A partial solution to qualified immunity by changing vicarious liability of municipalities in 1983 actions.

In Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978), the Court overruled Monroe v. Pape and its holding that municipalities did not constitute “persons” for the purpose of 42 USC Section 1983 claims.

But the limited holding allowing for direct municipal liability where there is a policy or custom that is the “moving force” behind the officer’s conduct also prohibited respondeat superior liability.

In so holding, the Court made it plain that in the generic case implicating an individual officer’s violation of Section 1983, no vicarious liability or respondeat superior claim could arise against an employer in the absence of an unconstitutional municipal policy or custom.

As a result, courts have arguably employed “qualified immunity” to protect individual officers from liability — leaving the issue of municipal financial responsibility to either existing state law or employment agreements requiring the defense or indemnification of municipal employees (police).

This leaves it to local governments and States to decide the bases upon which they may avoid ultimate liability or responsibility for police misconduct judgments — and thereby unpredictably shifts the burden of loss to individual officers (who may face bankruptcy) or onto plaintiffs who may never recover, at all.

Moreover, it exacerbates the moral hazard of police misconduct by shifting the risk from municipalities to the public without any oversight except the unpredictability of administrative or judicial review of the validity of municipal decisions to abdicate their contracts for indemnity.

In essence, municipalities are given the option of behaving like insurance companies who may unilaterally determine their scope of coverage after the loss.

This perverse risk allocation might be resolved in a way that could reduce the perceived need by individual officers for qualified immunity and re-allocate risk to municipalities where it belongs by simply legislating municipal vicarious liability along the same lines as now exists in most employment discrimination contexts.

An example is the liability imposed on employers who have actual notice of racial or sexual harassment as defined by the Supreme Court’s trilogy in Fargagher/Ellerth/Burlington Industries.

Congress can legislate that notwithstanding the decision in Monell, municipalities with actual notice of individual officer’s police misconduct (complaints lodged with civilian boards or internal affairs) may not escape respondeat superior liability for Section 1983 claims even in the absence of an unconstitutional policy or custom.

Arguably, this approach would lead to a different result as to hiring and retention and the management of risk by affected municipalities and likewise rearrange the risk of loss as to parties involved in claims of police misconduct or violence.

Albert Turner Goins

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