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Why You Really Can't Fight City Hall, at Least Over the Police
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=57504"><span class="small">Jim Schober, POLITICO</span></a>   
Tuesday, 15 December 2020 13:18

Schober writes: "The Monell Rule is the most important racial justice issue you’ve never heard of."

Police in riot gear after in Minneapolis. (photo: Tasos Katopodis/Getty)
Police in riot gear after in Minneapolis. (photo: Tasos Katopodis/Getty)

Why You Really Can't Fight City Hall, at Least Over the Police

By Jim Schober, POLITICO

15 December 20

The Monell Rule is the most important racial justice issue you’ve never heard of.

n the early morning hours of January 28, 2000, a Black police officer named Cornel Young Jr. —“Jai” to those who knew him—was off duty, dressed in plain clothes, and waiting on a steak sandwich from an all-night diner in a rough section of Providence, Rhode Island. A fight broke out at the front of the restaurant and quickly spilled outside. Someone brandished a gun. Young jumped into action, shouting “Police!” as he rushed through the diner and drew his weapon. Within seconds, he would be bleeding in the snow outside the restaurant, shot multiple times by two white, uniformed officers from his own department. Within hours, he would be dead.

Those are the basic facts, and the sadness of them transcends politics. If Black lives matter and blue lives matter, as they all most assuredly do, the killing of patrolman Cornel “Jai” Young was doubly tragic.

But the tragedy does not end there. As an attorney who has litigated civil rights cases, I can tell you that the tragedy of Jai Young’s story actually ends in a courtroom, some six years after his death, when the city of Providence slipped through a gaping chasm in federal civil rights law—one that has largely escaped scrutiny in the current national push for racial justice reform. It’s called the Monell Rule, and it’s why cities and police departments are rarely held accountable for the actions of police officers.

To learn more about her case, I recently reached out to Leisa Young, Jai’s mother, who fought the city of Providence in court for the better part of five years. She is an impressive woman: a bright, successful, former single mother who lifted herself out of poverty while raising an exceptional son. The pain of his death has hardened with time, the way scar tissue fills a wound that once might have been fatal. When she speaks of Jai now, Leisa’s voice does not crack, though she tends to change the subject.

The story she tells is awash in irony. Jai had entered the police force to change it, and he died, Leisa believes, because of the very problems he wanted to fix. Growing up, Jai had not been immune to the racial profiling so often experienced by young Black males. But his father—from whom Leisa had long since been divorced—was a police officer, and through him Jai developed an interest in community-based police reforms. By joining the force, Jai hoped to change what he saw as a militaristic approach to policing, especially in low-income neighborhoods like the one where he eventually died.

Leisa tells me that one of the cops who shot her son had been his classmate at the police academy and might have recognized him if he had only paused an instant before shooting: “Out of uniform, in that neighborhood, Jai was just another target.”

When asked about the city’s handling of her son’s case, Leisa responds with exasperation—the type of chronic emotional fatigue known only to those unfortunate souls who have spent years fighting a more powerful and highly motivated enemy. You can’t fight city hall, they say. Most people know the phrase; Leisa Young has lived it.

From the very beginning, the city circled the wagons. Just two days after Jai’s death, the mayor of Providence declared in the local press that race had not been a factor in the shooting. In a televised interview, a high-ranking officer predicted the two shooters would be exonerated by the department’s internal investigation, which was just barely underway. Meanwhile, Leisa says, city officials worked privately to convince her that Jai was somehow at fault in his own death because he had been pointing his firearm sideways, “like a thug.” Recalling the accusation now, Leisa dismisses it with a laugh that is somehow charming and bitter at the same time: “Where would he have learned that? In thug school?”

Leisa was convinced the shooting was wrongful. To vindicate her son, she filed suit against the city of Providence and in late 2003 she and the city each had their day in court. Over the course of three weeks, a federal jury heard evidence about the night of the shooting: how Jai had been holding his gun; whether he had identified himself as an officer on exiting the diner; whether he had been given any warning before the fatal shots were fired. In the end, the verdict was unanimous, and Leisa had essentially won: the jury found that Jai’s constitutional rights had been violated in the shooting that ended his life.

The 2003 verdict has never been overturned, and in the eyes of the law, the violation of Jai Young’s civil rights is an unassailable fact. That verdict almost certainly would have ended the case if Leisa had been suing a trucking company over a traffic accident, or a chemical company over a cancer-causing pesticide. But hers was a civil rights lawsuit against a city government, and though she still does not understand what it means or why, she would spend the next two years trying to overcome something called the Monell Rule.

I first learned about the Monell Rule in 2013, shortly after I accepted my first civil rights case. I had been practicing business law in Texas for 15 years when a friend asked for my help in a case involving threats and extortion by a small-time city government. It was not my area of the law, so I immersed myself in legal research, and it wasn’t long before I encountered this little-known legal rule that, despite its obscurity, plays a massive role in virtually every federal civil rights lawsuit against a city or county government. One case led to another, and I have been fighting the Monell Rule ever since.

