42 USC 1986 makes a person personally liable when they knew a civil rights conspiracy was about to happen, had the power to prevent it, and did nothing. The statute is narrower than it sounds: it only works when the underlying conduct qualifies as a conspiracy under 42 USC 1985, and you have just one year from the date the claim arises to file.1Office of the Law Revision Counsel. 42 USC 1986 – Action for Neglect to Prevent
The Four Elements You Have to Prove
Courts break Section 1986 into four elements. Miss any one and the claim fails. The Third Circuit laid them out in Clark v. Clabaugh.2Public.Resource.Org. Clark v. Clabaugh, 20 F.3d 1290 (3d Cir. 1994)
First, the defendant must have had actual knowledge of a Section 1985 conspiracy. Not suspicion. Not negligence. Not “should have known.” Courts require specific awareness that a civil rights conspiracy was about to occur. This is where most claims collapse, because proving what someone knew before an event happened is inherently hard. Plaintiffs typically rely on internal emails, text messages, prior complaints, meeting notes, or witness testimony. Vague awareness that “something bad might happen” does not clear the bar.
Second, the defendant must have had the power to prevent or help prevent the conspiracy. This does not demand absolute authority. It means the person realistically could have intervened, whether by reporting the plan, confronting the conspirators, or using whatever leverage the situation allowed.
Third, the defendant must have neglected or refused to act. Doing nothing satisfies this element on its own; the statute does not require any affirmative wrongdoing beyond the failure to intervene.1Office of the Law Revision Counsel. 42 USC 1986 – Action for Neglect to Prevent
Fourth, the conspiracy must actually have been carried out. If the conspirators abandoned the plan before anyone was harmed, there is no injury for Section 1986 to remedy.
Why Section 1986 Cannot Stand Alone
Section 1986 is entirely dependent on Section 1985. If the plaintiff cannot prove an underlying Section 1985 conspiracy, the Section 1986 claim fails automatically. The Ninth Circuit has put it plainly: “absent a valid claim for relief under section 1985, there is no cause of action under 1986.” Every Section 1986 case is really two cases stacked together.
Section 1985 reaches three categories of civil rights conspiracies: conspiracies to prevent federal officers from performing their duties, conspiracies to obstruct justice in court proceedings, and conspiracies to deprive people of rights or equal protection.3GovInfo. 42 USC 1985 – Conspiracy to Interfere with Civil Rights The third category, Section 1985(3), generates most of the litigation.
The Supreme Court held in Griffin v. Breckenridge that Section 1985(3) reaches private conspiracies, not just those involving government actors, provided there is evidence of intentional, class-based discrimination.4Justia. Griffin v. Breckenridge, 403 U.S. 88 (1971) The conspirators had to target the victim because of race or another protected characteristic, not personal grudges or business disputes. That class-based discrimination requirement flows straight through to Section 1986. A bystander who failed to prevent a purely personal attack generally cannot be sued under this statute.
Who Can Be Sued
Section 1986 applies to “every person” who meets the four elements. Government officials and private individuals both fall within the statute’s reach, though claims cluster around people with supervisory authority who were uniquely positioned to intervene.
Police supervisors, sheriffs, and other law enforcement leaders are the most common defendants. A police chief who learned that officers under their command planned to target someone based on race, and did nothing about it, sits squarely inside the statute. The same reasoning applies to school administrators who learn of a discriminatory harassment plan, or city officials who receive credible reports of planned violence. Courts look hard at the specificity and credibility of the information the defendant received. A forwarded email spelling out the plan is very different from an overheard hallway remark.
Private citizens can also be sued, though these cases are less common. A business owner who learns employees are conspiring to deny service based on race has both the knowledge and the authority to shut it down. Looking the other way creates exposure. The practical barrier is the same one that defeats most claims: proving actual knowledge of a specific conspiracy, not general awareness of hostility or tension.
The One-Year Filing Deadline
Section 1986 carries its own statute of limitations: one year from the date the cause of action accrues.1Office of the Law Revision Counsel. 42 USC 1986 – Action for Neglect to Prevent That is much shorter than the deadlines for most other federal civil rights claims. Section 1983, for comparison, borrows the state’s personal-injury limitations period, usually two or three years.
The one-year clock generally starts when the plaintiff knew or should have known about the defendant’s failure to act, not necessarily when the conspiracy was carried out. Missing this deadline is fatal, no matter how strong the evidence. Anyone considering a Section 1986 claim should calculate this deadline before doing anything else.
What You Can Recover
A successful plaintiff can recover compensatory damages for losses traceable to the defendant’s failure to act, including lost wages, medical costs, and emotional distress. The statute limits damages to those the defendant “by reasonable diligence could have prevented.”1Office of the Law Revision Counsel. 42 USC 1986 – Action for Neglect to Prevent So you recover only for harm the defendant realistically could have stopped, not every harm the conspiracy produced. If the conspiracy was already too far along for intervention to matter, damages shrink or disappear.
Punitive damages are available when the defendant’s failure was willful or showed reckless disregard for the victim’s rights. A supervisor who received detailed warnings about a planned racially motivated attack and deliberately ignored them faces stronger punitive exposure than someone who misjudged what they were told.
Wrongful death claims under Section 1986 have a hard cap. If the victim dies as a result of the conspiracy, the deceased person’s legal representatives can bring the claim, but damages are capped at $5,000.1Office of the Law Revision Counsel. 42 USC 1986 – Action for Neglect to Prevent The cap dates to the statute’s original 1871 enactment and has never been adjusted for inflation. In practice, wrongful death claims tied to civil rights conspiracies almost always run through Section 1983 instead, where no such cap applies.
Attorney’s fees are available to the prevailing party under Section 1988.5Office of the Law Revision Counsel. 42 USC 1988 – Proceedings in Vindication of Civil Rights For plaintiffs, this makes it easier to find an attorney willing to take a difficult case. For defendants, it means losing adds the other side’s legal costs on top of the damages award.
Defenses You Should Expect
The most effective defense goes after the underlying Section 1985 conspiracy. Show that no actionable conspiracy existed, whether because there was no agreement, no discriminatory motive, or no overt act, and the Section 1986 claim collapses with it. Defense attorneys almost always aim there first.
Government officials sued in their individual capacity typically raise qualified immunity, which shields them from liability unless they violated a clearly established right. Courts resolve qualified immunity as early as possible, often before discovery. If the right at issue was not clearly established at the time of the defendant’s inaction, the case can be dismissed at the outset.
Defendants also attack the knowledge and power elements directly. A supervisor who was on vacation when the conspiracy formed, or a coworker who learned about it only after the fact, has real ground to fight on. Negating either knowledge or power is enough, because the statute requires both.
Even after losing on liability, the reasonable-diligence limitation gives defendants a second front. If realistic intervention would not have changed the outcome, damages can be cut back significantly.
How Section 1986 Fits with Section 1983
Plaintiffs almost always pair Section 1986 claims with Section 1983 claims. Section 1983 provides a broader remedy for anyone whose constitutional rights were violated by a person acting under color of state law. It does not require a conspiracy, it reaches direct violations rather than just failures to prevent them, and it carries a longer limitations period.
In most civil rights litigation, Section 1983 does the heavy lifting. A police officer who used excessive force can be sued directly under Section 1983. A supervisor who knew about a discriminatory plan and failed to intervene might face liability under both Section 1983, for supervisory liability or direct participation, and Section 1986, for failing to prevent a conspiracy. The narrower scope of Section 1986, together with its one-year clock and its dependence on proving a Section 1985 conspiracy, means it rarely succeeds where Section 1983 does not. It is a supplemental tool, not a primary one.