42 USC 1983

Tort Claims Acts

Original Purpose

Prevent de facto discrimination and intimidation of ex-slaves by persons acting under state law

To compensate persons injured by ordinary negligence who would otherwise be barred from suing by sovereign immunity

Basic jurisdictional requirement

A violation of a constitutional right

By someone acting under state law (thus only against state and local government folks, not the feds)

Most violations look like torts, i.e., beatings, cruel and unusual punishment

A negligent injury by a government employee acting within course and scope of employment

Must file a claim for compensation with the government and wait for a stated period before filing a lawsuit.

The statute of limitations for the claim is often short.

Who do you sue?

Individual in his personal capacity

Individual in his official capacity - the employer also has to pay

The individual and the governmental employer is substituted

Money damages from local government entities and from individuals.

Injunctions to stop unconstitutional behavior.

Limitations

Not for minor injuries

Usually does not include intentional torts or strict/products liability

11th amendment

Only applies to the state and its agencies

Does not apply to cities and other non-state governmental entities

Can sue state officials in their personal capacity, but cannot sue them in their official capacity.  Thus, in theory the state is not responsible for judgments against state employees under 1983, but all states indemnify them if it is in their official capacity.

States may waive 11th amendment immunity in several ways, including by buying insurance.

Defenses

Personal capacity claims: qualified or absolute immunity

Official capacity claims (non-state employers): not done pursuant to a state policy.

Official policy is necessary to make a 1983 claim against the governmental employer

Discretionary authority: if the action was done pursuant to an agency policy or represents a policy choice.

Cannot violate constitution, statute, or agency regulations.

Official policy is a defense to a tort claims act case, unless it violates some other law.