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Archive for the ‘Civil Rights’ Category

Civil Rights 42 U.S.C. § 1983

Tuesday, November 9th, 2010

The Bill of Rights, the first ten amendments to the United States Constitution, is a list of limitations on the Federal government’s power.  The Bill of Rights protects “unalienable rights” such as freedom of speech, press, association, and assembly.  Additionally, it provides for guaranteed procedures for those suspected or accused of committing crimes.  These include the right to be free from unreasonable searches and seizures, prohibitions of cruel and unusual punishment, and right to a speedy, public trial by an impartial jury.  Moreover, almost the entire Bill of Rights applies to the individual states (one exception is the 7th Amendment guarantee to a jury in a civil trial). 

Traditionally, the Bill of Rights was used as a shield.  That is, when a State or Federal government infringed on a person’s rights, the person whose rights were infringed upon would invoke a particular amendment at either a criminal or civil trial to prevent the government from taking the infringing action, or exclude evidence gotten through improper criminal procedures. 

 The Civil Rights Act of 1871 turned the Bill of Rights from a shield into a sword.[1]  Originally enacted to combat the Klu Klux Klan, the Civil Rights Act of 1871 creates a private right of action in Federal Court for a person whose civil rights have been violated.  42 U.S.C. § 1983 says the following:

 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.

 At the most basic level, in order for a plaintiff to have a 1983 claim, two prongs must be satisfied: (1) the person they are suing must have acted “under color” of state law, and (2) the plaintiff must have been deprived of a Constitutional or a federal statutory right.  It is important to note that 1983 operates against a person acting under color of state law who deprives a plaintiff of their federal or Constitutional right.  A claim against a person acting under color of federal law who deprives a plaintiff of their federal or Constitutional right is called a Bivens Action

 Finally, a successful § 1983 plaintiff can recover reasonable attorneys fees.  42 U.S.C. § 1988 states that “[i]n any action or proceeding to enforce a provision of section. . . 1983. . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. . . .”


[1] See Marshall S. Shapo, Constitutional Tort: Monroe v. Pape and the Frontiers Beyond, 60 NW. U. L. Rev 277, 322 (1965).

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