    [House Hearing, 117 Congress]
    [From the U.S. Government Publishing Office]

                   EXAMINING CIVIL RIGHTS LITIGATION REFORM,
                    PART 2: STATE AND LOCAL GOVERNMENT
                             EMPLOYER LIABILITY

    =======================================================================

                                    HEARING

                                   BEFORE THE

                     SUBCOMMITTEE ON THE CONSTITUTION, CIVIL
                           RIGHTS, AND CIVIL LIBERTIES

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                             THURSDAY, JUNE 9, 2022

                                   __________

                               Serial No. 117-70

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                  __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    48-305                     WASHINGTON : 2022

    -----------------------------------------------------------------------------------

                           COMMITTEE ON THE JUDICIARY

                        JERROLD NADLER, New York, Chair
                    MADELEINE DEAN, Pennsylvania, Vice-Chair

    ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
    HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
        Georgia                          KEN BUCK, Colorado
    THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
    KAREN BASS, California               MIKE JOHNSON, Louisiana
    HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
    DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
    ERIC SWALWELL, California            W. GREG STEUBE, Florida
    TED LIEU, California                 TOM TIFFANY, Wisconsin
    JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
    PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
    VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
    J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
    MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
    SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
    JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
    LUCY McBATH, Georgia                 BURGESS OWENS, Utah
    GREG STANTON, Arizona
    VERONICA ESCOBAR, Texas
    MONDAIRE JONES, New York
    DEBORAH ROSS, North Carolina
    CORI BUSH, Missouri

              AMY RUTKIN, Majority Staff Director & Chief of Staff
                  CHRISTOPHER HIXON, Minority Staff Director

                                  ------

                SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
                              AND CIVIL LIBERTIES

                         STEVE COHEN, Tennessee, Chair
                    DEBORAH ROSS, North Carolina, Vice-Chair

    JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana, Ranking
    HENRY C. ``HANK'' JOHNSON, Jr.,          Member
        Georgia                          TOM McCLINTOCK, California
    SYLVIA R. GARCIA, Texas              CHIP ROY, Texas
    CORI BUSH, Missouri                  MICHELLE FISCHBACH, Minnesota
    SHEILA JACKSON LEE, Texas            BURGESS OWENS, Utah

                           JAMES PARK, Chief Counsel

                                C O N T E N T S

                                  ----------

                             Thursday, June 9, 2022

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Steve Cohen, Chair of the Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties from the State
      of Tennessee...................................................     1
    The Honorable Mike Johnson, Ranking Member of the Subcommittee on
      the Constitution, Civil Rights, and Civil Liberties from the
      State of Louisiana.............................................     3

                                   WITNESSES

    Ms. Karen M. Blum, Professor Emerita and Research Professor of
      Law, Suffolk University Law School
      Oral Testimony.................................................     5
      Prepared Testimony.............................................     7
    Ms. Bhavani K. Raveendran, Partner, Romanucci & Blandin, LLC
      Oral Testimony.................................................    13
      Prepared Testimony.............................................    15
    Mr. Rafael A. Mangual, Senior Fellow; Head of Research, Policing
      and Public Safety; Contributing Editor, City Journal; Manhattan
      Institute
      Oral Testimony.................................................    26
      Prepared Testimony.............................................    29
    Ms. Payvand Ahdout, Associate Professor of Law, University of
      Virginia School of Law
      Oral Testimony.................................................    35
      Prepared Testimony.............................................    38

                     QUESTIONS AND RESPONSE FOR THE RECORD

    Response to questions from Karen Blum, Professor Emerita and
      Research Professor of Law, Suffolk University Law School,
      submitted by the Honorable Steve Cohen, Chair of the
      Subcommittee on the Constitution, Civil Rights, and Civil
      Liberties from the State of Tennessee, for the record..........    52

                       EXAMINING CIVIL RIGHTS LITIGATION
                        REFORM, PART 2: STATE AND LOCAL
                         GOVERNMENT EMPLOYER LIABILITY

