Previously posted on SSRN.

Abstract

Under Monell v. Department of Social Services, local governments are not vicariously liable for constitutional violations committed by their employees. Those governments, however, are liable under 42 U.S.C. § 1983 for violations committed by "policymaking" officials. In the face of these two principles, courts have struggled with cases in which an underling commits a constitutional violation and the claim of municipal liability is based on a policymaker's failure to prevent it. The government can be liable in these "indirect-effect" cases for a policymaker's "deliberate indifference" to safeguarding constitutional rights, a standard that demands an even greater showing of culpability than gross negligence. Critics argue that this approach is misguided and that the Court should instead impose a rule of vicarious liability for all § 1983 claims made against municipalities. The goal of constitutional tort law, however, should not be either to remedy every constitutional violation or to limit liability to only the most egregious cases. Rather, the law should be structured in a way that better accommodates the competing policies that are at play in this context. These include the pro-liability values of vindication of constitutional rights and deterrence of violations, but also due regard for depletion of municipal resources and for the risk that officials will exercise too much caution. With accommodation as its guideline, the Court or Congress should abandon the deliberate-indifference test, because it is too lenient. General vicarious liability, however, is too expansive. A better approach is to adopt an objective negligence standard of liability, under which local governments would face liability in indirect-effect litigation for unreasonable failures to prevent subordinates' constitutional violations.

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