The Journal of The DuPage County Bar Association

Back Issues > Vol. 17 (2004-05)

Section 1983 Litigation In A Nutshell: Make A Case Out of It!
By Jon Loevy

All Americans enjoy the protections afforded them by the United States Constitution. As a practical matter, a vehicle for the private enforcement of those civil rights is provided by 42 U.S.C. ? 1983 (commonly referred to as "Section 1983"), a statute which traces its origins back to Congress’ response to abuses suffered by African-Americans at the hands of state and local government officials in the post-Civil War South. Section 1983 does not expand citizens’ substantive rights, but rather serves as the mechanism under which individuals may bring a private, civil cause of action for violations of their constitutionally protected rights (separate and apart from any rights they have in the criminal context). This article will discuss some of the most common examples of Section 1983 lawsuits and defenses, but first I will lay out some of the general guidelines.

"State Action" and "Color of Law" Are Required

Citizens often operate under the mis-perception that private actors (for example, one’s employer or neighbor) can violate their constitutional rights. Not so. With very limited exceptions, private actors cannot commit constitutional violations, and thus are not amenable to suit under Section 1983. Only "state actors" who are "acting under color of law" may be sued under Section 1983. "State actors" are generally government officials and employees, and the term should not be interpreted literally: municipal employees are likewise state actors for purposes of Section 1983. Thus, a police officer can be sued for excessive force in violation of a citizen’s constitutional rights, while (except in very limited circumstances) the bouncer at a tavern may not.

As for "color of law," the analysis is analogous — although not identical — to the more familiar "scope of employment" issue. The Supreme Court has defined action taken "under color of law" as the "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law."1 Consequently the excessive force analogy, a police officer in uniform and on duty who commits excessive force in the course of an arrest is acting "under color of law". Yet that same officer would not be amenable to suit under Section 1983(except in very limited circumstances)if he were involved in an off-duty, purely-personal altercation with an acquaintance.

Joinder With Other Civil Claims

Section 1983 claims may be brought in either federal or state court, in conjunction with other claims such as state law counts for battery or false imprisonment. In fact, the caselaw on the subject of "claim splitting" generally dictates that Section 1983 claims are essentially barred if not brought when related claims are filed. In light of this pitfall, and in an abundance of caution, it is almost always advisable to bring all state and federal claims at the same time.

A common trap for the unwary is that an action brought solely under the Illinois Administrative Review Law will generally be deemed to waive any related Section 1983 claim that is then available (e.g.) for discriminatory enforcement of a zoning enforcement or discharge of a police officer in retaliation for First Amendment protected speech. Therefore unless a Section 1983 claim is brought in conjunction with the administrative review claim, it will be barred.

Advantages to Section 1983 Litigation

Section 1983 entitles the plaintiff to bring a suit in a federal forum, where justice for a plaintiff is more likely to be swift, less political, and more consistent than it is in state court. Federal judges are generally superb and, for the most part, properly receptive to claims for violations of constitutional rights. Given the reality is that far more of these claims are filed in federal court, these Judges tend to be more familiar with the governing law than state court judges. The irony in the foregoing is that even in the rare cases where plaintiffs file Section 1983 claims in state court, defendants nearly always immediately remove them to federal court. In any event, the practical result is that most Section 1983 litigation occurs in federal court.

A more obvious advantage to Section 1983 litigation is the statute’s fee-shifting provision: under 42 U.S.C. ? 1988, parties who prevail under Section 1983 are entitled to reasonable attorneys’ fees, a factor which helps raise settlement values substantially for the clients because the defendants must always remain cognizant of the statutory obligation to pay their opponents’ fees if they lose. Most importantly, however, this also permits plaintiff’s attorneys to pursue cases which would otherwise not be cost-effective, exactly what Congress intended in creating this incentive. Without fee shifting, somebody with a "smaller" civil rights claim would find it next to impossible to vindicate their rights as it would be cost-prohibitive for any attorney to litigate on a strictly contingent basis.

Finally, another obvious advantage is that Section 1983 claims have longer statutes of limitations than comparable state law claims. Section 1983 claims "borrow" the limitations periods from state law personal injury claims, which in Illinois is two years from the date the injury accrued.2 The Illinois Tort Immunity Act generally imposes a one year limitations period on claims against municipalities and their agents, so it might turn out that Section 1983 will be the only vehicle available if more than a year (but less than two years have elapsed since the date the cause of action arose).

Types of Section 1983 Claims:

Typically the most common Section 1983 claims are those regarding excessive force, which are brought under the Fourth Amendment’s prohibition against unreasonable seizures. For all practical purposes, such claims are directly analogous to state law battery claims; the same conduct that satisfies the elements of one will typically satisfy the other.

Other common examples of Section 1983 claims with direct state law counterparts include false arrest and unreasonable searches of one’s person, home or vehicle. The Fourth Amendment protects citizens against unreasonable seizures, and the case law recognizes false arrest and unjustified searches as an actionable constitutional violation.