                                  ----------

                             Thursday, June 9, 2022

                         U.S. House of Representatives

                Subcommittee on the Constitution, Civil Rights,

                              and Civil Liberties

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to call, at 9:32 a.m., in
    Room 2141, Rayburn House Office Building, Hon. Steve Cohen
    [Chair of the Subcommittee] presiding.
        Members present: Representatives Cohen, Ross, Garcia,
    Johnson of Louisiana, Fischbach, and Owens.
        Staff present: John Doty, Senior Advisor and Deputy Staff
    Director; Moh Sharma, Director of Member Services and Outreach
    & Policy Advisor; Brady Young, Parliamentarian; Cierra
    Fontenot, Chief Clerk; Gabriel Barnett, Staff Assistant; James
    Park, Chief Counsel for Constitution; Matt Morgan, Counsel for
    Constitution; Will Emmons, Professional Staff Member/
    Legislative Aide for Constitution; Betsy Ferguson, Minority
    Senior Counsel; Caroline Nabity, Minority Senior Counsel;
    Andrea Woodard, Minority Professional Staff Member; and Kiley
    Bidelman, Minority Clerk.
        Mr. Cohen. I will call this meeting to order, Committee on
    the Judiciary, Subcommittee on the Civil Rights and the
    Constitution comes to order without objection. The Chair is
    authorized to call a recess at any time that he so desires a
    recess.
        I welcome everyone to today's hearing on Examining Civil
    Right Litigation Part 2: State and Local government Employer
    Liability.
        The email address to distribute exhibits or whatever, that
    is--we have provided that for Members. If you would like to
    submit those, the email address is there, and you know all
    about that.
        All Members or Witnesses, to all those in person, et
    cetera, turn your microphones off or you have feedback and
    problems. Un-mute yourself when you seek recognition.
        I now recognize myself for an opening statement.
        Today's hearing is the second in a series of hearing before
    the Subcommittee examining civil rights litigation reform and
    follows up on our first hearing on qualified immunity.
        At our previous hearing Members and Witnesses expressed
    potential support for imposing respondeat superior or vicarious
    liability of municipal employers in cases filed under 42 U.S.C.
    1983, the statute that creates a right of action against State
    and local officials and local governments for violations of
    constitutional or other Federal rights.
        For instance, Judge Jon O. Newman of the Second Circuit
    testified this could be a better means than individual officer
    liability, police officer, for ensuring that victims of
    constitutional or civil rights violations be compensated. Our
    hearing today will examine that idea in more detail.
        Respondeat superior has routinely applied common-law
    doctrine under which employers may be held liable for their
    employees' torts committed while acting with the scope of their
    employment.
        Over 40 years ago in Monell v. Department of Social
    Services of the City of New York, an employment discrimination
    case brought by pregnant municipal employees against the city
    of New York, the Supreme Court held that under section 1983,
    local governing bodies could be held directly liable for
    monetary, declaratory, and injunctive relief in cases alleging
    that their employees committed a constitutional violation
    against a third party.
        In reaching its holding in Monell, however, the Supreme
    Court articulated the view that while Congress had intended to
    include municipalities under the statute's ambit, it
    specifically excluded claims based on respondeat superior
    theory. Instead, Monell held that local government employers
    were liable for the employees' deprivation of a constitutional
    right under 1983 where the employees' alleged deprivation
    implements or executes a policy, ordinance, regulation,
    decision, or custom adopted by that body's officers.
        Under Supreme Court decisions applying Monell and its local
    progeny, local governments have been subject to such direct
    liability, but only under narrow and difficult-to-prove
    circumstances. Moreover, the case in this area has become case
    law, increasingly confusing for both plaintiffs and defendants.
        As Justice Breyer has observed, the Supreme Court's basic
    efforts to distinguish between vicarious liability and
    liability derived from the policy or custom has produced a body
    of law that is neither readily understandable, nor easy to
    apply.
        When it comes to State liability for monetary relief under
    section 1983, the story is even simpler. They are immune from
    such suits. In the Court's view, Congress did not clearly
    abrogate State sovereign immunity in the language of section
    1983. Therefore, according to the Court, the 11th Amendment,
    which prohibits federal courts from hearing certain kinds of
    lawsuits against States, bars such lawsuits.
        For those of you who are lawyers, you may be wondering
    about the possibility of bringing a section 1983 claim to State
    court where the 11th Amendment does not apply, but there too
    the Supreme Court has foreclosed suits for monetary relief,
    holding that Congress excluded States from the statute's
    definition of a person.
        It may sound from my description of the current State of
    the law as though I am blaming the Supreme Court for limiting
    the ability of victims of constitutional deprivations to seek
    redress in federal courts, but the truth is the Court is not
    solely responsible. The Court's decisions over the years have
    effectively foreclosed or narrowed the ability of victims to
    hold State and local governments accountable for their
    employees' constitutional violations under 1983, and it must be
    acknowledged those decisions rest on the Court's interpretation
    of the statute rather than on its view of Congress'
    constitutional authority to legislate in this area.
        Like Monell, many of the Court's decisions that concern
    local and State employer liability are not recent. In other
    words, Congress has long possessed the power to address
    limitations on 1983 litigation created by the Court, but for
    decades it has failed to act. Congress in my view has lacked
    the political will to do the right thing on section 1983.
        The public's most recent demands for racial justice and
    police accountability however have shone a spotlight on these
    long-standing issues related to local and State employer
    liability under 1983 and brought renewed urgency for Congress
    to act.
        For example, I have introduced H.R. 1489, the Civil Rights
    Enhancement and Law Enforcement Accountability Improvement Act,
    which would amend section 1983 to impose vicarious liability on
    a municipality for a constitutional violation committed by one
    of its law enforcement officers. This both gives more
    likelihood that the plaintiff will get financial remuneration
    for their loss and that the officer will not be impeded in his
    efforts to patrol the streets properly for fear of monetary
    loss in a court himself because his employer would be
    responsible for that possible tort.
        I recognize Members or agents of State and local
    governments can commit all kinds of constitutional violations
    outside the policing context, including infringements on the
    First Amendment and religious freedom rights, for example, and
    I am open to taking a broader approach to this legislation.
        Note last Congress Senator Mike Braun of Indiana,
    Republican, introduced legislation in part also imposed
    vicarious liability on municipalities under 1983. I acknowledge
    differences among our Subcommittee Mmbers on issues surrounding
    civil rights litigation reform. I was heartened to see at our
    last meeting perhaps there appeared some level of agreement
    around issues related to municipal liability under section
    1983, particularly Mr. McClintock's response. It is my hope
    that at today's hearing we will continue to build on this
    potential consensus and can work together to develop concrete
    legislative responses that enjoy broad support.
        I thank the Witnesses for appearing today and I look
    forward to their testimony.
        I now recognize the Ranking Member of the Committee, the
    gentleman from the State of Louisiana, where they not only have
    jambalaya, but they have oil, Mr. Johnson, for his opening
    statement.
        Mr. Johnson of Louisiana. An exceptional culture. Thank
    you, Mr. Chair.
        I want to thank our Witnesses for being here this morning
    and appearing by video, those who are not here in person.
        As noted, today's gathering is the Committee's second
    hearing regarding civil rights litigation reform. Today we will
    focus on State and local government liability for the actions
    of their employees. I personally spent nearly two decades in
    Federal courts litigating these cases before I got to Congress,
    routinely litigated cases under section 1983 of the Civil
    Rights Act for the violation of persons' religious freedom and
    free speech rights, so this issue is of great interest to me.
        Currently, under section 1983, of course people can sue the
    government when one of its employees violates their
    constitutional rights. However, under section 1983 litigation,
    it is subject to certain restraints such as sovereign immunity,
    qualified immunity, and the Monell doctrine.
        As noted, the Monell doctrine permits injured parties to
    sue local governments for monetary, declaratory, or injunctive
    relief under section 1983 only if, ``the action that is alleged
    to be unconstitutional implements or executes a policy,
    statement, ordinance, regulation, or decision officially
    adopted and promulgated by the body's officers.'' Thus, the
    Monell doctrine does not provide complete liability protection
    for local governments if their employees engage in certain
    misconduct.
        We most often discuss the Monell doctrine as it relates to
    police misconduct, and I think that is where the focus is. Over
    the past couple of years some scholars have advocated for
    certain police reform proposals such as getting rid of
    qualified immunity for law enforcement officers. Additionally,
    some have argued for the eradication of the Monell doctrine
    thereby making local governments and municipalities vicariously
    liable for actions or omissions of their employees when the
    employee is acting within the scope of his or her employment.
        However, as the Committee examines the Monell doctrine
    today, I hope that we can have a rational conversation about
    the potential ramifications of removing this doctrine. For
    example, we need to seriously consider how moving to a
    vicarious liability standard may financially impact smaller
    localities and municipalities. We also need to consider what
    impacts such reform might have on officer behavior. We ought to
    be very clear; we should be, there is no room in our society
    for truly bad actors that engage in misconduct while on the
    job, but conversations surrounding police reform really need to
    be thoughtful and balanced and measured. You have to think
    about all the unintended consequences that may result.
        We have many, many brave men and women who put on uniforms
    every day to serve and protect the great citizens of this
    country, and they are often charged with making tough split-
    second decisions and they must do this job in an environment
    now that is increasingly hostile to law enforcement officers.
        Democrat calls to defund the police, a media that
    increasingly portrays law enforcement in a negative light and
    radical District Attorneys who refuse to prosecute criminals
    while crime is surging in major U.S. cities, all that make it
    all the more necessary for us to ensure that law enforcement
    officers are equipped with all the tools they need to do their
    jobs safely and effectively.
        I look forward to hearing from our Witnesses today and I
    yield back.
        Mr. Cohen. Thank you, Mr. Johnson.
        At this point we normally recognize our Chair and our
    Ranking Member. Neither which are here and I don't think either
    have a statement to give us, so we will go straight to the
    Witnesses.
        We welcome our Witnesses, thank them for participating, and
    I will introduce each of you before your testimony. We have got
    a five-minute rule. There is--four minutes you have got a green
    light; one minute you have got a yellow light; red light means
    you are supposed to be finished. You should be. There is
    something on your computer to show. For people here there is a
    light somewhere. You will see it, I guess. For the people on
    Zoom, you will see it on your screen. Should be visible.
        You are all under the oath to--or duty to tell the truth.
    If you don't tell the truth, you could be picked up, taken to
    the pokey, and put in jail. So, tell the truth.
        Our first Witness is Karen Blum, Professor Emerita of
    Suffolk University Law School. Taught for almost 50 years here
    on federal procedure, Federal court, civil rights, and police
    misconduct litigation. Served as faculty member for workshops
    sponsored by the Federal Judicial Center for Federal judges and
    Federal magistrate judges, authored numerous articles on
    section 1983 area, and is coauthor of the treatise, ``Police
    Misconduct Law and Litigation.'' As a professor emerita she
    continues to engage in 1983 programs throughout the country.
    J.D. from Suffolk University Law and her L.L.M. from Harvard,
    B.A. in philosophy from Wells College.
        You are recognized for five minutes.
        Mr. Johnson of Louisiana. Ma'am, you are on mute.

