A Brief Overview of Constitutional Litigation

By Allen Thompson, Esq.

I talk to a lot of people about the U.S. Constitution, the rights guaranteed by it, and whether a governmental entity or agent has violated those rights.  The courts, over the last two centuries or so, have built up doctrines and analyses to determine whether the government has violated an individual’s rights.  While much of the analysis has evolved to protect the governmental entities and those working for them from liability, this means that there is a lot more to a civil rights case than alleging “my rights were violated” and pointing to the Bill of Rights.  Generally, courts have justified this limitation in order to promote an “active” and “efficient” government that can act without stopping to think about liability at each step.  Regardless of one’s feelings about the justification, that analysis is what the courts will use, and will ultimately determine whether your civil rights claim is viable.

Below is a brief outline of some of the more important issues that will arise during a civil rights case.  The outline is meant as just that: an outline.  It is not an all-encompassing guide to litigation under 42 U.S.C. Section 1983 (which provides the mechanism by which a constitutional claim is brought before the court).  This is meant only to familiarize the reader with the terms and general analysis that the courts will use and hopefully answer some basic questions you may have.  As always, if you believe your rights have been violated, I encourage you to call for an appointment, so that an attorney can analyze the specific facts of your case.

  1. State action

A successful 1983 claim is going to require state action (other civil rights claims, like discrimination, are generally brought under Title VII, which statutorily authorizes suit).  This means that the entity violating your rights is going to be a city, county, township, etc., or an employee of one of the above entities.  Sometimes, a nominally private entity can be considered a state entity.  For example, a private medical care company operating the medical facilities at a prison can be considered a government entity, as it is performing a government function.  On the other hand, a truly private entity, such a movie theater, retail store, or restaurant, can limit your actions, even actions covered by the Constitution.  Thus, a movie theater can lawfully prohibit the carrying of firearms, even if you have an LTCF, and a retail store can prevent you from speaking out about an issue on its property, despite the First Amendment.  Federal statutes cover some issues such as religion and speech restrictions by employers, but generally speaking, they aren’t 1983 actions.

  1. Immunities

The biggest hurdle in Section 1983 litigation usually involves government immunities.  There are several types of immunities that governments have: Sovereign, qualified, absolute, and what is called Monell liability.

Sovereign immunity applies to the state and state agencies, and prevents the state from being sued for monetary damages.  Individual state employees, however, can be sued in their individual capacity, but the claim must meet a certain threshold, generally finding that the individual acted far outside the scope of their normal employment.

Qualified immunity applies to individuals who are employed by the government.  Here, there are two basic issues that the court must resolve.

One issue involves whether the individual had notice that the action would violate a constitutional right.  For example, searching a house without a search warrant and no consent would generally be considered a violation of the Fourth Amendment (although, as with everything, there are some exceptions).  However, searches of cell phones have recently been before the courts, to determine whether the search of a cell phone during an otherwise legal stop is constitutional.  On newer issues, such as these, the courts can find that the actions violated your rights, but that the law wasn’t clearly defined such that the officer would have known he or she was violating your rights.  In that instance, the individual agents are likely to be dismissed on grounds of qualified immunity.

The other issue is whether the government agent acted reasonably.  This is entirely fact dependent.  Often, this requires the use of an expert in the field to give a deposition and/or testify at trial.  Here, the court can also find that your rights were violated, but that the agent, at the time of the actions, was acting reasonably under the circumstances.

Absolute immunity is generally only applied to District Attorneys and Judges, although some courts (like the Third Circuit) has applied that immunity to Child and Youth Service workers as well, although in a more limited fashion.  This means that you cannot sue the agent for his or her actions.  If the actions are entirely out of the scope of employment, there might be a separate cause of action, but generally not a 1983 action.

Finally, there’s Monell liability.  Monell is the seminal Section 1983 case and sets the parameters for when a government entity is liable.  In order for a city, township, county, etc. to be liable, the actions of the government entity itself must have caused the damages.  This is very different from general civil liability.  If you go to a retail store and you slip on a spill that was supposed to be cleaned up by an employee, but was not, then the store may be liable.  When suing the government, the plaintiff must show that the policies – or lack of suitable policies – caused the damage.  To analogize back to the retail store, under the Monell theory, the store’s manual must have stated that spills are not to be cleaned up, or entirely neglected to mention spill protocol, in order to be liable.  Thus, actions of government agents, not matter how unconstitutional, do not automatically create liability for the government entity.

  1. Damages

Finally, there must be some sort of damages.  This is generally true of all lawsuits, but especially so here.  If you have no identifiable damages, then you will very likely get what are referred to as “nominal damages.”  This means that the court can ultimately find in your favor, but award you a dollar or less.

As stated above, this is merely a guideline to familiarize the reader about Section 1983 lawsuits and perhaps answer some basic questions.  Each case is unique, and the facts and nuances of each case should be analyzed by an attorney with experience in federal civil rights litigation.  If you think you have a case, or are unsure, I encourage you to call and set up an appointment.

2 thoughts on “A Brief Overview of Constitutional Litigation

  1. Another controversial situation that happens a number of times; is when a condominium association prohibits a home owner from putting an American flag on the outside of their property. When you sign a contract with the association you must abide by the rules of the contract. Under Art. 1 Section 10 ,paragraph 2. of the U.S. Constitution ,”No state shall pass any Law impairing the Obligation of Contracts.”


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