The main difference between a Bivens lawsuit and a claim under 42 U.S.C. 1983 is that a Bivens claim covers the federal government and its agents. Section 1983 claims, by contrast, cover local or state officials or agencies.
Bivens lawsuits are also limited to constitutional violations, rather than violations of state or federal law, and cannot be filed against a federal agency.
| Category | Bivens Claims | § 1983 Claims |
| Basis in Law | Implied from 4th Amendment of US Constitution | Based on a federal statute (42 U.S.C. § 1983) |
| Defendant(s) | Federal officers/agents acting under federal authority | State and local officials acting under state authority |
| Remedies | Monetary damages from officers/agents | Monetary damages and/or injunctive relief |
| Venue | Federal court | State or federal court |
| Requirements | Constitutional violation by federal officer, and no alternative remedy is available | Deprivation of constitutional right under color of state law |
What is a civil rights lawsuit under Section 1983?
The federal statute 42 U.S.C. § 1983 lets people sue state and local governments for violations of federal law or the U.S. Constitution, if that violation was done under the color of the law.
Generally speaking, the 11th Amendment to the U.S. Constitution gives states sovereign immunity from civil lawsuits filed in federal court. However, in 1871, Congress passed the Ku Klux Klan Act to stop southern states from using state law to deprive recently freed slaves of their constitutional and federal rights.
Part of this Act was 42 U.S.C. 1983, which entitles victims to file a civil action and demand compensation from people who use their power under state or local law to violate federal law.
Lawsuits under 1983 cannot be filed against the state, itself.1 Instead, they have to be filed against the government officials or agents who violated the law. Both the state government as well as local or municipal governments are covered by 1983.2
State Officials and Color of Law
State actors can be held liable under 1983 for legal violations that are done under color of state law. This involves any use or misuse of the power that the defendant has, because of their government position.3 It includes misconduct done in the officer’s official capacity, even if it is not according to government policy, and even if it violates the law.4
Federal agents can also be sued under 1983 if they act with state or local officers to violate federal rights.5 1983 even encompasses private people or companies that conspire with state or local governments to deprive others of their federal rights.6
However, local governments and municipalities can only be liable if the violation came from an official policy or custom.7
1983 lawsuits are filed in federal court. To recover any compensation, claims will generally have to overcome an immunity defense by the government official.
What is a Bivens lawsuit?
A Bivens lawsuit is a civil claim against a federal agent for violations of the Constitution, also known as constitutional torts. This makes a Bivens claim very similar to a 1983 lawsuit. However, the defendants in Bivens claims are federal officials, not state or local officers. There are several other subtle differences between the two types of claims, as well.
One difference is that Bivens claims cannot be made against government agencies. Bivens claims have to be made against individual officers.8 Bivens also only covers violations of the U.S. Constitution, while 1983 claims also encompass violations of federal law.9 Finally, Bivens claims will be denied if there is an adequate remedy, elsewhere,10 or if a law provides immunity to the officials.11
Like 1983 claims, defendants in Bivens actions often claim that they have absolute or qualified immunity.
The name of a Bivens claim comes from the United States Supreme Court case, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. In that case, federal officers from what is now the Drug Enforcement Agency (DEA) raided a home in New York and arrested the occupant without a warrant. Because 1983 claims only cover actions done by state or local governments and agents, the victim had little recourse against the federal law enforcement agents.
The Supreme Court, however, overruled the lower courts and decided to read a cause of action into constitutional provisions, like the Fourth Amendment, where there was no alternative redress, like the Federal Tort Claims Act.12
What is a constitutional violation?
Both Bivens claims and 1983 lawsuits seek redress for constitutional violations. These include incidents like:
- inmates being deprived of the ability to practice their religion, in violation of the First Amendment,13
- police using excessive force during an arrest, in violation of the Fourth Amendment,14
- police refusing to let a suspect remain silent, in violation of the Due Process Clause of the Fifth Amendment,15 or
- prison officials depriving an inmate of medical care, in violation of the Eighth Amendment.16
What is qualified immunity?