To understand it, one must go back briefly to the end of the Civil War, when Congress passed the Civil Rights Act of 1871. The 13th, 14th and 15th Amendments had just been ratified, promising civil rights to emancipated slaves and other citizens. The 1871 law—also known as the Third Enforcement Act—was designed to provide a mechanism for enforcing these constitutional guarantees and it authorizes individual citizens to bring private lawsuits for civil rights violations committed by police and other persons cloaked in the authority of state or local governments. Today, among lawyers, this law is known simply as “Section 1983,” and it remains one of the most important civil rights statutes in the country.

In 1961, in a case called Monroe v. Pape, the U.S. Supreme Court ruled that city governments were exempt under Section 1983. The Monroe case involved horrific allegations of racial abuse at the hands of 13 Chicago police officers who had allegedly broken into a Black couple’s apartment and forced them to stand naked in front of their children as they beat the father with a flashlight, degraded him with racial slurs and ransacked the apartment. The Supreme Court ruled that the officers could be sued under Section 1983, but the city of Chicago could not.

Unsurprisingly, the Monroe decision was met with heavy criticism, and the Supreme Court eventually reversed itself—sort of. In Monell v. Department of Social Services of the City of New York, the high court ruled that cities are accountable under Section 1983, but only if the civil rights violation was caused by “official policy” of the city government. The court’s reasoning was based on a strained reading of the 1871 law, and has been often criticized ever since, but the rule established in Monell has nonetheless survived and evolved.

Today, “official policy” can be proven in multiple ways, but the gist is always the same: the civil rights violation must have been caused by a deliberate policy choice made at the highest levels of a city government, or by a pattern of institutional neglect so pervasive and consistent that it constitutes “deliberate indifference” by city policymakers. It is a very high bar, and clearing it often depends on facts and concepts that are inherently elusive.

The Monell Rule is unique to civil rights litigation and exists nowhere else in the legal world. If, for example, an Amazon delivery driver were to negligently cause a traffic accident while on the job, Amazon would ordinarily be liable for the victim’s injuries; there would be no need for the victim to prove that Jeff Bezos or Amazon’s board of directors had caused the accident through their corporate policies or their “deliberate indifference” to the rights of potential accident victims. In the civil rights context, however, that is essentially what the Monell Rule requires. In simplest terms, the Monell Rule is a barrier to government accountability. It puts legal distance between city governments and their employees, allowing cities to avoid responsibility for the on-the- job conduct of their own police officers.

As a practical matter, the Monell Rule blocks the only pathway by which civil rights victims can hold police departments accountable. Victims of police violence have three basic avenues to justice: criminal prosecution of the individual officers involved; a civil lawsuit against the same officers; or a civil lawsuit against the municipality that employs them. The first two avenues have their own unique challenges, such as the high burden of proof in criminal cases, or the qualified immunity standard that protects individual police officers from liability in civil suits. But the first two avenues—even where successful—punish only the individual officers. It is only the third avenue that has the potential to impact municipal police departments as a whole, and the Monell Rule blocks that avenue like a barricade.

Leisa Young’s 2003 civil rights verdict was followed by a complicated series of motions, rulings, appeals and cross-appeals, mostly concerning the Monell Rule. Eventually, the case would return to court for a second trial. This time, however, the only issue would be the Monell Rule, and the evidence would have almost nothing to do with what happened the night Jai Young was killed.

At the close of the trial, the judge instructed the jurors that they were required to accept the 2003 verdict: there was no question Jai’s civil rights had been violated by a Providence police officer. And then, in a perfect summation of the Monell Rule, he continued: “The fact that an employee or employees of the City deprived Cornel of his federally protected rights is not itself a sufficient basis for imposing Section 1983 liability against the City.” To win her case for the second time, Leisa Young would have to prove that Jai’s death had been caused by the “deliberate indifference” of a few high-ranking city officials, none of whom were present that night outside the diner.

This time, the jury verdict did not go Leisa’s way.

After the trial, Leisa’s attorneys urged her to fight on through an appeal, but the emotional toll had been too much. Like many civil rights plaintiffs, she had filed the lawsuit to bring about change and, perhaps, give meaning to a tragedy. Now, the litigation had consumed her, and she no longer felt she was honoring her son’s memory: “I just imagined him looking at me and asking, ‘Mom, what’s happened to you?’”

That was 2005. In the years since, the Monell Rule has lost none of its potency, and remains a major obstacle in every Section 1983 lawsuit against a city government. A more recent case in point: Darrius Stewart, a 19-year old unarmed Black man who was shot at close range (once in the chest, once in the back) by a Memphis police officer during a botched arrest. In 2019, the 6th Circuit Court of Appeals assumed that Stewart’s civil rights had been violated in the shooting, but summarily dismissed his parents’ lawsuit against the city of Memphis under the Monell Rule. Never mind that Memphis had failed to investigate a prior similar incident, said the court. To hold the city of Memphis liable under the Monell Rule, Stewart’s parents were required to show a “clear and persistent pattern” and “a pattern requires more than one incident.” The first one, as they say, is free.

