From "The Florida Bar Journal"
By: Thomas P. Scarritt, Jr. and Robert Stoler
The number of cases involving civil rights litigation as a result of alleged police misconduct has grown exponentially within recent years. The plethora of case law arising from this surge of litigation has made civil rights one of the most rapidly expanding areas of the law. This article will provide a brief overview of the law concerning liability of a sovereign in police misconduct cases brought pursuant to 42 U.S.C. subsection 1983. The vast number of issues raised in civil rights actions obviously precludes an exhaustive analysis. However, the article will explore the basic burden of proof requirements and some defenses which are available in this type of claim.
Policy or Custom Requirement
Section 1 of the Civil Rights Act of 1871, Rev. Stat. subsection 1979, now codified as 42 U.S.C. subsection 1983 (1982 ed.), creates a remedy for violations of civil rights committed by persons acting under color of state law.1 42 U.S.C. subsection 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State...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.2
U.S. Supreme Court jurisprudence has established the guidelines by which a sovereign can be held liable for the actions of its police officers in subsection 1983 suits. In the landmark case of Monell v. New York City Department of Social Services, 98 S. Ct. 2018 (1978), the Supreme Court held that, in order to sustain a claim for violation of one's civil rights as a result of discrimination, a claimant is required to allege and prove a citywide policy or custom of discrimination.3 This requirement similarly applies to subsection 1983 actions stemming from allegations of police misconduct.4 Additionally, courts have held that a plaintiff is required to establish that the alleged policy or custom was the "moving force behind the constitutional violation" alleged.5 In this regard, a sovereign cannot be held liable for alleged constitutional deprivations at the hands of individual police officers under subsection 1983 solely on the basis of respondeat superior.6
Inadequate Training Claim
Because it is often difficult for a civil rights claimant to establish any specific policy or custom which the sovereign has "officially sanctioned or ordered,"7 many claimants in police misconduct cases resort to asserting that constitutional violations occurred as a result of the sovereign's failure to train its officers. This claim was specifically addressed by the U.S. Supreme Court in City of Canton v. Harris 109 S. Ct. 1197 (1989), where the Court stated "[O]nly where a municipality's failure to train its employees in a relevant respect evinces a 'deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a City 'policy or custom' that is actionable under subsection 1983."8
The recent case of Rivas v. Freeman, 940 F 2d 1491 (11th Cir. 1991), illustrates the "deliberate indifference" standard in the context of a sovereign's alleged failure to ensure adequate training of its officers. In that case, Rivas was a passenger in an automobile which was stopped by a sheriff's deputy in Marathon, Florida.9 Although Rivas produced a Florida drivers license, a U.S. Immigration and Naturalization card, and a Social Security card, the deputy was given information that an individual with a similar description and name was under supervision by the Florida Department of Corrections, Probation, and Parole Services. Without checking the department's records in order to confirm the status of the probationer, the deputy was given instructions by an individual from the department to arrest Rivas.10 Rivas thereafter remained in prison for six days following his initial stop. It was later determined that the wrong person had been arrested, and he was released.11
Rivas subsequently initiated a subsection 1983 action against the individual deputies, members of the Department of Corrections, and the Sheriff of Monroe County, among others. Following a bench trial, the court awarded him $100,000 in compensatory damages, and the sheriff and the deputies appealed.12
Although the 11th Circuit reversed the lower court's ruling against the deputies, the judgment against the sheriff was affirmed on the grounds that he failed to establish "sufficient and appropriate procedures and policies regarding identification of arrestees, warrantless searches, and computer checks for information."13 At trial, it was shown that the sheriff was the individual who was directly responsible for creating policies and customs concerning identification of suspects, and that he had failed to establish any such policies or customs. Evidence was presented that the lack of policies and procedures caused plaintiff's arrest and incarceration.14
The Rivas court held that the sheriff could be held liable due to the existence of improper policies, or from the absence of an adequate policy.15 Because Rivas alleged and proved that the lack of policies or procedures concerning identification and incarceration of suspects resulted in a "deliberate indifference" to his constitutional rights, judgment against the sheriff was affirmed.16
Negligence Alone Insufficient Under subsection 1983
In Rivas, the sheriff's lack of policies was found to amount to "deliberate indifference" to Rivas' constitutional rights. However, the court noted that Rivas could not have prevailed had he only proved that the sheriff was negligent, pursuant to the Supreme Court's holding in Daniels v. Williams, 106 S. Ct. 662 (1986). In that case, the Supreme Court held that negligent conduct alone was insufficient to impose liability in a subsection 1983 action.17
