New Supreme Court Section 1983 Municipal Liability Decision: Los Angeles County v. Humphries
It is section 1983 black letter law after Monell v. Department of Social Services, 436 U.S. 658 (1978), that a local government can only be liable in damages when its official policy or custom was responsible for the plaintiff’s constitutional deprivation. Respondeat superior liability is not a proper basis for local government liability under section 1983.
But suppose that a plaintiff seeks prospective (declaratory and/or injunctive) relief against a local government under section 1983: is the official policy or custom requirement still in play, or is it applicable only to section 1983 damages actions? Further, if the official policy or custom requirement applies to prospective relief actions against local governments as well, does it matter whether the local government is sued for prospective relief in its own name or in the name of an official?
Los Angeles County v. Humphries
In Los Angeles County v. Humphries, 131 S. Ct. — (2010), the Supreme Court held that the official policy or custom requirement does indeed apply to prospective relief actions brought against local governments sued in their own names.
In this case, the plaintiffs, accused but later exonerated of child abuse, sued the attorney general of California, the Los Angeles County sheriff, two detectives in the sheriff’s department and Los Angeles County, and sought damages and prospective relief against all of them. They sought this relief because they were unable to have their names removed from a state-mandated Child Abuse Central Index even after they were exonerated. Ultimately, the Ninth Circuit held that the state was required by procedural due process to provide those included on the Index with notice and some sort of hearing; that the plaintiffs were entitled to declaratory relief against all of the defendants; and that they were prevailing parties entitled to attorney’s fees under 42 U.S.C. section 1988 against all of the defendants, including Los Angeles County.
The County had argued that it was not responsible for any portion of the attorney’s fees awarded because it was not liable for prospective relief to the plaintiffs. The County had contended that it was state policy, not county policy, that caused the plaintiffs’ constitutional deprivation. However, the Ninth Circuit rejected the County’s argument that it was not liable for any attorney’s fees because “in our circuit … the limitations to liability established in Monell do not apply to claims for prospective relief” of the sort ordered here.
The Supreme Court Reverses
In an opinion by Justice Breyer (8-0, with Justice Kagan not participating), the Supreme Court reversed, stating: “We conclude that Monell‘s holding [requiring an official policy or custom] applies to section 1983 claims against municipalities for prospective relief as well as to claims for damages.”
In rejecting the plaintiffs’ arguments for a bifurcated reading of section 1983 that depended on the remedy sought, the Court relied on the rationale of Monell, on section 1983’s legislative history as recounted in Monell and on section 1983’s causation language that precluded respondeat superior liability generally.
Interestingly, the Court conceded that its holding might have limited practical significance if the plaintiffs were correct that “a court cannot grant prospective relief against a municipality unless the municipality’s own conduct has caused the violation.” Nevertheless, it would only create added confusion if the Court were to adopt a “bifurcated relief-based approach to municipal liability that the Court has previously rejected.”
1. Humphries will likely have no real impact outside of the Ninth Circuit. As the Court noted, the four other circuits addressing the issue–the First, Second, Fourth and the Eleventh–already apply Monell‘s official policy or custom requirement to prospective relief.
2. It has always been a good idea for plaintiffs in all section 1983 cases to make clear whether they are suing individuals personally, local governments or both.
Thus, in the damages setting, an individual capacity damages action is an action against the individuals personally, thereby triggering an inquiry into absolute and qualified immunity, not official policy or custom. In contrast, an official capacity damages action is an action against the relevant governmental entity, thereby triggering an inquiry into the existence of an official policy or custom where the relevant governmental entity is a local government (however, an official capacity section 1983 damages action against a state official is a damages action against the state and will be dismissed because a state is not a suable person–see Will v. Department of State Police, 491 U.S. 58 (1989)).
Too often, as I have cautioned in my presentations to attorneys, section 1983 plaintiffs seeking damages create confusion for themselves, defendants and courts when they do not make clear just whom they are suing.
It now makes similar sense, after Humphries, for section 1983 plaintiffs seeking prospective relief against a local government to sue the local government in its own name to avoid any confusion about the official policy or custom requirement.
3. Quere, though: suppose a section 1983 plaintiff sues a local government official for prospective relief, rather than the local government in its own name. Does Humphries mean that an official policy or custom is still required? Does it matter whether the prospective relief is in effect directed at the local government? If it is, that suggests that the official policy or custom requirement should apply.
But could there still be situations, even after Humphries, where a local government official alone and independently, and not pursuant to an official policy or custom, is engaging in the allegedly unconstitutional conduct that is the object of the section 1983 prospective relief action against the official?
In thinking about this question, recall the fiction of Ex Parte Young, 209 U.S. 123 (1908), that a state official sued for prospective relief is somehow stripped of his official capacity and is in effect sued in his personal capacity. Ex Parte Young may suggest that the answer to this last question is yes.