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11_constitutional_violations_ii.docx11 Constitutional Violations II: Other Remedies against Official Misconduct
OUTLINE
CRIMINAL ACTIONS
CIVIL ACTIONS
Lawsuits against U.S. Officers and the U.S. Government
Lawsuits against U.S. officers
Lawsuits against the U.S. government
Suing State Officers
State tort actions
U.S. Civil Rights Act (§ 1983) actions
Suing Local Governments
Local government tort actions
Local government U.S. Civil Rights Act (§ 1983) actions
LAW ENFORCEMENT DUTY TO PROTECT
The “Special-Relationship Exception” to the “No-Duty-to-Protect” Rule
The “State-Created-Danger” Exception to the “No-Duty-to-Protect” Rule
“State-Created Danger” after DeShaney (1989)
“State-Created Danger” and Domestic Violence
SUING JUDGES AND PROSECUTORS
ADMINISTRATIVE REMEDIES
Internal Review
External Review
The types of external review
The effectiveness of civilian review
CHAPTER SUMMARY
REVIEW QUESTIONS
KEY TERMS
LEARNING OBJECTIVES
1 Understand that most police misconduct can also be a crime. Know that police are rarely charged or convicted for criminal misconduct.
2 Know that civil actions against (a) the federal government and its officers; (b) local, county, and state officers, law enforcement agencies, and government units; and (c) other government employees are controlled by different statutes, court decisions, and government units.
3 Understand constitutional tort actions (Bivens actions) against officers and Federal Tort Claims Act actions against public institutions.
4 Know the role of Civil Rights Act actions in holding law enforcement officials responsible for violating the constitutional rights of individuals. Understand the limitations of lawsuits brought against states and their officers.
5 Know that plaintiffs can sue local governments instead of, or in addition to, suing local officers. Understand the complexities and limitations of suing local governments.
6 Understand that the Constitution places no duty on officers to protect individuals from each other, and that it doesn't create a right of private parties to sue officers for failing to prevent crime.
7 Know of the “special relationship” between the government and persons in custody and the impact that special relationship has on lawsuits brought by prisoners against law enforcement officers.
8 Understand that states can be civilly liable if the government played some part in creating a danger that a victim faced. Know that few cases survive the rigorous screening process of the state-created-danger exception.
9 Know that judges enjoy absolute immunity, and prosecutors have functional immunity.
10 Understand the role of administrative action in remedying misconduct.
CASES COVERED
Anderson v. Creighton 483 U.S. 635 (1987)
Dwares v. City of New York 985 F.2d (C.A. 2, 1993)
Town of Castle Rock v. Gonzalez 545 U.S. 748 (2005)
Pinder v. Johnson 54 F.3d 1169 (CA4 1995)
At about 5 or 5:30 p.m. on Tuesday, June 22, 1999, Jessica Gonzalez's former husband took their three minor daughters, Rebecca, Katheryn, and Leslie, while they were playing outside the family's Colorado home. He made no advance arrangements to see them that evening. When Jessica noticed the children were missing, she suspected her husband had taken them. At about 7:30 p.m., she called the Castle Rock Police Department, which dispatched two officers. When the officers arrived, she showed them a copy of the temporary restraining order (TRO) and requested that they enforce it and the three children be returned to her immediately. The officers stated that there was nothing they could do about the TRO and suggested that Gonzalez call the police department again if the three children did not return home by 10:00 p.m.
At approximately 8:30 p.m., Gonzalez talked to her husband on his cellular telephone. He told her “he had the three children at an amusement park in Denver.” She called the police again and asked them to “have someone check for” her husband or his vehicle at the amusement park and “put out an all-points bulletin” for her husband, but the officer with whom she spoke “refused to do so,” again telling her to “wait until 10:00 p.m. and see if” her husband returned the girls.
