The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

Presenting a live 90-minute webinar with interactive Q&A

Navigating Section 1983 Liability for

Municipalities: Individual/Official Capacity,

Qualified Immunity and Monell Claims

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

TUESDAY, APRIL 4, 2017

Samuel C. Hall, Jr., Shareholder, Crivello Carlson, Milwaukee

Sara C. Mills, Attorney, Crivello Carlson, Milwaukee

Rhonda R. Stowers, Senior Attorney, Plunkett Cooney, Flint, Mich.

Tips for Optimal Quality

Sound Quality

If you are listening via your computer speakers, please note that the quality

of your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory, you may listen via the phone: dial

1-866-961-9091 and enter your PIN when prompted. Otherwise, please

send us a chat or e-mail sound@straffordpub.com immediately so we can

address the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your

participation in this webinar by completing and submitting the Attendance

Affirmation/Evaluation after the webinar.

A link to the Attendance Affirmation/Evaluation will be in the thank you email

that you will receive immediately following the program.

For additional information about continuing education, call us at 1-800-926-7926

ext. 35.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please

complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

Navigating Section 1983 Liability

for Municipalities:

Introduction of Claims

ATTORNEY SARA C. MILLS

Crivello Carlson, S.C.

710 North Plankinton Avenue

Milwaukee, Wisconsin 53203

414. 271.7722

SMills@CrivelloCarlson.com

Introduction:

Liability under 42 U.S.C. § 1983

• 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 …

6

Distilled:

For violations by people acting “under color of

law” who deprive a person of a right, privilege,

or immunity secured by the constitution or a

federal law.

Municipal employees and the municipal

corporate entity may be sued.

7

Frequently Invoked Constitutional

Provisions and Federal Laws

In § 1983 Claims: • First Amendment (free speech, retaliation)

• Fourth Amendment (search and seizure)

• Eighth Amendment (cruel and unusual punishment)

• Fourteenth Amendment (procedural and substantive due

process, equal protection);

• The Civil Rights Acts of 1964 and 1991

• The Americans with Disabilities Act and the Rehabilitation

Act (§ 504) (ADA)

• Individuals with Disabilities Education Act (IDEA)

• CERCLA

• Prison Litigation Reform Act, 42 U.S.C. § 1997e(e).

8

• Racketeer Influenced and Corrupt Organizations Act

(RICO)

• Civil Rights for Women

• Fair Housing Act

• Family Educational Rights and Privacy Act (FERPA)

• Claims under the Telecommunications Act of 1996

• Religious Land Use & Institutionalized Persons Act

(RLUIPA)

• Fair Labor Standards Act, 29 U.S.C. § 203.

9

The plaintiff must allege 1) a deprivation of a

federal right; and 2) that the person who deprived

him of that right acted under color of state law.

See Gomez v. Toledo, 446 U.S. 635, 640 (1980).

A more nuanced reading of the elements: 1) the act in

question was taken by a “pesron”; 2) the person acted

under color of state law; 3) the act was a proximate cause

of 4) a deprivation of a federally protected right.

§ 1983 ELEMENTS:

10

“Under Color of State Law”

• Misuse of power, possessed by virtue of state law and

made possible only because the wrongdoer is clothed

with the authority of state law, is action taken “under

color of” state law.

• See Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102

S. Ct. 2744 (1982).

• “Color of Law” is similar to “Scope of Employment.”

For example, an alderman who physically attacked a

man over illegally parked cars was not “under color

of law.”

– See Wilson v. Price, 624 F. 3d 389 (7th Cir. 2010).

11

• Fourteenth Amendment imposes limitations

only on state action. It does not reach conduct

of federal officials or private parties, no matter

how discriminatory or harmful.

• Court may need to determine whether state

official acted as a private individual (e.g. an

irate spouse or an off-duty police officer).

12

Was the defendant acting in an individual or

official capacity?

– This question is relevant to the elements to be

proven and defenses available.

– Officials may be sued in both their official capacity

and personal capacity. An official may be held

liable personally for damages under § 1983 based

on actions taken in his or her official capacity as

long as the official is sued in his or her individual

capacity.

• See Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358 (1991).

13

• “Individual capacity” and “personal capacity” are

used interchangeably. See, e.g., Hafer v. Melo, 502

U.S. 21. What is relevant is that the officer is being

sued personally/individually for damages that

allegedly arose from his or her official acts.

• Such liability is not limited to acts “taken under color

of state law” that are outside the official’s authority or

not essential to the operation of municipal

government. A municipal official can be personally

liable under § 1983 for acts that are both within

official’s authority and necessary to performance of

government functions. See Hafer v. Melo.

