I. Introduction

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

I. INTRODUCTION

The federal cause of action contained in 42 U.S.C. § 1983¹ permits persons whose federal rights are violated by defendants acting under color of state law to bring civil suits for both damages and injunctions. The statute is not a source of substantive rights, but it is the principal civil remedy for the private enforcement of the federal Constitution against state and local governments and their employees.

Most § 1983 litigation has taken place in federal courts since 1961, when the U.S. Supreme Court in Monroe v. Pape²resurrected this seldom-used legacy of Reconstruction. Before Monroe, § 1983 suits against state and local governmental defendants were relatively rare because of the narrow construction that the Supreme Court had given to § 1983³ and because of the existence of few constitutional limitations on the states.⁴Monroe established § 1983 as a supplementary federal remedy and refused to require § 1983 plaintiffs to first seek relief under even adequate state remedies.⁵ Consequently, § 1983 plaintiffs may go directly to federal court,⁶ and the volume of § 1983 litigation in the federal courts increased more than a hundredfold in the four decades after Monroe.⁷

Under the presumption of concurrent jurisdiction, state courts may exercise jurisdiction over § 1983 cases,⁸ and since the early 1980s, there has been a sharp increase in the volume of state court § 1983 litigation throughout the country. The precise number of state court § 1983 cases is unclear,⁹ but a review of appellate court decisions makes clear that for a variety of ad hominem, doctrinal, and tactical reasons, an increasing number of § 1983 plaintiffs are forsaking the federal courts and seeking relief in state courts.¹⁰

Commentators have recognized the importance of state court § 1983 litigation,¹¹ and the Supreme Court has begun to pay greater attention to state court § 1983 cases.¹² Nonetheless, most scholarly and practice-oriented writing on § 1983 focuses on the federal courts. This chapter fills this void by providing lawyers and judges with an introduction to state court § 1983 litigation. This chapter also addresses a number of the unique procedural and remedial issues that have arisen, or are likely to arise, in § 1983 litigation in the state courts.

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Notes:

^[1] . 42 U.S.C. § 1983 (2000), as amended by Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 309(c), 110 Stat. 3847 (1996). The statute, in its entirety, provides as follows: "Every...