A § 1983 lawsuit is a legal remedy

A § 1983 lawsuit is a legal remedy available to individuals
pursuant to a federal statute that waives the government’s immunity
from suit for civil rights violations. Congress permits individuals to
file suit against the government under 42 U.S.C. § 1983 to seek
redress for violations of constitutional rights committed by
government officials.96 Section 1983 of Title 42 provides:
Every person who, under color of . . . State or Territory . . . subjects
. . . any citizen of the United States . . . 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 . . . .97
Before filing suit against CPS, attorneys representing families should
identify whether the parent or child’s constitutional rights have been
violated, whether the Fourth or Fourteenth Amendment protections
were violated, and which CPS conduct violated the individual’s
rights. Even where there are constitutional violations, families may
be barred from recovery if the court accepts the defense that the state
actors qualify for qualified immunity. Therefore, attorneys should
plead that CPS violated family members’ constitutional violations in a
manner that gives family members the best opportunity to recover
compensation in light of anticipated qualified immunity

Qualified immunity is an affirmative defense to a civil action that
may be asserted against public officials engaging in a discretionary

function of their employment.98 Public official defendants are
immune from § 1983 lawsuits “[u]nless the plaintiff’s allegations
state a claim of violation of clearly established law.”99 Qualified
immunity balances two important competing interests: “the need to
hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties
reasonably.”100 The Supreme Court has established a two-pronged
test for determining whether public official defendants are immune
from suit for wrongful conduct: (1) whether the plaintiff alleges a
violation of a constitutional right and (2) whether the plaintiff’s right
was clearly established at the time.101 A “clearly established” right is
one that is “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.

Although qualified immunity is technically an affirmative defense,
in the Ninth Circuit, the plaintiff bears the burden of demonstrating
that the right allegedly violated was clearly established at the time of
the incident.103 If the court determines that government officials are
entitled to qualified immunity, the damages claims against the
officials can be dismissed without a court ever deciding the merits of
the suit.104 In such an instance, the case would be dismissed before a
family is able to tell their story to a jury. The Court’s two-pronged
test is intended to avoid a practical problem of qualified immunity:
that the legal standards will be unclear governing whether official
conduct violated a clearly established right

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