14

Individual/Personal Capacity

• The plaintiff need not establish a connection to

a governmental “policy or custom” in order to

prevail against an official being sued in his

individual/personal capacity.

• Officials sued in their individual/personal

capacities may assert qualified immunity

defense of reasonable reliance on existing law;

this defense may be unavailable to those sued

in their official capacity.

15

Personal Capacity

• In order to prevail on a personal capacity claim under

§ 1983, the plaintiff must generally show that the

official was personally involved in the acts that

resulted in the constitutional deprivation, and the

inquiry into causation must focus on the duties and

responsibilities of each of the individual officials

whose acts or omissions are alleged to have resulted

in a constitutional deprivation.

• See Berry v. Leslie, 767 F.3d 1144 (11th Cir. 2014).

16

Official Capacity

• The word “person” in § 1983 does not include

the states or state officials acting in their

official capacities.

• A § 1983 suit against a government official in

his official capacity generally represents only

another way of pleading an action against the

entity of which an officer is an agent– the real

party in interest is the municipal entity.

17

Official Capacity and the

Eleventh Amendment

• A § 1983 action against a state official in his or

her official capacity should be regarded as a

suit against the State itself and is therefore

usually barred by the Eleventh Amendment’s

grant of sovereign immunity.

18

Ex parte Young Doctrine

• Section 1983 permits—and the Eleventh

Amendment does not bar—official-capacity

suits that seek prospective injunctive relief

against state officials. – See Ex parte Young, 209 U.S. 123 (1908); see also

Williams v. Wisconsin, 336 F.3d 576, 581 (7th Cir. 2003).

• To come within the Young doctrine, plaintiff must

establish ongoing violations of federal law and seek

prospective relief.

19

Young Doctrine, Cont.

• Plaintiff must name as defendant the state official

who is responsible for enforcing the contested statute

in her official capacity; a claim for prospective relief

against the state itself, or a state agency, will be

barred by the Eleventh Amendment.

• Young doctrine does not apply to state law claims that

are pendent (“supplemental”) to the § 1983 claim.

Supplemental state law claim that seeks to compel the

state to comply with state law is barred by Eleventh

Amendment.

– See Pennhurst v. Halderman, 465 U.S. 89 (1984).

20

Official Capacity

• The Young Doctrine has enabled Monell actions.

• A plaintiff may recover damages from a governmental entity

under § 1983 only where his or her constitutional injuries are

caused by execution of the entity’s policy or custom, whether

made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy. See Monell v. Dept.

of Social Services of City of New York, 436 U.S. 658, 98 S.Ct.

2018 (1978).

• Different than vicarious liability. A governmental entity

cannot be held vicariously liable under § 1983 for

constitutional violations committed by its agents or employees.

21

QUALIFIED IMMUNITY

Available to officials sued in their individual

capacities when they are able to demonstrate that

the complained of act did not violate a clearly

established constitutional or federal statutory right

of which a reasonable person would have known.

• Immunity not just from liability but from suit.

– See Mitchell v. Forsyth, 472 U.S. 511 (1985).

– That the official may have violated a clearly

established state law is generally irrelevant. See Davis

v. Scherer, 468 U.S. 183 (1984).

22

OBJECTIVE TEST

• Qualified immunity is available to an official who

acted in an objectively reasonable manner.

• Supreme Court has described the qualified immunity

test as “fair warning” standard: if federal law is

clearly established, official is on notice that violation

may lead to personal monetary liability. See Hope v.

Pelzer, 536 U.S. 730 (2002).

• Public officials “are not liable for bad guesses in grey

areas; they are liable for transgressing bright lines.”

– Maciariello v. Sunner, 973 F.2d 295, 298 (4th Cir. 1992).

23

• There is no federal statute of limitations for §

1983 claims.

• 42 U.S.C. § 1988(a) requires federal courts to

borrow a state’s limitations period for personal

injury actions.

• The governing limitations period for federal

court § 1983 actions may differ from state to

state.

STATUTE OF LIMITATIONS

24

• Accrual is question of federal law.

• § 1983 claims generally accrue when plaintiff

knows or has reason to know of the injury that

is the basis of her claim.

• Courts seek to determine “what event should

have alerted the typical lay person to protect

his or her rights.” See, e.g., Chardon v.

Fernandez, 454 U.S. 6 (1981).

25

SOL and Relation Back

• Most courts hold that amendment of a

complaint substituting a John Doe defendant

with names of actual municipal officers does

not relate back to the filing of the original

complaint.

• Lack of knowledge about the names of alleged

wrongdoer is not a “mistake” under FRCP

15(c).

