Municipal exposure in the
context of police misconduct claims
By Eydie R. Glassman

According to the holding of Monell v. New York Department of Social Services, a municipality cannot be held vicariously liable for the acts of its employees for civil rights violations. Pursuant to the holding, § 1983 liability can only be imposed on a government or municipal entity that, under the color of some official policy, "causes" an employee to violate another’s constitutional rights. In other words, a municipal policy, regulation or ordinance must be the actual source of the discrimination and must be causally related to the violation of another’s constitutional rights.

For Monell liability to attach, there must be the existence of either an express policy that, when enforced, causes constitutional deprivations, or in absence of an express policy, a widespread practice that is so permanent and well-settled as to constitute custom or usage with the forces of law. In addition to the existence of a constitutionally deficient policy, a plaintiff must prove a constitutional injury and an actual causal connection between the injury and the alleged unconstitutional policy.

Monell liability can also be established where a municipal official with final policy-making authority ratifies a subordinate’s unconstitutional conduct and the basis for it. The theory behind municipal liability in this context is that the acts of persons with final policy-making authority are considered to be the equivalent of government policy.

Monell claims arise most often in the context of police misconduct claims. Theories of liability include negligent hiring, failure to train, failure to discipline and lack of remedial measures. To establish municipal liability, a claimant must show a persistent and pervasive practice of the police department in failing to respond to police misconduct. While a single act of misconduct is insufficient to establish municipal liability, it is unclear how many constitutional violations must occur before Monell liability can attach. In police brutality cases for example, the municipal entity’s liability can be established by showing that the city either ignored or failed to respond adequately to a sufficient number of incidents to support an inference of acquiescence, encouragement or authorization of the conduct.

Liability may also attach under a theory of negligent hiring where the negative consequences of the hiring practices are plainly obvious and the municipality’s failure to adequate screen candidates amount to deliberate indifference on the part of the municipality. To establish municipal liability in this framework, plaintiffs must demonstrate that the municipality, through deliberate conduct, was the moving force behind the injury alleged. As always, there must be a direct causal link between the negative aspects of the officer’s background and the type of constitutional violation committed. When one with final policy-making authority makes an individual hiring decision, however, rigorous standards of fault and causation are imposed, as absent such a requirement, a municipality could be held vicariously liable for the single act of one of its officials.

Inadequate training of police officers may also form the basis of municipal liability. A claim can be established by showing that the municipality failed to train its officers with respect to a clear duties implicated in recurring situations that are certain to be encountered, or, in cases where the need for training is not particularly obvious, patterns of violations are sufficient to put the municipality on notice. The Supreme Court has clarified, however, that a municipality can only be held liable for failure to train its officers when the failure to train amounts to deliberate indifference to the rights of persons with whom the police come in contact. While deliberate indifference may be a difficult standard to ultimately meet, the Supreme Court has rejected the view that a plaintiff must meet a heightened pleading standard to state a claim against a municipality for an unconstitutional policy, custom or practice. Consequently, conclusory allegations of deliberate indifference are sufficient to permit an otherwise unmeritorious Monell claim to proceed through discovery.

Obviously, the costs of defending litigation where the policies and practices of an entire city or police department are put on trial, in conjunction with claims made against individual police officers, are significant. As such, a motion to bifurcate the trial of claims made against the individual officers from the claims against the municipality should be strongly considered. As municipal liability is derivative in nature and cannot attach where a constitutional violation has not occurred, the dismissal of claims against the individual police defendants eliminates the need for further analysis as to whether a municipal policy and practice was the source or cause of an alleged violation. Bifurcation can also prevent the undue prejudice that often occurs where officers are forced to defend their actions in the backdrop of general police misconduct allegations, made against the department and other officers, that are wholly unrelated to particular incident originally giving rise to the lawsuit.

As always, it is preferable for a municipality to spend its resources on the prevention of litigation, as opposed to merely responding to it. Police departments should develop and periodically review hiring practices, training practices, policies involving the use of force, warrantless arrests, searches, prisoner safety, detention facilities and detention length, and either implement training or revise the training to ensure it conforms with constitutional standards. If patterns of abuse develop in certain areas, training should be implemented or enhanced.

Furthermore, supervisory policies with respect to citizen complaints and departmental disciplinary actions should be reviewed. Specific procedures for investigating citizen complaints should be established and followed consistently. Investigations should be initiated promptly upon receipt of a complaint, and the results of that investigation and any recommended disciplinary action should be in writing, fully documented and retained by the municipality. A disciplinary decision should not be arbitrary but rather, prior discipline should be considered and discipline should be consistent and commensurate with the degree of misconduct. The failure to discipline or dismiss officers who develop a track record of misconduct will most certainly result in future municipal liability exposure.

