"Section 1983" is the term used to refer to a federal statute, now codified in the U.S. Code at 42 U.S.C. § 1983, which provides in pertinent part:

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 * * *

By its terms, then, Section 1983 authorizes a private, civil lawsuit against any person who abuses state or local government authority to violate another person's civil rights. In short, the statute creates a lawsuit for abuse of government power.

The statute was enacted on April 20, 1871 as part of the Civil Rights Act of 1871. See 17 Stat. 13. Other parts of the 1871 Act prohibited the use of "force, intimidation or threat to prevent, hinder or delay" the execution of federal law, or "go in disguise on a public highway", and thus Congress clearly had in mind the terrorist acts committed by the Ku Klux Klan during the Reconstruction period following the American Civil War. In the territory of the former Confederacy, the Klan operated with the assistance, or at least without interference from, the state or local governments.

While radical Republicans controlled the Congress during the post-Civil War period, they did not control the United States Supreme Court. In a series of cases, culminating with the infamous decision in Plessy v. Ferguson (1896), which announced that "separate but equal" public accomodations for black people were acceptable despite the 14th Amendment, the Court first limited and then stifled Congress' efforts to secure racial equality. The 1875 Civil Rights Act, which guaranteed equal access to public accomodations regardless of "nativity, race, color, or persuasion, religious or political" was declared "unconstitutional" (that is, exceeding Congress' power under the 14th Amendment to enact "appropriate" legislation to secure the equal protection of the laws) in a decision known as The Civil Rights Cases, 109 U.S. 3 (1883). In that decision, Justice Bradley wrote, employing the argument now offered against affirmative action laws:

When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.

From the point of view of the judges in the Civil Rights Cases , persons offering public accommodations for private commercial gain were not acting on behalf of the government. The 14th Amendment was addressed to the States: not to railroads, inkeepers and restauranteurs. For those latter persons to come under Congress' authority, there had to be some kind of overt "state action" on the part of the government. The notion of "state action" remains a significant feature of Section 1983 law.

As a practical matter, federal authority in the South was greatly diminished in 1876, when federal troops were removed. From then until 1957, when Eisenhower sent the 101st Airborne Division to Little Rock, Arkansas to enforce a federal court-ordered desegregation of Central High School, federal judges were hesitant to directly confront the governments of the States in which they held court. Very few civil rights cases were brought during the Reconstruction period, and even fewer were successful.

Aside from the unfavorable political realities in the South, courts throughout the United States, and not just in the South, took a century to fully grasp the implications of the 14th Amendment. The first problem was the lack of specific enforcable rights, beyond a nebulous solicitude for "due process" and privileges of citizenship, which judges initially found so vague as to be meaningless, and certainly not a legal basis for entering a judgment for money damages. Gradually, parts of the Bill of Rights were "incorporated" into the 14th Amendment, and held to apply to the States. Originally, the Bill of Rights applied only to the federal government, not the States.

For example, it was not until 1949 that the Supreme Court held that Fourth Amendment protections against unreasonable search and seizure applied to the States. See Wolf v. Colorado, 338 US 25 (1949). This means that prior to 1949, there was no federal legal protection against unreasonable searches or arrests by State or local officers. Thus, after 1949, if you were subjected an unlawful arrest by a police officer, you not only had whatever (dubious) protection you were afforded under State law, you now also could sue under Section 1983. Courts, however, continued to make narrow interpretations of Section 1983, and broad interpretations of government immunity, which rendered the statute useless as a remedy for government misconduct. Section 1983 was therefore seldom used, until 1961 when the Supreme Court decided Monroe v. Pape

In Monroe, the Supreme Court held that a police officer was acting "under color of state law" even though his actions violated state law. This was the first case in which the Supreme Court allowed liability to attach where a government official acted outside the scope of the authority granted to him by state law. Prior to Monroe, if a police officer exceeded his authority and thus broke State law, you were limited to whatever remedies State law provided. The case of Monroe v. Pape, 365 U.S. 167 (1961) finally distinguished "acting under color of state law" from acting lawfully: the police acted unlawfully but their misconduct was only possible because they were police officers. In other words, "color of state law" included abuse of power, and finally Section 1983 was interpreted to reach the kind of conduct it was meant to punish.

While Monroe was a police misconduct case, the use of Section 1983 has been gradually extended to cover all kinds of government misdeeds including:

  • police misconduct
  • jail and prison mistreatment
  • discrimination in the provision of government benefits
  • land use disputes with local governments

A Section 1983 lawsuit remains, however, a last resort, and is permitted only when the plaintiff has no other remedy. A recent land use case illustrates this. The City of Monterey prevented a developer from building homes on some California beach front property owned by the developer. See City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999). The City used bureaucracy, rather than legal means, to prevent the development of the property, so there was never a condemnation suit nor any compensation paid by the City for taking the property as required by the Fifth Amendment. Normally, if a property owner feels the government has unlawfully deprived the owner of the property, they can file a lawsuit under state law (called an inverse condemnation lawsuit). However, California didn't recognize temporary "regulatory" taking (endlessly preventing an owner from developing the property by refusing to issue the required permits). Because state law provided no remedy, the developer was permitted to file a Section 1983 lawsuit. The lawsuit went to trial and the jury awarded the developer $1.45 million in damages. The Supreme Court, much to the surprise of local government lawyers everywhere, upheld the verdict. Thus, a statute originally passed to provide a remedy for black people harrassed by the Ku Klux Klan has become another legal tool for real estate developers.

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