On the federal level, the right of a labor union to arrange a secondary boycott is limited by section 8b4 of the National Labor Relations Act.. Despite the limitations on the right of a
Trang 1appointment is to control the disposition of the property or whether it is to be superseded by some appointment that the donee makes
Therefore no possible delay in adjudging the validity of the remainder is entitled in examin-ing facts that exist at the date the power expires unexercised
Jurisdictions that do not apply the doctrine to gifts-in-default maintain that its application to appointments is justified because the appointed interests are unknown, and, consequently, it is impossible to adjudicate their validity until the appointment is made, not because it is unlikely that anyone would want to adjudicate their validity until that time The interests created by
a default clause, unlike appointed interests, are known, and their validity can be litigated before the expiration of the power These jurisdictions reason that the rationale for taking a second look
in the case of appointed interests does not apply
to interests created in the default clause
FURTHER READINGS Averille, Lawrence H 2005 Wills, Trusts, and Future Interests 3d ed St Paul, Minn.: West.
Oliphant, Robert E., and Nancy Ver Steegh 2007 Family Law Examples & Explanations 2d ed New York: Aspen Publishers.
Robins, Mark D 2000 “Another Look at the ‘Second Look ’ Doctrine: Enforcing Liquidated Damages Clauses Without Hindsight.” Boston Bar Journal 44 (March–April).
CROSS REFERENCE Estate.
SECONDARY AUTHORITY Sources of information that describe or interpret the law, such as legal treatises, law review articles, and other scholarly legal writings, cited by lawyers to persuade a court to reach a particular decision in a case, but which the court is not obligated to follow
Secondary authority is information cited by lawyers in arguments and used by courts in reaching decisions Secondary authority is distinct from primary authority The sources
of primary authority are written laws passed by legislative bodies, prior judicial decisions, gov-ernment administrative regulations, and court rules Courts are obliged to decide cases by following the dictates of primary authority, and lawyers must make arguments based on the primary authority that is applicable to the case
Neither lawyers nor courts are required to use secondary authority, but both may do so to
buttress arguments based on primary authority Among the most commonly cited sources of secondary authority are the RESTATEMENTS OF LAW, written by the authors, scholars, and legal professionals that make up the American Law Institute The restatements contain suggested laws and rules on a wide assortment of legal topics ranging from contracts to TORTS to conflicts of laws
Law reviews and other scholarly works are other commonly cited sources of secondary authority Law reviews are articles about legal topics published by law schools and other legal organizations and written by law professors, law students, and other academics Other groups publish legal literature that may be cited by lawyers and courts The American Law Reports provide case synopses of recent legal develop-ments with a focus on court decisions, and
CONTINUING LEGAL EDUCATION programs con-ducted by and for attorneys produce literature that may be used by lawyers and judges Legal encyclopedia articles and legal dictio-naries are less commonly cited in court although the U.S Supreme Court has, on occasion, used Black’s Law Dictionary to support its definition of a legal word or phrase
FURTHER READINGS Kunz, Christina L., et al 2008 The Process of Legal Research 7th ed New York: Aspen Publishers.
Putman, William H 2009 Legal Research, Analysis and Writing 3d ed Clifton Park, NY: Delmar Cengage Learning.
SECONDARY BOYCOTT
A group’s refusal to work for, purchase from, or handle the products of a business with which the group has no dispute
A secondary boycott is an attempt to influence the actions of one business by exerting pressure on another business For example, assume that a group has a complaint against the Acme Company Assume further that the Widget Company is the major supplier to the Acme Company If the complaining group informs the Widget Company that it will persuade the public to stop doing business with the company unless it stops doing business with Acme Company, such a boycott of the Widget Company would be a secondary boycott The intended effect of such a boycott would be to influence the actions of Acme Company by organizing against its major supplier
58 SECONDARY AUTHORITY
Trang 2LABOR UNIONSare the most common
practi-tioners of secondary boycotts Typically aLABOR
UNION involved in a dispute with an employer
will arrange a secondary boycott if less drastic
measures to reach a satisfactory accord with the
employer have been ineffective Secondary
boycotts have two main forms: a secondary
consumer boycott, in which the union appeals
to consumers to withhold patronage of a
business, and a secondary employee boycott,
in which the union dissuades employees from
working for a particular business
Generally a secondary boycott is considered
anUNFAIR LABOR PRACTICEwhen it is organized by a
