The doctrine of qualified immunity from civil lawsuits against government officials for violations of civil rights has received new scrutiny in the wake of the outrage sparked by the deaths of George Floyd, Breonna Taylor and
others at the hands of law enforcement. Much ink has been spilled analyzing the judicial construct of qualified immunity, as well as calls to reform or abolish it.

Briefly, qualified immunity generally shields government officials from civil liability for constitutional torts that allegedly arise out of the performance of their official duties, so long as their actions do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”[1]

While qualified immunity may be an effective means to dispose of a civil lawsuit seeking monetary damages against an individual municipal employee named as a defendant, the savvy plaintiffs attorney will target the municipal institution with deep pockets by pursuing a Monell claim against the governmental entity.

Title 42 of the U.S. Code, Section 1983, enacted as part of the Civil Rights Act of 1871, established a civil cause of action for individuals whose constitutionally protected rights had been infringed by any person under color of state law. In 1978, the U.S. Supreme Court decided Monell v. Department of Social Services.[2]

Monell was significant in that it overturned a prior U.S. Supreme Court decision[3] and held that municipalities were persons, and thus subject to being sued, within the context of Section 1983.

While the 11th Amendment establishes that states are entitled to sovereign immunity, that immunity does not apply to political subdivisions of the states, such as cities, counties, school boards, etc.,[4] making them enticing targets in civil litigation. In the context of Section 1983 claims against such political subdivisions, Monell held that “Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.”[5]

Moreover, while the federal government has sent federal agents to Portland, Oregon, Seattle and other major cities under various pretexts for their presence in local policing matters, the federal government has no cause for concern over civil lawsuits because it and all of its agencies have sovereign immunity and cannot be sued in any court unless it consents to the lawsuit.[6]

Claims under Title 42 of the U.S. Code, Section 1983 cannot proceed against a municipality based on a respondeat superior theory.[7] Rather, the plaintiff is required to demonstrate that the deprivation of a constitutional right is a result of a government policy or custom.[8] Monell liability will not attach to a municipality unless the constitutional harm was caused by the implementation of official municipal policy.[9]

Further, the individual employee may be entitled to qualified immunity and obtain a dismissal during the early stages of the case. One of the avenues employed by plaintiffs counsel to overcome this hurdle is to contend that a particular municipal employee had final policymaking power and the plaintiff’s harm arose from that policymaker’s decision. This is done because “only those municipal officials who have ‘final policymaking authority’ may by
their actions subject the government to §1983 liability.”[10]

Foreclosed from a respondeat superior theory of liability, defense counsel should expect plaintiffs attorneys to employ creative means in an effort to impose liability against the municipality for the alleged misdeeds of its employees. In defending these claims, defense counsel should consider filing a motion to dismiss, in the early stages, and/or a summary judgment motion in the later stages of the litigation.

It is the trial judge — not the jury — who “must identify those officials … who speak with final policymaking authority for the local government.”[11] Although the question of whether a particular government worker had final policymaking power is a question of law for the court,[12] such an inquiry is a fact-intensive inquiry and, necessarily, highly casespecific.[13]

This raises the question — which employees can be fairly characterized as being a final policymaker to impute Monell liability to their municipal employer? According to prevailing case law, an official has final authority if the decisions, at the time they are made, “may fairly be said to represent official policy.”[14] Municipal liability attaches only where the decision maker possesses final authority to establish municipal policy with respect to the action ordered.[15]

According to the U.S. Supreme Court in Pembaur v. City o Cincinnati, that “a particular official — even a policy-making official — has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion.”[16]

According in the U.S. Court of Appeals for the Second Circuit in Roe v. City of Watersbury, “the critical inquiry is not whether an official generally has final policymaking authority,” but rather, “whether the government official is a final policy maker with respect to the particular conduct challenged in the lawsuit.”[17]

Final Policymaking Power With Respect to the Particular Conduct It is not sufficient that a particular official possesses policymaking authority. Rather, that official must be a final policymaker with respect to the particular conduct that gave rise to the plaintiff’s claimed constitutional deprivation. The following cases provide some examples as to what federal courts have examined in determining what constitutes final policymaking
power as they relate to the claimed tortious conduct.

