16-b-3 Federal Statutory Bases for Section 1983 Claims

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

16-B-3. Federal Statutory Bases for Section 1983 Claims

Sometimes you can also bring a Section 1983 claim if a right created by certain federal statutes has been violated by a state actor. ¹⁴⁴ However, only a few federal laws can be enforced using Section 1983. These laws include 38 U.S.C. §5301(a), which deals with the payment of veteran's benefits.¹⁴⁵ You may also be able to bring a Section 1983 claim if your rights under certain international treaties have been violated. For example, a few courts have held that Article 36 of the Vienna Convention on Consular Relations ("VCCR") ¹⁴⁶ can be used as the basis for a Section 1983 claim. The VCCR describes foreign nationals' right to consular access. ¹⁴⁷ [MAYBE Consular access means granting permission to contact one's nation's embassy]When a foreign national is arrested or detained, the federal, state, or local law enforcement agency responsible for arresting or detaining him must ask him whether he would like to notify his embassy of his arrest. If so, then a consular official from his embassy must be immediately notified, and must be granted access to the detained foreign national. Also, some federal statutes that cannot be enforced through Section 1983 have their own enforcement provisions. ¹⁴⁸

Sometimes it is easier to show that your rights under a statute have been violated than it is to show a constitutional violation. If courts have already found that a particular statute can be used as the basis for a Section 1983 claim, you should examine the cases interpreting that statute to see if your case is similar to them. You should pay special attention to which cases rely on Section 1983 and which do not. ¹⁴⁹

144. Maine v. Thiboutot, 448 U.S. 1, 4, 100 S. Ct. 2502, 2504, 65 L. Ed. 2d 555, 559 (1980) (holding that Section 1983 may be used to sue for violations of a right created by a federal statute).

145. Higgins v. Beyer, 293 F.3d 683, 689-90 (3d Cir. 2002) (holding that 38 U.S.C. §5301(a) (2012), which prohibits veterans benefits from being seized or attached, creates a right that can be enforced under Section 1983). In Higgins, a prisoner brought a Section 1983 claim against the New Jersey Department of Corrections and other defendants for taking a portion of the money from his veteran's disability check to pay a fine the prisoner owed to the Victims...