Summary

• Objects (1 modified, 1 added, 0 removed)
  • Caselist.RoundClass[21]
  • Caselist.CitesClass[38]

Details

Caselist.RoundClass[21]

EntryDate

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1		-2016-11-05 12:57:12.832
	1	+2016-11-05 12:57:12.0

Caselist.CitesClass[38]

Cites

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	1	+CP Text: The Supreme Court should modify Monell claims to operate according to a ‘conscious disregard standard instead of the current ‘Deliberate Indifference’ standard.
	2	+Singh 15 clarifies:
	3	+Singh, Amit (J.D. Candidate, University of the Pacific, McGeorge School of Law). "Accountability Matters: An Examination of Municipal Liability in Sec. 1983 Actions." The U. of Pac. L. Rev. 47 (2015): 105.
	4	+The Court should revisit the standard for municipal liability in § 1983 actions and provide an actual definition to prevent confusion and varying application by lower courts.'7 9 A standard of conscious disregard that combines the California law for imposing punitive damages with the definition from the Nevada Legislature would remedy the failings of the deliberate indifference standard. 80 This comment proposes the courts adopt the following standard for imposing municipal liability in § 1983 actions:
	5	+ (a) knowledge of probable harmful consequences of a wrongful act; and'
	6	+(b) willful or deliberate failure to avoid those consequences;182
	7	+ (c) by a municipal policymaker, or those persons acting on behalf of a municipal policymaker. 8
	8	+Mutually exclusive- Limiting qualified immunity means lawsuit fall on police, not the system - you can’t sue both. Gilles 2K
	9	+Gilles, Myriam (Assistant Professor, Cardozo Law School) "In defense of making Government pay: the deterrent effect of constitutional tort remedies." Ga. L. Rev. 35 (2000): 845.
	10	+Second, the common practice of bifurcation serves to limit the efficacy of municipal liability claims. 7 Many courts reflexively bifurcate the trial of individual and municipal liability claims under Rule 42(b) of the Federal Rules of Civil Procedure, 8 staying all Monell proceedings, including discovery on Monell issues," until after the resolution of claims against individual officers."' I have a theorem: bifurcation + indemnification = elimination of Monell. Once a case is bifurcated and the plaintiff proceeds against the individual officer, the plaintiff either wins or loses. If plaintiff wins and the officer is indemnified, the plaintiff is made whole. End of case. Plaintiff cannot proceed against the municipality, having been made whole in the first trial against the individual officer. If plaintiff loses against the individual officer, he likely cannot proceed against the municipality. End of case. Having failed to show he suffered any constitutional injury, plaintiff may not then claim that a municipal policy or custom caused him constitutional injury." 1 Either way, the Monell claim never sees the light of day, and the informational and fault-fixing functions of municipal liability lie inert. 10
	11	+
	12	+This modification would lead to more successful lawsuits. Singh 15
	13	+Singh, Amit (J.D. Candidate, University of the Pacific, McGeorge School of Law). "Accountability Matters: An Examination of Municipal Liability in Sec. 1983 Actions." The U. of Pac. L. Rev. 47 (2015): 105.
	14	+Unlike the deliberate indifference standard, the conscious disregard standard provides an effective remedy for plaintiffs who have suffered constitutional violations at the hands of municipal employees." 9 The current standard often functions as an impossible barrier to relief.'" Although a court may consider a particular municipal "policy" or "custom" as exhibiting an indifference to the rights of a citizen, the court will generally not interpret the policy as amounting to a deliberate indifference.'9 The conscious disregard standard addresses this problem by reducing the burden of proving municipal liability in § 1983 actions.1 92 Instead of the confusing, repetitive language of the deliberate indifference standard, the conscious disregard standard will provide a workable definition for lower courts.' The language is clear and the goal is straightforward: prevent municipalities from engaging in patterns or practices that violate the constitutional rights of citizens.'9
	15	+Turns and outweighs the case:
	16	+Unlike suits, Monell claims lead to policy reform. Lawsuits on police don’t lead to any change and just deflect blame from the institution. Gilles 2
	17	+Gilles, Myriam (Assistant Professor, Cardozo Law School) "In defense of making Government pay: the deterrent effect of constitutional tort remedies." Ga. L. Rev. 35 (2000): 845.
