[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
EXAMINING CIVIL RIGHTS LITIGATION REFORM,
PART 2: STATE AND LOCAL GOVERNMENT
EMPLOYER LIABILITY
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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
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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
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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
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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
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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.]
QUESTIONS AND RESPONSES FOR THE RECORD
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