Breaking the code of silence: Rediscovering "custom" in section 1983 municipal liability

Boston University Law Review

Volumn 80, Issue 1, 2000, Pages 17-92

  Gilles, Myriam E ^a  

^a NONE

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EID: 0034398831     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (423)

1. See NATIONAL COMMISSION ON LAW OBSERVANCE AND ENFORCEMENT. REPORT ON LAWLESSNESS IN LAW ENFORCEMENT 153-56 (1931) [hereinafter WICKERSHAM REPORT].
2. UNITED STATES COMMISSION ON CIVIL RIGHTS, 1961 COMMISSION ON CIVIL RIGHTS REPORT, BOOK v: JUSTICE 26 (1961) [hereinafter 1961 U.S. COMM'N ON CIVIL RIGHTS REPORT].
3. See John Crewdson, Fourteen Die in Miami Riot, N. Y. TIMES, May 19, 1980, at A1 (describing the number of casualties and extent of the damage in Miami on the second day of the riot).
4. Letter from the U.S. Commission on Civil Rights to President James Carter (July 1980), POLICE PRACTICES AND THE PRESERVATION OF CIVIL RIGHTS: A STATEMENT BY THE UNITED STATES COMMISSION ON CIVIL RIGHTS ii-iii (1980) [hereinafter POLICE PRACTICES].
5. See, e.g., Martin Berg, Chronology of the Case, L.A. DAILY JOURNAL, Feb. 3, 1992, at 8. After the four officers were acquitted of state law charges arising from the incident, three days of riots ensued in which fifty-eight people were killed and 2283 injured. See Louis Sahagun & Carla Rivera, Jittery L.A. Sees Rays of Hope, L.A. TIMES, May 3, 1992, at A1 (describing the first clean-up and reconstruction efforts after "a horrific three-day nightmare"); Toll from the Riot, USA TODAY, Aug. 6, 1992, at 9A (listing the casualties, arrests, and property destruction from the riot). See also infra notes 186, 257 and accompanying text (mentioning the Rodney King beating).
6. See, e.g., Martin Berg, Chronology of the Case, L.A. DAILY JOURNAL, Feb. 3, 1992, at 8. After the four officers were acquitted of state law charges arising from the incident, three days of riots ensued in which fifty-eight people were killed and 2283 injured. See Louis Sahagun & Carla Rivera, Jittery L.A. Sees Rays of Hope, L.A. TIMES, May 3, 1992, at A1 (describing the first clean-up and reconstruction efforts after "a horrific three-day nightmare"); Toll from the Riot, USA TODAY, Aug. 6, 1992, at 9A (listing the casualties, arrests, and property destruction from the riot). See also infra notes 186, 257 and accompanying text (mentioning the Rodney King beating).
7. See, e.g., Martin Berg, Chronology of the Case, L.A. DAILY JOURNAL, Feb. 3, 1992, at 8. After the four officers were acquitted of state law charges arising from the incident, three days of riots ensued in which fifty-eight people were killed and 2283 injured. See Louis Sahagun & Carla Rivera, Jittery L.A. Sees Rays of Hope, L.A. TIMES, May 3, 1992, at A1 (describing the first clean-up and reconstruction efforts after "a horrific three-day nightmare"); Toll from the Riot, USA TODAY, Aug. 6, 1992, at 9A (listing the casualties, arrests, and property destruction from the riot). See also infra notes 186, 257 and accompanying text (mentioning the Rodney King beating).
8. Arrested after trying to break up a bar-fight, Louima was beaten by police en route to the station and taken into a station house bathroom, where officers shoved the wooden handle of toilet plunger into his rectum and mouth, causing severe damage, which required months of surgery and hospitalization. Four officers and a sergeant were indicted on federal charges ranging from sexual assault to conspiracy. See Dan Barry, Little Help from Officers in Torture Case Inquiry, N.Y. TIMES, Sept. 5, 1997, at A22. Officer Justin Volpe pled guilty in May 1999 to civil rights charges and awaits sentencing. The other officers allegedly involved in the incident were acquitted of beating Louima and currently face charges of trying to cover up the torture of the Haitian immigrant. See Tara George, Prosecutors: Give Volpe Life, DAILY NEWS, Nov. 23, 1999. See also infra note 209 and accompanying text.
9. Arrested after trying to break up a bar-fight, Louima was beaten by police en route to the station and taken into a station house bathroom, where officers shoved the wooden handle of toilet plunger into his rectum and mouth, causing severe damage, which required months of surgery and hospitalization. Four officers and a sergeant were indicted on federal charges ranging from sexual assault to conspiracy. See Dan Barry, Little Help from Officers in Torture Case Inquiry, N.Y. TIMES, Sept. 5, 1997, at A22. Officer Justin Volpe pled guilty in May 1999 to civil rights charges and awaits sentencing. The other officers allegedly involved in the incident were acquitted of beating Louima and currently face charges of trying to cover up the torture of the Haitian immigrant. See Tara George, Prosecutors: Give Volpe Life, DAILY NEWS, Nov. 23, 1999. See also infra note 209 and accompanying text.
10. Four NYPD officers shot and killed Diallo, an unarmed 22-year old immigrant from Guinea, on February 4, 1999 outside his Bronx apartment building. The officers, who claimed they thought Diallo had a gun, fired 41 shots and hit him 19 times. See Rocco Parascandola, Rudy Tells Rookies: Don't Forget Respect, N.Y. POST, Feb. 19, 1999.
11. See, e.g., Beating the Cops: Brutality Claims Denude City Coffers of $98 Million, VILLAGE VOICE, Dec. 23, 1997, at 35, 38 (reporting that in 1997, 2735 civil misconduct and brutality claims were filed against New York City police, up from 1567 in 1993).
12. See Recent Cases, Constitutional Law - Searches and Seizures - Warranted Search of Party Not Suspected of Criminal Behavior is Unreasonable When Subpoena Not Shown to be Impractical, 86 HARV. L. REV. 1317, 1327 (1973) ("Available remedies for such police misconduct - federal 'tort' actions, criminal prosecutions, injunctions, and internal police disciplinary measures - are generally thought to be ineffective.").
13. The infamous police code of silence is discussed at great length in Part V. See infra notes 202-48 and accompanying text.
14. See, e.g., David Rudovsky, Police Abuse: Can the Violence Be Contained?, 27 HARV. C.R.-C.L. L. REV. 465, 499 (1992) ("[P]rosecutors do not like prosecuting fellow law enforcement officers with whom they work on a day-to-day basis; evidence of such misconduct is often shielded by the code of silence; victims are more readily subject to impeachment . . .; and juries are inclined to give the benefit of the doubt to the police.").
15. The so-called "Police Bill of Rights," in effect in many cities, severely limits the ability of police administrators to suspend or dismiss an officer, even in cases where the officer is convicted of a felony. See HUMAN RIGHTS WATCH, SHIELDED FROM JUSTICE: POLICE BRUTALITY & ACCOUNTABILITY IN THE UNITED STATES 71, n. 135 (1998) [hereinafter HUMAN RIGHTS WATCH REPORT]. In many cities, even when officers are suspended for misconduct, they continue to receive salaries and other benefits. See id. at 71, n. 135. In New York City, for example, an officer accused of misconduct is not required to speak to internal affairs investigators for 48 hours following the incident. See, e.g., Tracey Tully & Alice McQuillan, Congress Probe of NYPD Brutality Urged, N.Y. DAILY NEWS, March 2, 1999 (discussing the "so-called 48-hour rule, which allows cops to remain silent for two days after an incident" of alleged brutality or misconduct).
16. The so-called "Police Bill of Rights," in effect in many cities, severely limits the ability of police administrators to suspend or dismiss an officer, even in cases where the officer is convicted of a felony. See HUMAN RIGHTS WATCH, SHIELDED FROM JUSTICE: POLICE BRUTALITY & ACCOUNTABILITY IN THE UNITED STATES 71, n. 135 (1998) [hereinafter HUMAN RIGHTS WATCH REPORT]. In many cities, even when officers are suspended for misconduct, they continue to receive salaries and other benefits. See id. at 71, n. 135. In New York City, for example, an officer accused of misconduct is not required to speak to internal affairs investigators for 48 hours following the incident. See, e.g., Tracey Tully & Alice McQuillan, Congress Probe of NYPD Brutality Urged, N.Y. DAILY NEWS, March 2, 1999 (discussing the "so-called 48-hour rule, which allows cops to remain silent for two days after an incident" of alleged brutality or misconduct).
17. Commentators have long noted the ineffectiveness of civil rights laws in addressing police brutality and misconduct. See, e.g., Alison L. Patton. The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L.J. 753, 753-54 (1993) (stating that § 1983 is ineffective because actions under that section are prohibitively expensive to poor minorities, plaintiffs have only limited ability to enjoin dangerous police techniques, and juries tend to find police officers more credible than plaintiffs); David S. Cohen, Official Oppression: A Historical Analysis of Low-Level Police Abuse and a Modern Attempt at Reform, 28 COLUM. HUM. RTS. L. REV. 165, 182 (1996) (finding it "obvious that § 1983 does not reach the low-level police uses of force that permeate the history" of policing).
18. Commentators have long noted the ineffectiveness of civil rights laws in addressing police brutality and misconduct. See, e.g., Alison L. Patton. The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L.J. 753, 753-54 (1993) (stating that § 1983 is ineffective because actions under that section are prohibitively expensive to poor minorities, plaintiffs have only limited ability to enjoin dangerous police techniques, and juries tend to find police officers more credible than plaintiffs); David S. Cohen, Official Oppression: A Historical Analysis of Low-Level Police Abuse and a Modern Attempt at Reform, 28 COLUM. HUM. RTS. L. REV. 165, 182 (1996) (finding it "obvious that § 1983 does not reach the low-level police uses of force that permeate the history" of policing).
19. Civil Rights Act of 1871, Ch. 22, § 1, 17 Stat. 13 (1871) (codified as amended at 42 U.S.C. § 1983 (1996)); see also Monroe v. Pape, 365 U.S. 167, 174-75 (1961) ("It was . . . the failure of certain states to enforce the laws with an equal hand that furnished the powerful momentum behind" the statute); Developments in the Law - Section 1983 and Federalism, 90 HARV. L. REV. 1133, 1154 (1977) ("[T]he Act was aimed at least as much at the abdication of law enforcement responsibilities by Southern officials as it was at the Klan's outrages."). See also infra notes 140-83 and accompanying text (describing the history of federal Civil Rights legislation).
20. See Monroe, 365 U.S. at 180 ("[B]y reason of prejudice, passion, neglect, intolerance, or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies."); see also infra notes 157-74 and accompanying text (discussing the state of affairs that prompted the passage of the Ku Klux Klan Act).
21. See Eric Schnapper, Civil Rights Litigation After Monell, 79 COLUM. L. REV. 213, 229 (1979) ("The unconstitutional customs with which supporters of section 1983 were concerned were [not] . . . exercises of final or delegated authorities, but the widespread and persistent practices of ordinary sheriffs, judges and prosecutors."); see generally J. RANDALL & D. DONALD, THE CIVIL WAR AND RECONSTRUCTION 682-84 (2d ed. 1961): see also infra notes 175-86 and accompanying text (discussing the roots of "custom" in the statute).
22. See Eric Schnapper, Civil Rights Litigation After Monell, 79 COLUM. L. REV. 213, 229 (1979) ("The unconstitutional customs with which supporters of section 1983 were concerned were [not] . . . exercises of final or delegated authorities, but the widespread and persistent practices of ordinary sheriffs, judges and prosecutors."); see generally J. RANDALL & D. DONALD, THE CIVIL WAR AND RECONSTRUCTION 682-84 (2d ed. 1961): see also infra notes 175-86 and accompanying text (discussing the roots of "custom" in the statute).
23. 42 U.S.C. § 1983 (Supp. 1996).
24. As a threshold matter, I take it as true that municipal liability for police misconduct is necessary for addressing unconstitutional "customs" because individual liability against offending officers has little practical effect. See infra notes 52-58 and accompanying text (discussing the prevalence of state and local indemnification statutes and the problems of incentives, individual liability, and accountability).
25. 436 U.S. 658 (1978): see also infra notes 28-32, 59-61 and accompanying text (detailing the facts of the case and the Supreme Court's analysis).
26. See infra Part III (divining three models of "policy" from the Court's post-Monell § 1983 jurisprudence).
27. See, e.g., Owen v. City of Independence, 445 U.S. 622, 651 (1980) ("Section 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well."); see also Robertson v. Wegmann, 436 U.S. 584, 590-91 (1978) (observing that the policies underlying § 1983 include preventing abuses of power); Carey v. Piphus, 435 U.S. 247, 256-57 (1978) ("Congress intended that awards under § 1983 should deter the deprivation of constitutional rights . . . ."); see also infra notes 321-31 and accompanying text (discussing the possible deterrence effects of § 1983 "custom" claims).
28. 42 U.S.C. § 1983 (Supp. 1996) (italics added).
29. See, e.g., Barney v. City of New York, 193 U.S. 430, 438-41 (1904) (holding that state officers' conduct did not amount to state action because it was unauthorized and prohibited by state law). As Susanah Mead has noted, however, "there is some question of whether the Court ever really 'held' that the action of state officers in violation of state law could not constitute the state action required under the Fourteenth Amendment." Susanah M. Mead, Evolution of the 'Species of Tort Liability' Created by 42 U.S.C. § 1983: Can Constitutional Tort Be Saved From Extinction?, 55 FORDHAM L. REV. 1, 18, n.90 (1986). Nevertheless, by the mid-20th century, it was well-established that actions taken in violation of state law did not constitute state action for purposes of § 1983. See Monroe v. Pape, 365 U.S. 167, 212-17 (1961) (Frankfurter, J., dissenting in part) (citing numerous cases in discussing the court's prior construction of the "under color of" phrase).
30. See, e.g., Butchers' Benevolent Ass'n v. Crescent City Live-Stock Landing and Slaughter-House Co., 83 U.S. (16 Wall.) 367, 378 (1873) (concluding that the "Privileges and Immunities" clause of the Fourteenth Amendment did not create any new substantive rights that were not already inherent in national citizenship). The holding of the Slaughter-House case effectively eliminated most civil rights from the purview of the Fourteenth Amendment and severely limited the reach of § 1983. See, e.g., United States v. Cruikshank, 92 U.S. 542, 549-55 (1876) (finding that the Civil Rights Act of 1870 did not provide a federal remedy for deprivation of the right to assemble peaceably because that right pre-dated the Constitution and thus was not a right "granted or secured by the Constitution," and that the Fourteenth Amendment does not address the deprivation of rights by private citizens); The Civil Rights Cases, 109 U.S. 3, 13-25 (1883) (applying stringent state-action requirements to a claim alleging deprivations of rights secured by the Fourteenth Amendment in holding a provision of the Civil Rights Act of 1875 unconstitutional). The late Justice Blackmun observed that, with its rulings in the Slaughter-House Cases and the Civil Rights Cases, the Court "cut the heart out of the Civil Rights Acts." 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, 9 (1985); see also Jack M. Beermann, The Supreme Court's Narrow View on Civil Rights, 1993 SUP. CT. REV. 199, 204-11 (1993) (discussing the Court's narrow interpretation of Reconstruction-era amendments and legislation).