At approximately 10:10 p.m., Gonzalez called the police and said her children were still missing, but she was now told to wait until midnight. She called at midnight and told the dispatcher her children were still missing. She went to her husband's apartment and, finding nobody there, called the police at 12:10 a.m.; she was told to wait for an officer to arrive. When none came, she went to the police station at 12:50 a.m. and submitted an incident report. The officer who took the report “made no reasonable effort to enforce the TRO or locate the three children. Instead, he went to dinner.”
At approximately 3:20 a.m., Gonzalez's husband arrived at the police station and opened fire with a semiautomatic handgun he had purchased earlier that evening. Police shot back killing him. Inside the cab of his pickup truck they found the bodies of all three daughters, whom he had already murdered.
—Town of Castle Rock v. Gonzalez (2005)
You learned in Chapter 10 about the extent, limits, and strengths and weaknesses of the most prevalent current remedy for official violations of individuals' constitutional rights. Most of the time (Fourth Amendment cases), this remedy works by throwing out reliable physical evidence that would convict—or at least help to convict—guilty defendants. In other words, it affects defendants' cases. In this chapter, we'll examine three remedies that affect criminal justice officers, their agencies, and the political institutions—municipal, county, state, and federal governments—responsible for them:
1. Criminal law: prosecuting individual officers in criminal courts
2. Civil law: suing the officer, the police department, or the government in civil courts
3. Internal and external departmental review: disciplining the officer outside the judicial system
CRIMINAL ACTIONS
LO 1
Most officers' misconduct might also be a crime. So a police officer who illegally shoots and kills a person might have committed criminal homicide. Officers who use excessive nondeadly force can be guilty of assault. Illegal arrests can be false imprisonment. Illegal searches can be trespass, illegal breaking and entering, or burglary. But, how likely is it that prosecutors will charge police officers with crimes? How many juries will convict them? How many judges will sentence them to prison or heavy fines? Very few. Why? Judges and juries don't see police misconduct as a crime. And with good reason. In our criminal justice system, the government has to prove criminal intent beyond a reasonable doubt. If police officers honestly believe they were enforcing the law, and not committing a crime (in most cases, this is either true or difficult to disprove beyond a reasonable doubt), then they're not criminally guilty. And this is the way it should be. The standard of proof has to be the same for officers as for everybody else.
There's a second reason. Even if officers are guilty of criminal misconduct, prosecutors hesitate to prosecute, and juries are unwilling to convict, police officers who are “only trying to do their job.” This is true especially when the “victims” are “real” criminals (or at least people who associate with criminals).
CIVIL ACTIONS
LO 2
Civil actions include suing individual officers and/or their departments for unconstitutional conduct. Any victim of official violations of individuals' constitutional rights can bring a tort action (tort is the French word for “wrong”) against individual officers who break the law. Most of these individuals want compensation (the law calls it damages) for the injuries they suffered. These damages might be compensatory (e.g., to compensate them for medical costs, lost wages, and “pain and suffering); or punitive (to punish defendants for egregious wrongs against them, usually caused by police misconduct). How do they get damages? The only way is by becoming plaintiffs in a civil action (non-criminal action brought to enforce, redress, or protect a private or civil right).
Who can plaintiffs sue for money damages? Any—or all—of the following:
• Individual law enforcement officers
• Officers' superiors (such as police chiefs and sheriffs)
• Law enforcement agencies
• Government units in charge of officers and departments (towns, cities, counties, states, and the U.S. government)
In which courts can they bring actions against officers and governments? In state and federal courts. We'll look separately at civil actions for damages against (1) federal officers; (2) the U.S. government; (3) local, county, and state officers; (4) local, county, and state law enforcement agencies; (5) local, county, and state government units; and (6) other government employees, because they're controlled by different statutes, court decisions, and government units. We'll also examine what happens when law enforcement officers fail to protect individuals and some of the hurdles to suing the government.
Lawsuits against U.S. Officers and the U.S. Government
LO 3
Lawsuits against individual federal law enforcement officers are called constitutional tort (Bivens) actions. Lawsuits against the federal government for its officers' constitutional torts are called Federal Tort Claims Act (FTCA) actions. Let's look at each.