Death Cases

Fatal police shootings can give rise to a state law wrongful death action, as well as a Section 1983 excessive force claim. In addition to the benefits mentioned above (fee shifting and extended statute of limitations), advantages to the Section 1983 route are the ability to seek both punitive damages, which are usually unavailable under the Wrongful Death Act, and damages for the abstract value of the life that was lost, which are not available under the the Act.3 That said, there are advantages to bringing both federal and state law claims together, as the latter provides, for example, a clear avenue for relatives to bring a loss of consortium claim.

First Amendment

With reference to government employees, there is a First Amendment right to speak out on matters of public concern. The most common examples of this sort of claim are whistleblowers who experience retaliation.

Not all speech is protected, however. The speech must be about a matter of "public concern," which generally means a matter of public importance, and the concept is juxtaposed analytically against "purely personal grievances." Thus, an employee who was fired for reporting the dumping of toxic chemicals at a government site would have a quintessential First Amendment claim, whereas an employee who was demoted for complaining about an unfair work schedule would not meet the "public concern" test.

The case law is clear, however, that "public concern" can be local. As the Seventh Circuit has explained, it does not matter that the statement at issue was not of "transcendent importance" or consider "the origins of the universe or the merits of a constitutional monarchy."4 So long as it is of public importance to the relevant community in which it takes place, that is sufficient. Remember, however, the First Amendment (as with all of the others) only protects against abuses by state actors, not private employers.

Though First Amendment claims resemble those for state law retaliatory discharge, there are several advantages (in addition to those mentioned above, such as fee-shifting and the longer statute of limitations) for proceeding under Section 1983. Initially, unlike state law retaliatory discharge claims, First Amendment Section 1983 plaintiffs need not have been actually terminated. While Illinois courts are expressly unwilling to "expand" the tort of retaliatory discharge to apply to cases where there was not an actual termination,5 First Amendment claims can be brought for retaliatory adverse employment actions (e.g.), demotions, or even retaliatory harassment that would be too "petty" to support a retaliatory discharge claim.6 Furthermore, unlike the state law claim where the Tort Immunity Act precludes lawsuits against the individual (as opposed to the organization itself) who retaliated,7 First Amendment claims can be brought against the malfeasants in their individual capacities, which has the added benefit of therefore permitting recovery of punitive damages.

Equal Protection Claims

Equal Protection claims can be brought where the government treats one class of people differently than another class of people. While most often thought of as discrimination against minorities (such as racial profiling in traffic stops), the courts also recognizes "class of one" claims.8 To allege that type of claim, a plaintiff can show that a powerful governmental actor (e.g., a vindictive mayor) has singled out a victim for irrational differential treatment (e.g., unfair denial of a business license).

Denial of Medical Attention

A constitutional claim can also be stated for "deliberate indifference" to a "serious medical need" for a detainee in custody. The need for medical attention must be genuine and objectively serious, and deliberate indifference cannot be shown absent actual knowledge of a problem on the part of the state actor.9 Courts tend to be serious about enforcing these hurdles, particularly against prisoners.

State Created Danger

Under DeShaney,10 state actors can be liable where the government actually created the danger which befell an individual. As the Seventh Circuit has explained, "liability exists when the state affirmatively places a particular individual in a position of danger the individual would not have otherwise faced."11 An example of this cause of action would be when a police officer arrests an obviously-intoxicated person late at night and drives them against their will to the town limits, and later the person is hit by a car and critically injured while walking home along a busy, unlit highway. In such a case, the "danger" (having to walk down miles of unlit highway to get home) did not exist until the police officer arrested the individual and placed him in that position, and therefore can be said to be "State created".

Wrongful Convictions

On the cutting edge, beginning in 2001, the Seventh Circuit recognized what have come to be known as Newsome claims for individuals wrongfully convicted through misconduct on the part of the police.12 Though the contours of this type of claim are still evolving with every new Seventh Circuit opinion, the gist is that criminal defendants have a right under the due process clause to be free from the fabrication of inculpatory evidence and withholding of exculpatory evidence by law enforcement officers. One way to consider these claims is to think of them as a cause of action alleging the violation of a criminal defendant’s Brady rights.13

Until recently, the Seventh Circuit had recognized Section 1983 equivalents to malicious prosecution. In Newsome, however, the Seventh Circuit expressly repudiated such claims. Thus, if one intends to plead a Section 1983 wrongful conviction claim, it must now be stated in terms of substantive due process as described above, and not in terms of traditional malicious prosecution. Plaintiffs obviously remain free, however, to plead both Newsome and state law malicious prosecution claims simultaneously, which is undoubtedly the optimal route.

Monell Claims

Under the Supreme Court’s decision in Monell,14 civil rights plaintiffs can bring suit against municipal entities where their "policies and practices" proximately cause constitutional injuries. By definition, these Monell claims are not based on respondeat superior; rather, they are brought against the governmental entity for injuries caused directly by the entity itself.

While such claims do not necessarily increase the damages available to the plaintiff, they are nonetheless important for their role in curtailing civil rights abuses. Because almost all successful Section 1983 claims against state actors result in settlements or judgments, Monell allegations permit litigants to address, and therefore correct, civil rights violations that are the result of the governmental entity’s policies and practices. Congress reasoned that where a governmental entity is forced to defend (and therefore face) unconstitutional policies and practices in open court, changes tend to be made.

