By: Sam Dudar, Esq. – Attorney


How are Federal and Constitutional Rights Enforced?

How are Federal and Constitutional Rights Enforced?  Sam Dudar, Esq. | 470-947-2471Before the 20th century, the United States and its constituent States were exempt from being sued under the doctrine of sovereign immunity. Sovereign immunity comes from the ancient belief in the divine right of kings, namely that “the King can do no wrong” or “the King is above the law” by divine right.

Following a tragic airplane crash flown by a U.S. pilot shortly after the Second World War (the pilot was flying blind by heavy fog in New York City), the Federal government decided that it and its individual States should bear some, but not all, of the responsibility for its officials and agents; this is to say that the United States has waived sovereign immunity to a limited extent.

This limited waiver of sovereign immunity is codified under Title 42, § 1983 of the United States Code (42 U.S.C. § 1983). Federal and Constitutional rights are enforced through lawsuits allowed under § 1983, which states, at length,

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.

Lawsuits that originate from § 1983’s language are called “Constitutional Torts” because they are a branch of personal injury law (also known as “torts”) that has its basis not from statute nor common law, but from the U.S. Constitution and Federal statutes.

Constitutional torts are lawsuits brought against governments and their officials and employees seeking damages for the violation of Federal constitutional rights. The majority of constitutional torts are brought against state and local governments and their officials and employees under 42 U.S.C. § 1983. Typically, such constitutional litigation (the name of the lawsuit that seeks to enforce a Federal right) is brought against police officers, cities and municipalities, and State organizations and their agents.

A minority of cases is brought against Federal officials under a case called Bivens. Note that a plaintiff cannot sue a Federal actor under § 1983 because the actor was operating under color of Federal law, not State law. The plaintiff must file a lawsuit against the government asserting the ruling in Bivens. However, if Federal actors operate jointly with State officials, then it can be said that the Federal actors acted under color of State law.

Because their work frequently involves the rights of freedom of speech and religion under the First Amendment, searches and seizures protected by the Fourth Amendment, and a relatively nonspecific right that the United States Supreme Court has called “substantive due process,” it should be no surprise that agents of the governments that frequently clash with these rights, such as police officers, city and State government officials, often find themselves as defendants in § 1983 lawsuits.

Uses of Constitutional Torts

Constitutional torts have two uses. First, the constitutional injury may be asserted as a defense.

Ex. Criminal defendant argues that the government cannot convict him because of an unconstitutional injury.

Second, the constitutional injury may serve as the basis for an offense.

Ex. A plaintiff asserts a claim against a state defendant.

Types of Remedies

There are two types of remedies that a plaintiff may seek when asserting a constitutional tort: a prospective remedy and a retrospective remedy. A prospective remedy asks the court for an injunction (a court order that stops someone or something from doing something). A retrospective remedy seeks damages from a past injury.

§ 1983’s Purpose

The purpose of § 1983 was to allocate to the Federal courts the job of protecting the people from unconstitutional action under color of state law, “whether that action be executive, legislative, or judicial.” Mitchum v. Foster. Federal courts are given jurisdiction to hear these cases because of the fear that, because “of prejudice, passion, neglect, intolerance or otherwise, State laws might not be enforced and the claims of citizens to the enjoyment of rights privileges and immunities guaranteed by the Fourteenth Amendment might be denied by the State agencies.” Monroe v. Pape.

For such reasons, it should be no surprise that Federal courts also have automatic jurisdiction (the ability to hear a type of case) over § 1983 lawsuits. 28 U.S.C. § 1343(3).


Meaning of “Under Color Of”

In constitutional law, state action means “government action.” Except for the Thirteenth Amendment, all constitutional violations require state action; that means that private citizens and organizations cannot be sued for violation of constitutional rights because these entities are not agents of the government.

Under Monroe, the actions of state officers that violate state law may still be “under color of” state law because § 1983 is a supplemental federal remedy. That is one way of saying that State and local governments are vulnerable to § 1983 lawsuits.

But not every state officer’s action is “under color of state law.” This is one defense your attorney can raise. Currently, there is no specific test, but a detailed inspection of the facts of the case matter. These facts include the following:

(1) whether the officer was on duty;

(2) whether the officer used government issued equipment;

(3) whether the officer’s motivation was job-oriented


Injury Requirement

A § 1983 injury is the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Thus there are two ways of establishing an injury: either under the Constitution or under Federal law.

Constitutional injuries fall under the Due Process Clause, Fourth Amendment, Equal Protection Clause, and the First Amendment.

“Due Process” is a tricky area of law. Procedural due process is concerned with whether accurate determinations of whether deprivations of “liberty” or “property” were due exist. In procedural due process, the state possesses the authority to deprive the plaintiff of “liberty” or “property,” so long as it proceeds in the appropriate way. This way is through “process,” meaning a hearing at which a plaintiff may challenge his deprivation. The general requirements of a “due process” hearing are notice of the action to be taken and the reasons for taking it, an opportunity to present arguments against the deprivation, and an impartial decision maker.

In substantive due process, certain official actions are forbidden altogether, no matter what the circumstances and no matter what process is followed.

In any case, there must be some injury that a Court will recognize or else your attorney can assert that there is no substance to the underlying lawsuit and the § 1983 case will be dismissed.

Updated: 2019-06-26