Lawsuits against U.S. officers
LO 3
Until 1971, individuals were banned from suing federal officers for violations of their constitutional rights. All that changed after the U.S. Supreme Court decided Bivens v. Six Unnamed FBI Agents (1971). In that case, six FBI agents entered Webster Bivens's apartment without a search or arrest warrant. After they searched his apartment “from stem to stern,” the agents arrested Bivens for violating federal drug laws and handcuffed him in the presence of his wife and children.
The agents took Bivens first to the Brooklyn Federal Courthouse and then to the Federal Bureau of Narcotics, “where he was interrogated, fingerprinted, photographed, subjected to search of his person, and booked.” Bivens claimed these events caused him “great humiliation, embarrassment, and mental suffering” and would “continue to do so.” He sought damages of $15,000 from each of the six officers (390).
In Bivens, the Court created a constitutional tort, a private right to sue federal officers for violations of plaintiffs' constitutional rights. In these “Bivens actions,” plaintiffs have to prove two elements:
1. Officers were acting “under color of authority” or the appearance of power ( Garner 1987, 123–24).
2. Officers' actions deprived the plaintiff of a constitutional right.
Even if plaintiffs prove these two elements, they don't automatically win their case. Law enforcement officers have a defense called qualified immunity. According to this complex defense, individual officers can't be held personally liable for official action if their action meets the test of “objective legal reasonableness.” Reasonableness is measured by legal rules that were “clearly established” at the time the officers acted. The reason for creating the test was to protect officers' broad discretion to do their job and keep them (and the courts) from being bombarded with frivolous lawsuits (Anderson v. Creighton 1987).
The U.S. Supreme Court created and explained why it created the qualified immunity defense against constitutional torts in our next case excerpt, Anderson v. Creighton (1987).
In Anderson v. Creighton (1987) , the U.S. Supreme Court created the qualified immunity defense and held that it applied to an FBI officer who invaded the Creighton home, because his mistaken entry was “objectively reasonable.”
CASE: Were the FBI Agent's Actions “Objectively Reasonable”?
Anderson v. Creighton
483 U.S. 635 (1987)
HISTORY
Robert E. Creighton Jr., his wife, and others sued FBI Agent Russell Anderson in the U.S. District Court for the District of Minnesota. The U.S. District Court granted summary judgment [a motion that the court enter a judgment without a trial because there's not enough evidence to support the plaintiff's claim] in favor of the agent. The Court of Appeals for the Eighth Circuit reversed and remanded. The U.S. Supreme Court granted certiorari, vacated the Circuit Court's judgment, and remanded the case.
—SCALIA, J., joined by REHNQUIST, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR JJ.
FACTS
Russell Anderson is an agent of the Federal Bureau of Investigation. On November 11 , 1983, Anderson and other state and federal law enforcement officers conducted a warrantless search of the Creighton family's home. The search was conducted because Anderson believed that Vadaain Dixon, a man suspected of a bank robbery committed earlier that day, might be found there. He was not.
On the night of November 11, 1983, Sarisse and Robert Creighton and their three young daughters were spending a quiet evening at their home when a spotlight suddenly flashed through their front window. Mr. Creighton opened the door and was confronted by several uniformed and plainclothes officers, many of them brandishing shotguns. All of the officers were White the Creightons are Black Mr. Creighton claims that none of the officers responded when he asked what they wanted.
Instead, by his account (as verified by a St. Paul police report), one of the officers told him to “keep his hands in sight” while the other officers rushed through the door. When Mr. Creighton asked if they had a search warrant, one of the officers told him, “We don't have a search warrant and don't need one; you watch too much TV.” Mr. Creighton asked the officers to put their guns away because his children were frightened, but the officers refused.
