MONELL’S UNTAPPED POTENTIAL - Columbia Law Review

Among the most powerful barriers to relief under § 1983 is Monell v. Department of Social Services—the Supreme Court decision recognizing that municipalities can be liable for constitutional violations by their officers but setting an exceedingly high standard for such claims. This Essay suggests a litigation strategy that sidesteps several challenges posed by Monell: Plaintiffs should pursue Monell claims based on police departments’ disregard of lawsuits brought against them and their officers.

Every circuit recognizes a police department’s failure to investigate citizen complaints as a basis for municipal liability. Although lawsuits—like citizen complaints—allege officer wrongdoing, many departments do not investigate their allegations. If failing to investigate citizen complaints is a sufficient basis for Monell liability, failing to investigate lawsuit allegations should be as well.

Police departments’ disregard of information unearthed during litigation should also be a basis for municipal liability. If internal affairs investigators fail to interview witnesses or gather relevant information, the municipality can be held liable under Monell. Litigation files contain depositions and evidence about officers’ conduct that departments routinely ignore. If failing to interview witnesses or consider relevant information during internal affairs investigations is a sufficient basis for Monell liability, disregarding litigation information that would fill gaps in internal affairs investigations should be as well.

In the short term, pursuing Monell claims based on departments’ inattention to lawsuits should make it easier to plead and prove municipal liability. Longer term, effectively requiring police officials to take account of litigation information may improve police departments’ internal investigations and supervision of their officers.

* Professor of Law, UCLA School of Law. For helpful discussions and feedback on earlier drafts, sincere thanks to Ahilan Arulanantham, Shirin Bakhshay, Karen Blum, Ann Carlson, Maureen Carroll, Beth Colgan, Joey Fishkin, Fanna Gamal, David Gans, Aaron Littman, Jerry López, Ion Meyn, Julian Davis Mortenson, Jim Pfander, Eve Primus, Lawrence Rosenthal, Margo Schlanger, Dan Schwartz, Miriam Seifter, Seana Shiffrin, Ekow Yankah, and participants in workshops at Stanford Law School, UCLA School of Law, the University of Michigan Law School, and the University of Wisconsin Law School. Thanks also to Ramzi Haddad, Zach Howard, Vasudev Mittal, and Hannah Pollack for invaluable research assistance, and to the editors of the Columbia Law Review—including Alexa Brady, Mohamed Camara, Isidora Echeverria, Susie Emerson, Sara Graziano, Makayla Haussler, Angela Hyokyoung Kang, Ryan Lattavo, Sydney Myers, Matthew Nola, Kenzo Okazaki, Alexandra Saueressig, Akesh Shah, Alexandria Iraheta Sousa, and Charlotte Waldman—for excellent editorial assistance.

Introduction

Among the most difficult hurdles to overcome in § 1983 litigation is the Supreme Court’s standard for holding municipalities liable for the constitutional violations of their officers. 1 By “§ 1983 litigation,” this Essay refers to lawsuits filed under 42 U.S.C. § 1983 against government officers and local governments. For a discussion of the passage of 42 U.S.C. § 1983 during the Reconstruction following the Civil War, the development of § 1983 doctrine in recent decades, and the many challenges associated with bringing such claims today, see Joanna Schwartz, Shielded: How the Police Became Untouchable, at xvii–xx, 3–7, 10–16 (2023) [hereinafter Schwartz, Shielded]. This Essay proposes a novel legal theory—requiring only a modest extension of existing law—that will make it easier to prove municipal liability claims in the short term and may also encourage more profound and long-lasting improvements to the ways government agencies investigate and supervise their officers.

