Professor Notes:
We start this week with the last of the major topics regarding civil actions brought for “constitutional” torts brought in federal court under Bivens or section 1983.

Let’s look at the issue of municipal liability and explore when and under what circumstances a municipality can be held civilly liable for the actions of its employees.  We are going to limit our discussion here to section 1983 actions against a local municipal government.  We will not discuss state agencies (see U.S. Const. amend. XI if you are interested).

The concept of municipal liability for a violation of the rights of a citizen has its origin with Monell v. Department of Social Services, 98 S.Ct. 2018 (1978).  You may recall reading this case in Week 3.  Monell established the rule that municipal bodies (counties, towns cities, villages, parishes, etc) can be sued under section 1983.  And I am sure you can see why this is such an important case.  A municipality has “deep pockets” and a plaintiff that sues a municipal entity is much more likely to recover any monetary damages that may by awarded.  But Monell has much deeper implications on the issue of civil liability that we will continue to explore this week and beyond.

Those who are in leadership positions within the law enforcement community have to address how to protect their employees from civil liability claims and how to protect their municipality from civil liability claims.  Let me explain –
Individual Civil liability

Many of the cases we have already reviewed address civil liability from claims that are brought against individual police/corrections officers – Graham, Harris, Plumhoff.  Agencies devote significant resources to prevent their individual employees from committing constitutional violations.  In your assignments many of you have already mentioned “annual” training or “required” training within your agencies.  Think about why this training is important.  One way, and maybe the most effective way to prevent civil liability, is to train employees.  But what do we train them on?  Well, as you probably gathered from last week’s topic of qualified immunity, legal training is particularly important. Individual employees are liable for their conduct if their conduct violates clearly established constitutional law. When I am teaching in the classroom on the topic of deadly force, I like to ask this question – Why can’t police officers shoot an unarmed non-dangerous fleeing suspect?  The answer, of course, is because the U.S. Supreme Court told us that this was a violation of the Fourth Amendment in Tennessee v. Garner.  If an officer uses deadly force in the same context as Garner he/she will be civilly liable (not to mention the possibility of criminal prosecution).  This liability comes from the fact that the officer should know that their conduct violated the Fourth Amendment.  Therefore, legal training MUST incorporate, at a minimum, decisions from the U.S. Supreme Court.  We need to make sure that employees are aware of these decisions so they avoid violating clearly established legal standards.  The next time you get or even give training keep this in mind.
Municipal Liability

Many of my students are executives in their respective law enforcement agencies, and while they want to learn about protecting their employees from liability (and protecting citizens they are sworn to protect from suffering constitutional violations) they have other concerns.  For example, they want to know how to protect their municipality from civil liability.  Our topic this week on municipal liability addresses this concern.  When you read the cases this week, focus on when and under what circumstances a municipal entity can be found responsible for the conduct of its employees and then ask yourself what steps the law enforcement agency can take to protect against municipal liability.  Look for two key concepts in these cases involving “policy or custom” and “respondeat superior.”  Both of these will be necessary to complete this week’s assignment.  Finally, policy implementation and evaluation are important goals of CALU’s D.C.J. program, and the readings this week contribute to these goals.

A hint for those who made it this far:

Let me give you a detail that may be hard to glean from the cases – there is no municipal liability under section 1983 if there was no constitutional violation by the employee.  For example, if a plaintiff sues a law enforcement officer for unreasonable force under the Fourth Amendment and also sues the employee’s city, if a judge or jury finds that the employee did not violate the Fourth Amendment, the municipality cannot be held liable. Both the Scott case and the Plumhoff case could be used as examples – since the officers did not violate the constitution, the police agency and the municipality that the officers work for cannot be held liable.

Reading Assignment:
Chapter 5 (Governmental Liability) in the Constitutional Torts textbook.  The cases that I have attached to this module are also included in this chapter, so you can read them in the chapter.  I attached them to the module for convenience only.

Assignment:
After you complete your readings this week, please prepare a 4-5 page paper in proper APA format, discussing municipal liability.  Your paper must address the following topics related to 42 U.S. Code § 1983 –

1.  What is “respondeat superior” liability?  How do the federal courts treat this issue when it arises in the context of municipal liability – in other words, can a municipality be held liable under this type of liability?  What does the phrase “subjects, or causes to be subjected” from 42 U.S. Code § 1983 mean as it relates to the concept of “respondeat superior”?

2.  What elements must be established/proven in order for a plaintiff to hold a municipality liable for the constitutional violations of its employees?  What steps can a law enforcement agency take to avoid/limit/minimize this liability?  How can properly written policies and procedures contribute to this effort?

Of course, you are free to discuss the facts and legal holdings of any of the assigned cases this week to complete this assignment and may use any reputable academic/journal articles that examine this issue.