The federal civil rights law known as 42 U.S.C. § 1983 has garnered vast attention from the legal academy, including recent wide-ranging discussions of its qualified immunity defense. In his interesting article, Section 1983: A Strict Liability Statutory Tort, Matteo Godi addresses a more basic question, namely: what are the elements of a Section 1983 claim? Intriguingly, he maintains that the statute is best interpreted to hold officials strictly liable.
Section 1983 empowers individuals to seek redress from state officials (and certain others) for violating their federal constitutional rights. Under prevailing Supreme Court precedent, the statute does not specify a uniform liability standard. Instead, different standards apply depending on the right allegedly violated. For example, to prove an Equal Protection violation, the plaintiff must demonstrate intentional discrimination. Meanwhile, an inmate alleging an Eighth Amendment violation might have to prove maliciousness (for claims of excessive force) or deliberate indifference (for claims of unsafe conditions of confinement). Notably, in all applications the statute is understood to require conduct falling below some standard of conduct, i.e., legal fault.
According to Godi, this reading of the statute is fundamentally mistaken. As a matter of sound interpretation and normative theory, he claims, Section 1983 should be read to impose a single rule of strict liability. Thus, on his account, an inmate denied adequate medical treatment should be able to establish a constitutional tort simply by proving harm attributable to the denial, irrespective of whether the harm was intentionally or carelessly inflicted.
In its interpretive dimension, Godi’s argument relies primarily on a textualist analysis of Section’s 1983 legislative progenitor, the Civil Rights Act of 1871 (“CRA”), as well as its 1874 successor, known as “Section 1979.” In relevant part, the CRA stated:
any person who, under color of any law … of any State, shall subject … any person … to the deprivation of any rights … secured by the Constitution of the United States, shall … be liable to the party injured in any action at law….
Section 1979 similarly allows for the imposition of liability on all persons who under color of law cause a U.S. citizen to be subjected to “the deprivation of any rights, privileges or immunities secured by the Constitution…” According to Godi, the unqualified phrases “deprivation of any rights,” and “shall … be liable” specify a rule of strict liability. This textual analysis is then bolstered by, among other things, some nineteenth-century lower-court decisions rejecting defendants’ efforts to establish that liability under Section 1979 required proof of malicious conduct.
After recounting how, starting in the 1940s, the Supreme Court interposed various fault requirements onto Section 1983, the article concludes with a discussion of tort theory that aims to explain why a strict liability reading of Section 1983 is normatively plausible. Here, Godi maintains that it would make sense to employ strict liability as an antidote to the rash of civil rights violations perpetrated by state actors, particularly in former confederate states. This in turn suggests to him that Section 1983 should not be understood as embodying a private-law (interpersonal-wrong-based) approach to tort law, but instead as adopting a public-law model of tort as law that empowers citizens to act as private attorneys general.
Godi’s paper invites welcome reconsideration of the liability standard(s) set by Section 1983. It also elegantly weaves together history, doctrine, and theory to offer a coherent account of that standard.
In my view, some of the evidence offered for his thesis is less persuasive than he supposes. For example, one of the main nineteenth-century cases on which he relies rejected the defendants’ contention that liability under Section 1979 required proof of “willfulness” or “maliciousness” in denying Black citizens the right to vote.1 Godi interprets the defendants’ contention as an argument against liability “unless [they] were culpable or at fault in some way.” (P. 24.) In turn, he treats the court’s rejection of this argument as an embrace of strict liability. Yet this is not the most plausible reading of the defendants’ contention or the court’s rejection of it.
Willfulness and maliciousness are special forms of culpability; plenty of conduct that involves neither is still wrongful. By the same token, the court’s opinion nowhere states or implies that liability would attach for an entirely faultless interference with the right to vote. Indeed, the ‘deprivation’ in the case itself appears to have been intentional even if not malicious (in the sense of inspired by racial animus): the officials in question purposely refused to register the plaintiff voters.
In short, the court’s willingness to hold these officials liable by no means establishes that it would also have imposed strict liability. Imagine an election official who, despite using due care in storing the ballots in his custody, failed to prevent them from being ruined by an unpreventable water leak, such that voters in his district, including Black voters, could not vote. Liability?
