an award of compensatory damages is
mandatory once a violation is established, the two types of damages
are not awarded on the same standard. The Court found that the
common law has never imposed a requirement that the standard for
punitive damages must always be higher than the standard for
compensatory damages.(73) Thus, where the standard for
compensatory damages is as high or higher than the standard for an
award of punitive damages, punitive damages may be awarded
upon the same standard of recklessness.(74)
The threshold for punitive damages in a Section 1983
action--recklessness--is lower than the common law standard in
Maine for punitive damages, where actual or implied malice is
required.(75) Thus, if constitutional rights are implicated in addition to
common law torts, the practitioner should assert a Section 1983
claim against the individual governmental defendants in addition to
any common law claims. For example, a claim of false
imprisonment, assault or malicious prosecution may rise to a Section
1983 claim if there are also constitutional violations--e.g., illegal
searches and seizures, excessive force. While Section 1983 claims
are not synonymous with their common law counterparts, the
broader availability of punitive damages in a Section 1983 case
provides a strong incentive to pursue such claims in appropriate
circumstances.
A further advantage to the plaintiff in a Section 1983 claim is the
availability of attorneys' fees. In contrast to common law, attorneys'
fees were authorized by Congress in 1976 when it amended 42
U.S.C. § 1988 to authorize the award of "reasonable attorney's
fees" to a prevailing party.(76) "The purpose of § 1988 is to ensure
'effective access to the judicial process' for persons with civil rights
grievances."(77)
Section 1988 does not define a "reasonable fee." The Supreme
Court has adopted a "lodestar approach" as its "centerpiece of
attorney's fee awards."(78) The Court has directed the lower court
to make an initial estimate of reasonable attorneys' fees by applying
prevailing billing rates to the hours reasonably expended on
successful claims.(79) The rate times hours calculation--the
lodestar--may then be adjusted by other factors, especially the
overall success of the plaintiff in the case.(80) The fee amount
specified in a contingent fee agreement is but one of these
factors.(81) The trial court is not limited to the contractual fee
agreement between a plaintiff and her lawyer. Thus, a contingent fee
agreement does not serve as either a floor or a ceiling for the award
of fees.(82)
Only a "prevailing party" is entitled to attorneys' fees. To be
considered a "prevailing party," the plaintiff "must be able to point to
a resolution of the dispute which changes the legal relationship
between itself and the defendant."(83) "The touchstone of the
prevailing party inquiry must be the material alteration of the legal
relationship of the parties. . . ."(84) Thus, "to qualify as a 'prevailing
party,' a civil rights plaintiff must obtain at least some relief on the
merits of his claim," which takes the form of an enforceable
judgment, settlement or consent decree.(85) In other words,
a plaintiff "prevails" when actual relief on the merits of his claim
materially alters the legal relationship between the parties by
modifying the defendant's behavior in a way that directly benefits the
plaintiff.(86)
In Farrar v. Hobby, the Supreme Court held that a plaintiff who
recovered only nominal damages in a Section 1983 case was a
"prevailing party."(87) The Court reasoned that "prevailing party"
status did not depend on the magnitude of the relief obtained.(88)
However, the Court went on to state that the "'technical' nature of a
nominal damages award" bears upon the propriety of an award of
fees under Section 1988.(89)
By examining the degree of success obtained by a plaintiff, the
Court in Farrar injected an additional criteria for attorney's fees
eligibility that is not expressly set forth in the attorney's fee statute.
As a result, plaintiff's counsel must seriously evaluate whether
compensatory damages will be awarded or whether a nominal
award is likely. Failure to conduct this analysis before taking a civil
rights case may result in a denial of attorney's fees after a substantial
monetary in vestment has been made, despite the plaintiff's success
in establishing a constitutional violation. As the Court held in Farrar,
"[i]n some circumstances, even a plaintiff who formally 'prevails'
under § 1988 should receive no attorney's fees at all.(90)
In contrast to a plaintiff who prevails, defendants are severely limited
as to when they may obtain attorney's fees under Section 1988.