On May 25, 2020, George Floyd was killed on the streets of Minneapolis, sparking worldwide protests and surging support for the Black Lives Matter movement. Demands for reform are now urgent and everywhere, but the Monell Rule has been strangely absent from the discussion. For example, the Movement for Black Lives—an activist organization associated with the BLM movement—published a 13-page legislative pamphlet proposing extensive criminal justice reforms ranging from removing metal detectors in schools to abolishing minimum sentencing guidelines; nowhere, however, does it mention the far more attainable goal of abolishing the Monell Rule. Politicians have likewise sidestepped the issue: in the 2020 presidential election, for example, both campaigns published detailed platforms for racial justice reform, but neither mentioned the Monell Rule.

The silence is not easy to explain. The main policy justification for the Monell Rule is that cities are funded by taxpayers, and taxpayers should not be responsible for “rogue” employees who are not acting pursuant to established municipal policy. Setting aside the fact that cities can (and often do) purchase insurance to protect themselves from civil rights lawsuits, activists and political leaders are now openly (and often persuasively) endorsing more expensive reforms that would have a far greater impact on the common taxpayer. If we are willing to consider costly measures—and if the real goal is to protect the life and dignity of the next George Floyd—doesn’t it make sense to start by fixing the things that are most obviously broken? Doesn’t it make sense to start by simply declaring, as a nation, that our cities should be accountable for atrocities committed by the very police officers they recruit, hire, train and employ?

The Monell Rule has become an absurdity; to see why, one need look no further than the George Floyd case itself. Floyd died because a Minneapolis police officer—a hand sometimes tucked casually in pocket—knelt on his neck for nearly 9 minutes as three other uniformed police officers stood by. It is, to most who have seen the video, the most egregious civil rights violation they have ever witnessed. Perhaps worse, this atrocity was carried out not by anonymous vigilantes in white hoods, but by uniformed officers seemingly confident in the lawfulness of their behavior.

It is absolutely correct to say that Floyd was publicly lynched in broad daylight in the name of the city of Minneapolis; and yet, under the Monell Rule, the city of Minneapolis is not necessarily responsible.

I don’t practice law in Minnesota, but I suspect the city of Minneapolis does not have an official policy that endorses police officers kneeling on a handcuffed citizen’s neck for minutes on end. I also suspect that nothing quite like it had ever happened before. But it happened anyway, and multiple officers were involved. These things happen not because municipal policy makes them happen; they happen because municipal policy allows them to happen.

During his tenure on the Supreme Court, the late Justice John Paul Stevens occasionally voiced his disagreement with the Monell Rule. His reasoning was based in part on a long-standing principle of the law: when a harm occurs, the legal responsibility should fall on the shoulders of those who are in the best position to prevent it. This is how the law encourages corporations to take a proactive role in ensuring safe and appropriate workplace conduct: simple, old-fashioned fear of liability. As Justice Stevens understood, the Monell Rule removes that fear—and the powerful incentives that it creates—for cities and other local governments.

Without fear of municipal liability, corrosive and racist elements within a police force tend to be ignored; inevitably, they fester and grow. When they finally explode, as they did in the George Floyd case, city leaders point the finger at their own subordinates, often vowing to defund or even disband police units under their own control.

Such abdications of responsibility should offend every single one of us, just as they would in a commercial context. Imagine, for an instant, learning that a waiter spat in your soup at a restaurant. The manager comes by your table, but he does not offer to compensate you in any way; instead, he simply blames the waiter, promises to cut his pay or fire him, and then walks back to the kitchen. In this scenario, you have suffered everything, and the owner of the restaurant has suffered nothing. Why would anything change?

The good news, for civil rights advocates, is that the Monell Rule can be changed without Supreme Court intervention. Under the Supreme Court’s rationale, the rule is not a constitutional requirement; it is simply part of what Congress intended when it enacted Section 1983 a century and a half ago. This means the Monell Rule can be modified—or abolished entirely—without changing the Constitution or the composition of the court. All that is required is to amend Section 1983, which can be achieved through ordinary legislation.

Several legislators, including former Democratic presidential candidates Elizabeth Warren and Bernie Sanders, have proposed amending Section 1983, but their proposed legislation focuses on the doctrine of qualified immunity. As mentioned above, qualified immunity protects individual police officers; it has no application to the cities that employ them. Abolishing qualified immunity, but not the Monell Rule, would put no added pressure on police departments to enact meaningful police reforms. Such proposals may even be counterproductive: they put more legal distance (not less) between police officers and city governments, and thus they will likely only embolden city officials eager to wash their hands of ugly incidents instead of accepting responsibility for them.

If government accountability is the goal, abolishing qualified immunity is at best a half-measure. The Monell Rule is the place where bad government hides, and it needs to be reformed. your social media marketing partner