Civil Litigation

Section 1983 and Bivens Lawsuits

Individuals whose constitutional and other federal rights have been violated by federal and state government officers may often bring federal lawsuits against those officers, as well as against units of the federal government and local governments.

Although there are various ways that a person can seek compensation for violations of specific federal rights, the two most common methods for obtaining monetary relief for violations of constitutional rights by the government and public officials are the Section 1983 lawsuits (against state officers and local government) and the Bivens action (against federal officers).

Section 1983 Lawsuits

42 U.S.C. § 1983 permits all individuals to file a lawsuit seeking monetary and other damages for violations of their constitutional rights by state and local governments and their officials.

Section 1983 provides that “Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects … 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 ….” Because the statute speaks of “laws” in addition to the Constitution, Section 1983 may be used to sue not only for constitutional violations, but also violations of federal statutes.

Because state governments enjoy sovereign immunity under the Eleventh Amendment, the federal government does not have the power to permit lawsuits against the states themselves. Moreover, the states’ immunity extends to state officers acting in their official capacities. Municipal and local government entities, however, do not enjoy sovereign immunity and are considered “persons” subject to lawsuits under Section 1983.

Government officials are often protected by “qualified immunity.” In order to get around that immunity, a Section 1983 plaintiff must prove that the officer violated “clearly established federal law.” If a court finds that a reasonable officer would have known that his or her conduct was unlawful in a given situation, then qualified immunity can be overcome.

Governments and its various agencies can also be sued under Section 1983 if they had sufficient personal involvement in the violation, or permitted the violation through gross negligence or by creating a policy or custom permitting the violation.

Section 1983 lawsuits are very commonly brought over constitutional rights violations under the Fourth and Fourteenth Amendment, and typically arise in the context of excessive force used by police officers. The Eighth Amendment’s prohibition of cruel and unusual punishment is often the basis of Section 1983 lawsuits by prisoners who have been abused by prison officials. Section 1983 is also a common vehicle for claims by public employees of First Amendment violations of the right to free speech and religion, and of Fifth and Fourteenth Amendment Equal Protection violations.

Perhaps the most troubling violations of constitutional rights occur in the context of use of excessive force by law enforcement officers against criminal suspects. Law enforcement officers have the very difficult job of ensuring the public safety and must sometimes even place themselves at risk to do so. These men and women deserve respect and are rightfully protected by law from liability for their innocent mistakes. Nevertheless, when law enforcement officers step outside the scope of their official duties and cause injury to members of the public, they can and should be held responsible for the results of their actions. When their actions rise to the level of violating a suspect’s constitutional rights, Section 1983 is an effective means of holding them accountable.

Police are not authorized to use excessive force—commonly referred to as police brutality—when arresting a suspect. Excessive force may range from something relatively minor like slamming a suspect against the hood of a car while handcuffing him to more extreme acts such as criminal assault, rape, or murder. It is important to understand that not every instance of excessive force will necessarily result in a constitutional violation.

Many instances of excessive force by law enforcement officers may be prohibited under state tort law as an assault or battery, and in those cases—depending on state laws—a state court lawsuit may be possible. But Section 1983 requires more: the wrongful police conduct must be objectively unreasonable under the U.S. Supreme Court’s Fourth and Fourteenth Amendment cases. Even if a law enforcement officer’s actions violate police policy or state laws, that is no guarantee that it is proper for a Section 1983 lawsuit. Rather, the reasonableness of a law enforcement officer’s actions in making an arrest or detention will require that federal courts balance “the nature and quality of the intrusion” on an individual’s constitutional rights against “the importance of the governmental interests” claimed as justification for the intrusion.

Where police officers have no reason to believe that a suspect is an immediate threat to the police or others, officers are not entitled to use deadly force. But where police reasonably believe a suspect is poses a serious immediate risk of injury or death to others, deadly force is typically authorized. As a plaintiff in a Section 1983 lawsuit, the person claiming his or her rights were violated by law enforcement officers will have to carry the burden of proving that any use of force was unreasonable.

Victims of excessive force and other constitutional violations who successfully sue under Section 1983 are typically entitled to compensatory damages, and in some cases punitive damages and attorney’s fees. Compensatory damages include everything from physical pain and suffering to emotional distress, lost wages, and medical expenses. Punitive damages go beyond the harm actually suffered by the plaintiff, and seek to prevent future violations. These may be awarded in addition to compensatory damages where the state officer’s conduct showed an evil motive, gross negligence, or reckless indifference to an individual’s constitutional rights.

Bivens Claims Involving the Federal Government

Bivens action” takes its name from a seminal U.S. Supreme Court case, Bivens v. Six Unknown Named Agents (1971), in which the Court first held that lawsuits against federal officers were permissible for alleged constitutional violations, even where no specific federal statute authorized the lawsuit. This makes the Bivens action a federal counterpart to the Section 1983 lawsuit, which is used exclusively against state officers and local governments for violations of individuals’ clearly established First, Fourth, Fifth, Sixth, and Eighth Amendment rights.

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 Bivens actions and Section 1983 lawsuits is that Bivens claims are 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.

As in Section 1983 lawsuits, compensatory damages are the typical remedy available to an individual whose constitutional rights have been violated. Punitive damages and attorney’s fees may also be available in certain cases.

The information provided above is a very general summary of the law at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a constitutional lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all state and federal courts in Georgia and in many other federal courts across the country.

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