The Federalist Society is pleased to announce its Student Blog Initiative, a project of the Practice Groups and the Student Division. An inaugural group of eight students will contribute to the Federalist Society's blog throughout this academic year. Student contributors accepted into the program are held to the same rigorous standards as the regular and guest contributors to the blog, which exists as a forum for experts to provide thoughtful, balanced commentary in an engaging, accessible manner.
Each student in this select group drafts posts on legal, constitutional, and policy issues, receives feedback and revisions from volunteer experts, and has the opportunity to share his or her work on the Federalist Society's widely viewed platforms.
The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors.
History will certainly remember this year and its prominent social debates. One of the most pressing issues is, of course, police conduct. An interesting part of the debate over police conduct has to do with existing civil-liability laws, and specifically, whether a local government should be held accountable for conduct of its officers charged with homicide, regardless of their guilt or innocence.
Often, civil plaintiffs are seeking “equitable relief,” or court orders that alter or prohibit certain conduct. This type of relief is greatly effective, as the judiciary is able to prevent use of dangerous police restraints or techniques before they cause future harm. But, sometimes, the damage caused by violating fundamental rights can be best remedied by money. Families of victims typically seek money damages in the form of compensatory and special damages to cover economic loss stemming from injury or death of loved ones.
42 U.S.C § 1983 supplies the pathway for these plaintiffs to seek legal relief. The federal statute provides that every person who deprives another of his or her constitutional rights under color of state law shall be liable for money damages. For much of American history, the federal Bill of Rights did not apply against state and local government, but after most of those rights were held “incorporated” against the states by the Supreme Court, § 1983 allows plaintiffs to hold state and local governments accountable for violations of constitutional rights.
But, when the defendant is a local government or municipality, rather than an individual government official, political subdivisions enjoy unique protection from liability under a case called Monell.
In 1961, the Warren Court, typically remembered for its expansion of civil rights protections, held that municipalities cannot be liable under § 1983. This holding was overturned in 1978 by Monell v. Department of Social Services of the City of New York, which created a narrow pathway for civil rights plaintiffs to seek money damages against a city. But this expansion came with an important limitation: a political subdivision cannot be held liable under a theory of respondeat superior.
Here, conflict arises: If a city, county, or other local entity cannot be vicariously liable for the actions of its employees, how can a civil rights plaintiff ever hold a political subdivision accountable for actions committed in its name? Justice Brennan summarized this dichotomy in Pembaur v. City of Cincinnati, writing: “Monell reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts ‘of the municipality’—that is, acts which the municipality has officially sanctioned or ordered.”
To remedy this tension, the Supreme Court has defined four narrow avenues by which a plaintiff can allege that unconstitutional actions are “of the municipality.”
First, a plaintiff may allege that the entity has an unconstitutional policy. These policies may be written or unwritten, so long as they can properly be attributed to a “policymaker.” Per the Court, policymakers are typically elected officials or those defined as policymakers by state law. This avenue also provides a standard of causation: if a subordinate employee is the party responsible for the deprivation of rights, the local entity may only be responsible if a certain policy was a “moving force” behind their action. This but-for standard serves as a backstop to ensure that vicarious liability for an employee’s actions is not imputed onto a political subdivision.
Second, a local entity may be liable under § 1983 for unconstitutional customs and practices. This avenue can be advantageous to a civil rights plaintiff when no policymaker can be identified. However, this pathway is difficult for a plaintiff to pursue because he or she must be able to allege a deprivation of rights over a length of time and with significant frequency before ever reaching discovery. Time and frequency, however, are in the eye of the beholder—the judge.
Third, if a policymaker delegates his or her authority to a subordinate employee or explicitly approves of unconstitutional actions, the act can be said to be “of the municipality” by adoption.
Finally, a civil rights plaintiff may allege deliberate indifference. This avenue applies to single-incident-type injustices and concerns the city or county’s failure to hire, train, or supervise its employees. Deliberate indifference liability attaches when policymakers of the local entity are aware of a very large risk and grossly neglect to address it.
While they made sound simple enough, each of these avenues poses its own challenges for § 1983 plaintiffs. Blatantly unconstitutional policies are rarely authorized by city councils or county commissioners, and admissible evidence proving policymaker authorization or adoption of a subordinate employee’s unconstitutional action is often non-existent. Custom and practice takes time, money, and resources that civil rights plaintiffs might not be able to obtain before discovery. Lastly, deliberate indifference has been relegated to a topic for academic discussion, rather than a pathway to municipal liability.
These difficulties raise a question: should municipal liability be expanded? The events of 2020 have inspired much discussion surrounding qualified immunity, which shields individual government officials, including police officers, from liability for their discretionary actions, but little conversation has been dedicated to the pros and cons of reforming Monell.
Similar to qualified immunity, Monell has become an incredibly protective shield for government misconduct, leaving blatantly unconstitutional violations unaddressed. The threat of being held accountable for constitutional wrongs committed by officers might encourage county and city governments to increase training or reconcile current policies and practices with the Constitution. Surely, reaching into the pocketbooks of cities and counties could be an impetus for change and preventing future injustice.
However, expanding the breadth of Monell also has drawbacks. Echoing the supporters of the qualified immunity doctrine, those that oppose broadening Monell’s reach fear that increasing liability could have a chilling effect on law enforcement. Further, injunctive relief is often sufficient to remedy a constitutional violation, so expansion of Monell’s monetary liability might not be necessary. Unlike qualified immunity which concerns individuals, reforming Monell provokes a special concern for federalism and separation of powers when federal courts begin to interfere with local government policymaking.
The interaction between qualified immunity and Monell can leave a citizen who has been deprived of his or her civil rights by a local government unable to seek vindication by shielding all applicable defendants from liability. While qualified immunity reform has withstood several challenges thus far, expanding Monell’s boundaries might be a new frontier to civil recovery. Certainly, Monell is an issue that must be addressed when an injured citizen seeks redress under § 1983, but considering the current cultural buzz about how to hold government accountable, it might be an issue that enters our national discourse soon as well.