Dreyer: The nine lives of Section 1983: 1871 to now

After the Civil War, President Ulysses S. Grant signed into law the Civil Rights Act of 1871 — known as the Ku Klux Klan Act. Federal legislators had become worried about violence and mistreatment to freed Black slaves in states and local jurisdictions, especially in the post-war South. A U.S. congressman from Indiana, Rep. John Coburn, was one among many who spoke publicly about the problem by explaining that it was not the commission of “isolated outrages” that was the cause of national concern, but rather “crimes perpetrated by concert and agreement, by men in large numbers acting with a common purpose for the injury of a certain class of citizens entertaining certain political principles.” He was, of course, referring to the Ku Klux Klan seeking to harm African Americans.

The law became codified as 42 U.S.C. 1983, and claims under it are now commonly called “1983” cases. Even though slavery was abolished in 1865, and its original aim was protection of one class of Americans in a particular historical setting, Section 1983 has lived at least as many lives as a cat throughout the last 152 years, including the recent Health and Hospital Corporation v. Talevski case from the United States Supreme Court (from Marion County). The important language of Section 1983 states:

“Every person who, under color of any statute … of any State … causes to be subjected, any citizen of the United States … 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.”

So, 1983 claims can be made against “persons,” not the state itself, for violations of an individual citizen’s federal rights, or civil rights. The Talevski case held that Section 1983 can be used by a Medicaid recipient against alleged abuses at a nursing home. Coburn could never have envisioned such a suit because he was worried about protecting freed slaves, and Medicaid would not be enacted until almost 100 years later.

The unique tale of Section 1983 is an intriguing history of jurisprudence, social issues and federalism. The balance between central government power and individual rights — among state and the federal governments — has often been the rationale of applying Section 1983 or not. The Civil War was fought against the purported tyranny of Washington. After that, states were seen by some as the foundation of abuse of individual rights, namely involving African Americans. Overall, Section 1983 cases have come to represent the conflict between federalism and civil rights.

The Reconstruction Amendments included the 14th Amendment which, in 1868, prohibited state action depriving any person of due process or equal protection. Section 1983 was passed three years later to allow action against a “person,” besides a state, for civil rights violations under “color of state law.” But as time went on, Section 1983 cases were fairly obscure. After about 50 years or so, some cases emerged regarding denial of voting rights. In 1927, the Supreme Court allowed Section 1983 damages against Texas state judges who had barred African Americans from voting in a primary (Nixon v Herndon). Allowing Section 1983 damages against a person acting under state law who withheld due process under the 14th Amendment was the kind of jurisprudential logic that took root. Section 1983 had begun another life.

For the next 35 years, Section 1983 was used irregularly, but in strategic, important ways. The Incorporation Doctrine applied the federal Bill of Rights to the states during the 1940s, ‘50s and ‘60s. The enlargement of state responsibility for federal civil rights naturally allowed Section 1983 to become a main avenue for redress. The seminal Brown v. Board of Education in 1954 showed Section 1983 as a basis of plaintiff’s successful arguments.

In 1961, the Supreme Court handed down Monroe v. Pape — and Section 1983 got yet another life. Plaintiff’s house had been ransacked by police and plaintiff had been physically abused, all without a warrant or probable cause. The issue was whether the rogue unauthorized actions of police were “under color of state law” and allowed Section 1983 relief. The court found that Section 1983 applied — and a new cause of action seemed to be born for every case involving the supervision of state actors’ misconduct, enforcement of constitutionally challenged state laws, etc. In 1960, the year before Monroe, only 280 suits were filed under all of the civil rights statutes. By 1972, about 8,000 cases were filed under Section 1983 alone. Today, our federal courts employ some clerks just to review the voluminous number of 1983 claims from pro se prisoners. Section 1983 is now used regarding bad arrests, excessive force, faulty search and seizures, failure to protect mental health detainees, prison and jail conditions and other claims.

So it may not have been a coincidence that Chief Justice John Roberts assigned the Talevski opinion to Justice Ketanji Brown Jackson, our first African American woman on the Supreme Court. She found that provisions of a federal nursing home statute are “laws” under Section 1983, and enforceable against state actors who violate them. “Laws means ‘laws,’” she wrote, “no less today than in the 1870s.” And Section 1983 lives on.•

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Senior Judge David J. Dreyer presided as a judge of the Marion Superior Court from 1997-2020. He is a graduate of the University of Notre Dame and Notre Dame Law School and a former board member of the Indiana Judges Association. Opinions expressed are those of the author.