	18	+In addition to serving an informational function, municipal liability claims serve a "fault-fixing" function, localizing culpability in the municipality itself, and forcing municipal policymakers to consider reformative measures. To understand how this fault-fixing function operates, it is important to distinguish between the liability a municipality incurs indirectly, through the indemnification of its officers, and the direct liability it may incur under Monell. Indirect liability does not trigger the fault-fixing function. The municipal indemnification of an individual officer for constitutional damage awards levied against him6" does not necessarily force policy-makers to acknowledge municipal fault and take remedial action, for two reasons. First, indemnification is an ex ante benefit given to individual officers as a form of insurance. The determination to indemnify is made at the front end, as the product of collective bargaining arrangements and political lobbying, and not in response to any constitutional claim.64 The act of indemnifying is largely a ministerial one, and indemnification expenses are easily justified as costs of doing business, along with salaries and other items of overhead.65 Second, where municipalities indemnify officers, they "generally write off the misconduct of an individual officer to the 'bad apple theory,' under which municipal governments or their agencies attribute misconduct to aberrant behavior by a single 'bad apple.'60 This "deflects attention from systemic and institutional factors contributing to recurring constitutional deprivations." 7 As I have argued elsewhere, "the bad apple theory' is essentially an institutionalized belief system ensuring that fault for unconstitutional conduct~-~-even when it results in large damage awards against individual officers or city-approved settlements-will never be localized in the culture of the municipal agency itseltf"' with the result that little or no remedial actions are taken.69 Direct liability, on the other hand, does serve a fault-fixing function. Under the Supreme Court's landmark decision in Monell v. Department of Social Services," municipal liability cannot be based upon principles of vicarious liability; rather, municipal liability will attach only where an identifiable "policy or custom" of the municipality caused plaintiffs constitutional injury." A finding of Monell liability, therefore, fixes the fault of constitutional violations directly on the municipal entity, which "possesses the resources and broad vantage point with which to identify the particular deficiencies, and... take appropriate corrective action,"72 thereby furthering the deterrence goal of § 1983. Holding the municipality itself liable for injuries caused by its own unconstitutional policies and customs makes it more difficult to take refuge in the "bad apple theory" and more likely that the municipality will take steps to remedy the broader problems.
	19	+Empirical proof that Monell claims can lead to reform is shown throughout history. Gilles 2K
	20	+Gilles, Myriam (Assistant Professor, Cardozo Law School) "In defense of making Government pay: the deterrent effect of constitutional tort remedies." Ga. L. Rev. 35 (2000): 845.
	21	+First, as I have argued elsewhere, too many courts and practitioners have failed to apprehend the broad spectrum of policies or customs that may support the imposition of Monell liability under 42 U.S.C. § 1983.9o Specifically, greater focus upon the "custom" language of § 1983 holds promise for reinvigorating modern civil rights litigation.
	22	+Originally enacted as the Ku Klux Act of 1871, 42 U.S.C. § 1983 was intended to combat the widespread practices of local officials, including rank-and-file municipal officers, that impeded implementation of the principles enshrined in the Fourteenth Amendment. In passing the statute, the 42nd Congress understood that, while state and local legislatures were swiftly passing laws throughout the South to conform to the mandates of the Reconstruction amendments, unwritten codes guiding the conduct of local officials in Southern strongholds undermined the new constitutional and statutory edicts.93 The architects of the original Ku Klux Act used the term "custom" to refer to the nefarious unwritten codes of conduct pursuant to which local officials terrorized freedmen and Republicans, and failed to enforce Reconstruction era laws against dissenters.94 While the particular "customs" that prevailed amongst deputy sheriffs, local prosecutors and Klansmen in the post-bellum South have largely subsided, other "customs" in the form of unwritten codes of conduct among modern law enforcement officials regularly impair rights guaranteed by the Fourteenth Amendment today. Indeed, I have argued that institutionalized, unwritten "customs"- most particularly the police code of silence-underlie many of the constitutional deprivations suffered at the hands of contemporary police officers.9" As the true range of actionable customs is recognized by more plaintiffs' lawyers and judges, we will see more clearly the deterrent or behavior-altering effect of constitutional damage suits aimed at municipalities under Monell.96

EntryDate

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	1	+2016-11-05 12:57:14.939

Judge

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	1	+X

Opponent

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	1	+X

ParentRound

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	1	+21

Round

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	1	+2

Team

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	1	+Strake Jesuit Chen Neg

Title

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	1	+ND - CP - Monell

Tournament

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	1	+AV