8.3 Damage Claims Against Cities and Counties Under Section 1983
Updated 2013 by Kirsten Clanton
Most Section 1983 claims for damages involve suits against government employees who have violated the Constitution, statutes, or their employer’s own stated policies. The boundaries of such claims are discussed in this subchapter.
8.3.A. The Requirement of a Custom, Policy or Practice
It is well established that allegedly unlawful actions by governmental employees cannot be imputed to cities and other local government units, and do not give rise to liability by local governing units under Section 1983, because a city, county, or similar governmental agency is only liable for the deprivation of federal rights caused by its own policy, custom or practice./1/ Monell v. New York City Department of Social Services establishes the principle that the government is liable only for actions for which it is directly responsible, establishing the parameters of the exception to the common law rule that government should be immune from suit./2/ Furthermore, a plaintiff must show that action taken pursuant to official municipal policy caused the injury./3/
8.3.A.1. No Governmental “Respondeat Superior” Liability
A local government may not be sued under Section 1983 for harm inflicted by its employees when the sole nexus between the employer and the deprivation of rights is the existence of the employee-employer relationship. Monell clearly rejected respondeat superior liability for local governments, reasoning that “the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation.”/4/ It further held that a governmental “strict liability” rule would run counter to the statutory intent that the agency can be held accountable only when official policy is to blame. Hence, the government entity – as opposed to the individual government employee or agent – is liable only for acts of its employee or agent that stem from a “custom, policy or practice” of the entity, and not from an individual aberration or isolated act, even one committed “under color of law.”/5/
This is generally not an issue when the deprivation of federal rights results from enforcement of "a policy statement, ordinance, regulation, or decision officially adopted and promulgated" by the officers of a local governing body./6/ The problems arise when the source of the policy, or the authority under which it is enforced, is uncertain./7/
8.3.A.2. Establishing a “Custom, Policy or Practice” in the Absence of Written Guidelines or Repeated Acts: The Role of the “Final Policy-Making Authority”
In addition to deprivations of rights caused by official policy, local governments may be sued for deprivations caused by "governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels."/8/ To establish a custom or practice in the absence of a formal policy will usually require proof of repeated incidents suggesting a pattern or practice. The existence of a widespread practice can be so permanent and well-settled to constitute a custom or usage with the force of law./9/
Even a single decision made by the "final policy making authority," such as the governing body of a local government or one having the power to decide finally on its behalf, can constitute a "policy" under Section 1983./10/ However, "the scope of § 1983 liability does not permit such liability to be imposed merely on evidence of the wrongful action of a single city employee not authorized to make city policy.”/11/ Therefore, it is critical to identify who is a final policy maker for purposes of imposing liability under Section 1983 on a local government pursuant to an official policy.
State law determines whether a particular person or entity is the "final policy-making authority."/12/ In City of St. Louis v. Prapotnik, 485 U.S. 112 (1988) (plurality opinion), the Court explained that the authority to make municipal policy is the authority to make final policy:
When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality. Similarly, when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final./13/
In Jett v. Dallas Independent School District, the plaintiff, a former athletic director and football coach, sued a school district and principal alleging violations of his constitutional rights./14/The Court instructed that "the identification of those officials whose decisions represent the official policy of the local government unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury./15/ The jury then must determine whether those officials who have the power to make official policy caused the deprivation of rights by their decisions "or by acquiescence in a longstanding practice or custom which constitutes the 'standard operating procedure' of the local government entity./16/
Related to the "final policy-making authority" inquiry is whether, in carrying out the custom, policy or practice, the defendant official "acted" on behalf of a local agency or the state. On the one hand, a local official's enforcement of a state law or policy does not, without more, convert it into local policy./17/ On the other, some ostensibly local agencies – such as county sheriffs or school boards – can be considered under state law to be state agencies when carrying out particular functions. This determination is dependent on state law./18/ And the state, of course, cannot be sued under Section 1983./19/
8.3.B. Liability for Inadequate Training
Often, however, the problem is with not the “policy” of the agency, but that agency employees are ignorant of the policy. In some narrow circumstances, the agency’s failure to train its employees to comply with agency policy can lead to liability if, as a result of employee ignorance or inadequate training, a plaintiff is deprived of federal rights.