                        STATEMENT OF KAREN BLUM

        Ms. Blum. There we go. Okay. Well, good morning and thank
    you for having me, and giving me this opportunity to testify
    this morning.
        I have taught in this area of section 1983 for well over 40
    years, close to 50, and primarily in the area of section 1983
    litigation with a focus on police misconduct litigation. One of
    my earliest law review articles was on the Supreme Court's 1978
    Monell decision. I argued then, and I still believe, that the
    Court got it wrong when it rejected vicarious liability under
    section 1983.
        There are four points I would like to make this morning
    with respect to this topic, and I thank you for the opportunity
    to do so.
        First point: Legislative history does not support the
    conclusion that Congress rejected vicarious liability for local
    government entities under section 1983. Any argument against
    vicarious liability based on the congressional rejection of the
    so-called Sherman Amendment in 1871 is misplaced and simply
    wrong. A reading of the proposed amendment reveals that the
    proposal would have made local governments strictly liable for
    private acts of violence committed within their borders. This
    was not a form of vicarious liability based on conduct of
    government employees acting under color of State law, employees
    over whom the government exercises control.
        Second point: Scholars and judges, including Supreme Court
    justices, have questioned the soundness of Monell's rejection
    of vicarious liability. In Pembaur, in 1986, Justice Stevens
    criticized the rejection of respondeat superior liability as
    inconsistent with the legislative history of section 1983.
        In Bryan County v. Brown, in 1997, Justice Breyer, joined
    by others, called for a reexamination of the legal soundness of
    the distinction drawn by the Supreme Court between direct and
    vicarious liability suggesting that this aspect of Monell
    should be revisited especially in light of the fact that
    virtually all States have indemnification statutes that come
    into play when government employees are sued for conduct
    performed under color of State law.
        As Chair Cohen mentioned, Judge Jon O. Newman of the Second
    Circuit has long been an advocate of employer liability in
    section 1983 cases. His testimony is included in the record for
    the hearings conducted on qualified immunity before the
    Subcommittee on March 31, 2022.
        As David Rudovsky, a well-respected scholar and civil
    rights lawyer has put it,

            The incorporation of respondeat superior as a basis of relief
            against the government entity in one elegant move removes all
            of the difficult and irrelevant issues regarding municipal
            policy, and practice, and qualified immunity.

        Third point: As a practical matter Monell claims are
    difficult to plead and prove as well as expensive and time-
    consuming to litigate for both plaintiffs and defendants. The
    area of municipal or entity liability has become in the words
    of Justice Breyer, ``a highly complex body of interpretive
    law.'' Municipal liability claims have become procedurally more
    difficult for plaintiffs to assert since the Court's imposition
    of a more stringent pleading standard in Twombly and Iqbal, and
    even more challenging to ultimately prove after the Court's
    2011 decision in Connick v. Thompson.
        The bottom line is that litigating Monell claims is
    burdensome, expensive, and time-consuming for plaintiffs,
    defendants, and the courts.
        Fourth point: Imposing vicarious liability on governmental
    entities under section 1983 would not open the flood gates to
    litigation or liability. The reality is, as Professor Joanna
    Schwartz has documented, local and State governments currently
    indemnify their employees when there is a finding of individual
    liability. Individual defendants rarely if ever pay anything
    out of pocket for judgments rendered against them in these
    civil rights suits.
        Fifth point: Very important to remember is the fact that
    there is no liability on the part of anyone unless the
    plaintiff carries the burden of making out an underlying
    constitutional violation, and the standards the Court has
    established for various constitutional violations are rigorous
    and difficult to meet. Unlike State law claims, gross
    negligence, simple negligence will never suffice to prevail on
    a constitutional claim. The end. Thank you.
        [The prepared statement of Ms. Blum follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Ross [Presiding.]. Well, right on the dot, Professor
    Blum. You get an A for that.
        Ms. Blum. Thank you.
        Ms. Ross. Our next Witness is Bhavani Raveendran. Did I say
    that correctly?
        She is a partner at Romanucci & Blandin, LLC in Chicago
    where she concentrates her practice on civil rights litigation
    under the Civil Rights Act and State court cases of causes of
    action against governmental employers. During her tenure
    working on civil rights litigation, she has represented
    individuals and families in cases regarding the depravation of
    their constitutional rights, severe injury at the hands of
    State actors, or the loss of loved ones before juries and
    appellate courts. She has been instrumental in the
    representation of her clients in their civil suits including
    the families of George Floyd, Botham Jean, and Javier Ambler.
    Ms. Raveendran received her law degree from American
    University's Washington College of Law and her undergraduate
    degree in political science from Case Western Reserve
    University.
        Ms. Raveendran, you are recognized for five minutes.

                    STATEMENT OF BHAVANI RAVEENDRAN

        Ms. Raveendran. Good morning, Ranking Member Johnson,
    Representative Ross, and Members of the Subcommittee. I'm
    honored to be here today, and I thank you for your time.
        Respondeat superior and Monell are two sides of the same
    coin providing necessary avenues for litigants who have
    experienced a violation of their civil rights. I'm asking this
    Subcommittee to consider legislating to add respondeat superior
    or vicarious liability to this area of litigation while
    maintaining the Monell doctrine.
        Respondeat superior attaches when an employee acting within
    the course of scope of their employment causes harm to another
    person and the employer is held liable for that conduct. The
    reasoning is that an employee is acting at the direction of the
    employer and the employer should share in legal responsibility
    for harm caused for its benefit. Respondeat superior often
    applies where an employee's use of force is an expected part of
    their duties or job description, even if unauthorized such as a
    bouncer at a bar.
        Monell v. Department of Social Services held that a
    governmental employer can be sued directly for unconstitutional
    policies, practices, or customs that were the moving force
    behind or caused a constitutional violation under section 1983.
    Monell is an invaluable tool for certain section 1983 claims.
    For example, where a police department has a long-standing
    policy that allows for neck restraints on prone subjects which
    officers are using to engage in excessive deadly force. Another
    example, where overwhelming heat in a prison due to building
    conditions causes unconstitutional harm to inmates.
        Monell determined that respondeat superior did not apply to
    section 1983 despite long-standing common-law recognizing its
    application to municipal corporations' employees. Claimants who
    cannot meet the burdens of Monell do not have a realistic
    remedy where State law or collective bargaining agreements do
    not provide for indemnification of governmental actors, as most
    governmental actors do not ensure their own work or have
    sufficient assets to satisfy judgment.
        Monell's high standards of proof create a significant
    burden including finding information before the lawsuit begins
    to get past pleading standards, extensive discovery, and
    success in motion practice being dependent on information in
    the sole control of the defendants.
        The numerous obstacles in the path of successfully proving
    a Monell claim become a deterrent to litigants, attorneys, and
    the public in holding municipal entities accountable for
    failing to be proactive in policy, discipline, and training.
    For these reasons, Monell is not an adequate substitute for
    respondeat superior.
        The availability of the application of respondeat superior
    to section 1983 claims would lessen the number of Monell claims
    saving resources for all parties involved. Litigants would be
    able to choose whether vicarious liability or Monell was better
    suited for the facts of their specific case. For example, in a
    matter involving a corrections officer who sexually assaults an
    inmate violating their Eighth Amendment rights, respondeat
    superior may not apply if it is beyond the scope of employment.
    However, if the prison had previously overlooked known repeated
    assaults of inmates and failed to train, discipline, or
    terminate its employees, Monell would be well-suited.
        On the other hand, the assessment would differ in a
    scenario where a well-trained officer with prior--without prior
    complaints for excessive force discharges a firearm at an
    unarmed subject during a traffic stop when the subject
    discloses there is a legal firearm in the vehicle. If the
    officer acted in violation of the policies and training of the
    police department, a Monell claim may not be applicable, but
    respondeat superior would likely apply as it was within the
    scope of employment.
        Legislation to include respondeat superior in civil right
    claims would have many other benefits. Vicarious liability
    would apply to all municipal actors, not just police officers,
    ensuring additional protection for governmental employees that
    private employees enjoy. It would add an additional layer of
    protection for officers' privacy. Officers would potentially
    feel supported by their employer's decreasing burnout in
    smaller jurisdictions where indemnification is not guaranteed.
    Municipalities would have an added incentive to train officers
    on policies, root out problematic practices, and terminate
    problematic officers.
        Respondeat superior would also reduce a municipality's
    costs because attorney fees and costs paid out after a verdict
    are far more onerous in a Monell claim. In jurisdictions where
    officers are not indemnified there would be protection for
    officers and an available remedy to litigants allowing for
    civil rights claims to be litigated wherever they occur, not
    just where officers are indemnified. In conclusion, the
    Judiciary Committee and this honorable Subcommittee should
    consider legislation that would codify respondeat superior
    while preserving Monell to be utilized when the appropriate
    circumstances arise. Thank you.
        [The prepared statement of Ms. Raveendran follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Ross. Thank you very much.
        Our next Witness is Rafael Mangual. He is a senior fellow
    and Head of Research for Policing and Public Safety Initiative
    at the Manhattan Institute for Policy Research. He is also a
    contributing editor for City Journal. He has authored and co-
    authored a number of Manhattan Institute reports and op-eds on
    issues ranging from urban crime and jail violence to broader
    matters of criminal and civil justice reform. In 2020, he was
    appointed to serve a four-year term as a member of the New York
    State Advisory Committee of the U.S. Commission on Civil
    Rights. He testified before this Subcommittee back in March at
    our hearing on qualified immunity.
        Mr. Mangual received his J.D. from DePaul University where
    he was President of the Federalist Society and Vice President
    of the Appellate Moot Court Team. He received his B.A. from the
    City University of New York's Baruch College.
        Mr. Mangual, you are recognized for five minutes.