labor union Congress first acted to prohibit
secondary boycotts in the LABOR-MANAGEMENT
RELATIONS ACT of 1947 (29 U.S.C.A § 141
et seq.), also called the TAFT-HARTLEY ACT The
Taft-Hartley Act was a set of amendments to
the National Labor Relations Act, also known as
the WAGNER ACT of 1935 (29 U.S.C.A § 151
et seq.) Congress limits the right of labor unions
to conduct secondary boycotts because such
activity is considered basically unfair and because
it can have a devastating effect on intrastate
and interstate commerce and the general state of
the economy
On the federal level, the right of a labor
union to arrange a secondary boycott is limited
by section 8(b)(4) of the National Labor
Relations Act Under the act, no labor union
may threaten, coerce, or restrain any person
engaged in commerce to force that person to
cease doing business with any other person (29
U.S.C.A § 158(b)(4)(ii)(B)) Secondary
boy-cotts may be enjoined, or stopped, by order of a
federal court, and an aggrieved business may file
suit in court against the party initiating the
secondary boycott to recover any monetary
damages that resulted If the federal act
somehow does not cover the actions of a labor
union in a particular case, an aggrieved business
may seek relief under state laws
The statutory limitation on the right of
labor unions to instigate a secondary boycott is
an exception to the guarantee of free speech
contained in the FIRST AMENDMENT to the U.S
Constitution But in BALANCING free speech
rights against the rights of secondary employers
and the right of Congress to manage interstate
commerce, Congress has carved out an
impor-tant exception to the ban on secondary boycotts
by labor unions Under this section of the act, a
labor union may induce a secondary boycott if the information dispensed by the labor union is truthful, does not cause a work stoppage, and has the purpose of informing the general public that the secondary neutral employer distributes
a product that is produced by the primary employer This exception is called the publicity exception to the ban on secondary boycotts by labor unions
The publicityPROVISOdoes not cover PICKET-ING Picketing is a physical presence at a business
to publicize a labor dispute, influence customers and employees, or show a union’s desire to represent employees The U.S Supreme Court has held that Congress may prohibit a union from picketing against a secondary employer if the picketing would predictably result in finan-cial ruin for the picketed secondary employer (National Labor Relations Board v Retail Store Employees, Local 1001 [Safeco], 447 U.S 607, 100
S Ct 2372, 65 L Ed 2d 377[1980]) The U.S
Supreme Court also has ruled that the publicity exception does not apply to the distribution of handbills that encourage a boycott of a shopping mall department store if the dispute is with the company constructing the department store, and the boycott includes cotenants of the shopping mall who had no relationship with the construction company (Edward J DeBartolo Corp v National Labor Relations Board, 463 U.S
147, 103 S Ct 2926, 77 L Ed 2d 535[1983]) In
1988 the High Court held that section 158(b)(4) (ii)(B) of 29 U.S.C.A did not prohibit the peaceful distribution of handbills at a shopping mall urging consumers not to shop at the mall until the mall’s owner promised that all mall construction would be done by contractors paying fair wages (Edward J DeBartolo Corp v
Florida Gulf Coast Building and Construction Trades Council, 485 U.S 568, 108 S Ct 1392, 99
L Ed 2d 645 [1988]) According to the Court, such activity did not constitute threats, coercion,
or restraint and therefore did not fall within the prohibition of the National Labor Relations Act
Despite the limitations on the right of a labor union to conduct a secondary boycott, lower federal courts have refused to enjoin secondary boycotts in some instances In Over-street v United Brotherhood of Carpenters &
Joiners of America, Local Union No 1506, 409 F.3d 1199 (9th Cir 2005), the NLRB sought
to enjoin a union from displaying banners stating, “LABOR DISPUTE” outside of several
SECONDARY BOYCOTT 59
Trang 3businesses that employed nonunion laborers.
The U.S Court of Appeals for the Ninth Circuit refused, however, concluding that the First Amendment protected the union’s activities
FURTHER READINGS Beard, Brian K 1989 “Secondary Boycotts after DeBartolo:
Has the Supreme Court Handed Unions a Powerful New Weapon? ” Iowa Law Review 75 (October).
Brown, Steven L 1989 “Nonpicketing Labor Publicity Not within the Secondary-Boycott Prohibition of Section 8(b)(4) of the National Labor Relations Act: Edward J.
Debartolo Corporation v Florida Gulf Coast Building and Construction Trades Council.” Boston College Law Review 31 (December).
Beard, Brian K 2009 Winning at the NLRB 2d ed.
Arlington, Va.: BNA Books.
Goldman, Lee 1983 “The First Amendment and Nonpick-eting Labor Publicity under Section 8(b)(4)(ii)(B) of the National Labor Relations Act ” Vanderbilt Law Review 36 (November).
Pettibone, Jon E 2003 “Bannering Neutrals—Coercive Secondary Boycott or Free Speech? ” The Labor Lawyer
18 (winter-spring).
CROSS REFERENCES Labor Law; National Labor Relations Board; Strike.
