1. Chapter Sixteen Constitutional and Civil Rights of Victims This multimedia presentation and its contents are protected under copyright law. The following are prohibited by law: * any public performance or display, including transmission of any over a network; * preparation of any derivative work, including the extraction, in whole or in part, of any images; * any rental, lease, or lending of the program. Copyright © Allyn & Bacon 2007

2. 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... Copyright © Allyn & Bacon 2007

3. 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. Copyright © Allyn & Bacon 2007

4. 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 Copyright © Allyn & Bacon 2007

5. –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. Copyright © Allyn & Bacon 2007

6. 1983 Theories of Liability Denial of Equal Protection Failure to Act Failure to Train Failure to Supervise Failure to Protect Copyright © Allyn & Bacon 2007

7. 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 Copyright © Allyn & Bacon 2007

8. 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 Copyright © Allyn & Bacon 2007

9. 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 –Section 302 subsection (b) –Section 302 subsection (c) –Section 302 subsection (d) –Section 302 subsection (e) Copyright © Allyn & Bacon 2007

10. 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 Copyright © Allyn & Bacon 2007

11. 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 –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 Copyright © Allyn & Bacon 2007

12. 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 Copyright © Allyn & Bacon 2007

13. 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 Copyright © Allyn & Bacon 2007

14. 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 Copyright © Allyn & Bacon 2007

15. 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 Copyright © Allyn & Bacon 2007

16. 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 Copyright © Allyn & Bacon 2007