Municipal Liability for Failure to Investigate Citizen Complaints Against Police
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MUNICIPAL LIABILITY FOR FAILURE TO INVESTIGATE CITIZEN COMPLAINTS AGAINST POLICE Hazel Glenn Beh* Formalism is often the last refuge of scoundrels; history teaches us that the most tyrannical regimes, from Pinochet's Chile to Stalin's Soviet Union, are theoretically those with the most de- veloped legal procedures. The point is obviously not to tar the Police Department's good name with disreputable associations, but only to illustrate that we cannot look to the mere existence of superficial grievance procedures as a guarantee that citizens' constitutional liberties are secure. Protection of citizens' rights and liberties depends upon the substance of the [citizen com- plaint] investigatory procedures.' I. Introduction In City of Canton v. Harris,2 the United States Supreme Court announced that a municipality could be liable under Chapter 42, Section 1983 of the United States Code3 for the misconduct of an employee if deficiencies in a municipal training program were the moving force behind plaintiff's injury and the alleged municipal de- ficiencies were the result of a deliberate indifference to training police officers. In adopting the deliberate indifference standard, the Court explained that "a lesser standard of fault would result in * Assistant Professor of Law, William S. Richardson School of Law, University of Hawaii at Manoa. The author thanks G. Richard Morry, Esq. and Michael Tanoue, Esq. and Professor Randall Roth, Esq. for their thoughtful comments. 1. Beck v. City of Pittsburgh, 89 F.3d 966, 974 (3d Cir. 1996) (reversing summary judgment in favor of city, evidence creates a jury question), cert. denied, 117 S. Ct. 1086 (1997). 2. 489 U.S. 378 (1989). 3. 42 U.S.C. § 1983 (1988), originally enacted as section 1 of the Civil Rights Act of 1871, ch. 22, 17 Stat. 13, provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... 42 U.S.C. § 1983. 4. See Canton, 489 U.S. at 391. 210 FORDHAM URBAN LAW JOURNAL [Vol. XXV de facto respondeat superior liability"5 and would cause federal courts to engage in an endless exercise of second-guessing munici- pal-employee training programs."'6 The Court warned that the fed- eral courts were "ill suited to undertake" such a review and to do so "would implicate serious questions of federalism."'7 In her con- curring and dissenting opinion, Justice O'Connor warned litigants that § 1983 is not intended to serve as a "'federal good government act' for municipalities. "8' Nevertheless, lower courts instantly ex- panded liability under Canton to include, not just the failure-to- train, but also the failure of other municipal programs which cause constitutional injury to citizens. The Court, in Board of County Commissioners of Bryan County v. Brown,9 recently reaffirmed its willingness to permit federal in- quiry into the deficiencies of municipal programs which result in constitutional injuries. The deeply divided Court again warned, however, that the federal courts should not micromanage munici- pal programs and decisionmaking through the hammer of civil rights liability. 10 Following Canton, the method in which a municipality addresses citizen complaints against police officers has become the frequent focus of civil rights litigation." Federal courts have signaled that a municipality must systematically address citizen complaints as a part of its responsibility to manage and supervise its police of- ficers.2 A municipality's failure to institute adequate procedures to air citizen complaints may demonstrate deliberate indifference which gives rise to civil rights liability. 13 Federal judicial decisions reveal the type of response to civilian complaints of police miscon- duct the courts expect from municipalities. Adverse decisions pro- vide municipalities with notice of a judicial willingness to evaluate procedures for reviewing police misconduct complaints. These 5. Id. at 392; see also Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978) (holding that there is no municipal respondeat superior liability in civil rights claims). 6. Id. 7. Id. 8. Id. at 396 (O'Connor, J., concurring in part and dissenting in part). 9. 117 S. Ct. 1382 (1997). 10. See id. at 1394. 11. One of the first cases was Fiacco v. Rensselaer, 783 F.2d 319 (2d Cir. 1986), cert. denied, 480 U.S. 922 (1987), cited with approval in Canton for employing a delib- erate indifference standard. See Canton, 489 U.S. at 387 n.6, 389 n.7. 12. See infra part IV. 13. Of course, municipal liability first turns on establishing that plaintiff suffered a constitutional injury at the hands of a government official. See City of Los Angeles v. Heller, 475 U.S. 796 (1986). 