31. See, e.g., Butchers' Benevolent Ass'n v. Crescent City Live-Stock Landing and Slaughter-House Co., 83 U.S. (16 Wall.) 367, 378 (1873) (concluding that the "Privileges and Immunities" clause of the Fourteenth Amendment did not create any new substantive rights that were not already inherent in national citizenship). The holding of the Slaughter-House case effectively eliminated most civil rights from the purview of the Fourteenth Amendment and severely limited the reach of § 1983. See, e.g., United States v. Cruikshank, 92 U.S. 542, 549-55 (1876) (finding that the Civil Rights Act of 1870 did not provide a federal remedy for deprivation of the right to assemble peaceably because that right pre-dated the Constitution and thus was not a right "granted or secured by the Constitution," and that the Fourteenth Amendment does not address the deprivation of rights by private citizens); The Civil Rights Cases, 109 U.S. 3, 13-25 (1883) (applying stringent state-action requirements to a claim alleging deprivations of rights secured by the Fourteenth Amendment in holding a provision of the Civil Rights Act of 1875 unconstitutional). The late Justice Blackmun observed that, with its rulings in the Slaughter-House Cases and the Civil Rights Cases, the Court "cut the heart out of the Civil Rights Acts." 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, 9 (1985); see also Jack M. Beermann, The Supreme Court's Narrow View on Civil Rights, 1993 SUP. CT. REV. 199, 204-11 (1993) (discussing the Court's narrow interpretation of Reconstruction-era amendments and legislation).
32. See, e.g., Butchers' Benevolent Ass'n v. Crescent City Live-Stock Landing and Slaughter-House Co., 83 U.S. (16 Wall.) 367, 378 (1873) (concluding that the "Privileges and Immunities" clause of the Fourteenth Amendment did not create any new substantive rights that were not already inherent in national citizenship). The holding of the Slaughter-House case effectively eliminated most civil rights from the purview of the Fourteenth Amendment and severely limited the reach of § 1983. See, e.g., United States v. Cruikshank, 92 U.S. 542, 549-55 (1876) (finding that the Civil Rights Act of 1870 did not provide a federal remedy for deprivation of the right to assemble peaceably because that right pre-dated the Constitution and thus was not a right "granted or secured by the Constitution," and that the Fourteenth Amendment does not address the deprivation of rights by private citizens); The Civil Rights Cases, 109 U.S. 3, 13-25 (1883) (applying stringent state-action requirements to a claim alleging deprivations of rights secured by the Fourteenth Amendment in holding a provision of the Civil Rights Act of 1875 unconstitutional). The late Justice Blackmun observed that, with its rulings in the Slaughter-House Cases and the Civil Rights Cases, the Court "cut the heart out of the Civil Rights Acts." 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, 9 (1985); see also Jack M. Beermann, The Supreme Court's Narrow View on Civil Rights, 1993 SUP. CT. REV. 199, 204-11 (1993) (discussing the Court's narrow interpretation of Reconstruction-era amendments and legislation).
33. 365 U.S. 167 (1961).
34. Id. at 213.
35. See, e.g., Barney, 193 U.S. at 430. Given the narrow interpretation of the statute and the difficulty of showing state authorization for unconstitutional actions, it should be of little surprise that only 21 cases were brought under § 1983 between 1871 and 1920. See Comment, The Civil Rights Act: Emergence of an Adequate Federal Civil Remedy?, 26 IND. L.J. 361, 363 (1951) (asserting that the disadvantages of § 1983, such as the narrow holdings in The Slaughter House Cases and The Civil Rights Cases, coupled with the statute's imprecise draftsmanship, explain the low volume of cases brought under the statute during this period).
36. Petitioners' original complaint alleged the following: on October 29, 1958, at 5:45 a.m., thirteen Chicago police officers broke into the Monroe apartment and forced the family at gunpoint to leave their beds and stand naked in the center of the living room; one of the officers beat Mr. Monroe, calling him "nigger" and "black boy," while another officer pushed Mrs. Monroe and hit and kicked the children; the police ransacked every room, throwing clothing from closets to the floor, dumping drawers, ripping mattress covers: Mr. Monroe was then taken to the police station and detained on "open" charges for ten hours, during which time he was interrogated about a murder and exhibited in lineups; he was not brought before a magistrate, although numerous magistrates' courts were accessible; he was not advised of his procedural rights; he was not permitted to call his family or an attorney, and was subsequently released without criminal charges having been filed against him. In taking these actions, the officers had failed to obtain a search or arrest warrant for Monroe or anyone else. See Monroe, 365 U.S. at 203 (Frankfurter, J., dissenting). On the basis of these allegations, the Monroe family sought damages against the individual police officers and the City of Chicago. The District Court dismissed the complaint for failure to state a claim under § 1983, and the Court of Appeals for the Seventh Circuit affirmed. See Monroe v. Pape, 272 F.2d 365, 365-66 (7th Cir. 1960) (affirming the trial court's dismissal).
37. See Monroe, 365 U.S. at 172. The Court further expanded the breadth of § 1983 by holding that specific intent to deprive a person of a federal right is not required in order to state a claim under the statute. Rather, § 1983 claims must be read against the "background of tort liability that makes a man responsible for the natural consequences of his action." Id. at 187. Finally, the Court held that a § 1983 plaintiff need not first exhaust state judicial remedies before proceeding in a federal forum. Id. at 183.
38. Id. at 184 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
39. Writing in 1965, Professor Shapo was prescient in describing the potential impact of Monroe: It thus appears that what is developing is a kind of 'constitutional tort.' It is not quite a private tort, yet contains tort elements; it is not 'constitutional law,' but employs a constitutional test . . . . It may well be argued that, given the broad language of Monroe construing the already broad language of the statute, every policeman's tort and every denial of a license by a state or local board will give rise to an action under § 1983. Marshall Shapo, Constitutional Tort: Monroe v. Pape and the Frontiers Beyond, 60 Nw. U. L. REV. 277, 323-24 (1965).
40. See Monroe, 365 U.S. at 187-92. The Monroe Court based its interpretation of the statute on the 42nd Congress' refusal to adopt the proposed "Sherman Amendment." The Sherman Amendment would have imposed liability on municipalities for damages caused by private persons "riotously and tumultuously assembled." Id. at 188 (quoting CONC. GLOBE, 42nd Cong., 1st Sess. 663 (1871)). The Monroe Court found that the Congressional refusal to hold municipalities liable for damages occasioned within their borders by third parties demonstrated the intent that municipalities not be considered persons subject to liability under § 1983. Id. at 191. For a critique of the Court's legislative history analysis in Monroe, see Ronald M. Levin, The Section 1983 Municipal Immunity Doctrine, 65 GEO. L.J. 1483, 1492-94 (1977) (written two years before Monell was decided, Levin argues that Monroe's legislative history interpretation is incorrect and criticizes the municipal immunity doctrine on public policy grounds); see also Reed Hundt, Suing Municipalities Directly Under the Fourteenth Amendment, 70 Nw. U. L. REV. 770 (1975); Note, Developing Governmental Liability Under § 1983, 55 MINN. L. REV. 1201, 1207 (1971) (reasoning that since the Monroe Court "actually faced an open choice as to whether or not municipalities could be persons under § 1983 . . . . the court actually may have reached its decision on policy grounds").
41. See Monroe, 365 U.S. at 187-92. The Monroe Court based its interpretation of the statute on the 42nd Congress' refusal to adopt the proposed "Sherman Amendment." The Sherman Amendment would have imposed liability on municipalities for damages caused by private persons "riotously and tumultuously assembled." Id. at 188 (quoting CONC. GLOBE, 42nd Cong., 1st Sess. 663 (1871)). The Monroe Court found that the Congressional refusal to hold municipalities liable for damages occasioned within their borders by third parties demonstrated the intent that municipalities not be considered persons subject to liability under § 1983. Id. at 191. For a critique of the Court's legislative history analysis in Monroe, see Ronald M. Levin, The Section 1983 Municipal Immunity Doctrine, 65 GEO. L.J. 1483, 1492-94 (1977) (written two years before Monell was decided, Levin argues that Monroe's legislative history interpretation is incorrect and criticizes the municipal immunity doctrine on public policy grounds); see also Reed Hundt, Suing Municipalities Directly Under the Fourteenth Amendment, 70 Nw. U. L. REV. 770 (1975); Note, Developing Governmental Liability Under § 1983, 55 MINN. L. REV. 1201, 1207 (1971) (reasoning that since the Monroe Court "actually faced an open choice as to whether or not municipalities could be persons under § 1983 . . . . the court actually may have reached its decision on policy grounds").
42. See Monroe, 365 U.S. at 187-92. The Monroe Court based its interpretation of the statute on the 42nd Congress' refusal to adopt the proposed "Sherman Amendment." The Sherman Amendment would have imposed liability on municipalities for damages caused by private persons "riotously and tumultuously assembled." Id. at 188 (quoting CONC. GLOBE, 42nd Cong., 1st Sess. 663 (1871)). The Monroe Court found that the Congressional refusal to hold municipalities liable for damages occasioned within their borders by third parties demonstrated the intent that municipalities not be considered persons subject to liability under § 1983. Id. at 191. For a critique of the Court's legislative history analysis in Monroe, see Ronald M. Levin, The Section 1983 Municipal Immunity Doctrine, 65 GEO. L.J. 1483, 1492-94 (1977) (written two years before Monell was decided, Levin argues that Monroe's legislative history interpretation is incorrect and criticizes the municipal immunity doctrine on public policy grounds); see also Reed Hundt, Suing Municipalities Directly Under the Fourteenth Amendment, 70 Nw. U. L. REV. 770 (1975); Note, Developing Governmental Liability Under § 1983, 55 MINN. L. REV. 1201, 1207 (1971) (reasoning that since the Monroe Court "actually faced an open choice as to whether or not municipalities could be persons under § 1983 . . . . the court actually may have reached its decision on policy grounds").
43. For example, a number of post-Monroe plaintiffs sought an end-run around municipal immunity to damages by bringing actions against municipal officials in their "official capacity," seeking declaratory or injunctive relief. See, e.g., Harkless v. Sweeny Indep. Sch. Dist., 300 F. Supp. 794, 795 (S.D. Tex. 1969), rev'd, 427 F.2d 319 (1970), cert. denied, 400 U.S. 991 (1971) (black school teachers discharged from their positions brought § 1983 action against school board members and superintendent in their official capacity, seeking equitable relief in the form of reinstatement); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 503 (1969) (plaintiffs sought equitable relief against school suspension for wearing black armbands to protest the Vietnam War). In City of Kenosha v. Bruno, however, the Supreme Court sealed this loophole by extending Monroe's holding to shield municipalities from declaratory and injunctive suits under § 1983. See City of Kenosha v. Bruno, 412 U.S. 507, 513 (1973) (holding that municipalities "are outside of [§ 1983's] ambit for purposes of equitable relief as well as for damages"). See generally, Don B. Kates, Jr., Suing Municipalities and Other Public Entities Under the Federal Civil Rights Act, 4 CLEARINGHOUSE REV. 177, 177 (1970) ("One of the most irksome technical problems of litigation under 42 U.S.C. § 1983 . . . is the question of whether public entities are proper defendants, and if so, for what forms of relief.").
44. Prior to Monroe, the Court had established absolute § 1983 immunity for several types of government officials. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 420 (1976) (recognizing absolute immunity of prosecutors); Pierson v. Ray, 386 U.S. 547, 554-55 (1967) (recognizing that absolute immunity of judges for "acts committed within their judicial discretion" was preserved under § 1983); Tenney v. Brandhove, 341 U.S. 367, 372-75 (1951) (recognizing absolute immunity of legislators from liability under § 1983). In two post-Monroe cases, the Court developed the doctrine of qualified immunity for certain categories of executive officers sued under § 1983. See Scheuer v. Rhodes, 416 U.S. 232, 247 (1974) (finding that the Governor of Ohio and other executive officials involved in the Kent State shootings had a qualified immunity from suit that varied with "the scope of the discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action"); Wood v. Strickland, 420 U.S. 308, 322 (1975) (holding, implicitly, that school officials were not liable for imposing disciplinary penalties so long as they could not reasonably have known that their action violated students' constitutional rights, and provided they did not act with malicious intent to cause constitutional or other injury).
45. See, e.g., Bishop v. Wood, 426 U.S. 341, 343 (1976) (applying Monroe, the Court held that a policeman who had been terminated from his employment without a pretermination hearing could not sue his municipal employer under § 1983 because the municipality was not a 'person' within the meaning of the statute).
46. Traditionally, qualified ("good faith") immunity had both objective and subjective components. See Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) ("The objective element involves a presumptive knowledge of [constitutional rights]. . . . The subjective component refers to 'permissible intentions.'" quoting Wood, 420 U.S. at 322)). The Harlow court rejected the subjective prong of the good faith standard, however, citing the high litigation costs and resultant disruption to government that attended allegations of malice. See Harlow, 457 U.S. at 816-18 (articulating a new standard wherein "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate . . . constitutional rights of which a reasonable person would have known"). Id. at 818 (emphasis added).
47. See Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 786 (1992) (noting that even where a § 1983 plaintiff prevailed, "the officer was likely to be judgment-proof"); see also Susanah M. Mead, 42 U.S.C. § 1983 Municipal Liability: The Monell Sketch Becomes a Distorted Picture, 65 N.C. L. REV. 517, 527 (1987) ("The individual actually responsible for the civil rights violation may be difficult to identify, may be judgment-proof, or may be entitled to assert a qualified or absolute immunity.").
48. See Harold S. Lewis, Jr. & Theodore Y. Blumoff, Reshaping Section 1983's Asymmetry, 140 U. PA. L. REV. 755, 786 (1992) (noting that even where a § 1983 plaintiff prevailed, "the officer was likely to be judgment-proof"); see also Susanah M. Mead, 42 U.S.C. § 1983 Municipal Liability: The Monell Sketch Becomes a Distorted Picture, 65 N.C. L. REV. 517, 527 (1987) ("The individual actually responsible for the civil rights violation may be difficult to identify, may be judgment-proof, or may be entitled to assert a qualified or absolute immunity.").
