Instructions for Civil Rights Claims Under Section 1983

Instructions for Civil Rights Claims Under Section 1983

Numbering of Section 1983 Instructions
4.1 Section 1983 Introductory Instruction
4.2 Section 1983 – Burden of Proof
4.3 Section 1983 – Elements of Claim
4.4 Section 1983 – Action under Color of State Law
4.4.1 Section 1983 – Action under Color of State Law Is Not in Dispute
4.4.2 Section 1983 – Determining When an Official Acted under Color of State Law
4.4.3 Section 1983 – Determining Whether a Private Person Conspired with a State Official
4.5 Section 1983 – Deprivation of a Federal Right
4.6 Section 1983 – Liability in Connection with the Actions of Another
4.6.1 Section 1983 – Supervisory Officials
4.6.2 Section 1983 – Failure to Intervene
4.6.3 Section 1983 – Municipalities – General Instruction
4.6.4 Section 1983 – Municipalities – Statute, Ordinance or Regulation
4.6.5 Section 1983 – Municipalities – Choice by Policymaking Official
4.6.6 Section 1983 – Municipalities – Custom
4.6.7 Section 1983 – Municipalities – Liability Through Inadequate Training or Supervision
4.6.8 Section 1983 – Municipalities – Liability Through Inadequate Screening
4.7 Section 1983 – Affirmative Defenses
4.7.1 Conduct Not Covered by Absolute Immunity
4.7.2 Qualified Immunity
4.7.3 Release-Dismissal Agreement
4.8 Section 1983 – Damages
4.8.1 Compensatory Damages
4.8.2 Nominal Damages
4.8.3 Punitive Damages
4.9 Section 1983 – Excessive Force (Including Some Types of Deadly Force) – Stop, Arrest, or Other “Seizure”
4.9.1 Section 1983 – Instruction for Garner‑Type Deadly Force Cases – Stop, Arrest, or Other “Seizure”
4.10 Section 1983 – Excessive Force – Convicted Prisoner
4.11 Section 1983 – Conditions of Confinement – Convicted Prisoner
4.11.1 Section 1983 – Denial of Adequate Medical Care
4.11.2 Section 1983 – Failure to Protect from Suicidal Action
4.11.3 Section 1983 – Failure to Protect from Attack
4.12 Section 1983 – Unlawful Seizure
4.12.1 Section 1983 – Unlawful Seizure – Terry Stop and Frisk
4.12.2 Section 1983 – Unlawful Seizure – Arrest – Probable Cause
4.12.3 Section 1983 – Unlawful Seizure – Warrant Application
4.13 Section 1983 – Malicious Prosecution
4.13.1 Section 1983 – Burdens of Proof in Civil and Criminal Cases
4.14 Section 1983 – State-created Danger
4.15 Section 1983 – High-Speed Chase
4.16 Section 1983 – Duty to Protect Child in Foster Care

Model
[Plaintiff]¹ is suing under Section 1983, a civil rights law passed by Congress that provides a remedy to persons who have been deprived of their federal [constitutional] [statutory] rights under color of state law.²

Model
[Provide Instruction 1.10 on burden of proof, modified (if necessary) as discussed in the Comment below.]