Monell claims tend to take several forms. First, a City can be liable for an express policy. The classic example is Garner,15 where the City of Memphis had an express policy permitting its officers to fire their guns at persons fleeing from the police regardless of the threat posed by such individuals. Because that policy could mean the death penalty for non-violent individuals who posed no threat to the officers or others, it was declared unconstitutional.16

Additionally, municipalities can also be liable for failure to train their employees. This claim was first elucidated by the Supreme Court in Harris,17 which held that the provision of inadequate training to police officers can constitute a basis for suit against a municipality when it demonstrates the municipality’s deliberate indifference to the rights of individuals its officers come into contact with. Such deliberate indifference is commonly demonstrated in two ways. First, a municipality is deemed to have exhibited deliberate indifference by its failure to train its employees to handle recurring situations that presents an obvious potential for a constitutional violation where such failure to train results in a constitutional violation. Additionally, a plaintiff may succeed on a failure to train when he or she demonstrates that a municipality has failed to provide further training after learning of a pattern of constitutional violations by its officers.

Finally, Monell claims can be stated for a "widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law."18 For example, district courts in the Northern District of Illinois have recognized practice claims for the failure to discipline and/or punish police officers for the use of excessive force such that the city itself thereby implicitly encourages said abuses. In other words, municipalities can be sued non-derivatively for their own role in turning a blind eye to abuses. In Robinson,19 for instance, the jury found liability against the City based on the total and complete failure to implement a working internal affairs department to monitor police abuses.20

Section 1983 Defenses: Qualified Immunity

The primary Section 1983 defense is known as "qualified immunity." Put simply, state actors are only liable for violations of constitutional rights where those rights are "clearly established."21 Moreover, qualified immunity is designed to be resolved by the Court before trial so that state actors are not forced to unnecessarily undergo the burden and expense of defending themselves unless necessary.

The way to defeat a claim of qualified immunity is to find prior cases where the constitutional right alleged was recognized. For qualified immunity purposes, courts operate under the fiction that police officers and other Section 1983 defendants read the reported caselaw. If there is a reported decision in your jurisdiction recognizing the right at issue, then defendants will lose. If there is no such decision, then the defense prevails, even if the court finds a violation of constitutional rights in your case. In short, if the defendants were not on sufficient notice via the caselaw that their alleged misconduct was unconstitutional, they are immune from damages. Unlike the usual presumption, therefore, in this context older cases are actually more valuable than newer ones.

Conclusion

Section 1983 litigation offers distinct benefits for both clients and their counsel. Indeed, Lawyers who try to litigate civil rights abuses based solely on state law causes of action are foregoing serious advantages readily at their disposal.

1 Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 929 (1982).

2 See 735 ILCS Section 5/3-202.

3 For a general discussion of these damage issues, see Mattyasovsky v. West Town Bus Co., 61 Ill. 2d 31, 330 N.E.2d 509 (1975); Magna Trust Co. v. Illinois Cent. R. Co., 313 Ill. App. 3d 375, 392, 728 N.E.2d 797, 811 (5th Dist. 2000)

4 Dishnow v. School Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir. 1996).

5 Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 35, 645 N.E.2d 877, 880 (1994)

66 Wallace v. Benware, 67 F.3d 655 (7th Cir. 1995)

7 Zinnermon v. City of Chicago Dept. of Police, 209 F. Supp. 2d 908, 911 (N.D.Ill. 2002).

8 Olech v. Willowbrook, 160 F.3d 386 (7th Cir. 1998).

9 E.g., Salazar v. City of Chicago, 940 F.2d 233 (7th Cir. 1991).

10 DeShaney v. Winnebago County Dep’t of Social Serv., 489 U.S. 189 (1989)

11 Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998).

12 Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir. 2001).

13 Brady v. Maryland, 373 U.S. 83 (1963).

14 Monell v. Dept. of Social Services of City of New York, 436 U.S. 658 (1978)

15 Tennessee v. Garner, 471 U.S. 1 (1985).

16 Garner v. Memphis Police Dept., 8 F.3d 358 (6th Cir. 1993).

17 City of Canton v. Harris, 489 U.S. 378 (1989)

18 McTigue v. Chicago, 60 F.3d 381, 382 (7th Cir. 1995).

19 Robinson v. City of Harvey, 2001 WL 138901, at *7 (N.D.Ill. Feb. 16, 2001)

20 See also Garcia v. City of Chicago, 2003 WL 1845397, at *3-5 (N.D.Ill. April 8, 2003); Kindle v. City of Harvey, 2002 WL 230779, at *4-*5 (N.D.Ill. Feb. 15, 2002).

21 Saucier v. Katz, 533 U.S. 194, 201-202 (2000).

Jon Loevy is a partner in the firm of Loevy & Loevy, (Chicago, IL), which specializes exclusively in Section 1983 litigation. He is a 1993 graduate of Columbia Law School in New York City, and a former clerk for the Hon. Milton I. Shadur.


 
 
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