49. As petitioners' attorneys and amici argued unsuccessfully in Monroe, holding municipalities liable for constitutional torts is necessary "because private remedies against officers . . . are conspicuously ineffective, and because municipal liability will not only afford plaintiffs responsible defendants but cause those defendants to eradicate abuses that exist at the police level." Monroe v. Pape, 365 U.S. 167, 191 (1961). The Monroe Court, however, did not reach these considerations. See also infra notes 45-54 and accompanying text.
50. The proposed Civil Rights Improvement Act of 1977, considered by committees in both the 95th and 96th Congresses, would have imposed liability on municipalities and their agencies when officers or employees directly responsible for the conduct of the subordinate officer or employee who committed such violation: (A) directed, authorized, approved, or encouraged any action by such subordinate officer or employee which resulted in such violation, or (B) failed to act in any manner to remedy a pervasive pattern of unconstitutional or unlawful conduct engaged in by such subordinate officer or employee which, in the absence of remedial action, was likely to continue or recur in the future. S. 35, 95th Cong., 123 CONG. REC. 1, 557-58 (1977).
51. 436 U.S. 658 (1978). In Monell, female employees of the Department of Social Services and the Board of Education of the City of New York brought a § 1983 class action against the department, the board and its chancellor, and the city and its mayor. Plaintiffs alleged that the defendants unconstitutionally and as a matter of official policy forced pregnant employees to take unpaid leaves of absence even where such leaves were not medically necessary. The individual defendants were sued solely in their official capacities, with the plaintiffs seeking declaratory and injunctive relief against all defendants and back pay for the periods of the allegedly unlawful forced leave. The district court held the claims for declaratory and injunctive relief moot because the City of New York and the Board of Education changed their maternity leave policies after the suit was filed. The lower court then found the prior policy unconstitutional, but denied back pay because any such reward would ultimately come from the city, thereby circumventing the absolute immunity of municipalities under Monroe. The Second Circuit affirmed. See Monell v. Department of Social Services of the City of New York, 532 F.2d 259, 263 (2d Cir. 1976).
52. Monell, 436 U.S. at 668. The Monell Court reasoned that, while the rejected Sherman Amendment would have made municipalities liable for acts in which they did not participate, nothing in the legislative history indicated that municipalities could not be held liable for their own fourteenth amendment violations. Id. at 683.
53. Monell, 436 U.S at 685 (citing CONG. GLOBE, 42nd Cong., 1st Sess. 68 (1871)) ("As has been again and again decided by your own Supreme Court of the United States . . . the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people.") (statement of Rep. Shellabarger).
54. Id. at 684.
55. Id. at 687. "Since Congress intended [Section 1983] to be broadly construed, there is no reason to suppose that municipal corporations would have been excluded from [its] sweep." Id. at 686. Monell's holding of local government liability applies only to compensatory damages; local governments are absolutely immune from punitive damages liability. See, e.g., City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (reasoning that municipalities had absolute immunity from punitive damages at common law and that such immunity was compatible with both the purposes of § 1983 and general public policy). As to compensatory damages, local governments, unlike individual officials, are not protected by the affirmative defense of qualified immunity. See, e.g., Owen v. City of Independence, 445 U.S. 622, 657 (1980) (stating that there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify municipal qualified immunity). Additionally, state sovereign immunity rules cannot be applied by state courts to bar § 1983 claims against local governments. See, e.g., Howlett v. Rose, 496 U.S. 356, 367-83 (1990) (finding that the Supremacy Clause mandates that state courts must hear § 1983 claims brought in a court otherwise competent to hear that type of claim).
56. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691 (1978) (§[A]ny person who . . . shall subject, or cause to be subjected, any person . . . to the deprivation of any rights . . . .§).
57. See id. at 691-92 (ruling that §a municipality cannot be held liable under § 1983 on a respondeat superior theory§). In addition, the Court considered two policy justifications for respondeat superior liability - accident reduction and loss-spreading under an insurance approach - but found that Congress had rejected both justifications during the legislative debates on § 1983. See id. at 693-94.
58. Id. at 694 (emphasis added).
59. Specifically, the Court found that "the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort," and therefore "a municipality cannot be held liable solely because it employs a tortfeasor." Id. at 691. As Professor Nahmod has argued, there are sound policy reasons for not applying respondeat superior theory to § 1983 cases: Respondeat superior in tort law is the functional equivalent of strict liability. Because strict liability focuses on risk allocation, it has been characterized as inappropriate in a § 1983 setting. Also, in a tort context, the master usually bears some responsibility for choice of servants, while a superior defending a § 1983 action frequently has not chosen his or her subordinates. . . . Consequently, in light of Monell and these policy reasons, the superior does not and should not invariably have a constitutional duty, solely by reason of position, to compensate a person whose constitutional rights have been violated by subordinates. What is required in order for the superior to have such a duty is that the superior personally act unconstitutionally as well. That is, the superior must have possessed the requisite state of mind for the constitutional violation and must have played a causal role in plaintiff's constitutional deprivation. 1 SHELDON H. NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION § 3.22, at 239 (3d ed. 1991) (footnotes omitted).
60. See, e.g., Harlow v. Fitzgerald, 457 U.S. at 818 (holding that individual officials performing discretionary functions are generally "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights").
61. Some commentators have recognized that § 1983 suits against individual defendants rarely achieve the compensatory goal of the statute because of plaintiffs' inability to identify the particular government official who caused the harm, and the inability of individual officials to satisfy judgments against them. See Mead, supra note 37, at 539. Also, juries may be more sympathetic to lower-level officials and thus less inclined to return verdicts against them. See, e.g., Douglas L. Colbert, Bifurcation of Civil Rights Defendants: Undermining Monell in Police Brutality Cases, 44 HASTINGS L.J. 499, 548 (1993) ("[J]urors' general sense of fairness mitigates against blaming an officer for causing a constitutional injury when he merely carried out department policy as an obedient employee."); Jon O. Newman, Suing the Lawbreakers: Proposals to Strengthen the Section 1983 Damage Remedy for Law Enforcers' Misconduct, 87 YALE L.J. 447, 456-57 (1978) (noting that jurors are often unaware of the state's indemnification policies and therefore "understandably succumb[ ] easily to the argument, stated or implied, that recovery should be denied because the damages must come from the paycheck of a hard-working, underpaid police officer"); PETER SCHUCK, SUING GOVERNMENT 15 (1983) (apart from officials' immunities, "shallow pockets . . . are likely to make suits against individual officials unavailable as a practical matter").
62. Some commentators have recognized that § 1983 suits against individual defendants rarely achieve the compensatory goal of the statute because of plaintiffs' inability to identify the particular government official who caused the harm, and the inability of individual officials to satisfy judgments against them. See Mead, supra note 37, at 539. Also, juries may be more sympathetic to lower-level officials and thus less inclined to return verdicts against them. See, e.g., Douglas L. Colbert, Bifurcation of Civil Rights Defendants: Undermining Monell in Police Brutality Cases, 44 HASTINGS L.J. 499, 548 (1993) ("[J]urors' general sense of fairness mitigates against blaming an officer for causing a constitutional injury when he merely carried out department policy as an obedient employee."); Jon O. Newman, Suing the Lawbreakers: Proposals to Strengthen the Section 1983 Damage Remedy for Law Enforcers' Misconduct, 87 YALE L.J. 447, 456-57 (1978) (noting that jurors are often unaware of the state's indemnification policies and therefore "understandably succumb[ ] easily to the argument, stated or implied, that recovery should be denied because the damages must come from the paycheck of a hard-working, underpaid police officer"); PETER SCHUCK, SUING GOVERNMENT 15 (1983) (apart from officials' immunities, "shallow pockets . . . are likely to make suits against individual officials unavailable as a practical matter").
63. Some commentators have recognized that § 1983 suits against individual defendants rarely achieve the compensatory goal of the statute because of plaintiffs' inability to identify the particular government official who caused the harm, and the inability of individual officials to satisfy judgments against them. See Mead, supra note 37, at 539. Also, juries may be more sympathetic to lower-level officials and thus less inclined to return verdicts against them. See, e.g., Douglas L. Colbert, Bifurcation of Civil Rights Defendants: Undermining Monell in Police Brutality Cases, 44 HASTINGS L.J. 499, 548 (1993) ("[J]urors' general sense of fairness mitigates against blaming an officer for causing a constitutional injury when he merely carried out department policy as an obedient employee."); Jon O. Newman, Suing the Lawbreakers: Proposals to Strengthen the Section 1983 Damage Remedy for Law Enforcers' Misconduct, 87 YALE L.J. 447, 456-57 (1978) (noting that jurors are often unaware of the state's indemnification policies and therefore "understandably succumb[ ] easily to the argument, stated or implied, that recovery should be denied because the damages must come from the paycheck of a hard-working, underpaid police officer"); PETER SCHUCK, SUING GOVERNMENT 15 (1983) (apart from officials' immunities, "shallow pockets . . . are likely to make suits against individual officials unavailable as a practical matter").
64. See Theodore Eisenberg & Stewart Schwab, The Reality of Constitutional Tort Litigation, 72 CORNELL L. REV. 641, 686 (1987) (noting that in a survey of cases where payments to victims of constitutional wrongs were recorded, "no case . . . showed that an individual official had borne the cost of an adverse constitutional tort judgment").
65. See, e.g., ALA. CODE § 41-9-74 (1975); ARIZ. REV. STAT. ANN. § 41-621 (West Supp. 1989); ARK. CODE ANN. § 21-9-203 (Michie 1987); CAL. GOV'T CODE § 825 (1980); COLO. REV. STAT. § 24-10-110(1)(b)(I) (1982); CONN. GEN. STAT. ANN. §§ 4-16a, 7-465 (West Supp. 1985); DEL. CODE ANN. tit. 10, §§ 4001-4002 (Supp. 1984); FLA. STAT. ch. 111.071 (1982); GA. CODE ANN. § 45-9-60 (1982); IDAHO CODE § 6-903(b), (c) (1975); 65 ILL. COMP. STAT. ANN. 5/1-4-5 (West 1980); IOWA CODE ANN. § 669.1 et seq. (West 1993); KAN. STAT. ANN. §§ 75-6101-6116 (1984); LA. REV. STAT. ANN. §§ 13:5108.1-5108.2 (West Supp. 1985); ME. REV. STAT. ANN. tit. 14, § 8112 (West 1980); MD. CODE ANN., STATE GOV'T §§ 12-404, 12-405 (1984); MICH. COMP. LAWS ANN. § 691.1408 (West Supp. 1985); Miss. CODE ANN. § 25-1-47(2) (1972); MO. ANN. STAT. § 105-711 ( West Supp. 1985); MONT. CODE ANN. § 2-9-305 (1985); NEV. REV. STAT. ANN. §§ 41.0349-035 (Michie 1983); N.H. REV. STAT. ANN. §§ 31:105, 31:106, 99-D:2 (1983); N.J. STAT. ANN. §§ 59:10-1 to -4 (West 1982); N.M. STAT. ANN. § 41-4-4 (Michie 1985); N.Y. GEN. MUN. LAW § 50-j (McKinney Supp. 1984); N.Y. PUB. OFF. LAW § 17(3)(a) (McKinney Supp. 1984); N.C. GEN. STAT. § 160A-167 (1983); OR. REV. STAT. § 30.285 (1983); R.I. GEN. LAWS § 9-31-12 (Supp. 1984); S.D. CODIFIED LAWS § 3-19-1 to -2 (Michie 1980); TEX. CIV. PRAC. & REM. CODE ANN. § 104.002(a)(2) () (West 1986); UTAH CODE ANN. §§ 63-30-36 to -37 (Supp. 1985); W. V.A. CODE § 8-12-7(b) (1976); WIS. STAT. ANN. § 895.46 (West 1983 & Supp. 1985); WYO. STAT. ANN. § 1-39-104(c) (Michie Supp. 1985).
66. Section 1983 plaintiffs can hardly rely on state indemnification provisions as a guarantee of compensation for constitutional injuries committed by local law enforcement officers. These indemnification provisions tend to differ significantly as to the scope of coverage, extent of local autonomy over terms and conditions of reimbursement, and limits on amounts of reimbursement. See generally SCHUCK, SUING GOVERNMENT, supra note 50, at 88 (discussing the many variations among state indemnification statutes).
67. For example, section 50-k of the New York General Municipal Law allows New York City to disclaim indemnification of officials for actions that violate any rule or regulation of the agency, or that are intentional or reckless, or that fall outside the scope of employment. See N.Y. GEN. MUN. LAW § 50-k(3). Essentially, any serious constitutional tort provides the City of New York the option of disclaiming coverage. In general, most state and local indemnification statutes provide for denial of reimbursement on similarly broad grounds, making "indemnification . . . neither certain nor universal." SCHUCK, SUING GOVERNMENT, supra note 50, at 85; see also William C. Mathes & Robert T. Jones, Toward a "Scope of Official Duty" Immunity for Police Officers in Damage Actions, 53 GEO. L.J. 889, 912 (1965) ("[I]t appears that the indemnity practice is so irregular that its function as a 'conduit to governmental liability' is fortuitous at best.").
68. For example, section 50-k of the New York General Municipal Law allows New York City to disclaim indemnification of officials for actions that violate any rule or regulation of the agency, or that are intentional or reckless, or that fall outside the scope of employment. See N.Y. GEN. MUN. LAW § 50-k(3). Essentially, any serious constitutional tort provides the City of New York the option of disclaiming coverage. In general, most state and local indemnification statutes provide for denial of reimbursement on similarly broad grounds, making "indemnification . . . neither certain nor universal." SCHUCK, SUING GOVERNMENT, supra note 50, at 85; see also William C. Mathes & Robert T. Jones, Toward a "Scope of Official Duty" Immunity for Police Officers in Damage Actions, 53 GEO. L.J. 889, 912 (1965) ("[I]t appears that the indemnity practice is so irregular that its function as a 'conduit to governmental liability' is fortuitous at best.").
69. Note, Government Tort Liability, 111 HARV. L. REV. 2009, 2018 (1998); see also Richard A. Posner, Excessive Sanctions for Governmental Misconduct in Criminal Cases, 57 WASH. L. REV. 635, 640 (1982) (arguing that the imposition of tort remedies may overdeter police officers because these officers personally pay for violations, but are not then compensated for lawful activity); SCHUCK, supra note 50, at 76 (arguing that the threat of suit may lead police officers to avoid conduct that they view as "close to the line" and therefore fail to discharge their duties properly).
70. Note, Government Tort Liability, 111 HARV. L. REV. 2009, 2018 (1998); see also Richard A. Posner, Excessive Sanctions for Governmental Misconduct in Criminal Cases, 57 WASH. L. REV. 635, 640 (1982) (arguing that the imposition of tort remedies may overdeter police officers because these officers personally pay for violations, but are not then compensated for lawful activity); SCHUCK, supra note 50, at 76 (arguing that the threat of suit may lead police officers to avoid conduct that they view as "close to the line" and therefore fail to discharge their duties properly).
