Transcript Slide 1

Chapter Sixteen
Constitutional and Civil
Rights of Victims
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Section 1983
• Title 42 of the United States Code Section 1983
provides in part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage of
any State or Territory, subjects, or causes to
be subjected, any citizen of the United States
or any other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceedings for redress...
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• Requirement of State Action
– In 1941 the Supreme Court interpreted the phrase
“under color of state law” in its decision of United
States v Classic. The court stated that “misuse of
power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with
the authority of the state, is action taken ‘under color’
of state law.”
– In 1945 the Supreme Court further expanded this
definition in Screws v United States.
– In criminal cases, conduct under color of law involves
unauthorized, unlawful conduct of an official when the
pretense of authority under which the officer acted
furthered or assisted that officer in violating a
person’s constitutional rights in any way.
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• Scope of Liability
– Monroe v Pape (1961)
• Held that color of law had the same meaning in a
civil case as in a criminal case
• Held that municipalities were immune from liability
under Section 1983
– Monell v Department of Social Services (1978)
• Section 1983 was violated whenever
– A person was deprived of a right, privilege, or immunity
guaranteed under the Constitution and federal laws, and
– Such a deprivation resulted from the official policy or
custom of a local governmental entity
• Overruled Monroe by holding that municipalities
were “persons” and therefore not completely
immune from suit under Section 1983
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– Owens v City of Independence
• Held that the city was entitled to limited immunity
from lawsuit based on the good faith of its officials
Using either “due process” or “equal protection,”
almost any intentional tort committed by a state
or local official can be converted into a
constitutional violation and thereby made the
subject of a Section 1983 action.
If the plaintiff prevails in these actions, that
person is entitled to an award of attorney’s fees
in addition to any equable or money relief.
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1983 Theories of Liability
• Denial of Equal Protection
• Failure to Act
• Failure to Train
• Failure to Supervise
• Failure to Protect
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Violence Against Women Act
• 1994 the Crime Bill was signed into law
• Violence Against Women Act (VAWA) was part
of the Crime Bill
• Makes crimes committed against women similar
to those that are motivated by religious, racial, or
political bias
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Violence Against Women Act of 2005
• Addresses gender-based violence in five areas
– Title I, Safe Streets for Women
• Increases sentences for repeat offenders who continue to
commit crimes against women
– Title II, Safe Home for Women
• Focuses on domestic violence
– Title III, Civil Rights for Women
• Creates the first civil rights remedy for gender-based
violence
– Title IV, Safe Campuses
• Funds research on problems facing women on college
campuses
– Title V, Equal Justice for Women in the Courts
• Provides training for judges to address the problem of
gender bias within the legal system
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Gender-Based Civil Rights
Title III of the Violence Against Women Act of 2005
• Three major goals
– Demonstrates that violence against women cannot be
perceived as only a “family” problem, a “private” matter,
or a sexual “miscommunication”
– Treats gender-motivated violence the same as other
bias-motivated attacks
– Provides federal remedy for victims of gender-based
violence that is not presently available in state courts
• Four major sections
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Section 302 subsection (b)
Section 302 subsection (c)
Section 302 subsection (d)
Section 302 subsection (e)
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Injunctions
• Injunctions are restraining orders or protective
orders which are court orders that prohibit the
offender from having any contact with the victim.
• They are civil, not criminal in nature
• Require a judge to rule on sufficient evidence to
support the issuance of such an order
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Background and Use of Restraining Orders
• Due process requires that the offender be
served with a copy of the order for it to be
effective
• Six types of behavior that may be prohibited by a
restraining order
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Protection against physical assault
Threatened physical abuse
Attempted physical abuse
Sexual assault of an adult
Sexual assault of a child
Damage to the personal property of the victim
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• Temporary or Emergency Restraining Orders
– Issued by the judge and usually require the threat of
immediate injury to the victim
– Supreme Court upheld issuance if
• The request includes specific facts that justify the
relief
• The notice and opportunity for a full hearing are
given as soon as practicable, and
• The order is issued by a judge
– Five basic methods of service
• Personal service
• Informing the offender of the existence of the order
• Leaving a copy with the victim to serve
• Posting the notice and order at residence of victim
• Via certified mail to the offender
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Advantages of Restraining Orders
• Valid for up to a year in most cases, whereas
arrested offenders are released in hours or days
at most
• Do not preclude offender from working, but
prevent him from living with victim
• Carry the weight and majesty of a judicial edict
and some offenders may think twice before
violating a court order
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Disadvantages of Restraining Orders
• Offender may simply ignore the order with the
resulting injury to the victim
• Merely a piece of paper that carries only as
much force and effect as the offender attaches
to it
• Some statutes require the payment of a filing fee
prior to issuance
• Some statutes require court or county clerks to
assist in filling out the forms
• Offenders can be difficult to locate for mandatory
personal service
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Defenses
• Two types of defenses
– Substantive defenses are those that claim one of the
elements of a civil rights action has not been met
– Procedural defenses challenge of the validity of the
lawsuit based on issues such as lack of jurisdiction,
statute of limitations, and other procedural
requirements
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Immunity
• Absolute Immunity
– A complete shield in a lawsuit and involves a
determination that there is no liability for any
damages that the victim may have suffered as a result
of the actor’s conduct
• Qualified Immunity
– Supreme Court held that individuals would be entitled
to qualified immunity if it was determined that the
action was the type which a reasonable person could
have believe was lawful in light of clearly established
law and the information available to that individual at
the time of the decision
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