SECONDARY EVIDENCE
A reproduction of, or substitute for, an original document or item of proof that is offered to establish a particular issue in a legal action
Secondary evidence is evidence that has been reproduced from an original document or substituted for an original item For example, a photocopy of a document or photograph would
be considered secondary evidence Another example would be an exact replica of an engine part that was contained in a motor vehicle If the engine part is not the very same engine part that was inside the actual motor vehicle involved in the case, it is considered secondary evidence
Courts prefer original, or primary, evidence
They try to avoid using secondary evidence, usually writings and recordings, wherever possi-ble This approach is called the “best evidence rule.” Nevertheless, a court may allow a party to introduce secondary evidence in a number of situations Under Rule 1003 of theFEDERAL RULES
OF EVIDENCE, a duplicate is admissible unless a genuine question is raised as to its authenticity or unless it would be unfair to admit the duplicate in place of the original piece of evidence
After hearing arguments by the parties, the court decides whether to admit secondary evidence after determining whether the evidence
is in fact authentic or whether it would be unfair
to admit the duplicate However, when a party questions whether an asserted writing ever existed, or whether a writing, recording, or photograph is the original, the trier of fact makes the ultimate determination The trier of fact is the judge if it is aBENCH TRIAL; in a jury trial, the trier
of fact is the jury
Rule 1004 of the Federal Rules of Evidence lists specific exceptions to the best evidence rule Under Rule 1004, secondary evidence of a writing, recording, or photograph is admissible
if (1) all originals are lost or destroyed, unless they were lost or destroyed in bad faith by the party seeking to introduce the secondary evidence; (2) no original can be obtained by judicial process or procedure; (3) the party’s opponent in the case has possession of the original and does not produce it after being given sufficient notice that the evidence would
be subject to examination at a court hearing; or (4) the original evidence is not closely related to
a controlling issue in the case
FURTHER READINGS Green, Eric D., and Charles R Nesson, and Peter L Murray.
2000 Problems, Cases, and Materials on Evidence 3d ed Gaithersburg, Md.: Aspen Law & Business.
CROSS REFERENCE Primary Evidence.
SECONDARY MEANING
A doctrine of trademark law that provides that protection is afforded to the user of an otherwise unprotectable mark when the mark, through advertising or other exposure, has come to signify that an item is produced or sponsored by that user Under trademark law, a mark associated with a marketed product generally cannot receive full trademark protection unless it is distinctive Trademark protection gives the holder of a mark the exclusive right to use that mark in connection with a product
Full trademark protection is given when the U.S PATENT AND TRADEMARK OFFICE places the mark on the Principal Register of TRADEMARKS Suggestive, arbitrary, and fanciful marks distin-guish a product from other products, so they automatically qualify for the principal register Descriptive and generic marks ordinarily do not qualify for the Principal Register A person may not, for example, claim the right to the word
“fine” in connection with a product, because the
60 SECONDARY EVIDENCE
Trang 4word is merely descriptive A descriptive or
generic mark may, however, be placed on the
Supplemental Register, which gives the holder
of the mark a certain measure of trademark
protection If the mark acquires secondary
meaning after five years of continuous, exclusive
use on the market, the mark may be placed on
the Principal Register (15 U.S.C.A § 1052(f))
A descriptive or generic mark attains
second-ary meaning if the producer so effectively markets
the product with the mark that consumers come
to immediately associate the mark with only that
producer of that particular kind of goods To
illustrate, assume that an apple grower markets
red apples under the term “Acme.” Because the
term is generic, it would not qualify for full
trademark protection at first If, however,
customers immediately recognize Acme apples
as the apples produced by that grower, after five
years the producer may prevent all others from
using the mark“Acme” in connection with red
apples
The rise of the Internet has added new twists
to an old issue For example, the U.S Court of
Appeals for the Federal Circuit ruled that
merely adding “.com” to an otherwise generic
company name is insufficient to give the name
secondary meaning under trademark law In Re
Steelbuilding.com, 415 F.3d 1293 (Fed Cir
2005) “Steelbuilding” was simply a generic or
descriptive term, the court said, telling potential
customers about the nature of their business
“Steelbuilding.com” was really no different Thus,
neither name would qualify for full trademark
protection
Under 15 U.S.C.A § 1052(a)–(d), (f),
im-moral or scandalous marks, national symbols,
and names of living figures cannot acquire
trademark protection, even through secondary
meaning Surnames generally are not given
trademark protection, but a surname may
qualify for protection if it acquires a secondary
meaning (Ex parte Rivera Watch Corp., 106 U.S
P.Q 145, 1955 WL 6450 [Com’r 1955])
SECRET SERVICE
The U.S Secret Service (USSS) is a government
agency charged with preventing counterfeiting
and protecting the president of the United
States, other high-ranking government officials,
and presidential candidates From its