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Appellate court: No duty to warn of sidewalk defects
By Eric W. Moch

Even the most attentive municipalities can allow portions of their public sidewalks to fall into disrepair. With all the varied public needs that absorb the ever-thinning resources of many municipal public works departments, inspection and repair of sidewalk defects is often far down on the list of a city’s priorities. Occasionally, those defects can become quite large due to inattention, and progressively likelier to play a causal role in the personal injury claims of pedestrians who stumble upon them. Municipalities have long appealed to common sense in attempting to avoid liability in sidewalk defect claims, but size matters to the courts. When asked to dismiss personal injury claims premised upon large sidewalk defects, courts can exhibit a hesitation that stands in direct proportion to the size of the defect at issue.

Recently, however, the Illinois Appellate Court (First District) was asked to review the dismissal of a personal injury action that arose from a trip and fall in a large sidewalk defect – a real doozy, by all accounts – and its common sense conclusion offers hope for any city that has simply been unable to inspect and maintain its sidewalks as diligently as it would like. Sandoval v. The City of Chicago is a reaffirmation of the open and obvious doctrine, and an acknowledgement that pedestrians are not freed of their obligation to watch where they are walking even where sidewalks present serious hazards.

Ms. Sandoval sued the City of Chicago in negligence after she tripped and fell in a "crater" within a City sidewalk, fracturing her ankle in the fall. She alleged that she was distracted by the temporary disappearance of a child she was baby-sitting and did not see the large defect as she walked in search of the child. She argued that it was foreseeable that a pedestrian walking along that sidewalk could fail to see the defect if she was distracted as she walked.

During discovery the plaintiff revealed that she was aware of the defect for some four years prior to the date of loss, had seen it and safely walked around it many times before, and had even called her alderman to complain about it. The record also revealed that use of the term "crater" to describe this defect was no exaggeration: it occupied a five-by-six foot section of the sidewalk, most of the concrete within that area was missing and the exposed dirt that remained surrounded a large concrete island that jutted up from the ground.

The City moved for summary judgment, arguing that it owed no duty of care to the plaintiff because the deteriorated condition of the sidewalk was apparent to a reasonable person acting with ordinary care for her own safety. The trial court granted the City’s motion for summary judgment, reasoning that the defect was open and obvious and that the City could not have foreseen that the plaintiff would have become distracted as she approached the defect. The plaintiff appealed.

In affirming the dismissal, the appellate court reaffirmed the principal in Illinois law that municipalities who control land are not required to foresee and protect against injuries from conditions that are open and obvious. The court stressed that this is an objective test; a plaintiff’s subjective circumstances do not govern this determination, but rather the objective knowledge of a reasonable person confronted with the same condition. Accordingly, no duty to warn may be imposed upon a municipality where the danger should be open and obvious to a reasonable person exercising ordinary care.

This first bit of reasoning enabled the court to quickly dispose of the plaintiff’s second argument: that she was distracted when she fell, and that her distraction should have been reasonably foreseeable to the City. Having already determined that the City owed the plaintiff no duty to warn her of the open and obvious sidewalk defect, the court reasoned that the City could only have foreseen the plaintiff’s distraction if it created or contributed to the distraction that diverted her attention from the otherwise open and obvious defect. As the plaintiff admitted during discovery that she was distracted by a temporary baby-sitting crisis, the court saw no basis on which to conclude that such a distraction was foreseeable.

While Sandoval may in a strict sense be premised upon established law, municipalities should not overlook the practical – and favorable — implications of this decision. All who considered the evidence respecting the magnitude of this sidewalk defect agreed that it was a whopper, a gaping expanse, practically a ditch ("it is clear that the defect was a condition of open and obvious danger . . . a big chunk of concrete remained, sticking up from the surface . . . any reasonable person exercising ordinary care in visiting this area would recognize and appreciate the risk involved in traversing this portion of the sidewalk.").

Even the City acknowledged the size of the crater. Yet it was this sheer size that tipped the scales in favor of the City. Quite simply, the crater was so big that nobody should have missed it. This universal consensus could only have been cringe inducing for the City. The appellate court did ultimately vindicate the City in this case, but its vindication was backhanded to say the least, and in no sense an endorsement of the diligence of the Streets and Sanitation Department.

