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Weighing Whether to Plead Monell New York Law Journal 2008

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New York Law Journal
Volume 239
Copyright 2008 ALM Properties, Inc. All rights reserved.
Wednesday, May 21, 2008
CIVIL RIGHTS LITIGATION
Weighing Whether to Plead 'Monell'
Ilann Margalit Maazel
It is many New Yorkers' dream to own a townhouse. The space, the privacy, 'living the life of Riley.' But as a recent New York Times article noted, the burdens
of townhouse living may outweigh the benefits: skyrocketing property taxes, leaky
roofs, homeowners' insurance, the duties of serving as your own doorperson and
garbage collector.
Monell claims are a bit like townhouses: they're big, there are many good reasons
to have them, but frequently they're more trouble than they're worth. Here is why.
What Is 'Monell'?
Under 42 U.S.C. §1983, 'Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable.' In Monell v. Dept. of Soc. Servs. of the
City of New York, 436 U.S. 658 (1978), the Supreme Court held that municipalities
are 'persons' within the meaning of §1983. For a municipality to 'subject[]' a
person to a constitutional violation, however, there must be causation between a
'municipal' act and the unconstitutional deprivation. Not every municipal employee
can speak or act on behalf of the municipality; there is no municipal respondeat
superior liability under §1983. Rather, the 'municipality' acts either where a
high-ranking policy maker (e.g., the mayor) acts, or where a lower employee's unconstitutional act is part of a municipal custom, policy, pattern or practice of
unconstitutional violations.
Why 'Monell'?
There are many reasons why a plaintiff may wish to assert a Monell claim. For example:
• Deep Pockets. If a plaintiff prevails on a Monell claim, there is little question that the judgment can and will be collected. But before asserting Monell

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claims to ensure a deep pocket, plaintiff's counsel should consider how often it
is actually necessary to prevail on a Monell claim in order to get the judgment
paid.
First, the vast majority of federal civil rights cases also involve New York common-law intentional torts, for which the municipality is usually liable under respondeat superior. Common-law claims for false arrest and false imprisonment contain essentially the same elements as Fourth Amendment false arrest and imprisonment claims. Common-law assault and battery claims exist whenever a plaintiff has
excessive force claims under the Fourth Amendment (in the police context), or under the Eighth Amendment (in the prison context).
Assuming (1) the defendant acted within the scope of employment; (2) the
plaintiff filed a timely notice of claim against the municipality; and (3) the
plaintiff filed the lawsuit against the municipality within the statute of limitations (usually one year and 90 days), the city is liable, with or without a Monell
claim. [FN1]
Assume, however, that the plaintiff missed the one-year, 90-day statute of limitations. The plaintiff (in New York State) still has three years to assert §1983
claims against individual defendants. And as a practical matter, New York City,
notwithstanding the clear command of N.Y. Gen. Mun. L. §50-k(3), will almost always indemnify city employees, whether or not they violated a rule or regulation
of their agency, and whether or not they engaged in intentional wrongdoing or
recklessness. [FN2] It is the rare, extremely egregious case where the city will
not indemnify, and therefore the rare case where plaintiff will need to prove a
Monell claim to ensure a deep pocket.
• Discovery. In a typical stand-alone police misconduct case, a case involving a
single false arrest by the NYPD, for example, the plaintiff will be entitled to
discover any and all documents concerning the arrest and the underlying incident.
The plaintiff will likely be entitled to police department policies concerning arrests (which may be relevant, inter alia, to punitive damages). But the plaintiff
will plainly not be entitled to any and all records of police department arrests
throughout New York City.
If the same plaintiff, however, asserts that she was the victim of a pattern and
practice by the NYPD of stopping and arresting African-Americans without probable
cause, it is an entirely different case. Plaintiff will be entitled, at a minimum,
to citywide data concerning arrest practices, and probably to a substantial number
of underlying arrest records. The sheer volume of discovery will dwarf anything
the non-Monell plaintiff would have received. And within that production, there
may be any number of damaging documents helpful to plaintiff's case.
The assertion of Monell claims may also facilitate production of the individual
defendants' personnel records. To be sure, this information should be discoverable

