Friday, December 8, 2017
Avidan Cover has posted to SSRN Revisionist Municipal Liability. The abstract provides:
The current constitutional torts system under 42 U.S.C. § 1983 affords little relief to victims of government wrongdoing. Victims of police brutality seeking accountability and compensation from local police departments find their remedies severely limited because the municipal liability doctrine demands plaintiffs meet near-impossible standards of proof relating to policies and causation.
The article provides a revisionist historical account of the Supreme Court’s municipal liability doctrine’s origins. Most private litigants’ claims for damages against cities or police departments do not implicate the doctrine’s early federalism concerns over protracted federal judicial interference with local governance. Meanwhile the federal government imposes extensive reforms on local police departments through the Violent Crime Control and Law Enforcement Act, 42 U.S.C. § 14141. The resulting system of bifurcated municipal liability for police misconduct ignores history. It permits government-initiated systemic, injunctive relief claims to flow readily, but effectively bans individual victims’ discrete damages claims.
The article proposes making it easier to sue local governments for police brutality. Reducing the standard for damages relief does not offend federalism principles and realizes objectives critical to the constitutional remedial system: compensation, trust, vindication of rights, and appropriate assignment of responsibility. The article proposes a remedial scheme authorizing civil actions for police brutality victims against local governments for (1) a pattern or practice of local government police misconduct, and (2) isolated instances where a local police department lacks a policy, of which there is national consensus by other local departments that the policy is necessary to prevent a particular constitutional harm. The proposal also expands the potential for individual officer liability when the local police department has a specific policy in place aimed at preventing wrongdoing that the officer ignores.