In Monell v. Department of Social Services, the Supreme Court first recognized that local governments can be sued for constitutional violations by their employees under 42 U.S.C. § 1983. 2 See 436 U.S. 658, 663 (1978). Although private businesses can be held vicariously liable for the wrongdoing of their employees, the Supreme Court held in Monell that local governments are only liable for their officers’ constitutional violations if municipal policies or customs caused those violations to occur. 3 See id. at 691–95. The evidence necessary to meet the requirements imposed by Monell and its progeny has proven extremely challenging to find. 4 See infra section I.B. Indeed, it is significantly more difficult to plead and prove a Monell claim than it is to overcome the qualified immunity defense. 5 See Joanna C. Schwartz, Municipal Immunity, 109 Va. L. Rev. 1181, 1200–13 (2023) [hereinafter Schwartz, Municipal Immunity] (examining almost 1,200 police misconduct lawsuits filed in five federal districts and finding that local governments challenged municipal liability claims more often than individual defendants raised qualified immunity and that courts dismissed Monell claims more often than they granted officers qualified immunity); see also infra notes 42–49 and accompanying text (detailing these findings).

Many have called on courts and legislators to replace Monell with vicarious liability for local governments. 6 See infra note 110 and accompanying text. Doing so would be consistent with common understandings of the intent of those who drafted § 1983, would greatly simplify the litigation of § 1983 claims, and would improve our system of constitutional remediation in multiple ways. 7 See infra notes 99–109 and accompanying text. Replacing Monell with vicarious liability for local governments may also be among the most politically palatable possible reforms; since 2020, Republican senators opposed to ending qualified immunity have periodically offered imposing vicarious liability for municipalities as a counterproposal. 8 See infra note 111 and accompanying text. Yet replacing Monell with vicarious liability has still proven a steep hill to climb: Only one state has enacted legislation along these lines, and neither Congress nor the Supreme Court has indicated recent interest in revisiting Monell. 9 See infra note 112 and accompanying text.

This Essay offers an alternative path around the barriers of Monell that does not require convincing courts or legislatures to change the law: Plaintiffs should pursue Monell claims based on local governments’ disregard of allegations and information in lawsuits brought against them and their employees. This Essay develops this theory in the context of suits alleging law enforcement misconduct, because I have studied police departments’ inattention to lawsuits brought against them, 10 See infra notes 12, 15; see also infra section II.A. but this theory could support Monell claims challenging the conduct of other types of government agencies as well.

Police departments are unquestionably obligated to investigate citizen complaints alleging officer misconduct; every circuit has recognized that the failure to do so can be the basis for Monell liability. 11 See infra note 147 (describing these cases). Lawsuits, like citizen complaints, allege officer wrongdoing; as police auditors have commented, a lawsuit is, in essence, a “civilian complaint plus a demand for money.” 12 See Joanna C. Schwartz, What Police Learn From Lawsuits, 33 Cardozo L. Rev. 841, 856 & n.88 (2012) [hereinafter Schwartz, What Police Learn] (internal quotation marks omitted) (quoting Michael Gennaco, Chief Att’y, Off. of Indep. Rev., L.A. Sheriff’s Dep’t). Studies have found that many allegations made in lawsuits are not asserted in citizen complaints or otherwise brought to police departments’ attention. 13 See infra note 122 and accompanying text (describing these studies). And even when they are, experts have found that lawsuit complaints—when drafted by lawyers—are often clearer and more comprehensive than complaints called into police departments or filled in on complaint forms. 14 See infra note 123 and accompanying text (describing these studies). Yet many police departments do not investigate allegations in lawsuits brought against them and their officers as they would allegations in citizen complaints. 15 See Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. Rev. 1023, 1058–59 (2010) [hereinafter Schwartz, Myths and Mechanics] (describing available evidence suggesting many departments do not investigate allegations made in lawsuits); see also infra section II.A. If failing to investigate citizen complaints is sufficient basis for Monell liability, failing to investigate allegations in lawsuits should be as well.

