Section 1983 Litigation/Municipal Liability

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Section 1983 Litigation
Table of Contents
Introduction to § 1983 Litigation
The Statute
Historical Background
Nature of § 1983 Litigation
Right to Trial by Jury
Jury Instructions
Constitutional Claims Against Federal Officials: The Bivens Doctrine
Section 1983 Does Not Encompass Claims Against Federal Officials
The Bivens Claim for Relief
Law Governing Bivens Claims
Elements of Claim, Functional Role, Pleading, and Jurisdiction
Elements of the § 1983 Claim
Functional Role of § 1983
Pleading § 1983 Claims
Federal Court Jurisdiction
State Court Jurisdiction
Section 1983 Plaintiffs
Persons Entitled to Bring Suit Under § 1983
Constitutional Rights Enforceable Under § 1983
Due Process Rights: In General
Procedural Due Process
Substantive Due Process Claims
Use of Force by Government Officials: Sources of Constitutional Protection
Arrests and Searches
Malicious Prosecution Claims Under Fourth Amendment
Conditions-of-Confinement Claims Under Eighth Amendment
First Amendment Claims
Equal Protection “Class-of-One” Claims
Enforcement of Federal Statutes Under § 1983
Enforcement of Federal “Rights”
Specific Comprehensive Scheme Demonstrating Congressional Intent to Foreclose § 1983 Remedy
Current Supreme Court Approach
Enforcement of Federal Regulations Under § 1983
Color of State Law and State Action
State and Local Officials
State Action Tests
Section 1983 Defendants
State Defendants
Interplay of “Person” and Eleventh Amendment Issues
Municipal Defendants
State Versus Municipal Policy Maker
Departments, Offices, and Commissions
Capacity of Claim: Individual Versus Official Capacity
Municipal Liability
Fundamental Principles of § 1983 Municipal Liability
Officially Promulgated Policy
Municipal Policy Makers
Custom or Practice
Inadequate Training
Inadequate Hiring
Pleading Municipal Liability Claims
Liability of Supervisors
Relationship Between Individual and Municipal Liability
Los Angeles v. Heller
If Plaintiff Prevails on Personal-Capacity Claim
“Cost Allocation Scheme”
State Liability: The Eleventh Amendment
Relationship Between Suable § 1983 “Person” and Eleventh Amendment Immunity
Eleventh Amendment Protects State Even When Sued by Citizen of Defendant State
State Liability in § 1983 Actions
Personal-Capacity Claims
Municipal Liability; the Hybrid Entity Problem
Eleventh Amendment Waivers
Eleventh Amendment Appeals
Personal-Capacity Claims: Absolute Immunities
Absolute Versus Qualified Immunity: The Functional Approach
Judicial Immunity
Prosecutorial Immunity
Witness Immunity
Legislative Immunity
Personal Liability: Qualified Immunity
Who May Assert Qualified Immunity? Private Party State Actors
Clearly Established Federal Law
Procedural Aspects of Qualified Immunity
Exhaustion of State Remedies
State Judicial Remedies: Parratt-Hudson Doctrine
Preiser, Heck, and Beyond
State Administrative Remedies; PLRA
Notice of Claim
Preclusion Defenses
State Court Judgments
Administrative Res Judicata
Arbitration Decisions
Statute of Limitations
Limitations Period
Relation Back
Survivorship and Wrongful Death
Wrongful Death
Abstention Doctrines
Pullman Abstention; State Certification Procedure
Younger Abstention
Colorado River Abstention
Burford Abstention
Domestic Relations Doctrine
Tax Injunction Act
Monetary Relief
Nominal and Compensatory Damages
Punitive Damages
Release-Dismissal Agreements
Prison Litigation Reform Act
Attorneys’ Fees
Section 1988 Fee Litigation
Prevailing Parties
Computation of Fee Award: Lodestar Adjustment Method
Other Fee Issues
Model Instructions
Model Instruction 1: Section 1983—Elements of Claim—Action Under Color of State Law
Model Instruction 2: Fourth Amendment Excessive Force Claim
Model Instruction 3: Eighth Amendment Prisoner Excessive Force Claim
Model Instruction 4: Fourth Amendment False Arrest Claim
Model Instruction 5: Municipal Liability—General Instruction
Model Instruction 6: Municipal Liability—Inadequate Training or Supervision
Model Instruction 7: Compensatory Damages
Model Instruction 8: Punitive Damages

Fundamental Principles of § 1983 Municipal Liability[edit | edit source]

In its landmark decision, Monell v. Department of Social Services,[1] the Supreme Court held that municipal entities are subject to § 1983 liability, but not on the basis of respondeat superior.[2] Therefore, a municipality may not be held liable under § 1983 solely because it hired an employee who became a constitutional wrongdoer. Monell established that a municipality is subject to liability under § 1983 only when the violation of the plaintiff’s federally protected right can be attributable to the enforcement of a municipal policy, practice, or decision of a final municipal policy maker.[3] “[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”[4] A model general municipal liability jury instruction is in the Appendix (see infra Model Instruction 5).

Claims for Prospective Relief[edit | edit source]

In Los Angeles County v. Humphries,[5] the Supreme Court held that Monell’s “policy or custom” requirement is not limited to claims for damages, and pertains also to claims for prospective relief, such as an injunction or declaratory judgment. The Court relied on the language of § 1983, its legislative history, and the decision in Monell. It found that

Nothing in the text of § 1983 suggests that the causation requirement contained in the statute should change with the form of relief sought. In fact, the text suggests the opposite when it provides that a person who meets § 1983’s elements “shall be liable… in an action at law, suit in equity, or other proper proceeding for redress.”[6]

The Court pointed to Monell’s analysis of § 1983 legislative history, and specifically Congress’s rejection of the Sherman Amendment, which showed Congress’s intent that a municipality, may be held liable only for its own wrongs and not solely because it employed a tortfeasor. Humphries also relied on language in Monell that local governing bodies may be held liable “‘under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes’” a municipal policy or custom.[7] To hold the “policy or practice” requirement inapplicable to claims for prospective relief “would undermine Monell’s logic. For whether an action or omission is a municipality’s ‘own’ [wrong] has to do with the nature or omission, not with the nature of the relief that is later sought in Court.”[8]

No Good-Faith Immunity, But Immunity from Punitive Damages[edit | edit source]

In Owen v. City of Independence,[9] the Supreme Court held that a “municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983.”[10] In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,[11] the Court held that “unlike various government officials, municipalities do not enjoy immunity from suit—either absolute or qualified under § 1983.”[12] Although compensatory damages and equitable relief may be awarded against a municipality under § 1983,[13] the Court, in City of Newport v. Fact Concerts, Inc.,[14] held that municipalities are immune from punitive damages. It found that because an award of punitive damages against a municipality would be payable from taxpayer funds, the award would not further the deterrent and punishment goals of punitive damages. These goals are best accomplished by awards of punitive damages against officials in their personal capacity. Punitive damages, however, may be awarded under § 1983 against a state or municipal official in her individual capacity.[15]

Municipal Policies and Practices[edit | edit source]

Under Supreme Court decisional law, municipal liability may be based on (1) an express municipal policy, such as an ordinance, regulation, or policy statement; (2) a “widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well settled as to constitute a custom or usage’ with the force of law”;[16] or (3) the decision of a person with “final policymaking authority.”[17] The following types of municipal policies and practices may give rise to § 1983 liability:

  1. deliberately indifferent training;[18]
  2. deliberately indifferent supervision or discipline;[19]
  3. deliberately indifferent hiring;[20] and
  4. deliberately indifferent failure to adopt policies necessary to prevent constitutional violations.[21]

Causation[edit | edit source]