1998] MUNICIPAL LIABILITY 211 procedures fall within the limits of judicial oversight prescribed by Canton and Brown.14 A claim that the citizen complaint process shows deliberate in- difference is different than a claim that the amount of complaints lodged or incidences of misconduct indicate a custom or policy under Monell v. New York Department of Social Services.15 Similar 14. Liability or potential liability found: Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996) .(judgment as a matter of law reversed; question of fact whether Pitts- burgh's investigatory procedures against officers were adequate), cert. denied, 117 S. Ct. 1086 (1997); Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995) (summary judgment reversed; question of fact whether police system showed deliberate indiffer- ence in monitoring complaints); Parrish v. Luckie, 963 F.2d 201 (8th Cir. 1992) (jury verdict against North Little Rock, Arkansas affirmed); Gentile v. County of Suffolk, 926 F.2d 142 (2d Cir. 1991) (verdict against county affirmed); Bordanarov. McLeod, 871 F.2d 1151 (1st Cir. 1989) (verdict affirmed, City of Everett, Massachusetts, liable), cert. denied, 493 U.S. 820 (1989); Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir. 1986) (verdict against Rensselaer, New York, affirmed), cert. denied, 480 U.S. 922 (1987); Gonsalves v. City of New Bedford, 939 F. Supp. 915 (D. Mass. 1996) (imposing municipal liability on City Council and Mayor); Hogan v. Franco, 896 F. Supp. 1313 (N.D.N.Y. 1995) (summary judgment in favor of Utica, New York, denied); Illiano v. Clay Township, 892 F. Supp. 117 (E.D. Pa. 1995) (Clay Township's motion to dismiss denied); Carney v. White, 843 F. Supp. 462 (E.D. Wis. 1994) (Village of Darien's sum- mary judgment denied), affd, 60 F.3d 1273 (7th Cir. 1995); Cox v. District of Colum- bia, 821 F. Supp. 1 (D.D.C. 1993) (verdict against Washington, D.C.), affd, 40 F.3d 475 (D.C. Cir. 1994); Brown v. City of Margate, 842 F. Supp. 515 (S.D. Fla. 1993) (Margate, Florida's summary judgment denied), affd, 56 F.3d 1390 (11th Cir. 1995); Bosley v. Foster, No. Civ. A. 90-2409-L, 1992 WL 40696, at *1 (D. Kan. Feb. 5, 1992) (summary judgment in favor of Kansas City); Curran v. City of Boston, 777 F. Supp. 116 (D. Mass. 1991) (Boston's motion to dismiss denied); Vasquez v. Reid, No. 90 C. 1585, 1990 WL 207456, at *1 (N.D. Ill. Dec. 6, 1990) (Chicago's motion to dismiss denied); Sango v. City of New York, No. 83 CV 5177, 1989 WL 86995, at *1 (E.D.N.Y. July 25, 1989) (New York's summary judgment denied). No liability or potential for liability: Andrews v. Fowler, 98 F.3d 1069 (8th Cir. 1996) (summary judgment in favor of North Sioux City, South Dakota affirmed); Searcy v. City of Dayton, 38 F.3d 282 (6th Cir. 1994) (affirming summary judgment, no evidence that failure to investigate past misconduct caused injury); Wilson v. City of Chicago, 6 F.3d 1233 (7th Cir. 1993) (no municipal liability for inadequate investigation of mis- conduct although investigations inadequate, no deliberate indifference); Vukadi- novich v. Zentz, 995 F.2d 750 (7th Cir. 1993) (affirming jury verdict in favor of City of Valparaiso, no evidence investigation of police misconduct was inadequate); Brooks v. D.R. Scheib, 813 F.2d 1191 (11th Cir. 1987) (verdict against Atlanta reversed, lack of citizen participation in review of misconduct does not show deliberate indifference); Sarus v. Rotundo, 831 F.2d 397 (2d Cir. 1987); Evans v. Avery, No. Civ. A. 94-10194- WGY, 1995 WL 170056, at *1 (D. Mass. Mar. 14, 1995), affd 100 F.3d 1033 (1st Cir. 1996), cert. denied, 117 S. Ct. 1693 (1997); Schuurman v. Town of Nor Reading, No. Civ. A. 90-10692-MLW, 1995 WL 464915, at *1 (D. Mass. June 15, 1995) (North Read- ing's motion for summary judgment granted); Chudzik v. City of Wilmington, 809 F. Supp. 1142 (D. Del. 1992) (summary judgment granted); Taylor v. Canton, Ohio Po- lice Dep't, 544 F. Supp. 783 (N.D. Ohio 1982) (no city liability). 15. 436 U.S. 658 (1978). Monell holds that a municipality may be liable for its unconstitutional policies and customs. Id. at 690-91. 212 FORDHAM URBAN LAW JOURNAL [Vol. XXV to an allegation that the number of past complaints evidences a policy or custom of abusive conduct, a deliberate indifference claim also relies upon evidence of past citizen complaints. In a deliberate indifference case, however, plaintiffs allege that the failure to de- velop a comprehensive system to review citizen complaints amounts to deliberate indifference to a municipality's obligation to supervise employees.