Civil Rights Actions: What Can I Do if the Government Violates my Civil Rights?

October 31, 2009

By: David K. Jaffe

In the last few decades, there has been unprecedented growth in the number of cases filed

under 42 U.S.C. § 1983, which was originally designed to provide redress for violations of federally protected rights committed by persons acting under color of law. Section1983 does not create substantive rights; rather, it merely provides civil remedies for deprivation of rights established under the Constitution or federal laws. The Supreme Court has held that public officials' actions meet the "color of law" requirement when they act under the authority of state law, regardless of whether their act is illegal under state law. The Court has further extended the reach of § 1983 actions by ruling that a municipality could be held liability, overruling prior precedent holding that a municipal corporation could not be sued under § 1983.

A plaintiff must establish, for a successful § 1983 claim, that (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived the plaintiff of a constitutional right. Although actions brought pursuant to 42 U.S.C. § 1983 sound in tort, the coverage of § 1983 is broader than the pre-existing common law of torts. Courts have used the common law of torts as a "starting point" for determining the contours of claims of constitutional violations under § 1983. Federal courts also will look to general common-law principles in deciding which common-law immunities are applicable to § 1983 actions. There is no requirement that a plaintiff exhaust state remedies prior to filing a § 1983 lawsuit.

The Plaintiff must have standing, and thus generally must assert his own legal rights and interests in a § 1983 action, and cannot rest his claim on the legal rights or interests of third parties. However, state law determines the survivorship of claims under § 1983.

The Fourteenth Amendment and § 1983 protect individuals only against governmental action and leave private conduct to regulation by statues and common law. If a public official or employee performs a private act, even while on duty, it is not an act under color of law. Ordinarily, a violation of state law cannot be a basis for a § 1983 action because 42 U.S.C. § 1983 provides a remedy for deprivation of rights secured by the Constitution and law of the United States. However, the existence of a state law may be relevant to a determination whether a public official is entitled to qualified immunity because his conduct violated clearly established constitutional law.

If a plaintiff is the prevailing party in a 42 U.S.C. § 1983 action, he or she is entitled to recover attorney's fees and costs pursuant to 42 U.S.C. § 1988. The plaintiff bears the burden of establishing both the entitlement to an award of civil rights attorneys' fees, as well as the amount due.