There must be a sufficient “causal connection” between the enforcement of the municipal policy or practice and the violation of the plaintiff’s federally protected right. A municipality may be held liable under § 1983 only when the enforcement of the municipal policy or practice was the “moving force” behind the violation of the plaintiff’s federally protected right.[22] The Supreme Court has also referred to this “causal connection” as a “direct causal link,” “closely related,” and “affirmatively linked.”[23] It is unclear whether these formulations are just alternative ways to describe proximate cause in the municipal liability context, or whether they impose a more rigorous causation requirement.[24]

Separation of Constitutional Violation and Municipal Liability Issues[edit | edit source]

In Collins v. City of Harker Heights,[25] the Supreme Court stressed that the issue of whether there is a basis for imposing municipal liability for the violation of the plaintiff’s federally protected rights is separate and distinct from the issue of whether there was a violation of the plaintiff’s federal rights. A “proper analysis requires [the separation of] two different issues when a § 1983 claim is asserted against a municipality: (1) whether plaintiff’s harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation.”[26]

Officially Promulgated Policy[edit | edit source]

Usually the easiest cases concerning § 1983 municipal liability arise out of claims contesting the enforcement of an officially promulgated municipal policy. There was such a policy in the Monell case.[27]

The challenged policy statement, ordinance, regulation, or decision must have been adopted or promulgated by the local entity. A local government’s mere enforcement of state law, as opposed to express incorporation or adoption of state law into local regulations or codes, has been found insufficient to establish Monell liability.[28] In Cooper v. Dillon,[29] the Eleventh Circuit held that the city could be held liable under § 1983 for its enforcement of an unconstitutional state statute because the city, by ordinance, had adopted the state law as its own. Furthermore, enforcement of the law was by the city police commissioner, an official with policy-making authority.[30] In another case, the Eleventh Circuit held that if the municipal policy was facially constitutional, the plaintiff must show that the city “was deliberately indifferent to the known or obvious consequences of its policies.”[31]

Municipal Policy Makers[edit | edit source]

Policy-Making Authority Versus Discretionary Authority[edit | edit source]

Supreme Court decisional law holds that municipal liability may be based on a single decision by a municipal official who has final policy-making authority.[32] Whether an official has final policy-making authority is an issue of law to be determined by the court by reference to state and local law.[33] The mere fact that a municipal official has discretionary authority is not a sufficient basis for imposing municipal liability.[34] It is not always easy to determine whether a municipal official has final policy-making authority as opposed to discretionary authority to enforce policy.[35]

In Pembaur v. City of Cincinnati,[36] a majority of the Supreme Court held that a single decision by an official with policy-making authority in a given area could constitute official policy, and be attributed to the government itself under certain circumstances.[37] The county prosecutor ordered local law enforcement officers to “go in and get” two witnesses who were believed to be inside the medical clinic of their employer, a doctor who had been indicted for fraud concerning government payments for medical care provided to welfare recipients. The officers had capiases for the arrest of the witnesses, but no search warrant for the premises of the clinic. Pursuant to the county prosecutor’s order, they broke down the door and searched the clinic.[38] In holding that the county could be held liable for the county prosecutor’s order that resulted in the violation of the plaintiff’s constitutional rights, the Court described the “appropriate circumstances” in which a single decision by municipal policy makers may give rise to municipal liability. It noted cases in which it had held that a single decision by a “properly constituted legislative body . . . constitute[d] an act of official government policy.”[39] Monell, for example, referred to officials “whose acts or edicts” could constitute official policy.[40] Thus, where a government’s authorized decision maker adopts a particular course of action, the government may be responsible for that policy “whether that action is to be taken only once or to be taken repeatedly.”[41]

The plurality opinion in Pembaur, written by Justice William J. Brennan, Jr., concluded that “[m]unicipal liability attaches only where the decision maker possesses final authority to establish municipal policy with respect to the action ordered.”[42] Whether an official possesses policy-making authority with respect to particular matters is determined by reference to state and local law. Policy-making authority may be bestowed by legislative enactment, or it may be delegated by an official possessing policy-making authority under state law.[43]

In City of St. Louis v. Praprotnik,[44] the Supreme Court again attempted “to determin[e] when isolated decisions by municipal officials or employees may expose the municipality itself to liability under [section] 1983.”[45] Justice Sandra Day O’Connor, writing for a plurality, reinforced the principle articulated in Pembaur that state law determines whether a municipal official has policy-making status.[46] Furthermore, identifying a policy-making official is a question of law for the court to decide by reference to state law, not one of fact to be submitted to a jury.[47] The plurality also underscored the importance of “finality” to the concept of policy making, and reiterated the distinction set out in Pembaur between authority to make final policy and authority to make discretionary decisions.[48] “When an official’s discretionary decisions are constrained by policies not of that official’s making, those policies, rather than the subordinate’s departures from them, are the act of the municipality.”[49] Finally, for a subordinate’s decision to be attributable to the government entity, “the authorized policymakers [must] approve [the] decision and the basis for it. . . . Simply going along with discretionary decisions made by one’s subordinates . . . is not a delegation to them of authority to make policy.”[50]

In Jett v. Dallas Independent School District,[51] the Supreme Court analyzed the respective functions of the judge and jury when municipal liability is sought to be premised upon the single decision of a municipal policy maker. The Court stated:

As with other questions of state law relevant to the application of federal law, the identification of those officials whose decisions represent the official policy of the local government unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury. Reviewing the relevant legal materials, including state and local positive law, as well as “‘custom or usage’ having the force of law” . . . , the trial judge must identify those officials of governmental bodies who speak with final policy-making authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue. Once those officials who have the power to make official policy on a particular issue have been identified, it is for the jury to determine whether their decisions have caused the deprivation of [plaintiff’s federally protected] rights.[52]

Although mentioned merely in passing without elaboration, the Court’s reference to “custom or usage having the force of law” raises an interesting question. In Praprotnik, Justice O’Connor’s plurality opinion and Justice Brennan’s concurring opinion recognized that municipal liability may be based on a municipal practice that is at variance with a formally adopted announced policy.[53] The existence of a custom or practice normally presents an issue of fact for the jury.[54] In Mandel v. Doe,[55] the Eleventh Circuit stated that, to determine whether an official has final policy-making authority, “[t]he court should examine not only the relevant positive law, including ordinances, rules and regulations, but also the relevant customs and practices having the force of law.”[56] There is thus a potential tension in Jett between the Court’s holding that the identification of final policy makers is a question of law for the court, and its statement that the court should review the “legal materials,” including a “‘custom or usage’ having the force of law.” Nevertheless, when the issue of whether an official is a final policy maker has been raised, the courts have usually given little attention to Jett’s reference to “custom and usage,” and have treated the final policy-making authority issue as a matter of state law for the court.

Because local ordinances, charters, regulations, and manuals may not be readily accessible, counsel should provide copies of the pertinent provisions to the court. In Wulf v. City of Wichita,[57] the issue was whether the city manager or the chief of police had policy-making authority over employment decisions. The Tenth Circuit observed that the record lacked “official copies of the City Charter or the relevant ordinances or procedure manuals for the City of Wichita.”[58] Nevertheless, the Tenth Circuit was able to resolve the policy-making issue because the record contained testimony of the city manager about his duties, and the court was provided pertinent quotations from city ordinances. From these sources, the court found that only the city manager had final policy-making authority. The court was apparently willing to accept these alternative sources only because the parties had briefed the appeal prior to the Supreme Court’s determination in Praprotnik that the federal court should look to state law to decide where policy-making authority resides.[59]

In this post-Praprotnik era, however, counsel should submit copies of the pertinent local law provisions to the court. As noted, federal courts are not likely to have easy access to these materials and should not have to expend considerable effort tracking them down.[60] Further, because the contents of these legal documents are in issue, the original document rule[61] would normally render it improper for a court to rely on alternative materials, such as the testimony and quotations considered in Wulf.