71. In the police context, one report found that "[t]hose who claim that each high-profile human rights abuse is an aberration, committed by a 'rogue' officer, are missing the point: human rights violations persist in large part because the accountability systems are so defective." HUMAN RIGHTS WATCH REPORT, supra note 12, at 2. Others have noted that the tendency to latch onto the "bad apple" theory of police brutality and misconduct can prove an intractable problem to reforming police practices. For example, Cohen and Feldberg argue that police apologists often resort to the "bad apple" theory of police immorality in response to the periodic public scrutiny occasioned by an act of police misconduct: [I]n response to documented cases of corruption and brutality, police administrators would declare them merely isolated deeds by "bad apple" officers. Bad apples were morally corrupt individuals, rotten on the inside and hiding under a skin of respectability, and who were only out for themselves. The vast majority of officers (the remainder of the barrel), [the public was] assured, were morally upstanding and beyond temptation or excess. The rotten apples needed removal so that the barrel's other apples would not be contaminated; police administrators and apologists never conceded that the barrel might, itself, have been contaminated, much less that it might be the source of the problem. HOWARD S. COHEN & MICHAEL FELDBERG, POWER AND RESTRAINT: THE MORAL DIMENSION OF POLICE WORK 10-11 (1991).
72. See, e.g., Christina Whitman, Constitutional Torts, 79 MICH. L. REV. 5, 49-50 (1980) (arguing that imposing direct liability on local governments would induce the "systemic changes" necessary to correct many constitutional injuries resulting from "'systemic problems' within government institutions, rather than from the specific acts of one who superficially may appear to be responsible").
73. Note, supra note 55, at 2019.
74. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 713 (1978) (Powell, J., concurring) (noting that although there are "substantial line-drawing problems in determining 'when execution of a government's policy or custom'" results in municipal liability, Monell is a "clear case" because it "involves formal, written policies of a municipal department" (emphasis added)).
75. See id. at 661-62 (female employees seeking backpay for periods of forced leave under official policy).
76. Id. at 695. In the short run, the Court left this task not to another day, but to the lower federal courts, leading to diverse and often conflicting results. See, e.g., infra note 85 and accompanying text (discussing the disagreement among lower courts over what constitutes final policymaking authority for purposes of municipal liability).
77. See Board of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 404 (1997) (ruling that in addition to identifying conduct attributable to the municipality, "a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights"); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 736-37 (1989) (remanding case to lower court to determine whether the decisions of the superintendent of a school district "represent the official policy of the local governmental unit" in the area of employee transfers): City of Canton, Ohio v. Harris, 489 U.S. 378, 388-91 (1989) (finding that a municipality may be held liable under the statute for failing to train its employees if such failure is "deliberately indifferent" to the rights of citizens); City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988) (finding that the mere failure of supervisory officials to review a subordinate's wrongful decision to lay off plaintiff "does not amount to a delegation of policymaking authority"); City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (ruling that a jury's finding that a police officer committed no constitutional injury precludes a finding of basis for municipal liability against the city); Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (finding that only decisions of those "officials responsible for establishing final policy with respect to the subject matter in question" may form the basis for municipal liability under § 1983); City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (finding that a single act of excessive force by a police officer cannot by itself establish proof of a "policy" of inadequate training for municipal liability); Tennessee v. Garner, 471 U.S. 1, 22 (1985) (remanding case to lower court to determine whether the policy of the police department rendered it liable under Monell for the unconstitutional use of deadly force by an individual police officer); Brandon v. Holt, 469 U.S. 464, 471-73 (1985) (ruling that plaintiffs may amend their pre-Monell action to add city as defendant because they had originally sued the director of the city's police department in his official capacity); County of Sacramento v. Lewis, 523 U.S. 833 (1998) (allegation that police engaged in high-speed chase were deliberately indifferent to passenger's survival found insufficient to state substantive due process claim for purposes of municipal liability under § 1983). In another case, the Court unanimously rejected the "heightened pleading standard" in cases alleging municipal liability, concluding that "[i]n the absence of . . . an amendment [to Rules 8 and 9(b)], federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168-69 (1993).
78. Even a cursory review of the posi-Monell cases reveals that the Court has had apparent difficulty building a majority behind a clear statement of what constitutes municipal "policy" for purposes of § 1983 liability. There was no majority opinion in Tuttle or Praprotnik, with three of the Justices writing separately in each case. Similarly, there were five separate opinions in Pembaur, with the Justices turning to their vast collection of dictionaries in an attempt to arrive at a concise and applicable definition of "policy." See Pembaur, 475 U.S. at 481 n.9 (citing the various definitions of "policy" in Webster's Third New International Dictionary, Oxford English Dictionary. Webster's New Twentieth Century Dictionary, and Random House Dictionary). This confusion over the definition of "policy" is largely the result of the lack of precedent and guidance as to the meaning of the term when it was first announced in Monell. See Mead, supra note 37, at 542-43 (noting that "policy" is a complex judicial creation of the Monell Court that does not appear in the language of § 1983). Accordingly, the Court's rulings in this area have been widely criticized for their lack of coherence. See id. at 542-46 (discussing the "especially problematic" definition of "policy" in Monell); Robert A. Callahan, Note, "Policymaker" Identification in a Section 1983 Cause of Action: From Monell to Praprotnik; Problems Remain, 40 DRAKE L. REV. 149, 166 (1991) (noting the Court's incoherence in defining "policy" broadly in some cases to include "unwritten rules . . . that need not govern future situations," while using a narrow definition in other cases to limit it to "rules adopted through careful thought processes . . . intended to govern similar situations in the future").
79. See, e.g., Jett, 491 U.S. at 736-37 (whether the racially motivated decision of a school principal and superintendent to reassign plaintiff to another school represented the school district's "official policy"); Harris, 489 U.S. at 388-91 (whether a city's failure to train police officers to determine when an injured detainee might require medical assistance constitutes actionable city "policy"); Praprotnik, 485 U.S. at 129-30 (whether the failure to review the propriety of a subordinate's decision to lay off plaintiff by supervisory officials with the authority to set employment policy renders the municipality liable); Pembaur, 475 U.S. at 484-85 (whether County Prosecutor's decision to order a forceful entry constitutes an "official policy"): Tuttle, 471 U.S. at 823-24 (whether a single act of excessive force by a police officer can constitute a "policy" of inadequate training); Garner, 471 U.S. at 15-22 (whether the policy of the police department to allow the use of deadly force to prevent the escape of any felony suspect is unconstitutional).
80. See, e.g., Larry Kramer & Alan O. Sykes, Municipal Liability Under § 1983: A Legal and Economic Analysis, 1987 SUP. CT. REV. 249, 283-87, 294-96, 301 (arguing that the "'policy rule' of Monell serves no intelligible purpose" and should be "abandoned in favor of common-law agency principles, including the doctrine of respondeat superior"); Mead, supra note 37, at 538-42 (arguing that respondeat superior better serves the policy purposes of § 1983); Note, supra note 55, at 2019 ("[R]espondeat superior liability for municipalities under § 1983 would better effectuate the policy goals of vigorous decisionmaking and deterrence of violations.").
81. See supra note 64 (citing cases in which the Court evaluated the claims of municipal liability on the basis of Monell's "policy rule").
82. Praprotnik, 485 U.S. at 121.
83. Pembaur, 475 U.S. at 483. See also Tuttle, 471 U.S. at 823 (defining policy as "a course of action consciously chosen from among various alternatives"); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 252, 253 n.7 (1981) (vote of City Council to cancel license for rock concert constitutes municipal policy); Owen v. City of Independence, Mo., 445 U.S. 622, 632-33 (1980) (decision by City Council to release investigative reports constitutes official city policy); Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 713 (1978) (Powell, J., concurring) (finding that the uncontested existence of a "formal, written polic[y]" represented a "clear case" for municipal liability).
84. Woodley v. Town of Nantucket, 645 F. Supp. 1365, 1378 (D. Mass. 1986).
85. See, e.g., Matthias v. Bingley, 906 F.2d 1047, 1053-55 (5th Cir. 1990) (finding that city ordinance regulating disposal of property seized during criminal investigation violates due process and constitutes city "policy" for which the city is liable); Bateson v. Geisse, 857 F.2d 1300, 1303-04 (9th Cir. 1988) (finding decision of the City Council, a "properly constituted legislative body," to arbitrarily withhold issuing plaintiff's building permit in violation of the Fourteenth Amendment an act of "official government policy"); Little v. City of North Miami, 805 F.2d 962, 967 (11th Cir. 1986) (per curiam) (finding that resolution adopted by City Council in violation of the First Amendment meets requirements for municipal liability); Evers v. County of Custer, 745 F.2d 1196, 1203 (9th Cir. 1984) (finding the declaration of a public road by a county's governing body official policy).
86. See Monell, 436 U.S. at 713 (Powell, J., concurring) (noting that because "[t]his case . . . involves formal, written policies . . . it is the clear case" for municipal liability); see also Praprotnik, 485 U.S. at 122 ("In Monell itself, it was undisputed that there had been an official policy requiring city employees to take actions that were unconstitutional under this Court's decisions.").
87. 445 U.S. 622 (1980).
88. See id. at 628-29.
89. Id. at 632-33. The district court entered judgment for the city, City Manager and members of the City Council, finding that plaintiff's discharge did not deprive him of any constitutionally protected property interest or liberty interest. See id. at 630 n.10. The court of appeals reversed, finding that the release of the investigative reports by the City Council "had blackened [plaintiff's] name and reputation, thus depriving him of liberty without due process of law." Id. at 631. Nonetheless, the court of appeals found the city was entitled to qualified immunity from liability based on the good faith of its officials. See id. at 634. The Supreme Court left undisturbed the finding that the city had violated plaintiff's constitutional rights under the Fourteenth Amendment. See id. at 633 n.13. The only issue before the Owen Court was whether the city could rely on the good faith of its officials as a shield to § 1983 liability, to which the Court responded in the negative. See id. at 653-58.
90. 453 U.S. 247 (1981).
91. See id. at 251-52.
92. See id. at 253 n.7. The Court addressed only the issue of whether municipalities could be held liable for punitive damages under § 1983. and found that municipalities were immune from punitive damages under the statute based on the common-law and public policy considerations. See id. at 258-71.
93. See, e.g., Kopf v. Wing, 942 F.2d 265, 269 (4th Cir. 1991) (noting that "written policies are carefully crafted to be constitutional, and a plaintiff must usually prove the existence of some unpublished practice" to establish municipal liability under § 1983); Peter H. Schuck, Municipal Liability Under Section 1983: Some Lessons from Tort Law and Organization Theory, 77 GEO. L.J. 1753, 1772 (1989) (noting that few § 1983 municipal liability cases involving formal rules or written policies have reached the lower courts in the post-Monell era).
94. As a noted civil rights attorney has stated, while Monell "gave police misconduct litigators a real, although circumscribed, avenue to sue the offending municipality under § 1983 . . . the vast majority of cases in the police misconduct field did not implicate a formal, written policy . . . chargeable to the municipality." G. Flint Taylor, Municipal Liability Litigation in Police Misconduct Cases From Monroe to Praprotnik and Beyond, 19 CUMB. L. REV. 447, 452 (1989).
95. Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
96. See id. at 481. Pembaur involved two deputy sheriffs who attempted to serve arrest warrants on a doctor's employees. See id. at 472. When the doctor locked the door to the clinic and denied them entrance, the deputies phoned the assistant county prosecutor to ask what they should do, and the prosecutor ordered them to "go in and get" the witnesses. See id. at 473. After police officers chopped down the doctor's door with an axe, the deputies entered and searched the clinic, but did not find the individuals for whom the warrants had been issued. See id. The doctor subsequently brought a § 1983 suit against the city, the county and various individual officials, alleging violations of his Fourth and Fourteenth Amendment rights. See id. at 473-74. The Supreme Court found the prosecutor had acted as the "final decisionmaker for the county" in ordering the deputies to enter the clinic, and the county could therefore be held liable for constitutional violations resulting from the prosecutor's order. Id. at 484-85.
97. As evident in Pembaur, the "official action" model extends § 1983 municipal liability beyond facially unconstitutional written policies (e.g., Monell) or unconstitutional decisions by duly elected city councils (e.g., Owen and Fact Concerts). See id. at 480 ("[T]he power to establish policy is no more the exclusive province of the legislature at the local level than at the state or national level.").
98. Moneil v. Department of Social Services of the City of New York, 436 U.S. 658, 694 (1978).
99. See, e.g., Pembaur, 475 U.S. at 484-85 (concluding that a municipality may incur § 1983 liability for a single decision or act by a supervisory official with "final authority to establish municipal policy with respect to the action ordered").
100. The Court has struggled to answer a number of complex questions in its application of the official action model. See, e.g., Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (how to identify the official with "final policymaking authority" concerning the particular action in question, and whether the trial judge or the jury should make such determination); City of St. Louis v. Praprotnik, 485 U.S. 112, 123-28 (1988) (what deference to give state and local law in determining who has "final policymaking authority" in a particular area of a municipality's business); Pembaur, 475 U.S. at 481-85 (whether a single decision in by an individual official in an isolated case may constitute policy).
101. Pembaur, 475 U.S. at 481.
102. See, e.g., Praprotnik, 485 U.S at 144 (Brennan, J., concurring) (disagreeing with the plurality's ruling that the identification of officials having "final policymaking authority" is a question of state law and should not be submitted to the jury). See also Callahan, Note, supra note 63, at 164 (noting that "the Court has been unable to reach majority consensus as to the proper standards for determining whether a municipal official is a policymaker. . . [and a]s a result . . . the lower federal courts have been struggling to . . . determin[e] whether a municipal official is a policymaker").
103. Even when plaintiffs base their claims of municipal liability on the "official action" model, they are rarely successful because the search for one who possesses "final policymaking authority" seems to operate as a form of municipal immunity. As Professor Shuck has argued, "[i]n the many cases in which official policy is not (as it is in Monell) embodied in a straightforward, published rule promulgated by a highly visible political organ such as a city council, so crabbed an inquiry [into who is a "final policymaker"] is unlikely to identify those situations in which the government should properly be held responsible for constitutional injuries to citizens." Schuck, supra note 78, at 1774-75.
104. As Professor Nahmod has noted, "[a]fter Monell, considerable litigation has centered around the question of the standards to be used in determining which high-ranking officials make policy and under what circumstances." NAHMOD, supra note 48, § 6.09, at 431.