In City of Canton v. Harris, the Supreme Court explained that inadequate training could give rise to liability if:
in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policy-makers can reasonably be said to have been deliberately indifferent to the need./20/
The Court held that under these circumstances, "the failure to provide proper training may fairly be said to represent a policy for which the city is responsible."/21/
However, in the Supreme Court's most recent case on this issue, Connick v. Thompson, the Court held that a single Brady violation by prosecutors who failed to turn over to the defense exculpatory blood evidence was insufficient to show inadequate training and thereby impose Section 1983 liability./22/ The Court found that Thompson's "single incident" claim did not fall within a hypothesized scenario of single incident liability for failing to train police in City v. Canton. Instead, the Court concluded that,
It does not follow that, because Brady has gray areas and some Brady decisions are difficult, prosecutors will so obviously make wrong decisions that failing to train them amounts to "a decision by the city itself to violate the Constitution." To prove deliberate indifference, Thompson needed to show that Connick was on notice that, absent additional specified training, it was "highly predictable" that the prosecutors in his office would be confounded by those gray areas and make incorrect Brady decisions as a result. In fact, Thompson had to show that it was so predictable that failing to train the prosecutors amounted to conscious disregard for defendants' Brady rights. He did not do so./23/
This decision may make it more difficult to bring failure-to-train claims based on a single incident. Successful cases have been brought where a municipality failed to train in areas where there was an obvious need for training/24/ or where the pattern of constitutional violations was so pervasive that failure to train constituted deliberate indifference by the municipality./25/
8.3.C. Good Faith Defenses and the Availability of Punitive Damages
A municipality may not escape liability by claiming its officers or employees acted in good faith./26/ Owen v. City of Independence involved the firing of a chief police without notice of the reasons for this action, or a hearing, allegedly in violation of due process. The claim was initially dismissed on the ground that, because the applicability of due process in these circumstances was still “unclear” at the time, and because any government employee defendants sued in their personal capacity would have been entitled to claim qualified immunity, the same should apply to the city. The Supreme Court reversed and ruled that granting a qualified or good faith immunity to a municipality was not compatible with Section 1983's fundamental purpose of remedying violations of federal rights./27/
The Court reasoned that the danger of intimidation or inhibition – lurking when an individual employee has to act under threat of possible suit – is not present when a municipality or local government agency is sued because these entities can act only through their employees or agents. Hence, granting immunities to government, or to government agents sued in their official capacity for actions resulting from the agency’s custom, policy, or practice, would only undercut the government’s incentive to conform their operational procedures to federal law, or to control its employees./28/ For this reason, in an official capacity suit, damages can be awarded against a government agency for actions that caused the deprivation of plaintiff’s rights even if these actions were “objectively reasonable.” In the Court’s words:
By creating an express federal remedy, Congress sought to “enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” How “uniquely amiss” it would be, therefore, if the government itself ... were permitted to disavow liability for the injury it has begotten. ... Moreover, § 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well. ... The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights. Furthermore, the threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights./29/
On the other hand, governmental defendants are immune from a claim of punitive damages for the bad faith of their employees./30/ Punitive damages are available in a Section 1983 action against an individual defendant "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others."/31/ However, because the government -- already lacking immunity from awards of actual damages – should not be punished for the actions of rogue employees, punitive damages cannot be awarded against a government agency or municipality under Section 1983. In City of Newport v. Fact Concerts, Inc., the Court stated:
Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct ... Regarding retribution, . . . an award of punitive damages against a municipality “punishes” only the taxpayers, who took no part in the commission of the tort . . . ./32/
8.3.D. Municipal Liability for Employees Sued in Official Capacities
Generally, a governmental agency can only act through its employees. Unless they are acting as renegades in violation of agency policy, these employees are merely implementing the entity’s custom, policy, and practice. If the result of these actions is a deprivation of federal rights, both the employee and the agency can be sued. As discussed earlier in this chapter, while an employee may be able to invoke qualified immunity so long as the contours of the federal right were not “clearly established,”/33/ the governmental employer has no such defense./34/
A government employee can be sued in his or her personal or official capacity, or both, the distinction being the person or entity that the plaintiff is ultimately holding responsible./35/ The Supreme Court has stated: “Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. ... Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’”/36/ The Court explained “[T]he phrase ‘acting in their official capacities’ is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.”/37/ However, the fact that the official was on the job when the official deprived the plaintiff of federal rights does not shield the government agent from personal liability and convert the action into an "official capacity" suit./38/
In “official capacity” suits, the government agency must comply with the injunction or pay the damage award. In personal capacity suits, the employee is personally liable./39/
2. Owen v. City of Independence, 445 U.S. 622 (1980) (municipality liable for damages flowing from constitutional violations that it caused through the execution of its policy or custom).
3. Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011).
4. Monnell, 436 U.S. at 691-92. See also Los Angeles County v. Humphries, 131 S. Ct. 447, 452 (2010) (custom or policy requirement applies to suits for prospective relief as well as claims for damages).
7. See Burgess v. Fisher, 735 F.3d 462, 478 (6th Cir. 2013) ("A plaintiff can make a showing of an illegal policy or custom by demonstrating one of the following: (1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom or tolerance or acquiescence of federal rights violations.").
9. Id. See, e.g., Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987) (Custom or usage has force of law as "widespread practice" when "duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the governing body [or policymaker with responsibility for oversight and supervision] that the practices have become customary among its employees.")
10. See Monell, 436 U.S. at 694-95. See also Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). "Policy making" is defined as "a deliberate choice to follow a course of action . . . from among various alternatives." Id. at 483.
