WPI 340.00 Civil Rights—Introduction

Federal pattern instructions. The United States Court of Appeals for the Ninth Circuit, along with other federal appellate courts, has published jury instructions for use in Section 1983 Civil Rights Act cases. See, e.g., Ninth Cir. Civ. Jury Instructions, Chapter 9, which can be found at http://www3.ce9.uscourts.gov/model-civil. Because federal law largely governs civil rights cases under Section 1983, federal court of appeals instructions are appropriate to use as guides for crafting state court instructions. However, state trial courts must use caution when borrowing language from a federal pattern instruction—federal judges are not prohibited from making a comment on the evidence, while state trial courts are forbidden from doing so under the Washington State Constitution, article IV, section 16.

Federal law claims. The pattern instructions in this Part XVII are written for claims under federal law. They do not necessarily apply to counterpart claims under state law.

Section 1983. The Reconstruction Era Civil Rights Act, codified at 42 U.S.C.A. section 1983, was passed by Congress in 1871 to provide a remedy to those prevented by individuals from exercising their civil rights. See Edgar v. State, 92 Wn.2d 217, 595 P.2d 534 (1979). Section 1983, Title 42 U.S.C.A. provides a remedy “against all forms of official violation of federally protected rights.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 700–01, 98 S.Ct. 2018, 2040–41, 56 L.Ed.2d 611 (1978). It reads in pertinent part as follows:

If the rights are protected by federal statute, rather than the federal constitution, the court determines whether the particular federal statutory rights are enforceable under Section 1983. See, e.g., Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989).

Section 1983 covers federal statutory rights unless (1) the federal statute involved does not create enforceable rights, privileges, or immunities, or (2) Congress has expressly foreclosed private enforcement within the terms of the statute itself. See Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). Wilder set forth a three-part test for determining whether a federal statute created enforceable rights:

See Wash. St. Coalition for the Homeless v. DSHS, 133 Wn.2d 894, 928, 949 P.2d 1291 (1997).

A cause of action under Section 1983 requires proof that the defendant acted under color of state law and that the defendant deprived the plaintiff of a right protected by the federal constitution or federal statute. Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 829 P.2d 765 (1992); Torrey v. City of Tukwila, 76 Wn.App. 32, 37, 882 P.2d 799 (1994). “State” law may include the ordinances and policies of creatures of the state such as counties or municipalities. See, e.g., R/L Associates, Inc. v. City of Seattle, 113 Wn.2d 402, 780 P.2d 838 (1989).

Federal action is not actionable under Section 1983. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). However, a federal agent or private individual may be subject to Section 1983 if the agent's or private person's actions constitute joint participation, are entwined with state action, or otherwise amount to state action. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295–96, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001); Lugar v. Edmondson Oil Co., 457 U.S. 922, 941–42, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); see also Knights of Ku Klux Klan, Realm of Louisiana v. East Baton Rouge Parish Sch. Bd., 735 F.2d 895, 900–01 (5th Cir. 1984) (holding that federal officials could be sued under Section 1983 for pressuring the school board to prohibit Klan members from meeting at a school).

State court jurisdiction. State courts have concurrent jurisdiction with federal courts over Section 1983 claims. Haywood v. Drown, 556 U.S. 729, 731, 129 S.Ct. 2108, 173 L.Ed.2d 920 (2009). State courts may not refuse to entertain Section 1983 suits because they believe federal law is inconsistent with local policy. Howlett v. Rose, 496 U.S. 356, 372, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). Thus, despite a court rule that vests the Washington Supreme Court with exclusive jurisdiction over suits challenging the lawyer disciplinary system, that rule does not necessarily defeat superior court jurisdiction when a plaintiff brings a challenge in a superior court under Section 1983. Eugster v. Wash. State Bar Ass'n, 198 Wn.App. 758, 397 P.3d 131, review denied 189 Wn.2d 1018 (2017).

Sufficiency of complaint. A complaint fails to state a claim under Section 1983 if it merely sets forth a conclusion that there is a nexus between the plaintiff, each defendant, and the conduct that created the constitutional tort. According to the United States Supreme Court's analysis, federal courts should use a two-step approach when deciding a CR 12(b)(6) motion to dismiss: first, ignore all conclusory allegations; second, determine the facial plausibility of the non-conclusory factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. The Washington Supreme Court has rejected the “facial plausibility” standard used in Iqbal and Twombly. McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 233 P.3d 861 (2010). Under McCurry, dismissal under CR 12(b)(6) is only appropriate where “even if what the plaintiff alleges is true, the law does not provide a remedy.” McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d at 102.

Controlling authority and persuasive authority. The United States Supreme Court is the only court with appellate jurisdiction to be the court of last resort when resolving a conflict in federal law for opinions that are issued by different circuits of the United States Court of Appeals, by the supreme courts of different states, and for conflicts between federal court opinions and state court opinions. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482–87, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283–88, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005); Rooker v. Fid. Trust Co., 263 U.S. 413, 414–16, 44 S.Ct. 149, 68 L.Ed. 362 (1923); Steinglass, Section 1983 Litigation in State Courts, section 5:8, pp. 5-42 and 5-43; Sup.Ct.R. 17.1(b); 28 U.S.C. § 1257.