establish-ment in 1865 until March 1, 2003, the Secret
Service was housed within the Treasury
Department The Secret Service was thereafter
a part of the Homeland Security Department
Its headquarters are in Washington, D.C., and a director, who is appointed by the president, administers the agency It has field offices throughout the United States and overseas
President ABRAHAM LINCOLN appointed a commission to combat the COUNTERFEITING of U.S currency and coins, which had led to dire economic consequences during the Civil War
He established the Secret Service in April 1865
to carry out the commission’s recommenda-tions During the remainder of the nineteenth century, the Secret Service successfully addressed the issue of counterfeiting Its role changed after the 1901 ASSASSINATION of Presi-dent WILLIAM MCKINLEY, however Congress at first informally requested the Secret Service to protect President THEODORE ROOSEVELT and, in
1907, began to appropriate funds for presiden-tial protection In 1917, threats against the president became a felony, and Secret Service protection was broadened to include all mem-bers of the First Family In 1951, protection of the vice president and the president-elect was added After the assassination of presidential candidate ROBERT KENNEDY in 1968, President
LYNDON B.JOHNSONauthorized the Secret Service
to protect all presidential candidates In 1971, Congress authorized the Secret Service to protect visiting heads of a foreign state or government; in 1975, this responsibility was broadened to include the protection of foreign diplomatic missions throughout the United States In 1994, Congress passed a law that limits Secret Service protection of former presidents to 10 years after leaving office
With the growing threat of TERRORISM, the mission of the Secret Service has expanded In
2000 Congress enacted the Presidential Threat Protection Act, which authorized the Secret Service to participate in the planning, coordi-nation, and implementation of security opera-tions at special events of national significance (“National Special Security Event”), as deter-mined by the president Following the Septem-ber 11th terrorist attacks in 2001 on New York City and Washington, D.C., Congress passed the USA PATRIOT ACT This sprawling statute sought to respond to the attacks on many fronts The act increased the Secret Service’s role in investigating FRAUD and related activity
in connection with computers In addition, it
SECRET SERVICE 61
Trang 5authorized the director of the Secret Service to establish nationwide electronic crimes task-forces to assist the law enforcement, private sector, and universities in detecting and sup-pressing computer-based crime The law also increased the penalties for the manufacturing, possession, dealing, and passing ofCOUNTERFEIT
U.S or foreign obligations Most importantly, it authorized enforcement action to be taken to protect U.S financial payment systems while combating transnational financial crimes di-rected by terrorists or other criminals
The Secret Service established the National Threat Assessment Center (NTAC), which advises law enforcement agencies and other professionals on how to investigate and prevent targeted violence, including assassination The NTAC has collaborated with Carnegie Mellon University to develop the Critical Systems Protection Initiative (CSPI) CSPI seeks to develop better cyber security measures, includ-ing the prevention of computer insiders from using networks to compromise the integrity of the system
Though often overlooked, the Secret Ser-vice’s Counterfeit Division continues to investi-gate counterfeiters With the advent of color copiers and computer scanners, criminals have access to powerful tools that aid in counter-feiting The agency’s Financial Crimes Division investigates crimes associated with financial institutions, such as bank fraud, credit and debit card fraud, telecommunications and computer crimes, MONEY LAUNDERING, and IDEN-TITY THEFT The division also investigates forger-ies related to checks issued by the United States, such as those issued forOLD-AGE,SURVIVORS,AND DISABILITY INSURANCE (OASDI), Supplemental Security Income (SSI), and federal Black Lung Benefits The division is likewise involved in the investigation of FORGERY and false statements relating to Social Security documents
Congress established theHOMELAND SECURITY DEPARTMENTin 2002 The department consists of agencies that were previously housed in the various executive divisions, including theJUSTICE DEPARTMENTand the Treasury The Secret Service was transferred from the Treasury to Homeland Security, effective March 1, 2003 The agency was to remain intact and its primary mission would remain the protection of the president and other government leaders It would have access to Homeland Security intelligence
analysis In addition, the Secret Service’s fight against counterfeiting and financial crimes has been characterized as a battle to protect economic security
FURTHER READINGS Kessler, Ronald 2009 In the President’s Secret Service: Behind the Scenes with Agents in the Line of Fire and the Presidents They Protect New York: Crown.
Melanson, Philip H., and Peter F Stevens 2002 The Secret Service: The Hidden History of an Enigmatic Agency New York: Carroll and Graf.
Motto, Carmine 1999 In Crime’s Way: A Generation of Secret Service Adventures New York: CRC Press Seidman, David 2003 Secret Service Agents: Life Protecting the President New York: Rosen Publishing Group U.S Secret Service Available online at www.ustreas.gov/usss (accessed June 9, 2009).
CROSS REFERENCES Counterfeiting; Homeland Security Department; President
of the United States.