                      STATEMENT OF RAFAEL MANGUAL

        Mr. Mangual. Thank you so much and I'd like to once again
    express my gratitude to the Subcommittee for extending to me
    the honor and privilege of delivering testimony as part of its
    continuing examination of civil rights litigation reform. I was
    also honored to have addressed this body during the first part
    of its examination back in March of this year, and today as I
    did then I will focus my remarks specifically on police
    litigation.
        During that hearing, I offered reasons to be skeptical of
    the idea that qualified immunity essentially functioned as a
    unpierceable shield against liability for police officers such
    that officers internalize a sense of impunity that then leads
    them to misbehave in ways they wouldn't otherwise if they had
    more financial skin in the game.
        To the extent to the proposal to move to a vicarious
    liability or respondeat superior model reflects similar
    concerns about the incentive structure undergirding police
    behavior, I do think it's worth briefly reiterating the three
    primary reasons why such skepticism is warranted.
        First, there exists in use of force situations a documented
    tendency on the part of officers to default to what researchers
    call an intuitive as opposed to analytical approach to decision
    making, mostly because the situations in which such decisions
    are generally made don't lend themselves to the type of
    analysis that would be required for an officer to accurately
    assess his or her risk of personal liability and constitutional
    tort.
        Second, empirical research and other available data show
    that qualified immunity functions as a bar to recovery at a
    very small share of cases, like less than four percent, that
    are filed against police officers.
        Third, as things stand now, as was already mentioned,
    nearly 100 percent of the dollars recovered against police
    defendants in civil rights lawsuits, approximately 99.98
    percent according to one study, are already paid by the
    taxpayers in their respective jurisdictions pursuant to
    indemnification practices through either statutory requirements
    or contractual obligations, and yet despite this reality a
    recent study found with respect to use of force issues,
    ``unequivocal proof that officers are not notified of the facts
    and holdings of cases that clearly established law for
    qualified immunity purposes.''
        The question then is whether and, if so, to what degree and
    by what mechanisms would shifting to a respondeat superior
    model in civil rights significantly change police behavior in
    the aggregate? Seems to me that the answer to that question is
    far from clear. If, however, the primary concern animating
    proposals to shift liability for civil rights violations from
    State and local government bodies themselves is to minimize the
    risk that plaintiffs whose rights have been violated will go
    without redress, then this sort of end-run-around qualified
    immunity makes a bit more sense.
        That said, there are issues worthy of consideration. Among
    them the risk of destabilizing insurance markets in ways that
    will leave smaller municipalities unable to afford to insure
    themselves against the risk of excess liability. This is more
    than just a theoretical concern. In the 1980s the municipal
    liability insurance market experienced significant
    destabilization leading some municipalities to completely
    disband their police departments. There is already evidence
    documented by the University of Virginia's Professor Kenneth
    Abraham of more recent insurance market destabilization related
    to police litigation that really ought to place this risk among
    the primary considerations of this body as it considers related
    proposals.
        A more moderate approach might be, as I proposed during my
    testimony in March, to legislatively reestablish the analytical
    sequence set out in Saucier v. Katz and restrict municipal
    liability only to those cases in which a not-yet-established
    constitutional or other Federal civil right is found to have
    been violated. This would provide several benefits including
    the promotion of the development of the law, more quickly
    shrinking the scope of unestablished rights, maintaining
    important if limited protections enjoyed by individual
    officers, minimizing budgetary risks of a broader vicarious
    liability approach, and ensuring that plaintiffs whose right
    have been violated are able to recover.
        To minimize the risk of destabilizing insurance markets and
    leading smaller municipalities unable to afford their own
    insurance policies in the lurch an expansion of municipal
    liability should be coupled with an effort to optimize the
    regulatory environment with an eye toward allowing private
    insurers to operate across State lines to build larger risk
    pools as well as facilitating the creation and expansion of
    inter-governmental risk pools.
        Any legislation on this front should also build in a
    significant grace period between passage and the effective date
    of the legislation to allow for the development of the
    infrastructure municipalities are going to need to have in
    place to effectively manage their risk.
        Finally, I'd like to also take this opportunity to suggest
    that perhaps another thing the Subcommittee should consider is
    whether the oppositional tone of our public debate and
    Congress' role in contributing to that tone has contributed to
    the current police recruitment and retention crisis that risks
    leading to a situation in which individuals are dissuaded from
    careers in policing leaving departments to choose between and
    among lower quality candidates who may actually be more likely
    to engage in official misconduct due to either malice or
    ignorance.
        An example of this is the well-documented phenomenon of
    wandering cops, officers who leave one department under a
    disciplinary cloud and are then hired by another. A recent
    report by my Manhattan Institute colleague Dorothy Moses Schulz
    suggests that the recruitment of high-quality officers will
    play a key role in addressing this phenomenon and the problems
    that stem from it and recommend a Federal effort to subsidize
    the improvement of the quality of our nation's police forces
    through hiring.
        With that, I want to, once again, thank the Subcommittee
    for the opportunity to speak to these important issues of which
    I hope this statement will contribute to a better
    understanding. Thank you.
        [The prepared statement of Mr. Mangual follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Ross. Thank you so much for your testimony.
        Our final Witness is Payvand Ahdout.
        Please tell me if I have mispronounced your name.
        She is an Associate Professor of Law at the University of
    Virginia School of Law. Her research centers on the modern uses
    of judicial power through the lens of the Federal courts.
    Focusing on the structures that compose the institutions that
    are most often before the Federal courts her work incorporates
    multiple legal disciplines including constitutional law, civil
    procedure, and criminal law and procedure. Her current projects
    study the phenomenon of litigating Federal power disputes as
    well as judicial agenda setting outside of the Federal courts.
        Professor Ahdout received her law degree from Columbia Law
    School where she was the James Kent Scholar and recipient of
    the Ruth Bader Ginsberg Prize. She received her undergraduate
    degree in economics and government with highest distinction
    from the University of Virginia. After graduating from law
    school, she served as a law clerk for the Honorable Ruth Bader
    Ginsberg, Associate Justice of the United States Supreme Court,
    and the Honorable Deborah Ann Livingston of the United States
    Court of Appeals for the Second Circuit.
        Professor Ahdout, you are recognized for five minutes.

