Chapter 11
Civil and Criminal Remedies for Constitutional
Violations
Introduction
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civil remedies
criminal remedies
administrative remedies
dual sovereignty
Civil Remedies
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tort
compensatory vs. punitive damages
Title 42, Section 1983 of the U.S. Code
Bivens suit
Section 1983 Legal Actions
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taken against local and state law enforcement
officials
Monroe v. Pape: individuals can sue state
officials for damages in federal or in state
court
three elements that a plaintiff must establish
by a preponderance of the evidence
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color of law
violation of constitutional rights
immunity
Color of State Law
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the defendant exercise power that he or she
“possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the
authority of state law”
totality of the circumstance
whether the individual’s acts were undertaken in
furtherance of his/her responsibilities as a police
officer or were undertaken as a private citizen
Violation of Federal Constitutional
and Statutory Rights
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defendant violated a right guaranteed by the U.S.
Constitution or federal law
violation of a right guaranteed by a state
constitution but not guaranteed by the U.S.
Constitution may not be the subject of a legal suit
under § 1983
Individual Liability under § 1983
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liability may be imposed on
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a police officer who is directly responsible for
violating an individual’s constitutional rights
his/her commanding officer
in some cases, city officials
an “affirmative link” between the actions or
orders of the supervisors and the allegations of
police misconduct must be proved to hold
supervisors liable
Immunity
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absolute and qualified
Harlow v. Fitzgerald
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§ 1983 suits are intended to compensate
individuals who have been harmed by a
violation of their federal constitutional rights
and rights under federal statutes
§ 1983 suits impose a burden on government
officials, some of whom may prove to be
completely innocent
Absolute Immunity
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enjoyed by judges, prosecutors, witnesses, and
jurors
during a trial, individuals are asked to make
difficult choices and should not be in fear of
being sued
Qualified Immunity
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offered to police officers, prison officials,
correctional officers, probation officers, and other
criminal justice practitioners
liable under § 1983 for the violation of a “clearly
established right”
whether an objectively reasonable officer would be
aware that his or her conduct is unlawful
police and other criminal justice professionals work
under enormous pressures and that the line between
unlawful and lawful conduct often is unclear
three steps
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whether the individual/officer violated the plaintiff’s
constitutional right
whether the right was clearly established
whether the right violated was a clearly established
constitutional or federal right
Legal Equation
Immunity of Judges and Prosecutors
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officials still may be criminally prosecuted for penal
offenses such as corruption, bribery, or conspiracy to
deprive an individual of his or her civil rights
Mireles v. Waco: “[a]lthough unfairness and injustice to a
litigant may result on occasion, it is a general principle of
the highest importance of the proper administration of
justice that a judicial officer, in exercising the authority
vested in him, shall be free to act upon his convictions
without apprehension of personal consequences to
himself”
Forrester v. White: judges can be held liable under §
1983 when carrying out administrative, not judicial, tasks
Imbler v. Pachtman: rationale for prosecutorial immunity
is similar to that for judicial immunity
Affirmative Duty to Protect
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question of whether the police, correctional officers, or
other government officials are civilly liable for failing to
protect an individual or the public from a criminal act
police and other government officials have no legal
obligation to intervene to protect the general public
police do have a duty to protect those over whom they
have control (e.g. prisoners) and those with whom they
have a “special relationship”
“state-created danger” exception
Liability of Local
Governments Under § 1983
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state governments and agencies cannot be sued under §
1983
Eleventh Amendment
liable when police officials or other employees inflict an
injury while carrying out an official governmental
“policy” or custom
liability
causality
factors
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accountability
resources
local budgets
Injunctions
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a court order that directs an individual or
government to stop an unlawful activity
a violation of an injunction is punishable by
contempt
typically have been issued only where there is
evidence that police officials have resisted demands
to change discriminatory or harmful police
department policies that present a clear and
immediate threat of harm
Pattern and Practice of
the Deprivation of Constitutional Rights
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Federal Police Misconduct Statute, 42 U.S.C. §
14141: it is unlawful for law enforcement
officers or law enforcement agencies to “engage
in a pattern or practice of conduct” that deprives
individuals of a constitutional right or right
guaranteed by the laws of the United States
pattern-or-practice decree
State Tort Remedies Against
Law Enforcement Officers
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tort actions against law enforcement officers are
difficult to win because they possess the defense
of official immunity
proof by a preponderance of the evidence that the
tort was committed in a “willful or malicious
fashion”
respondeat superior
Remedies for Constitutional
Violations by Federal Agents
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Bivens v. Six Unnamed FBI Agents: federal law
enforcement officers are responsible for constitutional
torts that violate individuals’ Fourth Amendment
rights
the requirements for a Bivens suit are essentially the
same as the requirements for a § 1983 suit
federal judges and prosecutors enjoy absolute
immunity
federal law enforcement and correctional officers, the
heads of federal agencies, and presidential aides are
provided qualified immunity for violating
constitutional rights that are not clearly established
elements of a Bivens action: similar to that of a §
1983
Federal Tort Claim Act, 28 U.S. C. § 1346(b)
Legal Equation
Criminal Prosecutions
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prosecutors often encourage an individual to
seek a civil remedy rather than look to the
government to initiate a criminal prosecution
against a police officer
state criminal codes also often include specific
provisions punishing official misconduct and
obstruction of justice by government employees
Graham v. Connor
federal criminal prosecution
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18 U.S.C. § 242
Screws v. United States
Internal Affairs
internal affairs division
 four possible results of an internal affairs
investigation
 unfounded
 exonerated
 not sustained
 sustained
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External Review
civilian review
 concern of outsiders second-guessing
police actions
 authorities
 civilian review
 civilian investigation
 civilian oversight
 civilian mediation
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