See also: How to refer to laws, Prison Litigation Reform Act
42 U.S.C. § 1983 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was
unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.
Originally
enacted in the wake of the
U.S. Civil War, § 1983 allows
individuals to
sue for
damages for violations of their
constitutional rights by
State officials and agencies acting "
under color of State law" (i.e. making use of
authority granted by State
law). For many years after its enactment there was very little
litigation under § 1983, primarily because of the original
understanding of the phrase "under color of state law." Originally,
courts
construed "under color of" to mean that, in order to violate § 1983, the
unconstitutional action of a State official had to be authorised by State law. Thus, if a State official violated the
Constitution and State law, a § 1983 action would have to be
dismissed. This left only a very narrow
field of
application for § 1983.
The
U.S. Supreme Court changed all that with its decision in
Monroe v. Pape, 365 US 167 (1961). In
Monroe, the Court rejected the
argument that officials who abused the authority granted them by State law were not acting "under color of state law," holding that "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law," 365 US, at 183, and thus
actionable under § 1983.
Having substantially broadened the
scope of § 1983
liability, the Court gradually began to
balance out the general liability for constitutional violations by State officials with a
doctrine of "qualified
immunity" from suit
1. In
Pierson v. Ray, 386 US 547, 557, for example, the Court noted that "a police officer is not charged with predicting the future course of constitutional law," and
held that State officials were entitled to immunity from suit for an unconstitutional
arrest if could show that they acted in "
good faith" - i.e. in the
sincere belief that their actions were
lawful - and with
probable cause. This limited immunity was later conditioned by
Wood v. Strickland, 420 US 308 (1975) on proof that the
defendant could show that the challenged act was "
objectively
reasonable" in light of "settled, indisputable law," and that the defendant acted in
subjective good faith.
All this changed in
1982 with the
Harlow v. Fitzgerald decision, 457 US 800.
Harlow eliminated the "good faith"
prong, and, with the following words,
ushered in a new era of
solicitude to government officials sued for constitutional violations:
In the context of Butz' attempted balancing of competing values, it now is clear that substantial costs attend the litigation of the subjective good faith of government officials. Not only are there the general costs of subjecting officials to the risks of trial - distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service. There are special costs to "subjective" inquiries of this kind. Immunity generally is available only to officials performing discretionary functions. In contrast with the thought processes accompanying "ministerial" tasks, the judgments surrounding discretionary action almost inevitably are influenced by the decisionmaker's experiences, values, and emotions. These variables explain in part why questions of subjective intent so rarely can be decided by summary judgment. Yet they also frame a background in which there often is no clear end to the relevant evidence. Judicial inquiry into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official's professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.
457 US, at 816-817. The burdens of litigation for the defendant and the disruption of effective government have become the new
refrain of the qualified immunity doctrine. This marked a
radical departure from the original understanding of immunity. When the
Pierson Court recognised that individual defendants accused of constitutional violations under § 1983 were entitled to "qualified immunity," it was merely reiterating a
principle of law that had long been in
existence at the time that § 1983 was adopted. The
common law immunity of
Pierson was based on the same
rationale on which common law immunity has generally been based: good faith. If, the reasoning goes, the defendant was acting in good faith, i.e. honestly believed her actions to be
lawful/
constitutional, then there was no need for
deterrence - one can assume that someone who
inadvertently violates a person's
constitutional rights wouldn't have done it if she'd known that it was unconstitutional.
Under
Harlow, it does not matter if the defendant acted with
malice or
evil intent. Instead, the entire qualified immunity inquiry focuses on whether the
right that the defendant
allegedly violated was "clearly established" at the time of the defendant's actions, and, for twenty years now, courts have been trying to figure out just what "clearly established" means.
The current understanding of "qualified immunity" - at least until the Supreme Court hears its next § 1983 case - is as follows:
If a defendant moves to
dismiss the lawsuit based on qualified immunity, the
plaintiff must show that the defendant's conduct was made unconstitutional by "clearly established" law prior to the date of the defendant's actions and that the right the defendant allegedly violated is "currently
cognisable," i.e. the right exists at the time of suit. In order to show that a right is "currently cognisable," the plaintiff must be able to point to
authoritative precedent - preferably from the Supreme Court or the
court of appeals for the
judicial circuit in which the case is being tried - to show that the right that the plaintiff asserts currently exists. Of course, just because it exists at the time of the suit doesn't mean that the defendant can't
assert qualified immunity. It just means that there are
grounds to allow the suit to proceed
assuming that the plaintiff can show that his rights were clearly established at the time of the defendant's challenged actions. On the other hand, if the alleged right is not "currently cognisable," then the plaintiff hasn't stated a
claim at all, and the entire suit must be dismissed - unlike a mere
judgment that the defendant is entitled to qualified immunity, the defendant will not only be
off the hook for
money damages, but for injunctive and
declaratory relief as well. The one major
advantage of this
approach is that of giving the courts
leeway to further develop the law surrounding the asserted rights.
If the plaintiff has shown that his rights have indeed been violated by the defendant, the next question is whether those rights were "clearly established" at the time of the alleged violation. There are several ways of doing this. First, the plaintiff may seek to show that the defendant's actions were so
obviously out of line with
constitutionally acceptable
conduct that a
reasonable official wouldn't need a
judicial opinion to know it was unconstitutional. This is the
outgrowth of the Court's decision in
United States v. Lanier2, 520 US 259 (1997), which dealt with a State
judge who sexually assaulted women who had
cases before him, threatening to
rule against them if they did not
submit. In a long overdue
tribute to
common sense in qualified immunity, the Court held that a government official who commits sexual assault in his
official capacity can't possibly believe such conduct to be in
compliance with the
Constitution.
Of course, a plaintiff who defeats qualified immunity based on
Lanier and has it upheld on appeal
3 would be advised to invest in a
lottery ticket, because such luck is exceedingly rare. Courts are
loathe to deny qualified immunity based on "
general principles," as was done in
Lanier. If the court does not believe the constitutional violation to be obvious to all but the
willingly blind, the plaintiff must try to establish that there is specific
precedent from the defendant's judicial circuit that establishes the right, and, barring that, that there is a
consensus amongst other
jurisdictions that the right exists.
There is, of course, one obvious
objection to be made to the current qualified immunity doctrine: it's
stupid.
Immunity, like
evidentiary privilege (allowing people to refuse to
testify), has traditionally been the exception, only to be applied when the grounds for granting immunity
outweigh the strong policy in favour of holding
wrongdoers
accountable for their unawful acts. As originally conceived in
Pierson, qualified immunity functioned in just this way. Since the 1980s, however, this approach, which made
liability for
unconstitutional acts the
norm, has been all but
vanquished. Under current law, an
official who has no idea that he's violating "clearly established law" (likely the
majority) is
liable despite acting in subjective good faith. On the other hand, an official defendant who acted out of sheer
malice, intending to cause unlawful
harm to the plaintiff, will not be subject to liability if the judge considers the law sufficiently unclear. It is hard to see how the doctrine's asserted
justification - preventing able, well-intentioned people from being discouraged from entering
public service by the fear of
insubstantial § 1983 suits - can possibly justify such a broad, intent-
neutral doctrine.
1 Qualified immunity applies only to suits for damages. A defendant entitled to qualified immunity can still be sued for a declaratory judgment stating that the defendant's actions were unconstitutional or an injunction requiring the defendant to refrain from such actions in the future.
2 Lanier did not specifically deal with § 1983, but with an analogous criminal provision (18 USC § 242). Courts have held that § 242 cases are relevant to § 1983 cases.
3 Caution: Only try in the Ninth Circuit!