                      STATEMENT OF PAYVAND AHDOUT

        Ms. Ahdout. Thank you for having me today to talk about
    this critical issue.
        Today I want to focus on Congress' authority here and the
    power that you have to make real change in the realm of
    sovereign immunity.
        Sovereign immunity is the legal principle that sovereign
    entities cannot be hauled into court without their consent.
    Sovereign immunity is an immunity from suit, not an immunity
    from liability. This means that sovereigns generally set the
    terms for how, to what extent, and in which courts they'll face
    legal liabilities.
        Although State sovereign immunity is grounded in the 11th
    Amendment, it's different in important respects from Federal
    sovereign immunity. Importantly, State sovereign immunity is
    not absolute, and its contours are not entirely within a
    State's own hands. Congress has the main role in defining its
    boundaries.
        Under section 5 of the 14th Amendment, Congress has the
    power to authorize Federal courts to enter damages awards
    against States as a means of enforcing the substantive
    guarantees of the 14th Amendment.
        In an opinion by Chief Justice Rehnquist, the Supreme Court
    recognized that the 14th Amendment shifted the Federal/State
    balance that has been carried forward to this day. Not only
    does section 5 of the 14th Amendment contain an express grant
    of plenary legislative authority, but it does so in the context
    of an amendment whose other sections by their own terms embody
    limitations on State authority. For this reason, Congress may
    choose to abrogate sovereign--State sovereign immunity to
    enforce the substantive guarantees of the 14th Amendment.
        To successfully do so, a statute must satisfy a two-prong
    test.
        First, the statute must evince clear congressional intent
    to abrogate State sovereign immunity in the text of the
    statute. For example, you could provide a right of action for
    monetary damages against a State.
        Second, to have requisite constitutional authority, the
    statutory provision must be congruent and proportional to the
    targeted violation. Although the test is not well-defined, we
    do know that Congress may enact prophylactic legislation that
    prescribes facially constitutional conduct to prevent and deter
    unconstitutional conduct.
        We also know that courts look to and depend upon
    evidentiary findings that Congress makes in prescribing
    unconstitutional conduct. It's important for Congress to
    document, for example, whether there is a history or pattern of
    unconstitutional conduct or discrimination. It's important to
    note that Congress has the latitude to abrogate State sovereign
    immunity only to remedy rights that are protected by the 14th
    Amendment. This means that Congress has broader latitude to
    abrogate State sovereign immunity in the context of race- or
    gender-based discrimination, for example, than for age-based
    discrimination.
        There's an interesting Federal/State balance in recognizing
    that section 5 of the 14th Amendment provides authority for
    abrogation of immunity. Ordinarily States are treated as co-
    equal sovereigns whose monetary fists are protected, but when
    States engage in systemic subversion of Federal rights, the
    Constitution provides mechanisms for Federal supremacy, one
    form of which is congressional authority to provide cause of
    action for monetary damages.
        I want to now clarify why it is that section 1983 does not
    by its terms apply to States or Act as an abrogation of State
    sovereign immunity.
        As of now States may not be sued under 1983 for two
    independent statutory reasons: First, in a case called Quern v.
    Jordan, the Supreme Court held that Congress did not clearly
    manifest an intention to abrogate State sovereign immunity in
    1983. The Court cited the limited debate on the point of State
    sovereign immunity as evidence that Congress didn't intend to
    abrogate immunity in this context.
        Second, the Supreme Court has held that States are not
    considered persons with 1983 statutory text. In Will v.
    Michigan Department of State Police, the Supreme Court reasoned
    that Congress ordinarily does not use the word ``person'' to
    apply to States. What's more, in statutory interpretation,
    there's a default role that Congress must use unmistakably
    clear language in the statute where it intends to alter the
    usual constitutional balance between the States and Federal
    government.
        Together these two decisions show that it is in Congress'
    hands to determine whether to provide a monetary damages remedy
    against the States and there is no constitutional barrier to
    providing such a remedy.
        I recommend that you be as specific as possible in any
    legislation seeking to abrogate State sovereign immunity both
    in your intent to abrogate immunity and in your reasons for
    doing so. Be clear in the text of the statute that you're
    providing a statutory cause of action for monetary damages
    against the States. I recommend that you make necessary
    evidentiary findings of State subversion of Federal rights to
    fortify your statute during judicial review.
        Although 1983 includes a damages remedy for both
    constitutional and statutory violations of Federal law, it's
    important to note that your authority to abrogate State
    sovereign immunity broader with respect to Federal
    constitutional violations than Federal statutory violations
    because it's aimed at getting at systemic subversion of Federal
    rights by States.
        Thank you for your time and thank you for having me today.
        [The prepared statement of Ms. Ahdout follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Ross. Thank you very much.
        Thank you to all our learned panelists.
        We will now proceed under the five-minute rule with
    questions, and I will begin by recognizing myself for five
    minutes.
        Just like the Ranking Member, I too spent many years as a
    civil rights attorney litigating under 1983 on a variety of
    different rights and I am very happy that this hearing is
    extending beyond issues that deal with law enforcement.
    Because, as the Ranking Member said, there are many, many
    violations of people's civil rights and constitutional rights
    that go well beyond law enforcement and any action that we take
    should deal with the broad constitutional rights that we all
    enjoy.
        As we know, our Constitution and its amendments exist to
    guarantee fundamental rights. When those rights are violated by
    the government, citizens and residents should be able to expect
    remedies to repair harm they have experienced and receive
    assurances that the violations they have experienced will not
    be repeated. Yet, under current law people who have their
    rights violated by an employee of the State or municipal
    government have extremely limited paths to obtain remedies.
        While Monell holds that a local government can be held
    responsible for providing relief in cases when their employees
    violate a person's constitutional rights, the Court's
    subsequent interpretation of this case and 1983 make it
    extremely difficult for plaintiffs to obtain remedies.
        Monell further prevents local governments from being held
    vicariously liable for rights violations by their employees
    even though it is common practice for private employers to be
    vicariously liable for their employees' behavior.
        While discussion of government liability for police
    misconduct is particularly pertinent, there are many cases, as
    I said, of constitutional rights violations by other types of
    government actors: Free speech, inappropriate social services,
    terminations of parental rights, and illegal searches and
    seizures. Victims of these violations deserve a path to obtain
    justice and repair the harm done to them by their own
    government.
        Creating accountability for government employers
    incentivizes them to put in place safety measures, exert care
    in hiring, and improve training of employees acting as a
    preventative measure against rights violations.
        Any long-term solutions must consider how we can properly
    hold State and municipal governments accountable for violations
    that occur under their watch.
        My first question is for Ms. Raveendran. Can you tell us
    about all the procedures and steps that are required to proceed
    with a Monell claim and how it is particularly complex
    litigation and even hard to get a lawyer to take your case?
        Ms. Raveendran. Thank you for your question, Representative
    Ross. You hit it on the head. It is very complex at every
    stage. At the very outset, finding an attorney can be difficult
    because it takes a firm that has the resources to get multiple
    experts, have the attorneys available to review documents, take
    depositions beyond the normal Federal limit of depositions.
        At the very outset of the case, you need to get information
    that's within the hands of the defendants which means that you
    are FOIAing, sending FOIA requests out to municipalities and
    officers and trying to get as much information as you can. A
