Recent officer-involved shootings and public allegations of police misconduct have sparked legal discussion around accountability for law enforcement. Much of this discussion has come to focus on reforming qualified immunity, a complicated legal doctrine that can shield officers from liability in police misconduct lawsuits. However, plaintiffs may have another option for recourse that does not require grappling with qualified immunity: Under the Monell doctrine, a plaintiff can sue an officer’s municipal employer for promulgating unconstitutional policies or practices that precipitate officer misconduct. Well-established law holds that municipalities are not entitled to either absolute or qualified immunity in actions brought under Section 1983 of the Civil Rights Act of 1871, or through the relevant law used by plaintiffs to seek recovery for alleged violations of their constitutional rights. Therefore, even when an officer is ultimately immune from liability under the doctrines of absolute or qualified immunity, the plaintiff might still be able to make out a valid claim against the officer’s employer.
The Monell doctrine has been invoked as a principle theory of liability in several recent, prominent instances of alleged police misconduct. For example, a trustee for George Floyd’s next of kin recently filed a wrongful death lawsuit in the U.S. District Court for the District of Minnesota not only against the four officers involved in Floyd’s death in their individual capacities but also against the City of Minneapolis for promulgating unconstitutional policies and practices that precipitated Floyd’s death. And recent use-of-force incidents involving Eric Garner, Laquan MacDonald, Freddie Gray and Walter Scott all yielded accelerated settlements with municipalities—presumably, at least in part, because the local governments decided it was better to quickly settle rather than litigate or pay out plaintiffs’ potential Monell claims in addition to their state law tort claims.
Monell equips civil rights plaintiffs with a powerful tool to avoid qualified immunity in seeking recovery in police misconduct lawsuits. But the doctrine has its limitations.
The Foundations of Municipal Liability
Section 1983 of the Civil Rights Act of 1871, codified at 42 U.S.C. § 1983, provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects ... any citizen of the United States ... 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[.]
Section 1983 vests every person with a right to sue a state actor (for example, the local government) operating under the color of law for constitutional violations. For example, plaintiffs claiming that an officer used excessive force might sue the officer under Section 1983 for violating their Fourth Amendment right against unreasonable seizure. In other cases involving police misconduct, plaintiffs might sue under Section 1983 for 14th Amendment equal protection or due process deprivations, for violations of the Eighth Amendment’s prohibition against cruel and unusual punishment, or for violations of a person’s speech and association protections guaranteed by the First Amendment.
For many years, litigants were unable to sue local governments under Section 1983 for police misconduct. In 1961, the Supreme Court made clear in Monroe v. Pape that Congress did not intend municipalities to be included within Section 1983’s meaning of “person.” However, the Supreme Court reversed course in 1978, holding in Monell v. Department of Social Services that “Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.” By overturning its earlier decision in Pape, the Supreme Court exposed municipalities to liability in police misconduct lawsuits involving constitutional violations.
But in extending personhood to local governments, the Monell court made clear that municipalities could not be sued for just any constitutional violation. The court specified that local governments were liable under Section 1983 only to the extent that a formal government policy or an informal custom promulgated by that city’s officials precipitated the alleged constitutional violation. Further constraining the doctrine, the court ruled that local governments could not be held vicariously liable for the acts of their employees under Section 1983. This concept might seem confusing, as Monell liability arises from an officer’s alleged unconstitutional act. However, a plaintiff suing under a Monell theory is not suing the municipality as if it had committed the unconstitutional act—a concept referred to in the law as respondeat superior, meaning “let the master answer.” Instead, a plaintiff must sue the municipality directly for implementing policies or customs that ultimately caused the infringing action.
To illustrate the doctrine’s limitations, consider the wrongful death lawsuit brought by the trustee of George Floyd’s next of kin against the City of Minneapolis. The trustee’s complaint alleges a Fourth Amendment excessive force claim against the four Minneapolis Police Department officers involved in Floyd’s death. In addition, the trustee alleges an independent claim against the City of Minneapolis, asserting, among other claims, that “[t]he written policies and training established and/or approved by The Mayor, the City Council, and the Police Chief constitute the official policy of the City [of Minneapolis] and were the moving force behind and caused [Floyd]’s injuries.” In other words, the trustee directly sued the City of Minneapolis for its own actions that, the trustee alleges, ultimately led to the officers’ misconduct and Floyd’s subsequent constitutional injury.
