Claims for damages and other relief may be based on the violation of the civil rights of citizens of the United States. The Merriam Webster dictionary defines “civil rights” as “the non-political rights” of citizens.” As used here, however, claims for violation of “civil rights” means claims that have been recognized by courts as arising from the Bill of Rights of the United States Constitution. The Bill of Rights is a series of amendments that were added to the United States Constitution after its enactment. Civil rights claims founded on federal law frequently arise under the Bill of Rights. Civil rights, however may be found or amplified elsewhere, such as in 42 USC section 1981 (establishing that all persons have equal “rights”), section 2000e of Title 42 of the United States Code (preventing discrimination in public accommodations or housing), or in State constitutions. This article, however, limits itself to claims for violations of civil rights appearing in the United States Bill of Rights.

In general terms, the enabling statute that allows for such claims is section 1983 of Title 42 of the United States Code. Section 1983 reads in material part as follows: 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. . . . Section 1988 of Title 42 provides for attorney’s fees to the prevailing party, a provision which assists individual in protecting and vindicating their civil rights.

The parts of the Bill of Rights most often giving rise to civil rights claims are the First Amendment Free Speech, Press, and Religion Clauses, the Fourth Amendment Search and Seizure and Warrant Clauses, the Fifth Amendment Due Process Clause, the Eighth Amendment Cruel and Unusual Punishment Clause, and the Fourteenth Amendment Due Process and Equal Protection Clauses.

The law in the area of civil rights claim is a developing one, with shifting levels of culpability, standards, and tests. The United States Supreme Court and federal courts in general have attempted to prevent the United States Constitution and section 1983 from becoming a “font” of tort liability. Nevertheless, certain general principles can be stated at present, with the understanding that they may well evolve in the not distant future.

The First Amendment reads as follows: “[c]ongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In the First Amendment context, free speech, press, or religion claims are often brought for injunctive or declaratory relief: to stop a practice that impedes the exercise of these rights, or to decree that a particular practice impeding those rights is illegal. Such relief can often be significant where there has been little or no physical injury or harm per se, but the present and future exercise of these important constitutional rights is at issue and potentially threatened. At other times, public employees may have claims for First Amendment violations involving adverse employment actions including termination or less. Here there can be substantial wage or income loss, as well as emotional distress damages.

The Fourth Amendment reads as follows: “[the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In the Fourth Amendment context, claims often arise under the Search and Seizure and Warrant Clauses, where law enforcement personnel improperly arrest citizens or search their persons or places of residence or businesses without “probable cause” or a warrant, often seizing and sometimes damaging or destroying property in the process. “Probable cause” as the expression is used here can be defined generally as the state of evidence which makes it more likely than not that a person is involved in criminal activity, although the exact formulation of the concept can vary from statement to statement. This is the same test that criminal defense attorneys and practitioner of criminal law apply to determine whether their clients have been properly arrested or property searched or seized. Such claims frequently involve substantial pain and suffering damages, loss of wages, loss of property, and afford the possibility of punitive damages against offending law enforcement personnel. Again, attorney’s fees might be recovered.

Claims for police brutality or use of excessive force can arise under the Fourth Amendment’s Search and Seizure clause, although other constitutional bases for such claims may be found elsewhere in the Bill of Rights, such as the Eight Amendment discussed below, or in State law. The Fourth Amendment has recently been used for excessive force claims brought by “free citizens,” or persons before they become “pre-trial detainees” who have been incarcerated by governmental authorities. The standard here is one of “objective reasonableness,” requiring a court to evaluate the totality of the circumstances to determine whether law enforcement personnel are acting reasonably given the severity of the crime at issue, whether the suspect poses an immediate threat, whether he is resisting arrest, and many other factors.

The Fifth Amendment reads as follow: “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In the Fifth Amendment context, 1983 claims most often arise under the Due Process Clause: “[n]o person shall . . . be deprived of life, liberty, or property without due process of law.” There are two types of due process claims here: procedural and substantive due process. Substantive due process claims may also rely upon the Fourteenth Amendment and/or the Due Process Clause that appears there that are specifically applicable to the States.

Procedural due process claims are analyzed by addressing two questions. The first asks whether there exists a life, liberty or property interest which has been interfered with by the state. The second examines whether the procedures attendant upon the deprivation were constitutionally sufficient. The bases for life or liberty interests are frequently found in the United States Constitution, those for property interests in state law. In determining whether adequate procedures have been provided for the life, liberty, or property interest in question, courts address three competing factors: first, the private interest will be affected by official action, second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and third, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substantive procedural requirements would entail.

Procedural due process claims can arise in many contexts, including psychiatric commitment, administrative or disciplinary segregation in prisons, public assistance, Social Security disability benefits, drivers’ licenses, public school education, and municipally furnished utility service and public employment.

Substantive due process claims, on the other hand, focus on the right violated as opposed to the process provided, and are predicated on the notion that post-deprivation remedies and process are inadequate. Such claims generally have been restricted to matters relating to marriage, family, procreation, and the right to bodily integrity. Substantive due process principles protect individuals when egregious governmental conduct is not forbidden by any of the explicit provisions of the Bill of Rights. The courts have generally analyzed these claims by initially determining whether the challenged action is in the nature of executive or legislative action. If the latter, and the action or policy does not infringe upon a fundamental human right (e.g., life, liberty, etc.), the question is whether the legislative policy is reasonably related to a legitimate governmental interest. When the action is executive, the question is instead whether it “shocks the conscience.” Substantive due process claims might be stated in a variety of context, including but not limited to personal decisions relating to marriage, procreation, contraception, family relationships, child-rearing, education, overly intrusive tests to establish criminal liability( e.g., stomach pumping), and high speed police chases.

Here, as elsewhere in relation to viable civil rights claims for damages, courts require varying amounts of culpability or “scienter” to state and prove a claim for violations of the search and seizure and warrants clause, typically requiring something more than mere negligence, and something akin to reckless or intentional wrongdoing on the part of law enforcement personnel.

The Eighth Amendment reads as follows: “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In the Eight Amendment context, civil rights claims are often stated for conditions of confinement in prison or jails. They also comprehend excessive use of force claims when such force has been used on inmates. Plaintiffs generally must show a deliberate indifference to the possibility of harm or medical needs for such claims to be viable.

The Fourteenth Amendment is a sprawling amendment enacted in the wake of the Civil War to insure, among other things, that the States of the Union would extend civil rights to their citizens. For purposes of this article, the Amendment read as follows: “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In the context of the Fourteenth Amendment, claims may be pressed based on the various provisions of the Bill of Rights previously discussed, including but not limited to due process claims, as the Fourteenth Amendment requires the various States to observe those provisions and rights. In addition, Fourteenth Amendment claims regularly arise under its Equal Protection Clause: “[n]o State shall. . . deny to any person within its jurisdiction the equal protection of the laws.” Such claims are often, and most securely stated, where the government has established “suspect classifications,” such as race, religion, or sex, without demonstrating a compelling need for such classifications. Even without the existence of a suspect classification, equal protection claims may be stated where the government fails to establish a rational justification for its classification. Equal protection claims have been stated in a wide variety of contexts, from law enforcement, to employment, to zoning, and beyond.

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