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Section 1983-Policy and Custom- Part 1

Section 1983-Policy and Custom- Part 1 - Section 1983...

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Unformatted text preview: Section 1983: Section Policy and Custom CRJU E491P, Police Liability Spring 2011, Mr. Smith The Monell Rule The As noted before, a municipality is liable under section 1983 for a deprivation of rights protected by the Constitution or federal laws that is inflicted pursuant to the official policy of the municipality. Actions of officers or employees of a municipality do not render the municipality liable under section 1983 unless they execute municipal official policy. A municipality is not liable for the actions of its officers or employees under section 1983 simply because it employs them as there is no respondeat superior liability under section 1983. Policy Defined Policy Official policy is: A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy­making authority; or A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy­making authority. A policy or custom for which a municipality may be held liable under § 1983 can arise in four ways: (1) through an express policy, such as a written ordinance or regulation, (2) through the decisions of a person with final policymaking authority, (3) through an omission, such as a failure to properly train officers, that manifests deliberate indifference to the rights of citizens, or (4) through a practice that is so persistent and widespread as to constitute a custom or usage with the force of law. Lytle v. Doyle (2003) Fourth Circuit Court of Appeals The Nature of Written Policy The Policies should be guidance instruments, not rigid instructions, and must be written so as to set the limits of police discretion; not dictate police behavior in every instance. Some police activities require closer control than others, however, and the degree of control to be imposed by a policy, and its corresponding procedure, must be determined based upon the extent to which a police activity is “value­driven” as opposed to “control­driven.” Police actions which, if improperly performed, may result in serious injury or death, must be subject to policies which strictly control police discretion. Other actions which occur frequently and with little likelihood of causing serious injury should be governed by policies stressing common values and provide only summary guidance. Identifying Policy Areas Identifying The areas of police conduct to be regulated in a law enforcement agency should be identified through the conduct of a “critical functions assessment” in order to identify the specific tasks performed by officers and the frequency with which the tasks are performed. The assessment should be conducted in advance of the development of written policy due to the fact that a “blindly written policy” (i.e. one which does not take account of the actual tasks performed at street level) will not likely be accepted by line level officers who will seek to circumvent, or ignore, the policy in everyday actions. Ignoring a written policy may result in the creation of a “custom or practice” which becomes the de facto policy of the agency for section 1983 purposes; an occurrence over which the agency will have little control. Policy Continuum Policy Identifying the Policymaker Identifying A policymaker is an individual who has final policymaking authority not subject to further administrative review. Identification of a policymaker is not a question of fact for a jury; it is a matter to be determined based on state, to include local, law. Generally, a policymaker will be a high ranking official whose decisions represent the “final say” in a matter over which the official exercises policymaking authority. In some areas the head of a law enforcement agency may be the final policymaker (e.g. in the area of police tactics) but may not be the final policymaker in others (e.g. in the area of human resource management). Liability for Single Incidents Liability Generally, a single unconstitutional act committed by an officer cannot serve to establish municipal policy which will impose liability upon a municipality. Proof of a single instance of unconstitutional activity is sufficient only if it was caused by an existing, unconstitutional municipal policy, which can be attributed to a municipal policymaker; otherwise, existence of the unconstitutional policy and its origin must be separately proved. Where the policy relied on is not itself unconstitutional considerably more proof than a single incident is necessary to establish both the fault of the municipality and the causal connection between the “policy” and the constitutional deprivation. Oklahoma City v. Tuttle (1985) Oklahoma Can a single isolated incident of the use of excessive force by a police officer establish an official policy or practice of a municipality sufficient to render the municipality liable for damages under 42 U.S.C. section 1983? Evidence was offered that the shooting was caused by municipal policies. The officer who shot Tuttle testified that city training policies were inadequate and had led to Tuttle's death. The official who was Chief of Police when Tuttle was shot insisted that the shooting was entirely consistent with city policy.” The fact that a municipal “policy” might lead to “police misconduct” is hardly sufficient to satisfy Monell 's requirement that the particular policy be the “moving force” behind a constitutional violation. “Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the “policy” and the constitutional deprivation.” Unconstitutional Policy Attributed to a Policymaker Policymaker The officer in Tuttle was not a policymaker. What is the result if the unconstitutional act is the result of direct action by a policymaker? Generally, when a course of action is directed by a final municipal policymaker, the municipality is equally responsible under section 1983 whether that action is to be undertaken only once or to be taken repeatedly. Pembaur v. City of Cincinnati (1985) Pembaur . The “official policy” requirement of Monell was intended to distinguish acts of the municipality from acts of the municipality's employees, and thereby make clear that municipal liability is limited to actions for which the municipality is actually responsible. It is plain that municipal liability may be imposed for a single decision by a municipal policymaker. If the decision to adopt a particular course of action is directed by those who establish governmental policy, the municipality is equally responsible. “Pursuant to standard office procedure, the Sheriff's Office referred this matter to the Prosecutor and then followed his instructions. The Sheriff testified that his Department followed this practice under appropriate circumstances and that it was “the proper thing to do” in this case. We decline to accept respondent's invitation to overlook this delegation of authority by disingenuously labeling the Prosecutor's clear command mere “legal advice.” In ordering the Deputy Sheriffs to enter petitioner's clinic the County Prosecutor was acting as the final decision­maker for the county, and the county may therefore be held liable under § 1983.” ...
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