Since Monell, the Supreme Court has articulated that Monell liability may attach where the local government promulgates (a) a formal policy or (b) an informal custom that has the force of law and (c) fails to train its employees. Consider each element in turn.
Monell Policy Claims
First, a plaintiff can make out a Monell claim by pointing to an official municipal policy that precipitated the alleged injury. Ordinances, regulations and statutes can constitute “policies.” These are the obvious cases. But making out a Monell claim by searching for unconstitutional policies on the government’s books can be quite difficult, though not impossible, in police misconduct lawsuits. After all, most cities do not actively promulgate clearly unlawful policies.
Actions taken by a board or an agency, like a police commission or similar oversight body with delegated authority from a legislature, can also count as “policies” under Monell. Similarly, actions taken by individuals with final policymaking authority concerning the relevant area or issue can constitute a municipal policy. For example, a plaintiff who has sustained a Fourth Amendment excessive force injury might be able to make out a policy under this theory if a court found that a chief of police had final policymaking authority and had promulgated a policy encouraging excessive force. But even plaintiffs who identify a final policymaker may not be able to make out a Monell claim if they cannot point to an underlying policy.
The Supreme Court has also emphasized that Monell attaches under a final policymaker theory only where “a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” For example, in Garner v. Memphis Police Department, the U.S. Court of Appeals for the Sixth Circuit recognized that a use-of-force policy signed by the director of the Memphis Police Department was an official policy under Monell. Even if the policymaker did not directly cause the violation, a plaintiff may still be able to show that the policy attaches to the municipality if the policymaker directed the violation to occur, authorized the violation or ratified a subordinate’s decision that ultimately led to the violation.
In addition to the aforementioned constraints, the court held in City of St. Louis v. Praprotnik “whether a particular official has ‘final policymaking authority’ is a question of state law.” This constraint is particularly relevant in police misconduct suits. In McMillian v. Monroe County, the Supreme Court held that Alabama sheriff-defendants represented the state as a whole, not their individual counties, when executing their law enforcement duties. Thus, the sheriffs did not have final policymaking authority.
Monell Custom Claims
Many police misconduct litigants will attempt to assert Monell liability by claiming that an informal, nonwritten custom caused the constitutional violation. A custom is a practice that is so well settled and followed that it has the force of law, or constitutes the local government’s standard operating procedure. In the police misconduct context, plaintiffs might try to show that a particular agency has a custom of failing to remedy or address excessive force complaints lodged against officers, and that plaintiffs suffered constitutional injuries as a result. Plaintiffs might also try to show that a police department has a discriminatory practice of using force on only certain classes of people.
Because more than one incident is often necessary to show that a custom exists, establishing custom liability can be difficult. For many plaintiffs at the pleading stage, this can be an insurmountable task: Pursuant to the Supreme Court’s holdings in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, plaintiffs’ “complaint[s] must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’”
In a recent case decided in the U.S. District Court for the Northern District of Illinois, the court denied the defendant officers’ motion to dismiss on grounds that the plaintiffs had plausibly stated a Monell custom claim for “fail[ing] to investigate citizen complaints and abdicated its responsibility to train, supervise, discipline, and control its officers.” In their complaint, the plaintiffs provided “concrete examples of acts of retaliation” and other incidents supporting their custom claim. Here, the plaintiffs were able to get beyond the court’s threshold plausibility inquiry, principally because they had access before discovery to information that might help the court identify that a municipal custom plausibly existed. But many other plaintiffs might have access only to their own, firsthand experience at the time they file suit and would therefore be challenged in making it past the pleading stage for claims premised on custom, which could thereby prevent plaintiffs from raising valid Monell claims.
