Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P8 ppt

appointment is to control the disposition of the property or whether it is to be superseded by some appointment that the donee makes.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 assortm ent 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 58 SECONDARY AUTHORITY LABOR UNIONS are the most common practi- tioners of secondary boycotts. Typically a LABOR 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 an UNFAIR LABOR PRACTICE when 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 busines s may seek relief under state law s. 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 in duce 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 publicity PROVISO does 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 picket ed 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, coercio n, 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 cond uct 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SECONDARY BOYCOTT 59 businesses 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 secondar y 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 the FEDERAL 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 a BENCH 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 60 SECONDARY EVIDENCE word 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, nation al 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. JOHNSON authorized 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SECRET SERVICE 61 authorized 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 of COUNTERFEIT 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 ot her 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 for OLD-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 the HOMELAND SECURITY DEPARTMENT in 2002. The department consists of agencies that were previously housed in the various executiv e divisions, including the JUSTICE DEPARTMENT and 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; Pr esident of the United States. SECRETARY GENERAL See UNITED 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 CLINTON named MADELEINE K. ALBRIGHT as 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 62 SECRETARY GENERAL named 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 the DEPARTMENT 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 WASHINGTON from 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 Stat es 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,theARMS CONTROL AND DISARMAMENT Agency, 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 additiona l 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 presidents RICHARD M. NIXON and GERALD 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 of RONALD 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 reser vations 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 be gan an effort to restore good relations with many countries that had objected to the IRAQ WAR and 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SECRETARY OF STATE 63 Obama 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 the KU 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, President ULYSSES 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’s ORIGINAL INTENT in 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 offi cials, 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 of CIVIL RIGHTS,andthelatterstatute permits them to hear all cases involving a FEDERAL 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 the SUPREMACY CLAUSE of 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 the PLAINTIFF failed to properly GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 64 SECTION comply 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 to BRING SUIT in 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. Astateisnota“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 co lor of any statute” to include virtually any STATE ACTION including 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 racial SEGREGATION, 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 a REMEDY when rights are violated but does no t 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 Amen dment’s guarantee again st 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 per son ’s entitlement to WELFARE benefits under the federal SOCIAL SECURITY ACT is 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’sburdentodemon- 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SECTION 1983 65 officials are immune. The Court reached this conclusion by applying the COMMON 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 as PAROLE boards, 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 imm unity 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. 198 1]; Thompson v. Burke, 556 F.2d 231 [3d Cir. 1977]). Lower courts have extended the defense of qualified imm unity to a number of other officials, such as city managers, county health administrators, and state VETERANS’ AFFAIRS DEPARTMENT trust 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 5–4vote 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).) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 66 SECTION 1983 If 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 in TORT 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 CAUSE of 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 DAMAGES are 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 PARTY in 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 defendant is the prevailing party, atto rneys’ 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 of CIVIL 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 specific STATUTE 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SECTION 1983 67 . 199 7 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 ( 199 7).) GALE ENCYCLOPEDIA OF AMERICAN. where the federal law does not provide a statute of limitations, state law shall apply. In determining which state statute of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SECTION 198 3 67 . & Joiners of America, Local Union No. 1506, 4 09 F.3d 1 199 (9th Cir. 2005), the NLRB sought to enjoin a union from displaying banners stating, “LABOR DISPUTE” outside of several GALE ENCYCLOPEDIA OF AMERICAN