SECRETARY GENERAL SeeUNITED NATIONS
SECRETARY OF STATE The office of secretary of state has two meanings
in the United States At the federal level the secretary of state is the president’s principal foreign policy advisor At the state level the secretary of state is an administrative officer whose major duties include accepting ARTICLES
OF INCORPORATION for new corporations and supervising state and local elections
At the federal level the secretary of state is one of the highest ranking members of the president’s cabinet In this pivotal role, the secretary undertakes the overall direction, coordination, and supervision of relations between the United States and foreign nations The position is fourth in line of presidential succession Like other cabinet members who implement the president’s policies, the secretary heads a federal department: the STATE DEPART-MENT As its director, the secretary oversees a vast network of U.S offices and agencies, conducts negotiations with foreign govern-ments, and often travels in the role of chief U.S representative abroad In 1997 President
BILL CLINTONnamedMADELEINE K.ALBRIGHTas the first female secretary of state Four years later, President GEORGE W BUSH named Colin L Powell as the first black person to hold the office In his second term, President Bush
62 SECRETARY GENERAL
Trang 6named Condoleezza Rice the first black woman
to serve in the office President BARACK OBAMA
named HILLARY CLINTON secretary of state in
2009
The position of secretary of state developed
shortly after the founding of the nation in the
late eighteenth century In 1781 Congress
created the Department of Foreign Affairs but
abolished it and replaced it with theDEPARTMENT
OF STATE in 1789 Lawmakers designated the
secretary of state as head of the State
Depart-ment with two principal responsibilities: to
assist the president in foreign policy matters and
to be the chief representative of the United
States abroad Nomination of the secretary was
left to the president, but the appointment was
made contingent upon the approval of the U.S
Senate The first secretary of state, THOMAS
JEFFERSON, served under President GEORGE
WASHINGTONfrom 1790 to 1793
Since the end of WORLD WAR II, the U.S
foreign policy apparatus has greatly expanded,
and its principal body is the State Department
The United States maintains diplomatic
rela-tions with some 180 countries worldwide as well
as ties to many international organizations, and
most of this diplomatic business flows through
the State Department The secretary is aided by
a deputy secretary and five undersecretaries who
serve as key advisers in political affairs;
eco-nomic, business, and agricultural affairs; arms
control and international security affairs;
man-agement; and global affairs Additionally, the
secretary has general responsibility for the U.S
INFORMATION AGENCY, the ARMS CONTROL AND
DISARMAMENTAgency, and the Agency for
Inter-national Development
The secretary is very important Under the
U.S Constitution, the president has most of the
power to set foreign policy; some of this power
is shared by the U.S Senate, which approves
treaties as well as diplomatic and consular
appointments In practical terms the secretary
of state generally becomes the architect of U.S
foreign policy by implementing the president’s
objectives Not all foreign policy advice is given
by the secretary, however In 1947, the creation
of the NATIONAL SECURITY COUNCIL provided the
president with an additional advisory board
(National Security Act of 1947, 50 U.S.C.A §§
401–412 [1982])
Some secretaries have exerted enormous
influence on U.S policy, largely as a reflection
of the president under whom they served.HENRY KISSINGER, who served as secretary of state from
1973 to 1976 under presidentsRICHARD M.NIXON
andGERALD R.FORD, had a leading role in shaping the nation’s participation in nuclear arms treaties and in the VIETNAM WAR By contrast, Secretary of State George Schultz found his influence eclipsed by that of the National Security Council during the Iran-Contra scan-dal that rocked the presidency ofRONALD REAGAN
in the mid-1980s
Colin Powell engendered controversy when
he appeared before the UNITED NATIONS on February 5, 2003, to assert that Iraq possessed
WEAPONS OF MASS DESTRUCTION The presentation, which was a precursor to the eventual U.S
attack on Iraq and the deposing of the regime of Saddam Hussein, proved to be filled with incorrect and unsubstantiated claims Over time Powell developed private reservations about the war and his part in leading the nation into a conflict that devolved into a civil war Powell’s successor, Condoleezza Rice, who had served as President Bush’s national security advisor during his first term, moved away from the more conservative presidential advisors and sought to adopt a more realist position
With the election of President Barack Obama, the United States began an effort to restore good relations with many countries that had objected to theIRAQ WARand the unilateral approach of the Bush administration Secretary
of State Hillary Clinton traveled to many parts
of the world during the first months of the
Husband Bill and daughter Chelsea watch as Hillary Clinton is sworn in as the 67th U.S Secretary of State on February 2, 2009.
ALEX WONG/GETTY IMAGES
SECRETARY OF STATE 63
Trang 7Obama administration, meeting with world leaders, and attempting to convey the commit-ment to diplomacy stated by President Obama
FURTHER READINGS Plischke, Elmer 1999 U.S Department of State: A Reference History Westport, Conn.: Greenwood Press.
U.S Department of State Available online at www.state.gov (accessed July 28, 2009).
CROSS REFERENCES Ambassadors and Consuls; Arms Control and Disarma-ment; International Law; State Department.
SECTION The distinct and numbered subdivisions in legal codes, statutes, and textbooks In the law of real property, a parcel of land equal in area to one square mile, or 640 acres
SECTION 1983 Section 1983 of Title 42 of the U.S Code is part
of the CIVIL RIGHTS ACT of 1871 This provision was first enacted as part of theKU KLUX KLAN ACT
of 1871 and was originally designed to combat post-CIVIL WAR racial violence in the Southern states Re-enacted as part of the Civil Rights Act
of 1964, section 1983 is the primary means of enforcing all constitutional rights
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or 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 proceeding for redress
On March 23, 1871, PresidentULYSSES S.GRANT
sent an urgent message to Congress calling for national legislation that could combat the alarm-ing increase in racial unrest and violence in the South Congress reacted swiftly to this request, proposing a bill just five days later The primary objective of the bill was to provide a means for individuals and states to enforce, in the federal or state courts, the provisions of the FOURTEENTH AMENDMENT The proposed bill created heated debate lasting several weeks but was eventually passed on April 20, 1871
During the first 90 years of the act, few causes of action were brought due to the narrow and restrictive way that the U.S.SUPREME COURT
interpreted the act For example, the phrase
“person [acting] under color of any statute” was not interpreted to include those wrong-doers who happened to be state or municipal officials acting within the scope of their employment but not in accordance with the state or municipal laws Those officials were successfully able to argue that they were not acting under color of statute and therefore their actions did not fall under the mandates of section 1983 In addition, courts narrowly construed the definition of “rights, privileges,
or immunities.”