Police departments’ disregard of information unearthed during litigation should be an additional basis for Monell liability. Litigation files are chock-full of deposition testimony, audio and/or video recordings, and other evidence about officers’ conduct. 16 See infra notes 120–121 and accompanying text (describing the evidence generated in litigation). Those who have compared litigation files with internal affairs investigations files of the same allegations have found the litigation files to be far more complete. 17 See infra note 124 and accompanying text (describing experts’ perspectives about the differences between internal investigations files and litigation files). Yet many police departments do not review information from lawsuits either as part of their internal affairs investigations of officers’ conduct or to inform supervision and training decisions. 18 See Schwartz, Myths and Mechanics, supra note 15, at 1058–59 (describing evidence of police departments’ disregard of information generated during litigation); see also infra section II.A. Courts have ruled that perfunctory internal affairs investigations—in which investigators fail to interview available witnesses or take account of available information—can be a basis for Monell liability. 19 See infra notes 176–179 (describing these cases). If a department systematically ignores litigation information that would fill gaps in their internal affairs investigations, that failure should be a basis for Monell liability as well.

These novel claims would not overcome every barrier currently posed by Monell. 20 For further discussion of these limitations, see infra notes 270–275 and accompanying text. They could not be employed to address all types of government wrongdoing, do not ease all challenges of Monell litigation, and would not prove successful in places without lawyers willing or able to bring civil rights suits. But, in jurisdictions that do not investigate lawsuit allegations or review information revealed during litigation, these claims may be easier to plead and prove than other types of Monell claims and so could meaningfully expand the scope of municipal liability.

These claims have an added benefit: If successful, they could prompt improvements to the way police departments investigate and supervise their officers. For decades, investigations of police departments’ internal affairs processes have revealed the same shortcomings: People are discouraged from filing citizen complaints; the complaints that are filed are inadequately investigated, if they are investigated at all; discipline is rarely imposed; and those rare disciplinary decisions are often overturned in arbitration or on appeal. 21 See infra notes 277–284 and accompanying text. If police departments were effectively forced by the threat of Monell liability to investigate lawsuit allegations and review information unearthed during litigation, those litigation materials could fill gaps in police departments’ current practices without renegotiating union agreements or somehow forcing internal affairs investigators to do a better job.

Profound improvement is by no means guaranteed. It is certainly possible that, in response to the threat of municipal liability for ignoring litigation information, police departments will institute bare-bones policies to investigate lawsuit allegations and review lawsuit data, which courts will use to conclude that departments are satisfying their obligations under Monell, and little will change. Departments will still fail to carefully supervise their officers, and municipal liability will remain exceedingly difficult to prove. Given courts’ tendencies to dismiss Monell claims and police departments’ tendencies to ignore lawsuits brought against them, there are good reasons to adopt this pessimistic view.

This Essay nevertheless finds cause for cautious optimism—both regarding the viability of these claims and their potential impact on police department practices—in the newfound role litigation information would play in the investigation and supervision of police. Plaintiffs and their attorneys have strong motivations to uncover evidence of misconduct and have powerful discovery tools at their disposal. 22 See infra notes 285–287 and accompanying text (describing how litigation information can fill gaps in internal affairs investigation processes). If police departments are effectively required to take account of the robust information about officers’ alleged misconduct that is generated during litigation, plaintiffs and their attorneys will have added incentive to unearth evidence of misconduct and put it into the record. That information could either lead departments to better investigate, discipline, and supervise their officers (achieving an intended deterrent effect of municipal liability claims) or could convince courts that departments are deliberately indifferent when they fail to take more decisive action (securing municipal liability for plaintiffs). If plaintiffs and their attorneys capitalize on police departments’ newfound attention to lawsuits, they can use those suits to notify police officials of misconduct and failures in supervision that they cannot afford to ignore.

The remainder of this Essay proceeds as follows. Part I describes the Monell doctrine, the many challenges of pleading and proof it poses, and the impact of those challenges on the system of civil rights remediation. Then, Part II proposes a novel Monell theory based on departments’ inattention to information in lawsuits brought against them and their officers. It describes evidence that police departments disregard litigation information; sets out two different Monell claims that could be alleged; addresses counterarguments municipalities might raise in response; and offers an example of how litigation of these claims might play out. Part III explores the possible impact of these novel claims on plaintiffs’ ability to establish municipal liability and on departments’ supervision and investigation of their officers.