Municipalities would be wise to heed the morale of this story: while a city’s sidewalks may paradoxically become so openly and obviously dilapidated that they absolve a city of liability for the injuries they cause, judicial declarations of this fact that will exist forever in the public records are a steep price to pay for vindication. Premising a defense upon the sheer size of a defect that developed and grew out of control despite the presence of a city department whose role it is to repair such defects should always be the very last line of defense.

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The sufficiency of the procedural safeguards that are in place to protect those that are taken into custody pursuant to a warrantless arrest is constantly under debate in courts throughout the country. A great deal of the legal wrangling in this area has centered on the manner in which the U.S. Supreme Court’s ruling in the case of Gerstein v. Pugh, should be interpreted and applied. In Gerstein, the court ruled, "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest." The court indicated that this hearing must occur promptly, but left the logistical determinations, exactly how long between arrest and hearing, to the states. Different appellate circuits throughout the county interpreted the ruling in Gerstein in different ways. Some circuits, including the Seventh Circuit Court of Appeals, determined that this ruling meant that a judicial determination of probable cause should occur immediately after the "booking" of an arrestee was completed. The Second Circuit considered the states’ need for flexibility and determined that the judicial determination of probable cause could be combined with other pre-trial proceedings, thereby lengthening the amount of time between arrest and hearing.

In an attempt to clarify some of the issues first announced in Gerstein, the Supreme Court took on the case of County of Riverside v. McLaughlin. Specifically, the court intended to more clearly define an acceptable length of time, following an arrest, in which a "prompt" judicial determination of probable cause, or "Gerstein Hearing," should take place. The court dismissed the idea that the "Gerstein Hearing" should occur immediately after the "booking" of an arrestee was completed, saying that the intent of Gerstein was to give the states a certain amount of flexibility to incorporate this new procedural step into their already existing systems. The court also emphasized that flexibility has its limits, and there is no legitimate state interest in holding a person, arrested without probable cause, for an extended period. As a result of these considerations, the court concluded that a jurisdiction that chooses to combine an initial determination of probable cause with other pretrial proceedings, i.e. a bail hearing, and does so within 48 hours of the defendant’s arrest, "is generally in compliance with the promptness requirement of Gerstein." However, it should be noted that, if a defendant is held past the 48-hour time limit, there is not an automatic violation of that defendant’s Fourth Amendment rights. In this situation, the burden is shifted to the government to demonstrate that the "Gerstein Hearing" was delayed due to a "bona fide emergency or other extraordinary circumstance."

The question that is presented by the ruling in Riverside County is: What constitutes a "bona fide emergency or other extraordinary circumstance" for the purposes of determining whether a "Gerstein Hearing" held after the acceptable 48-hour time period violates a defendant’s Fourth Amendment rights. This brings us to a case recently decided by the United States District Court for the Northern District of Illinois, Lopez v. City of Chicago, et al. In this case, Lopez was arrested for murder after multiple witnesses identified him as the offender in a shooting of a 12-year-old boy. Lopez was held for a period of 4-5 days while the police continued to investigate the crime. Lopez was eventually released after the police arrested another individual. He then sued the City and individual police officers claiming that he was held for longer than 48 hours, in violation of his Fourth Amendment rights? The defendants argued that extraordinary circumstances existed to justify the extended detention of the Lopez. The court first indicated that "unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest and other practical realities" are all factors to be considered when attempting to determine if a delay in providing a "Gerstein Hearing" was reasonable. Following this consideration, the court concluded that extraordinary circumstances clearly existed to justify the delay in brining the Lopez before a judge for an initial determination of probable cause. Interestingly, the court found that Lopez himself created the extraordinary circumstances while he was in the custody of the police. The court noted that there was clearly probable cause to arrest Lopez for the murder, based on the positive identifications of Lopez made by multiple witnesses. The court cited the fact that, following his arrest, Lopez lied to the police about his identity, gave two false alibis, made statements admitting his involvement in the murder, that proved to be false, and then subsequently recanted those statements. Lopez’s actions, according to the court, "required the allocation of police resources, and the continuation of the investigation of this murder." The court concluded by stating, "Lopez’s lies and his hindrance of a murder investigation resulted in the delay of the probable cause hearing. Therefore, based upon the totality of the circumstances, the Defendants have established extraordinary circumstances for the extended detention of Lopez."

Courts have made it clear that there is no bright line rule that dictates what constitutes a "bona fide emergency or extraordinary circumstance" for the purposes of determining whether an extended delay is reasonable. Determinations should be made on a case-by-case basis, considering all of the factors surrounding the arrest and subsequent detention of the arrestee. Based on the decision in Lopez, the factors to be considered should include the actions of the arrestee while in custody.

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