Meanwhile, Godi’s textualist analysis proceeds on a not-fully-defended assumption: namely, that, the phrase “deprivation of any right” necessarily contemplates liability without regard to the nature of the conduct that interfered with the right. Implicit in this analysis is a ‘monadic’ conception of the legal rights protected by Section 1983—one that is sometimes referenced in phrases like “the right to bodily integrity.” In such usage, the right to bodily integrity is understood as the interest each person has in physical intactness, an interest that is interfered with whenever a person experiences physical harm, regardless of how the harm comes about.
The problem is that, in tort law and related fields, references to “rights” are typically not references to monadically defined interests but instead to one side of a ‘dyadically’ defined right-duty pairing. Consider battery and negligence. Battery recognizes a legal a right against being intentionally touched by another in a harmful or offensive manner, along with a corresponding duty not to touch others in that way. Negligence recognizes a right not to be physically harmed by the careless actions of another, along with a corresponding duty not to so harm others. These dyadically defined legal rights may well protect each person’s interest in bodily integrity, monadically defined. They nonetheless clearly stand apart from that interest because, by definition, they cannot be violated except through conduct that falls below a legal standard (e.g. conduct that is careless). If, as Godi suggests, Section 1983 should be understood as instantiating core tort principles, then—in keeping with the structure of other torts—it should be read to create legal wrongs that consist of one person suffering a certain kind of setback as a result of another person’s sub-standard conduct.
Of course, “strict liability” can mean different things, and there are other senses of this phrase that would also push against what many, including Godi, consider to be unduly stingy readings of the statute, including those favored by the current Supreme Court. Indeed, the predominant form of strict liability in tort law is not liability irrespective of the violation of a standard of conduct, but liability based on the violation of demanding or unforgiving (“strict”) standards.2 Tort law frequently imposes liability absent significant blameworthiness or culpability—for example in cases where the defendant acted with no intention to harm or no subjective appreciation of committing a rights-violation.
The foregoing observation, combined with Godi’s sound insistence that Section 1983 is statutory tort, lends support to the idea that it imposes strict liability in this alternative sense—i.e., requires wrongful conduct (contra Godi), yet does not recognize excuses that apply in other domains, such as criminal law. So construed, his analysis adds an important dimension to critiques of the Supreme Court’s qualified immunity doctrine, which is predicated in part on a misplaced concern to ensure that only highly culpable actors (those who violate “clearly established” rights) are subject to liability.
A final note on tort theory. Godi argues that his reading of the CRA gibes with that law’s being understood as adopting a public-law conception of tort law. His thought seems to be that a strict liability reading of the CRA follows naturally from the idea that the statute has always been meant to deter rights violations instead of ‘merely’ providing after-the-fact compensation.
As longstanding debates among legal economists have demonstrated, a focus on deterrence hardly entails a commitment to strict liability. In any event, Godi’s reading of the CRA as a private-attorney-general-statute rests on an oversimplified picture of the tort theory landscape, according to which private-law tort theories are equated with compensation-driven accounts of tort law, whereas public-law tort theories focus on deterrence.
In fact, the dominant understanding of tort law at the time the CRA was enacted conceived of it as law for the redress of private wrongs. On this understanding, tort law identifies and condemns as wrongful (and therefore not-to-be-done) certain kinds of interpersonal interactions. These norms or legal directives identify genuine, conduct-guiding obligations, not merely preconditions for a compensatory payment. Given this background, it seems more plausible that the CRA was not understood as a strict liability, private-attorney-general statute, but instead as a law setting standards of right and wrong conduct for the twin purposes of discouraging such conduct and providing persons victimized by such conduct redress against their victimizers.
A Strict Liability Statutory Tort offers much food for thought about constitutional tort law and tort law generally. Regardless of whether one agrees with its conclusions, it reminds us that the “tort” side of constitutional tort law has been unduly neglected and needs careful attention if this foundational civil rights law is to be applied in a manner consistent with its origins and aspirations.
- Anderson v. Myers, 182 F. 223, 226 (C.C.D. Md. 1910).
- John C. P. Goldberg & Benjamin C. Zipursky, The Strict Liability in Fault and the Fault in Strict Liability, 85 Fordham L. Rev. 744 (2016).