Although the United States Supreme Court has yet to directly rule
on a defendant's claim for attorney's fees in a Section 1983 case,
the First Circuit has relied on the law developed in the context of
Title VII cases.(91) The First Circuit recognizes that a judge has
discretion to award attorney's fees pursuant to Section 1988 to a
prevailing defendant upon a finding that the plaintiff's action was
frivolous, unreasonable, or without foundation, even though the case
was not brought in subjective bad faith.(92) The mere fact that a
Section 1983 defendant prevails at trial will not be sufficient to
permit a recovery of attorneys' fees. Instead, the defendant must
demonstrate that the plaintiff's suit was frivolous or without merit.
B. Immunities Available Under Section 1983
There are three general categories of immunity that are potentially
available to defendants who have been sued pursuant to 42 U.S.C.
§ 1983: (1) the immunity provided to States under the Eleventh
Amendment to the United States Constitution;(93) (2) absolute
immunity; and (3) qualified immunity. Absolute immunity and
qualified immunity trace their origins to common law. In 1951, the
Supreme Court held that Congress did not intend that Section 1983
abrogate immunities "well grounded in history and reason."(94)
Although the Supreme Court has recognized the ongoing viability of
those immunities which were extant in 1871 when Section 1983 was
adopted, the Court has declined to expand the immunities
further.(95) Absolute and qualified immunities may only be asserted
by individuals; governmental entities cannot rely on these
immunities.(96)
If an immunity exists, the individual officer is immune from suit
whether or not the officer might otherwise be held liable.(97) The
existence of absolute immunity may be decided from the face of
plaintiff's complaint.(98) In contrast, whether or not an official is
entitled to qualified immunity is usually decided on a motion for
summary judgment.(99) To ensure that governmental officials are not
needlessly subjected to the time and expense of litigation, discovery
is initially limited to the issue of qualified immunity.(100) If the court
finds that qualified immunity exists, judgment is to be entered in
favor of the government officials. If, however, the court finds that the
official is not entitled to qualified or absolute immunity, an
interlocutory appeal may be taken to conclusively resolve the issue
of immunity.(101) Only after all immunities have been resolved
adversely to the officials, will a plaintiff be permitted to undertake
complete discovery and to proceed to trial on the merits.(102) Thus,
absolute or qualified immunity provides a strong first line of defense
for any government official who is sued in a Section 1983 and
creates a formidable barrier to plaintiff's success.
C. Qualified Immunity
The United States Supreme Court has recognized that most public
officials are entitled only to qualified immunity, not absolute
immunity.(103) As it suggests, "qualified immunity" is subject to
certain limitations or conditions which must be established before an
official is entitled to immunity. Qualified immunity shields an official
from suit for damages if a reasonable official could have believed
that his actions were lawful in light of clearly established law and the
information the official possessed.(104) Even officials who
"reasonably but mistakenly" take certain actions that prove to be
unconstitutional are entitled to immunity.(105) "The qualified immunity
standard 'gives ample room for mistaken judgments' by protecting
'all but the plainly incompetent or those who knowingly violate the
law.'"(106) "[W]hether an official protected by qualified immunity
may be held personally liable . . . generally turns on the 'objective
legal reasonableness' of the action, . . . assessed in light of the legal
rules that were 'clearly established' at the time it was taken."(107)
Thus, a Section 1983 claim will fail if the plaintiff is unable to
establish that the rights allegedly violated were "clearly established"
at the time of the alleged conduct. For example, the United States
District Court for the District of Maine held that a police officer was
entitled to qualified immunity where the officer removed his
nightstick and threatened the plaintiff with physical harm because the
mere threat of contact did not violate any clearly established
constitutional rights.(108)
D. Absolute Immunity
Only those officials who perform "special functions" are entitled to
absolute immunity.(109) The Supreme Court has been "quite sparing"
in recognizing absolute immunity for state officials.(110) The
defendant official has the burden to demonstrate she is entitled to
absolute immunity, as opposed to qualified immunity.(111) In
determining which officials are entitled to absolute immunity, the
Court has adopted a "functional approach" which examines "the
nature of the function performed, not the identity of the actor who
performed it."(112) Judges are entitled to absolute immunity for
conduct that is "intimately associated with the judicial phase of the
criminal process."(113) Similarly, prosecuting attorneys are entitled to
absolute immunity for conduct that is "intimately associated with the
judicial phase of the criminal process,"(114) but they are entitled to
qualified immunity for initiating a prosecution,(115) for participating in
a probable cause hearing, for eliciting false testimony at trial, and for
seeking a search warrant,(116) but the prosecutor receives only
qualified immunity for giving legal advice to police on evidentiary
issues, assisting in the manufacture of fraudulent evidence or
conducting investigations,(117) and for making false statements to the
press about an ongoing investigation.(118) Recently, absolute
immunity was afforded to the District Attorney for Penobscot
County who refused to prosecute cases filed by a police officer who
had been investigated for child abuse.(119)
Plaintiff's counsel should seriously evaluate questions of immunity
before filing suit. If officials who are ultimately entitled to immunity
are joined as defendants, the plaintiff may spend valuable time and
resources opposing dispositive motions with respect to immunity.