Judicial Notice. If the pertinent local legislative materials are made available to the federal court, the court may take judicial notice of their contents.[62] In Melton v. City of Oklahoma City,[63] the Tenth Circuit took judicial notice of the fact that the city charter lodged final policy-making authority over the city’s personnel matters in the city manager. Although “[t]here seem[ed] to be two conflicting lines of cases in [the Tenth Circuit] on the question of judicial notice of city ordinances,” the court concluded that the “better rule” allows for the taking of judicial notice.[64] As the Tenth Circuit recognized, the Federal Rules of Evidence authorize the taking of judicial notice of a fact not subject to reasonable dispute because it is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be determined.”[65]

State Versus Municipal Policy Maker[edit | edit source]

Federal courts frequently have to determine whether an official is a state or municipal policy maker. In McMillian v. Monroe County,[66] the Supreme Court held that, like the identification of municipal policy makers, this issue, too, is determined by reference to state law. The Court acknowledged that an official may be a state policy maker for one purpose and a municipal policy maker for another purpose.[67] For example, courts commonly hold that district attorneys are state policy makers when prosecuting criminal cases, but are municipal policy makers for purposes of carrying out administrative and supervisory functions, such as training of assistant district attorneys.[68]

In McMillian, a five-member majority of the Supreme Court held that a county sheriff in Alabama is not a final policy maker for the county in the area of law enforcement.[69] It stated that

the question is not whether Sheriff Tate acts for Alabama or Monroe County in some categorical, “all or nothing” manner. Our cases on the liability of local governments under § 1983 instruct us to ask whether governmental officials are final policy makers for the local government in a particular area, or on a particular issue. … Thus, we are not seeking to make a characterization of Alabama sheriffs that will hold true for every type of official action they engage in. We simply ask whether Sheriff Tate represents the State or the County when he acts in a law enforcement capacity.[70]

The Court emphasized that state law governs a court’s determination of whether an official has final policy-making authority for a local government entity or for the state. As the Court acknowledged,

[t]his is not to say that state law can answer the question for us by, for example, simply labeling as a state official an official who clearly makes county policy. But our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official’s functions under relevant state law.[71]

Relying heavily on the Alabama constitution and the Alabama supreme court’s interpretation of the state constitution that sheriffs are state officers, the U.S. Supreme Court found that Alabama sheriffs, when executing their law enforcement duties, represent the state of Alabama, not their counties. Even the presence of the following factors was not enough to persuade the majority of the Court otherwise: (1) the sheriff’s salary is paid out of the county treasury; (2) the county provides the sheriff with equipment, including cruisers; (3) the sheriff’s jurisdiction is limited to the borders of his county; and (4) the sheriff is elected locally by the voters in his county.[72] However, four dissenting justices, also relying on state law, came to the opposite conclusion, namely, that Alabama sheriffs are county policy makers.[73]

Custom or Practice[edit | edit source]

In Monell v. Department of Social Services,[74] the Supreme Court recognized that § 1983 municipal liability may be based on a municipal “custom or usage” having the force of law, even though it has “not received formal approval through the body’s official decision-making channels.”[75] The Supreme Court has acknowledged that “[a]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.”[76] The critical issue is whether there was a particular custom or practice that was “so well settled and widespread that the policy-making officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice.”[77] Although there are no “bright-line rules for establishing what constitutes a widespread custom or practice, it is clear that a single incident—or even three incidents—do not suffice.”[78]

In Sorlucco v. New York City Police Department,[79] the Second Circuit considered the sufficiency of the evidence showing that the New York City Police Department (NYPD) engaged in a pattern of disciplining probationary police officers that discriminated against female officers. The plaintiff, Ms. Sorlucco, was a probationary police officer of the NYPD. In 1983, John Mielko, a tenured NYPD officer, brutally and sexually assaulted her for six hours in her Nassau County, New York apartment. Mielko had located Ms. Sorlucco’s service revolver in her apartment, threatened her with it, and fired it into her bed.

Upon learning of the alleged attack, the NYPD made a perfunctory investigation that culminated in departmental charges being filed against Sorlucco for failing to safeguard her service revolver, and for failing to report that it had been fired. Nassau County officials subjected her to vulgar and abusive treatment and, in fact, filed criminal charges against her for having falsely stated that she did not know the man who raped her. Ultimately, the NYPD fired Ms. Sorlucco “for initially alleging and maintaining (for four days before she actually identified Mielko) that her attacker was simply named ‘John,’ while Mielko, the accused rapist, subsequently retired from the NYPD with his regular police pension.”[80]

Sorlucco brought suit under § 1983 and Title VII alleging that her termination was the product of unlawful gender discrimination. Her theory of liability on the § 1983 municipal liability claim was “that the NYPD engaged in a pattern of disciplining probationary officers, who had been arrested while on probation, in a discriminatory . . . manner based upon . . . gender.”[81] Although the jury rendered a verdict in favor of the plaintiff, the district court granted the NYPD’s motion for judgment n.o.v.,[82] setting aside the verdict on the § 1983 claim. The district court found (1) that there was no evidence linking the police commissioner to Sorlucco’s discriminatory termination; and (2) “that no reasonable jury could infer an unconstitutional pattern or practice of gender discrimination from the evidence of disparate disciplinary treatment between male and female probationary officers who had been arrested.”[83]

On the first point, the Second Circuit concluded that “[w]hile discrimination by the Commissioner might be sufficient, it was not necessary.”[84] Although the court did not elaborate, what it apparently meant was that although a final decision of a municipal policy maker provides a potential basis for imposing municipal liability, so does a widespread custom or practice, even if of subordinates.[85] On the second point, the court found, contrary to the district court’s evaluation of the evidence, that Ms. Sorlucco introduced “sufficient evidence from which the jury could reasonably infer an unconstitutional NYPD practice of sex discrimination.”[86]

The plaintiff’s evidence of a practice of sex discrimination can be broken down into three categories: (1) the way in which the NYPD investigated the plaintiff’s complaint, including, most significantly, the dramatically different ways it reacted to Mr. Mielko and Ms. Sorlucco;[87] (2) expert testimony from an experienced former NYPD lieutenant with Internal Affairs that the “department’s investigation of Mielko was dilatory and negligent”;[88] and (3) a statistical study prepared by the NYPD regarding actions taken against probationary officers who had been arrested between 1980 and 1985. During this period, forty-seven probationary officers were arrested, twelve of whom resigned. Of the remaining thirty-five, thirty-one were male: twenty-two of the male officers were terminated and nine were reinstated. All four of the female officers who had been arrested were terminated. The court of appeals disagreed with the district court’s conclusion that the study was “statistically insignificant” because only four female officers were fired. The four women represented over 10% of the thirty-five probationary officers who were disciplined. While 100% of the female officers were terminated, only 63% of the male officers were fired. Although the statistical evidence by itself would probably have been an insufficient basis on which to find a discriminatory NYPD policy, it was sufficient when considered together with the evidence of the discriminatory treatment of Ms. Sorlucco.[89] The way the investigation of her complaint was handled made the cold statistics come alive, at least to the extent that the jury could rationally reach the result it did.[90]

Sorlucco is important because of its careful analysis of the legal, factual, and evidentiary aspects of the “custom and practice” issue. Relatively few decisions have analyzed these issues with such care. The case also demonstrates how the plaintiff’s counsel creatively pieced together a case of circumstantial evidence substantiating the constitutionally offensive municipal practice.

