Defenses the Government May Use

Because 42 USC §1983 is merely the gateway which allows a Plaintiff to bring an action for the deprivation of a constitutionally protected right, the defenses available to a Defendant in such an action are not premised on §1983 itself, but rather the specific right which Plaintiff claims was violated. However, there are several defenses which are common to many such claims.

Governmental Immunity

In many situations, the government will assert governmental immunity as an absolute defense. As a general rule, governments and their agencies and employees are exempt from liability if they are acting within their official capacity at the time of the alleged violation. However, there are a number of statutorily created exceptions to governmental immunity.

Typically, the assertion of a governmental immunity defense will focus on whether the government or its agent was acting within the scope of one of the exceptions to the governmental immunity statutes at the time of the alleged violation.

No Compensable Damage

A second potential defense is that the Plaintiff suffered no damages, or that Plaintiff’s damages were minimal. There are some instances in which the Plaintiff has suffered a violation of a constitutional right, but the damage that the Plaintiff suffered was not monetarily compensable or capable of injunctive relief.

As a general rule, a Plaintiff must prove not only that he or she has suffered a violation of a constitutionally afforded right, but also that he or she has suffered damages as well. The mere violation of a right, on its own, is not sufficient. The two most basic forms of damages occur when the Plaintiff has suffered a harm that is monetarily compensable, or when the harm the Plaintiff has suffered is capable of being remedied through injunctive relief.

If the Court is unable to provide the Plaintiff with some form of relief, the Court will be reluctant to hear any case or to allow such a claim to proceed.

Plaintiff’s Constitutional Right was Not Clearly Defined

Finally, a Defendant may assert that the constitutional right which the Plaintiff claims was violated was not clearly defined in the eyes of the law, and thus the Defendant did not realize that his actions would violate one of the Plaintiff’s fundamental rights. Anderson v Creighton, 483 US 635, 640 (1987).

Typically, this defense will focus on what a reasonable individual in the Defendant’s position would do under the same or similar circumstances. In Anderson, an FBI agent believed that he had probable cause and that exigent circumstances were present to justify his warrantless search of a family’s home in his efforts to detain a bank robbery suspect. Justice Scalia, writing for the Court, determined that because the agent had believed in good faith that he was legally entitled to perform such a search, and because his belief was objectively reasonable, the agent could not be held liable for violating the Plaintiff’s constitutional Fourth Amendment right.