Nearly six years after “I can’t breathe” became Eric Garner’s last words, the same plea is reverberating across a horrified nation. This time, it was George Floyd’s.
Today, these words represent our failure to respond to law enforcement misconduct in a meaningful way. They are an indictment of our inaction in the face of injustice. And they are evidence that the legal deterrents compelling nationwide reform are inadequate. Systemic racism can’t be changed overnight, but the law can be.
On Sunday, Rep. Justin Amash announced plans to introduce the Ending Qualified Immunity Act. Qualified immunity shields police officers from civil liability for violating a civilian’s constitutional rights in most circumstances. Reforming it is an important step toward holding law enforcement accountable for abuse of power. But Congress must also act to address the less-well-known but equally pernicious rules governing municipal liability. It’s time to hold local governments accountable for police violence.
Under state tort law, when a commercial truck driver causes injury or death, the victim can recover damages in one of two ways. First, the victim can sue the truck driver. But if the accident is severe, it is unlikely the driver will have the resources to fully compensate the victim. So, the victim has a second option: suing the trucking company that employed the driver. The company is more likely to have pockets deep enough to pay the victim. And it is generally responsible for the actions of its drivers under a legal concept known as respondeat superior, Latin for “let the master answer.” Or, in ordinary parlance, “the boss pays.”
Holding both the employee and the employer responsible is good policy: It ensures victims are fully compensated, incentivizes employees to discharge their duties with care, and incentivizes employers to promote safe business practices.
But when it comes to law enforcement misconduct, municipalities do not have the same legal responsibility to ensure their employees abide by the Constitution. This is because of a 1978 Supreme Court case called Monell v. Department of Social Services of the City of New York. In Monell, the court held that municipal employers cannot be held responsible for the unconstitutional actions of their employees through the principle of respondeat superior. Instead, under Monell, cities are responsible for their employees’ deprivations of constitutional rights only when the employee acts through an official government policy or custom.
The Monell standard creates serious injustice. Cities are not likely to have official policies condoning law enforcement misconduct. So, to hold a city responsible, a victim must prove the misconduct was so regular as to become a de facto city policy. This bar is impossible to clear in most cases; where the burden can be met, the damage will already have been done.
This problem played out in yet another police shooting case just last fall. There, the U.S. Court of Appeals for the 6th Circuit ruled that Memphis, Tennessee, could not be liable for the death of 19-year-old Darrius Stewart, an unarmed black man shot in the back and killed by a white police officer. The 6th Circuit determined the officer used excessive force in violation of the Fourth Amendment. But dutifully applying Monell, the court determined Memphis was not liable for Stewart’s death because Memphis police officers do not use excessive force frequently enough to constitute an official city policy or custom. So the city of Memphis bore no legal responsibility for Stewart’s death.
Cities are similarly insulated from lawsuits alleging a constitutional deprivation caused by their failure to train law enforcement employees. Monell nominally holds cities liable for failure to train, but by the Supreme Court’s own admission, this is the “most tenuous” brand of municipal liability. Only if it is “highly predictable” that officials will violate the Constitution in the absence of training can a city be liable under this standard.
And that’s rarely the case. The Supreme Court’s 5–4 decision in 2011’s Connick v. Thompson shows just how extreme this protection can be. In criminal prosecutions, the Constitution requires that prosecutors turn over potentially exculpatory evidence to the defense. Failing to do so is known as a Brady violation. In Connick, New Orleans prosecutors hid a lab report that revealed their suspect, John Thompson, did not have the blood type of the person who committed the crime. With that evidence concealed, Thompson was convicted and sentenced to death. He spent 14 years on death row until, just one month before his execution date, a private investigator discovered the hidden lab report and exonerated him.
Thompson sued the Orleans Parish, seeking compensation for his 14 years on death row. The parish admitted that its failure to turn over the evidence violated the Constitution. And the evidence also showed the city never trained its prosecutors to comply with Brady requirements. Nevertheless, the Supreme Court concluded the city could not be liable for failing to train its district attorneys because it was not highly predictable they would violate Brady (even though the same office had convictions overturned for four earlier Brady violations).
Under Monell, cities can only be held accountable when police officers or prosecutors abuse their power so frequently that it becomes a de facto policy or obvious indicator of a need for training. For George Floyd, this comes too late.
The upshot of the Supreme Court’s Monell doctrine is that local governments have little legal incentive to take proactive measures to prevent law enforcement misconduct. This perpetuates bad policy in three ways. First, it absolves local governments of financial responsibility for their employees’ actions. Most municipal employers indemnify law enforcement officers, covering their damages when they’re held liable in court. Qualified immunity, however, often protects these officers from lawsuits, letting the city off the hook. If civil rights plaintiffs could sue a city instead, they would not face this qualified immunity roadblock. Second, Monell liability blocks a plaintiff’s ability to obtain an injunction that would require the municipality to reform its practices. Finally, it provides political cover, allowing local governments to shift blame to individual officers without accepting responsibility themselves.
But Congress has the power to change this. The Supreme Court based its decision in Monell on statutory interpretation, common law, and public policy—not on the Constitution itself. Because Monell is an interpretation of Congress’ own laws, not an immutable principle enshrined in the Constitution, Congress can override the decision and impute liability to municipalities through respondeat superior. It’s about time we hold our communities to the same standards as our trucking companies.
Amash’s bill to reform qualified immunity for law enforcement officers is an appropriate first step in reforming law enforcement accountability. But to spur systemic change, we must also hold the governments who employ them responsible for these tragedies. If we don’t, we may never regain our breath.