Until those motions are resolved, the plaintiff will be unable to
conduct discovery on the merits or to proceed to trial. Therefore,
plaintiff's counsel should not name as defendants any officials who
are clearly entitled to immunity, naming only those who are not
otherwise immune. Because local entities are not entitled to
immunity,(120) plaintiff's counsel should join those entities if
governmental policies have violated a plaintiff's rights.
From a defense perspective, counsel should assert all available
immunities as affirmative defenses. A motion to dismiss should be
filed immediately if any officials are entitled to absolute immunity.
Discovery on the merits should be resisted if there are officials
entitled to qualified immunity.(121) After discovery is completed on
the issue of qualified immunity, a motion for summary judgment
should be filed if the officials are entitled to qualified immunity.
Finally, an interlocutory appeal must be brought by the nonprevailing
party to obtain appellate review of rulings with respect to
immunity.(122)
CONCLUSION
Section 1983 provides the statutory authority to seek private relief
for the violation of constitutional rights by local and municipal entities
and all government officials. Litigation under Section 1983 is
predicated on the demonstration of a constitutional violation.
Common law principles of causation, damages and immunity pose
further difficulties for plaintiff's counsel seeking redress for their
clients. However, if Section 1983 is properly understood and
utilized, it provides a valuable mechanism to compensate those
persons who have genuinely suffered compensable injury to their
constitutional rights.
1. 1 436 U. S. 658 (1978).
2. 2 Monroe v. Page, 365 U.S. 651, 681 (1974) (Eleventh Amendment bars
federal court from awarding retroactive benefits).
3. 3 See, e.g., Edelman v. Jordan, 415 U.S. 651, 681 (1974) (Eleventh
Amendment bars federal court from awarding retroactive benefits).
4. 4 365 U.S. 167 (1961)
5. 5 436 U.S. at 662.
6. 6 Id. at 690 (emphasis in original).
7. 7 Id.
8. 8 Id. at 692.
9. 9 Id. at 694.
10. 10 City of Canton v. Harris, 489 U.S. 378, 388-89 (1989).
11. 11 See, e.g., Santiago v. Fenton, 891 F.2d 373, 381 (1st Cir. 1989).
12. 12 489 U.S. 378 (1989).
13. 13 Id. at 388.
14. 14 Id. at 389.
15. 15 Id. at 390.
16. 16 Id.
17. 17 Id. at 391.
18. 18 City of Oklahoma City v. Tuttle, 471 U.S. 808, 820 (1985).
19. 19 Id. at 823.
20. 20 Id. at 823-24.
21. 21 Will v. Michigan Dept. of State Police, 491 U.S. 58, 71
(1989)(concerning state agencies).
22. 22 Id.
23. 23 Id. at 64-69.
24. 24 Id. at 71.
25. 25 Hafer v. Melo, _____ U.S. ____, 112 S. Ct. 358 (1991); Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) (recognizing suit
against federal officers for violations of Fourth Amendment). Suits against
federal officials should be brought under the Federal Tort Claims Act instead
of Section 1983.
26. 26 42 U.S.C. § 1983.
27. 27 Dennis v. Sparks, 449 U.S. 24, 27-28 (1980).
28. 28 633 F. Supp. 741 (D. Me. 1985), aff'd, 787 F.2d 579 (1st Cir. 1986) cert.
denied 429 U.S. 1038 (1987).
29. 29 633 F. Supp. At 747.
30. 30 Id. at 747-48. See also Wagenmann v. Adams, 829 F.2d 196 (1st Cir.
1987).
31. 31 Wagenmann, 829 F.2d at 209.
