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Departments : Point of Law

Chief Accountability

October 01, 2003  |  by Devallis Rutledge - Also by this author

Have you ever noticed that whenever a plaintiff's attorney files suit against someone in the department for an alleged violation of rights, the chief (or sheriff, commissioner, director or other top cop) also gets sued?  If you're the chief, should you be worried?

Statutes, Torts, and Civil Rights

There are three basic categories of civil cases that can be brought against public officials: (1) under a state or federal statutory scheme that creates specific causes of action to cover particular subjects (employment, sexual harassment, public records access, vehicle pursuits, etc.); (2) under general tort law (for such things as negligence, false imprisonment, assault and battery, infliction of emotional distress, etc.); (3) or you might be sued under Title 42, section 1983, of the US Code, for alleged violations of federal statutory or constitutional rights by state and local officials acting under color of law (similar suits against federal officials are permitted by case law; see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics).

The potential liability of the chief of an agency under the first two categories will be controlled by statutory schemes, or by state case law. This varies by state and by cause of action. Jurisdictions often apply a rule of law called "respondeat superior," which makes the chief liable for the torts of his or her subordinate officers. But it is also common for states to legislate immunities from tort damages for particular acts and omissions, so that you don't get sued for failing to make an arrest or prevent a crime.

Because the state rules vary widely in the first two categories of cases, it isn't practical to try to discuss the potential liabilities, immunities, and defenses for the various statutory and tort claims that could be made against you. Local advisors can do the best job of that.

But the federal rules applicable to the 1983/Bivens actions are fairly uniform, and some common principles generally apply to those cases everywhere. And because the provision for attorneys' fees over and above a plaintiff's award of damages makes civil rights cases especially attractive to lawyers, they  are often your biggest headache, and the biggest potential drain on your budget.

So, when can the chief be held liable in a civil rights lawsuit?

Vicarious Liability Principles

In Monell v. New York City Department of Social Services, the Supreme Court ruled that the doctrine of respondeat superior does not apply to § 1983 cases. This means that a chief cannot be held liable for violations by his or her subordinates, based solely on the supervisory relationship. While that reduces the prospect of liability for the chief, it does not eliminate it. There still are ways the chief can be found liable, either in an "individual" or an "official" capacity.

In larger departments, chiefs may be occupied full-time with administrative duties and rarely act in an enforcement capacity in the field. Chiefs of mid-sized and smaller agencies often become personally involved in directing major investigations. A chief can be sued in his or her "individual capacity" when it is alleged that the chief was personally involved in the conduct at issue, or personally set in motion a course of action that caused others to violate the plaintiff's rights.

When the chief is named in an "official capacity" suit, the plaintiff is essentially suing the city or county. (Kentucky v. Graham.) In the Monell case, the court held that a municipality can be held liable for an employee's violation of a plaintiff's rights if-and only if-it can be said that the employee was acting pursuant to an official policy. Therefore, the issues are whether it can be shown that the department has an official policy directed toward the kind of conduct alleged, whether the employee's actions were in conformity with that policy, and whether that policy was the moving force behind a constitutional violation.

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