26

Defenses

• Vast range of defenses available depending on

the specific constitutional right or federal law

asserted as basis of claim.

• Defenses applicable to most or all § 1983

claims include statutes of limitation, qualified

immunity, absolute immunity

– Absolute immunity available to judges,

prosecutors, witnesses, legislators but not

executive or administrative officials

27

• Exhaustion of remedies:

– State administrative and judicial remedies

generally need not be exhausted in order to bring

suit under § 1983.

• BUT, Prison Litigation Reform Act requires prisoners to

exhaust administrative remedies before bringing suit to

challenge conditions of confinement.

– Heck Doctrine: in order to seek damages on a §

1983 claim that necessarily implicates the

constitutionality of claimant's conviction or

sentence, claimant must show that conviction or

sentence has been overturned.

28

• Preclusion: Under the full faith and credit

statute, 28 U.S.C. § 1738, federal courts in §

1983 actions must give state court judgments

the same preclusive effect they would receive

in state court under state law. See San Remo

Hotel v. San Francisco, 545 U.S. 323(2005).

– applies even as to claims that could have been, but

were not, litigated in the state court proceeding, if

state preclusion law encompasses the doctrine of

claim preclusion. See Migra v. Warren City Sch.

Dist., 465 U.S. 75 (1984).

29

• Notice of claim rules generally do not apply to

§ 1983 claims. See Felder v. Casey, 487 U.S.

131 (1988).

30

Causation

• Proximate cause is required in § 1983 claims. – Martinez v. California, 444 U.S. 277 (1980).

• Often a substantial issue in claims based upon

inadequate training, supervision, or hiring.

– the municipal policy or practice must be the

“moving force,” “closely related,” “direct causal

link,” or “affirmatively linked” to the deprivation

– See Board of County Commissioners of Bryan

County v. Brown, 520 U.S. 397 (1997)

31

• A § 1983 defendant may be held liable for

“reasonably foreseeable consequences attributable to

intervening forces, including acts of third parties.”

– See Warner v. Orange County Dep't of Probation, 115 F.3d

1068, 1071 (2d Cir. 1996).

• A § 1983 defendant may not be held liable when an

intervening cause was not reasonably foreseeable, or

when the link between the defendant's conduct and

the plaintiff's injuries is too remote, tenuous, or

speculative. Martinez v. California, 444 U.S. 277 (1980).

32

State of Mind

• § 1983 has no state-of-mind requirement.

• § 1983 is vehicle by which federal rights are

enforced in the courts system, but it does not

create the federal right and is not source of any

substantive law shaping contours of those

federal rights.

– See Daniels v. Williams, 474 U.S. 327 (1986).

– Specific state of mind requirement may be

imposed by the specific constitutional claim that

plaintiff seeks to vindicate in § 1983 action.

33

“[Section]1983, unlike its criminal counterpart,

18 U.S.C.A. § 242, contains no state-of-mind

requirement independent of that necessary to

state a violation of the underlying constitutional

right. We adhere to that conclusion. But in any

given § 1983 suit, the plaintiff must still prove a

violation of the underlying constitutional right;

and depending on the right, merely negligent

conduct may not be enough to state a claim.”

– Daniels v. Williams, 474 U.S. 327, 329–30 (1986).

34

Questions will be addressed at the

conclusion of the presentation.

Thank you.

35

Latest Cases and Trends in

Section 1983 Litigation

Attorney Samuel C. Hall, Jr.

OVERVIEW

• Use of Force in the Jails

• Deadly Force Developments

• Use of Electronic Control Devices

• Qualified Immunity

• Body Camera Implications

37

Use of Force in the Jails

• Kingsley v. Hendrickson, 576 U.S. ---,

135 S.Ct. 2466 (2015).

38

Use of Force in the Jails

• The scope of an individual’s right to be free from

punishment and the basis for an excessive force

claim hinges on his status within the criminal

justice system.

• The Fourteenth Amendment Due Process

clause provides protection against “punishment”

of pretrial detainees.

39

Use of Force in the Jails

• Kingsley was arrested in 2010 on a drug charge and detained at the

Monroe County Jail.

• During a routine cell check, an officer noticed a piece of paper

covering the light fixture. The officer told Kingsley to remove the

piece of paper – Kingsley refused. During the course of the

evening, other officers also ordered Kingsley to remove the paper –

Kingsley refused.

• Ultimately, the Jail Administrator also ordered that Kingsley remove

the piece of paper. When Kingsley refused, the Jail Administrator

informed Kingsley that the piece of paper would be removed and

that Kingsley would have to be transferred to a receiving cell while

this occurred.

