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Section 1983 claims – The Great Equalizer

November 16, 2011

2. Law

Section 1983 claims – The Great Equalizer

Before I even touch this topic, let’s get one thing understood:  I only do civil cases that have a criminal law (substantive, procedural, or penal) underpinning.  I don’t do slip-and-falls or MedMal or any of that world.  There’s plenty of attorneys to choose from that do that work.  I prefer the richer history of malfeasance by our overlords.  I like to have a copy of our Constitution in hand when I give closing arguments.  That would be silly if I were trying to nail an insurance company over an auto accident.

Now, onward … To understand Section 1983 claims, we need to first make sense of the name.

The law of the United States (so we’re taking federal law not state law) is divided into “Titles.”  Titles are further broken into “sections.”  The entire doc is called the United States Code – U.S.C. for short.  When we see some writing referred to as 42 U.S.C. 1983, that means Title 42 of the United States Code Section 1983.  Because there is no other Section 1983 in any other title that rises to such prominence, we get away with being able to call out just the section number when we sue – it’s a 1983 action or a Section 1983 action.

Now let’s set the stage.  Here’s the first half of 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

You can read it all here.

Old phrasing – “under color of any statute.”  “Color” means “a claim of right.”  In this context, a cop claims the right to stomp your ass even though you’re being compliant.  A cop kicks down your door without a Warrant and with no plausible claim to an exception and proceeds to ransack your person and place.  If you’re in prison, the facility is not providing appropriate medical care or food or safety.  The list is long, but you see where it’s headed.  We all share Constitutional guaranties in this country, and if a person acting under some claim of right violates those guaranties then some penalty has to kick in.

But let’s not get carried away.  The worse thing for a cop is to be charged with absolute clarity during the heat of a pursuit and arrest.  That’s not fair.  So the law sets the bar a little bit higher – it recognizes that more force may be employed merely because of the nature of the crime (as opposed to the reaction of the suspect).  And for violations in prison, they don’t use the pathetically weak “negligence” standard – they want “deliberate indifference.”

And let’s swing back our way.  Just because someone is charged with a crime or suspected of a crime or sits in jail doesn’t make certain aspects of the Constitution any less applicable to them.   The US Constitution uses three words in different contexts – people, residents, citizens.  None of those words signify criminal status.

There is just one mention of a person’s criminal status making them different – the 13th Amendment allows involuntary servitude “as a punishment for crime whereof the party shall have been duly convicted.”  That’s prison labor – which we’ll get to in another post.

So we have cops or prisons (our examples) acting badly against alleged or convicted criminals (my clients).  Understanding that we can’t whine because the cheddar wasn’t sharp enough or the brie was over-heated, there are still plenty of bad actors and bad acts on the law enforcement side.

This is where 1983 steps in.

There are volumes of cases that define the edges of behavior that although it seems wrong is not actionable.  Nobody’s perfect and law enforcement needs to be able to do its job.  But when they cross the line, we’ll get them.  The cases aren’t pretty, but they’re important.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde


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