    lot of that information isn't available without confidentiality
    orders, protective orders of some kind. It's highly redacted,
    so it's very difficult to build a claim at the outset.
        We talked a bit about discovery process. Now, that's
    thousands and thousands of pages potentially to prove that
    there's a pattern and practice you'd have to go through. So,
    you just really need the numbers in terms of your attorney
    team.
        At the very end of the case you have to choose--you have to
    prove that the violation was caused by this policy, the moving
    force behind the policy. That is a very difficult burden to
    prove for plaintiffs unless the acts have been incredibly
    egregious and well-known. A lot of that information has to come
    from deposition testimony that is again, within the control of
    the municipalities. So, it's very difficult. That's not even to
    mention trial and having a jury try to understand this very
    complicated concept.
        Ms. Ross. Thank you very much. Can you tell us whether in
    these cases generally there is any monetary compensation that
    comes out or is injunctive relief more common?
        Ms. Raveendran. For Monell cases, usually you're looking
    for injunctive relief, you're looking for policy change, and
    having a Monell claim with a 1983 claim sometimes assists in
    targeting that. When you look for the monetary relief, it's a
    lot more closer to the injury, so you're proving the injury.
    Then on top of that you have to prove the constitutional
    violation. So, it makes it easier to get injunctive relief.
        Ms. Ross. Thank you very much.
        I now recognize the Ranking Member, Mr. Johnson.
        Mr. Johnson of Louisiana. Thank you, Madam Chair.
        This is a really sharp panel of Witnesses. We are grateful
    for you guys being here.
        As we have noted the topic of removing the Monell doctrine
    has most recently come up during conversations surrounding the
    conduct of law enforcement officers and police reform. Some
    people suggest that the Monell doctrine provides nearly
    complete liability protection for State and local governments
    that employed bad actors. Others are concerned that eliminating
    the Monell doctrine would put a major strain on the budgets of
    small towns and municipalities and would yield a minimal real-
    world impact.
        Let me ask my question of Mr. Mangual. Since the summer of
    2020, of course, there have been several legislative proposals
    that would eliminate the Monell doctrine entirely. You touched
    on this, but let me just ask you directly: Do you agree with
    the premise that police officers are somehow misbehaving
    because they don't have any financial skin in the game and that
    eradicating the Monell doctrine would create a noticeable
    impact on how police act?
        Mr. Mangual. I do not agree with that characterization of
    the situation on the ground. As I've mentioned, if you look at
    1983 litigation filed against individual officers, those cases
    are very, very often successful. Qualified immunity functions
    as an effective bar in less than four percent of cases.
        Just look at my city of New York. There's a database
    lawsuits filed against the NYPD in Federal court maintained by
    the Legal Aid Society that contains about 2,400 cases. If you
    filter out those cases by disposition, only 74 were disposed of
    in favor of the police defendants, which is still about three
    percent.
        So, the idea that it's civil rights litigations that are
    providing a real financial shield to police officers is wrong,
    especially because even when officers are successfully sued in
    their individual capacities, the municipalities are already
    picking up the tab.
        The biggest reason to be skeptical of this, as I mentioned
    in the front part of my testimony, is that when officers are
    out in the field, they are making decisions in very rapidly
    unfolding situations that don't lend themselves to legal
    analysis. The idea that police officers are faced with a
    criminal suspect and then are engaging in the sort of analysis
    to identify what their potential exposure might be is just
    incongruent with the reality of those situations in which
    officers are acting based on intuition and training.
        Mr. Johnson of Louisiana. Thanks for that. You also talked
    a little bit about the unintended consequences of eliminating
    Monell would have on small localities' budgets, and you talked
    about this destabilizing of the insurance markets. I think you
    said that it has led to some small towns already completely
    disbanding their police departments, which is just shocking.
    Then we have got this recruitment crisis in law enforcement as
    well.
        Would you comment a little bit more about what a profound
    effect this would have in this arena?
        Mr. Mangual. Sure. Sure. So, there's some scholarship that
    I cite in my written testimony done by Professor John Rappaport
    that explains how in the 1980s, small municipalities because of
    destabilization in the insurance market did, in fact,
    completely disband their police departments.
        More recent research by Kenneth Abraham shows that a lot of
    those patterns of destabilization are starting to appear again
    over the last few years. Part of that has to do with the way
    insurance markets are actually reading the tone of our national
    debate about policing and police reform and the attention that
    this issue is getting.
        At the same time there's been a big proliferation in the
    availability of cell phone cameras, et cetera, which not only
    provides different kind of evidence that may be weighed
    differently by a jury, but also that places a lot of new
    political pressures on municipalities not to fight cases too
    hard, which means that the legal exposure might grow.
        As that happens most cities, big cities and States are able
    to self-insure against this kind of expenditure, but smaller
    towns don't necessarily have that infrastructure in place.
        So, a shift to complete municipal liability in all these
    cases might actually present some real problems for smaller
    municipalities who won't be able to afford the kind of
    insurance that's already contracting in terms of its--the scope
    of its coverage and increasing in terms of its cost.
        Mr. Johnson of Louisiana. Thank you for that.
        Speaking of political pressure, I think that we have to
    remember that calls to curtail or abolish qualified immunity
    and the Monell doctrine--they have to be considered in the
    context of today, and many of our Democrat colleagues have a
    years-long effort to take funding and resources away from
    police departments. These calls have even come from some
    Members of this Subcommittee. So, many large jurisdictions
    around the country like Seattle have defunded their police
    departments. In 2020, the city cut its police budget by 17
    percent. What are the effects?
        Just last week, Seattle Times reported the department is no
    longer investigating new sexual assault cases because the unit
    in charge of those matters is so depleted. These are real world
    effects and I think that should cause everybody concern. So, I
    am grateful for the thoughtful discussion. There is a lot of
    thoughtful debate that needs to be had about all this.
        I am out of time, so I yield back.
        Ms. Ross. So next we are going to recognize Chair Johnson.
    I don't see Mr. Raskin on the screen. So, Chair Johnson, the
    floor is yours.
        Mr. Johnson of Georgia. Thank you, Madam Chair. I might
    State that we need to move beyond simply having a conversation
    about police misconduct and instead put forth some concrete
    standards of accountability to ensure that local, State, and
    Federal agencies can finally be held accountable under the law
    for constitutional violations.
        If you have a constitutional right that is violated with
    impunity and there is no accountability for the violation, then
    that constitutional right is worthless. So, that is what this
    discussion is about today. We must fight back when the
    consequences--we must fight back where the consequences can be
    felt the most, and that is the pockets of those responsible.
        So, Ms. Raveendran, the law currently acts as a deterrent
    to quality suits that could bring about accountability by those
    who have had their civil rights violated by police officers
    rather than as a deterrent to the officers and municipalities
    from engaging in this type of activity and making improvements
    to reduced claims. Is that correct?
        Ms. Raveendran. Thank you for your question, and yes, it is
    correct.
        Mr. Johnson of Georgia. In fact, isn't it true that local
    police departments are best suited to address deficiencies in
    training and supervision that often lead to police misconduct
    rather than the individual officer?
        Ms. Raveendran. Yes, they would be better dealt with by the
    municipality or the police department itself.
        Mr. Johnson of Georgia. Current law actually makes police
    departments less responsible for their officers' actions than
    for example a big chain store would be for the conduct of its