In Daniels, a prison inmate brought a subsection 1983 claim against the deputy sheriff to recover for injuries allegedly sustained when he slipped and fell on jail stairs. The district court granted the deputy's motion for summary judgment, and the court of appeals affirmed.18 In affirming the Fourth Circuit Court of Appeals' holding that allegations of negligence cannot result in a deprivation within the meaning of the due process clause, the Daniels Court stated:
Far from an abuse of power, lack of due care, such as respondent's alleged negligence here, suggest no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the due process clause would only trivialize the centuries-old principle of due process of law.19
Cases which followed Daniels have extended the Court's exclusion of negligence actions to fact patterns which involve the alleged failure to protect a prison inmate from another inmate,20 and the alleged negligence of an officer who arrested a pretrial detainee who committed suicide.21 Accordingly, it appears that the question of whether a particular action will be sustained in the context of subsection 1983 depends largely on the pleader's classification of the facts giving rise to the action. See, e.g., Partridge v. Two Unknown Police Officers of the City of Houston, Texas, 791 F.2d 1182 (5th Cir. 1986) (subsection 1983 complaint of parents of pretrial detainee who committed suicide satisfactorily alleged a claim for failure to staff, train, and supervise detention center); Ramirez v. Garcia, 898 F.2d 224 1st Cir. 1990) (negligence-based complaint alleged sufficient facts which a jury could feasibly conclude constituted a violation of the due process clause); Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797 (11th Cir. 1988) (allegation that plaintiff was never provided with court ordered evaluation necessary for involuntary placement in mental treatment facility stated claim for relief under subsection 1983); Taylor v. Ledbetter, 818 F.2d 791 (11th Cir. 1987) (allegation that state and county officials were grossly negligent and deliberately indifferent in placing a child with abusive foster parents stated claim for relief under subsection 1983).
Eleventh Amendment Sovereign Immunity
Absent waiver by the state, the Eleventh Amendment to the U.S. Constitution prohibits suits in federal court against the state which are brought by citizens of another state.22 Additionally, the Eleventh Amendment has long been interpreted to preclude suits against the state by citizens of that state.23 In the context of subsection 1983 actions, the Eleventh Amendment will bar pendent state law claims against the state as well as claims which arise from alleged constitutional violations.24
Immunity for States Only
In order to determine whether a sovereign can enjoy the "jurisdictional bar"25 afforded by the amendment, the initial determination to be made is whether the suit is one against a state official, agency, entity, or the state itself.26
Courts have long recognized that the Eleventh Amendment bar cannot be circumvented by simply naming an individual state official or agency as a nominal defendant, where the state is in fact the real party in interest.27 Accordingly, courts will look at several factors in making the determination of whether the state is the "real party in interest," and therefore entitled to the protection of the Eleventh Amendment.
One of the many factors in this determination is the source of the damages which are sought. The 11th Circuit has held " "[W]here the damages sought clearly would come from the public treasury and not from the named individual defendant, it is impossible to maintain the fiction that the suit is not against the state."28
The recent case of Hufford v. Rodgers, 912 F.2d 1338 (11th Cir. 1990), illustrates the application of this principle. In Hufford, a mother brought a subsection 1983 claim against a county sheriff and deputies after an improper seizure of her child.29 After a jury trial, the jury returned a verdict against the sheriff only.30
On appeal, the sheriff argued that plaintiff's claim was barred under the Eleventh Amendment. The 11th Circuit rejected his argument, noting that the Florida Constitution enumerates the office of "sheriff" as a "county officer."31 The Hufford court also found that Florida statutes permit sheriffs to control the day-to-day operations of their office, the county pays the sheriff's salary, county taxes fund the sheriff's budget, and that no provisions of Florida law allocated state moneys to a Florida sheriff in order to satisfy a judgment against the sheriff.32 Accordingly, the court concluded that the sheriff was acting as a county official alone, and was not entitled to the immunity afforded by the Eleventh Amendment.33
Counties and Municipalities Excluded
As noted in Hufford, courts will construe the Eleventh Amendment to extend only to actions against a state or its agencies. The Eleventh Amendment will not immunize municipalities, counties, and other "discrete political subdivisions that are sufficiently independent from the state." These entities must therefore limit their defenses to the merits of a civil rights plaintiff's claim.34 See, e.g., Draper v. Coombs, 792 F.2d 915 (9th Cir. 1986) (damages claimed against city and local police officers under subsection 1983 did not involve Eleventh Amendment concerns); Thornquist v. King, 626 F.Supp. 486 (M.D. Fla, 1985) (Eleventh Amendment immunity extends to states and state officials, but not to independent political entities such as counties or municipalities.)