• In Roe, although the mayor of Waterbury, Connecticut, was an official policymaker, the Second Circuit said his decisions to sexually abuse children were not made for practical or legal reasons and were not related to the city’s interests.[18]
• In Fotopolous v. Board of Fire Commissioners of Hicksville Fire District, the U.S. District Court for the Eastern District of New York ruled that a fire department commissioner, while a high-ranking official, did not have final authority over hiring and firing policy and thus, Monell liability did not attach to the municipality for the plaintiff’s alleged improper suspension and coerced resignation.[19]
• In Massena v. Bronstein, the U.S. District Court for the Northern District of New York ruled that the Office of the Mayor of Binghamton, New York, was not permitted to award a contract without approval from the Board of Contract and Supply and thus could not subject the municipality to Monell liability.[20]
• In Cavanaugh v. Hall County Department of Corrections, the U.S. District Court for the District of Nebraska ruled that the county board, not the jail director, was charged with overall management of the jail, thus no municipal liability for placing an inmate in segregation.[21]
• In Baity v. Kralik, the U.S. District Court for the Southern District of New York ruled that the county executive, not the sheriff, had final policymaking authority with respect to employment decisions.[22]
• In Frisenda v. Incorporated Village of Malverne, the Eastern District of New York ruled that the chief of police and the village board directly participated in a disciplinary investigation and charging decision relating to the plaintiff. Such evidence was sufficient to defeat summary judgment on the issue of municipal liability with respect to the plaintiff’s First Amendment retaliation claim.[23]
• In Mangino v. Incorporated Village of Patchogue, the Eastern District of New York found that questions of fact existed sufficient to defeat defendant’s motion for summary judgment regarding whether the fire marshal was a final policymaker in a landlords’ lawsuit alleging malicious prosecution, malicious abuse of process and unreasonable warrantless search.[24]
• In Cowan v. City of Mount Vernon, the Southern District of New York ruled that the deputy commissioner of human resources and commissioner of human resources for Mount Vernon, New York, did not have final policymaking authority with respect to sexual harassment training and policymaking to support Monell liability.[25]
In conclusion, while the question of whether a government official is a final policymaker is highly fact-specific, that question should be determined by the trial judge before the case is submitted to the jury.[26]
Glenn Jacobson is a partner and James Kimmel is a senior associate at Abrams Gorelick Friedman & Jacobson LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
[2] Monell v. Department of Social Services, 436 U.S. 658 (1978).
[3] Monroe v. Pape, 365 U.S. 167 (1961).
[4] Hopkins v. Clemson College, 221 U.S. 636, 645 (1911).
[5] Monell, 436 U.S. at 691.
[6] Although the concept of sovereign immunity does not appear in the U.S. Constitution,
the concept is a practical one and based on the principle that the government cannot be
compelled to do something by the courts because the government created the courts in the
first place. See also, F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994).
[7] Monell,, 436 U.S. at 691.
[8] Id at 694.
[9] Monell, 436 U.S. at 691.
[10] Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
[11] Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S. Ct. 2702, 2724, 105 L. Ed.
2d 598 (1989).
[12] Pembaur, 475 U.S. at 483.
[13] Canner v. City of Long Beach, 2015 WL 4926014, at *7 (E.D.N.Y. Aug. 18, 2015).
[14] McMillan v Monroe County, Alabama 520 U.S. 781, 784 (1997), quoting, Monell, 436
U.S. at 694.
[15] Pembaur, 475 U.S. at 481.
[16] Pembaur, 475 U.S. at 482-483
[17] Roe v. City of Waterbury, 542 F.3d 31, 37 (2nd Cir. 2008), citing, Jeffes v. Barnes, 208
F. 3D 49, 58 (2d Cir. 2000).
[18] Roe, 542 F.3d at 38.
[19] Fotopolous v. Bd. of Fire Comm’rs of Hicksville Fire Dist., 11 F. Supp. 3d 348, 374
(E.D.N.Y. 2014).
[20] Massena v. Bronstein, 2011 WL 754112, at *5 (N.D.N.Y. Feb. 24, 2011), aff’d,545 F.
App’x 53 (2d Cir. 2013).
[21] Cavanaugh v. Hall Cty. Dep’t of Corr., 2015 WL 6142927, at *5 (D. Neb. Oct. 19,
2015),aff’d,667 F. App’x 576 (8th Cir. 2016).
[22] Baity v. Kralik, 51 F. Supp. 3d 414, 440 (S.D.N.Y. 2014).
[23] Frisenda v. Inc. Vill. of Malverne, 775 F. Supp. 2d 486, 521 (E.D.N.Y. 2011).
[24] Mangino v. Inc. Vill. of Patchogue, 739 F. Supp. 2d 205, 263 (E.D.N.Y. 2010).
[25] Cowan v. City of Mount Vernon, 95 F. Supp. 3d 624, 641 (S.D.N.Y. 2015).
[26] Jett, 491 U.S. at 737.