The Washington Supreme Court has interpreted provisions of the Washington Constitution to be broader than corresponding provisions of the United States Constitution. In particular, the court has determined that Article I, Section 7 of the state constitution provides more protections to individuals than required under the Fourth Amendment to the federal constitution. Do not draft jury instructions in Section 1983 cases based on anything other than federal constitutional violations. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). State constitutional violations and violations of state statutes are not actionable under Section 1983.

Published opinions of the Washington Supreme Court and Washington Court of Appeals are controlling authorities for state law. Federal and state law may interact in a constitutional tort case; for example, federal constitutional law determines whether the state's law has created a due process right actionable under Section 1983. Town of Castle Rock v. Gonzales, 545 U.S. 748, 756–57, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005).

According to principles of stare decisis and considering the purpose and structure of the federal and state court systems under the United States Constitution, our state courts are not required to follow decisions of the United States Court of Appeals or United States District Court (including decisions of the Ninth Circuit, the Western District of Washington, or any other) in Section 1983 litigation. See Rousso v. State, 149 Wn.App. 344, 363, 204 P.3d 243 (2009), affirmed 170 Wn.2d 70, 239 P.3d 1084 (2010); S.S. v. Alexander, 143 Wn.App. 75, 100–14, 177 P.3d 724 (2008) (Washington Court of Appeals may choose the most well-reasoned opinion from lower federal courts, and is not bound by Ninth Circuit precedent concerning federal statutes and constitutional rights). Decisions of the United States Court of Appeals for the Ninth Circuit are persuasive authority; it is beneficial for state and federal courts in Washington State to strive for predictable and uniform interpretation when construing provisions of the United States Constitution. See Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 346–48 (1816).

Our state trial courts must follow these controlling authorities for interpretation of federal law (listed in descending order of binding authority)—published opinions of: the United States Supreme Court; the Washington Supreme Court; and the Washington Court of Appeals. See Cooper v. Aaron, 358 U.S. 1, 18–20, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Rousso v. State, 149 Wn.App. 344, 363, 204 P.3d 243 (2009), affirmed 170 Wn.2d 70, 239 P.3d 1084 (2010); State v. Radcliffe, 139 Wn.App. 214, 222–24, 159 P.3d 486 (2007), affirmed 164 Wash. 2d 900, 194 P.3d 250 (2008).

Local government liability. At one time, based on Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), governmental entities could not be sued under Section 1983 because they were not considered “persons” under the wording of the statute. In 1978 the Supreme Court reversed this position, with regard to local governmental entities; the Court did retain the view, however, that such entities should not be held vicariously liable for the acts of their employees on the basis of respondeat superior. Monell v. Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). As a result, there are special claims and defenses that apply to governmental entities as defendants, and to defendants acting in their “official capacities,” and special instructions are set forth at WPI Chapter 341 (Civil Rights—Municipal and Local Government Liability).

There are also defenses available to defendants sued in their individual capacities, such as qualified immunity, see the Comment to WPI 340.01 (Claims Instruction for Section 1983 Cases), which are not available to defendants sued in their official capacities or to governmental entities. See the Comment to WPI 341.01 (Civil Rights—Municipal and Local Government Liability—General Introductory Instruction).

State immunity. The state itself, its officials sued in their official capacity, and state agencies subject to Eleventh Amendment immunity, are not “persons” subject to suit for damages under Section 1983 in federal or state court. Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Wash. State Republican Party v. Pub. Disclosure Com'n, 141 Wn.2d 245, 285–86, 4 P.3d 808 (2000); Edgar v. State, 92 Wn.2d 217, 595 P.2d 534 (1979). See the Comment to WPI 341.01 (Civil Rights—Municipal and Local Government Liability—General Introductory Instruction).

Causation. For discussions of causation, see WPI 340.02 (Civil Rights—Individual Defendant—Burden of Proof on the Issues), 340.04 (Civil Rights—“Subjects” and “Causes to be Subjected”—Definition), and WPI 340.06 (Causation—Comment Only).

Section 1981. Title 42, Section 1981, not addressed in these instructions, applies to discrimination by private parties in employment or in other contract matters. For a discussion of the elements of a Section 1981 case, see Gen'l Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 388–91, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982).

Section 1985. Title 42, Section 1985, issues involving conspiracies to interfere with civil rights are not addressed in this chapter. For discussion and application of the elements of Section 1985(3) (conspiracy to deprive members of protected class of equal protection of the laws or equal privileges and immunities) see, e.g., Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993); Griffin v. Breckenridge, 403 U.S. 88, 102–03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971); Torrey v. City of Tukwila, 76 Wn.App. 32, 38, 882 P.2d 799. The requirements of Section 1985(2) conspiracies to deny access to federal courts or to intimidate federal witnesses are discussed in cases such as Portman v. County of Santa Clara, 995 F.2d 898 (9th Cir. 1993) (denial of access), and Rutledge v. Arizona Board of Regents, 859 F.2d 732 (9th Cir. 1988) (witness intimidation).