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even in a non-Monell case. Evidence of prior acts is admissible under Rule 404(b)
of the Federal Rules of Evidence to prove 'motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' Personnel records of defendants are also relevant to a New York common-law claim against the
municipality for negligent hiring, supervision, discipline, and/or retention of
the defendant officer, if plaintiff asserts such a claim.
In a Monell case, the discoverability of personnel records is at its zenith. In
Fiacco v. City of Rensselaer, 783 F.2d 319, 328 (2d Cir. 1986), the U.S. Court of
Appeals for the Second Circuit held that prior complaints against defendants and
other police officers were discoverable and admissible, whether or not they were
valid, in a Monell case challenging the city's policy of deliberate indifference
to the proper investigation and supervision of police officers in the use of
force:
[T]he evidence that a number of claims of police brutality had been made by other
persons against the City, together with evidence as to the City's treatment of
these claims, was relevant. Whether or not the claims had validity, the very assertion of a number of such claims put the City on notice that there was a possibility that its police officers had used excessive force. The City's knowledge of
these allegations and the nature and extent of its efforts to investigate and record the claims were pertinent to Fiacco's contention that the City had a policy
of nonsupervision of its policemen that reflected a deliberate indifference to
their use of excessive force.'
The court noted that a Monell plaintiff was not only entitled to inquire about
prior incidents, but required to do so to prove the Monell claim:
Since the existence of a policy of nonsupervision amounting to deliberate indifference to constitutional rights cannot be established by inference solely from
evidence of the occurrence of the incident in question...a plaintiff cannot prevail on a §1983 claim against a municipality without introducing other evidence.
Proof that other claims were met with indifference for their truth may be one way
of satisfying the plaintiffs' burden.
• Overcoming Immunities. In §1983 cases, police officers, investigators, prosecutors, and other individual government actors enjoy qualified immunity, i.e., immunity 'from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have known.' [FN3]
Municipalities, however, do not enjoy qualified immunity. In a case where municipal employees violated federal law that was not clearly established, a plaintiff
must prove Monell to prevail on the federal claim.
Monell claims can also be used to overcome absolute immunity. Prosecutors, for
example, enjoy absolute immunity for their initiation and prosecution of a crimin-

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al case, even for suborning perjury, deliberately failing to turn over Brady material, and other prosecutorial misconduct. But, in the Second Circuit, counties
are liable where the district attorney (1) acting in a 'managerial' capacity, (2)
as part of a custom, practice, or policy within the district attorney's office,
(3) violates the Constitution or other federal law, (4) where such violation proximately causes injury. For example, if a district attorney customarily fails to
supervise or train assistants on Brady issues, or customarily ignores evidence of
police wrongdoing, the county may be liable for any wrongful prosecution or conviction proximately caused by such custom or policy. [FN4] In many cases, Monell
may be the only avenue to relief in wrongful conviction cases asserting prosecutorial misconduct.
Why Not 'Monell'?
Why not plead a Monell claim in every civil rights case? The first reason is obvious: plaintiffs should not plead the claim unless they have a good faith basis
to bring the claim. But assuming there is a good faith basis, there are many tactical reasons not to assert Monell as well.
First, the plaintiff will be overwhelmed with discovery she does not need in order to prove her case. Why review a million documents when a hundred documents
will do? Second, plaintiff will likely be involved in unnecessary motion practice
concerning voluminous discovery that corporation counsel generally does not like
to produce. Again, why engage in motion practice over discovery the plaintiff does
not even need? Third, plaintiff may face a time-consuming and unnecessary summary
judgment motion to dismiss the Monell claim. Fourth, even if the claim does survive to trial, the court may bifurcate the Monell claim from plaintiffs' other
claims, so that the jury will not hear prejudicial evidence (e.g., evidence of
prior complaints against the defendant officers) potentially relevant only to the
Monell claim. The court may bifurcate, and hold a Monell trial second, for another
reason: if the plaintiff cannot prove in the first trial that the individual defendants violated her constitutional rights, then plaintiff cannot prove that the
municipality's policy, custom, or practice caused any unconstitutional violation,
eliminating the need for a second, Monell trial against the municipality. [FN5]
Needless discovery and motion practice and an extended, bifurcated trial will
substantially delay the case, delay that may not be in the plaintiff's interest.
Delay may prove particularly galling given this key point: damages for Monell
claims are no greater than damages for non-Monell claims. The plaintiff who is
falsely arrested by an errant police officer receives the same damages as the
plaintiff who is falsely arrested pursuant to a municipal policy of falsely arresting people. If the damages are to be the same, most plaintiffs would rather
get their judgment one to two years after filing, not three to four, or more,
years after they brought the case.
Conclusion

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Many plaintiffs' lawyers plead Monell claims in every single §1983 case. This is
a mistake. In most individual civil rights cases, Monell claims are not only
pointless, but also potentially prejudicial to the efficient prosecution of
plaintiff's case.
Before moving to the Monell townhouse across the street, consider staying in your
apartment. The view may be just as good, and the value, much better.
Ilann Margalit Maazel is a partner at Emery Celli Brinckerhoff & Abady, which
specializes in civil rights and commercial litigation.
FN1. Of course, there is no fee shifting for common-law tort claims.
FN2. For an alternative approach to indemnification of police officers, see
Richard Emery & Ilann Margalit Maazel, 'Why Civil Rights Lawsuits Do Not Deter Police Misconduct: The Conundrum of Indemnification and a Proposed Solution,' 28
Fordham Urb. L.J. 587, 600 (2000).
FN3. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
FN4. Myers v. County of Orange, 157 F.3d 66, 77 (2d Cir. 1998) (collecting cases).
In New York City, where counties are constituent parts of city government, the
claim is against the city. See, e.g., Jovanovic, 2006 WL 2411541, at *17-18.
FN5. See, e.g., Amato v. City of Saratoga Springs, 170 F.3d 311, 316 (2d Cir.
1999).
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END OF DOCUMENT

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