IV. Constitutional Rights Enforceable Under Section 1983

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

IV. CONSTITUTIONAL RIGHTS ENFORCEABLE UNDER SECTION 1983

Section 1983 affords a judicial claim for relief for "the deprivation" under color of state law "of any rights, privileges or immunities secured by the Constitution." Under this unqualified language, a very wide range of federal constitutional rights have been found enforceable under § 1983. These rights encompass the Fourteenth Amendment rights to substantive and procedural due process and to the equal protection of the laws. The provisions of the Bill of Rights that have been incorporated into the due process clause of the Fourteenth Amendment may be enforced under § 1983. Almost all of the Bill of Rights have been incorporated, including the rights protected by the First Amendment free speech and religion clauses (the free exercise and establishment clauses), the Second Amendment right to bear arms, the Fourth Amendment protection against unreasonable searches and seizures, and the Eighth Amendment protection against cruel and unusual punishment.72

Section 1983 is not limited to the enforcement of Fourteenth Amendment rights. In Dennis v. Higgins,73 the Supreme Court held that the dormant commerce clause, also referred to as the "negative implications" of the commerce clause, is enforceable under § 1983. The dormant commerce clause imposes constitutional limitations on the power of the states to regulate interstate commerce.

In Golden State Transportation Corp. v. Los Angeles,74 however, the Supreme Court held that the supremacy clause does not create rights that are enforceable under § 1983. Rather, the supremacy clause governs the relationship between federal and state law, dictating that a state and local law in conflict with federal law is unenforceable. When state action is alleged to violate a federal statute, the pertinent issue is whether the particular federal statute creates rights enforceable under § 1983.75

Whether the plaintiff has alleged a proper constitutional claim under § 1983 depends upon an interpretation of the particular constitutional provision at issue, not upon an interpretation of § 1983. For example, in Graham v. Connor76 the Supreme Court held that claims of excessive force during an arrest, investigatory stop, or other seizure are evaluated under a Fourth Amendment objective reasonableness standard.77 The Court in Graham rejected the existence of "a generic 'right' to be from excessive force, grounded . . . in 'basic principles of § 1983 jurisprudence.'"78 "In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force."79

Large numbers of § 1983 complaints are filed on an ongoing basis asserting Fourth Amendment challenges to warrantless arrests. The key issue in these cases is whether the arresting officer had probable cause. Probable cause exists when the facts and circumstances known to the officer would lead a reasonably prudent person to conclude that the suspect committed, or was committing, an offense.80 Because probable cause is a wholly objective standard, the officer's subjective belief or intent is irrelevant.81 Probable cause is a complete defense to a § 1983 Fourth Amendment unconstitutional arrest claim.82

Large numbers of § 1983 claims allege free speech retaliation claims. These claims frequently give rise to difficult legal issues and sharply contested factual issues.83 The majority of these claims are asserted by present and former public employees. The key issues in these cases are (1) the Garcetti v. Ceballos84 issue of whether the employee spoke as a private citizen, or pursuant to her official duties, in which case her speech would not be protected; (2) whether the plaintiff spoke out on a matter of public concern, or only private concern, in which case his speech would not be protected;85 (3) if the employee spoke as a private citizen on a matter of public concern, whether the defendant took adverse action against the plaintiff for doing so; and (4) the Pickering balancing issue86 whether the governmental interest outweighs the plaintiff's free speech interests.87 First Amendment retaliation claims are also asserted by individuals subject to criminal prosecution, government contractors, prisoners, and landowners, among others.

The Supreme Court held that a plaintiff who asserts a First Amendment retaliatory prosecution claim against a law enforcement officer must establish an absence of probable cause to prosecute.88 The Supreme Court, however, has not resolved whether a plaintiff who asserts a First Amendment retaliatory arrest claim must establish an absence of probable cause.89

Violations of state law are not enforceable under § 1983.90 When governmental conduct is not proscribed by a textually explicit provision of the Bill of Rights, the Supreme Court has generally rejected substantive due process protections and left the plaintiff to available state remedies.91 For example, in Baker v. McCollan,92 the Court held that "[f]alse imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official." Similarly, in Paul v. Davis,93 the Court held that defamation by a government official does not itself violate the federal Constitution. The Court in Paul stated that § 1983 is not a "font of tort law to be superimposed upon whatever system may already be administered by the states."94 In Collins v. Harker Heights,95the Supreme Court held that a claim that the city breached its duty of care to its employees by failing to provide a safe working environment was "analogous to a fairly typical state law tort claim" and was not cognizable under § 1983. The Court stated:

Because the Due Process Clause does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society . . . we [reject] claims that the Due Process Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law.96

However, in some cases, state law may have a significant, even decisive, impact on a federal constitutional right. For example, whether the plaintiff has a protected property interest for the purpose of the due process clause of the Fourteenth Amendment depends upon whether state law creates a reasonable expectation in the particular interest. In Board of Regents v. Roth,97 the Supreme Court held: "Property interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings. . . ." Further, under the Parratt-Hudson doctrine, when the deprivation of property or liberty results from "random and unauthorized" governmental action, the availability of an adequate post-deprivation remedy will satisfy procedural due process.98

Federal Statutory Preclusion of §...

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