A Distorted System of Constitutional Remedies

Part one of this article described how, following the Civil War, federal courts undermined enforcement of federally protected rights against public employees acting under color of law, and against their municipal entity employers. What follows describes how the U.S. Supreme Court can fix what has evolved into a frequently ineffective and distorted system of constitutional tort remedies.

LAST IN A TWO PART SERIES: Following Monroe, federal courts braced for backlash. The most frequent metaphor unleashed by critics was that the federal doors were now wide-open; the dockets had become flooded with new filings. Hydrologic allusion, though apt, should have been expected as nine decades of such litigation had been dammed, holding back what should have been a century of courts enforcing standards designed, in particular, to protect those yoked by segregation.

One wholly predictable result was that new doctrines sprouted to protect government. U.S. Chief Justice Earl Warren, no less, worried in Pierson v. Ray (1967) that a "policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." Accordingly, the Court created immunity doctrines never contemplated or addressed in the statute's legislative history to protect police, prosecutors and judges. Not that the Court's political sensitivity was misplaced. These were times when a Southern sheriff suing a Northern newspaper for alleged defamatory slights, garnered public support.

Ultimately, though, the Court acknowledged its faux pas. In Monell v. Dept. of Social Services (1978), it held that the statute did indeed provide a remedy against municipal entities. Correcting one mistake, it made yet another - misreading a failed 1871 amendment to the Act and employing a strained statutory interpretation.

Rather than simply employing respondeat superior, the familiar tort concept where an entity is responsible for its employees, the Court reasoned that because the language "shall subject or cause to be subjected" was an element in the original statute, Congress must have meant for courts to develop doctrine that more closely anthropomorphized the municipal entity. It wasn't enough that the employee intended to violate a citizen's rights. The entity, itself, had to evidence a culpability similar to human volition. Instead of using common sense and readily available tort doctrine, the Court doubled-down on historically tenuous statutory analysis and abstract legal fiction.

The new Monell standard required the constitutional tort to be caused either by the entity's "custom, policy or practice." A decade later, City of Canton v. Harris (1989) added gloss so that liability attached where the entity's employee training evidenced "deliberate indifference" to the federally protected rights of persons with whom its employees foreseeably interact.

The resulting oxymoron is a Rorchach test that neatly divides federal judges and justices into two camps. The more conservative group typically prioritizes "deliberate" over "indifference," government over individual, long-term structural considerations over the case at bar, and budgetary effects over deterring misconduct. Liberals, vice versa.

Connick v. Thompson, 2011 DJDAR 4526 (March 29), is a recent illustration. The falsely convicted plaintiff, having served 18 years (14 on death row), had no remedy against five prosecutors who failed to provide exculpatory evidence to his attorney because they were protected by court-created immunity doctrine. Consequently, he had to show a pattern of deliberate indifference by the entity employing the prosecutors. In Justice Clarence Thomas' opinion, joined by his four conservative colleagues, his showing of pattern was insufficient. For the dissent, vice versa.

This is the first of six reasons why "deliberate indifference" deserves history's dustbin. No reasonably informed person could believe that a case like Connick turns on how justices view fractal patterns on a canvas, as opposed to projecting their respective political proclivities. The 5 to 4 votes along the usual ideological fissure and gaping cognitive dissonance between judicial rhetoric and the decisions' real rationale erodes the Court's perceived legitimacy as law's neutral arbiter.

Second, as the scholars Posner cites persuasively explain, the Court simply got it wrong. Subsequent doctrine built upon a shaky premise only tends to diverge further from legislative intent.

Third, the statute is sufficiently important that it is worth getting correct. Significant civil rights legislation is typically a once-in-a-century event that Congress cannot easily revisit, tinker with or correct. Consider, for example, the decades of Jim Crow during which the 1871 Act was a dead letter. Justice William Rehnquist's contrary view, expressed in his Monell dissent (that stare decisis is more important because Congress formally has power to correct mistakes) sets up an interesting paradox: The most recent majority precedent on the subject directs the Court to fix its own obvious mistakes.

Fourth, the standard has already produced such poor public policy results that it presumptively violates congressional intent. Legislators obviously assumed that passing the Act would deter misconduct and promote well-managed public entities. A built-in assumption of republican political architecture is that institutions under pressure from other majority interests, such as competing financial pressure, predictably will do the absolute minimum necessary to comply with law. If the law's doctrine demands objectively reasonable discharge of ministerial duties, then that over time is what on average the enforced standard will produce.

If, by contrast, the Court chooses the softer standard of deliberate indifference, then the implied assumption is that Congress intended for courts to tolerate otherwise tortious and unreasonable misconduct that falls into the grey area between institutional negligence and willfulness.

In an institution, for example, such as the chronically underfunded Los Angeles County Men's Central Jail, where employee responsibility for jail conditions is often diffuse and otherwise immunized, there is scant federal pressure deterring it from evolving into a cesspool of violence, disease, and crime incubation. When dysfunction finally metastasizes to the point where politicians commission the inevitable public inquiry, it is no surprise the resulting report typically paints a picture of "deliberate indifference." By judicial design, that is where courts aim. The 42nd Congress, by contrast, intended government entities to function at a level of competence and accountability similar to private entities. Applying the same legal standard, then, is justice's direct route.

Fifth, as a general rule, it is better to have jurors rather than politically appointed judges discerning fact patterns. Whether one judge is, on average, smarter than six jurors is arguable, but that is not the point. It is less democratic. Log jamming fact-finding into pre-trial determinations is only another form of resistance to the Act's call, much less the general purpose of the Federal Rules of Civil Procedure, which is to bring disputed facts to citizens.

Finally, the litigious effort wasted in litigating Byzantine immunity and municipal entity doctrines often deflects from, rather then focuses on the highlighted public policy problem. Rather than paisley and plaid judicial creations, one simple, common standard of reasonableness, which forms the base for progressive professionalization of government functions, better promotes the public good. When the era of deliberate indifference finally passes, we will wonder why we ever endured such scholastic choreography on the heads of pins.