In Pineda v. City of Houston,[91] the Fifth Circuit held, on summary judgment, that the plaintiff submitted insufficient evidence to create a triable issue that the Houston Southwest Gang Task Force was “engaged in a pattern of unconstitutional searches pursuant to a custom of the City.”[92] The plaintiffs produced reports of eleven warrantless entries into residences, but the court found that

[e]leven incidents each ultimately offering equivocal evidence of compliance with the Fourth Amendment cannot support a pattern of illegality in one of the Nation’s largest cities and police forces. The extrapolation fails both because the inference of illegality is truly uncompelling—giving presumptive weight as it does to the absence of a warrant—and because the sample of alleged unconstitutional events is just too small.[93]

The Fifth Circuit also found that the evidence was insufficient to impute constructive knowledge to the city’s policy makers. The opinions of plaintiffs’ experts that there was a pattern of unconstitutional conduct were also insufficient to create a triable issue of fact. “Such opinions as to whether or not policymakers had constructive knowledge do not create a fact issue, as the ‘experts’ were unable to muster more than vague attributions of knowledge to unidentified individuals in ‘management’ or the ‘chain of command.’”[94]

In Gillette v. Delmore,[95] the plaintiff, a firefighter, alleged that he had been suspended from his employment in retaliation for exercising his free speech rights. The Ninth Circuit held that the plaintiff failed to introduce sufficient proof of an alleged practice “that public safety employees wishing to criticize emergency operations should ‘be silent, cooperate, and complain later’ or risk disciplinary reprisals.”[96] The plaintiff failed to introduce evidence of a pattern of such disciplinary reprisals, or that the city manager or city council helped formulate or was even aware of such a policy. Further, the plaintiff presented no evidence as to how long the alleged practice had existed. Although the fire chief testified “that remaining silent during an emergency and complaining later was ‘a practice [among fire fighters] that we want to have followed,’” it was “too large a leap” to infer from the chief’s testimony that this reflected city policy.[97]

Inadequate Training[edit | edit source]

City of Canton v. Harris[edit | edit source]

In City of Canton v. Harris,[98] the Supreme Court, in an opinion by Justice White, held that deliberately indifferent training may give rise to § 1983 municipal liability. The Court rejected the city’s argument that municipal liability can be imposed only where the challenged policy itself is unconstitutional, and found that “there are limited circumstances in which an allegation of a ‘failure to train’ can be the basis for liability under § 1983.”[99] It held that § 1983 municipal liability may be based on inadequate training “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come in contact,” and that deliberate indifference was the moving force of the violation of the plaintiff’s federally protected right.[100] The plaintiff must demonstrate specific training deficiencies and either (1) a pattern of constitutional violations of which policy-making officials can be charged with knowledge, or (2) that training is obviously necessary to avoid constitutional violations, e.g., training on the constitutional limits on a police officer’s use of deadly force.[101]

Canton held that negligent or even grossly negligent training does not give rise to a § 1983 municipal liability claim. The Court ruled that the plaintiff must also demonstrate a sufficiently close causal connection between the deliberately indifferent training and the deprivation of the plaintiff’s federally protected right.[102]

The Supreme Court has stressed that Canton’s “objective obviousness” deliberate indifference standard for municipal liability inadequate training claims is different from Farmer v. Brennan’s[103] Eighth Amendment deliberate indifference standard, under which the official must be “subjectively” aware of the risk of “serious harm.”[104] The Farmer standard of deliberate indifference is used to determine whether there has been a constitutional (Eighth Amendment) violation. By contrast, the “objective obviousness” deliberate indifference standard in Canton is used “for the . . . purpose of identifying the threshold for holding a city responsible for the constitutional torts committed by its inadequately trained agents.”[105]

The Court in Canton ruled that a plaintiff must identify a particular deficiency in the training program and prove that the identified deficiency was the actual cause of the plaintiff’s constitutional injury.[106] The plaintiff will not prevail merely by showing that the particular officer who committed the constitutional violation was inadequately trained, or that there was negligent administration of an otherwise adequate program, or that the conduct resulting in the injury could have been avoided by more or better training.[107] The federal courts are not to become involved “in an endless exercise of second-guessing municipal employee-training programs.”[108]

The Ninth Circuit ruled that “[t]he deliberate-indifference inquiry should go to the jury if any rational factfinder could find [the] requisite mental state.”[109] In other words, where there are disputed issues of material fact, the jury must decide whether the municipality acted with deliberate indifference.[110] A model jury instruction for a municipal liability inadequate training or supervision claim is in the Appendix (see infra Model Instruction 6).

The Court acknowledged that the trier of fact may be confronted with difficult factual issues concerning alleged deliberately indifferent training deficiencies and causation. “Predicting how a hypothetically well-trained officer would have acted under the circumstances may not be an easy task for the fact-finder, particularly since matters of judgment may be involved and since officers who are well trained are not free from error and perhaps might react much like [an] untrained officer.”[111] Nevertheless, the Court expressed optimism that judges and juries would be able to resolve these issues.

In her concurring opinion, Justice O’Connor recognized that, where there is “a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face, . . . failure to inform city personnel of that duty will create an extremely high risk that constitutional violations will ensue.”[112] O’Connor also recognized that municipal liability on a “failure to train” theory might be established

where it can be shown that policy makers were aware of, and acquiesced in, a pattern of constitutional violations involving the exercise of police discretion. . . . Such a [pattern] could put the municipality on notice that its officers confront the particular situation on a regular basis, and that they often react in a manner contrary to constitutional requirements.[113]

Thus, both the majority and O’Connor’s concurrence in Canton identified two different ways in which the plaintiff may establish a deliberately indifferent failure-to-train.[114] First, deliberate indifference may be established by demonstrating a failure to train officials in a specific area where there is an obvious need for training in order to avoid violations of citizens’ constitutional rights.[115] Second, a municipality may be held responsible under § 1983 where a pattern of unconstitutional conduct is so pervasive as to imply actual or constructive knowledge of the conduct on the part of policy makers, whose deliberate indifference to the unconstitutional practice is evidenced by a failure to correct the situation once the need for training became obvious.[116]

Connick v. Thompson[edit | edit source]

In Connick v. Thompson[117] the Court held, 5–4, that a municipality’s district attorney’s office cannot be held liable under § 1983 based upon failure to adequately train assistant district attorneys (ADAs) about their due process Brady[118] obligations to turn over exculpatory material to the defense, unless the plaintiff demonstrates a pattern of Brady violations by the ADAs. Justice Thomas wrote the opinion for the Court.

In 1985, John Thompson was charged in New Orleans with a homicide. “Publicity following the murder charge led the victims of an unrelated armed robbery to identify Thompson as their attacker,” and Thompson was charged with attempted armed robbery.[119] A crime scene technician took a swatch of fabric stained with the robber’s blood from one of the robbery victim’s pants, and sent it to the crime laboratory. Two days before the robbery trial, ADA Whittaker received the crime lab report, finding that the perpetrator of the robbery had Type B blood. The ADA never had Thompson’s blood tested, did not know his blood type, and never disclosed the lab report to Thompson’s counsel. (After Thompson discovered the lab report in 1999, former ADA Riehlmann revealed that ADA Deegan, who tried the robbery case with ADA Williams, “intentionally suppressed blood evidence” that exculpated Thompson.)[120] Thompson was convicted of the armed robbery and, because of that conviction, chose not to testify on his own behalf in his trial a few weeks later for murder. In 1987, Thompson was convicted of murder and sentenced to death, and spent eighteen years in prison, including fourteen years on death row. One month before Thompson’s scheduled execution, his investigators discovered the undisclosed crime lab report. A state appeals court reversed Thompson’s armed robbery and murder convictions. The DA’s office retried Thompson for murder, and the jury found him not guilty.

Thompson filed a § 1983 complaint in federal district court for damages against the Orleans Parish District Attorney (and others) alleging, inter alia, that District Attorney Connick failed to train his prosecutors adequately about their Brady obligations. The jury awarded Thompson $14 million, and the Fifth Circuit en banc affirmed by an equally divided vote. The Supreme Court reversed, holding that a district attorney’s office may not be held liable under § 1983 for failure to train based on a single Brady violation.[121]

Connick reaffirmed that in “limited circumstances” deliberately indifferent training may constitute a municipal policy justifying the imposition of § 1983 liability, and that deliberate indifference is a “stringent fault standard, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.”[122] The court ruled that “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train,” because this theory of municipal liability comes perilously close to vicarious liability.[123] However, “[w]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers chose to retain that program.”[124]

The Court in Connick ruled that

A pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference for purposes of failure to train. . . . Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.[125]

The Court found that Thompson failed to establish a pattern of similar constitutional violations. Although Louisiana courts overturned four convictions on Brady grounds prior to Thompson’s armed robbery trial,

[t]hose four reversals could not have put [District Attorney] Connick on notice that the officer’s Brady training was inadequate with respect to the sort of Brady violation at issue here. None of those cases involved failure to disclose blood evidence, a crime lab report, or physical evidence of any kind. Because those incidents are not similar to the violation at issue here, they could not have put Connick on notice that specific training was necessary to avoid this constitutional violation.[126]

Unfortunately, the Court did not articulate how similar the constitutional violations must be to constitute a pattern.