But the Supreme Court decisions in Monroe
v Pape, 365 U.S 167, 81 S Ct 473, 5 L Ed 2d
492 (1961), and Monell v Department of Social Services, 436 U.S 658, 98 S Ct 2018, 56 L Ed 2d 611 (1978), finally recognized the full scope
of Congress’sORIGINAL INTENTin enacting section
1983 The Supreme Court began accepting an expansive definition of rights, privileges, or immunities and held that the act does cover the actions of state and municipal officials, even if they had no authority under state statute to act
as they did in violating someone’s federal rights
Jurisdiction
Federal courts are authorized to hear cases brought under section 1983 pursuant to two statutory provisions: 28 U.S.C § 1343(3) and 28 U.S.C § 1331 The former statute permits federal district courts to hear cases involving the deprivation ofCIVIL RIGHTS, and the latter statute permits them to hear all cases involving aFEDERAL QUESTION or issue Cases brought under section
1983 may therefore be heard in federal courts by application of both jurisdictional statutes State courts may also properly hear section
1983 cases pursuant to theSUPREMACY CLAUSEof Article VI of the U.S Constitution The Supremacy Clause mandates that states provide hospitable forums for federal claims and the vindication of federal rights This point was solidified in the Supreme Court decision of Felder v Casey, 487 U.S 131, 108 S Ct 2302,
101 L Ed 2d 123 (1988) The Felder case involved an individual who was arrested in Wisconsin and later brought suit in state court against the police officers and city for violations
of his federal rights The state court dismissed the claim because thePLAINTIFFfailed to properly
64 SECTION
Trang 8comply with a state PROCEDURAL LAW But the
Supreme Court overturned the state decision,
holding that the Wisconsin statute could not
bar the individual’s federal claim
To bring an action under section 1983, the
plaintiff does not have to begin in state court
However, if the plaintiff chooses toBRING SUITin
state court, the DEFENDANT has the right to
remove the case to federal court
Elements of a Section 1983 Claim
To prevail in a claim under section 1983, the
plaintiff must prove two critical points: a person
subjected the plaintiff to conduct that occurred
under color of state law, and this conduct
deprived the plaintiff of rights, privileges, or
immunities guaranteed under federal law or the
U.S Constitution
A state is not a“person” under section 1983,
but a city is considered a person under the law
(Will v Michigan Department of State Police, 491
U.S 58, 109 S Ct 2304, 105 L Ed 2d 45[1989])
Similarly, state officials sued in their official
capacities are not deemed persons under section
1983, but if sued in their personal capacities, they
are considered to be persons Thus if a plaintiff
wants to bring a section 1983 claim against a state
official, he or she must name the defendants in
their personal capacity and not in their
profes-sional capacity Like a state, a territory, such as
Guam, is not considered to be a person for the
purposes of section 1983
The Supreme Court has broadly construed
the provision “under color of any statute” to
include virtually anySTATE ACTIONincluding the
exercise of power of one“possessed by virtue of
state law and made possible only because the
wrongdoer is clothed with the authority of state
law” (United States v Classic, 313 U.S 299, 61 S
Ct 1031, 85 L Ed 1368 [1941]) Thus, the
wrongdoer’s employment by the government
may indicate state action, although it does not
conclusively prove it Even if the wrongdoer did
not act pursuant to a state statute, the plaintiff
may still show that the defendant acted
pursuant to a “custom or usage” that had the
force of law in the state In Adickes v S H Kress
& Co., 398 U.S 144, 90 S Ct 1598, 26 L Ed 2d
142 (1970), the plaintiff was able to prove that
she was refused service in a restaurant due to
her race because of a state-enforced custom of
racialSEGREGATION, even though no state statute
promoted racial segregation in restaurants
A successful section 1983 claim also requires
a showing of the deprivation of a constitutional
or federal statutory “right.” This showing is required because section 1983 creates aREMEDY
when rights are violated but does not create any rights itself It is not enough to show a violation
of a federal law, because federal laws do not necessarily create federal rights A violation of the Fourth Amendment’s guarantee against unreasonable SEARCHES AND SEIZURES or a viola-tion of the COMMERCE CLAUSE are examples of federal constitutional rights that may be de-prived Deprivation of federal statutory rights is also actionable when it can be shown that the statute creates a federal right To show that a federal statute creates a federal right, the plaintiff must demonstrate that the federal law was designed and clearly intended to benefit the plaintiff, resulting in the creation of a federal right For example, the Supreme Court held that
a person’s entitlement toWELFAREbenefits under the federalSOCIAL SECURITY ACTis a federal right stemming from a federal statute that can be protected by section 1983 (Maine v Thiboutot,
448 U.S 1, 100 S Ct 2502, 65 L Ed 2d 555 [1980]) However, the Court made clear in Blessing v Freestone, 520 U.S 329, 117 S Ct
1353, 137 L Ed 2d 569 (1997) that individuals cannot sue state and local agencies to force overall compliance with federal regulations
If the plaintiff can demonstrate that a federal law granted him or her a federal right that was then violated, the defendant can defeat the plaintiff’s claim by demonstrating that Congress specifically foreclosed a remedy under section
