Municipal Government Liability Under Section 1983
| Jurisdiction | United States,Federal |
| Citation | Vol. 67 No. 12 Pg. 22 |
| Pages | 22 |
| Publication year | 1998 |
67 J. Kan. Bar Assn. December, 22 (1998). MUNICIPAL GOVERNMENT LIABILITY UNDER SECTION 1983
December, 1998
Copyright (c) 1998 by the Kansas Bar Association; Mike Jilka
I. Introduction
Municipal governments impact our lives in countless ways. They levy taxes, supply police and fire protection, provide water and sanitation service, repair the potholes on our streets, pass zoning ordinances, and operate schools, health departments and jails. The wide scope of municipal governments' activities invariably raises significant constitutional issues.
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In the past two decades, lawsuits under 42 U.S.C. § 1983 [FN1] have emerged as the primary vehicle for ensuring municipal governments obey the Constitution. Section 1983 provides a cause of action against persons who act under color of state law and violate federal constitutional or statutory rights. [FN2] In the wake of the U.S. Supreme Court's decision in Monell v. Department of Social Services of City of New York, [FN3] a complex and evolving body of law has developed concerning the liability of municipal governments under § 1983. The purpose of this article is to give the practitioner a working knowledge of how to prosecute and defend suits against municipal governments under § 1983.
II. Origins of governmental liability under § 1983
The explosion in lawsuits against governmental bodies under § 1983 can be directly traced to the U.S. Supreme Court's decision in Monell v. Department of Social Services of the City of New York. In Monell, the U.S. Supreme Court reversed its prior holdings [FN4] and held that municipalities were "persons" within the meaning of § 1983. The Court explained its reasoning in the following passage:
Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. [FN5] Although the Supreme Court found that municipalities were subject to suit, it also provided an important limitation. Municipalities could not be held liable under the doctrine of respondeat superior. [FN6] Liability attaches only "when execution of a government's policy or custom, whether made by its lawmakers or 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." [FN7] This conclusion rested on the statutory language of § 1983, which imposes liability only on a person who "subjects, or causes to be subjected," any individual to a deprivation of federal rights. The Court gleaned from its review of the statute's legislative history that while Congress never doubted its power to impose liability on municipalities for their own acts, it did question its power to impose liability on municipalities for the acts of others. [FN8]
Beyond these two broad conceptual pronouncements, the Supreme Court consciously declined to flesh out in detail the various methods through which municipalities could be held liable under § 1983. Perhaps for prudential reasons, the Court left these issues to be delineated through the development of the case law. [FN9] In a series of cases over the ensuing two decades, the Court has answered many of the questions left open in Monell. The case law has now identified four situations in which a municipality can be said to have violated the constitutional rights of an individual because of its policy or custom. First, a municipality can maintain an express policy that, when enforced, causes a constitutional deprivation. [FN10] Second, there may exist "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."' [FN11] Third, there may be an allegation that a constitutional injury was caused by a person with "final policymaking authority." [FN12] Fourth, a municipality may be liable for its failure to train when that failure amounts to deliberate indifference to the constitutional rights of persons with whom the municipality comes into contact. [FN13] These four categories will be considered in more detail hereafter.
III. Preliminary principles
At the outset, certain terms and concepts pertaining to § 1983 suits must be carefully distinguished. First, § 1983
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imposes liability against a "person who inflicts injury under color of state law." While Monell establishes that municipalities are "persons" within the meaning of the statute, subsequent cases establish that a State is not a "person" under § 1983 when the suit seeks monetary damages. [FN14] [FN15] The Supreme Court reasoned that Congress was presumptively aware of the States' Eleventh Amendment immunity when it enacted § 1983 in 1871, and could not have intended to authorize suits against a State in state court [FN16] with knowledge that such suits were barred in federal court. [FN17]
Second, a common pleading device in § 1983 litigation is to name defendants in either their individual or official capacities. This distinction has important ramifications. When a plaintiff names an official in his individual capacity, the plaintiff is seeking "to impose personal liability upon a government official for actions he takes under color of state law." [FN18] When a plaintiff names an official in his official capacity, on the other hand, he is pleading an action against the entity that employs the official. [FN19] Official capacity suits seek to recover compensatory damages from the governmental body itself, [FN20] and require a plaintiff to prove a municipal policy or custom caused the constitutional violation. [FN21]
Two important consequences flow from the distinction between individual capacity suits and official capacity suits. First, only defendants sued in their individual capacities can invoke immunity. [FN22] Municipal bodies, by contrast, do not have immunity. [FN23] Second, punitive damages are available only against individual defendants [FN24] and not against governmental entities. [FN25]
In the event that a complaint fails to specify the capacity in which the government official is sued, district courts in the U.S. Tenth Circuit will look to the substance of the pleadings and course of of the proceedings to determine if the suit is for individual or official liability. [FN26] The majority of circuits adhere to this view. [FN27] To avoid confusion, however, if the intended defendant is the governmental body itself, a plaintiff should name as the defendant the governmental body, rather than the individual officer in his official capacity. [FN28]
IV. Methods of establishing Monell liability
A. Policies formally adopted by governmental bodies
The clearest example of governmental liability under § 1983 is a situation in which a municipality's governing body or a department or agency thereof formally adopts and promulgates a policy statement, ordinance, regulation or decision that deprives individuals of their constitutional rights. For example, in Monell, the New York City Department of Social Services and the Board of Education officially adopted a policy requiring pregnant employees to take unpaid maternity leaves before medically necessary. The individual defendants were sued solely in their official capacities, and the plaintiffs sought declaratory and injunctive relief, as well as back pay for the periods of the allegedly unlawful forced leave. There can be no doubt in such a situation that the official policy was the "moving force" behind the constitutional violation.
A problem arises when the alleged constitutional deprivation is not apparent in the text of the ordinance or policy, but exists by virtue of a constitutionally impermissible motive on the part of legislators. For example, a plaintiff may contend that the city eliminated her position in retaliation for her exercise of her First Amendment rights. Since municipalities are artificial persons, the only way to ferret out the constitutionally proscribed motivation would be to uncover the motivation of the individual members of the municipality's governing body. The dilemma in such a case is to ascertain how many municipal legislators must be spurred by constitutionally impermissible motives before municipal liability can attach under § 1983.
In Scott-Harris v. City of Fall River, [FN29] the court addressed this issue. The court surveyed the approaches other courts have taken on this issue. Some courts hold that a plaintiff must show a majority of the members of the legislative body acted from a constitutionally impermissible motive. [FN30] Other courts have not required evidence of the motives of a majority of the legislative body, but suggested that a plaintiff would have to show a "significant percentage" of the legislators were improperly motivated. [FN31] The court declined to adopt a bright-line rule, but suggested that a...
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