Further, the fact that in Thompson’s robbery prosecution as many as four prosecutors “may have been responsible for the nondisclosure of the crime lab report and, according to [Thompson’s] allegations, withheld additional evidence in his armed robbery and murder trials,” did not take this case out of the “single incident” category.[127] “[C]ontemporaneous or subsequent conduct cannot establish a pattern of [constitutional] violations that would provide ‘notice to the [municipality] and the opportunity to conform to constitutional dictates . . . .’”[128]

More fundamentally, the Court held, as a matter of law, that an inadequate training Brady claim against a district attorney’s office requires a showing of a pattern of constitutional violations. The Court in Connick acknowledged that Canton left open the possibility that “in a narrow range of circumstances” a pattern of similar constitutional violations may not be necessary to show deliberate indifference and that a single incident may suffice,[129] and that Canton provided the example of the “obvious” need to train law enforcement officers in the constitutional limitations upon the use of deadly force.

The Court in Connick found that in “stark contrast” to police officers, assistant district attorneys are trained in the law, normally law school graduates, and thus able to find, understand, and apply legal rules; may be required to satisfy continuing legal education requirements; train on the job, often under the supervision of more experienced attorneys; and are bound by the rules of ethics to comply with Brady.[130] In these circumstances, in the absence of a pattern of constitutional violations, a district attorney is entitled to rely on the prosecutors’ professional training and ethical obligations.

The Court ruled that the fact that the prosecutors in fact may not have been trained about particular Brady issues is too nuanced to support an inference of deliberate indifference.[131] Further, the absence of formal training does not establish deliberate indifference, and “showing merely that additional training would have been helpful in making difficult decisions does not establish municipal liability.”[132]

Justice Ginsburg, dissenting, disagreed strongly with the majority’s absolute requirement that the § 1983 plaintiff demonstrate a pattern of Brady violations by assistant district attorneys.[133]

Canton and Connick[edit | edit source]

Canton and Connick impose stringent standards for fault (“deliberate indifference”) and causation (“moving force”) in § 1983 municipal liability cases based upon inadequate training. As noted earlier, the Court in Canton expressly stated that federal courts should not lightly second-guess municipal training policies. Although numerous municipal liability claims based on inadequate training have been alleged, only a relatively small percentage of these claims have succeeded.[134]

Inadequate Hiring[edit | edit source]

In limited circumstances, § 1983 municipal liability may be based on deficiencies in hiring. In Board of County Commissioners v. Brown,[135] the Supreme Court held that municipal liability can be premised upon a municipality’s deliberately indifferent hiring of a constitutional wrongdoer, but only if the plaintiff demonstrates that the hired officer “was highly likely to inflict the particular injury suffered by the plaintiff.”[136] The Court acknowledged that the fault and causation standards for inadequate hiring claims are even more stringent than for inadequate training claims.[137] To “prevent municipal liability for a hiring decision from collapsing into respondeat superior liability, a court must carefully test the link between the policy maker’s inadequate decision and the particular injury alleged.”[138]

In Brown, Sheriff B.J. Moore hired his son’s nephew, Stacy Burns, despite Burns extensive “rap sheet” that included numerous violations and arrests, but no felonies. Plaintiff Brown suffered a severe knee injury when Reserve Deputy Burns forcibly extracted her from the car driven by her husband, who had avoided a police checkpoint. She sued both Burns and the county under § 1983.[139]

In a 5–4 opinion by Justice O’Connor, the Court held that the violation of Brown’s constitutionally protected rights was not attributable to the county’s allegedly deficient process in hiring Burns. The Court distinguished Brown’s claim, involving a single lawful hiring decision that ultimately resulted in a constitutional violation, from a claim that “a particular municipal action itself violates federal law, or directs an employee to do so.”[140] It noted that its prior cases recognizing municipal liability based on a single act or decision by a government entity involved decisions of local legislative bodies or policy makers that ordered or otherwise directly brought about the constitutional deprivation.[141] The majority also rejected the Brown’s effort to analogize inadequate screening to a failure to train.[142]

The Court ruled that Brown was required to produce evidence from which a jury could find that, had Sheriff Moore adequately screened Deputy Burns’ background, Moore “should have concluded that Burns’ use of excessive force would be a plainly obvious consequence of the hiring decision.”[143] The Court found that Brown’s evidence of the sheriff’s scrutiny of Burns’ record did not enable the jury to make such a finding.[144]

Justice Souter, joined by Justices Breyer and Stevens, dissented, characterizing the majority opinion as an expression of “deep skepticism” that “converts a newly-demanding formulation of the standard of fault into a virtually categorical impossibility of showing it in a case like this.”[145] Justice Breyer, joined by Justices Ginsburg and Stevens, criticized the “highly complex body of interpretive law” that has developed to maintain and perpetuate the distinction adopted in Monell between direct and vicarious liability, and called for a reexamination of “the legal soundness of that basic distinction itself.”[146] Nevertheless, that distinction remains a fundamental aspect of § 1983 municipal liability law.

Pleading Municipal Liability Claims[edit | edit source]

In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,[147] the Supreme Court in 1993 held that federal courts may not impose a heightened pleading requirement for § 1983 municipal liability claims.[148] The Leatherman decision meant that the Federal Rules of Civil Procedure notice pleading standard governed § 1983 municipal liability claims.[149]

In Ashcroft v. Iqbal,[150] however, the Supreme Court subsequently held that the plausibility pleading standard established in Bell Atlantic Corp. v. Twombly,[151] applies to all federal court civil complaints, thus encompassing complaints filed under § 1983.[152] To comply with the Twombly-Iqbal standards, the complaint must allege facts and not mere legal conclusions, and these facts must constitute a “plausible,” not merely possible or speculative, claim for relief. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[153] Further, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”[154] Although the Court in Twombly stated that it was neither requiring “detailed factual allegations” nor a “heightened fact pleading of specifics, but only enough facts to state a claim to relief plausible on its face,”[155] Twombly and Iqbal appear to have imposed “plausibility” pleading standards that are more rigorous than Rule 8’s notice pleading standard.

The Court in Twombly and Iqbal did not purport to overrule Leatherman. However, in the author’s view, the greater likelihood is that the more recent, all encompassing Iqbal pleading precedent now governs the sufficiency of complaint allegations for § 1983 municipal liability claims.[156]

References[edit | edit source]