105. Indeed, there seem only to be a handful of "official action" cases decided by the lower federal courts. See, e.g., Brown v. Reardon, 770 F.2d 896, 901 (10th Cir. 1985) (ruling that city is not liable to former employees who were allegedly terminated for failing to contribute to political fund because the alleged misconduct was attributable only to low-level employees whose actions do not constitute city policy); McKay v. Hammock, 730 F.2d 1367, 1374-75 (10th Cir. 1984) (ruling that sheriff's office could be held liable for constitutional violations carried out by sheriff, who is official responsible for the policies of the office); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 448 (2d Cir. 1980) (finding that city would be liable if plaintiff can prove that the mayor directed a campaign to stigmatize him because the mayor is a city official whose acts represent municipal policy).
106. See, e.g., Jones v. City of Chicago, 856 F.2d 985, 989-90 (7th Cir. 1988) (systematic practice of withholding exculpatory evidence from defense); Owens v. City of Atlanta, 780 F.2d 1564, 1566 (11th Cir. 1988) (pervasive use of potentially lethal types of restraining techniques); Hindman v. City of Paris, Tex., 746 F.2d 1063, 1065-66 (5th Cir. 1984) (practice of obtaining arrest warrants without adequate probable cause).
107. 485 U.S. 112 (1988).
108. Praprotnik was an architect employed by the city of St. Louis. By 1980, he was serving in a management-level planning position in the St. Louis Community Development Agency. Up until that point, he had received favorable annual performance evaluations. Later that year, Praprotnik received a 15-day suspension for accepting private clients without prior approval. He appealed the suspension to the Civil Service Commission, which reversed the suspension and awarded him backpay. Praprotnik's supervisors were apparently displeased with the Commission's decision and his next two annual job performance evaluations were less favorable than in previous years. He appealed both evaluations to the city's personnel department and received partial relief. In 1982, due to municipal budget cuts, the Community Development Agency downsized and transferred Praprotnik to what he considered a dead-end job. Praprotnik objected to the transfer and appealed to the Civil Service Commission once again. The Commission declined to hear the appeal because there had been no reduction in pay or grade. In December 1983, allegedly due to lack of funds, Praprotnik was laid off. See id. at 114-17.
109. Justice O'Connor, writing for the plurality, noted that the identification of policymaking officials is always a question of state or local law: "[W]e can be confident that state law (which may include valid local ordinances and regulations) will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of local government's business." See id. at 125-26.
110. See id.
111. See id. at 129-30.
112. The Praprotnik plurality did note that, "[a]mong the many kinds of municipal corporations, political subdivisions, and special districts of all sorts, one may expect to find a rich variety of ways in which the power of government is distributed among a host of different officials and official bodies." Id. at 124-25 (citing CHARLES S. RHYNE, THE LAW OF LOCAL GOVERNMENT OPERATIONS §§ 1.3-1.7 (1980)). Having acknowledged the difficulties involved in determining the locus of policymaking power within different municipal organizations, the Court nevertheless found that state or local law is the final arbiter on these issues. See id.
113. Id. at 130.
114. In a separate concurrence, Justice Brennan argued that the plurality opinion "turns a blind eye to reality" by ignoring the possibility that "[r]eviewing officials . . . may as a matter of practice never invoke their plenary oversight authority, or their review powers may be highly circumscribed," so that "the subordinate's decision is in effect the final municipal pronouncement on the subject." See id. at 145-46 (Brennan, J., concurring in judgment).
115. See id. at 129-30 ("[T]he mere failure to investigate the basis of a subordinate's discretionary decisions [in the absence of a particular decision by the subordinate that is expressly approved by a supervisory policymaker, or a series of decisions by a subordinate of which the supervisor must have been aware] does not amount to a delegation of policymaking authority . . . .").
116. Id. at 146. (Brennan, J., concurring in judgment) For Justice Brennan, the plurality's opinion essentially permits "municipalities to insulate themselves from liability for the acts of all but a small minority of actual city policymakers." Id. at 132. See also Board of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 435 (1997) (Breyer, J., dissenting) (noting that the Court's "policymaker" cases "require[] federal courts to explore state and municipal law that distributes different state powers among different local officials and local entities . . . That law is highly specialized; it may or may not say just where policymaking authority lies, and it can prove particularly difficult to apply . . . .").
117. Justice Brennan, arguing that juries should be allowed to determine who was a final policymaker, criticized the Praprotnik plurality for its narrow view of final policymaking authority: "the law is concerned not with the niceties of legislative draftsmanship but with the realities of municipal decisionmaking, and any assessment of a municipality's actual power structure is necessarily a factual and practical one." See Praprotnik, 485 U.S. at 145. See generally George D. Brown, Municipal Liability Under Section 1983 and the Ambiguities of Burger Court Federalism: A Comment on City of Oklahoma v. Tuttle and Pembaur v. City of Cincinnati - The "Official Policy" Cases, 27 B.C. L. REV. 883 (1986); Terrence S. Welch & Kent S. Hofmeister, Praprotnik, Municipal Policy and Policymakers: The Supreme Court's Constriction of Municipal Liability, 13 S. ILL. U. L.J. 857 (1989).
118. Justice Brennan, arguing that juries should be allowed to determine who was a final policymaker, criticized the Praprotnik plurality for its narrow view of final policymaking authority: "the law is concerned not with the niceties of legislative draftsmanship but with the realities of municipal decisionmaking, and any assessment of a municipality's actual power structure is necessarily a factual and practical one." See Praprotnik, 485 U.S. at 145. See generally George D. Brown, Municipal Liability Under Section 1983 and the Ambiguities of Burger Court Federalism: A Comment on City of Oklahoma v. Tuttle and Pembaur v. City of Cincinnati - The "Official Policy" Cases, 27 B.C. L. REV. 883 (1986); Terrence S. Welch & Kent S. Hofmeister, Praprotnik, Municipal Policy and Policymakers: The Supreme Court's Constriction of Municipal Liability, 13 S. ILL. U. L.J. 857 (1989).
119. I use this term to indicate the malleability of this model of municipal liability: simply fill in the "blank" and you have a § 1983 municipal liability claim.
120. See, e.g. City of Canton v. Harris, 489 U.S. 378, 387 (1989) ("[T]here are limited circumstances in which an allegation of a 'failure to train' can be the basis for liability under § 1983."); Palmquist v. Selvik, 111 F.3d 1332, 1344 (7th Cir. 1997) ("[A] municipality may, in restricted circumstances, be held liable under § 1983 for constitutional violations resulting from its failure to train its police officers."); Young v. City of Augusta, Georgia, 59 F.3d 1160, 1171 (11th Cir. 1995) (holding a § 1983 claim against a municipality for failure to train valid only "if the deficiency reflects deliberate indifference by City policymakers to the rights of inmates . . . .").
121. See, e.g., Ruehman v. Village of Palos Park, 842 F. Supp. 1043, 1058 (N.D. Ill. 1993), aff'd, 34 F.3d 525 (7th Cir. 1994) (noting that "deliberate indifference" of a municipality toward false arrests could only be established through a showing that the municipality is "aware that persons are being arrested on incorrectly listed warrants or, at a minimum, it is shown such arrests are so likely to occur that failure to have additional validation procedures represents a substantial risk of having persons arrested on invalid warrants."): Loggins v. Jeans, 841 F. Supp. 1174, 1177 (N.D. Ga. 1993) (holding that a § 1983 plaintiff may establish municipal liability by showing that the municipality failed to stop or correct repeated unconstitutional conduct by police officers).
122. See, e.g., Lowe v. City of St. Louis, 843 F.2d 1158, 1160 (8th Cir. 1988) (discussing a "progressive discipline policy" employed in dealing with misbehavior by police officers); Baker v. McCoy, 739 F.2d 381, 384 (8th Cir. 1984) ("This court has recognized that a local government entity may be amenable to suit under § 1983 for a continuing failure to remedy a known pattern of constitutionally offensive conduct by its subordinates.").
123. In City of Canton v. Harris, 489 U.S. 378 (1989), the plaintiff claimed that her rights under the Due Process Clause were violated when she was denied necessary medical care while in police custody. She asserted a claim of municipal liability for this deprivation based on a theory of "grossly inadequate training." The plaintiff presented evidence of a municipal regulation which gave police shift commanders complete discretion in deciding whether prisoners were in need of medical care. The plaintiff also presented evidence that such commanders received no training or guidelines to assist them in making such judgments. See id. at 382. The Court found that the municipality could be held liable under § 1983 for failing to train commanders in this area because such a failure manifested a "deliberately indifferent" attitude towards plaintiff's rights. Id. at 390; see also Board of Comm'rs of Bryan County v. Brown, 520 U.S. 397 (1997) (rejecting a § 1983 municipal liability claim based on a "failure to properly screen potential applicants"); see also infra notes 113-25 and accompanying text.
124. Harris, 489 U.S. at 390.
125. See id. [I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury. Id.
126. It is interesting to note that in Monell, decided more than twenty years prior to Harris, the Court had determined that local governments not be held liable under § 1983 simply for their failure to act: "[W]e would appear to have decided that the mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support § 1983 liability." See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694 n.58 (1978) (citing Rizzo v. Goode, 423 U.S. 362 (1976)). The Harris Court did not refer to this earlier passage.
127. See Taylor, supra note 79, at 452 (noting that, among civil rights lawyers, "[t]he most popular policy [under § 1983] quickly became one that was defined as encouraging the use of deadly or excessive force by one or more of the matrix of municipal failures - failure to properly hire, train, discipline, supervise, control or investigate.").
128. See, e.g., Manarite v. Springfield, 957 F.2d 953, 960 (1st Cir. 1992) (affirming a grant of summary judgment to the defendant in a claim by the estate of a jail suicide victim where a deliberately indifferent policy of allowing suicide could not be established in light of the fact that the city had, four years prior to incident, promulgated state-approved guidelines for supervision of suicide risks and intoxicated arrestees. The guidelines, for example, made failure to remove shoelaces of a public intoxication arrestee who exhibited no suicidal behavior at most negligent); Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (affirming the dismissal of § 1983 action brought by an arrestee against a city and its police commissioner because plaintiff was unable to show facts to support the allegation that the city failed to adequately train, discipline, and supervise its police officers. The court properly rejected the plaintiff's assertion that he should be given the opportunity to conduct limited discovery since the defendants were in sole possession of knowledge about police department policies, because even the most minimal training (if any is necessary) obviously is sufficient to inform a police officer that a beating such as that alleged by the arrestee is impermissible); Martinez Correa v. Lopez Feliciano, 759 F. Supp. 947, 958 (D. P.R. 1991) (reversing a jury verdict against a municipality for failure to train where plaintiff failed to present evidence showing that the municipality's failure to train proximately caused his injury, or that the municipality had a regular practice of hiring unqualified officers); Elliott v. Cheshire County, 750 F. Supp. 1146, 1156 (D.N.H 1990) (finding that supervisory officials and the city were not liable for arrestee's jail suicide where the jail had implemented a suicide prevention training program after prior suicides, and where nothing in arrestee's behavior suggested need for greater care); Roman Figueroa v. Torres Molina, 754 F. Supp. 239, 244 (D.P.R. 1990) (finding that the police superintendent and city could not be held liable for alleged use of excessive force by an officer who arrested a minor for traffic violations. Implementation and development of extensive training programs, designed to raise professionalism and accountability of line officers, negated any inference of causal relationship between official department policy and alleged unconstitutional use of force); Whitley v. New York, 518 F. Supp. 1318, 1320 (S.D.N.Y. 1981) (finding that plaintiff, who had been shot by a police officer during the course of an armed robbery, had failed to show that he suffered a constitutional tort due to the city's alleged inadequate training of the officer in the use of firearms).
129. 974 F.2d 293, 299 (2d Cir. 1992), cert. denied, 507 U.S. 972 (1993).
130. Id.
131. See id. at 299-300. The plaintiff in Walker was successful, however, in stating a claim for municipal liability based on "a complete failure by the [District Attorney] in 1971 to train [Assistant District Attorneys] on fulfilling Brady obligations . . . ." Id. at 300. To the court's mind, the Brady standard was not "so obvious or easy to apply as to require [no training.]" Id.; see also Barney v. Pulsipher, 143 F.3d 1299 (10th Cir. 1998). The Barney court noted: Even if the [city's] courses concerning gender issues and inmates' rights were less than adequate, we are not persuaded that a plainly obvious consequence of a deficient training program would be the sexual assault of inmates. Specific or extensive training hardly seems necessary for a jailer to know that sexually assaulting inmates is inappropriate behavior. Id. at 1308; Floyd v. Waiters, 133 F.3d 786 (11th Cir. 1998). Similarly, the Floyd court opined: Applying the reasoning of Sewell and Walker to the facts of this case, we conclude that the BOE [Board of Public Education] did not act with deliberate indifference to the training and supervision of the security department. [The offending officer's] conduct . . . [was] clearly against the basic norms of human conduct . . . [and] the BOE was entitled to rely on the common sense of its employees not to engage in wicked and criminal conduct. Id. at 796; Sewell v. Town of Lake Hamilton, 117 F.3d 488, 490 (11th Cir. 1997) (applying Walker's reasoning to reject plaintiff's claim that an officer's sexual molestation of an arrestee resulted from municipality's deliberate indifference in training and supervision).
132. 157 F.3d 574 (8th Cir. 1998).
133. Id. at 579.
134. Id.
135. See Board of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 399-400 (1997).
136. Specifically, Brown claimed that Reserve Deputy Burns had a long record of driving infractions, as well as a record of assault and battery, resisting arrest, and public drunkenness. The Sheriff stated at trial that, although he had obtained Burns' record from the National Crime Information Center, he did not carefully review it. The jury returned a verdict for the plaintiff, which was subsequently upheld by the Fifth Circuit, and the County appealed to the Supreme Court. See id. at 401.
137. The Justices' questions during oral argument revealed their concern with the issue of causation, or more specifically, whether municipal liability attaches where the claimed injury has resulted from a chain of events started by the single lawful act of hiring an employee. See 1996 WL 65602, at *7 (U.S. Oral Arg., Nov. 5, 1996) (95-1100). Members of the Court repeatedly questioned the attorneys about whether the jury could have based liability against the county on a finding of only "but for" causation, and one member of the Court pointed out that even if the jury found a single act of deliberate indifference on the part of a municipal policymaker, it had not been asked to decide whether that single act had actually caused the plaintiff's injuries. See id., 1996 WL 65602, at *14, *30.
138. Brown, 520 U.S. at 405. The majority rejected Brown's contention that establishing an act by a proper municipal decisionmaker alone imposes municipal liability. The Court cautioned that, in such a situation, a jury may readily rely on the impermissible theory of respondeat superior while the plaintiff has failed to prove any fault on the part of the municipality. See id. at 410.
