Title 42, Section 1983 of the United States Code, commonly referred to as §1983, is the provision of the federal law that authorizes individuals to bring suit against government actors for violations of the United States Constitution. Deprivations of constitutional rights can arise in a variety of circumstances. Decisions of local land use boards, revocations of business permits, and actions taken by local law enforcement are all scenarios in which municipal officials have been threatened with §1983 liability.
It is not enough, however, for an individual to prove a deprivation of a civil right to maintain and succeed in a suit under §1983 against a municipality or government official. This article discusses two common defensive strategies available to government officials and municipalities embroiled in §1983 suits.
The first is the doctrine of qualified immunity. The doctrine of qualified Immunity is a defense available to individual government officials when 1) a specific right has been violated; 2) the law governing the government official’s conduct was “clearly established” and 3) under the law, a reasonable officer could have believed that the conduct was lawful at the time. The rationale of qualified immunity can best be summed up as follows: “qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”
The doctrine of qualified immunity essentially requires a reviewing court to look at the alleged circumstances and determine whether those circumstances are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” This means that the illegality of the conduct had to be apparent in light of the law existing at the time of the conduct.
The doctrine of qualified immunity is a significant hurdle to maintaining a successful §1983 claim. Only once in the past ten years has the United States Supreme Court ruled in favor of a plaintiff in the context of qualified immunity, and in that one occurrence the circumstances were particularly egregious. See Tolan v. Cotton, 134 S.Ct. 1861 (2014) (finding summary judgment not available on issue of qualified immunity when police officer threw plaintiff’s mother on cement and subsequently shot unarmed plaintiff three times without warning when plaintiff rose from the ground to intervene).
A second defensive construct available to employers of wrongdoing officials — commonly municipalities — is the rule that government officials cannot be held liable under §1983 solely because of its employees/officials actions. Under §1983, a municipality can only be liable for the civil rights violations of its employees or officers when that municipality has a policy that has caused the civil rights violation. A “policy” can be proven in a myriad of ways, primarily the failure to train officials or the existence of a “custom or practice” that has led to the deprivation of civil rights. Consequently, a party alleging to have been deprived of constitutional rights cannot simply rely upon the fact that a government official has violated the Constitution to bring suit against the employing municipality; rather, the allegedly injured party must bring what is commonly referred to as a Monell claim.
The referenced “custom or practice” required by Monell and its progeny need not be memorialized in writing but can arise as a result of a pattern of conduct and incidents sufficient to suggest a custom or practice. Moreover, single decisions made by “final policy making authorities” can also constitute a policy under §1983, such as Boards of Selectmen exercising authority conferred by state law.
Liability can also attach to the municipality when that municipality has failed to train the individual and such failure to train caused the alleged constitutional violation. To demonstrate liability under this theory, the allegedly injured party must show more than a single incident of failure to train. Rather, liability on this theory arises when there has been “deliberate indifference” with regard to a pervasive pattern of constitutional violations or where the municipality failed to train when there was a clear need for training.
In sum, the existence of a constitutional right violation by a municipal official is not the be all, end all in determining liability under §1983. There are significant defenses available to both government officials and government entities meant to reflect the real life circumstances and hurdles facing these entities.
Eric A. Maher, Esq. is a former law enforcement officer and an associate attorney at DTC. For more information regarding the contents of this article, please contact Eric.