Comment
The plaintiff bears the burden of proof on the elements of a Section 1983 claim. See, e.g., Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). The court can use Instruction 1.10 to apprise the jury of this burden.
Where there is a jury question on the issue of qualified immunity, some additional instruction on burdens may occasionally be necessary.
Although the defendant has the burden of pleading the defense of qualified immunity, see Gomez v. Toledo, 446 U.S. 635, 640 (1980); Thomas v. Independence Tp., 463 F.3d 285, 293 (3d Cir. 2006),³ the Supreme Court has not definitively established who bears the burden of proof with respect to that defense, see, e.g., Gomez, 446 U.S. at 642 (Rehnquist, J., concurring) (construing the opinion of the Court “to leave open the issue of the burden of persuasion, as opposed to the burden of pleading, with respect to a defense of qualified immunity”).
The Third Circuit has stated that the defendant bears the burden of proof on qualified immunity. See, e.g., Burns v. PA Dep’t of Corrections, 642 F.3d 163, 176 (3d Cir. 2011) (defendant has burden to establish entitlement to qualified immunity); Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (same); Beers‑Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001) (same); Karnes v. Skrutski, 62 F.3d 485, 491 (3d Cir. 1995) (same); Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989) (same); Ryan v. Burlington County, N.J., 860 F.2d 1199, 1204 n.9 (3d Cir. 1988) (same). However, some other Third Circuit opinions suggest that the burden of proof regarding qualified immunity may vary with the element in question.⁴ For example, the court has stated that “[w]here a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant's conduct violated some clearly established statutory or constitutional right. . . . Only if the plaintiff carries this initial burden must the defendant then demonstrate that no genuine issue of material fact remains as to the ‘objective reasonableness’ of the defendant's belief in the lawfulness of his actions.” Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997); see also Hynson By and Through Hynson v. City of Chester, 827 F.2d 932, 935 (3d Cir. 1987) (“Although the officials claiming qualified immunity have the burden of pleading and proof . . . , a plaintiff who seeks damages for violation of constitutional rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue.”).
A distinction between the burden of proof as to the constitutional violation and the burden of proof as to objective reasonableness makes sense in the light of the structure of Section 1983 litigation. To prove her claim, the plaintiff must prove the existence of a constitutional violation; qualified immunity becomes relevant only if the plaintiff carries that burden. Accordingly, the plaintiff should bear the burden of proving the existence of a constitutional violation in connection with the qualified immunity issue as well. However, it would accord with decisions such as Kopec (and it would not contravene decisions such as Sherwood) to place the burden on the defendant to prove that a reasonable officer would not have known, under the circumstances, that the conduct was illegal.⁵
As noted in Comment 4.7.2, a jury question concerning qualified immunity will arise only when there are material questions of historical fact. The court should submit the questions of historical fact to the jury by means of special interrogatories; the court can then resolve the question of qualified immunity by reference to the jury’s determination of the historical facts. Many questions of historical fact may be relevant both to the existence of a constitutional violation and to the question of objective reasonableness; as to those questions, the court should instruct the jury that the plaintiff has the burden of proof. Other questions of historical fact, however, may be relevant only to the question of objective reasonableness; as to those questions, if any, the court should instruct the jury that the defendant has the burden of proof.

Model
[Plaintiff] must prove both of the following elements by a preponderance of the evidence:
First: [Defendant] acted under color of state law.
Second: While acting under color of state law, [defendant] deprived [plaintiff] of a federal [constitutional right] [statutory right].
I will now give you more details on action under color of state law, after which I will tell you the elements [plaintiff] must prove to establish the violation of [his/her] federal [constitutional right] [statutory right].

Comment
“By the plain terms of § 1983, two – and only two – allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also, e.g., Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (“A prima facie case under § 1983 requires a plaintiff to demonstrate: (1) a person deprived him of a federal right; and (2) the person who deprived him of that right acted under color of state or territorial law.”).
Some authorities include in the elements instruction a statement that the plaintiff must prove that the defendant’s acts or omissions were intentional. See, e.g., Ninth Circuit Civil Instruction 11.1. It is not clear, however, that the elements instruction is the best place to address the defendant’s state of mind. “Section 1983 itself ‘contains no state‑of‑mind requirement independent of that necessary to state a violation’ of the underlying federal right. . . . In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation.” Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 405 (1997) (quoting Daniels v. Williams, 474 U.S. 327, 330 (1986)); see also Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir. 1994) (noting that “section 1983 does not include any mens rea requirement in its text, but the Supreme Court has plainly read into it a state of mind requirement specific to the particular federal right underlying a § 1983 claim”). Because the mens rea requirement will depend on the nature of the constitutional violation, the better course is to address the requirement in the instructions on the specific violation(s) at issue in the case.
Some authorities include, as a third element, a requirement that the defendant caused the plaintiff’s damages. See, e.g., Fifth Circuit Civil Instruction 10.1; Eleventh Circuit Civil Instruction 2.2. It is true that the plaintiff cannot recover compensatory damages without showing that the defendant’s violation of the plaintiff’s federal rights caused those damages. See Instruction 4.8.1, infra. It would be misleading, however, to consider this an element of the plaintiff’s claim: If the plaintiff proves that the defendant, acting under color of state law, violated the plaintiff’s federal right, then the plaintiff is entitled to an award of nominal damages even if the plaintiff cannot prove actual damages. See infra Instruction 4.8.2.
If the Section 1983 claim asserts a conspiracy to deprive the plaintiff of civil rights,⁶ additional instructions will be necessary. See, e.g., Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999) (“In order to prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting under color of state law conspired to deprive him of a federally protected right.”); Marchese v. Umstead, 110 F.Supp.2d 361, 371 (E.D. Pa. 2000) (“To state a section 1983 conspiracy claim, a plaintiff must allege: (1) the existence of a conspiracy involving state action; and (2) a depravation [sic] of civil rights in furtherance of the conspiracy by a party to the conspiracy.”); see also Avery, Rudovsky & Blum,⁷ Instructions 12:31, 12:32, 12:33, & 12:43 (providing suggested instructions regarding a Section 1983 conspiracy claim).