    security guards. Isn't that correct?
        Ms. Raveendran. Exactly, yes.
        Mr. Johnson of Georgia. Ms. Raveendran, wouldn't it then
    follow that imposing vicarious liability on municipalities
    could inform better training policies, procedures, and improved
    practices with government?
        Ms. Raveendran. Yes. Thank you for your question.
        Mr. Johnson of Georgia. Can you briefly explain to us why
    it is important to hold State and local governments accountable
    through respondeat superior?
        Ms. Raveendran. Absolutely. First, it would just equalize
    what we provide private employees in the United States. Public
    employees who have the same job responsibilities are not
    provided that same coverage. In addition, it would help
    municipalities and police departments have added incentive for
    training programs, changes to policies, and not just what we
    have under Monell, which is where municipalities are putting
    constitutional policies and failing to train the officers on
    the application of those policies. So, I believe that would be
    very beneficial.
        It would also help municipalities have added incentive to
    terminate officers who have repeatedly violated constitutional
    rights or had repeated complaints where constitutional
    violations are a concern.
        We also would be able to apply respondeat superior to
    protect all governmental employees, not just police officers. I
    think that's a very important point.
        So, all those opportunities would be available for
    municipalities and police departments to make a better change
    and actually have effective policy reforms.
        Mr. Johnson of Georgia. Thank you for that response. Is it
    a fact that many, if not most, police departments and
    municipalities would obtain insurance to cover their exposure
    to any lawsuits alleging violation of constitutional rights by
    its police officers and other government officials?
        Ms. Raveendran. Yes, municipalities and police departments
    are able to receive insurance. Then you see insurance risk
    pools where multiple municipalities are covered by the same
    insurance policy. Then in the bigger cities they make a
    determination whether they're going to have some amount of
    umbrella coverage insurance, some insurance, or be self-insured
    where they're making a city council decision to have reserves
    put aside. That is not a determinant of how much in taxes that
    anyone is paying.
        Mr. Johnson of Georgia. All right. Thank you. I am about to
    run out of time, so I will yield back.
        Mr. Cohen. Thank you, Mr. Johnson.
        Mr. Owens, you are recognized.
        Mr. Owens. Thank you. I won't take but a few minutes, then
    I will give the remainder of my time back to my colleagues.
        I kind of entered this debate really kind of trying to
    understand both sides. I am not a lawyer; I have not been this
    field, but I will tell you my gut feeling is that this is a
    continuation of the two-year-long Defund the Police.
        Right now, we have lower recruitment, we have lower
    retention, we have higher crime, we have a demoralization of
    our police, and what we are going to do is add onto this more
    lawsuits. I just have a gut feeling that this is not the way we
    should be going at this point as a nation, recognizing that we
    cannot continue to attack those who defend our freedoms and our
    rights. We are going to have bad players in everything we do. I
    would rue the day that we sue parties because of what
    individual policymakers are doing.
        We look at the individual. If he is making--they are bad
    players, then let's take advantage of that and go after them.
    This I have concerns about.
        I just want to ask, just really quickly, Mr. Mangual, is
    there any additional comments you want to add to this
    conversation about this--I guess the unintended consequences of
    what we are looking at with this type of legislation?
        Mr. Mangual. Absolutely. I won't reiterate the potential
    for unintended consequences with respect to a smaller
    municipality's ability to find insurance coverage for this, but
    I do think it's worth just saying that to the extent that the
    goal here is to reduce the risk of civil rights violations
    perpetrated by police officers overall, I do think it's
    important to have a more robust examination of police
    recruitment and retention trends, in part, because to the
    extent that what we're going to do is constrain the budgets of
    municipalities big and small where that's going to have an
    impact on their ability to attract high-quality recruits to the
    profession. If that happens, we're actually going to ironically
    raise the risk of constitutional harms being committed by
    police officers.
        Now, I also think it's really important to just recognize
    how rare police use of force is. I think the tone of this
    debate reflects an overestimation of the rate of police use of
    force. In fact, police use force almost never.
        So, there's one study done in 2018, over one million calls
    for service to three municipal police departments in three
    different States: One in North Carolina; one in Arizona; and
    one in Louisiana--out of those million calls for service,
    114,000 criminal arrests were affected. In that entire data
    set, only one fatal police shooting was captured and in more
    than 99 percent of all those arrests, no physical force was
    used. In 98 percent of the cases in which force was used,
    either no or mild injury was sustained by the subject according
    to medical professional review.
        So, I think we have to take a step back, understand that we
    have almost 700,000 police officers making more than 10 million
    arrests a year and the rate at which they make mistakes is
    certainly a problem worthy of public consideration, but it is
    not a problem as large as has been implied.
        Mr. Owens. Thank you. Thank you so much.
        I am going to yield back the remainder of my time to my
    colleague, Ranking Member.
        Mr. Cohen. Thank you, Mr. Owens.
        Mr. Johnson of Louisiana. He yielded to me; I think.
        Mr. Cohen. Oh, I am sorry.
        Mr. Johnson of Louisiana. That is all right. I think we had
    a minute left. I will speak quickly. I appreciate my colleague
    yielding.
        For context I think the Democrats' call to defund the
    police, as I noted, is important. I have three pages. If I had
    time I would read into the comment--into the record comments
    from our Chair Jerry Nadler, Representative Karen Bass, Jamaal
    Bowman, Cori Bush, Alexandria Ocasio-Cortez, Mondaire Jones,
    Hakeem Jeffries, Pramila Jayapal, Ilhan Omar, Ayanna Pressley,
    Rashida Tlaib, among others, who have said we need to defund
    the police.
        The question is for Mr. Mangual. If Democrats were
    successful in this mass defunding police department effort,
    would that help or hurt in fixing what they see is a problem
    with the Monell doctrine and government employer liability for
    police actions?
        Mr. Mangual. Well, I think it would hurt, and again mostly
    because what you're going to end up with is a lower quality of
    police officer that's going to be more likely to engage in
    misconduct either as a result of malice or as a result of
    ignorance. There's lots of research showing that a more
    educated police force is going to result in lower rates of
    force, rates of misconduct.
        As we dissuade people from engaging in that profession and
    the ability of municipalities to use their budgets to attract
    people to that profession, we're going to worsen outcomes
    overall.
        Mr. Johnson of Louisiana. Seems obvious to us. Thanks for
    your time.
        I yield back.
        Mr. Cohen. Thank you.
        Mr. Owens, you were the only person on this Committee that
    wore cleats and a helmet, pads. Other than Ms. Demmings, I am
    the only person that had a badge and a gun. I am not for
    defunding the police and the Democratic caucus is not for
    defunding the police. Because a few people in the Democratic
    caucus might have said something doesn't mean that 90 percent
    of the caucus and the caucus is for--we are for supporting the
    police. We put money in the bills that we pass, the relief
    bills, the rescue bill, to let local governments fund the
    police. My city and my county put $28 million into funding the
    police. We recognize that need.
        I have supported the COPS Program ever since I have been
    here, and it was a Democrat who sponsored that and passed the
    COPS bill. We need more community policing and more officers on
    the street to interact and to make good contact.
        This is not about anything anti-police. This is about
    justice. This is about when there are problems and when there
    are torts and when there are victims, that their justice is
    allowed, that the proper parties are allowed to be--and
    responsible for it, and that by being responsible they will
    teach better and instruct the officers to follow the laws
    better and will have less problems in the future. This is about
    compensating the victims and encouraging programs that will see
    to it that torts are not committed.
        So, with that, I would like to ask Ms. Raveendran a