Failure to Train Claims
Finally, Monell liability may attach where a local government failed to train, supervise, discipline or screen its employees. This quasi-independent theory of Monell liability arose in 1989 out of the landmark Supreme Court decision of City of Canton, Ohio v. Harris. In Canton, plaintiff Geraldine Harris was arrested by Canton officers and transported to a police station. Upon arrival, Harris was found sitting on the floor of the police vehicle and was asked if she needed medical attention. Harris remarked something unintelligible, but officers continued to process her without affirmatively providing medical care. Officers roused Harris, but after being brought inside for processing, Harris “slumped to the floor” two more times. Police left Harris lying on the floor “to prevent her from falling again.” Upon Harris’s release from custody, she was transported to a local hospital and diagnosed with several emotional ailments. Harris filed suit against the City of Canton, alleging that the city had failed to adequately train its police force to provide arrestees medical attention while in custody. The Supreme Court held that a city’s failure to train its employees could constitute a “policy” under Monell. However, this policy would attach only where the “failure to train reflects deliberate indifference to the constitutional rights of its inhabitants.” Thus, establishing Monell liability on a failure to train theory is arguably harder because of the additional “deliberate indifference” element.
If plaintiffs can overcome the first hurdle of showing that a custom or policy exists, they then have to show that the policy or custom caused their constitutional injury. In Polk County v. Dodson, the Supreme Court specified further that the municipal policy must be “the moving force of the constitutional violation.” In City of Oklahoma v. Tuttle, the Supreme Court added that “[a]t the very least[,] there must be an affirmative link between the policy and the particular constitutional violation alleged.” Therefore, there may be circumstances where a plaintiff may have a difficult time making out a Monell claim because the policy is too far removed from the alleged violation.
How Have Monell Claims Fared?
In police misconduct lawsuits, Monell liability can in theory provide victims a powerful avenue to be made whole and to deter future law enforcement malfeasance on a systemic level. But in practice, municipal liability under Monell is circumscribed. Several prominent court decisions illustrate how judges apply the doctrine and also highlight many of the challenges plaintiffs may face when bringing Monell claims.
Jones v. City of Martinsburg
On March 13, 2013, Wayne Jones had vigorously resisted officers’ attempts to apprehend him. The officers tased Jones several times, after which Jones brandished a knife and attempted to stab officers while they tried to apprehend him on the ground. After backing away and unsuccessfully ordering Jones to drop his knife, the five responding officers fired 22 shots at Jones, killing him. Jones’s estate sought to hold the City of Martinsburg liable under Monell for failing to train its officers because the officers “had ignored the ‘many options short of shooting and killing Jones.’” The U.S. Court of Appeals for the Fourth Circuit, in its June 2020 opinion, found the plaintiff’s argument unavailing. The panel articulated that although a reasonable jury “could find that the officers’ response violated the [City of Martinsburg’s]” use-of-force policy, the plaintiff could not show that the officers were deliberately indifferent, a necessary requirement in making out a Monell failure to train claim. Because all five officers had acted at once, the court held that the incident “could not have put the City on earlier notice of the need to better train its officers as to the existing use-of-force policy.”
Williams v. Ponik
In June 2014, a Bayonne, New Jersey, police officer observed a large altercation involving 20-30 people in an apartment vestibule. After entering the vestibule and ordering everyone to stop what they were doing, the officer “deployed pepper spray into the air.” Although the officer successfully broke up the altercation, Peter Williams, an attendee, collapsed and was later pronounced dead. Citing six previous complaints that officers had misused pepper spray, Williams’s estate argued that the Bayonne police chief and the city were liable under Monell for “developing and maintaining policies or customs exhibiting deliberate indifference to constitutional rights” or, alternatively, for “failing to train police officers in the use of pepper spray following citizen complaints.” The U.S. Court of Appeals for the Third Circuit affirmed summary judgment against Williams, reasoning that Williams’s estate had failed to show a nexus between the previous complaints and Williams’s incident. The court also found that the city’s existing pepper spray training practices and guidelines did not show that the city or the chief had acted with deliberate indifference.
Jones v. Las Vegas Metropolitan Police Dept.
In the early morning on Dec. 20, 2011, Las Vegas Metropolitan Police Department officer Mark Hatten pulled over Anthony Jones for a traffic violation. Jones fled on foot shortly after being pulled over. The responding officer fired his Taser stun gun at Jones twice, causing Jones’s body to lock up. The responding officer deployed force intermittently against Jones even after backup had arrived, at which point another officer applied his Taser against Jones’s back. Jones became unresponsive following his apprehension and was pronounced dead later that morning. In a subsequent wrongful death suit against the police department, Jones’s family argued that the police department was liable under Monell for “inadequately supervis[ing], train[ing], control[ing], assign[ing], and discipline[ing]” its officers, “fail[ing] to provide appropriate instructions about the use of force, including restraint techniques and taser guns,” and for “condon[ing] the use of excessive force.” The U.S. District Court for the District of Nevada found the plaintiffs’ attempt to establish a Monell custom or failure to train claim on a single incident of misconduct unavailing and granted the department summary judgment.
