Section 1983, Title 42, United States Code (Judicial Interpretation)

views updated

SECTION 1983, TITLE 42, UNITED STATES CODE (Judicial Interpretation)

Few statutes have fluctuated in importance as wildly as section 1983. From near total disuse—twenty-one reported cases from 1871 to 1920—it became one of the most litigated provisions of federal law. This drastic change is attributable both to developments in constitutional law and to developments peculiar to section 1983.

Section 1983's ascension matches the twentieth-century expansion of constitutional rights. As originally enacted in the Civil Rights Act of 1871, section 1983 at most provided a cause of action for deprivations, under color of state law, of constitutional rights. Until relatively recently, citizens had few constitutional rights enforceable against the states. In section 1983's early years, the modern expansions of the equal protection and due process clauses had not occurred, the state action doctrine immunized a broad range of activity from constitutional scrutiny, and the fourth amendment was in the infancy of its constitutional development.

An ill-considered dichotomy between classes of constitutional rights also hindered section 1983's growth. In an influential separate opinion in hague v. cio (1939), Justice harlan fiske stone argued that section 1983's jurisdictional counterpart, section 1343(3), should be interpreted to authorize federal courts to hear cases involving personal rights but not to hear cases involving mere property rights. This view influenced many courts' interpretations of section 1983 itself, again with limiting effect. In Lynch v. Household Finance Corporation (1972) the Court rejected the personal rightsproperty rights distinction. Paradoxically, a similar dichotomy between personal interests and economic interests continues to shape, indeed govern, interpretation of the equal protection clause.

Section 1983's text generated interpretive problems that might have hindered its widespread use even if the Constitution had enjoyed a broader scope. As enacted, section 1983 protected "rights, privileges or immunities" secured by the Constitution. Its scope therefore depended upon what were viewed as rights, privileges, or immunities secured by the Constitution. Until the slaughterhouse cases (1873), one might have thought the rights, privileges, or immunities so secured simply to be all constitutional rights. But the Slaughterhouse Cases narrowly interpreted the fourteenth amendment's privileges or immunities clause to protect only a small subclass of constitutional rights. Some courts adopted a similar interpretation of section 1983. In addition, section 1983 reaches only deprivations "under color of" state law. Not until well into the twentieth century was it clearly recognized that behavior not authorized by state law might constitute action under color of law. a narrowly construed constitution, the shadow cast by theSlaughterhouse Cases, the state action doctrine, and section 1983's text combined to minimize section 1983's importance.

In the 1920s, section 1983 provided actions for some deprivations of voting rights. Perhaps the Court relied on the section when, in nixon v. herndon (1927), it allowed a damage action to go forward against state officials. In Lane v. Wilson (1939), another voting rights case, the Court expressly referred to section 1983 in approving a damage action. But these cases did not erode the important limitations on section 1983.

The erosion process commenced with early twentieth-century cases that construed state action to include some actions taken in violation of state law, and with ex parte young (1908), which held that the eleventh amendment does not bar injunctive actions against state officials. In the 1940s, criminal civil rights decisions also interpreted the phrase "under color of" law to include some unauthorized action. monroe v. pape (1961) capped the process by interpreting section 1983 to protect at least all constitutional rights embodied in the Fourteenth Amendment and by holding the color of law requirement in section 1983 to be satisfied by the unauthorized action of police officers. Monroe, together with the wide expansion of constitutional rights of the 1950s and 1960s, assured section 1983's importance.

But section 1983's growth triggered a reaction, one that began with Monroe itself. If every constitutional violation generated a cause of action for damages there must be limits as to when defendants actually would be held liable. In Monroe, the Court, giving a questionable reading to section 1983's history, held that the section was not meant to render cities liable for constitutional violations. This limitation survived until monell v. department of social services (1978), when the Court held that cities may be liable under section 1983 but that, in yet another questionable reading of the section's history, Congress did not intend cities to be liable for acts of city officials unless the acts constituted "official policy," a phrase destined to be the subject of much litigation. The reaction also includes some sentiment to impose an exhaustion of remedies requirement in one or more classes of section 1983 cases.

With respect to individual defendants, the Court in a series of cases read into section 1983 an array of legislative, judicial, prosecutorial and executive immunities. And in quern v. jordan (1979) the Court held that section 1983 was not meant to abrogate the Eleventh Amendment immunity of states. In owen v. city of independence (1980), however, the Court declined to extend to municipalities the good faith defense available to executive officials. The reaction to section 1983's expansion may also encompass a series of cases, including Parratt v. Taylor (1981), paul v. davis (1976), ingraham v. wright (1977), and Estelle v. Gamble (1976), narrowly interpreting constitutional rights. If a private cause of action accompanies every constitutional right, the Court may be hesitant to "constitutionalize" many rights. Finally, the Court held in Carey v. Piphus (1978) that a violation of procedural due process, standing alone, will not support a substantial recovery of damages; to recover more than nominal damages a plaintiff in such a case must show actual harm. The Court left open the question whether this rule would apply to other types of constitutional violation.

For many years, courts disagreed over whether section 1983 provided a cause of action for violations of federal statutes by state officials. The revised statutes of 1874, which were not supposed to make substantive changes in the law, expanded section 1983's wording to include "laws." Over a century later, in Maine v. Thiboutot (1980), the Court interpreted section 1983 to provide a cause of action for at least some federal statutory claims.

Theodore Eisenberg
(1986)