Claims for Constitutional and Statutory Civil Rights Violations Under 42 U.S.C. § 1983 in Colorado Courts
The ability of private citizen to enforce their constitutional and civil rights is an important aspect of our society and ensures that government entities, and people acting as agents of those entities, respect and don’t infringe on those rights.
Rights that find their basis in the U.S. Constitution are perhaps some of the most fundamental to our democratic society and the most deserving of enforcement. For, without the ability to enforce federal constitutional rights, the U.S. Constitution would merely be an illusory document that grants rights but protects nothing.
In protecting U.S. constitutional rights, the federal statute 42 U.S.C. § 1983 is an important law that provides private individuals a mechanism to seek relief against state governmental entities that deprive them of those rights. It is a powerful statute that can hold state governments accountable and deter them from depriving individuals of their constitutional rights in the future.
The full language of 42 U.S.C. § 1983 provides:
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.
Notably, 42 U.S.C. § 1983 was originally passed as part of the Civil Rights Act of 1871 in response to racial violence occurring in the after math of the civil war. That is, after the civil war, and after slavery had officially been abolished by the Thirteenth Amendment to the U.S Constitution, some state governments continued to disenfranchise, target, and actively discriminate against minority races. Accordingly, 42 U.S.C. § 1983 was passed to allow individuals an avenue of retribution and allows relief against state governments actors, as opposed to federal government actors, as a result.
Importantly, because 42 U.S.C. § 1983 deals with constitutional rights, many of which are inherently nebulous and fuzzy, case law interpreting and applying 42 U.S.C. § 1983 is highly complex and nuanced. Some important examples of those nuances include whether a particular government entity qualifies as a state actor, issues of immunity depending on what capacity and role a government employee is acting in, and whether a cognizable federal right is at issue. Examples of cases commonly brought and that are allowed to proceed under 42 U.S.C. § 1983 include cases for excessive use of force against local police officers and cases alleging deprivation of due process against local governments.
At its base, prevailing on a 42 U.S.C. § 1983 claim requires that two elements be met. Specifically, the plaintiff must show that:
(1) he or she was subjected to conduct that occurred under color of state law; and
(2) that conduct deprived him or her of rights, privileges, or immunities guaranteed under federal law or the U.S. Constitution.
Additionally, depending on the defendant entity or individual, as well as the federal right that has allegedly been deprived, there likely will be additional elements that need to be satisfied in order for a plaintiff to prevail on a 42 U.S.C. § 1983 claim. For example, claims against municipalities require that the deprivation occur as the result of a custom or policy attributable to the municipality, as opposed to a discretionary act by a government officer, in order for the municipality itself to be held liable.
Additionally, the constitutional or federal right alleged to be deprived typically has its own requirements or elements that must also be proven to have been violated. This article provides an overview of 42 U.S.C. § 1983 claims, including common constitutional and statutory rights that form the basis of those claims, with a focus towards how they have brought in Colorado courts.
The Conduct at Issue Must Have Occurred Under Color of State Law
As indicated above, the first element required to sustain a 42 U.S.C. § 1983 claim is that the conduct that deprived the plaintiff of a federal statutory or constitutional right must have occurred by a person acting under color of state law. Due to the complexities and interrelationships of local government entities; which can include municipalities, administrative agencies, and universities; this element in itself has an entire body of case law addressing what specifically constitutes a state actor.
While qualifies as acting “under color of state law” can be sufficiently nuanced as to require a case by case analysis. In general, “one acts under color of state law when one exercises power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” See Price v. Price, Case No. 18-cv-00029-CMA-SKC (D. Colo. Sep. 26, 2018).
Notably, while purely private conduct is excluded from the scope of this element, conduct that appears to be private on its face but has a sufficiently close nexus with the state can still satisfy this element. For example, if a private individual engages in conduct at the direction of or to assist a state actor, such conduct can still qualify as acting under color of state law even if the actor is technically a private one. See Allen v. Lang, Case No. 17-7062 (10th Cir. Jun. 20, 2018).
In looking at whether a private actor qualifies as a state actor and can be held accountable for deprivations of federal rights, Colorado courts have looked to 4 different types of tests:
– The Nexus Test, where the state exercises sufficient compulsive power over the private actor and the challenged conduct that the private actor will be considered to be acting under color of state law;
– The Public Function Test, where the private actor is engaging in conduct that is a traditional and exclusive function of the state and, thus, the private actor will be considered a state actor for purposes of 42 U.S.C. § 1983;
– The Joint Action Test, where state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights and, accordingly, the private actor and state actors will both be considered to be acting under state authority ; and
– The Symbiotic Relationship Test, where the state has so far insinuated itself into a position of interdependent with a private party that the state must be a recognized as a join participate in the challenged activity.