139. Id. at 412.
140. Brown was decided 5-4. Interestingly, the same 5-4 division has been present in some of the Court's recent federalism decisions. See, e.g., Printz v. United States, 521 U.S. 898, 902 (1997) (Brady handgun legislation held unconstitutional); Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 266 (1997) (Eleventh Amendment bars claim against State to quiet title to lands); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 47 (1996) (Commerce Clause does not give Congress power to override Eleventh Amendment); United States v. Lopez, 514 U.S. 549, 551 (1995) (Federal school gun possession statute beyond Congress' commerce power). Because Brown can be read as a refusal to allow federal courts to second-guess local hiring decisions, it seems appropriate to consider this case alongside these federalism decisions. See Jack M. Beermann, A Critical Approach to Section 1983 with Special Attention to Sources of Law, 42 STAN. L. REV. 51, 81 (1989) (arguing that the Court frequently adverts to federalism concerns in the context of § 1983 cases).
141. Brown, 520 U.S. at 404 (emphasis added). Justice O'Connor noted the novelty of Ms. Brown's claim that her injuries were caused by the sheriff's hiring decision: A lack of scrutiny may increase the likelihood that an unfit officer will be hired, and that the unfit officer will, when placed in a particular position to affect the rights of citizens, act improperly. But that is only a generalized showing of risk. The fact that inadequate scrutiny of an applicant's background would make a violation of rights more likely cannot alone give rise to an inference that a policymaker's failure to scrutinize the record of a particular applicant produced a specific constitutional violation. After all, a full screening of an applicant's background might reveal no cause for concern at all; if so, a hiring official who failed to scrutinize the applicant's background cannot be said to have consciously disregarded an obvious risk that the officer would subsequently inflict a particular constitutional injury. Id. at 410-11.
142. Applying organization theory to the Court's § 1983 municipal liability jurisprudence, Professor Schuck has noted that the pyramid model assumes that "formal legal authority to make policy on the agency's behalf is located at the top of the agency pyramid. That authority is deployed by officials at or near the top to develop and to issue to the officials located further down toward the base those implementing directives that will conform their behavior to the agreed-upon policies." Schuck, supra note 78, at 1777.
143. This term is borrowed from political scientist, Michael Lipsky. See generally MICHAEL LIPSKY, STREET-LEVEL BUREAUCRACY: THE DILEMMAS OF THE INDIVIDUAL IN PUBLIC SERVICES (1980).
144. As Professor Schuck has noted, "the behavior of low-level officials in street-level agencies is significantly shaped by their operating routines, situation-specific social and emotional needs, peer subculture norms and ideologies, and the dynamics and economy of their daily interactions with the public." See Schuck, supra note 78, at 1778.
145. See supra note 112, and accompanying text. I do not argue that all § 1983 plaintiffs would succeed on the merits in the absence of the "policy" requirement; some number of baseless suits are filed annually. Rather, I argue that the various formulations of "policy" generally fail to address claims involving pervasive constitutional misconduct by low-level law enforcement officers. As a consequence, valid § 1983 claims based on such pervasive harms do not survive.
146. See 42 U.S.C. § 1983.
147. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691 n.56 (1978) ("It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice . . . can establish what is state law.") (quoting Nashville, Chattanooga & St. Louis Ry. v. Browning, 310 U.S. 362, 369 (194O)).
148. Id. at 691 (quoting Adickes v. Kress & Co., 398 U.S. 144, 167-68 (1970)).
149. While the Court has noted that custom remains a distinct basis for municipal liability under Monell, it has apparently had no occasion to discuss a claim for municipal liability alleging an unconstitutional custom. See, e.g., City of Canton, Ohio v. Harris, 489 U.S. 378 (1989): [I]n addition to suggesting that the city's failure to train its officers amounted to a 'policy' that resulted in the denial of medical care to detainees, respondent also contended the city had a 'custom' of denying medical care . . . [but] this claim of an unconstitutional 'custom' appears to be little more than a restatement of her 'failure-to-train as policy' claim . . . [thus] we decline to determine whether respondent's contention that such a 'custom' existed is an alternative ground for affirmance. Id. at 386 n.5.
150. See Spell v. McDaniel, 824 F.2d 1380, 1386 n.6 (4th Cir. 1987) ("[T]he [Supreme] Court recognizes 'municipal policy' in the judicially developed sense and 'custom or usage' in the statutory sense as different legal concepts . . . though the Court has not since Monell had the occasion to discuss 'custom or usage' in the detail it has discussed 'policy.'").
151. As Professor Schuck has noted, "at its birth, the doctrine [of "official policy"] bore the unmistakable imprint of bastardy; its supporting rationale suggests nothing so much as a split-the-difference judicial compromise, a quid pro quo in which the swing Justices agreed to Monell's first prong, which overruled Monroe v. Pape, in exchange for a second prong rejecting respondeat superior liability in favor of an 'official policy' requirement." See Schuck, supra note 78, at 1755 n.13; see also Schnapper, supra note 16, at 215-16 (noting that the "official policy" requirement announced in Monell had not even been raised, much less briefed, in the Supreme Court and had not been discussed by the courts below).
152. See Stefanelli v. Minard, 342 U.S. 117, 121 (1951).
153. Though I will show in Part IV, infra, that certain unconstitutional "customs" more than meet the legal requirements of causation.
154. See Eric H. Zagrans, "Under Color of" What Law: A Reconstructed Model of Section 1983 Liability; 71 VA. L. REV. 499, 578 (1985) (noting that while the proper interpretation of the statutory language of "any statute, ordinance [or] regulation" is "fairly straightforward," "the meaning of 'custom or usage' is somewhat elusive"). See also infra notes 175-86 and accompanying text.
155. Board of County Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 430 (1997) (Breyer, J., dissenting).
156. See THE FEDERALIST No. 51, at 351 (James Madison) (Clinton Rossiter, ed., 1961) ("[W]hilst all authority in [the federal government] will be derived from and dependent on the society, the society itself will be broken into . . . many parts.").
157. In the spring of 1865. while Congress was in recess, the Confederate army conceded victory to the North. President Johnson initiated Reconstruction by appointing provisional governors in the fallen states. See generally ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 276 (1988).
158. See ROBERT K. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD 36 (1947) (The Civil War Amendments "gave Congress express power to provide federal protection for various rights.").
159. James B. Browning, The North Carolina Black Code, 15 J. NEGRO HIST. 461, 471 (1930), reprinted in AFRICAN AMERICAN EXPERIENCE, VOL. 2: EMANCIPATION AND RECONSTRUCTION 103 (Paul Finkelman, ed., 1992). See CONG. GLOBE, 39th Cong., 1st Sess. 603 (1865) (stating that while it may be true that "the black codes fell with slavery," Southern statutes made the freedman "an outcast, industrially a serf, legally a separate and oppressed class").
160. James B. Browning, The North Carolina Black Code, 15 J. NEGRO HIST. 461, 471 (1930), reprinted in AFRICAN AMERICAN EXPERIENCE, VOL. 2: EMANCIPATION AND RECONSTRUCTION 103 (Paul Finkelman, ed., 1992). See CONG. GLOBE, 39th Cong., 1st Sess. 603 (1865) (stating that while it may be true that "the black codes fell with slavery," Southern statutes made the freedman "an outcast, industrially a serf, legally a separate and oppressed class").
161. The Black Codes, enacted by a number of southern states in 1865 and 1866, sought to keep blacks in an inferior class by disabling them from freely seeking work, having access to the courts as a means of redressing wrongs, obtaining land, or bearing arms. See generally Aremona G. Bennett, Phantom Freedom: Official Acceptance of Violence to Personal Security and Subversion of Proprietary Rights and Ambitions Following Emancipation, 1865-1910, 70 CHI.-KENT L. REV. 439, 445-47, 453-55 (1994) (describing judicial decisions and Black Code provisions which denied southern blacks protection of occupational liberty and the right to contract). South Carolina and Florida, for example, passed laws forbidding blacks to migrate into or out of the state without posting bond. See W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 167-68 (1962). The Mississippi Black Code provided that adult blacks without employment, blacks "unlawfully assembling together," and white persons associated with blacks would be guilty of vagrancy and subject to a fifty dollar fine and ten days imprisonment if black, and two hundred dollars and six months imprisonment if white. See David F. Forte, Spiritual Equality, The Black Codes and the Americanization of the Freedmen, 43 LOY. L. REV. 569 (1998); City of Chicago v. Morales, 119 S. Ct. 1849, 1858 n.20 (1999) (noting that "vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery"). In North Carolina, blacks were forced to sign contracts that incorporated onerous provisions mandating labor from sun-up to sundown, banning entertainment on the plantation, and enjoining blacks from leaving the plantation without permission of the master. See Browning, supra note 143, at 471. Louisiana, whose 1866 code was one of the most severe, authorized fines for "disobedience," which included "[f]ailing to obey reasonable orders," "impudence," "swearing," and "indecent language to or in the presence of the employer, his family or agent." Id. Blacks were also forbidden from serving on juries, testifying or acting as parties against whites, see KENNETH STAMPP, THE ERA OF RECONSTRUCTION, 1865-1877 (1965), or carrying firearms without licenses, see Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309. 344-45 (1991); see also DOCUMENTARY HISTORY OF RECONSTRUCTION: POLITICAL, MILITARY, SOCIAL, RELIGIOUS, EDUCATIONAL, AND INDUSTRIAL, 1865-1906 289 (Walter L. Fleming ed., 1966) (describing the Mississippi Black Code provision that "no freedman, free Negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind . . . .").
162. The Black Codes, enacted by a number of southern states in 1865 and 1866, sought to keep blacks in an inferior class by disabling them from freely seeking work, having access to the courts as a means of redressing wrongs, obtaining land, or bearing arms. See generally Aremona G. Bennett, Phantom Freedom: Official Acceptance of Violence to Personal Security and Subversion of Proprietary Rights and Ambitions Following Emancipation, 1865-1910, 70 CHI.-KENT L. REV. 439, 445-47, 453-55 (1994) (describing judicial decisions and Black Code provisions which denied southern blacks protection of occupational liberty and the right to contract). South Carolina and Florida, for example, passed laws forbidding blacks to migrate into or out of the state without posting bond. See W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 167-68 (1962). The Mississippi Black Code provided that adult blacks without employment, blacks "unlawfully assembling together," and white persons associated with blacks would be guilty of vagrancy and subject to a fifty dollar fine and ten days imprisonment if black, and two hundred dollars and six months imprisonment if white. See David F. Forte, Spiritual Equality, The Black Codes and the Americanization of the Freedmen, 43 LOY. L. REV. 569 (1998); City of Chicago v. Morales, 119 S. Ct. 1849, 1858 n.20 (1999) (noting that "vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery"). In North Carolina, blacks were forced to sign contracts that incorporated onerous provisions mandating labor from sun-up to sundown, banning entertainment on the plantation, and enjoining blacks from leaving the plantation without permission of the master. See Browning, supra note 143, at 471. Louisiana, whose 1866 code was one of the most severe, authorized fines for "disobedience," which included "[f]ailing to obey reasonable orders," "impudence," "swearing," and "indecent language to or in the presence of the employer, his family or agent." Id. Blacks were also forbidden from serving on juries, testifying or acting as parties against whites, see KENNETH STAMPP, THE ERA OF RECONSTRUCTION, 1865-1877 (1965), or carrying firearms without licenses, see Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309. 344-45 (1991); see also DOCUMENTARY HISTORY OF RECONSTRUCTION: POLITICAL, MILITARY, SOCIAL, RELIGIOUS, EDUCATIONAL, AND INDUSTRIAL, 1865-1906 289 (Walter L. Fleming ed., 1966) (describing the Mississippi Black Code provision that "no freedman, free Negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind . . . .").
163. The Black Codes, enacted by a number of southern states in 1865 and 1866, sought to keep blacks in an inferior class by disabling them from freely seeking work, having access to the courts as a means of redressing wrongs, obtaining land, or bearing arms. See generally Aremona G. Bennett, Phantom Freedom: Official Acceptance of Violence to Personal Security and Subversion of Proprietary Rights and Ambitions Following Emancipation, 1865-1910, 70 CHI.-KENT L. REV. 439, 445-47, 453-55 (1994) (describing judicial decisions and Black Code provisions which denied southern blacks protection of occupational liberty and the right to contract). South Carolina and Florida, for example, passed laws forbidding blacks to migrate into or out of the state without posting bond. See W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 167-68 (1962). The Mississippi Black Code provided that adult blacks without employment, blacks "unlawfully assembling together," and white persons associated with blacks would be guilty of vagrancy and subject to a fifty dollar fine and ten days imprisonment if black, and two hundred dollars and six months imprisonment if white. See David F. Forte, Spiritual Equality, The Black Codes and the Americanization of the Freedmen, 43 LOY. L. REV. 569 (1998); City of Chicago v. Morales, 119 S. Ct. 1849, 1858 n.20 (1999) (noting that "vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery"). In North Carolina, blacks were forced to sign contracts that incorporated onerous provisions mandating labor from sun-up to sundown, banning entertainment on the plantation, and enjoining blacks from leaving the plantation without permission of the master. See Browning, supra note 143, at 471. Louisiana, whose 1866 code was one of the most severe, authorized fines for "disobedience," which included "[f]ailing to obey reasonable orders," "impudence," "swearing," and "indecent language to or in the presence of the employer, his family or agent." Id. Blacks were also forbidden from serving on juries, testifying or acting as parties against whites, see KENNETH STAMPP, THE ERA OF RECONSTRUCTION, 1865-1877 (1965), or carrying firearms without licenses, see Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309. 344-45 (1991); see also DOCUMENTARY HISTORY OF RECONSTRUCTION: POLITICAL, MILITARY, SOCIAL, RELIGIOUS, EDUCATIONAL, AND INDUSTRIAL, 1865-1906 289 (Walter L. Fleming ed., 1966) (describing the Mississippi Black Code provision that "no freedman, free Negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind . . . .").
