Nahmod Law

Those involved in section 1983 litigation know that there are three ways for a local government to be liable in damages for an official policy or custom. Monell v. Dept. of Social Services, 436 U.S. 658 (1978).

(1) The first way is where a local government’s official policy brings about the plaintiff’s constitutional deprivation. For example, a municipal ordinance is an official policy.

(2) The second way is where a local government has an established custom of acting in a certain way.  For example, a local government that regularly uses race as an impermissible factor for making personnel decisions (even if not formalized as such) has a custom of racial discrimination. (A failure to train or supervise can sometimes constitute an actionable official policy or custom as well. City of Canton v. Harris, 489 U.S. 378 (1989)).

(3) The third way a local government’s official policy or custom can be shown is by attribution through a local government’s final policymaker (not merely an official or employee) who acts unconstitutionally. As the Court said in Monell, an official policy or custom can be “made  by … lawmakers or by those whose edicts or acts may fairly be said to represent official policy” (emphasis added).

The question whether an official or employee is a local government’s final policymaker is, according to the Supreme Court, a question of state and local law. Jett v. Dallas Independent. School Dist., 491 U.S. 701 (1989). Since the final policymaker question is so important in section 1983 litigation, who decides the question?

The Eighth Circuit’s Decision in Soltesz v. Rushmore Plaza Civic Center

Following the lead of the Supreme Court in Jett, and consistent with the approach of other circuits, the Eighth Circuit has emphatically ruled that a district court is required to identify a final policymaker under state and local law. In Soltesz v. Rushmore Plaza Civic Center, 2017 WL 490407, * 4 (8^th Cir. 2017), the plaintiff sued a city under section 1983 after his concession stand lease was terminated and his property seized in alleged violation of due process. He based his claim on the decision of a final policymaker. However, the district court failed to identify a final policymaker and allowed the case to proceed over the city’s objections, and the plaintiff prevailed before a jury. Vacating the jury’s verdict and judgment for the plaintiff, and relying on Supreme Court precedent, the Eighth Circuit declared: ‘[N]o legally sufficient evidentiary basis exists to impose liability on a municipality for the decisions of a final policymaker when the district court fails to identify that policymaker.” This was a legal issue for the district court that must be based on state and local law. The jury has no role in this determination.

Comments

There is little question that the Eighth Circuit got it right. It is only when a final policymaker has been identified by the district court using state and local law–a straightforward legal issue not within the competence of a jury–that the jury has a role in determining whether the decision of the final policymaker caused the plaintiff’s constitutional deprivation.

The final policymaker question, as with other local government liability issues, can be incredibly complicated. Still, it must be mastered because respondeat superior liability is not allowed under section 1983 as a matter of federal law. See generally Chapter 6, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017)(West and Westlaw).

So it can be important for plaintiffs to find a way to get deep pocket defendants such as local governments to pay damages for their constitutional deprivations, particularly where individual defendants may be protected by absolute or qualified immunity.