See Wittner v. Banner Health, 720 F.3d 770 (10th Cir. 2013). Notably, even though a particular actor may actually be employed by the state or otherwise working for the state, that does not necessarily mean that all of his or her actions satisfy the under color of state law requirement. For example, if a state police officer commits a tort against an individual while off duty and not within the scope of exercising his or her police officer duties, that office’s actions will not be attributed to the state but, instead, will be considered actions by a completely private actor. See Allen v. Lang, Case No. 17-7062 (10th Cir. Jun. 20, 2018).
Examples of Colorado court cases applying and interpreting this under color of state law requirement include:
– Price v. Price, Case No. 18-cv-00029-CMA-SKC (D. Colo. Sep. 26, 2018), where a plaintiff brought 42 U.S.C. § 1983 claims against private parties in relations to their actions in a prior probate proceeding. The court found that, although the private parties actions affected a state court proceeding, the actions themselves were still done by private individuals and, thus, were not done under color of state law and failed to meet that element. Accordingly, the plaintiff’s 42 U.S.C. § 1983 claims alleging deprivation of due process by those actors could not stand.
– Allen v. Lang, Case No. 17-7062 (10th Cir. Jun. 20, 2018), where a city water engineer showed up at a city hall and punched an individual making an open records request and the punched individual later sued alleging a 42 U.S.C. § 1983 claim under the Fourth Amendment for excessive use of force. The court ultimately found that the engineer had not been acting under color of state law because he had no official role in the open records request, no official duty to act as a security officer, and had gone to city hall for personal reasons and not for work related reasons. Additionally, there was insufficient evidence to demonstrate the engineer had conspired with city officials to engage in the challenged conduct. Accordingly, the court dismissed the plaintiff’s 42 U.S.C. §1983 claim.
– Anaya v. Crossroads Managed Care Systems, Inc., 195 F.3d 584 (10th Cir. 1999), where plaintiffs who had been detained and brought to a detoxification facility without probable cause sued alleging 42 U.S.C. § 1983 claims for violation of their Fourth and Fourteenth Amendment U.S constitutional rights. While it was clear the municipality’s police officers were acting under color of state law, the 10th Circuit Court of Appeals also found that the private detoxification facility was sufficiently intertwined with the state to be considered a state actor as well. Specifically, there was significant evidence that the facility worked in conjunction with the municipality to establish the policies leading to the unconstitutional seizures in order to drive revenue for the facility. Accordingly, the plaintiffs’ claims 42 U.S.C. § 1983 claims were allowed to proceed against the municipality and the private detoxification facility.
Overall, while some government actors, such as police officers and government officials, will clearly and routinely meet the acting under color of state law requirements, private actors require a more nuanced analysis. Specifically, for private actors, the more directly they are involved with state actors and the more active they are involved in administering state functions, the more likely a court will find they are state actors for purposes of 42 U.S.C. § 1983.
The Conduct at Issue Must Have Deprived a Person of Their Rights, Privileges, or Immunities Guaranteed Under Federal Law or the U.S. Constitution
The second element of a 42 U.S.C. § 1983 claim requires that state actor’s conduct deprive an individual of his or her rights, privileges, or immunities guaranteed under federal law or the U.S. Constitution. Importantly, rights protected by the U.S. Constitution are those that create personal rights and either explicitly indicate they apply to the states or have been held to apply to the states through the Fourteenth Amendment. Additionally, personal rights created by federal law, such as federal statutes, can also form the basis of a 42 U.S.C. § 1983 action.
Some U.S. constitutional rights that commonly form the bases of 42 U.S.C. § 1983 claims include:
– Deprivation of Commerce Clause rights. The commerce clause; found in Article 1, Section 8, Clause 3 of the U.S. Constitution; grants the U.S. Congress the power to regulate commerce that occurs between the states. The corollary of this power is the dormant commerce clause, which is implicit in the powers granted by the commerce clause and prohibits states from unjustifiably discriminating against or burdening interstate commerce. That is, regulating interstate commerce is reserved for the federal government, states cannot impose regulations burdening commerce between themselves. 42 U.S.C. § 1983 claims based on the dormant commerce clause typically allege some state regulation improperly restricts commerce between the states; for example, state imposed labeling requirements. See Bioganic Safety Brands, Inc. v. Amend, 174 F.Supp.2d 1168 (D. Colo. 2011)
– Deprivation of First Amendment rights. The First Amendment to the U.S. Constitution protects an individual’s ability to engage in religious activities, to engage in free speech, to peaceably assemble, and to petition the government for a redress of grievances. 42 U.S.C. § 1983 claims based on the First Amendment are frequently brought alleging some particular state law restricts freedom of speech or freedom of religion. Additionally, in the employment context, state employees are entitled to First Amendment protections in the workplace and, accordingly, a state employer censoring its employees can give rise to a 42 U.S.C. § 1983 claim. See Knopf v. Williams, 884 F.3d 939 (10th Cir. 2018).