32. 32 Dennis v. Sparks, 449 U.S. 24, 31-32 (1980).
33. 33 See, e.g., Graham v. Connor, 490 U.S. 386, 393-94 (1989).
34. 34 Id. (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
35. 35 See, e.g., Graham v. Connor, 490 U.S. 386, 394 (1989).
36. 36 Paratt v. Taylor, 451 U.S. 527 (1981), over-ruled in part, Daniels v.
Williams, 474 U.S. 327 (1986).
37. 37 Daniels v. Williams, 474 U.S. 327 (1986). It is unclear whether the rule in
Daniels applies generally to all due process claims. Daniels was decided in
the context of prisoner litigation, a context in which courts generally impose
higher standards to establish constitutional violations. Other cases from the
Supreme Court suggest that no mens rea requirement exists for deprivations
of procedural due process where the question is limited to whether sufficient
procedures were followed. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532 (1985). A "shock the conscience" test is applied for substantive due
process claims. See Rochin v. California, 342 U.S. 165 (1952).
38. 38 Brennan v. Hendrigan, 888 F.2d 189, 193 (1st Cir. 1989).
39. 39 Graham v. Connor, 490 U.S. 386 (1989).
40. 40 Contrast Graham v. Connor, 490 U.S. 386 with Hudson v. McMillan,
_____ U.S. _____, 112 S. Ct. 995 (1992).
41. 41 Carey v. Piphus, 435 U.S. 247, 257-58 (1978).
42. 42 See Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 309
(1986).
43. 43 Id. at 309. The Court emphasized that "whatever the constitutional
basis for § 1983 liability, such damages must always be designed 'to
compensate injuries caused by the [constitutional] deprivation.'" Id.
(emphasis in original)(quoting Carey, 435 U.S. at 265).
44. 44 Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977).
45. 45 Compare Mt. Healthy City Bd. of Ed., 429 U.S. at 287 with Wing v.
Morse, 300 A.2d 491, 495-96 (Me. 1973) (enunciating substantial factor test).
46. 46 Mt. Healthy City Bd. of Ed., 429 U.S. at 287.
47. 47 429 U.S. 274 (1977).
48. 48 Id. at 285.
49. 49 Id. at 287.
50. 50 Carey v. Piphus, 435 U.S. 247, 255 (1978) (emphasis in original)(quoting
Wood v. Strickland, 420 U.S. 308, 319 (1975)).
51. 51 Id. at 263.
52. 52 Memphis Community Sch. Dist., 477 U.S. at 308.
53. 53 Id. at 310.
54. 54 435 U.S. 247 (1978).
55. 55 Id. at 253.
56. 56 Id. at 263.
57. 57 Id.
58. 58 Id. at 264.
59. 59 Id. at 266. It may also be possible for the plaintiff to recover attorney's
fees if her rights to due process were violated. See infra text accompanying
notes 76-92.
60. 60 City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
61. 61 Id.
62. 62 Id. at 266.
63. 63 Id. at 269.
64. 64 Id. at 271.
65. 65 Smith v. Wade, 461 U.S. 30 (1983).
66. 66 Id. at 33 (emphasis in original).
67. 67 Id. at 37.
68. 68 Id. at 41, 45.
69. 69 Id. at 48-49.
70. 70 Id. at 49.
71. 71 Id. at 51.
72. 72 Id.
73. 73 Id. at 53.
74. 74 Id. at 55.
75. 75 Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me. 1985).
76. 76 42 U.S.C. § 1988. Section 1988 provides, in pertinent part, that "In any
action or proceeding to enforce a provision of sections 1977, 1977A, 1978,
1979, 1980 and 1981 of the revised statutes [42 USCS §§ 1981-1983, 1985,
1986], . . . title IX of Public Law 92-318 [20 USCS §§ 1681 et seq.], or title VI of
the Civil Rights Act of 1964 [42 USCS §§ 2000d et seq.], the court, in its
discretion, may allow the prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs."
77. 77 Hensley v. Eckerhart, 461 U.S. 424, 429 (1983), (quoting H.R. Rep. No.
94-1558, p. 1 (1976)).
78. 78 Blanchard v. Bergeron, 489 U.S. 87, 94 (1989).
79. 79 Hensley, 461 U.S. at 433.
80. 80 Id. at 436.
81. 81 Blanchard, 489 U.S. at 93.
