Excessive police force violates the United States Constitution. When a police officer uses excessive force against a citizen, he or she can be held liable for the resulting damages under a federal law called 42 U.S.C. Section 1983.
Some people, including many lawyers, assume that if a police officer uses excessive force, then his or her department (or the city or county that employs the police officer) is automatically liable as well. This concept (called “vicarious liability” or “respondeat superior liability”) comes from the common law, which generally makes an employer liable for the acts of the employee committed in the course and scope of the employee’s job. Unfortunately, however, the same common law concept of employer liability does not apply to constitutional violations committed by police officers. In other words, just because a police officer used excessive force on the job does not automatically make the city or county liable for that force.
According to the Supreme Court, unconstitutional actions by police are not automatically imputed to the cities or counties where they work. This is because such municipalities can only be held liable for excessive force violations they cause, through their own unconstitutional policies, customs or practices.
In many cases, there is no practical reason for a lawyer to sue a municipality for an officer’s use of excessive force. This is because many states have laws that require municipalities to pay damages on behalf of their police officers. In some circumstances, however, an attorney may want to sue the municipality as well as the individual officer. There are several reasons why this might be prudent. One such reason is to avoid the problem of qualified immunity, which is a defense available to individual officers but which is not available to cities and counties.
Although cities and counties are not automatically liable for the unconstitutional use of force by their officers, they can be held liable if there is proof that the municipality was the moving force behind the constitutional violation. There are several possible avenues for proving this.
One such avenue is by showing that the unconstitutional act was formally approved by the municipality’s official policy makers. It is rare that a municipality will have a formal policy that approves the use of unconstitutional force. But formal approval is not the only method. To successfully sue a municipality for the unconstitutional force, it can also be sufficient to show that the force was used pursuant to informal customs or practices of the department. This can include proof of repeated instances of similar unconstitutional force that establishes a practice that is so widespread as to create a “de-facto” policy. In other circumstances, a person can prevail against a municipality by showing inadequate training if, as the result of inadequate training, a municipality’s officers routinely use excessive force. In other words, the failure to provide proper training can, in some circumstances, create liability for the city or county. Similarly, in certain rare situations, a city or county can be liable if it “ratifies” the excessive force by an internal decision that the force used complied with its policies (even if those policies are not themselves written).
In any particular excessive force case, an experienced attorney should consider whether and how a municipality might be held liable for the excessive force of its officers. Often, extensive discovery will be required. Among other things, a lawyer seeking to hold a county or city liable will want to obtain the polices, procedures and training materials of the county or city. In some circumstances, extensive discovery can also show that the county or city has a pattern or practice of excessive force sufficient to rise to a custom or policy. Obtaining that discovery (i.e., by literally demanding records of other similar uses of force) can be time consuming and costly, but it may reveal useful information that can ultimately carry the day.
It is important to remember that each case is different. There is no “one size fits all” strategy for any particular case, and what may be unimportant in one case may be critical in another. The question of municipal liability is no exception.
If you have a case involving wrongful death or serious injuries from excessive force, consider contacting the lawyers at Budge & Heipt for a free consultation. There is no cost or obligation to do so.