– Deprivation of Fourth Amendment rights. The Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures at the hands of government actors and requires probable cause before a search or seizure can be made. Fourth Amendment claims are often the basis for 42 U.S.C. § 1983 claims involving excessive use of force by police officers, unconstitutional arrests, unconstitutional searches, and malicious prosecution for criminal charges. See Martinez v. City and County of Denver, Case No. 11-cv-00102-MSK-KLM (D. Colo. Sep. 25, 2013)
– Deprivation of Eighth Amendment rights. The Eighth Amendment to the U.S. Constitution prohibits excessive bail, excessive fines, and the use of cruel and unusual punishments by government actors. Accordingly, Eighth Amendment 42 U.S.C. § 1983 claims are frequently brought by prisoners challenging the circumstances of their confinement or prison sentences. See Ramirez v. Cooke, Case No. 14-cv-00171-RBJ-CBS (D. Colo. Dec. 3, 2014).
– Deprivation of Fourteenth Amendment due process rights. The due process clause of the Fourteenth Amendment to the U.S. Constitution provides that no state shall deprive any person of life, liberty, or property without due process of law. The due process clause includes two components, procedural due process which requires a meaningful opportunity to be heard before rights are taken away; and substantive process which involves fundamental rights which cannot be taken away regardless of the procedures involved. Fourteenth Amendment due process claims are common and frequently involve private property interests being taken away, including government benefits such as social security, without appropriate procedural safeguards. See Comprehensive Addiction Treatment Center, Inc. v. Leslea, Case No. 11-cv-03417-CMA-MJW
– Deprivation of Fourteenth Amendment equal protection rights. The equal protection clause of the Fourteenth Amendment prohibits state from making or enforcing any laws which deny to any person equal protection of the laws. At its core, the equal protection clause prohibits state government from treating similarly situated individuals differently. Most commonly, equal protection claims are brought alleging the government is discriminating against a particular class or group of people that have similar characteristics. Importantly, however, the U.S. Supreme Court has recognized that discrimination against single individuals, called class of one claims, can sustain an equal protection claim. That is, discrimination does not have to be against an entire class of people, if one person is discriminated against that can be sufficient. See Mondragon v. Adams County School District No. 14, Case No. 1:16-cv-01745-LTB-KMT (D. Colo. Feb. 24, 2017).
In addition to U.S. constitutional rights, rights granted under federal statues can also form the basis for 42 U.S.C. § 1983 claims. Notably, however, not all federal statutes can form the basis for such claims. Instead, only statutes that were clearly intended to create enforceable private rights can form the basis of a 42 U.S.C. § 1983. That is, a 42 U.S.C. § 1983 cannot merely be based on the fact that a violation of federal law occurred, the law at issue must also have clearly been intended to create a private right enforceable by the plaintiff.
In determining whether a particular statute was intended to confer a private right and, thus, is actionable under 42 U.S.C. § 1983, the U.S. Supreme Court has enumerated a 3 part test:
(1 ) First, the U.S. Congress must have intended that the provision in question benefit the plaintiff;
(2) Second, the plaintiff must demonstrate that the right allegedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence; and
(3) Third, the statute must unambiguously impose a binding obligation on the states such that it is couched in mandatory rather than precatory terms.
See Blessing v. Freestone, 520 U.S. 329 (1997). Some examples of federal statutes courts have found are enforceable under 42 U.S.C. § 1983 include rights under the National Labor Relations Act, certain provisions of the U.S. Housing Act, and certain provisions of the Medicaid Act. In general, however, courts are reluctant to find a private right of enforcement unless the statute at issue clearly and unambiguously creates and, further, does not provide an avenue of enforcement in the statutory scheme itself. See City of Rancho v. Abrams, 544 U.S. 113 (2005).
State Immunity, Absolute Immunity, and Qualified Immunity Against 42 U.S.C. § 1983 Claims
Even where the elements of a 42 U.S.C. § 1983 claim may be met or otherwise able to be proven, various immunity affirmative defenses can still apply to state actors thereby negating their liability. Specifically, the main types of immunity available against 42 U.S.C. §1983 claims include state immunity through the Eleventh Amendment to the U.S. Constitution, absolute immunity for certain government officials, and qualified immunity for state actors sued in their individual capacity. Each of these types of immunity are discussed in sequence below.