Mrs. Creighton awoke to the shrieking of her children, and was confronted by an officer who pointed a shotgun at her. She allegedly observed the officers yelling at her three daughters to “sit their damn asses down and stop screaming.” She asked the officer, “What the hell is going on?” The officer allegedly did not explain the situation and simply said to her, “Why don't you make your damn kids sit on the couch and make them shut up.”
One of the officers asked Mr. Creighton if he had a red and silver car. As Mr. Creighton led the officers downstairs to his garage, where his maroon Oldsmobile was parked, one of the officers punched him in the face, knocking him to the ground, and causing him to bleed from the mouth and the forehead. Mr. Creighton alleges that he was attempting to move past the officer to open the garage door when the officer panicked and hit him. The officer claims that Mr. Creighton attempted to grab his shotgun, even though Mr. Creighton was not a suspect in any crime and had no contraband in his home or on his person. Shaunda, the Creighton's ten-year-old daughter, witnessed the assault and screamed for her mother to come help. She claims that one of the officers then hit her.
Mrs. Creighton phoned her mother, but an officer allegedly kicked and grabbed the phone and told her to “hang up that damn phone.” She told her children to run to their neighbor's house for safety. The children ran out and a plainclothes officer chased them. The Creightons' neighbor allegedly told Mrs. Creighton that the officer ran into her house and grabbed Shaunda by the shoulders and shook her. The neighbor allegedly told the officer, “Can't you see she's in shock; leave her alone and get out of my house.” Mrs. Creighton's mother later brought Shaunda to the emergency room at Children's Hospital for an arm injury caused by the officer's rough handling.
During the melee, family members and friends began arriving at the Creightons' home. Mrs. Creighton claims that she was embarrassed in front of her family and friends by the invasion of their home and their rough treatment as if they were suspects in a major crime. At this time, she again asked Anderson for a search warrant. He allegedly replied, “I don't need a damn search warrant when I'm looking for a fugitive.” The officers did not discover the allegedly unspecified “fugitive” at the Creightons' home or any evidence whatsoever that he had been there or that the Creightons were involved in any type of criminal activity.
Nonetheless, the officers then arrested and handcuffed Mr. Creighton for obstruction of justice and brought him to the police station where he was jailed overnight, then released without being charged.
OPINION
When government officials abuse their offices, actions for damages may offer the only realistic avenue for vindication of constitutional guarantees. On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Our cases have accommodated these conflicting concerns by generally providing government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.
Somewhat more concretely, whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action, assessed in light of the legal rules that were “clearly established” at the time it was taken. The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
We vacate the judgment of the Court of Appeals and REMAND the case for further proceedings consistent with this opinion.
DISSENT
STEVENS, J., joined by BRENNAN and MARSHALL, JJ.
The Court announces a new rule of law that protects federal agents who make forcible nighttime entries into the homes of innocent citizens without probable cause, without a warrant, and without any valid emergency justification for their warrantless search. The Court of Appeals understood the principle of qualified immunity to shield government officials performing discretionary functions from exposure to damages liability unless their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known.
Anderson has not argued that any relevant rule of law—whether the probable-cause requirement or the exigent circumstances exception to the warrant requirement—was not “clearly established” in November 1983. Rather, he argues that a competent officer might have concluded that the particular set of facts he faced did constitute “probable cause” and “exigent circumstances,” and that his own reasonable belief that the conduct engaged in was within the law suffices to establish immunity. Of course, the probable-cause requirement for an officer who faces the situation Anderson did was clearly established.
Although the question does not appear to have been argued in, or decided by, the Court of Appeals, this Court has decided to apply a double standard of reasonableness in damages actions against federal agents who are alleged to have violated an innocent citizen's Fourth Amendment rights. By double standard I mean a standard that affords a law enforcement official two layers of insulation from liability or other adverse consequence, such as suppression of evidence.
