Litigation over the years has given us a few further principles. For example, a "policy" need not be written or formalized, but may be established by widespread custom and practice within the department. (Adickes v. S.H. Kress & Co.) Liability for unlawful practices cannot be avoided by not writing them down.
And a policy must be one established by an official who has "final policymaking authority" for the particular kind of action taken. (Pembaur v. Cincinnati.) An official policy also results where the person with final policymaking authority subsequently ratifies an unconstitutional action taken by the subordinate. (St. Louis v. Praprotnik.)
In Oklahoma City v. Tuttle, the Supreme Court ruled that a single incident of unlawful conduct by a subordinate is not enough to establish an unconstitutional policy, although a single act by the chief would be. On the other hand, if an unconstitutional policy is established, a subordinate's single unconstitutional act pursuant to that policy is enough to create municipal liability. (Pembaur.)
Failure to Train
One of the rulings that plaintiffs most often invoke against chiefs is City of Canton v. Harris. In that case, the Supreme Court held that a failure to train subordinates can cause municipal liability where the need for the training is so obvious, and the consequences of a lack of training so predictable, that the chief may be said to have been "deliberately indifferent" to the rights of the citizenry who might come into contact with untrained officers.
It is very common for plaintiffs' attorneys to include a Canton claim whenever they file a federal civil rights lawsuit. This is another good reason to ensure that officers receive timely and accurate training, and to be able to submit proof of that training.
An example of the potential consequences of inadequate training is in Davis v. Mason County. In that case, several deputies were found to have used unlawful force against several plaintiffs, and their force training was deemed inadequate, if not nonexistent. The federal court of appeals upheld jury verdicts and fees against the sheriff and his deputies totaling some $780,000, for both the excessive force and the failure to train. Ouch.
In some states, county sheriffs will be considered state actors. (McMillian v. Monroe County, Ala.) This is significant because the Supreme Court has ruled that states and state officials are not subject to suit under § 1983. (Will v. Michigan Dept. of State Police.) Whether a sheriff is immune from suit as a state actor, or liable to suit as a county official, is determined by looking to state law.
The best defense against civil liability is ensuring that policies conform with the Constitution, providing effective training to subordinates, and correcting errors when they occur. If you're a chief of police (or other agency head), you've got better things to do than answer lawsuits, and better things to spend your shrinking budget on than paying off judgments.
Attorney Devallis Rutledge, a former police officer and prosecutor, defends officers and agencies in federal civil rights cases at the California law
offices of Manning & Marder, Kass, Elrod, Ramirez.