Section 1983 of the Civil Rights Act of 1871 allows citizens to sue persons who, under color of
state law, deprive them of their constitutional rights. Section 1983 actions can be brought against
state officials in their personal capacity, but not in their official capacity. City and county and other
nonstate officials can be sued in their official capacity, which allows damages to be obtained from
the governmental entity, and in their personal capacity.
Section 1983 applies to anyone who acts under color of state law. It reaches everyone working
under the authority of the health department, irrespective of their employment status, and can even
be applied to volunteers. It does not provide for vicarious liability, so public health officials can be
held personally liable only for their own actions, not those of subordinates. To prevail, the plaintiff
must prove that the official's conduct violates clearly established statutory or constitutional rights
that a reasonable official should have known about. If the official is mistaken about the law but had
no reason to know that the actions were improper, or is acting under a law later declared
unconstitutional, there is no liability. The courts also require that persons bringing 1983 actions
show significant harm as well as improper conduct. This is unusual in public health restrictions
because they are easily reviewed and corrected in postdeprivation proceedings before the plaintiff is
harmed.
Section 1983 actions must allege that the defendant violated the plaintiff's rights under the
Constitution or certain federal laws. Most public health cases allege violations of the constitutional
rights of equal protection or due process. Equal protection claims arise from differential treatment
that is motivated by improper discrimination, especially discrimination based on race, ethnicity, or
religion. Refusing to issue a license or permit because of personal animus against the applicant
could also be an equal protection violation, unless there were other rational grounds for the refusal.
Due process claims arise when the public health official does not give the party the procedural
safeguards provided for in the law. If a statute required 30 days' notice and an opportunity for a
hearing before destroying a dangerous building, then it could be a due process violation to destroy
the building without notice. If the defendant has complied with applicable statutes, the plaintiff can
claim that the Constitution requires more process than the state or local law provides. Thus, if the
law provides only 24 hours' notice, the court may find that although the defendant complied, the
notice period was not long enough. Claims are sometimes filed because public health officials take
action without a predeprivation (prior) hearing. If the action is authorized by statute, or the court
finds that waiting for a hearing would endanger the public, the court will usually dismiss the claim.
Thus, a building that is partially destroyed by fire may need to be destroyed at once, without notice
or hearing because of the threat it poses.