Having already adopted such a double standard in applying the exclusionary rule to searches authorized by an invalid warrant, U.S. v. Leon, (1984) [discussed in Chapter 10], the Court seems prepared and even anxious in this case to remove any requirement that the officer must obey the Fourth Amendment when entering a private home. I remain convinced that in a suit for damages as well as in a hearing on a motion to suppress evidence, an official search and seizure cannot be both unreasonable and reasonable at the same time. A federal official may not with impunity ignore the limitations which the controlling law has placed on his powers.
The effect of the Court's (literally unwarranted) extension of qualified immunity, I fear, is that it allows federal agents to ignore the limitations of the probable-cause and warrant requirements with impunity. The Court does so in the name of avoiding interference with legitimate law enforcement activities even though the probable-cause requirement, which limits the police's exercise of coercive authority, is itself a form of immunity that frees them to exercise that power without fear of strict liability.
The argument that police officers need special immunity to encourage them to take vigorous enforcement action when they are uncertain about their right to make a forcible entry into a private home has already been accepted in our jurisprudence. We have held that the police act reasonably in entering a house when they have probable cause to believe a fugitive is in the house and exigent circumstances make it impracticable to obtain a warrant. This interpretation of the Fourth Amendment allows room for police intrusion, without a warrant, on the privacy of even innocent citizens.
In Pierson v. Ray, we held that police officers would not be liable in an action brought under 42 U.S.C. § 1983 “if they acted in good faith and with probable cause.” We explained:
Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.
Thus, until now the Court has not found intolerable the use of a probable-cause standard to protect the police officer from exposure to liability simply because his reasonable conduct is subsequently shown to have been mistaken. Today, however, the Court counts the law enforcement interest twice and the individual's privacy interest only once. The Court's double-counting approach reflects understandable sympathy for the plight of the officer and an overriding interest in unfettered law enforcement. It ascribes a far lesser importance to the privacy interest of innocent citizens than did the Framers of the Fourth Amendment.
The importance of that interest and the possible magnitude of its invasion are both illustrated by the facts of this case. The home of an innocent family was invaded by several officers without a warrant, without the owner's consent, with a substantial show of force, and with blunt expressions of disrespect for the law and for the rights of the family members. I see no reason why the family's interest in the security of its own home should be accorded a lesser weight than the Government's interest in carrying out an invasion that was unlawful.
Arguably, if the Government considers it important not to discourage such conduct, it should provide indemnity to its officers. Preferably, however, it should furnish the kind of training for its law enforcement agents that would entirely eliminate the necessity for the Court to distinguish between the conduct that a competent officer considers reasonable and the conduct that the Constitution deems reasonable. On the other hand, surely an innocent family should not bear the entire risk that a trial court, with the benefit of hindsight, will find that a federal agent reasonably believed that he could break into their home equipped with force and arms but without probable cause or a warrant.
I respectfully dissent.
Questions
1. State the test for qualified immunity adopted by the majority.
2. List the reasons the Court gives for defining “qualified immunity” the way it does.
3. Summarize the dissent's objections to the majority's definition of “qualified immunity.”
4. Which of the opinions do you agree with?
5. Explain what Justice Stevens means by “the Court counts the law enforcement interest twice and the individual's privacy interest only once.”
6. Do you believe Robert and Sarisse Creighton and their children should have received damages for what happened? Defend your answer, relying on the facts and the arguments of the majority and the dissent.
Lawsuits against the U.S. government
LO 3
Bivens didn't decide whether Webster Bivens could also sue the U.S. government for the six FBI officers' constitutional torts. According to the doctrine of sovereign immunity (a holdover from the days when kings didn't have to appear in court), individuals can't sue governments without the government's consent. The U.S. and most state governments have laws waiving their sovereign immunity (at least to some degree). That's what Congress did in the Federal Tort Claims Act (FTCA).
After Bivens, Congress permitted FTCA suits against the U.S. government for the constitutional torts of federal law enforcement agents “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” The U.S. government's “deep pockets” make FTCA actions attractive to plaintiffs—probably more attractive than Bivens actions against individual officers. But both remedies are available to plaintiffs.
