Civil Defense


With 19 years of experience, we passionately offer investigative services in Civil Rights cases. We cover a wide variety of cases - from unfair housing practices to the defense of Police Officers that have been sued for acts Under Color of Law.

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42 U.S. Code § 1983 - Civil action for deprivation of rights

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. 


(i)  "Every person . . ."

Only "persons" under the statute are subject to liability.  A state is not a person subject to suit under section 1983, but a state officer can be sued in his official capacity for prospective or injunctive relief despite the fact that an suit against a government official in his official capacity represents nothing more than a suit against the government entity itself!  Despite this logical inconsistency, the current state of the law is that a state may not be sued for damages, but may be sued for declaratory or injunctive relief. Municipalities and local governments are persons subject to suit for damages and prospective relief, but the United States Government is not.  Individual employees of federal, state and local government may be sued in their individual capacities for damages, declaratory or injunctive relief. While the determination of who is a "person" is a matter of federal statutory interpretation, the matter of who has the capacity to be sued is determined by the law of the forum state.  Likewise, the law of the forum is to be applied in actions under section 1983 where the law of section 1983 provides no guidance.

(ii)  ". . . who under color of law . . ."

The traditional definition of acting under the color of state law requires that the defendant have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law," and such actions may result in liability even if the defendant abuses the position given to him by the state.  A private actor may also act under color of state law under certain circumstances.  For example, it has been held that a physician who contracts with the state to provide medical care to inmates acts under the color of state law.  For all practical purposes, the "color of state law" requirement is identical to the "state action" prerequisite to constitutional liability.

(iii)  ". . . subjects or causes to be subjected . . ."

Section 1983 does not impose a state of mind requirement independent of the underlying basis for liability, but there must be a causal connection between the defendant's actions and the harm that results.  In order to hold a local government liable under section 1983, the Supreme Court has interpreted this causation element to require that the harm be the result of action on the part of the government entity that implemented or executed a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers, or the result of the entity's custom.  Further, the entity's policy or custom must have been the "moving force" behind the alleged deprivation.  This "custom or policy" requirement is a dramatic departure from the rule of respondeat superior that prevails in many common law actions. A local government is said to have an unconstitutional policy when it fails to train its employees, and the failure to train amounts to deliberate indifference to an obvious need for such training, and the failure train will likely result in the employee making a wrong decision.  An unconstitutional policy may also exist if an isolated action of a government employee is dictated by a "final policymaker," or if the authorized policymaker approves a subordinate's decision and the basis for it. However, a supervisor can only be liable in his individual capacity if he directly participates in causing the harm--relying upon respondeat superior is insufficient.  The Supreme Court has rejected the notion that a plaintiff must meet a heightened pleading standard to state a claim against a municipality for an unconstitutional custom or policy.

(iv) ". . .any person to the deprivation of rights . . ."

Section 1983 is not itself a source of substantive rights, it merely provides a method for the vindication of rights elsewhere conferred in the United States Constitution and Laws.  Therefore, a plaintiff may prevail only if he can demonstrate that he was deprived of rights secured by the United States Constitution or federal statutes.  It is beyond the scope of this article to discuss all of the rights available under the United States Constitution, nevertheless, this article will provide an overview of perhaps the most utilized of all constitutional provisions--the Fourteenth Amendment Due Process Clause [hereinafter "the Due Process Clause"].

The Supreme Court has held that the Due Process Clause was not intended to supplant tort law, or to become "a font of tort law to be superimposed upon whatever systems may already be administered by the states."  Against this backdrop, to state a claim for a deprivation of Due Process, a plaintiff must show: (1) that he possessed a constitutionally protected property interest; and (2) that he was deprived of that interest without due process of law.  Due process property interests are created by "existing rules or understandings that stem from an independent source such as state law--rules or understanding that secure certain benefits and that support claims of entitlement to those benefits."  To have a property interest protected by the Due Process Clause, "a person must have more than an abstract need or desire for it.  He must have more than a unilateral expectation of it.  He must, instead, have a legitimate claim of entitlement to it."  While the existence of a protected property interest is decided by reference to state law, the determination of whether due process was accorded is decided by reference to the Constitution. Due process requires that "a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case,'" but the state does not have to provide the same remedies available under section 1983 in order to satisfy due process.

In construing the Due Process Clause, the United States Supreme Court has held that negligent acts by state actors do not effect a "deprivation" for the purposes of the Due Process Clause, and the random and unauthorized conduct of a government actor, even if intentional, does not implicate the Due Process Clause if the state provides a meaningful post-deprivation remedy, such as, for example, a tort remedy in its own courts.  However, where the state can feasibly provide a pre-deprivation hearing, it must do so regardless of the post-deprivation remedies available, and in the absence of a special relationship created or assumed by the state, a state's failure to protect an individual from violence or injury caused by private actors cannot state a violation of the Due Process Clause.

In addition to protection against deprivations of procedural due process, the Due Process Clause has two substantive components--the substantive due process simpliciter, and incorporated substantive due process.  In order to state a claim for a violation of the substantive due process simpliciter, the plaintiff must demonstrate that the defendant engaged in conduct that was "arbitrary, or conscience shocking, in a constitutional sense."  This form of due process has very limited application, but, in contrast to certain procedural due process claims, the existence of adequate post-deprivation remedies does not bar a substantive due process claim.  With respect to incorporated substantive due process, the plaintiff may state a claim by proving a violation of one of the Bill of Rights.  The Supreme Court has held that one of the substantive elements of the Due Process Clause protects those rights that are fundamental--rights that are implicit in the concept of ordered liberty, and has, over time, held that virtually all of the Bill of Rights protect such fundamental rights and has likewise held that they apply to the states through the "liberty" interest of the Due Process Clause.  However, the Court has held that when a specific provision within the Bill of Rights already provides protection, the more generalized notion of due process should not be used to define constitutional rights.

In addition to providing a remedy for deprivations of constitutional rights, section 1983 also makes actionable violations of federal "Laws."  A violation of a federal statute is cognizable only when the violation trammels a right secured by federal law.  However, a statute is said to create a federal right only when "the provision in question is intended to benefit the putative plaintiff," unless it reflects merely a congressional preference for a certain kind of conduct rather than a binding obligation on the government unit, or unless the putative plaintiff's interest is too vague and amorphous such that it is beyond the competence of the judiciary to enforce.

(v) " . . . shall be liable . . . in an action at law, Suit in equity, or other proper proceeding for redress . . . "

There is no requirement that the plaintiff sue in federal court because state courts have concurrent jurisdiction,and the usual rule is exhaustion of administrative and judicial state remedies is not a prerequisite to a section 1983 action.  Also, the existence of concurrent state remedies is not a bar to a section 1983 action.  With respect to the extent of damages available, the Supreme Court has noted that the basic purpose of a section 1983 damages award is to compensate the victims of official misconduct, and therefore held that there is no limit on actual damages if they can be proven.  But where they are not proved, only nominal damages of $1.00 may be awarded.  Punitive damages may also be awarded, but not against a municipality.  Injunctive relief is also permitted.


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types of Cases we have worked on:

  • Conspiracy Against Rights—18 U.S.C. §241

  • Deprivation of Rights Under Color of Law—18 U.S.C. §242

  • Federally Protected Activities—18 U.S.C. §245

  • Damage to Religious Property—18 U.S.C. §247

  • Freedom of Access to Clinic Entrances—18 U.S.C. §248

  • Hate Crime Acts—18 U.S.C. §249

  • Criminal Interference With Right to Fair Housing—42 U.S.C. §3631