Ratification as an Exception to the Section 1983 Causation Requirement: Plaintiff's Opportunity or Illusion?

• Publication year: 2021

89 Nebraska L. Rev.358. Ratification as an Exception to the Section 1983 Causation Requirement: Plaintiff's Opportunity or Illusion?

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George M. Weaver(fn*)

Ratification as an Exception to the § 1983 Causation Requirement: Plaintiff's Opportunity or Illusion?

TABLE OF CONTENTS

I. Background and History of § 1983 Liability............359

II. Non-Causation Elements..............................360
A.Deprivation of a Federally-Protected Right.........360
B.Action Under Color of State Law ..................362
C.Conduct by a § 1983 "Person"......................362
D.Damages ..........................................363

III.Proximate Causation Element .........................363
A.Standard Causation Theories......................364
1.Participation ..................................365
2.Liability of a Supervisor for Direct Authorization..................................366.
3.Liability for Failure to Intervene...............367
4.Formal Policy .................................367
5.Failure to Have Adequate Policy ...............372
6.Informal Policy (Custom and Practice) .........373
7.Authorization by Training and Supervision Practices (a Policy Subset).....................377
B.Ratification .......................................379
1.Elements of Ratification under Restatements of Agency ........................................383
2.The Causation Hurdle in § 1983 Ratification Liability .......................................387
3.Case Study: Police Internal Affairs Reports ....388
4.The Converse of Ratification ...................394

IV.Conclusion............................................395

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Ratification is recognized as a viable theory of liability under 42 U.S.C. §1983, but it involves several unusual issues. Ratification deserves attention because it is the only theory of § 1983 liability that appears to relax the strict requirement of proximate causation. The theory may, however, be a mirage-pleasing to plaintiffs at a distance but offering little hope upon closer inspection.

I. BACKGROUND AND HISTORY OF § 1983 LIABILITY

Originally enacted as part of the Ku Klux Klan Act of 1871,(fn1) today 42 U.S.C. §1983 is the workhorse of civil rights statutes. The text of § 1983 provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.(fn2)

The Supreme Court has explained that the purpose of § 1983-enacted in implementation of the Fourteenth Amendment-was to establish "the Federal Government as a guarantor of basic federal rights against state power."(fn3)

Until Monroe v. Pape,(fn4) the Act was dormant. In Monroe, the Supreme Court reversed the dismissal of a suit brought by a plaintiff whose home was ransacked by police officers. The plaintiff was arrested but released without being charged.(fn5) Breaking new ground, the Court held that action "under color of law," as required by § 1983, could be shown even though the officers had acted in violation of state law.(fn6) The Court also held that specific intent to deprive a person of a federal right is not required for § 1983 liability,(fn7) and that a plaintiff need not first exhaust state judicial remedies before bringing suit under § 1983.(fn8)

O ther decisions after Monroe have also broadened the utility of § 1983 for plaintiffs. Importantly, the Supreme Court has held that

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cities and counties are "persons" that may be sued for damages under § 1983 and that they have no immunity from such suits.(fn9) By contrast, absent effective waiver, states may not be sued for damages in federal court under § 1983.(fn10) Moreover, states are not considered persons for § 1983 purposes.(fn11)

II. NON-CAUSATION ELEMENTS

To recover on a § 1983 claim against any defendant (whether an entity, supervisor, or subordinate employee), the plaintiff must plead and prove a number of elements. Individual damages liability under § 1983 for personal misconduct is fairly straightforward, but the liability of corporate entities-usually governmental units(fn12)-and non-participating supervisors is subtle and complex. Liability against entities and supervisors has generally been imposed where the basic elements of § 1983 are met and either (1) the wrongdoing is directly authorized by the defendant supervisor or some policymaking agent of the defendant entity, or (2) the defendant supervisor or entity creates or enforces a policy that causes the wrongdoing.(fn13)

A. Deprivation of a Federally-Protected Right

Section 1983 creates no substantive rights, but rather provides a vehicle for an injured person to pursue money damages or other remedies for violations of federally-protected rights.(fn14) "The first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws' [of the United States]."(fn15)

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Although § 1983 contains no state-of-mind requirement,(fn16) negligence is not an adequate basis for any § 1983 claim.(fn17) Instead, the Court has suggested a "deliberate indifference" standard applies across the board to all constitutional violations alleged against a municipality.(fn18) In some § 1983 cases, the state-of-mind requirement may be even more onerous for the plaintiff.(fn19)

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B. Action Under Color of State Law

For conduct to be state action(fn20) it must be "made possible only because the wrongdoer is clothed with the authority of state law,"(fn21) and it must be "chargeable to the State."(fn22) The Court has held "the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful."(fn23) Accordingly, the Supreme Court uses several methods to determine whether conduct by private persons and entities qualifies as state action.(fn24)

C. Conduct by a § 1983 "Person"

A § 1983 person may be an individual, corporation, city, or county.(fn25) However, as noted above, a state is not a person for § 1983 purposes.(fn26)

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D. Damages

Like a tort claim, a § 1983 plaintiff must prove compensatory damages unless the plaintiff seeks only nominal damages, injunctive, or other non-pecuniary relief.(fn27) Compensatory damages may include general damages for emotional harm.(fn28) Damages are not, however, recoverable for the intrinsic value of a violated constitutional right.(fn29) Punitive damages may be recovered against individuals for egregious misconduct.(fn30) Punitive damages may not, however, be recovered against a municipality or governmental entity.(fn31)

III. PROXIMATE CAUSATION ELEMENT

According to the statute, the plaintiff must show that the defendant "subject[ed] or cause[d the plaintiff] to be subjected" to a deprivation of some federally protected right.(fn32) One aspect of this causation element is "causation-in-fact." The "but-for" test is often used to make this determination. In Mount Healthy City School District Board of Education v. Doyle,(fn33) a public employee speech case, the Supreme Court adopted a variation of this test by requiring that a plaintiff establish that protected conduct was a "'substantial factor'-or, in other words, that it was a 'motivating factor'"-in the deprivation of rights.(fn34) The Court further elaborated the test by allowing the defendant to overcome the plaintiff's evidence of causation through showing "by a preponderance of the evidence that it would have reached the same decision as to respondent's re-employment even in the absence of the protected conduct."(fn35)

Yet, it is not enough for a plaintiff to establish causation-in-fact or but-for causation. For example, the Supreme Court has held the statutory language of § 1983 does not allow liability against a municipality by respondeat superior or the mere fact that the municipality employed a tortfeasor, which is an example of causation-in-fact.(fn36) Proximate causation must also be shown.

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In Williams v. Bennett,(fn37) the Eleventh Circuit held that a plaintiff "must prove that each individual defendant proximately caused the unconstitutional conditions in the prison."(fn38) The court also pointed out that under 42 U.S.C. §1988 state law governs the definition of "proximate cause."(fn39)

Illustrating these principles, the Supreme Court found in Martinez v. California(fn40) that the California Parole Board could not be held liable under §1983 for the death of a 15-year-old girl who was killed by a parolee released by the Board five months earlier. The Court held that, even assuming the Board knew or should have known that the release created such a danger, "appellants' decedent's death is too remote a consequence of the parole officers' action to hold them responsible under the federal civil rights law."(fn41)

Finally, it should be noted that some courts...