III. The Section 1983 Remedy

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

III. THE SECTION 1983 REMEDY

A. Nature Remedy

Section 1983 is a of the Section 1983 remedial statute that authorizes a civil action only against defendants who act under color of state law and violate rights secured by federal law. The Supreme Court has made clear that § 1983 confers no substantive rights,²³ and state and federal courts have consistently recognized this principle.²⁴ Thus, for there to be a viable §1983 claim, there must be a violation of a substantive or rights-conferring provision of federal law.

B. Color of Law Requirement

The Supreme Court has construed § 1983's color of law requirement to reach not only conduct that is authorized by state law but also conduct that is unauthorized (or even barred) by state law. Thus, in Monroe v. Pape,²⁵ the Court rejected the argument that § 1983 was available only as a remedy for officially sanctioned conduct and held that police officers who conducted an unreasonable search and seizure in violation of state law also could be sued under § 1983 for violating the Fourth Amendment.²⁶

C. Deprivations of Federal Rights

In addition to an act taken under color of state law, a proper § 1983 claim requires the existence of a "deprivation of . . . rights, privileges, or immunities secured by the Constitution and laws."²⁷ This language is quite broad, and the Court has not limited § 1983 to the types of conduct that led to the passage of the Civil Rights Act of 1871.

1. Constitutional Rights

Despite the close nexus between the Civil Rights Act of 1871 and the Fourteenth Amendment, the reference to "rights, privileges, or immunities secured by the Constitution" in the original version of § 1983 is not, by its terms, limited to Fourteenth Amendment rights. Indeed, the Supreme Court has not limited § 1983 to Fourteenth Amendment claims,²⁸ and in Dennis v. Higgins,²⁹ the Court held that dormant commerce clause claims were actionable under § 1983. As a result, it is likely that § 1983 can also be used to enforce non-Fourteenth Amendment claims having their origin in the obligation of contracts clause,³⁰ the ex post facto clause,³¹ the full faith and credit clause,³² and the Article IV privileges and immunities clause.³³

2. Statutory Rights

As enacted in the Civil Rights Act of 1871, the cause of action that became § 1983 did not contain any reference to deprivations of federal statutory rights.³⁴ In 1874, however, in the course of codifying the federal statutes, Congress separated the cause of action in section 1 of the act from the jurisdictional counterpart in the same section and added the phrase "and laws" to the cause of action.³⁵ The significance of this change remained unclear for more than a century, but in Maine v. Thiboutot,³⁶a state court § 1983 case, the Supreme Court construed the phrase "and laws" to reach all federal statutes.³⁷

Despite the broad holding of Thiboutot, the Court subsequently restricted the use of §...