1983 for the type of injury that the plaintiff is
PLEADING The Supreme Court has held that the defendant must prove that a section 1983 action would be inconsistent with the cautious and precise scheme of remedies provided by Con-gress For example, if a federal law specifically provides for a means to enforce that law privately,
or if the statute does not create“rights” within the meaning of section 1983, the defendant may prevail in showing that Congress did not intend a section 1983 remedy to apply in that circum-stance It is the defendant’s burden to demon-strate congressional intent to prevent a remedy under section 1983
Absolute and Qualified Immunities
Although section 1983 does not specifically provide for absolute IMMUNITY for any parties, the U.S Supreme Court has deemed that some
SECTION 1983 65
Trang 9officials are immune The Court reached this conclusion by applying theCOMMON LAW princi-ples of tort immunity that existed in the United States at the time section 1983 was enacted, assuming that Congress had intended those common-law immunities to apply without hav-ing to specifically so provide in the statute State and regional legislators are absolutely immune, as long as they are engaged in traditional legislative functions Local legislators, such as city council members and county commissioners, have been guaranteed absolute immunity since Bogan v
Scott-Harris, 523 U.S 44, 118 S Ct 966, (1998)
Previously, local officials were protected in some localities by state laws
Judges have also been held to be absolutely immune from section 1983 actions, as long as they are performing adjudicative functions (Pierson v Ray, 386 U.S 547, 87 S Ct 1213,
18 L Ed 2d 288[1967];STUMP V.SPARKMAN, 435 U.S 349, 98 S Ct 1099, 55 L Ed 2d 331 [1978]) Judges are considered to be performing their adjudicative functions as long as they had jurisdiction over the subject matter at the time they acted and the action was a judicial act A minority of lower courts have extended this absolute JUDICIAL IMMUNITY to QUASI-JUDICIAL
agencies, such asPAROLEboards, when they have performed functions similar to those of judges (Johnson v Wells, 566 F.2d 1016 [5th Cir
1978]) Absolute judicial immunity has also been extended in some cases to those judicial employees who act under the direction of the judge, such as a law clerk,COURT ADMINISTRATOR, paralegal, or COURT REPORTER (Lockhart v
Hoenstine, 411 F.2d 455 [3d Cir 1969])
State prosecutors who are acting within the scope of their duty in presenting the state’s case are also absolutely immune from suits for damages under section 1983 claims but are not absolutely immune from suits seeking prospective relief (Imbler v Pachtman, 424 U.S 409, 96 S Ct 984, 47 L Ed 2d 128 [1976]) Moreover, the U.S Supreme Court has ruled that criminal prosecutors do not have absolute immunity when engaged in actions not associated with advocacy (Kalina v Fletcher,
522 U.S 118, 118 S Ct 502, 139 L Ed 2d 471 [1997]) Other state officials who act in a prosecutorial role are similarly immune The Supreme Court differentiated public defenders, however, in Polk County v Dodson, 454 U.S
312, 102 S Ct 445, 70 L Ed 2d 509 (1981),
holding that they do not act under color of state law when performing their duties and therefore are not in need of immunity because their conduct is not covered by section 1983 Witnesses who testify in court are absolutely immune from section 1983 actions for damages, even if the claim arises out of the witness’s perjured testimony (Briscoe v LaHue, 460 U.S
325, 103 S Ct 1108, 75 L Ed 2d 96[1983]) The Supreme Court has also recognized a qualified immunity defense to section 1983 actions in certain circumstances Most state and local officials and employees, who do not enjoy absolute immunity, are entitled to qualified immunity Thus, a PROSECUTOR who enjoys absolute immunity in performing her prosecu-torial functions may also enjoy a qualified immunity in hiring and firing subordinates The Supreme Court has held that school board members, state mental institution administra-tors, law enforcement officers, prison officials, and state and local executives have qualified immunity (Wood v Strickland, 420 U.S 308, 95
S Ct 992, 43 L Ed 2d 214[1975]; O’Connor v Donaldson, 422 U.S 563, 95 S Ct 2486, 45 L
Ed 2d 396[1975]; Pierson v Ray, 386 U.S 547,
87 S Ct 1213, 18 L Ed 2d 288 [1967]; Procunier v Navarette, 434 U.S 555, 98 S Ct
855, 55 L Ed 2d 24[1978]; Scheuer v Rhodes,
416 U.S 232, 94 S Ct 1683, 40 L Ed 2d 90 [1974]) Most federal circuit courts have deemed that parole board members and prison disci-plinary committee members have qualified immunity (Fowler v Cross, 635 F.2d 476 [5th Cir 1981]; Thompson v Burke, 556 F.2d 231 [3d Cir 1977]) Lower courts have extended the defense of qualified immunity to a number of other officials, such as city managers, county health administrators, and state VETERANS’
AFFAIRS DEPARTMENTtrust officers
Whereas prison guards employed by the government (local, state, or federal) are covered under qualified immunity, guards who work in for-profit prison management companies are not This issue was raised in part because of a growing trend on the part of state prison systems to hire outside companies to manage their prisons—a move that reduces the costs of hiring permanent staff The U.S Supreme Court ruled in a 5–4 vote
in 1997 that privately employed individuals did not warrant the same level of protection (Richardson v McKnight, 521 U.S 399, 117 S
Ct 2100, 138 L Ed 2d 540 (1997).)