Model
The first element of [plaintiff’s] claim is that [defendant] acted under color of state law. This means that [plaintiff] must show that [defendant] was using power that [he/she] possessed by virtue of state law.
A person can act under color of state law even if the act violates state law. The question is whether the person was clothed with the authority of the state, by which I mean using or misusing the authority of the state.
By “state law,” I mean any statute, ordinance, regulation, custom or usage of any state. And when I use the term “state,” I am including any political subdivisions of the state, such as a county or municipality, and also any state, county or municipal agencies.

Comment
Whenever possible, the court should rule on the record whether the conduct of the defendant constituted action under color of state law. In such cases, the court can use Instruction 4.4.1 to instruct the jury that this element of the plaintiff’s claim is not in dispute.
In cases involving material disputes of fact concerning action under color of state law, the court should tailor the instructions on this element to the nature of the theory by which the plaintiff is attempting to show action under color of state law. This comment provides an overview of some theories that can establish such action; Instructions 4.4.2 and 4.4.3 provide models of instructions for use with two such theories.
“[C]onduct satisfying the state‑action requirement of the Fourteenth Amendment satisfies [Section 1983’s] requirement of action under color of state law.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982).⁸ “Like the state‑action requirement of the Fourteenth Amendment, the under‑color‑of‑state‑law element of § 1983 excludes from its reach ‘“merely private conduct, no matter how discriminatory or wrongful.”’” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948))). Liability under Section 1983 “attaches only to those wrongdoers ‘who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.’” National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191 (1988) (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)). “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).⁹
The inquiry into the question of action under color of state law “is fact‑specific.” Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). “In the typical case raising a state‑action issue, a private party has taken the decisive step that caused the harm to the plaintiff, and the question is whether the State was sufficiently involved to treat that decisive conduct as state action. . . . Thus, in the usual case we ask whether the State provided a mantle of authority that enhanced the power of the harm‑causing individual actor.” Tarkanian, 488 U.S. at 192. Circumstances that can underpin a finding of state action include the following:

• 
  A finding of “‘a sufficiently close nexus between the state and the challenged action of the [private] entity so that the action of the latter may fairly be treated as that of the State itself.’”¹⁰
  

• 
  A finding that “the State create[d] the legal framework governing the conduct.”¹¹
  

• 
  A finding that the government “delegate[d] its authority to the private actor.”¹²
  

• 
  A finding that the government “knowingly accept[ed] the benefits derived from unconstitutional behavior.”¹³
  

• 
  A finding that “the private party has acted with the help of or in concert with state officials.”¹⁴ For an instruction on private action in concert with state officials, see Instruction 4.4.3.
  

• 
  A finding that the action “‘result[ed] from the State's exercise of “coercive power.”’”¹⁵
  

• 
  A finding that “‘the State provide[d] “significant encouragement, either overt or covert.”’”¹⁶
  

• 
  A finding that “‘a nominally private entity . . . is controlled by an “agency of the State.”’”¹⁷
  

• 
  A finding that “‘a nominally private entity . . . has been delegated a public function by the State.’”¹⁸
  
• 
  A finding that “‘a nominally private entity . . . is “entwined with governmental policies,” or [that] government is “entwined in [its] management or control.”’”¹⁹
  

The fact that a defendant was pursuing a private goal does not preclude a finding that the defendant acted under color of state law. See Georgia v. McCollum, 505 U.S. 42, 54 (1992) (noting, in a case involving a question of “state action” for purposes of the Fourteenth Amendment, that “[w]henever a private actor’s conduct is deemed ‘fairly attributable’ to the government, it is likely that private motives will have animated the actor's decision”).