164. The Black Codes, enacted by a number of southern states in 1865 and 1866, sought to keep blacks in an inferior class by disabling them from freely seeking work, having access to the courts as a means of redressing wrongs, obtaining land, or bearing arms. See generally Aremona G. Bennett, Phantom Freedom: Official Acceptance of Violence to Personal Security and Subversion of Proprietary Rights and Ambitions Following Emancipation, 1865-1910, 70 CHI.-KENT L. REV. 439, 445-47, 453-55 (1994) (describing judicial decisions and Black Code provisions which denied southern blacks protection of occupational liberty and the right to contract). South Carolina and Florida, for example, passed laws forbidding blacks to migrate into or out of the state without posting bond. See W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 167-68 (1962). The Mississippi Black Code provided that adult blacks without employment, blacks "unlawfully assembling together," and white persons associated with blacks would be guilty of vagrancy and subject to a fifty dollar fine and ten days imprisonment if black, and two hundred dollars and six months imprisonment if white. See David F. Forte, Spiritual Equality, The Black Codes and the Americanization of the Freedmen, 43 LOY. L. REV. 569 (1998); City of Chicago v. Morales, 119 S. Ct. 1849, 1858 n.20 (1999) (noting that "vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery"). In North Carolina, blacks were forced to sign contracts that incorporated onerous provisions mandating labor from sun-up to sundown, banning entertainment on the plantation, and enjoining blacks from leaving the plantation without permission of the master. See Browning, supra note 143, at 471. Louisiana, whose 1866 code was one of the most severe, authorized fines for "disobedience," which included "[f]ailing to obey reasonable orders," "impudence," "swearing," and "indecent language to or in the presence of the employer, his family or agent." Id. Blacks were also forbidden from serving on juries, testifying or acting as parties against whites, see KENNETH STAMPP, THE ERA OF RECONSTRUCTION, 1865-1877 (1965), or carrying firearms without licenses, see Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309. 344-45 (1991); see also DOCUMENTARY HISTORY OF RECONSTRUCTION: POLITICAL, MILITARY, SOCIAL, RELIGIOUS, EDUCATIONAL, AND INDUSTRIAL, 1865-1906 289 (Walter L. Fleming ed., 1966) (describing the Mississippi Black Code provision that "no freedman, free Negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind . . . .").
165. The Black Codes, enacted by a number of southern states in 1865 and 1866, sought to keep blacks in an inferior class by disabling them from freely seeking work, having access to the courts as a means of redressing wrongs, obtaining land, or bearing arms. See generally Aremona G. Bennett, Phantom Freedom: Official Acceptance of Violence to Personal Security and Subversion of Proprietary Rights and Ambitions Following Emancipation, 1865-1910, 70 CHI.-KENT L. REV. 439, 445-47, 453-55 (1994) (describing judicial decisions and Black Code provisions which denied southern blacks protection of occupational liberty and the right to contract). South Carolina and Florida, for example, passed laws forbidding blacks to migrate into or out of the state without posting bond. See W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 167-68 (1962). The Mississippi Black Code provided that adult blacks without employment, blacks "unlawfully assembling together," and white persons associated with blacks would be guilty of vagrancy and subject to a fifty dollar fine and ten days imprisonment if black, and two hundred dollars and six months imprisonment if white. See David F. Forte, Spiritual Equality, The Black Codes and the Americanization of the Freedmen, 43 LOY. L. REV. 569 (1998); City of Chicago v. Morales, 119 S. Ct. 1849, 1858 n.20 (1999) (noting that "vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery"). In North Carolina, blacks were forced to sign contracts that incorporated onerous provisions mandating labor from sun-up to sundown, banning entertainment on the plantation, and enjoining blacks from leaving the plantation without permission of the master. See Browning, supra note 143, at 471. Louisiana, whose 1866 code was one of the most severe, authorized fines for "disobedience," which included "[f]ailing to obey reasonable orders," "impudence," "swearing," and "indecent language to or in the presence of the employer, his family or agent." Id. Blacks were also forbidden from serving on juries, testifying or acting as parties against whites, see KENNETH STAMPP, THE ERA OF RECONSTRUCTION, 1865-1877 (1965), or carrying firearms without licenses, see Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309. 344-45 (1991); see also DOCUMENTARY HISTORY OF RECONSTRUCTION: POLITICAL, MILITARY, SOCIAL, RELIGIOUS, EDUCATIONAL, AND INDUSTRIAL, 1865-1906 289 (Walter L. Fleming ed., 1966) (describing the Mississippi Black Code provision that "no freedman, free Negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind . . . .").
166. The Black Codes, enacted by a number of southern states in 1865 and 1866, sought to keep blacks in an inferior class by disabling them from freely seeking work, having access to the courts as a means of redressing wrongs, obtaining land, or bearing arms. See generally Aremona G. Bennett, Phantom Freedom: Official Acceptance of Violence to Personal Security and Subversion of Proprietary Rights and Ambitions Following Emancipation, 1865-1910, 70 CHI.-KENT L. REV. 439, 445-47, 453-55 (1994) (describing judicial decisions and Black Code provisions which denied southern blacks protection of occupational liberty and the right to contract). South Carolina and Florida, for example, passed laws forbidding blacks to migrate into or out of the state without posting bond. See W.E.B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 167-68 (1962). The Mississippi Black Code provided that adult blacks without employment, blacks "unlawfully assembling together," and white persons associated with blacks would be guilty of vagrancy and subject to a fifty dollar fine and ten days imprisonment if black, and two hundred dollars and six months imprisonment if white. See David F. Forte, Spiritual Equality, The Black Codes and the Americanization of the Freedmen, 43 LOY. L. REV. 569 (1998); City of Chicago v. Morales, 119 S. Ct. 1849, 1858 n.20 (1999) (noting that "vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery"). In North Carolina, blacks were forced to sign contracts that incorporated onerous provisions mandating labor from sun-up to sundown, banning entertainment on the plantation, and enjoining blacks from leaving the plantation without permission of the master. See Browning, supra note 143, at 471. Louisiana, whose 1866 code was one of the most severe, authorized fines for "disobedience," which included "[f]ailing to obey reasonable orders," "impudence," "swearing," and "indecent language to or in the presence of the employer, his family or agent." Id. Blacks were also forbidden from serving on juries, testifying or acting as parties against whites, see KENNETH STAMPP, THE ERA OF RECONSTRUCTION, 1865-1877 (1965), or carrying firearms without licenses, see Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309. 344-45 (1991); see also DOCUMENTARY HISTORY OF RECONSTRUCTION: POLITICAL, MILITARY, SOCIAL, RELIGIOUS, EDUCATIONAL, AND INDUSTRIAL, 1865-1906 289 (Walter L. Fleming ed., 1966) (describing the Mississippi Black Code provision that "no freedman, free Negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind . . . .").
167. As one commentator has noted, the Black Codes "were an attempt to restrict the Negro's labor and movements in such a way as to continue his economic dependence on the former master class, and to deprive him of the political rights by which he might enlarge his freedom of choice in economic life." MORROE BERGER, EQUALITY BY STATUTE: THE REVOLUTION IN CIVIL RIGHTS 4-5 (1968). See also Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 MICH. L. REV. 1323, 1325 (1952) (explaining that the Black Codes' "restrictions . . . resulted in forcing Negroes to work for their former masters or other white men" and caused African Americans to remain slaves "in all but the constitutional sense").
168. As one commentator has noted, the Black Codes "were an attempt to restrict the Negro's labor and movements in such a way as to continue his economic dependence on the former master class, and to deprive him of the political rights by which he might enlarge his freedom of choice in economic life." MORROE BERGER, EQUALITY BY STATUTE: THE REVOLUTION IN CIVIL RIGHTS 4-5 (1968). See also Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 MICH. L. REV. 1323, 1325 (1952) (explaining that the Black Codes' "restrictions . . . resulted in forcing Negroes to work for their former masters or other white men" and caused African Americans to remain slaves "in all but the constitutional sense").
169. The Civil Rights Act of 1866, ch. 31, § 1, 14. Stat. 27 (1866).
170. Compare id. § 2 ("any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act") with Act of Apr. 20, 1871, ch. 22, § 1, 17 Stat. 13 (1871) (codified as 42 U.S.C. § 1983) ("every person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State") and with U.S. CONST. amend. XIV, § 1 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.").
171. See, e.g., Remarks of Senator Trumbull introducing the bill: Since the abolition of slavery, the Legislatures which have assembled in the insurrectionary States have passed laws relating to the freedmen, and in nearly all the States they have discriminated against them. They deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished. The purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the [Thirteenth] amendment. CONG. GLOBE, 39th Cong., 1st Sess. 474 (1866) (remarks of Sen. Trumbull); see also Donald H. Zeigler, A Reassessment of the Younger Doctrine in Light of the Legislative History of Reconstruction, 1983 DUKE L.J. 987, 992-95 (noting that the Black Codes set the stage for Congressional action).
172. See, e.g., Remarks of Senator Trumbull introducing the bill: Since the abolition of slavery, the Legislatures which have assembled in the insurrectionary States have passed laws relating to the freedmen, and in nearly all the States they have discriminated against them. They deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished. The purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the [Thirteenth] amendment. CONG. GLOBE, 39th Cong., 1st Sess. 474 (1866) (remarks of Sen. Trumbull); see also Donald H. Zeigler, A Reassessment of the Younger Doctrine in Light of the Legislative History of Reconstruction, 1983 DUKE L.J. 987, 992-95 (noting that the Black Codes set the stage for Congressional action).
173. The Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (1866). This provision of the 1866 Act overruled Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857), which had held that descendants of those brought to the United States as slaves were not citizens and had "no rights which the white man was bound to respect."
174. Id. § 2.
175. See id.; see also, CONG. GLOBE, 39th Cong., 1st Sess. 319 (1866).
176. See ch. 31 § 2, 14 Stat. 27.
177. CONG. GLOBE,. 39th Cong., 1st Sess. 474 (1866) (remarks of Sen. Trumbull).
178. Congress presented the 14th Amendment for ratification in the fall of 1866. White southerners, however, refused to ratify: with the exception of Tennessee, every southern state between the last months of 1866 and the first months of 1867 rejected the Fourteenth Amendment. See generally James E. Bond, The Original Understanding of the 14th Amendment. 23 AKRON L. REV. 18 (1985). In March 1867, Congress retaliated against the South's defiant refusal to accept the 14th Amendment by imposing military Reconstruction. The South was divided into five military districts and new criteria were promulgated for restoration, including, of course, ratification of the 14th Amendment. In addition, Congress required constitutional conventions be held in every southern state to draft new constitutions that would be approved by voters and Congress; black males over the age of 21 be added to voter rolls and certain classes of white voters removed; and that elections for state offices occur only after the new constitutions had been approved and adopted. See Reconstruction Act of Mar. 2, 1867, ch. 152, 14 Stat. 428 (1867); Reconstruction Act of Mar. 23, 1867, ch. 6, 15 Stat. 2 (1867); see generally FONER, supra note 141, at 276. By July 28, 1868, two years after the commencement of military Reconstruction, all newly "reconstructed" southern governments had ratified the 14th Amendment. The 15th Amendment, which guaranteed that the right to vote would not be withheld on the basis of "race, color or previous condition of servitude," was ratified in March, 1870. Id.
179. See U.S. Const. Amend. XIV, § 5 ("Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.").
180. The first Enforcement Act of May 31, 1870 (16 Stat. L. 140) (1870), "a criminal code upon the subject of elections," forbade state
181. As Michael Gerhardt noted; [The Civil War Amendments] could not end the increasing violence occurring primarily in the South against the newly freed slaves and their supporters. This violence was perpetrated both by individuals and by organized groups such as the Ku Klux Klan, which included members that were state and local officials. State officers, including state judges, contributed to the violence by participating in it themselves or by not punishing the perpetrators when given the opportunity. Michael J. Gerhardt, The Monell Legacy: Balancing Federalism Concerns and Municipal Accountability Under Section 1983, 62 S. CAL. L. REV. 539, 547 (1989); see also Gene R. Nichol, Jr., Federalism, State Courts, and Section 1983, 73 VA. L. REV. 959, 975 (1987) (observing that local courts were "unable or unwilling to check the evil").
182. As Michael Gerhardt noted; [The Civil War Amendments] could not end the increasing violence occurring primarily in the South against the newly freed slaves and their supporters. This violence was perpetrated both by individuals and by organized groups such as the Ku Klux Klan, which included members that were state and local officials. State officers, including state judges, contributed to the violence by participating in it themselves or by not punishing the perpetrators when given the opportunity. Michael J. Gerhardt, The Monell Legacy: Balancing Federalism Concerns and Municipal Accountability Under Section 1983, 62 S. CAL. L. REV. 539, 547 (1989); see also Gene R. Nichol, Jr., Federalism, State Courts, and Section 1983, 73 VA. L. REV. 959, 975 (1987) (observing that local courts were "unable or unwilling to check the evil").
183. Established by Congress in March 1865, the original purpose of the Freedmen's Bureau was to distribute clothing, food, and fuel to destitute freedmen and to oversee "all subjects" relating to their condition in the South. The Bureau was intended as a temporary expedient, with a one year life span and no budget of its own. Given the chaotic conditions in the postwar South, Bureau agents "spent most of their time coping with day-to-day crises, and did so under adverse circumstances and with resources unequal to the task." FONER, supra note 141, at 69, 143; see also GEORGE R. BENTLEY, A HISTORY OF THE FREEDMEN'S BUREAU 110 (1974).
184. Established in 1866 by former members of the Confederate Army, the Ku Klux Klan became a terrifying source of organized violence in the postbellum South. Often acting with the support of local governments, the Klan focused its violence primarily on preventing blacks from gaining political or economic equality, and secondarily on whites whose sympathies were with the North. The Klan was undoubtedly responsible for numerous outrages against the freedmen and white Republicans. See CONG. GLOBE, 42nd Cong., 1st Sess., app. at 277 (1871) (speech of Rep. Porter); see generally STANLEY F. HORN, INVISIBLE EMPIRE: THE STORY OF THE KU KLUX KLAN 1866-1871 (1973).
185. Established in 1866 by former members of the Confederate Army, the Ku Klux Klan became a terrifying source of organized violence in the postbellum South. Often acting with the support of local governments, the Klan focused its violence primarily on preventing blacks from gaining political or economic equality, and secondarily on whites whose sympathies were with the North. The Klan was undoubtedly responsible for numerous outrages against the freedmen and white Republicans. See CONG. GLOBE, 42nd Cong., 1st Sess., app. at 277 (1871) (speech of Rep. Porter); see generally STANLEY F. HORN, INVISIBLE EMPIRE: THE STORY OF THE KU KLUX KLAN 1866-1871 (1973).
186. A Bureau agent in Tennessee reported that between April 1865 and October 1866, thirty-three freedmen had been murdered by whites. Letter from J.R. Lewis to Commissioner Howard (Oct. 3, 1866), quoted in John A. Carpenter, Atrocities in the Reconstruction Period, in LYNCHING, RACIAL VIOLENCE, AND Law 36, 48 (Paul Finkelman ed., 1992). Some Freedmen's Bureau reports also indicated the purported reason for a particular assault on a freedman: "killed because he did not take off his hat to Murphy," or "shot him as he was passing in the street to 'see him kick.'" Letter from J.B. Kiddoo to Commissioner Howard (Oct. 25, 1866), quoted in Carpenter, supra at 239. While most freedmen lived in constant fear, blacks holding public office faced particular threat of violence. At least one tenth of the black members of the 1867-68 constitutional conventions became victims of violence during Reconstruction, including seven actually murdered. Richard L. Hume, Negro Delegates to the State Constitutional Conventions of 1867-69, in SOUTHERN BLACK LEADERS (Howard N. Rabinowitz, ed., 1982). White Republicans were also persecuted by illicit groups. Klansmen murdered three "scalawag" members of the Georgia legislature and drove ten others from their homes in 1868, assassinated a prominent Republican leader in 1869, and organized nighttime gangs to sit watch outside the homes of Republicans, threatening their lives if they did not desist in their political course. OTTO H. OLSEN, CARPETBAGGER'S CRUSADE: THE LIFE OF ALBION WINEGAR TOURGEE 160-64 (1965). See CONG. GLOBE, 39th Cong., 1st Sess. 1838 (1866): The poor freedmen, who a few months ago were leaping and laughing with the joy of newfound liberty, invoking the blessings of Heaven upon the Government that had everywhere subject to indignity, insult, outrage and murder. During the past four months, in Alabama alone, fourteen hundred cases of assault upon freedmen have been brought before the Freedmen's Bureau . . . [T]he murders go unpunished. Id., app. at 140 (statement of Sen. Wilson).