Although the express language of subsection 1983 appears to be an all-embracing reference to "the Constitution," it should be noted that the Supreme Court declined to give it a broad interpretation for several years.35 Upon review of cases which follow Monell,36 it becomes apparent that the Supreme Court has expanded the scope of a civil rights claimant's recovery under subsection 1983, but limited procedural aspects with regard to the "policy or custom" requirement, and further instilled limitations with regard to negligence-based actions and availability of sovereign immunity defenses. As the case law continues to define the scope of subsection 1983, it will be interesting to see how courts further interpret the act.
1 Howlett by and through Howlett v. Rosa, 100 S. Ct. 2430, 2433 (1990).
2 42 U.S.C. subsection 1983 (1982).
3 Monell v. New York City Department of Social Services, 96 S. Ct. 2018, 2035-36 (1978).
4 See, e.g., Rivas v. Freeman, 940 F.2d 1401 (11th Cir. 1991).
5 City of Canton v. Harris, 109 S. Ct. 1197, 1199 (1989).
6 City of St. Louis v. Peaprotnik, 108 S. Ct. 915, 925, n. 2 (1988).
7 Pembauer v. Cincinnati, 106 S. Ct. 1292, 1297-1298 (1985).
8 City of Canton v. Harris, 109 S. Ct. 1197, at 1205 (1989). Accord. Zetler v. Wainwright, 802 F.2d 397 (11th Cir. 1986); Arthur v. Hillsborough County Board of Criminal Justice; ____ So.2d _____, 16 F.L.D. 1299, 1299 (Fla. 2d C.A. May 8, 1991).
9 Rivas, 940 F.2d at 1492.
10 Id. at 1493
12 Id. at 1494
13 Id. at 1495
16 Id. at 1495
17 Daniels v. Williams, 106 S. Ct. 662, at 663 (1986); See also Parrott v. Taylor, 101 S. Ct. 1908 (1961); Green v. Inman, 539 So. 2d 816 815 (Fla. 4th D.C.A. 1989).
18 Daniels, 106 S. Ct. at 652.
19 Id. at 663. See also Kamenesh v. City of Miami, _____ So. 2d _____, 5 F.L.W. Fed. D449, D454, (S.D. Fla. July 15, 1991).
20 Davison v. Cannon, 106 S. Ct. 868 (1986).
21 Partridge v. Two Unknown Police Officer of the city of Houston, Texas, 791 F.2d 1182 (5th Cir. 1986).
22 "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects or any foreign state." U.S. CONST. amend.XI.
23 Edelman v. Jordan, 94 S. Ct. 1347, 1350-61 (1974); Case v. Oldham, 707 F.2d 1176, 1190 (11th Cir. 1983)
24 See, e.g., Gelber v. Rozas, 584 F.Supp. 902, 904 (S.D. Fla 1984).
25 Edelman, 94 S, Ct. at 1363.
26 Cate, 707 F.2d at 1181.
27 Ronwin v. Shapiro, 857 F.2d 1071, 1073 (9th Cir. 1981).
28 Cate, 707 F.2d at 1181. Other considerations include the role of the office of entity in the state constitution, whether the entity has any existence independent of the state, and whether the defendant is a policymaker for its territory. Bailey v. Wictzack, 735 F.Supp. 1016, 1019-1020 (M.D. Fla. 1990).
29 Hufford v. Rodgers, 912 F.2d. 1338 at 1340 (11th Cir. 1990).
31 Id. at 1341.
32 Id. at 1341-1342.
33 Id. at 1342. But see Parker v. Willis, 862 F.2d 1471, 1480 (11th Cir. 1989) (Alabama county sheriff was not state employee and entitled to Eleventh Amendment immunity, but could be considered as county official in performance of some functions.
34 Schopler v. Bliss, 903 F.2d 1373, 1378 (11th Cir. 1990).
35 DAVID P. CURRY, FEDERAL COURTS (1983), citing Carter v. Greenhow, U.S.Ct. 928, 932 (1985) (no cause of action stated under subsection 1983's predecessor by complaint based upon refusal of tax collector to accept bond coupons in satisfaction of taxes); Holt v. Indiana Manufacturing Company, 20 S. Ct. 272, 274 (1800) (complaint failed to state a claim for relief that state taxes upon federally granted patent rights violated due process and equal protection clauses),
36 Monell v. New York city Department of Social Services, 98 S. Ct. 2018 (1978).
This column is submitted on behalf of the Trial Lawyers Section, Jean A Bice, chair, and Samuel R. Mandelbaum, editor.