    question.
        Despite the burdens and difficulties that you describe in
    litigating claims under the body of law spawned by Monell, in
    your written testimony you also emphasize the importance of
    preserving Monell because it is still an invaluable tool under
    certain factual circumstances. Can you explain further why
    Congress should allow plaintiffs to make respondeat superior
    claims in addition to the claims currently permitted under
    Monell?
        Ms. Raveendran. Thank you for your question, Chair. Both
    Monell and respondeat superior are important for different
    types of claims. Monell can specifically target claims where a
    particular officer or governmental employee is not necessarily
    the reason that there was a violation. It's not an issue with
    that individual. It is an issue within the entire system.
        So, the best example for that was something that I
    described in my written testimony, and that is a prison that
    has a building that creates a condition where it's overly hot,
    which creates an Eighth Amendment violation for the inmates
    inside. Now, that's no particular officer's fault. No
    corrections officer has built the building. They are not in
    charge of the thermostat. They can't change that condition.
        In that kind of case, you need to be able to go after the
    municipality itself so that you can try to make a change there
    and get some compensation for anyone who may have been injured.
        In terms of respondeat superior, that is important because
    in cases where there is a constitutional violation that can be
    tied to a particular officer or governmental employee's conduct
    you should be able to go after that individual directly. Using
    respondeat superior you can still make it the municipality's
    issue to deal with, to fix with training, policies,
    recruitment, and termination of problematic officers.
        Mr. Cohen. Thank you, ma'am.
        Professor Blum, it is clear from your testimony you believe
    the Supreme Court in the Monell decision got it wrong regarding
    respondeat superior claims. If Congress were to amend the
    statute to permit those claims, would it be fair to
    characterize such legislation as correcting the Court's error
    in an area of law that Congress has clear constitutional
    authority to legislate therein?
        Ms. Blum. Yes. Thank you for your question and the answer
    is absolutely yes. This was the rejection of vicarious
    liability in Monell was an interpretation by the Court of a
    statute. Congress certainly has the power to tell the Court no,
    that's not what we meant or to correct the Court's error in
    that sense. So, yes. The answer is yes.
        Mr. Cohen. Thank you very much.
        With that, I would just like to use my last minute to make
    clear what I had said earlier. Police are for protecting the
    public and protecting the public with law enforcement, but
    proper law enforcement. Nobody is in favor of more George
    Floyds or more improper police shootings, but we are in favor
    of better training, better understanding of different
    demographics in the community, and more involved police patrols
    with community policing.
        Police also--and I talked to a policeman when I was home. I
    said what should we do about guns? He said get those AR-15s
    out. I know those guns. They kill. They would kill us. In
    Uvalde, one AR-15 held off 19 good guys with guns. We need to
    protect the police and get rid of AR-15s.
        Ms. Garcia, you are recognized.
        Ms. Garcia. Thank you, Mr. Chair. I apologize for being a
    little tardy, but I had a markup at another hearing. I too just
    want to say for the record that--with all due respect to the
    Ranking Member--he read some names. You may have noticed that
    it wasn't over 20, maybe 15. Our caucus is a little over 200.
    He did not read 200 names because, in fact, as the Chair said,
    that is not the position of the Democratic caucus and is not
    the position of the Democratic Party.
        I do not want to get too involved with partisan politics,
    but when somebody makes that kind of comment, we do have to
    correct it for the record.
        Mr. Johnson of Louisiana. Would the gentlelady yield?
        Ms. Garcia. No, I will not. I only have five minutes and
    they are my time.
        Mr. Johnson of Louisiana. All right.
        Ms. Garcia. So, I want to thank the Chair for convening
    this very necessary hearing. Today's hearing explores the
    contours of State and local government employer liability under
    section 1983. This hearing is essential as a matter of access
    to justice.
        Access to justice is a fundamental principle of the rule of
    law. As a judge and a lawyer, former judge, and a lawyer I
    very, very much understand that. Access to justice has many
    elements one of which is having adequate remedies for
    grievances. Justice without a remedy is no justice at all.
        Access to justice also implies overcoming systematic
    barriers: Financial, linguistic, cultural, and timeliness. In
    the absence of access to justice people are deprived of having
    their voice heard, exercising their rights, protecting their
    constitutional rights, or holding their government institutions
    accountable.
        When people are deterred from exercising a protected--
    protecting their constitutional rights, they are more likely to
    fall prey to the abuse of power by State and local government
    officials. Minorities, particularly Latinos, face many of these
    challenges. In my home State of Texas, we can find many of
    these examples of State-empowered abuses under the color of
    law.
        For example, Governor Abbott's so-called Operation Lonestar
    targets Latinos--individuals for prosecution thinking that they
    may have come across the border illegally. The State-sanctioned
    persecution of transgender children is another recent example.
        Somehow, my colleagues across the aisle seem to be confused
    that this is about defunding the police. Again, no one is
    saying that.
        I did want to ask Professor Ahdout--we talk about 1983 and
    we talk about police or other governmental employees. In fact,
    there are other governmental employees that we are concerned
    about here. Could you just tell us--give us some examples of
    people other than police that this would apply to?
        Ms. Ahdout. Of course. Governments have many, many
    different sorts of employees who do lots of different things
    who can--you have folks in sometimes school districts. You may
    have folks who work to distribute funds. For example, Medicaid
    funds and Medicare funds. Basically, every single government
    employee who executes the law, who does something to execute
    the law is someone who has touched by 1983. The category of
    individuals that we're talking about when we say if there is a
    systemic subversion of Federal constitutional right, there
    should be some remedy that addresses that systemic subversion
    of Federal rights from anti-discrimination claims all the way
    through law enforcement claims.
        Ms. Garcia. Right. I wanted to ask, Professor--is it
    Raveendran? You were talking about insurance and self-
    insurance. You didn't mention bonds. A lot of cities--and I
    also was a city comptroller in Houston, which oversaw the
    finances of about a $2.3 million budget and often we had to
    float bonds to cover some costs. I know more and more cities
    are floating bonds to cover the judgments as a result of some
    of these actions.
        Do you see an increase and a further debt burden on
    municipalities as a result of some of these cases?
        Ms. Raveendran. We've not seen an increase in the cases
    that we've been involved in. Yes, they're seeing the use of
    bonds on occasion. Usually there is a budget decision that's
    made if a city chooses to be self-insured, meaning that they
    allocate their own resources. It isn't determined based on how
    many judgments there are. They already have that budget.
    Usually that budget covers torts of all kinds, not just civil
    rights violations. It's determined by the city how they want to
    set aside those amounts. Yes, bonds are being used frequently
    for judgments on--after a trial.
        [Simultaneous speaking.]
        Ms. Garcia. I saw an article, and I will try to get it, Mr.
    Chair, and provide it for the record. I think it was coming out
    of a California case, that they are actually now characterized
    as police brutality bonds because it is the high judgments.
    Because these are the cases really that are the highest
    liability for some cities, that they are calling them police
    brutality bonds because without the bonds the cities would not
    be able to make and pay those judgments. So, with that, Mr.
    Chair, I will yield back. I will try to find the article and
    get it to us.
        Mr. Cohen. Thank you very much.
        That concludes today's hearing. I want to thank our
    Witnesses for appearing today.
        Without objection, all Members have five legislative days
    to submit additional written questions or additional materials.
        With that, we are done.
        [Whereupon, at 10:38 a.m., the Subcommittee was adjourned.]

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