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Using Section 1983 to Raise Constitutional Claims in Garden-Variety Cases

By Robert P. Capistrano

Constitutional claims can lurk in garden-variety legal aid cases. Raising these claims against state or local government actors through 42 U.S.C. § 1983 can change the other side's perception of a case, alter power relations between the parties, widen the client's options, hasten a solution, and even open avenues for systemic change. Did the offending person act under color of state law? Should you sue the entity or the individual? Is liability personal or official? Is qualified immunity a defense? Assess these and other factors, and, if appropriate, "make it a federal case."

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