Nahmod Law

Clearly Settled Law and Municipal Liability for Failure to Train: Erroneous Circuit Decisions

Quere: what is the relationship, if any, between the deliberate indifference required for failure to train liability and qualified immunity with its clearly settled law in inquiry? To be specific: suppose a local government and individual government officials or employees are sued in connection with a plaintiff’s constitutional deprivations. Suppose further that the individuals escape liability not because they did not violate the plaintiff’s constitutional rights (they did) but because they did not violate clearly settled constitutional law at the time of the challenged conduct. Can the local government nevertheless be held liable for deliberate indifference to the plaintiff’s constitutional rights? Interestingly, several circuits seem to take the erroneous position that the answer is no.

For example, in Bustillos v. El Paso County Hospital District, 2018 WL 2338812, *5 (5th Cir. 2018), the plaintiff sued a county hospital district and various medical personnel and law enforcement officers, alleging, among other things, that they violated her Fourth Amendment rights by subjecting her to intrusive body searches. After ruling that the individual medical personnel were protected by qualified immunity because there was no violation of clearly settled Fourth Amendment law, the Fifth Circuit went on also to hold that the county hospital district could not be liable for deliberate indifference for its failure to train medical personnel in how to handle government requests to do body cavity searches. It simply quoted from a Sixth Circuit decision declaring that a “policymaker cannot exhibit fault rising to the level of deliberate indifference to a constitutional right when that right has not yet been clearly established.” Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505, 511 (6th Cir. 2012)(emphasis in original)(in turn quoting Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007)(en banc).

This reasoning is seriously off-base. For one thing, it conflates deliberate indifference to constitutional rights with clearly settled law: the relevant constitutional law may not be clearly settled at the time of the challenged conduct for individual liability purposes but a local government can still be deliberately indifferent to whether its officials or employees could violate that not-yet-clearly-settled constitutional right. There is no specific intent requirement for local government failure to train liability (or for individual liability either, for that matter). For another thing, introducing the clearly settled law inquiry into local government failure to train liability effectively confers qualified immunity protection on local governments, contrary to the Supreme Court’s decision in Owen v. City of Independence, 445 U.S. 622 (1980).

I cover local government liability in detail in Chapter 6 my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2018)(West, Westlaw). I cover qualified immunity in Chapter 8.

(A personal note: the delay between the immediately preceding post on Excessive Fines and this post is attributable to my deep dive into preparing the 2019 Update to my section 1983 treatise).

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Written by snahmod

May 6, 2019 at 11:08 am

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