13. Moreover, inaction on the part of the final policymaker (such as a failure to overrule a decision made by a subordinate) has been found to be an insufficient delegation of decision-making authority. Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). A final policymaker must make an affirmative or deliberate choice from among various alternatives and must approve a subordinate's decision and the basis for it before ratification of a subordinate's decision will be deemed to have occurred. Id.
17. Compare Surplus Store and Exchange v. City of Delphi, 928 F.2d 788 (7th Cir. 1991) (no Monell liability possible where the alleged policy was to require police officer to enforce state law) with Cooper v. Dillon, 403 F.3d 1208 (11th Cir. 2005) (Police chief had final policymaking authority for City, and "it was his deliberate decision to enforce the statute that ultimately deprived Cooper of constitutional rights and therefore triggered municipal liability.").
18. Compare McMillian v. Monroe County, 520 US. 781 (1997) (affirmed decision of 11th Circuit that county sheriff in Alabama as matter of state law is not final policymaker for county in areas of law enforcement) with Abusaid v. Hillsborough County Board of County Commissioners, 405 F.3d 1298, 1304 (11th Cir. 2005) (in law enforcement capacity of enforcing county ordinance, Florida sheriff acts for county and is not arm of state as matter of state law).
19. Quern v. Jordan, 440 U.S. 332. 337 (1979) (Since Congress did not intend Section 1983 to apply to states, Eleventh Amendment bars suit for damages). State officials sued in their official capacities for damages are similarly immune. Hafer v. Melo, 502 U.S. 21, 26 (1991).
20. City of Canton v. Harris, 489 U.S. 378, 390 (1989). In her concurring opinion, Justice O'Connor wrote that a plaintiff must prove the need for training in one of two ways. "First, a municipality could fail to train its employees concerning a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face. . . . Second, . . . municipal liability for failure to train may be proper where it can be shown that policy-makers were aware of, and acquiesced in, a pattern of constitutional violations involving the exercise of police discretion. In such cases, the need for training may not be obvious from the outset, but a pattern of constitutional violations could put the municipality on notice that its officers confront the particular constitutional requirements." Id. at 396-97. In Board of Commissioners v. Brown, 520 U.S. 397 (1997), Justice O'Connor's majority opinion reiterated that liability could not be based on a single incident without effectively undermining the Morrell rule barring governmental respondeat superior liability.
21. City of Canton, 489 U.S. at 390. The Court gave as an example "the need to train officers in the constitutional limitations on the use of deadly force" because the need is "'so obvious,' that failure to do so could properly be characterized as 'deliberate indifference' to constitutional rights." Id. at 390 n.10. The Court explained that police who often violate constitutional rights make the need for training obvious to city officials who must be "deliberately indifferent" to the need. Id.
22. Connick v. Thompson, 131 S.Ct. 1350 (2011).
24. See, e.g., Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992) (genuine issue of material fact existed as to whether inadequate training in subduing mentally disturbed person rose to level of deliberate indifference).
25. See, e.g., Chew v. Gates, 27 F.3d 1432, 1445 (9th. Cir. 1994) (Jury could find municipal liability based on inadequate training in canine unit "[w]here the city equips its police officers with potentially dangerous animals, and evidence is adduced that those animals inflict injury in a significant percentage of the cases in which they are used[;] a failure to adopt a departmental policy governing their use, or to implement rules or regulations regarding the constitutional limits of that use, evidences a 'deliberate indifference' to constitutional rights.").
30. City of Newport v. Fact Concerts, Incorporated, 453 U.S. 247, 271 (1981) (punitive damages not available in Section 1983 suit against municipality challenging violations of constitutional rights caused by city's revocation of permits for music festival).
33. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) ("The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'") (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Because "qualified immunity" is immunity from suit, rather than immunity from liability, questions about whether immunity attaches must be resolved at the earliest possible stage of the litigation. Id. at 213-32.
35. Even if the entity is being sued as a result of a custom, policy, or practice, tactical reasons or pleading rules may require that the individual employee be named as the defendant, rather than the agency itself. For example, a sheriff's office may not be a legal entity with the capacity to be sued under a particular state's laws. Dean v. Barber, 951 F.2d 1210, 1215 (11th Cir. 1992) ("Under Alabama law, a county sheriff's department lacks the capacity to be sued."). In such cases, the sheriff would have to be sued in the sheriff's official capacity, assuming the sheriff is not an arm of the state. See id. at 1215 n.5 (suit against sheriff in official capacity barred because sheriff is employee of state of Alabama). But see Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (no longer need to bring official capacity suits against local government officials because local government units can be sued directly).
36. Graham, 473 U.S. at 165-66 (quoting Monell , 436 U.S. 658, 690 n.55). To establish personal liability, "it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Id. at 166. By contrast, an official capacity suit requires proof that a policy or custom of the governmental entity was the moving force behind the violation of federal law. Id.
39. Graham, 473 U.S. at 166. A government entity may indemnify the government employee for personal liability under Section 1983, but the conditions under which a government entity assumes the risk of doing so can vary.
Updated 2013 by Kirsten Clanton