Individuals whose constitutional and other federal rights have been violated by federal and state government officers may bring a Section 1983 lawsuit or Bivens claim against those officers to recover damages. A Section 1983 lawsuit is the right way to sue an official who works for a state or local government, and a Bivens claim is the way someone can pursue a federal official when that official has violated the person’s constitutional rights.

Both Section 1983 and Bivens claims allow you to recover from the government for any damages resulting from the violation of your rights, including physical, mental, and emotional injuries. You can also seek punitive damages and attorney’s fees in certain cases.

And while they serve similar functions, namely deterring unconstitutional government actions, there are important differences between Section 1983 claims and Bivens claims:

What is a Section 1983 Lawsuit?

Section 1983, which is short for 42 U.S.C. Section 1983, gives people the right to sue state government officials and employees who violate their constitutional rights. Originally passed during Reconstruction, the statute reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…

Because states are immune from lawsuits, Section 1983 claims have to be brought against the specific government officials or employees who violated your civil rights. Sometimes this means suing a police officer for violating your rights; sometimes it means suing the state’s elected officials to block an unconstitutional law from taking effect.

While state agencies and local governments can also be sued for violating your rights, the rules for suing them are slightly different—rather than being able to sue the local government when one of its employees violates your rights, you can only sue the local government if it was a local government policy that led to your rights being violated. Local government “policies” include both official rules, decisions by authoritative “policy makers,” and informal, common practices that are de facto policy within the local government entity.

What is a Bivens Lawsuit?

Bivens claims, named after the Supreme Court case Bivens v. Six Unknown Named Agents, are like Section 1983 claims except they are brought against federal government officers and employees. There are far fewer Bivens claims than Section 1983 claims.

Unlike with Section 1983 lawsuits, where local government agencies may be sued, a Bivens action may not be brought against any federal government agency. It is only used as a basis for lawsuits against individual officers or officials. Another major difference between a Bivens claim and a Section 1983 lawsuit is that a Bivens claim is limited to constitutional violations and typically may not use violations of federal statutes as a basis for recovery.

Where Congress has provided a separate means of vindicating violations of constitutional rights, a Bivens action may not be permitted. For example, because the Civil Service Commission provides federal employees with a “comprehensive remedial scheme,” a federal employee cannot sue his supervisor for damages in a Bivens action claiming First Amendment violations. And most people who are injured by an employee of the federal government must pursue any claim for damages under the Federal Tort Claims Act (or FTCA).

When do government officials violate someone’s constitutional rights?

There are a variety of different ways a government official may violate someone’s constitutional rights. But most Section 1983 lawsuits and Bivens claims are brought when an official of the state or federal government violates someone’s Fourth, First or Eighth Amendment rights in one or more of the following ways:

  • Shootings by law enforcement officers against unarmed citizens and other cases of police brutality and excessive force
  • False arrests by law enforcement officers and malicious prosecutions when there is no probable cause or evidence of criminal wrongdoing
  • State and federal law enforcement officers searching through your house and seizing your property without a valid warrant
  • If you are a prisoner and you are beaten and injured by guards or if guards deliberately ignore your medical needs
  • Schools or government employers who punish or censor a student or public employee for exercising their right to free speech or religion

What is “qualified immunity” in a Section 1983 lawsuit?

When a police officer or other government official is facing a Section 1983 lawsuit or Bivens claim, they will almost always try to get out of it by raising the defense of “qualified immunity.”

Qualified immunity is a legal defense to a Section 1983 lawsuit. It allows a police officer or other official to escape liability if the constitutional right the officer is accused of violating was not “clearly established under federal law” at the time the right was allegedly violated.

As you might expect from such a vague phrase, whether a law or right is “clearly established” can often depend on whatever the judge thinks. While all judges consider Supreme Court precedents and cases in their own Circuit, many disagree on how similar the facts of a prior case have to be to the facts in a current case before the prior case can be considered “clearly established law.” Others also disagree on whether lower court opinions, guidance from federal agencies, and other sources can “clearly establish” a law.

Not only is it difficult to establish that a right was “clearly established” at the time it was violated, but government defendants who are denied immunity are allowed to appeal that decision before trial. That gives the government a considerable amount of time, during which plaintiffs can run out of resources and be forced to drop their case.

Our constitutional rights attorneys can help you win a Section 1983 lawsuit

Our firm is one of very few firms with a record of success in Section 1983 lawsuits, Bivens claims, and other constitutional rights litigation.  We know how to pursue police officers and other government officials who violate people’s constitutional rights from our decades of work in serious criminal defense cases. We are not afraid of taking on corrupt or incompetent law enforcement officers when those officers violate our clients’ civil rights.

If you or a loved one have been the victim of excessive force by the police, a wrongful search of your home or property, or have had any other type of constitutional rights violation, call us now for a free consultation to find out if you may have a good Section 1983 lawsuit or Bivens claims.

We have successfully represented clients in Section 1983 lawsuits and Bivens actions across the United States. Our firm has offices in Atlanta GA, Alexandria VA, and Washington DC, and we frequently travel to other federal courts to represent people in serious federal cases.

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