By Randy Means, Attorney at Law, Thomas and Means, LLP
Section 1983, a federal statute, creates a right to sue any person who, acting under color of state law, deprives one of one's constitutional rights. Such lawsuits may involve First Amendment issues like freedom of speech, religion, and association; Fourth Amendment matters like arrest and detention, search and seizure, and use of force; Fifth Amendment issues in interrogation and confessions; Sixth Amendment concerns regarding the right to counsel; Eighth Amendment claims of incarceration involving cruel and unusual punishment; and Fourteenth Amendment claims of due process violations.
It is important that police officials, particularly those at high levels, have a broad understanding of section 1983 because, for reasons explained here, it has become the preferred tool for suing police.
Now section 1983 of Title 42 of the United States Code, this statute was originally part of the Ku Klux Act of 1871-one part of what is now called the Civil Rights Act of 1871. It original name and timing both imply what is clear from any study of its legislative history: it was an outright assault on the post-Civil War Ku Klux Klan. In fact, it was enacted in specific response to President Grant's call for legislation to deal with the KKK, which in that era was widespread and organized, particularly in the southern states.
For reasons both practical and legal, the statute remained virtually dormant for the 90 years after its passage. As a practical matter, given the extent of the KKK's power and its infection of some state and local governments, the African American of that era must have rightly doubted that suing would improve the plaintiff's near-term plight. As a legal matter, the "under color of state law" requirement of section 1983 was interpreted, in that time, to exclude coverage of behaviors that were prohibited by the letter of state law, though the lawless behaviors were often perpetrated by agents of state government (and its local subdivisions) and by use of their official powers. Other technical legal problems helped assure the nearly century-long impotence of the statute.
Monroe v. Pape
Forty-three years ago, the U.S. Supreme Court decided Monroe v. Pape, breathing life into section 1983 by holding that behavior prohibited by the letter of state law but carried out with state or local government authority violates section 1983.1 So, beginning in 1961, section 1983 could be used to sue state and local officials who, misusing their government power, applied it to violate federal constitutional rights. In Monroe v. Pape, Mr. Monroe, an African American resident of Chicago, was allowed to sue the Chicago police officers who, led by Deputy Chief of Detectives Pape, allegedly engaged in a sequence of gross constitutional violations beginning with the illegal entry of Monroe's home, continuing with a variety of abuses including racial slurs, and ending with his illegal detention at police facilities for 10 hours but ultimately without charging.
Even after Monroe v. Pape, section 1983 lacked punch. Those who wanted to use it often lacked the financial resources to pay for investigations and lawyers. Plus, in Monroe v. Pape, the Supreme Court held to its prior position (and the explicit language of the statute) that only "persons" could be sued under section 1983. The statute could not be used to reach the governmental entity, the deep pocket. So with no money available up front to fund litigation and with no prospect of reaching a deep pocket, potential plaintiffs were unable or disinclined to use the statute.
Monell v. Department of Social Services
The late 1970s brought further change. Congress passed the Civil Rights Attorney's Fees Award Act of 1976 and the U. S. Supreme Court decided Monell v. Department of Social Services.2 The congressional legislation today known as section 1988 of Title 42 of the United States Code created an opportunity for the plaintiff, if the "prevailing party," to have attorney's fees paid by the defendant. In Monell the Supreme Court reversed the part of Monroe v. Pape that restricted 1983 to suing persons and held for the first time that the word "person" (as used in the statute) includes municipal governments-cities, counties, and their subdivisions.
As of 1978, plaintiffs could use section 1983 to sue deep-pocket defendants and, if the prevailing party, could get their attorney's fees paid as well. The effects of all this certainly were not lost on the attorneys who were in the business of doing plaintiffs' work. Section 1983, created to oppose the KKK, emerged as, and today remains, the preferred vehicle for suing police in America.
Although the Supreme Court in Monell extended the reach of section 1983 to municipal entities, it declined to expose them to vicarious liability. Vicarious liability is based on relationship and would hold an employer liable for employee misdeeds during the course and scope of employment whether or not the employer did anything wrong. Municipal liability under section 1983 is not based solely on relationship; it requires proof of fault and causation on the part of the entity. Only if a policy or custom of the municipal entity is a moving force behind an employee's constitutional misdeed will the entity be liable under section 1983 for that misdeed.
Civil lawsuits against police are now common; million-dollar judgments are not rare. State and local officers as well as municipal government entities are all sued for constitutional violations under section 1983. Federal officers are sued for constitutional violations under a similar form of lawsuit created in Bivens v. Six Unknown Federal Narcotics Agents and today referred to as a Bivens action.3 Both 1983 and Bivens actions have proliferated dramatically since the late 1970s.
Even when police win such lawsuits, they often lose in other significant ways. Civil lawsuits are aggravating, stressful, and time-consuming at best. At worst they threaten careers, personal finances, and health. Other costs, as described by the Supreme Court, "include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties.'"4 Better understanding and preparedness in this area can help law enforcement officials be "resolute . . . in the unflinching discharge of their duties."
Editor's note: The author, a partner in a Charlotte-based law firm specializing in police operation and administration, lives in Baltimore and assists a national clientele of law enforcement agencies and associations. Formerly, he served as chairman of the legal department at North Carolina's state law enforcement training center and as police attorney for the City of Charlotte.
1 365 U.S. 167 (1961).
2 436 U.S. 658 (1978).
3 403 U.S. 388 (1971).
4 Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982.