66 SECTION 1983
Trang 10If the defendant can raise the defense of
absolute or qualified immunity, then he or she
must plead it (Gomez v Toledo, 446 U.S 635,
100 S Ct 1920, 64 L Ed 2d 572[1980])
Remedies
The Supreme Court has held that section 1983
creates “a species of tort liability” (Imbler v
Pachtman, 424 U.S 409, 96 S Ct 984, 47 L Ed
2d 128 [1976]) Thus, the Supreme Court has
held that, as inTORT LAW, a section 1983 plaintiff
is entitled to receive only NOMINAL DAMAGES, not
to exceed one dollar, unless he or she can prove
actual damages (Carey v Piphus, 435 U.S 247,
98 S Ct 1042, 55 L Ed 2d 252 [1978]) The
jury is not entitled to place a monetary value on
the constitutional rights of which the plaintiff
was deprived (Memphis Community School
District v Stachura, 477 U.S 299, 106 S Ct
2537, 91 L Ed 2d 249 [1986]) Plaintiffs bear
the burden, therefore, of presenting evidence of
all expenses incurred, such as medical or
psychiatric expenses, lost wages, and any
damages due to pain and suffering, emotional
distress, or damage to reputation The plaintiff
is also under a burden to mitigate his damages,
and the award of damages may be reduced to
the extent that the plaintiff fails to do so
A section 1983 plaintiff is also required to
prove that a federal right was violated and,
similar to tort law, that the alleged violation was
a proximate or LEGAL CAUSEof the damages that
the plaintiff suffered (Arnold v IBM Corp., 637
F.2d 1350[9th Cir 1981])
The Supreme Court has also held that, similar
to tort law,PUNITIVE DAMAGESare available under
section 1983 (Smith v Wade, 461 U.S 30, 103 S
Ct 1625, 75 L Ed 2d 632 [1983]) A plaintiff is
entitled to punitive damages if the jury finds that
the defendant’s conduct was reckless or callously
indifferent to the federally protected rights of
others or if the defendant was motivated by
an evil intent The jury has the duty to assess
the amount of punitive damages Because the
purpose of punitive damages is to punish the
wrongdoer, such damages may be awarded even
if the plaintiff cannot show actual damages
(Basista v Weir, 340 F.2d 74 [3d Cir 1965]) As
in tort law, the judge has the right to overturn a
jury verdict if the jury awards what the judge
considers to be excessive punitive damages
Courts also have broad power to grant
equitable relief to plaintiffs in section 1983
actions Equitable remedies that courts have provided in the past include SCHOOL DESEGREGA-TION, restructuring of state mental health facilities, and restructuring of prisons (United States v City of Yonkers, 96 F 3d 600 [2nd Cir
1996]; Wyatt v Stickney, 344 F Supp 373 [M.D
Ala 1972]; Hutto v Finney, 437 U.S 678, 98 S
Ct 2565, 57 L Ed 2d 522 [1978]) When the court does provide equitable relief, it usually also provides ongoing evaluation and supervi-sion of the enforcement of its orders
The Civil Rights Attorney’s Fee Awards Act
of 1976 (42 U.S.C.A § 1988[b]) allows for the award of reasonable attorneys’ fees to the
PREVAILING PARTYin cases brought under various federal civil rights laws, including section 1983
This provision applies whether COMPENSATORY DAMAGES were awarded or not This provision also applies whether the plaintiff or the defen-dant prevails However, if the defendefen-dant is the prevailing party, attorneys’ fees have been held
to be appropriate only where the lawsuit was
“vexatious, frivolous, or brought to harass or embarrass the defendant” (Hensley v Eckerhart,
461 U.S 424, 103 S Ct 1933, 76 L Ed 2d 40 [1983]) In addition, section 1988 does not require that the attorneys’ fees awarded be in proportion to the amount of damages recovered (City of Riverside v Rivera, 477 U.S 561, 106 S
Ct 2686, 91 L Ed 2d 466[1986])
Rule 68 of the Federal Rules ofCIVIL PROCEDURE
can lead to the adjustment of the amount of damages awarded by a jury in a section 1983 case
Enacted to encourage parties to settle their matters out of court, Rule 68 provides that if the plaintiff rejected a settlement offer made by the defendant before trial that is better than the award the plaintiff ultimately received in the trial, the defendant is not liable for plaintiff’s attorneys’
fees incurred after the time the defendant made the settlement offer (Marek v Chesny, 473 U.S 1,
105 S Ct 3012, 87 L Ed 2d 1[1985]) Under rule
68, section 1983 plaintiffs need to carefully consider any settlement offers made by the defendants
Bars to Relief
Section 1983 does not provide a specificSTATUTE
OF LIMITATIONS, which is a time limit in which a claim must be brought after the alleged violation occurred But 42 U.S.C.A § 1988 states that where the federal law does not provide a statute of limitations, state law shall apply In determining which state statute of
SECTION 1983 67