§ 13.2 Federal Constitutional Rights

LibraryDamages (OSBar) (2016 Ed.)
§ 13.2 FEDERAL CONSTITUTIONAL RIGHTS

The United States Constitution extends its protection to all "persons," including the right to be treated equally by the government under the Due Process Clause and the Equal Protection Clause. US Const, Amend V; US Const, Amend XIV, § 1. The United States Constitution provides for equal treatment by both the federal government, in the Fifth Amendment's Due Process Clause, and the states, in the Fourteenth Amendment's Due Process Clause and Equal Protection Clause. See Lawrence v. Texas, 539 US 558, 564-66, 123 S Ct 2472, 156 L Ed 2d 508 (2003) (states); Bolling v. Sharpe, 347 US 497, 499-500, 74 S Ct 693, 98 L Ed 884 (1954), supplemented sub nom Brown v. Bd. of Educ. of Topeka, Kan., 349 US 294, 75 S Ct 753, 99 L Ed 1083 (1955) (federal government).

Injunctive relief is available for violations of the United States Constitution that are ongoing toward the plaintiff or that pose a real and immediate threat of recurrence to the plaintiff. See, e.g., City of Los Angeles v. Lyons, 461 US 95, 105-06, 103 S Ct 1660, 75 L Ed 2d 675 (1983); Brown, 349 US at 300-01.

Claims for damages for federal constitutional violations may be made against federal officials in their individual capacity as Bivens actions (claims brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 US 388, 91 S Ct 1999, 29 L Ed 2d 619 (1971)), as discussed in § 13.2-2, and other parties acting under color of state law under 42 USC section 1983 as discussed in § 13.2-1 to § 13.2-1(h).

§ 13.2-1 42 USC § 1983

Section 1 of the Civil Rights Act of 1871 (Pub L 42-22, 17 Stat 13, codified at 42 USC § 1983) is an enforcement mechanism authorizing civil claims for deprivation of civil rights by anyone acting under color of state law. This means that if a person acting with the power of state law violates a right secured by the United States Constitution or federal law, there may be a claim under 42 USC section 1983 for violation of the federal right. The law provides:

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, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 USC § 1983.

Section 1983 is "'a species of tort liability' in favor of persons who are deprived of 'rights, privileges, or immunities secured' to them by the Constitution." Memphis Cmty. Sch. Dist. v. Stachura, 477 US 299, 305-06, 106 S Ct 2537, 91 L Ed 2d 249 (1986) (quoting Carey v. Piphus, 435 US 247, 253, 98 S Ct 1042, 55 L Ed 2d 252 (1978)).

Government entities, other than state agencies, may be sued under section 1983 (see § 13.2-1(b)(4)), but they are liable only for customs or practices that constitute a policy. Respondeat superior does not apply in section 1983 claims, though it may apply to other claims arising out of the same conduct. See Rogers v. Saylor, 306 Or 267, 285, 760 P2d 232 (1988).

Federal common law governs the damages available in a section 1983 action, even if the case is filed in state court. See Rogers, 306 Or at 277. The three-step process courts use to determine the rules applied in section 1983 claims is set forth in 42 USC section 1988(a):

(1) Look to the laws of the United States, so far as they carry civil rights statutes into effect.

(2) If no federal rule exists, consider the state common law, as modified by the constitution and statutes of the forum state.

(3) Apply state law only if it is "not inconsistent" with federal law.

See Burnett v. Grattan, 468 US 42, 47-49, 104 S Ct 2924, 82 L Ed 2d 36 (1984) (applying state law to determine the statute of limitations on section 1983 claims).

For more discussion of section 1983 in addition to that found in this chapter, see 2 Labor and Employment: Public Sector chapter 13 (OSB Legal Pubs 2011).

§ 13.2-1(a) Plaintiffs

Plaintiffs can include "any citizen of the United States or other person within the jurisdiction thereof." 42 USC § 1983. This includes noncitizens, including the undocumented, and corporations. Plyler v. Doe, 457 US 202, 210, 102 S Ct 2382, 72 L Ed 2d 786 (1982) (undocumented aliens); Examining Bd. of Engineers, Architects & Surveyors v. Flores de Otero, 426 US 572, 577-79, 96 S Ct 2264, 49 L Ed 2d 65 (1976) (resident aliens); Cinema Art Theater, Inc. v. City of Troy, 810 F Supp 2d 489, 495 (NDNY 2011) (corporation). But c.f. Martinez v. City of Los Angeles, 141 F3d 1373, 1382 (9th Cir 1998) (an alien bringing suit for violations outside of the jurisdiction of the United States does not have standing under section 1983).

§ 13.2-1(b) Defendants

The Eleventh Amendment bars recovery of damages directly against states that have not consented to be sued. Quern v. Jordan, 440 US 332, 340-41, 99 S Ct 1139, 59 L Ed 2d 358 (1979); Hale v. State of Ariz., 993 F2d 1387, 1398 (9th Cir), cert den, 510 US 946 (1993). Accordingly, state officials acting in their official capacities are outside the class of "persons" who are subject to liability under section 1983. Will v. Michigan Dep't of State Police, 491 US 58, 71, 109 S Ct 2304, 105 L Ed 2d 45 (1989); Anderson v. Dep't of Rev., 313 Or 1, 5-6, 828 P2d 1001 (1992).

Under the right circumstances, however, defendants can include officials in their individual capacity, counties and municipalities, private actors, state agencies or officials in their official capacity, and federal officials acting under color of state law. See § 13.2-1(b)(1) to § 13.2-1(b)(5).

§ 13.2-1(b)(1) Officials in Their Individual Capacity

Government officials (city, county, state, and federal) acting in their individual capacity under color of state law, may be sued under 42 USC section 1983. See Hafer v. Melo, 502 US 21, 25, 31, 112 S Ct 358, 116 L Ed 2d 301 (1991) ("We hold that state officials, sued in their individual capacities, are 'persons' within the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the 'official' nature of their acts."); see also Ashker v. California Dep't of Corr, 112 F3d 392, 393 (9th Cir), cert den, 522 US 863 (1997). A federal official in his or her official or individual capacity, acting under color of federal law, however, is not liable under section 1983.

PRACTICE TIP: As in Bivens actions (see § 13.2-2), a government entity may contractually have a duty to defend, to indemnify, or to defend and indemnify an official sued in his or her individual capacity, or the official may have professional liability insurance. See City and Cnty. of San Francisco v. Sheehan, 575 US ___, 135 S Ct 1765, 1774 n 3, 191 L Ed 2d 856 (2015). If insurance or indemnification is not available, a plaintiff may be limited in recovery to the assets of the individual defendant, and the defendant may be forced to pay out of pocket for legal representation. A government entity's indemnification of an official for punitive damages owing to a plaintiff is probably constitutional. See Trevino v. Gates, 99 F3d 911, 917 (9th Cir 1996), cert den, 520 US 1117 (1997), modified on other grounds by Navarro v. Block, 250 F3d 729, 733 (9th Cir 2001).

§ 13.2-1(b)(2) Counties and Municipalities

Municipalities may be sued under 42 USC section 1983 (Monell v. Dept. of Soc. Servs. of City of New York, 436 US 658, 690-95, 98 S Ct 2018, 2035-38, 56 L Ed 2d 611 (1978)), and so may county agencies (see Flores v. Cameron Cnty., Tex., 92 F3d 258, 263-64 (5th Cir 1996)). Although respondeat superior principles do not apply in section 1983 claims, city and county entities may be responsible for violations of section 1983 resulting from official policies, which can be shown by a pattern or practice of conduct even if not...

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