Limiting access to courts by wrongful death and other personal injury victims and/or conspiring to abridge their constitutional protections under color of state law may violate federal civil rights under 42 U.S.C. §1983. Avery T. “Sandy” Waterman, Jr., Esq. recently withstood Fed. R. Civ. P. 12 motions to dismiss such claims on allegations that officers tampered with evidence of a wrongful death victim in Webb v. Stevens, No. 5:05-CV-33-BO(1) Order (Mar. 17, 2008) and 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008).

In 1978, the Fourth Circuit established that citizens “have a constitutional right of meaningful access to the courts which a state may not abridge nor impair, nor may it impermissibly burden its exercise.” Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978)(§1983 claim stated). “It is enough that the [constitutional misconduct] was intended to impose a limitation upon the [citizen’s] right of access to the court and was reasonably calculated to have that effect.” Id. at 1348.

In 1987, the Fourth Circuit established that a police officer had a “duty to act,” i.e., a duty “to protect [a citizen] from illegal excesses perpetrated by [another officer present];” and that tacit conspiratorial liability for a §1983 civil rights claim could be predicated on an officer’s failure to protect in such circumstances. Further, the Fourth Circuit established that engagement in “concerted activity” could be inferred from minimal participatory physical conduct by an officer even in the absence of an oral agreement with another officer to deprive constitutional rights. Jackson v. Pantazas, 810 F.2d 426, 430 (4th Cir. 1987)(§1983 excessive force conspiracy claim). Browning v. Snead, 886 F.Supp. 547, 552 (S.D. W.Va. 1995) followed Jackson.

In 1992, the Fourth Circuit outlined, “The district judge did not err by instructing the jury that a claim of conspiracy under 42 U.S.C § 1983 can succeed by a mere showing of acquiescence.” Hafner v. Brown, 983 F.2d 570, 576 (4th Cir. 1992)(§1983 excessive force conspiracy claim). The Fourth Circuit in Hafner emphasized, “Acquiescence can amount to a conspiracy agreement when, as here, one police officer watches an open breach of the law and does nothing to seek its prevention.” Id. at 578. Mere participation in unconstitutional conduct can constitute “concerted activity” without any explicit agreement. Id. at 577. Thus, it is not necessary expressly to show or even allege a specific conspiratorial agreement; it suffices simply to allege and show “mere acquiescence” to prove a conspiracy.