Board of the County Commissioners v. Brown: Nepotism, Skepticism, and Causation Under 42 U.s.c. Sec. 1983 - Jeff Harris

• Citation: Vol. 49 No. 3
• Publication year: 1998

Board of the County Commissioners v. Brown: Nepotism, Skepticism, and Causation Under 42 U.S.C. Sec. 1983

In Board of the County Commissioners v. Brown,¹ the Supreme Court held that a municipality incurs liability under 42 U.S.C. Sec. 1983 ("Section 1983")² for failing to screen the background of a job applicant only when the "plainly obvious consequence of the [hiring] decision" is that the employee is likely to deprive citizens of specific federal rights.³

I. Factual Background

In May 1991 Jill Brown and her husband were driving from Texas to their home in Bryan County, Oklahoma. Just after crossing over into Oklahoma, the Browns encountered a police checkpoint. Mr. Brown, the driver, decided to avoid the checkpoint and return to Texas.⁴ Two Bryan County sheriff's deputies observed the Browns' car turn around and subsequently gave chase. After a short pursuit, the deputies stopped the car and ordered the Browns to exit at gunpoint. Apparently believing the Browns were not moving quickly enough, Reserve Deputy Stacey Burns began to pull Jill Brown from the car using an "arm bar" restraining technique. Mrs. Brown fell to the ground and severely injured her knees. She underwent corrective surgery for her injury and ultimately may need knee replacements.⁵

Mrs. Brown brought suit against Deputy Burns in federal court under Section 1983 alleging that his use of excessive force deprived her of her constitutional rights under the Fourth Amendment.⁶ She also sued Bryan County and its sheriff, B.J. Moore, for his decision to hire Burns as his deputy and for providing Burns with inadequate training.⁷ Bryan County stipulated that all hiring decisions made by the sheriff's department were made by Sheriff Moore and that he was empowered to make policy for the county regarding the sheriff's department.⁸

At trial it was revealed that Burns was the son of Sheriff Moore's nephew. Sheriff Moore testified that before he hired Burns, he received a copy of his criminal and driving records. Burns had previously pleaded guilty to assault and battery, public drunkenness, resisting arrest, and numerous driving offenses. Despite Burns's criminal record, Sheriff Moore decided to hire him as a deputy sheriff. The sheriff testified that he had not examined the criminal history very closely but was aware that his relative had been arrested before. The jury found Burns liable for using excessive force against Mrs. Brown. It also found Bryan County and its sheriff liable for the decision to hire Burns and for failing to provide him with adequate training in the use of force.⁹

The County appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit affirmed the jury verdict against Burns and upheld liability against the County for both inadequate training and the decision to hire Burns despite his criminal record.¹⁰ The United

States Supreme Court granted certiorari solely to determine whether a municipality can be held liable under Section 1983 for failing to screen the background of an employee who later commits a constitutional tort.¹¹ The Supreme Court reversed the Fifth Circuit decision and held that Section 1983 liability theoretically could be premised on a negligent hiring decision but that Burns's history did not provide sufficient warning that he was likely to use excessive force after he was hired.¹² Consequently, the County could not be held liable for Burns's use of excessive force against Mrs. Brown.¹³

II. Legal Background

In Monroe v. Pape,¹⁴ the Supreme Court held that a municipality was not a "person" for purposes of Section 1983 litigation and thus was not subject to liability under that statute.¹⁵ The Court noted Congress had specifically rejected an amendment to the statute that clearly included municipalities within its purview.¹⁶ The Court concluded that Congress must have doubted its constitutional power to "impose civil liability on municipalities" and therefore never intended Section 1983 to cover those entities.¹⁷