Model
Version A (government official):
Because [defendant] was an official of [the state of ] [the county of ] [the city of ] at the relevant time, I instruct you that [he/she] was acting under color of state law. In other words, this element of [plaintiff’s] claim is not in dispute, and you must find that this element has been established.
Version B (private individual):
Although [defendant] is a private individual and not a state official, I instruct you that the relationship between [defendant] and the state was sufficiently close that [he/she] was acting under color of state law. In other words, this element of [plaintiff’s] claim is not in dispute, and you must find that this element has been established.

Model
[Defendant] is an official of [the state of ] [the county of ] [the city of ]. However, [defendant] alleges that during the events at issue in this lawsuit, [defendant] was acting as a private individual, rather than acting under color of state law.
For an act to be under color of state law, the person doing the act must have been doing it while clothed with the authority of the state, by which I mean using or misusing the authority of the state. You should consider the nature of the act, and the circumstances under which it occurred, to determine whether it was under color of state law.
The circumstances that you should consider include:

• 
  [Using bullet points, list any factors discussed in the Comment below, and any other relevant factors, that are warranted by the evidence.]
  

You must consider all of the circumstances and determine whether [plaintiff] has proved, by a preponderance of the evidence, that [defendant] acted under color of state law.

Comment
“[S]tate employment is generally sufficient to render the defendant a state actor.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 935 n.18 (1982).²⁰ In some cases, however, a government employee defendant may claim not to have acted under color of state law. Instruction 4.4.2 directs the jury to determine, based on the circumstances,²¹ whether such a defendant was acting under color of state law.²²
Various factors may contribute to the conclusion concerning the presence or absence of action under color of state law.²³ The court should list any relevant factors in Instruction 4.4.2. In the case of a police officer defendant, factors could include:

• 
  Whether the defendant was on duty.²⁴ This factor is relevant but not determinative. An off-duty officer who purports to exercise official authority acts under color of state law.²⁵ Conversely, an officer who is pursuing purely private motives, in an interaction unconnected with his or her official duties, and who does not purport to exercise official authority does not act under color of state law.²⁶
  
• 
  Whether police department regulations provide that officers are on duty at all times.²⁷
  

• 
  Whether the defendant was acting for work-related reasons. However, the fact that a defendant acts for personal reasons does not necessarily prevent a finding that the defendant is acting under color of state law. A defendant who pursues a personal goal, but who uses governmental authority to do so, acts under under color of state law.²⁸
  

• 
  Whether the defendant’s actions were related to his or her job as a police officer.²⁹
  

• 
  Whether the events took place within the geographic area covered by the defendant’s police department.³⁰
  

• 
  Whether the defendant identified himself or herself as a police officer.³¹
  

• 
  Whether the defendant was wearing police clothing.³²
  

• 
  Whether the defendant showed a badge.³³
  
• 
  Whether the defendant used or was carrying a weapon issued by the police department.³⁴
  

• 
  Whether the defendant used a police car or other police equipment.³⁵
  

• 
  Whether the defendant used his or her official position to exert influence or physical control over the plaintiff.
  

• 
  Whether the defendant purported to place someone under arrest.³⁶
  

In a case involving a non-police officer defendant, factors could include:

• 
  Whether the defendant was on duty.³⁷ This factor is relevant but not determinative. An off-duty official who purports to exercise official authority acts under color of state law.³⁸ Conversely, an official who is pursuing purely private motives, in an interaction unconnected with his or her official duties, and who does not purport to exercise official authority does not act under color of state law.³⁹
  

• 
  Whether the defendant was acting for work-related reasons. However, the fact that a defendant acts for personal reasons does not necessarily prevent a finding that the defendant is acting under color of state law. A defendant who pursues a personal goal, but who uses governmental authority to do so, acts under under color of state law.⁴⁰
  

• 
  Whether the defendant’s actions were related to his or her job as a government official.⁴¹
  

• 
  Whether the events took place within the geographic area covered by the defendant’s department.⁴²
  

• 
  Whether the defendant identified himself or herself as a government official.⁴³
  

• 
  Whether the defendant was wearing official clothing.⁴⁴
  

• 
  Whether the defendant showed a badge.⁴⁵
  

• 
  Whether the defendant used his or her official position to exert influence over the plaintiff.
  

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