Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
warrantless search of his house. The Court held that it was appropriate to hold such officials
personally liable for violation of constitutionally protected interests where no other federal
remedy was available. Congress may assume any judgments resulting from such constitutional
torts, and indeed Congress has done just that. The federal government provides representation for
officials in 98% of Bivens cases where such representation is requested. Moreover,
indemnification of officers held liable in Bivens actions is “a virtual certainty.” Cornelia T.L.
Pillard, Taking Fiction Seriously: The Strange Results of Public Officials’ Individual Liability
Under Bivens, 88 GEO. L.J. 65, 76-77 (1999).
State officials, like their federal brethren, may be held personally liable for constitutional
torts under a provision of the Civil Rights Act of 1871, which was passed to combat a wave of
atrocities committed by the Ku Klux Klan in the South. See Harry A. Blackmun, Section 1983
and Federal Protection of Individual Rights—Will the Statute Remain Alive or Fade Away?, 60
N.Y.U. L. REV. 1, 5 (1982). Section 1 of the Act, now codified as Section 1983 of Title 42 of the
United States Code, aimed to protect freedmen in the South by providing a cause of action against
every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, 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 . . . .
Section 1983 was narrowly construed by courts and ignored by prosecutors for nearly a century.
But after the Supreme Court’s ruling in Monroe v. Pape, 365 U.S. 167 (1961), Section 1983
became a viable independent federal remedy against state and local officials for violations of
federally protected rights.
States are not subject to Section 1983 actions because they are not “persons” within the
meaning of the statue. Municipalities, by contrast, may be liable. But the Court has ruled that
there is no vicarious Section 1983 liability for the constitutional torts of municipal employees.
Municipal liability exists only when an official policy leads to the violation of a federally
protected civil right. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690-91 (1978).
Nevertheless, municipalities routinely indemnify police officers found liable in Section 1983 suits
even when there is no official policy. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L.
REV. 885, 888-90 (2014); see also PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES
FOR OFFICIAL WRONGS 85 (1983).
Does indemnification effectively replicate the economic structure of vicarious liability?
Or should municipalities be vicariously liable for their employees’ constitutional torts under
Section 1983? What is at stake in the difference? Note that regardless how municipalities deal
with the question of indemnity, civil rights lawsuits seem to have served poorly as tools for
deterring police misconduct. Few police departments use information gleaned from tort suits to
reshape their practices. See Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role
of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. REV. 1023, 1032 (2010).
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