With respect to state immunity, while a 42 U.S.C. § 1983 claim does require the conduct at-issue to occur under color of state law, the U.S. Supreme Court has held that states are not “persons” under 42 U.S.C. § 1983 and cannot, therefore, be sued under the statute. The reasoning is that the Eleventh Amendment to the U.S. Constitution provides that states are immune from suit in federal courts and, because the language of 42 U.S.C § 1983 does not manifest an intent to disturb the states’ Eleventh Amendment immunity, the U.S. Supreme Court found neither a state nor its officials acting in their official capacities are persons subject to suit.
Accordingly, governmental entities that are considered arms of the state, and officers of these entities when sued for damages in their official capacity, are not considered suable persons for purposes of 42 U.S.C. § 1983. See Will v. Michigan Department of State Police, 491 U.S. 58 (1989); Wigger v. McKee, 809 P.2d 999 (Colo. App. 1990); Graham v. State, 956 P.2d 556 (Colo. 1998).
In determining whether any particular governmental entity is an arm of the state and, thus, immune from suit, its powers must be analyzed to determine its affiliation with the state. If the entity is entirely dependent on the state for funds and resources, it is equivalent to the state and, thus, considered a state entity and immune from suit. Colorado courts look to four factors in making this state entity determination:
(1) the character of the entity under state law;
(2) autonomy accorded the entity under state law;
(3) the entity’s finances; and
(4) whether the entity in question is concerned primarily with local or state affairs.
See Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007). Notably, significant weight is given to the entity’s finances and whether, if a judgment was rendered against the entity payment of that judgment would ultimately come from state funds. If the judgment would be paid out of state funds, the entity is likely to be considered a state entity and, thus, subject to state immunity.
Importantly, however, state immunity only applies to lawsuits seeking damages against arms of the state and state officials; lawsuits seeking injunctive relief against state government officials can still be brought. That is, where damages are not sought and injunctive relief is sought compelling a state actor to perform a particular action, state government officials are considered persons under 42 U.S.C. § 1983 and are, therefore, subject to suit in their official capacity.
This is because when a lawsuit seeks monetary damages against a state official in his or her official capacity, then the real party in interest is the state since state funds will pay any damages awarded. Where injunctive relief is sought, however, state funds are not at issue and, thus, state government officials are not immune from suit. See Nat’l Camera, Inc. v. Sanchez, 832 P.2d 960 (Colo. App. 1991); Neiberger v. Hawkins, 70 F.Supp.2d 1177 (D. Colo. 1999).
Notably, though, while entities that are highly intertwined with state control are immune from suit, the U.S. Supreme Court held in Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), that local government units, such as counties and municipalities, are not arms of the state and, therefore, are suable under 42 U.S.C. § 1983.
Specifically, under Colorado law counties and municipalities exercise their own power to sue and be sued, to enter into contract, and to levy certain taxes; accordingly, Colorado courts have recognized they are not sufficiently dependent on state funds and not sufficiently intertwined with state control as to be considered arms of the state. Accordingly, such entities and officials can be sued under 42 U.S.C. § 1983. See Graham v. State, 956 P.2d 556 (Colo. 1998); Wigger v. McKee, 809 P.2d 999 (Colo. App. 1990).
In addition to state immunity, certain government actors are also entitled to absolute immunity. Those individuals are legislators, judges, prosecutors, and witnesses. The rationale comes from the notion that our judicial system must be free to function and legislators, judges, prosecutors, and witnesses must generally be to perform their jobs such that they are not be hounded by litigation from unsatisfied parties.
Furthermore, to the extent these government actors commit any errors, the proper route to remedying such errors are the normal routes of review provided by law such as appellate remedies or review through the judicial process. Notably, however, absolute immunity only applies to these individuals to the extent they are acting within the scope of their jobs or duties. For example, a judge who acts without jurisdiction may not be subject to absolute immunity. See Scott v. Hern, 216 F.3d 897 (10th Cir. 2000).
Lastly, while absolute immunity completely protects an individual from liability, qualified immunity exists for other government actors that protects them against immunity only when certain conditions are met. In particular, qualified immunity exists as an affirmative defense to shield government officials performing discretional functions from individual liability. Where qualified immunity is applicable, it will attach and protect a government official from suit unless the government official’s conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.
That is, qualified immunity will protect a government actor from being personally liable unless their actions were in contravention of clearly established law. Qualified immunity stems from the notion that government officials should not be subjected to personal liability where they are attempting to carry out their duties but make a wrong decision, unless that wrong decision was clearly in contravention of established law. The purpose of the “clearly established” prong is to assure a “reasonable official would understand that what he is doing violates that right” before subjecting that individual’s personal funds and assets to liability. See Laurenti v. Bicha, Case No. 14-cv-02592-NYW (D. Colo. Feb. 9, 2016).
© 2018 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.