  1. 436 U.S. 658 (1978).
  2. State law cannot authorize respondeat superior under § 1983. Coon v. Town of Springfield, 404 F.3d 683, 687 (2d Cir. 2005) (“Just as states cannot extinguish municipal liability under § 1983 via state law, they cannot enlarge it either.”). Private-Party State Actors: The rule against respondeat superior extends to private-party state actors. See, e.g., Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012); Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012); Craig v. Floyd Cnty., 643 F.3d 1306, 1310 (11th Cir. 2011); Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408–09 (2d Cir. 1990); Mejia v. City of N.Y., 228 F. Supp. 2d 234, 243 (E.D.N.Y. 2002).
  3. A suit against a municipal official in her official capacity is considered a suit against the municipality itself. Brandon v. Holt, 469 U.S. 464, 471–72 (1985). Accord Kentucky v. Graham, 473 U.S. 159, 166 (1985). See supra Chapter 10.
  4. Monell, 436 U.S. at 694. The municipal “policy or practice” requisite is often very difficult to satisfy. See, e.g., Wimberly v. City of Clovis, 375 F. Supp. 2d 1120, 1127 (D.N.M. 2004). Waiver of Monell: The majority view in the circuits is that a municipality can waive Monell’s “policy and practice” requirements. Kinnison v. City of San Antonio, 480 Fed. App’x 271, 275–76 (5th Cir. 2012) (citing Ford v. Cnty. of Grand Traverse, 535 F.3d 483, 491–99 (6th Cir. 2008); Kelly v. City of Oakland, 198 F.3d 779, 785 (9th Cir. 1999); Morro v. City of Birmingham, 117 F.3d 508, 514–16 (11th Cir. 1997)). Kinnison cited a Seventh Circuit case reaching the opposite result, reasoning that Monell doesn’t create a defense but is an element of plaintiff’s claim. Smith v. Chi. Sch. Reform Bd. of Trustees, 165 F.3d 1142, 1149 (7th Cir. 1999). Kinnison also cited more recent Seventh Circuit decisions allowing municipalities to waive certain aspects of Monell. See, e.g., Evans v. City of Chi., 513 F.3d 735, 741 (7th Cir. 2008); Lopez v. City of Chi., 464 F.3d 711, 717 n.1 (7th Cir. 2006).
  5. 131 S. Ct. 447 (2010).
  6. Id. at 452.
  7. Id. (quoting Monell, 436 U.S. at 690).
  8. Humphries, 131 S. Ct. at 453. The plaintiffs in Humphries argued that Monell was based on the concern that municipalities not be required to pay large damage awards based on respondeat superior. The Court, however, found that Monell’s “rejection of respondeat superior liability primarily rested not on the municipality’s economic needs, but on the fact that liability in such a case does not arise out of the municipality’s own wrongful conduct.” Id. The plaintiffs also argued that Monell is “redundant” when prospective relief is sought because “a court cannot grant prospective relief against a municipality unless the municipality’s own conduct caused the violation.” Id. Even assuming that this is accurate, it provided no basis for lifting the Monell “policy or practice” requisite. “To argue that a requirement is necessarily satisfied . . . is not to argue that its satisfaction is unnecessary.” Id. Finally, the plaintiffs made “the mirror-image argument that applying Monell to prospective relief claims will leave some set of ongoing constitutional violations beyond redress.” Id. However, despite the fact that four circuits had applied Monell’s “policy or practice” requirement to claims for prospective relief, the plaintiffs failed to present “any actual or hypothetical example that provides serious cause for concern.” Id.
  9. 445 U.S. 622 (1980).
  10. Id. at 638.
  11. 507 U.S. 163 (1993).
  12. Id. at 166. See also Burge v. Parish of St. Tammany, 187 F.3d 452, 466–67 (5th Cir. 1999) (absolute prosecutorial immunity not available in official capacity suit); Goldberg v. Town of Rocky Hill, 973 F.2d 70, 72 (2d Cir. 1992) (municipality may not assert legislative immunity). Further, state law immunities may not be asserted by municipalities sued under § 1983. Howlett v. Rose, 496 U.S. 356, 375–76 (1990) (state court § 1983 action). See also Davis v. United States, 131 S. Ct. 2419, 2433 n.9 (2011) (dictum); Alden v. Maine, 527 U.S. 706, 740 (1994) (reaffirming Howlett).
  13. Monell, 436 U.S. at 690.
  14. 453 U.S. 247 (1981).
  15. See infra Chapter 21.
  16. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68 (1970)).
  17. Praprotnik, 485 U.S. at 123. See also Pembaur v. City of Cincinnati, 475 U.S. 469, 481–83 (1986).
  18. See City of Canton v. Harris, 489 U.S. 378, 380 (1989). See also Connick v. Thompson, 131 S. Ct. 1350 (2011) (rejecting inadequate training claim because plaintiff failed to demonstrate pattern of constitutional violations).
  19. See, e.g., Vann v. City of N.Y., 72 F.3d 1040, 1049–51 (2d Cir. 1995); Bordanaro v. McLeod, 871 F.2d 1151, 1158–63 (1st Cir.), cert. denied, 493 U.S. 820 (1989). See also 1A Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 7.18 (4th ed. 2014).
  20. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410–11 (1997).
  21. See, e.g., Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (“[T]he decision not to take any action to alleviate the problem of detecting missed arraignments constitutes a policy for purposes of § 1983 municipal liability.”).
  22. Bd. of Cnty. Comm’rs, 520 U.S. at 400; City of Canton, 489 U.S. at 388–89.
  23. See, e.g., City of Canton, 489 U.S. at 385 (there must be “a direct causal link between a municipal policy or custom and the alleged constitutional deprivation”).
  24. The Second Circuit equated these various concepts with proximate cause. See Cash v. Cnty. of Erie, 654 F.3d 324, 340 (2d Cir. 2011), cert. denied, 132 S. Ct. 1741 (2012) (citing cases).
  25. 503 U.S. 115 (1992).
  26. Id. at 120.
  27. See also City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 252 (1981) (vote of city council to cancel license for rock concert was official decision for Monell purposes); Owen v. City of Independence, 445 U.S. 622, 633 (1980) (personnel decision made by city council constitutes official city policy). Fact Concerts and Owen demonstrate that decisions officially adopted by the government body itself need not have general or recurring application to constitute official “policy.”
  28. See, e.g., Snyder v. King, 745 F.3d 242 (7th Cir. 2014); Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991). But see McKusick v. City of Melbourne, 96 F.3d 478, 484 (11th Cir. 1996) (holding that development and implementation of administrative enforcement procedure, going beyond terms of state court injunction, leading to arrest of all anti-abortion protesters found within buffer zone, including persons not named in injunction, amounted to cognizable policy choice); Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993) (rejecting defendants’ argument that they had no choice but to follow state “fleeing felon” policy, and holding their “decision to authorize use of deadly force to apprehend nondangerous fleeing burglary suspects was . . . a deliberate choice from among various alternatives”), cert. denied, 510 U.S. 1177 (1994). See also Vives v. City of N.Y., 524 F.3d 346 (2d Cir. 2008) (carefully analyzing the issue).
  29. 403 F.3d 1208 (11th Cir. 2005).
  30. Id. at 1222.
  31. Am. Fed’n of Labor v. City of Miami, 637 F.3d 1178, 1187–88 (11th Cir. 2011).
  32. City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). See also Atkinson v. City of Mt. View, 709 F.3d 1201, 1215 (8th Cir. 2013).