Qualified immunity is a defense to a 1983 lawsuit or a Bivens case. The qualified immunity defense argues that the defendant was just doing his or her job. Immunity is the most common reason for a civil rights lawsuit to lose in district court and in a court of appeals.
Defendants can avoid liability under 1983 or a Bivens lawsuit by showing that their conduct:
- did not violate a clearly established statutory or constitutional right, and
- a reasonable person may not have known about that right.17
There is also absolute immunity for official conduct performed by the following types of workers:
- judges,18
- legislators, whether in the federal, state, or local government,19
- the President of the United States,20
- prosecutors,21 and
- police officers, when they are testifying as witnesses.22
However, some of these workers can still face 1983 or Bivens actions, so long as the petitioner who is suing is only seeking injunctive relief, rather than compensation.
The rules are slightly different for local governments and municipalities. Because they can only be held liable for official policies or customs, there is no qualified immunity for these governments.23
These immunities are the same for Bivens claims and for 1983 lawsuits.24
What damages are available?
Victims of constitutional violations are entitled to compensatory damages. In many cases, though, these losses are insubstantial. Punitive damages are often demanded, as well.
Compensatory damages includes compensation for the victim’s:
- medical bills,
- lost income,
- reduced earning capacity,
- pain and suffering,
- mental anguish,
- emotional distress,
- property damage, and
- loss of consortium.25
Courts have the discretion to award attorney’s fees to the prevailing party, if the state in which the claim was filed would allow for it.26
Punitive damages are a common demand in civil rights lawsuits. They are available when the lawsuit is against state or federal actors, and the defendant’s conduct was intentional or showed an extreme indifference to the rights of others.27 However, they are not available against municipal or local governments.28
Additional resources
For more in-depth information, refer to these scholarly articles:
- Was Bivens Necessary? – Notre Dame Law Review.
- The Myth of Personal Liability: Who Pays When Bivens Claims Succeed – Stanford Law Review.
- Economic Rights, Implied Constitutional Actions, and the Scope of Section 1983 – Georgetown Law Journal.
- Civil Rights Plaintiffs and John Doe Defendants: A Study in Section 1983 Procedure – Cardozo Law Review.
- Police Consent Decrees and Section 1983 Civil Rights Litigation – Criminology & Public Policy.
Legal References:
- Quern v. Jordan, 440 U.S. 332 (1979).
- Monell v. Department of Social Services, 436 U.S. 658 (1978).
- Monroe v. Pape, 365 U.S. 167 (1961).
- Same.
- Tongol v. Usery, 601 F.2d 1091 (9th Cir. 1979).
- Dennis v. Sparks, 449 U.S. 24 (1980).
- Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).
- Federal Deposit Insurance Company v. Meyer, 510 U.S. 471 (1994).
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
- Schweiker v. Chilicky, 487 U.S. 412 (1988).
- Hui v. Castaneda, 130 S.Ct. 1845 (2010).
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
- See, e.g., Ziglar v. Abbasi, 137 S.Ct. 1843 (2017).
- Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010).
- Carlson v. Green, 446 U.S. 14 (1980).
- Estelle v. Gamble, 429 U.S. 97 (1976).
- Harlow v. Fitzgerald, 457 U.S. 800 (1982).
- Stump v. Sparkman, 435 U.S. 349 (1978).
- Bogan v. Scott-Harris, 523 U.S. 44 (1998).
- Nixon v. Fitzgerald, 457 U.S. 731 (1982).
- Van de Kamp v. Goldstein, 555 U.S. 355 (2009).
- Briscoe v. LaHue, 460 U.S. 325 (1983).
- Owen v. City of Independence, 445 U.S. 622 (1980).
- Harlow v. Fitzgerald, 457 U.S. 800 (1982).
- Memphis Community School District v. Stachura, 477 U.S. 299 (1986).
- 42 USC 1988.
- Smith v. Wade, 461 U.S. 30 (1983).
- City of Newport v. Fact Concerts, 453 U.S. 247 (1981).
