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Constitutional Litigation
Wayne State University Law School
Goodman, William H.

·         1983 is the primary vehicle for obtaining damages and equitable relief against state and local officials who violate the Constitution. 
·         1983 enables a person whose constitutional rights have been violated to sue the wrongdoer personally for redress. Liability will attach if (1) the defendant has acted “under color of state law,” and (2) the defendant’s action deprived the Plaintiff of some right, privilege or immunity secured by the Constitution or federal laws. 
·         HISTORY
o   Enabled victims of unconstitutional state action to sue the wrongdoing “person” in an action in law or equity
o   Monroe v Pape
§ A damages action brought to redress an unconstitutional police break in of a private home
·         Chicago police broke into Monroe’s home, got them out of bed, made them stand nude in living room, ransacked the house
·         He was arrested, taken to station and held 10 hours not allowed to call lawyer, not promptly arraigned
·         He was not prosecuted
§ Monroe sued the individual police officers and City of Chicago under 1983, claiming break in was unreasonable search and seizure in violation of the Fourth Amendment (guarantees incorporated against states through Due Process Clause, 14th Amendment). Also claimed rights violated by prolonged post-arrest detention
·         Monroe’s 1983 remedy was supplemental to any remedy he might have under state law (did not need to exhaust available state remedies as a precondition to bringing suit in fed court under 1983.)
o   Fact that P might have a viable state law tort remedy was irrelevant to being able to invoke 1983
·         The police officers’ action was action “under color of” law within the meaning of 1983 even if what they did also happened to be in violation of state law
·         Individual cops can be liable. It is not simply that you are following a law, it is that you are abusing the power that has been given to you by the state (if you abuse your gun, taser, etc. that is “under color of” state law)
§ 2 aspects of this still govern:
·         1983 does not require victims of unconstitutional state action to exhaust state remedies that might be available to them before brining suit under 1983 (it is a remedy of first resort, without regard to the availability of state remedies) because:
o   1983 was enacted to redress unconstitutional laws
o   It was enacted to provide a federal forum when there was no state court remedy on the books
o   It was enacted to supply a federal remedy when the state court remedy was available in theory but not in fact
·         An official can act “under color of” law within the meaning of 1983 and be subject to personal liability under the statute, even when he violates state law and commits acts that state law would not authorize or sanction
o   “Section 1983 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions”
§ Private actors can also be liable under 1983 when they act in concert within officials or when their acts are otherwise fairly attributable to the government
§ OVERRULED, in PART- said that municipalities could not be sued under 1983
§ Federal remedy is supplementary to the state remedy (state remedy need not be sought and refused before the federal remedy is invoked)
·         “Under Color of” Law
o   Not every action taken by state officer is actionable- ex: high school principal who shoots his neighbor in course of an argument over noise does not act under color of state law; a policeman who, in the course of an arrest, carries out a personal grudge by beating a helpless suspect does act under color of state law
o   Distinction between cases where the actor’s official status is irrelevant and those where his use of authority of office contributes significantly to the harm he is able to do
o   Monroe had issue whether a state or local officer was engaged in action “under color of” law for purposes of 1983 when that officer acted contrary to a state or local law
§ “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law” (Monroe quoting Classic)
§ Court in Monroe concluded that it was irrelevant that the officers’ particular actions may not have been authorized or sanctioned by the City of Chicago in some formal sense- it was enough that the officers were performing their job when they violated the Constitution
o   As to the state action question, looked to case law, holding that 14th Amendment could be violated by those who exercised state or local governmental power and who happened to act contrary to the command of state law when doing so.  State action includes the case where the officer, in the exercise of the au

a writ, then state action requirement would be satisfied (as would 1983 color of law)
o   A judgment creditor invoking state’s judgment-enforcement mechanisms pending appeal can become a state actor and therefore act under color of law for 1983
o   Examples:
§ Race discrimination practiced by a private restaurant located in a state office building amounted to state action. Burton v Wilmington Parking Auth
§ Symbiotic relationship between state and ostensibly private high school athletic association. Brentwood Academy v TN Sec School
§ Complaining witnesses not acting under color of law
o   Not all private parties in a contractual or cooperative relationship with the state engage in state action or action under color of law simply bc of relationship
§ NCAA v Tarkanian
·         NCAA did not become a state actor when it decided to discipline a state university’s bball coach, even though the university had agreed contractually to abide by NCAA’s rulings. You can be powerful and influence state decisions but unless the government has no choice, no state action
§ Jackson v Metropolitan Edison- Did not convert the actions of private utility company into state action
§ Moose Lodge v Irvis- fact that facility has license from or is chartered to do business by the state does not turn into state action
o   QUESTION: To what extent can it be fairly said that the harm in question was facilitated because of the authority given by the state to a particular actor ?
o   In Monroe, the illegal acts of the Chicago police officers were not authorized by (and violated) state law, but the officers were exercising general governmental power that they possessed.
o   State officers act under color of law whenever they are carrying out tasks they ordinarily perform, as well as when their actions are rendered possible or efficiently aided by the state authority lodged in them. Monroe