Litigation Management

SPECIFICALLY SPEAKING
MUNICIPAL

Claims involving the alleged violation of an individual’s constitutional rightshave be- come increasingly common- place,resultinginmoreclaims against municipalities and/or their employees. Section 1983 claims against a municipality or a public employee are not the same as a typical state law claim and should not be defended in the same manner. Civil rights claims differ significantly in the manner of pleading, standards of proof, available defenses and types of damages recoverable.

Section 1983 litigation can be costly to a municipality and/or its insurer because a prevailing plaintiff may be awarded attorney’s fees and costs. These claims can also be expensive to defend given the potentially extensive discovery and motion practice. Therefore, it is important to properly evaluate them early to determine an appropriate resolution and defense strategy before mounting attorney’s fees and costs make the case too costly to pursue various options.

Congress provided the means for asserting violations of the U.S. Constitution through the Civil Rights Act of 1871. To establish a cause of action under Section 1983, the plaintiff must prove that the defendant while acting under color of state law deprived him or her of a right guaranteed in the U.S. Constitution or applicable Federal Law.

There are several key issues to be aware of when assessing potential liability of defendants and determining litigation strategy. First, vicarious liability and respondent superior are not at play in Section 1983 litigation. Plaintiff must prove that each named defendant violated his or her rights. For the governmental entity, the plaintiff must prove that a policy, practice or custom of the entity was the driving force resulting in the violation of the plaintiff’s rights. For the individual defendants, the plaintiff must show that the named individual defendant’s actions violated the plaintiff’s rights. Proving a civil rights violation by an individual police officer does not establish liability on the defendant officer’s employer. Given this, there may be conflicts between the entity and the