§1983. Civil action for deprivation of rights
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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
In Monell v. Department of Social Services of the City of New York, the Supreme Court held that local government units are to be included among those persons to whom Section 1983 applies.
In Pembaur v. City of Cincinnati, the Supreme Court found that a single decision by
a local “final policymaker” triggered Section 1983 liability under Monell, even if the decision was not intended as settled policy (i.e., it was an ad hoc response).
In Tenney v. Brandhove, the Court settled and delineated two types of
immunity under Section 1983: qualified and absolute. A defendant-official is entitled to qualified or absolute immunity turns on the act being challenged, and not the office held by the public official.
Officials performing non-ministerial functions are shielded from liability if they can prove that “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity requires first that the plaintiff show that a constitutional right would have been violated on the facts alleged; and second that the right was clearly established. (Saucier v. Katz, 533 U.S. 194, 199-200 (2001)). Qualified immunity is pled as an affirmative defense, meaning the defendant must admit the truth of the events as pled by the plaintiff.
In Fordyce v. City of Seattle and Smith v. City of Cumming, appellate courts recognized the rights of the public to record matters of public interests (in particular protests) and the activities of police. City of Cumming was brought under 42 USC § 1983.
Case law suggests a public official (including police) need not be particularly identified in a complaint for violation of civil rights under § 1983, despite the higher pleading standards following Ashcroft v. Iqbal, 556 U.S. 662 (2009). See in particular, Stevenson v. City of Seat Pleasant, 743 F. 3d 411 (4th Cir. 2014).
There is no respondeat superior liability under § 1983. Typically, individual officers are insured, and departments or cities are involved in the litigation by a proving up of failure to supervise or negligent policy-setting, etc.