Recovery for Due Process Violations Under Section 1983
| Publication year | 1986 |
| Pages | 821 |
| Citation | Vol. 15 No. 5 Pg. 821 |
1986, May, Pg. 821. Recovery for Due Process Violations Under Section 1983
This issue of The Colorado Lawyer introduces a new bimonthly newsletter for local government lawyers and those who deal with local governments on behalf of private parties. Lawyers involved in the law of towns, cities, counties, special districts, school districts and similar public entities are encouraged to submit articles of general interest to the co-editors of the Local Government Newsletter.
The number of plaintiffs seeking recovery pursuant to the 1871 Civil Rights Act ("section 1983"),(fn1) for wrongs inflicted by state and local governments has proliferated in recent years. This landslide of civil rights litigation was precipitated by the 1978 Monell v. Dept. of Social Services case,(fn2) which overruled the 1961 decision of Monroe v. Pape(fn3) insofar as it held that local governments were not "persons" subject to suit under § 1983.
Monell also held that local and state governments were subject to civil liability for deprivations caused by official custom or policy of rights guaranteed by the federal constitution and statutes. This finding opened the door to recovery for wrongs inflicted by law enforcement officers, adverse personnel decisions, regulation of land use and myriad other causes.
Soon after Monell, the U.S. Supreme Court decided in Owen v. City of Independence that local and state governments lacked the good faith and reasonable belief defense protecting public officials.(fn4) Owen thus imposed strict liability on governments for violations of protected rights, in some cases even retroactively.
The number of published cases has increased geometrically each year.(fn5) Development of theories of § 1983 liability continues to expand, turning civil rights cases into intellectual battles unsurpassed by most federal or state court litigation. However, the risks have escalated for both sides. Defendants are subject to liability for not only their own legal fees, but the plaintiff's damages and attorneys' fees as well. Plaintiffs' lawyers risk loss of payment of their fees if, after litigation of an extremely complex case, the plaintiff does not prevail.(fn6)
A violation of a right protected by § 1983 has often been characterized as a "constitutional tort."(fn7) Analogous to a common law tort, a § 1983 claim includes similar elements:(fn8) (1) existence of a right guaranteed by the U.S. Constitution or certain federal statutes which the defendant, acting "under color" of state law, had a duty not to breach; (2) deprivation of that right due to the defendant's breach of duty; (3) actual causation between the defendant's breach of duty and deprivation of the plaintiff's federally guaranteed right; and (4) proximate causation or "foreseeability" between the defendant's breach of duty and the plaintiff's deprivation.
One of the most commonly asserted rights in § 1983 cases is the right to due process secured by the Fourteenth Amendment. Life, liberty and property interests are often implicated in police matters, public employment issues, land use regulation and many other actions taken under color of state law. As a result of U.S. Supreme Court cases decided in 1984 and 1986, the right to recover under § 1983 for loss of life, liberty or property without due process has been severely limited. These new limitations are the subject of this article.
One of the most difficult portions of the due process analysis in a § 1983 case has been whether a "state of mind," such as the defendant's negligence or intent, was required before liability could be...
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