40

Use of Force in the Jails

• Four officers approached Kingsley’s cell, ordered him to stand up

and back up to the cell door with his hands behind him. Ultimately,

Kingsley refused to comply and he was handcuffed and forcibly

removed from his cell. The officers allegedly carried Kingsley with

his arms handcuffed behind his back and placed him face down on a

bunk in the receiving cell.

• At some point in the process of attempting to remove Kingsley’s

handcuffs, Kingsley resisted to at least some degree and ultimately

a TASER® was applied to Kingsley’s back for approximately five

seconds. Kingsley alleges that after the TASER® deployment, he

was left alone, face down in handcuffs, for 15 minutes.

41

Use of Force in the Jails Kingsley brought several claims, including an excessive force claim in

violation of the Fourteenth Amendment’s Due Process Clause.

Summary judgment on the excessive force claim was denied based on

material factual disputes.

The case proceeded to a jury trial on the excessive force claim. At the

conclusion of the trial, the judge instructed the jury that a Fourteenth

Amendment excessive force claim required proving that the force was

applied “recklessly.” Thus, the judge instructed that there was an intent

requirement that the officers “knew that using force presented a risk of

harm to the plaintiff, but they recklessly disregarded the plaintiff’s

safety.”

The jury returned a verdict in favor of the officers.

42

Use of Force in the Jails • On appeal, through a 2-1 divided panel, the Seventh Circuit Court of

Appeals affirmed the jury’s finding and concluded that the lower

court’s instructions to the jury were consistent with Seventh Circuit

precedent, while acknowledging that a split in the circuits existed on

this issue.

• The Supreme Court of the United States accepted review of the

case and reversed the Seventh Circuit Court of Appeals by a 5-4

vote.

• The Court’s focused on the question of whether a Fourteenth

Amendment use of force case should be judged based on an

objective or subjective standard.

• The Court reiterated that all Fourteenth Amendment use of force

cases should be evaluated through an objective standard.

43

Deadly Force Developments

• County of Los Angeles v. Mendez

– U.S. Supreme Court Case No. 16-369

– Argued March 22, 2017

• Ninth Circuit Citation: 815 F.3d 1178 (9th Cir. 2016)

• Ninth Circuit’s “Provocation Rule”

44

Deadly Force Developments • In October of 2010, officers responded to a sighting of a

wanted parolee who was believed to be armed and

dangerous.

• The manhunt took officers to a 7 x 7 shack outside of a

home.

• Officers saw a silhouette of a man holding a gun (later

found to be a BB gun) through a blanket that was

hanging to provide insulation for the shack.

• Officers opened fire – shooting 15 times. Both Mr. and

Mrs. Mendez were hit by the gunfire. 45

Deadly Force Developments • The district court concluded that the gun was pointed in

the direction of officers, such that the use of deadly force

was justified as a matter of law.

• However, the district court found that the officers were

nonetheless liable under the Ninth Circuit’s “Provocation

Rule” due to the unlawful entry and failure to follow the

“knock and announce” rule. The court awarded $4

million in damages.

• On appeal, the Ninth Circuit affirmed in key parts and

denied qualified immunity.

46

Electronic Control Devices

Estate of Armstrong v. Village of Pinehurst, 810 F.3d

892 (4th Cir. 2016), cert. denied, 137 S.Ct. 61 (Oct. 3,

2016).

Plaintiff alleged Fourth Amendment excessive force claim

against officers and also named Taser International as a

Defendant.

47

Electronic Control Devices Arrestee allegedly suffered from bipolar

disorder and paranoid schizophrenia.

Armstrong resisted by holding onto a pole, so

officers deployed ECD in drive-stun mode 5

times within two-minutes.

Armstrong was eventually removed from pole,

but continued to struggle while being

handcuffed.

48

Electronic Control Devices After handcuffing and leg shackles were applied,

Armstrong stopped moving and eventually died.

Applicable Fourth Circuit Standards:

Police may only use an ECD when an objectively

reasonable officer would conclude that the

circumstances present a risk of immediate danger that

could be mitigated by the use of the ECD.

“’Physical resistance’ is not synonymous with ‘risk of

immediate danger.’”

49

Electronic Control Devices Unique scenario where a successful party in the

Court of Appeals, sought certiorari in the

Supreme Court.

Supreme Court denied certiorari on October 3,

2016.

50

Qualified Immunity Developments

• The Supreme Court of the United States recently held:

In the last five years, this Court has issued a number of

opinions reversing federal courts in qualified immunity cases. The

Court has found this necessary both because qualified immunity is

important to society as a whole and because as an immunity from suit,

qualified immunity is effectively lost if a case is erroneously permitted

to go to trial.