According to Professors Whitebread and Slobogin (2000):
The plaintiff whose constitutional rights have been violated by a federal police officer in bad faith can be assured of monetary compensation [in an FTCA action] at the same time he can expect direct “revenge” in a Bivens action against the official to the extent the official can afford it. (51–52)
Suing State Officers
LO 4
Plaintiffs can sue individual state officers in two kinds of actions: state tort lawsuits and federal U.S. Civil Rights Act lawsuits. Let's look at each.
State tort actions
LO 4
Most illegal acts by state police, county sheriffs and their deputies, and local police officers and their chiefs are also torts, meaning plaintiffs can sue individual officers for damages for acts such as assault, false arrest or false imprisonment, and trespassing or breaking and entering. But the right to recover damages for injuries caused by officials' torts has to be balanced against law enforcement's job of protecting the public. So, although individual officers are liable for their own torts, there's a huge difference between suing an ordinary person and a police officer.
The defense of official immunity limits officers' liability for their torts. This defense says that “a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual unless he is guilty of a willful or malicious wrong.” Why? Because “to encourage responsible law enforcement police are afforded a wide degree of discretion precisely because a more stringent standard could inhibit action” (Pletan v. Gaines et al. 1992, 40).
In Pletan v. Gaines et al. (1992), the Minnesota Supreme Court balanced the rights of injured individuals and the needs of law enforcement. Crystal, Minnesota, Police Department Sergeant Boyd Barrott was in a high-speed chase trying to apprehend Kevin Gaines, suspected of shoplifting. Gaines struck and killed five-year-old Brian Pletan as he was walking home after school. The court decided that Sergeant Barrott wasn't liable for Brian's death. If the officer were held liable, the court said, officers in the future might shy away from vigorously enforcing the law.
U.S. Civil Rights Act (§ 1983) actions
LO 4
Civil Rights Act actions (usually called § 1983 actions because they're brought under Title 42, § 1983, of the Civil Rights Act of 1871, passed just after the Civil War) allow plaintiffs to go into federal or state courts to sue state police officers and their agency heads; county sheriffs and their deputies; and municipal police officers and their chiefs for violating plaintiffs' federal constitutional rights.
Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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. (U.S. Code 2002, Title 42, § 1983)
As interpreted by the U.S. Supreme Court, plaintiffs have to prove two elements similar to those in Bivens if they hope to win their constitutional tort actions:
1. Officers acted “under color of state law,” which includes all acts done within the scope of their employment.
2. Officers' actions caused a deprivation of plaintiffs' rights guaranteed by the U.S. Constitution.
Section 1983 doesn't mean that officers are liable every time they violate individuals' constitutional rights. Far from it. The U.S. Supreme Court has read several limits into the statutory protection. Here are the two main ones:
1. Plaintiffs can only recover for deliberate actions, not for accidental or even negligent violations.
2. State and local officers are protected by the same qualified immunity under § 1983 that federal officers have under Bivens and the Federal Tort Claims Act.
Suing Local Governments
LO 5
Plaintiffs have two options if they decide to sue local governments instead of (or in addition to) suing individual officers. They can sue governments in state courts for the torts of their officers, or they can sue them under the U.S. Civil Rights Act; see “Suing State Officers,” earlier. (Monell, discussed later, ruled that municipalities and police departments are considered “individuals” in § 1983.) Let's look at each of these complicated routes to recovering damages from governments instead of individuals.
Local government tort actions
LO 5
What if Brian Pletan's parents in Pletan v. Gaines et al. (1992) (discussed earlier) had sued the Minnesota municipal police department or the city instead of the individual officer? Under the doctrine of respondeat superior, state and local governments and their agencies are liable for the torts of their employees, only if the employees committed the torts during the course of their employment.