Kamal v. Township of Irvington
Abdul Kamal was shot and killed by Irvington Township police officers in late 2017. Kamal’s estate filed suit in the U.S. District Court for the District of New Jersey in February 2018 against Irvington, alleging that the chief of police had failed to address complaints concerning excessive force and officer misconduct and, consequently, had “encouraged the use of excessive force by its police officers through their inaction and/or failure to institute policies or practices designed to reduce incidents of the use of excessive force and other constitutional violations by its police officers.” The court found that Kamal’s estate had insufficiently pleaded its Monell claim on three distinct grounds. First, the court held that the plaintiff was unable to hold the township vicariously liable for its employee’s actions. Second, the court found that the plaintiff’s remaining allegations—that the chief of police failed to investigate excessive force complaints—was insufficient to state a plausible Monell custom claim, principally because the plaintiff had failed to show that the chief’s conduct proximately caused the alleged constitutional violation. Third, the court dismissed the plaintiff’s failure to train claim on grounds that the plaintiff’s allegations were conclusory and that plaintiff had “fail[ed] to plead factual grounds that permit the Court to draw a reasonable inference that [Irvington] engaged in the persistent practice of tolerating excessive force.” The U.S. Court of Appeals for the Third Circuit recently affirmed the district court’s holding.
Brown v. Battle Creek Police Dept.
In April 2013, Battle Creek Police Department officers shot Mark and Cheryl Brown’s two pit bulls while executing a search warrant on the Browns’ home. The Browns sued the City of Battle Creek under Monell for failing “to train officers on how to recognize whether a dog is dangerous and how to use non-deadly methods to restrain dogs during search warrant executions[,]” and that such failures “amounted to deliberate indifference that resulted in the death of their dogs.” In particular, they pointed to the city’s lack of a deadly force policy against animals, as well as an unofficial tally system “wherein officers would keep a running list of the animals they shot by putting stickers on their lockers” to brag about their killings. The U.S. Court of Appeals for the Sixth Circuit found unavailing the plaintiffs’ attempt to establish Monell liability. Citing, in part, plaintiff's failure to provide any previous instances of unconstitutional dog shootings, the appellate court found that the district court had not erred in granting summary judgment.
The Future of Monell
Like the qualified immunity doctrine, the Monell doctrine may be due for change. Some observers have called for doctrinal reform, arguing that the Monell doctrine absolves municipalities of financial responsibility for the actions of their employees because municipalities cannot be held vicariously liable. Others have called for procedural reform, advocating for making cities vicariously liable for their officers’ actions but permitting cities to assert a qualified immunity-type defense.
Holding local governments liable places the financial burden incurred by the government on taxpayers. However, as noted by former U.S. Court of Appeals for the Seventh Circuit Judge Richard Posner, the Monell doctrine reflects action by the Supreme Court to “simply having crafted a compromise rule that protect the budgets of local governments from automatic liability for their employees’ wrongs, driven by a concern about public budgets and the potential extent of taxpayer liability.” Whether or not the doctrine is fiscally justifiable depends on each individual’s priorities.
It remains debated whether having the option to recover against a municipality equates to police accountability. If a plaintiff can identify a specific custom, policy or training procedure, then Monell may play a vital role in shaping such practices. But the law enforcement profession necessarily lends itself to discretionary activity; municipalities do not have a policy in place for every possible scenario officers might find themselves in. For this reason, Monell’s impact on the broader question of police accountability is unclear. And if a plaintiff’s goal is to deter a specific officer from engaging in misconduct, Monell might seem like a hollow victory—it is unclear whether damages paid by a city, rather than the officer, might have any effect on future behavior by police.
Correction: A previous version of this piece incorrectly stated that plaintiffs may sue states directly under Section 1983.