What is a 1983 or a Bivens Lawsuit?

A Section 1983 lawsuit may allow someone to sue if a police officer or other government official violates their constitutional rights.

People whose constitutional or other federal rights have been violated by federal and state government officers may bring a Section 1983 lawsuit or what is called a Bivens claim against those officers to recover damages. For state or local government officials, a Section 1993 lawsuit is the right way to sue, and when the constitutional violation(s) involve a federal official a Bivens claim is the way someone can pursue a lawsuit.

Both legal avenues provide for recovery from the government for any damages resulting from the violation of that person’s rights, including physical, mental, and emotional injuries. Plaintiffs may also seek punitive damages and attorney’s fees in certain cases.

The primary purpose (and importance) of these actions is to deter unconstitutional government actions. But there are important differences between Section 1983 claims and Bivens claims:

Section 1983

18 U.S.C. § 1983 gives people the right to sue state government officials and employees who violate their constitutional rights: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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…”

States are generally immune from lawsuits, but Section 1983 claims can 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, such as was done by James Leach recently in South Dakota– Voice v. Noem, 1:19-CV-01003-CBK (D.S.D. May. 9, 2019).

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, or there was a pattern or practice. 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.

A Bivens Lawsuit

The 1971 Supreme Court case Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, established the right to sue federal government officials. As opposed to 1983 lawsuits, Bivens actions are is only used as a basis for lawsuits against individual officers or officials, not entire agencies. A Bivens claim is also limited to constitutional violations and usually not used for violations of federal statutes.

Where there are other, separate means of vindicating violations of constitutional rights, a Bivens action may not be allowed.

What constitutes violations of constitutional rights?

Most 1983 and Bivens lawsuits are brought for violations of the Constitution’s Fourth, First or Eighth Amendment rights by an official of the state or federal government. For example, officer shootings of unarmed citizens or cases of police brutality and excessive force, false arrests, illegal searches without proper warrants, custodial inmates beaten or injured by guards, inmates medical needs being willfully ignored by guards, or schools or government entities that censor or punish students or public employees’ right to free speech or religion, could all be subject to these types of claims.

The “qualified immunity” roadblock

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.” This concept presents a roadblock for many lawsuits. Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). 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. Courts disagree on what “clearly established” actually means, and most defendants in these lawsuits can tie up a lawsuit in appellate courts by appealing a trial court’s denial of qualified immunity.

While there are significant roadblocks in these types of lawsuits, they are a vitally important legal mechanism to hold government accountable. If your constitutional rights have been violated by state or federal officials and you want to discuss it, feel free to contact our office for a case review/consultation.