There's another catch; not all states have adopted the doctrine. (They don't have to because of the states' sovereign immunity.) In these states, government units enjoy the defense of vicarious official immunity, which means police departments and local governments can claim the official immunity of their employees. To determine whether government units are entitled to the defense of vicarious official immunity, courts apply a balancing test of local government liability. This test balances two elements:
1. The need for effective law enforcement
2. The need to avoid putting the public at risk
In the Minnesota Supreme Court's application of the balancing test in Pletan v. Gaines et al. (1992), the high-speed chase case, the court found the need to enforce the criminal law outweighed the risk to the public created by the high-speed chase. So, the court held, the municipality wasn't liable for the boy's death (42–43).
Local government U.S. Civil Rights Act (§ 1983) actions
LO 5
As you learned from Anderson v. Creighton (excerpted pp. 416–419), suing individual officers for violating constitutional rights is a complicated business. Suing a department or a city under § 1983 is even more complicated. Until 1978, the Court had held that the Civil Rights Act of 1870 didn't apply to states and cities. Then, in Monell v. New York City Department of Social Services (1978), the Court decided to undertake “a fresh analysis of debate on the Civil Rights Act of 1871.” The Court changed its mind, concluding that the legislative history of § 1983 “compels the conclusion that Congress intended to include municipalities and other local government units among those persons to whom § 1983 applies” (italics added). According to the Monell Court, individuals could sue local government units if they could prove two elements:
1. Officers either acted according to written policies, statements, ordinances, regulations, or decisions approved by authorized official bodies or to unwritten custom. The condition was met even if the custom wasn't formally approved through official decision-making channels.
2. The action caused the violation of the plaintiff's constitutional right(s).
So, according to the Supreme Court in the Monell case:
A local government cannot be sued for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible for it under § 1983. (695)
LAW ENFORCEMENT DUTY TO PROTECT
LO 6
Until now, we've talked only about people whom officers have harmed by their illegal actions. But what about when government fails to protect people from each other? Most police departments conceive their mission broadly: “To protect and serve.” But is their mission “to protect” a constitutional command? In other words, do governments and their officers have a constitutional duty to protect individuals from other private individuals who violate their rights? No. (At least, not most of the time.)
Most of these duty-to-protect cases begin with horrible tragedies. Plaintiffs sue officers, departments, and local governments because they believe that if the officers had intervened, they could've prevented the tragedy. The first U.S. Supreme Court duty-to-protect case began with one of these tragedies, DeShaney v. Winnebago County Department of Social Services (1989). Five-year-old Joshua DeShaney's father beat him so severely for more than two years that he suffered severe and permanent brain damage. The story prompted this widely cited emotional reaction from Justice Harry Blackmun in his dissent:
Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by the Winnebago County Social Welfare Department staff who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except dutifully recorded these incidents in their files. (1012)
The Court ruled against Joshua. Chief Justice Rehnquist wrote the opinion for the six-member majority, holding that governments have no duty to protect people from harms caused by private individuals. The chief justice explained why. The Constitution protects what he called negative liberties. They tell government what it can't do. For example, it can't pass laws that infringe on the First Amendment rights to speech and religion. And it can't deny a person life, liberty, or property, without due process of law. It does not impose affirmative duties on the government, such as the duty to protect people from privately inflicted harms (DeShaney, 200). So the Winnebago County Department of Social Services had no duty to protect Joshua from his father (202). So, according to what we'll call the Supreme Court's no-affirmative-duty-to-protect rule, plaintiffs can't sue individual officers or government units for failing to stop private people from violating their rights by inflicting injuries on them.
YOU DECIDE: Did the Public Mental Health Officials Have a Duty to Protect a State Resident from Being Murdered by a Released Mentally Ill Patient?
POSNER, J.
The plaintiff (Thomas Bowers) in this case is the administrator of the estate of Marguerite Anne Bowers, who was murdered by Thomas Vanda in 1977. The defendants are public employees, officers, and physicians of the Illinois Department of Mental Health and Developmental Disabilities and its Madden Mental Health Center. Vanda is not a defendant.