82. 82 Id. at 96.
83. 83 Texas State Teachers Ass'n v. Garland Ind. Sch. Dist., 489 U.S. 782, 792
(1989).
84. 84 Id. at 792-93.
85. 85 Farrar v. Hobby, ____ U.S. _____, 113 S. Ct. 566, 121 L. Ed. 2d 494, 503
(1992).
86. 86 Id.
87. 87 Id., 121 L. Ed. 2d at 504.
88. 88 Id.
89. 89 Id., 121 L. Ed. 2d at 505.
90. 90 Id.
91. 91 Fidelity Guarantee Mortg. Corp. v. Reben, 809 F.2d 931, 935 (1st Cir.
1987).
92. 92 Id. at 935.
93. 93 U.S. Const. Amend. XI. Because a State is not a "person" subject to a
Section 1983 action, it is not necessary to discuss in detail the applicability
of the States' Eleventh Amendment immunity if a Section 1983 suit is brought
against a state or state agency in federal court.
94. 94 Tenney v. Brandhove, 341 U.S. 367, 376 (1951).
95. 95 Buckley v. Fitzsimmons, _____ U.S. ____, 113 S. Ct. 2606, 125 L. Ed. 2d
209, 222-23 (1993).
96. 96 See Owen v. City of Independence, 445 U.S. 622, 657 (1980).
97. 97 See Harlow v. Fitzgerald, 457 U.S. 800 (1982).
98. 98 See, e.g., Stump v. Sparkman, 435 U.S. 349, 354-55 (1978).
99. 99 Siegert v. Gilley, 500 U.S. 226 (1991).
100. 100 Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987).
101. 101 Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
102. 102 See Anderson, 483 U.S. at 646 n.6; Mitchell 472 U.S. at 526.
103. 103 See Buckley v. Fitzsimmons, ____ U.S. , 125 L. Ed. 2d 209, 223 (1993).
See also Harlow v. Fitzgerald, 457 U.S. 800 (1982).
104. 104 Hunter v. Bryant, 502 U.S. ____, 112 S. Ct. 534, 116 L. Ed. 2d 589, 595
(1991); Harlow, 457 U.S. at 817-18. See also Maguire v. Municipality of Old
Orchard Beach, 783 F. Supp. 1475 (D. Me. 1992).
105. 105 Hunter, 502 U.S. ____, 116 L. Ed. 2d at 595 (quoting Anderson v.
Creighton 483 U.S. at 641).
106. 106 Hunter, 502 U.S. ____, 116 L. Ed. 2d at 596 (quoting Malley v.
Briggs, 475 U.S. 335, 343 (1986)).
107. 107 Anderson, 483 U.S. at 639.
108. 108 Maguire v. Municipality of Old Orchard Beach, 783 F. Supp. 1475,
1483-84 (D. Me. 1992).
109. 109 Buckley v. Fitzsimmons, ____ U. S. ____, 125 L. Ed 2d at 223.
110. 110 Id., 125 L. Ed. at 223 (quoting Forrester v. White, 484 U.S. 219, 224
(1988)).
111. 111 Burns v. Reed, 500 U.S. 478, 114 L. Ed. 2d 547, 558 (1991).
112. 112 Buckley, 125 L. Ed. 2d at 223 (quoting Forrester, 484 U.S. at 229).
113. 113 Stump v. Sparkman, 435 U.S. 349 (1978).
114. 114 Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
115. 115 Id.
116. 116 Burns v. Reed, 500 U.S. 478, 114 L. Ed. 2d 547 (1991).
117. 117 Buckley, 125 L. Ed. 2d at 225-28.
118. 118 Id., 125 L. Ed. 2d at 228-30.
119. 119 Harrington v. Almy, 977 F.2d 37, 42 (1st Cir. 1992).
120. 120 Owen v. City of Independence, 445 U.S. at 657.
121. 121 Anderson v. Creighton, 483 U.S. at 646 n.6.
122. 122 Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). 
Photographs
© 2000 - Photos-to-Go™
© 2000-2002 The Law Office of Brett D. Baber, P.A. - Brett D. Baber, esq.
Five Masks Multimedia
© 2000-2002 The Law Office of Brett D. Baber, P.A. - Brett D. Baber, esq.
Five Masks Multimedia