  33. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989); Praprotnik, 485 U.S. at 123.
  34. Pembaur, 475 U.S. at 481–82 (“The fact that a particular official—even a policymaking official—has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of the discretion.”). See Killinger v. Johnson, 389 F.3d 765, 771 (7th Cir. 2004) (“mere authority to implement pre-existing rules is not authority to set policy”).
  35. See, e.g., Williams v. Butler, 863 F.2d 1398, 1402 (8th Cir. 1988) (en banc) (“a very fine line exists between delegating final policymaking authority to an official . . . and entrusting discretionary authority to that official”). See also Mulholland v. Gov’t Cnty. of Berks, 706 F.3d 227, 244 (3d Cir. 2013) (agency’s litigation strategy not a policy or custom); Teesdale v. City of Chi., 690 F.3d 829, 836–37 (7th Cir. 2012) (city attorneys aren’t municipal policy makers, and their arguments don’t represent city policy); Vodak v. City of Chi., 639 F.3d 738, 748–49 (7th Cir. 2011) (Posner, J.) (when police superintendent is policy maker for control of demonstrations, it’s “helpful” to determine whether (1) official is constrained by policies of other officials or legislative bodies; (2) decision is subject to meaningful review; and (3) decision is within official’s delegated authority) (following Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 676 (7th Cir. 2009)).
  36. 475 U.S. 469 (1986).
  37. Justice White wrote separately to make clear his position (concurred in by Justice O’Connor) that a policy-making official’s decision could not result in municipal liability if the decision were contrary to controlling federal, state, or local law. Pembaur, 475 U.S. at 485–87 (White, J., concurring).
  38. Id. at 472, 473.
  39. Id. at 480 (citing Owen v. City of Independence, 445 U.S. 622 (1980) (“City Council passed resolution firing plaintiff without a pretermination hearing”), and City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (“City Council cancelled license permitting concert because of dispute over content of performance”)).
  40. Pembaur, 475 U.S. at 480 (citing Monell, 436 U.S. at 694).
  41. Id. at 481.
  42. Id. (Part II-B of Court’s opinion: Brennan, J., joined by White, Marshall & Blackmun, JJ.).
  43. Id. at 483. Whether a municipal entity delegated final policy-making authority to a particular official may present an issue of fact. Bouman v. Block, 940 F.2d 1211, 1231 (9th Cir.), cert. denied, 502 U.S. 1005 (1991). See also Kujawski v. Bd. of Comm’rs, 183 F.3d 734, 739 (7th Cir. 1999) (“[T]here remains a genuine issue of fact as to whether the Board had, as a matter of custom, delegated final policymaking authority to [the chief probation officer] with respect to [personnel decisions of] community corrections employees.”). But see Gros v. City of Grand Prairie, 181 F.3d 613, 617 (5th Cir. 1999) (“[T]he district court should have determined whether any such delegation had occurred as a matter of state law.”).
  44. 485 U.S. 112 (1988).
  45. Id. at 114. The Court in Praprotnik reversed a decision by the Eighth Circuit Court of Appeals, which had found the city liable for the transfer and layoff of a city architect in violation of his First Amendment rights. The Eighth Circuit attributed to the city adverse personnel decisions made by the plaintiff’s supervisors where such decisions were considered “final” because they were not subject to de novo review by higher-ranking officials. City of St. Louis v. Praprotnik, 798 F.2d 1168, 1173–75 (8th Cir. 1986).
  46. Praprotnik, 485 U.S. at 124.
  47. Id. In Praprotnik, the relevant law was found in the St. Louis City charter, which gave policy-making authority in matters of personnel to the mayor, alderman, and Civil Service Commission. Id. at 126. See also Jett v. Dallas Independent Sch. Dist., 491 U.S. 701, 737 (1989) (discussed in text below); Dotson v. Chester, 937 F.2d 920, 928 (4th Cir. 1991) (court examines state law and county code to find sheriff final policy maker as to operation of county jail).
  48. See Killinger v. Johnson, 389 F.3d 765, 771 (7th Cir. 2004) (“mere authority to implement pre-existing rules is not authority to set policy”); Quinn v. Monroe Cnty., 330 F.3d 1320, 1326 (11th Cir. 2003) (municipal “decisionmaker” is one “who had the power to make official decisions and thus may be held individually liable,” while municipal “policy maker” is one “who takes actions that may cause [the governmental entity] to be held liable for a custom or policy”). Accord Kamensky v. Dean, 148 F. App’x 878, 879–80 (11th Cir. 2005).
  49. Praprotnik, 485 U.S. at 127. See, e.g., Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 1992) (“Liability for unauthorized acts is personal; to hold the municipality liable … the agent’s action must implement rather than frustrate the government’s policy.”).
  50. Praprotnik, 485 U.S. at 128–30. See, e.g., Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992) (concluding mere inaction on part of policy maker “does not amount to ‘ratification’ under Pembaur and Praprotnik”). In Christie v. Iopa, 176 F.3d 1231 (9th Cir.), cert. denied, 528 U.S. 928 (1999), the court recognized that ratification is ordinarily a question for the jury, and that ratification requires showing approval by a policy maker, not a mere refusal to overrule a subordinate’s action.
  51. 491 U.S. 701 (1989).
  52. Id. at 737.
  53. Praprotnik, 485 U.S. at 130–31 (plurality opinion), 145 n.7 (Brennan, J., concurring).
  54. Worsham v. City of Pasadena, 881 F.2d 1336, 1344 (5th Cir. 1989) (Goldberg, J., concurring in part and dissenting in part).
  55. 888 F.2d 783 (11th Cir. 1989).
  56. Id. at 793. See also Gros v. City of Grand Prairie, 181 F.3d 613, 616 (5th Cir. 1999) (district court should have considered state and local law “as well as evidence of the City’s customs and usages in determining which City officials or bodies had final policy-making authority over the policies at issue in this case”).
  57. 883 F.2d 842 (10th Cir. 1989).
  58. Id. at 868.
  59. Id. at 868 n.34.
  60. See also Argyropoulos v. City of Alton, 539 F.3d 724, 740 (7th Cir. 2008) (plaintiff “needed to establish, by reference to applicable state or local law, that [Police Commissioner] Sullivan was the final policy maker with respect to police department employment decisions; she failed to provide evidence to this effect, and it is not the court’s task to do so on her behalf”) (citation omitted).
  61. Fed. R. Evid. art. X (“Original Document Rule”).
  62. Fed. R. Evid. 201(d).
  63. 879 F.2d 706 (10th Cir. 1989), cert. denied, 502 U.S. 906 (1991).
  64. Id. at 724 n.25.
  65. Fed. R. Evid. 201(b). See also discussion of judicial notice in Getty Petroleum Marketing v. Capital Terminal Co., 391 F.3d 312 (1st Cir. 2004).
  66. 520 U.S. 781 (1997).
  67. Id. at 786–87.
  68. See, e.g., D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014); Goldstein v. City of Long Beach, 715 F.3d 750 (9th Cir. 2013), cert. denied, 134 S. Ct. 906 (2014); Carter v. Philadelphia, 181 F.3d 339, 351 (3d Cir.), cert. denied, 528 U.S. 1005 (1999); Walker v. City of N.Y., 974 F.2d 293, 301 (2d Cir. 1992), cert. denied, 507 U.S. 961 (1993); Baez v. Hennessy, 853 F.2d 73, 76–77 (2d Cir. 1988), cert. denied, 488 U.S. 1014 (1989).
  69. McMillian, 520 U.S. at 785–86.
  70. Id. at 785.
  71. Id. at 786.
  72. Id. at 791–93.
  73. In dissent, Justice Ginsburg wrote:

    A sheriff locally elected, paid, and equipped, who autonomously sets and implements law enforcement policies operative within the geographic confines of a county, is ordinarily just what he seems to be: a county official.… The Court does not appear to question that an Alabama sheriff may still be a county policymaker for some purposes, such as hiring the county’s chief jailor.… And, as the Court acknowledges, under its approach sheriffs may be policymakers for certain purposes in some States and not in others.… The Court’s opinion does not call into question the numerous Court of Appeals decisions, some of them decades old, ranking sheriffs as county, not state, policy makers.

    Id. at 804–05 (Ginsburg, J., joined by Stevens, Souter & Breyer, JJ., dissenting).

  74. 436 U.S. 658 (1978).
  75. Id. at 691.
  76. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997). See also Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (referring to, inter alia, “practices so persistent and widespread as to practically have the force of law”) (citing authorities).
  77. Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989).
  78. Wilson v. Cook Cnty., 742 F.3d 775, 780 (7th Cir. 2014) (citations omitted).
  79. 971 F.2d 864 (2d Cir. 1992).
  80. Id. at 869.
  81. Id. at 871.
  82. Judgment n.o.v. is now referred to as “judgment as a matter of law.” Fed. R. Civ. P. 50.
  83. Sorlucco, 971 F.2d at 870.
  84. Id. at 871.
  85. Id. (“a § 1983 plaintiff may establish a municipality’s liability by demonstrating that the actions of subordinate officers are sufficiently widespread to constitute the constructive acquiescence of senior policymakers”) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988)).
  86. Id. at 870.
  87. Id. at 872–73.
  88. Id. at 872.
  89. See also Watson v. Kansas City, 857 F.2d 690, 695–96 (10th Cir. 1988).
  90. Sorlucco, 971 F.2d at 872.
  91. 291 F.3d 325 (5th Cir. 2002), cert. denied, 537 U.S. 1110 (2003).
  92. Id. at 329–31.
  93. Id.
  94. Id. at 331. See also Peterson v. City of Fort Worth, 588 F.3d 838, 851 (5th Cir. 2009), cert. denied, 131 S. Ct. 66 (2010) (§ 1983 excessive force case; holding showing of twenty-seven excessive force complaints in four-year period demonstrates city had practice of condoning police use of excessive force in making arrests; but plaintiff failed to show size of Fort Worth Police Department, overall number of arrests made by department during four-year period, or any comparison to other cities; given police department’s large size, twenty-seven incidents of excessive force did not reflect pattern representing official policy of condoning excessive force).
  95. 979 F.2d 1342 (9th Cir.), cert. denied, 510 U.S. 932 (1992).
  96. Gillette, 979 F.2d at 1348.
  97. Id. at 1349.
  98. 489 U.S. 378 (1989).
  99. Id. at 387.
  100. Id. at 388. Prior to Canton, the Court in City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985), held that a police officer’s use of excessive force, even if “unusually excessive,” did not warrant an inference that it was caused by deliberate indifference or grossly negligent training.
  101. The Court observed:

    [I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.

    Canton, 489 U.S. at 390 (footnotes omitted). See also Connick v. Thompson, 131 S. Ct. 1350, 1360–61 (2011).

  102. City of Canton, 489 U.S. at 391–92.
  103. 511 U.S. 825 (1994).
  104. Id. at 828–29. See supra Chapter 5, § VIII.
  105. Collins v. City of Harker Heights, 503 U.S. 115, 124 (1992).
  106. Canton, 489 U.S. at 390–91.
  107. Id.
  108. Id. at 392.
  109. Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011).
  110. Wereb v. Maui Cnty., 830 F. Supp. 2d 1026, 1034 (D. Haw. 2011).
  111. Canton, 489 U.S. at 391.
  112. Id. at 396 (O’Connor, J., concurring in part and dissenting in part). For example, all of the justices agreed that there is an obvious need to train police officers as to the constitutional limitations on the use of deadly force (see Tennessee v. Garner, 471 U.S. 1 (1985)), and that a failure to so train would be so certain to result in constitutional violations as to reflect the “deliberate indifference” to constitutional rights required for the imposition of municipal liability. Canton, 489 U.S. at 390 n.10.
  113. Id. at 397 (O’Connor, J., concurring in part and dissenting in part). See also Connick v. Thompson, 131 S. Ct. 1350, 1361 (2011).
  114. See also Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993) (setting out analysis that clearly illustrates the two different methods of establishing Canton deliberate indifference); Thelma D. v. Bd. of Educ., 934 F.2d 929, 934–45 (8th Cir. 1991) (same).
  115. See also Allen v. Muskogee, 119 F.3d 837, 843 (10th Cir. 1997) (finding need for different training obvious where “[c]ity trained its officers to leave cover and approach armed suicidal, emotionally disturbed persons and to try to disarm them, a practice contrary to proper police procedures and tactical principles”); Zuchel v. City & Cnty. of Denver, 997 F.2d 730, 741 (10th Cir. 1993) (finding evidence “clearly sufficient to permit the jury reasonably to infer that Denver’s failure to implement . . . recommended [periodic live ‘shoot– don’t shoot’ range training] constituted deliberate indifference to the constitutional rights of Denver citizens”); Davis v. Mason Cnty., 927 F.2d 1473, 1483 (9th Cir. 1991) (“Mason County’s failure to train its officers in the legal limits of the use of force constituted ‘deliberate indifference’ to the safety of its inhabitants”).
  116. See, e.g., Chew v. Gates, 27 F.3d 1432, 1445 (9th Cir. 1994) (where city requires police officers with police dogs that inflict injury in significant number of cases, failure to adopt policies governing use of dogs, and constitutional limits on use of dogs, constitutes deliberate indifference).
  117. 131 S. Ct. 1350 (2011).
  118. Brady v. Maryland, 373 U.S. 83 (1963).
  119. Connick, 131 S. Ct. at 1356.
  120. Id. at 1356 n.1.
  121. Id. at 1356.
  122. Connick, 131 S. Ct. at 1360 (quoting Bryan Cnty., 520 U.S. at 420).
  123. Id. at 1359–60.
  124. Id. at 1360.
  125. Id. (emphasis added) (quoting Bryan Cnty., 520 U.S. at 409).
  126. Id.
  127. Id. at 1360 n.7.
  128. Id. (quoting City of Canton, 489 U.S. at 395 (O’Connor, J., concurring in part, dissenting in part)).
  129. Id. at 1361.
  130. Id. at 1361–62.
  131. Id. at 1363.
  132. Id.
  133. Id. at 1382 (Ginsburg, J., dissenting).
  134. See 1A Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 7.17[B], [C] (4th ed. 2014).
  135. 520 U.S. 397 (1997).
  136. Id. at 412.
  137. Id. at 415–16.
  138. Id. at 410.
  139. Id. at 400–02.
  140. Id. at 405.
  141. Id. at 405–07 (distinguishing Pembaur v. City of Cincinnati, 475 U.S. 469, 484 (1986) (county prosecutor, acting as final decision maker for county, gave order that resulted in constitutional violation); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 252 (1981) (decision of city council to cancel license permitting concert directly violated constitutional rights); Owen v. City of Independence, 445 U.S. 622, 633 n.13 (1980) (city council discharged employee without due process)). In these types of cases, there are no real problems with respect to the issues of fault or causation. See also Bennett v. Pippin, 74 F.3d 578, 586 n.5 (5th Cir. 1996) (holding county liable for sheriff’s rape of murder suspect, where sheriff was final policy maker in matters of law enforcement).
  142. Brown, 520 U.S. at 409–11.
  143. Id. at 412.
  144. Id. at 410–13.
  145. Id. at 421 (Souter, J., dissenting).
  146. Id. at 430–31 (Breyer, J., dissenting). See also Vodak v. City of Chi., 639 F.3d 738, 747 (7th Cir. 2011) (Posner, J.) (citing scholars, and concluding that Supreme Court decisional law rejecting respondeat superior for § 1983 municipal liability is based on “historical misreadings (which are not uncommon when judges play historian)”).
  147. 507 U.S. 163 (1993).
  148. Id. For post-Leatherman decisions involving pleading against local government entities, see, e.g., Atchinson v. District of Columbia, 73 F.3d 418, 423 (D.C. Cir. 1996) (“A complaint describing a single instance of official misconduct and alleging a failure to train may put a municipality on notice of the nature and basis of a plaintiff’s claim.”); Jordan v. Jackson, 15 F.3d 333, 339 (4th Cir. 1994) (“We believe it is clear . . . that the Supreme Court’s rejection of the Fifth Circuit’s ‘heightened pleading standard’ in Leatherman constitutes a rejection of the specific requirement that a plaintiff plead multiple instances of similar constitutional violations to support an allegation of municipal policy or custom.”).
  149. However, even after Leatherman, some lower federal courts rejected wholly conclusory allegations of municipal policy or practice. See, e.g., Spiller v. Texas City, 130 F.3d 162, 167 (5th Cir. 1997). A federal district court found it unclear whether a “bold” or “naked” allegation of municipal policy or custom is sufficient to satisfy notice pleading. Luthy v. Proulx, 464 F. Supp. 2d 69, 75 (D. Mass. 2006).
  150. 556 U.S. 662 (2009).
  151. 550 U.S. 544 (2007).
  152. Although Twombly was an antitrust case, the Court in Iqbal found that it was based on an interpretation of Fed. R. Civ. P. 8 and not limited to antitrust cases. Iqbal is analyzed in detail supra Chapter 1.
  153. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
  154. Id.
  155. Twombly, 550 U.S. at 570.
  156. In addition, Twombly and Iqbal did not overrule Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002). See AE v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012).