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What Are the Differences Between a Bivens Lawsuit and a Section 1983 Claim

What Are the Differences Between a Bivens Lawsuit and a Section 1983 Claim

When someone has been the victim of excessive force or police misconduct or misconduct from federal officials, civil rights have been violated. There are always legal remedies to civil rights violations. These are lawsuits that allow for a person to sue for civil rights violations committed by government officials, such as police officers.

The two most commonly used are a Bivens lawsuit and a Section 1983 claim which is a claim under 42 USC § 1983 claim. The key difference between a Bivens lawsuit and a Section 1983 claim is the defendant. A Bivens lawsuit is when federal officials are sued for civil rights violations.

At H Law Group, we take police misconduct allegations and misconduct by federal officials very seriously. These are complex lawsuits that you will need help with if this has happened to you.

Learn more about the difference between a Bivens lawsuit and a section 1983 claim.

The Section 1983 Claim

 A Section 1983 lawsuit can come into play when a plaintiff alleges that a person acted “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia…” (42 USC § 1983).

The clause “under color of any statute” refers to a state actor, interfering with the civil rights of a victim. What this clause is saying is that anyone who abuses authority or power to commit excessive force or misconduct is breaking the law. It is a judge that determines if the clause “under color of any statute” is met.

If the individual was on duty, in police uniform, using police technology, flashing badges, or carrying out arrests, and committed misconduct, they can be sued. This would be in addition to any other consequences they could face, including potential criminal prosecution and disciplinary action from their department.

For example, the court considers an officer to have performed “under color of state law” if the officer engaged in misconduct.

The outcomes of Section 1983 lawsuits, when successful, would be an injunction to prevent the behavior from happening again, and potential monetary damages. Injunction orders could accomplish the following:

      -Restrain officers

      -Revise how they do things

     -Internal reviews


Monetary damages follow similar formulas to other civil claims and include both compensatory and punitive damages. Compensable damages are damages that a victim can claim for quantitative losses, which are losses that can be calculated such as lost wages and medical bills.

Other claims that can be made include qualitative losses such as pain and suffering, loss of liberty, and punitive damages. Punitive damages are damages where the defendant is punished in a monetary way if they are found liable for the victim’s losses.

Potential defenses to Section 1983 claims include qualified immunity. This is a common defense for police officers. They can argue that they have immunity from the claim and that they did not violate someone’s constitutional rights. It would have to be shown that the required constitutionality was in play for that argument to work.

In other words, if the plaintiff is arguing that the Fourth Amendment was violated, the need for Fourth Amendment rights would have to be indicated. If the police officer responds that they did not violate a Fourth Amendment right, they would be required to indicate that there were no Fourth Amendment rights to violate in the first place.

The Bivens Lawsuit

Bivens' lawsuits are very similar to Section 1983 lawsuits, with the exception of the involvement of federal officials. The defendant in a Bivens case would be a federal agent or a member of the federal government. It could be someone from any of the federal agencies, such as DEA, FBI, CIA, ICE, or any member of the Department of Justice.

The Bivens rule came into effect in 1971 when the United States Supreme Court ruled in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In this ruling, plaintiff Warren Bivens alleged that their Constitutional rights were violated by federal officials, who were sued in federal court. It was a landmark case which now yields a civil path to legal remedies when federal officials violate civil rights in an enforcement action.

The outcomes in a Bivens lawsuit are monetary, where the victims can seek compensatory damages for medical costs and lost wages. Victims may also be eligible for punitive damages if a judge rules it appropriately.

There are a number of ways that constitutional violations can occur during an incident that might lead to a Bivens lawsuit or Section 1983 filing. When a search was unreasonable or without probable cause, a federal employee was terminated for voicing a political opinion, Eighth Amendment violations regarding prisoner medical care, or violations of Fifth Amendment rights to silence and due process.

Bivens lawsuits and Section 1983 claims are very similar in nature as to their context and compensable damages, however, the nature of the defendants will differ. In Bivens, it will always be federal officials.

Book a Consultation With California Criminal Defense Attorney H Law Group

Police misconduct in America is a very serious crime and is taken seriously. Cases like George Floyd have brought this to the public’s attention and made the world a little more aware that this can happen in any jurisdiction. This is not an isolated case or freak incident. This happens in America everywhere and has for decades.

Section 1983 suits have been inspired by the 1871 Ku Klux Klan Act but became a tool for holding state officials accountable civilly for unconstitutional actions during the course of civic duty in 1961. The Bivens remedy has been available to Americans since 1971. These legal actions for American citizens have been used for decades. The George Floyd case and so many others that have made headlines have only been on our consciousness for a few years.

Police misconduct happens in America. It is always a civil rights violation. At H Law Group, we can fight for your constitutional rights if this has happened to you. Call us and book a consultation about your problem today. We want to know if this happened to you.

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