PoliceCar_ss_46269745This is my first entry as a regular contributor to the Municipal & Public Entity section of the Professional Liability Advocate blog. Municipal and public official litigation falls under Wilson Elser’s Municipal/Local Government practice group.

Among other topics, this blog will focus on cases and liability under 42 U.S.C. §1983. Section 1983 is a notably short statute – it covers less than a single page in the United States Code – yet is responsible for a very large volume of federal litigation. This is because section 1983 does not provide substantive rights as such, but rather a procedural mechanism, a cause of action, to enforce rights guaranteed elsewhere by the U.S. Constitution and federal laws.

When the defendant in a section 1983 case is an individual, such as a police officer, liability turns on an objective standard. For example, in an excessive force case the issue is whether the defendant officer used more force than would have been used by a reasonable police officer facing the same circumstances. When the defendant in a section 1983 case is a municipal entity, liability turns on whether the plaintiff’s injuries are caused by a policy, custom or practice of the municipality. A municipality cannot be liable simply because an officer that it happened to employ acted.

Municipal liability under section 1983 was brought into focus by the recent finding of the U.S. Department of Justice (DOJ) regarding the Albuquerque, NM, Police Department (APD). In November 1982, the Civil Rights Division of the DOJ started an investigation of the APD under the Violent Crime Control and Law Enforcement Act of 1994 (42 USC 14141). The DOJ reviewed case files and interviewed supervisors, police officers and members of the public, and on April 10, 2014, it issued a 46-page, single-spaced report detailing the results of its investigation.

The DOJ found reasonable cause to believe that the “APD engages in a pattern or practice of use of excessive force, including deadly force, in violation of the Fourth Amendment and section 14141.” It specifically found a pattern or practice in the use of deadly force, the use of less than lethal force such as Tasers, and the use of force when interacting with persons with mental illness. The DOJ report found that these patterns were the result of deficiencies in oversight, training and policy.

The DOJ recommended specific remedial measures, including revising use-of-force policies, updating training practices, revising procedures for civilian complaints and internal investigations, strengthening recruitment and eligibility standards, and developing a comprehensive community outreach program.

Case law is unclear on whether a DOJ report would conclusively establish the existence of a municipal pattern or practice for purposes of a section 1983 claim, but at least one case has stated that such a report would be admissible in evidence as a government record. To date, a few cases from the District of New Mexico have referenced the DOJ investigation, but none so far have mentioned the report specifically. As pending excessive force cases against the City of Albuquerque proceed through the court system, it should be interesting to see what specific impact the DOJ report will have.

Ironically, just days after the report was issued, an Albuquerque police officer shot and killed a suspected car thief.

In my next entry in this blog, I will examine the defense of municipal immunity as developed by courts in the state of New York.