That interpretation of Section 1983 proved to be short lived. In Monell v. Department of Social Services,¹⁸ the Court overruled the portion of Monroe that foreclosed municipal liability.¹⁹ Monell concerned a Section 1983 claim against New York City by pregnant city employees who were forced to take maternity leave before it was medically necessary. The City argued that it could not be held liable under the holding in Monroe.²⁰ Reversing Monroe, the Court determined that Congress intended to include local governmental bodies within the ambit of Section 1983 but only for those actions directly traceable to a municipal decision.²¹ Justice Brennan, writing for the majority, concluded the issue was one of causation.²² The text of Section 1983, Brennan noted, speaks of one who "subjects, or causes to be subjected" a third party to a deprivation of federal rights.²³ If a municipality causes a constitutional violation, then it may properly be held liable. However, a municipality is not liable simply because it hires or employs a tortfeasor. Ultimately, Brennan concluded, the theory of respondeat superior could not be used to subject a municipality to liability for the constitutional torts of those under its charge; the causation nexus was too tenuous.²⁴ Liability must be predicated on more than a simple employer-employee relationship. It must be traceable to a decision attributable to the governmental body. The decision of the municipality or its duly authorized agent must be the "moving force" behind the deprivation of federal rights.²⁵ A policy or custom promulgated by an official policymaker served that end.²⁶ With that, the enigmatic "policy" requirement was born.

The issue of causation continued to dominate questions of municipal liability. The Court confronted a relatively easy causation question in Owen v. City of Independence.²⁷ In Owen the city council voted to release damaging reports about a city employee to the news media, and the next day the city manager fired the employee without a pretermina-tion hearing.²⁸ The Court concluded that those actions satisfied the Monell causation requirement because the constitutional deprivation was visited on the employee directly by the entity itself.²⁹ The city council's action clearly showed an official "policy" that caused the employee's constitutional deprivation.

In Pembaur v. City of Cincinnati,³⁰ a majority of the Court determined that a single decision properly attributable to a municipality could constitute a "policy" giving rise to municipal liability.³¹ The Court fractured, however, on when the decision was properly attributable to the entity.³² That question was easily answered when an officially pronounced rule was put forth by the entity, the situation in Monell. Similarly, facially unconstitutional actions taken by an entity's governing body were properly attributable to the entity itself, which was the case in Owen. However, in Pembaur the conflict was less clear. An assistant county prosecutor authorized the police to conduct an unconstitutional search of a local doctor's office.³³ Seeking to avoid the respondeat superior liability that the decision in Monell eschewed, the plurality grappled with whether this decision, made by a county employee, could be said to represent municipal policy.³⁴ Finding the answer in state law, the Court determined that a state statute specifically authorized a local prosecutor to establish policy in certain law enforcement areas.³⁵ Therefore, a majority of the Court concluded that the prosecutor's decision could indeed bind the county and allowed the action against the government to proceed.³⁶ Once that was determined, the Court was convinced that the case presented no difficult causation questions. The Court concluded that the prosecutor's decision to authorize the police to search "directly caused the violation of petitioner's Fourth Amendment rights." ³⁷

After Monell the most difficult causation issue the Court confronted emerged in City of Canton v. Harris.³⁸ Mrs. Harris was arrested by the Canton Police Department and taken to the local police station. When she arrived, she began to experience medical problems. Her speech was slurred, and she fell down several times in the presence of city police officers. The police determined that she did not need medical attention, and she was left lying on the floor of the station. After she was released from police custody, she was transported by ambulance to a hospital where she remained for a week. She brought suit against the City and its police department alleging that police officers were inadequately trained in determining whether detainees needed medical attention. A jury found the City liable for inadequate training.³⁹

The Supreme Court determined that a city could be held liable for inadequate training if its training policy, or omission thereof, constituted "deliberate indifference" to the federal rights of citizens with whom the police would likely interact.⁴⁰ The Court held that "deliberate indifference" was a "policy" of inaction.⁴¹ Accordingly, the policy hurdle was cleared if a municipality did nothing in the face of an obvious recurring need for more training.⁴² A "policy" of inadequately training officers could be viewed as the cause of a constitutional deprivation.⁴³ For the first time, a majority of the Court held that a "policy" need not be unconstitutional on its face.⁴⁴ The City of Canton's training program, if viewed in a vacuum, was certainly constitutional.⁴⁵ But as applied, it could be viewed as the moving force behind the deprivation of Mrs. Harris's federal rights.⁴⁶ The Court remanded the case to allow Mrs. Harris the chance to establish the "deliberate indifference" standard at trial.⁴⁷

After Harris the contours of municipal liability under Section 1983 were reasonably well established. A "policy or custom" clearly attributable to a municipality was required, and respondeat superior liability was forbidden.⁴⁸...