42 USCA Sec. 1983 was originally enacted by Congress as part of the Ku Klux Klan Act of 1871, pursuant to the power granted to Congress under Section 5 of Amendment 14 to the US Constitution. Although its initial purpose was to protect the constitutional rights of racial minorities in the Reconstruction South, it was written broadly enough to create a federal cause of action for anyone whose rights have been violated under the 14th Amendment. Since the 14th Amendment incorporates many of the first 10 Amendments to the US Constitution, and makes those provisions applicable against the states and state officials, a “1983 Action” is an effective means of bringing suit in Federal court against State Officials that have violated Constitutional rights such as the right to free speech, freedom of religion, to be free from unreasonable search and seizure, and to just compensation for takings of private property. (Prior to the Civil War and the 14th Amendment, the Bill of Rights in the US Constitution was regarded as only protecting individuals from Federal deprivations of rights, not State governments.)
Section 1983 relief is supplementary to any state remedy that may exist for violations of your rights by state officials, and there is generally no requirement that a plaintiff exhaust state law remedies before pursuing a Section 1983 action. Furthermore, state officials are subject to suit under Section 1983 even if their actions are not authorized by state law, but are in fact prohibited by state law. Another advantage of the Section 1983 action is that an attorney’s fee award is available under 42 USCA Section 1988. Since some Section 1983 plaintiffs may only be seeking an injunction against governmental deprivations of rights like the right to free speech, or the right to be free from religion under the Establishment Clause, where there are no monetary damages, the allowance for an award of attorney’s fees to a prevailing Section 1983 plaintiff creates an incentive for lower-income plaintiffs to bring suit when a State or its officials have violated individual rights. In some cases, not only are compensatory damages available for rights violations under Section 1983, but punitive damages as well.
Unfortunately, one of the biggest hurdles to winning a damages award in a 1983 Action is Sovereign Immunity This is the idea that government and government officials are immune from lawsuits or other legal actions except when government has consented to the lawsuit. The courts have interpreted 42 USCA Sec. 1983 as failing to abrogate common law sovereign immunity because Congress did not explicitly abolish it in the language of the statute. Although the 14th Amendment’s Section 5 probably would give Congress the power to abolish common law sovereign immunity, the courts have assumed that Congress has chosen not to exercise this power. However, police officers and other state executive officials are regarded by the courts as having a mere “qualified immunity”, rather than an “absolute” immunity, which means, for police officers, that the defense of good faith and probable cause, which was available to police officers at common law, is available under a Section 1983 action. If a police officer fails to act with “good faith and probable cause”, then he becomes liable for a damages award under a Section 1983 action. Furthermore, actions for “prospective relief”, i.e., a declaratory judgment that a law is unconstitutional, or an injunction against a state executive official, ordering him not to enforce an unconstitutional law is available despite sovereign immunity because the courts regard an injunction as merely requiring a state official to obey the Constitution.
The Eleventh Amendment to the US Constitution also does not prevent a 1983 suit in Federal court against a state executive official for an injunction ordering him to obey the Constitution. The 11th Amendment has been construed to mean that a suit against a state official in Federal court cannot be instituted without that State’s permission (so-called “Eleventh Amendment Immunity”). However, Section 1983 was enacted pursuant to Section 5 of Amendment 14, which is considered to abrogate 11th Amendment Immunity to the extent a Federal cause of action is enacted to enforce the provisions of Amendment 14. However, 11th Amendment Immunity does still have applicability in the context of a 1983 Action because, just as the courts have interpreted 42 USCA Sec. 1983 as evidencing no Congressional intent to abrogate common law sovereign immunity, so too have the courts said that Congress has shown no intent to abrogate 11th Amendment Immunity under Section 1983 (although Congress would have the power under Section 5 of Amendment 14 to the US Constitution to do this if it wanted to).
As was already noted, pursuant to 42 USCA Sec. 1988, Section 1983 actions give a prevailing plaintiff a right to a reasonable attorney’s fee. Section 1988’s explicit terms seem to make this award of attorney’s fees discretionary, and to apply to “prevailing parties”, whether the plaintiff or the defendant. But, this has not been the way this statute has been interpreted by the courts. The Supreme Court has said that a prevailing plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust. (Newman v. Piggie Park Enterprises (US Supreme Court, 1968)) Furthermore, a prevailing defendant will normally not be awarded an attorney’s fee in a Section 1983 action, unless a court finds that the plaintiff’s action was frivolous, unreasonable, or without foundation. (Hughes v. Rowe (US Supreme Court 1980)) The reason for this interpretation of Section 1988 probably stems from the fact that the purpose of Section 1983 is to ensure that state officials obey the constitution, and the threat of the state recovering its attorney’s fees, if the Plaintiff has only brought what can be considered a reasonable lawsuit, would deter most potential Section 1983 Plaintiffs from ever filing suit, thereby encouraging continued violations of the Constitution by state officials. Furthermore, the amount to be awarded as attorney’s fees may exceed the damages award, and are available when only an injunction was sought under Section 1983.
An example of a Section 1983 Action would be a lawsuit challenging a state law that violates the Establishment Clause to the US Constitution’s First Amendment. Since the First Amendment has been incorporated by the 14th Amendment, it is applicable against the states, making a 1983 Action appropriate. Since many Establishment clause violations do not involve money, a Plaintiff will usually be seeking an injunction against the enforcement of the unconstitutional law. Given what has been said about 11th Amendment Immunity, the proper Defendant to name in a lawsuit alleging violations of the First Amendment will normally be the State’s chief executive officer, usually the Governor of that state, although other additional or alternative defendants may be appropriate in certain circumstances. The relief sought will be prospective, namely an injunction, ordering the official not to enforce the unconstitutional law. Additionally, a request for attorney’s fees should be made in your original petition, pursuant to 42 USCA Sec. 1988.
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