[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.]

                 QUESTIONS AND RESPONSES FOR THE RECORD

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

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                 [all]