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
18 | LitigationManagement | summer 2011
Section 1983 C L A I By Michael Delonay and William B. Oberts Not Your Typical State Law Claims