White v. Pauly, 580 U.S. ---, 137 S.Ct. 548, 551-552 (Jan. 9, 2017) (internal

quotations and citations omitted) (per curiam).

51

Qualified Immunity Developments

• City and County of San Francisco v. Sheehan, 135

S.Ct. 1765 (2015).

• Johnson v. Jones, 515 U.S. 304 (1995)

vs.

• Behrens v. Pelletier, 516 U.S. 299, 312-313 (1996)

(“[d]enial of summary judgment often includes a

determination that there are controverted issues of

material fact and Johnson surely does not mean that

every such denial of summary judgment is non-

appealable.”).

52

Body Cameras

• Issues and Solutions:

– Legal

– Administrative

– Operational

– Labor

• Concerns with:

– Collecting

– Storing

– Using

– Disseminating

53

Body Cameras Some Items to Consider: •Citizen Privacy Concerns

•Obtaining grants for body-worn cameras

•Location of camera(s)

•Developing policy (i.e., activation, downloading, disciplinary issues)

•Identifying collective bargaining/labor concerns

•Identifying First Amendment concerns (what can be recorded and then released?)

•Handling Freedom of Information Act (FOIA) or Wisconsin Open Records requests

•Maintaining evidence credibility (spoliation, retention, redaction issues)

•Recording concerns (witnesses, juveniles, bathroom breaks, domestic situations, etc.)

•Storage concerns (1st and 2nd tier storage, hybrid) / Hacking Concerns

•Discipline concerns/Collective Bargaining Concerns

•Report writing concerns (view the video before or after writing reports)

•Training and performance-based testing

•Internal Affairs use of camera-based video and recordings

•How body-worn cameras can inhibit investigations

•Harassment and stalking issues

•Cameras and their impact on officer productivity

•Cameras and the need for specialized training

54

QUESTIONS

shall@crivellocarlson.com

THANK YOU

55

Municipal Liability Under 42 U.S.C. § 1983

Presented by

Rhonda R. Stowers

Today’s Presenter

Rhonda R. Stowers (810) 342-7003 rstowers@plunkettcooney.com

57

Seminal Decision

Monell v. Department of Social Services,

436 U.S. 658 (1978)

Held: that

Congress intended

municipalities to be

“persons” to whom

§ 1983 applies

58

Application

Does not apply to states and state entities

(11th Amendment immunity)

Primary question: Is the state

or a state entity being sued?

– Answer varies by state

Requires the deprivation of a federally

protected right

Continued

59

Application

If municipal official/employee is dismissed

because no violation occurred, no liability

If municipal official/employee was dismissed

because law was not clearly established,

liability is possible

No respondeat superior – cannot be held liable

solely because municipality employed a

tortfeasor, municipality must have caused the

constitutional violation through its own

policy/custom.

60

Policy / Custom

Official written policy or procedure causes

deprivation

Policymaker directs particular action causing

the deprivation

There is an omission of an obvious need

(i.e., failure to train/supervise).

There is obvious pattern/course of

(mis)conduct that is ignored (i.e., failure to

discipline).

61

Failure to Train /

Supervise / Discipline

Need for more/different

training, supervision,

and discipline so

obvious that failure to

do so constitutes

“deliberate

indifference:”

Continued

62

Failure to Train /

Supervise / Discipline

– requires pattern of behavior –single incident

will not establish liability unless actor was

policymaker

– question is whether failure rendered violation

inevitable, not whether there could have

been more/better training, supervision or

discipline

Continued

63

Failure to Train /

Supervise / Discipline

Is there a clear and persistent pattern of

unconstitutional conduct?

Did municipality have notice/constructive

notice?

Did municipality expressly/tacitly approve of

conduct?

Was it the cause of the violation?

64

Deliberate Indifference

Stringent standard of

fault

Sloppy/reckless is

insufficient

Mere negligence is insufficient

Must disregard a known/obvious

consequence

65

Note: Supervisory Liability

Individual liability possible for failure to

train/supervise

Supervisor not liable simply

because he/she is

a supervisor.

Continued

66

Note: Supervisory Liability

Mere awareness of conduct/failure to act is

not sufficient

Must have encouraged the specific

misconduct or directly participated

Standard of liability even higher than

municipal liability – personal involvement

67

Tips for Successful Defense

Document training/discipline

Investigate allegations of

misconduct – refer to outside

agency if appropriate

Encourage good report writing

Be aware of potential patterns of misconduct

Make good use of statistics

68

69