187. A Bureau agent in Tennessee reported that between April 1865 and October 1866, thirty-three freedmen had been murdered by whites. Letter from J.R. Lewis to Commissioner Howard (Oct. 3, 1866), quoted in John A. Carpenter, Atrocities in the Reconstruction Period, in LYNCHING, RACIAL VIOLENCE, AND Law 36, 48 (Paul Finkelman ed., 1992). Some Freedmen's Bureau reports also indicated the purported reason for a particular assault on a freedman: "killed because he did not take off his hat to Murphy," or "shot him as he was passing in the street to 'see him kick.'" Letter from J.B. Kiddoo to Commissioner Howard (Oct. 25, 1866), quoted in Carpenter, supra at 239. While most freedmen lived in constant fear, blacks holding public office faced particular threat of violence. At least one tenth of the black members of the 1867-68 constitutional conventions became victims of violence during Reconstruction, including seven actually murdered. Richard L. Hume, Negro Delegates to the State Constitutional Conventions of 1867-69, in SOUTHERN BLACK LEADERS (Howard N. Rabinowitz, ed., 1982). White Republicans were also persecuted by illicit groups. Klansmen murdered three "scalawag" members of the Georgia legislature and drove ten others from their homes in 1868, assassinated a prominent Republican leader in 1869, and organized nighttime gangs to sit watch outside the homes of Republicans, threatening their lives if they did not desist in their political course. OTTO H. OLSEN, CARPETBAGGER'S CRUSADE: THE LIFE OF ALBION WINEGAR TOURGEE 160-64 (1965). See CONG. GLOBE, 39th Cong., 1st Sess. 1838 (1866): The poor freedmen, who a few months ago were leaping and laughing with the joy of newfound liberty, invoking the blessings of Heaven upon the Government that had everywhere subject to indignity, insult, outrage and murder. During the past four months, in Alabama alone, fourteen hundred cases of assault upon freedmen have been brought before the Freedmen's Bureau . . . [T]he murders go unpunished. Id., app. at 140 (statement of Sen. Wilson).
188. A Bureau agent in Tennessee reported that between April 1865 and October 1866, thirty-three freedmen had been murdered by whites. Letter from J.R. Lewis to Commissioner Howard (Oct. 3, 1866), quoted in John A. Carpenter, Atrocities in the Reconstruction Period, in LYNCHING, RACIAL VIOLENCE, AND Law 36, 48 (Paul Finkelman ed., 1992). Some Freedmen's Bureau reports also indicated the purported reason for a particular assault on a freedman: "killed because he did not take off his hat to Murphy," or "shot him as he was passing in the street to 'see him kick.'" Letter from J.B. Kiddoo to Commissioner Howard (Oct. 25, 1866), quoted in Carpenter, supra at 239. While most freedmen lived in constant fear, blacks holding public office faced particular threat of violence. At least one tenth of the black members of the 1867-68 constitutional conventions became victims of violence during Reconstruction, including seven actually murdered. Richard L. Hume, Negro Delegates to the State Constitutional Conventions of 1867-69, in SOUTHERN BLACK LEADERS (Howard N. Rabinowitz, ed., 1982). White Republicans were also persecuted by illicit groups. Klansmen murdered three "scalawag" members of the Georgia legislature and drove ten others from their homes in 1868, assassinated a prominent Republican leader in 1869, and organized nighttime gangs to sit watch outside the homes of Republicans, threatening their lives if they did not desist in their political course. OTTO H. OLSEN, CARPETBAGGER'S CRUSADE: THE LIFE OF ALBION WINEGAR TOURGEE 160-64 (1965). See CONG. GLOBE, 39th Cong., 1st Sess. 1838 (1866): The poor freedmen, who a few months ago were leaping and laughing with the joy of newfound liberty, invoking the blessings of Heaven upon the Government that had everywhere subject to indignity, insult, outrage and murder. During the past four months, in Alabama alone, fourteen hundred cases of assault upon freedmen have been brought before the Freedmen's Bureau . . . [T]he murders go unpunished. Id., app. at 140 (statement of Sen. Wilson).
189. A Bureau agent in Tennessee reported that between April 1865 and October 1866, thirty-three freedmen had been murdered by whites. Letter from J.R. Lewis to Commissioner Howard (Oct. 3, 1866), quoted in John A. Carpenter, Atrocities in the Reconstruction Period, in LYNCHING, RACIAL VIOLENCE, AND Law 36, 48 (Paul Finkelman ed., 1992). Some Freedmen's Bureau reports also indicated the purported reason for a particular assault on a freedman: "killed because he did not take off his hat to Murphy," or "shot him as he was passing in the street to 'see him kick.'" Letter from J.B. Kiddoo to Commissioner Howard (Oct. 25, 1866), quoted in Carpenter, supra at 239. While most freedmen lived in constant fear, blacks holding public office faced particular threat of violence. At least one tenth of the black members of the 1867-68 constitutional conventions became victims of violence during Reconstruction, including seven actually murdered. Richard L. Hume, Negro Delegates to the State Constitutional Conventions of 1867-69, in SOUTHERN BLACK LEADERS (Howard N. Rabinowitz, ed., 1982). White Republicans were also persecuted by illicit groups. Klansmen murdered three "scalawag" members of the Georgia legislature and drove ten others from their homes in 1868, assassinated a prominent Republican leader in 1869, and organized nighttime gangs to sit watch outside the homes of Republicans, threatening their lives if they did not desist in their political course. OTTO H. OLSEN, CARPETBAGGER'S CRUSADE: THE LIFE OF ALBION WINEGAR TOURGEE 160-64 (1965). See CONG. GLOBE, 39th Cong., 1st Sess. 1838 (1866): The poor freedmen, who a few months ago were leaping and laughing with the joy of newfound liberty, invoking the blessings of Heaven upon the Government that had everywhere subject to indignity, insult, outrage and murder. During the past four months, in Alabama alone, fourteen hundred cases of assault upon freedmen have been brought before the Freedmen's Bureau . . . [T]he murders go unpunished. Id., app. at 140 (statement of Sen. Wilson).
190. Letter from Davis Tillson, Assistant Commissioner, Georgia, to Commissioner Howard (Feb. 24, 1866), quoted in Carpenter, supra note 160, at 238. Tillson reported that he "called upon the Sheriff of Henry County and asked him to arrest certain parties charged with committing outrages on freed people." Id. The sheriff replied that "it would be unpopular to punish white men for anything done to a negro - it might be unsafe - that he was not going to obey the orders of any damned Yankee - and that the rebellion was not over in Henry County." Id. See Robert J. Kaczorowski, To Begin in the Nation Anew: Congress, Citizenship and Civil Rights After the Civil War in THE AFRICAN-AMERICAN EXPERIENCE: EMANCIPATION AND RECONSTRUCTION, Vol. 3, 383 (Paul Finkleman, ed.). Kaczorowski notes that local officials in the South sanctioned and legitimized the defiant behavior of individuals, and the racial and political customs of communities dominated by white[] . . . state officers commonly failed or refused to protect the personal safety and property of blacks . . . [and when] Southern blacks and politically unpopular whites were the victims of crimes, they could not get sheriffs to arrest, courts to try, or juries to convict the perpetrators. Id.
191. Letter from Major General Joseph B. Kiddoo, Assistant Commissioner, Texas, to Commissioner Howard (June 26, 1866), quoted in Carpenter, supra note 160, at 239. Kiddoo reported that he was unable to obtain justice for the freedmen from the civil courts; trial of these cases, he said, was "worse than a farce." Id. The Assistant Commissioner of South Carolina, Robert K. Scott, reported that "even under the most favorable circumstances that can be anticipated under the present system of laws, the freed people will fail to receive from the civil authorities that protection to which they are entitled both by right and by law, and without which they cannot but gradually revert back to a condition differing little from their former slavery - save in name." Letter from R.K. Scott to Commissioner Howard (Dec. 18, 1866), quoted in Carpenter, supra note 160, at 240.
192. Letter from General Jefferson C. Davis to Commissioner Howard (Nov. 27, 1866), quoted in Carpenter, supra note 160, at 242.
193. See Report of General Joseph A. Mower to Commissioner Howard (March 1867), quoted in Carpenter, supra note 160, at 242. Mower's 30-page report contained detailed information concerning the individual murders and the refusal of local authorities to investigate and prosecute offenders. According to Mower, the civil authorities "took no notice of the affair." Id.
194. See id.
195. Report of Lieutenant J.C. De Gress (June 24, 1867), quoted in Carpenter, supra note 160, at 242.
196. See FONER, supra note 141, at 438.
197. When southern sheriffs did arrest suspects, "witnesses proved reluctant to testify, Klansmen perjured themselves to provide one another with alibis, and, as one Florida Republican leader observed, 'if any one of these [Klans]men is on the jury . . . you cannot convict.'" FONER, supra note 141, at 434. As one commentator has noted, "[t]he Klan acted with the support of local governments in some areas, and in spite of the government in other[s]." Mead, supra note 23, at 16, n.86; see also Developments in the Law, supra note 14, at 1153 ("Southern resistance to Reconstruction continued and by early 1871 there was overwhelming evidence that through tacit complicity and deliberate inactivity, state and local officials were fostering vigilante terrorism against politically active blacks and Union sympathizers.").
198. See CONG. GLOBE, 42nd Cong., 1st Sess. 244 (1871). Of the hundreds of outrages committed upon loyal people through the agency of this Ku Klux organization, not one has been punished . . . . [The laws] only fail in efficiency when a man of known Union sentiments - whether black or white - invokes their aid. Then Justice closes the door of her temples; frightful murders, whippings, and robberies may occur where these are the subjects, and the arm of Justice is paralyzed. Id. (Speech of Sen. Pratt).
199. See WILLIAM S. MCFEELY, GRANT: A BIOGRAPHY 260 (1981) (noting that by 1867, Freedman's Bureau Commissioner Oliver Otis Howard "had dozens of carefully documented reports from his agents of murders and mutilations of freedmen all across the South").
200. Message of March 23, 1871, CONG. GLOBE, 42nd Cong., 1st Sess. 244 (1871); see also Developments in the Law, supra note 14, at 1153 & n.106 ("[In response to a]trocities committed by the Ku Klux Klan[,] . . . President Grant requested emergency legislation in a special message, stating that a virtual state of anarchy existed in the South and affirming that the states were powerless to control the widespread violence.").
201. Message of March 23, 1871, CONG. GLOBE, 42nd Cong., 1st Sess. 244 (1871); see also Developments in the Law, supra note 14, at 1153 & n.106 ("[In response to a]trocities committed by the Ku Klux Klan[,] . . . President Grant requested emergency legislation in a special message, stating that a virtual state of anarchy existed in the South and affirming that the states were powerless to control the widespread violence.").
202. S. REP. No. 42-1 (1871) (reporting investigations into Klan violence in the South against blacks and white Republicans).
203. See EUGENE HOLLON, FRONTIER JUSTICE: ANOTHER LOOK 221-22 (1974) (stating that the statistics submitted to Congress on the lawlessness and violence in the South "were generally accepted as valid by both radical and conservative members").
204. See 17 Stat. 13 (1871) (current version at 42 U.S.C. § 1983); GONG. GLOBE, 42nd Cong., 1st Sess., 820 (1871); see also 1 STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS 591-93 (Bernard Schwartz ed., 1970) (summarizing the social and political circumstances in which the 1871 Act was enacted).
205. See 17 Stat. 13 (1871) (current version at 42 U.S.C. § 1983); GONG. GLOBE, 42nd Cong., 1st Sess., 820 (1871); see also 1 STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS 591-93 (Bernard Schwartz ed., 1970) (summarizing the social and political circumstances in which the 1871 Act was enacted).
206. See, e.g., Developments in the Law, supra note 14, at 1155 (noting that Section 1 of the 1871 Act "was the least controversial portion of the bill"); Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 HARV. L. REV. 1486, 1488 n. 14 (1969) ("Section 1983's predecessor - a comparatively uncontested part of a highly controversial bill - received little attention and no amendment.").
207. See, e.g., Developments in the Law, supra note 14, at 1155 (noting that Section 1 of the 1871 Act "was the least controversial portion of the bill"); Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 HARV. L. REV. 1486, 1488 n. 14 (1969) ("Section 1983's predecessor - a comparatively uncontested part of a highly controversial bill - received little attention and no amendment.").
208. See, e.g., CONG. GLOBE, 42nd Cong., 1st Sess. 428 (1871) ("[T]he States made no successful effort to bring the guilty to punishment or afford protection or redress . . . .") (remarks of Rep. Beatty); CONG. GLOBE, 42nd Cong., 1st Sess., app. at 71 (1871) (statement of Rep. Shellabarger).
209. See, e.g., CONG. GLOBE, 42nd Cong., 1st Sess. 428 (1871) ("[T]he States made no successful effort to bring the guilty to punishment or afford protection or redress . . . .") (remarks of Rep. Beatty); CONG. GLOBE, 42nd Cong., 1st Sess., app. at 71 (1871) (statement of Rep. Shellabarger).
210. CONG. GLOBE, 39th Cong., 1st Sess., app. at 183 (1866) (statement of Sen. Davis).
211. See CONG. GLOBE, 42nd Cong., 1st Sess., app. at 217 (1871) (statement of Sen. Thurman).
212. See CONG. GLOBE, 39th Cong., 1st Sess. 1758 (1866) (statement of Sen. Trumbull).
213. CONG. GLOBE, 42nd Cong., 1st Sess., app. at 153. (1871) (statement of Rep. Garfield).
214. It is clear from the debates on the Enforcement Act of 1871 that Congress knew that law enforcement officials participated in lynchings and mob violence. See generally CONG. GLOBE, 42nd Cong., 1st Sess. (1871). One member described an incident in his district: [S]uddenly, without provocation or warning, a policeman, or at least a man in the uniform of a policeman, drew a pistol and deliberately put a bullet through the body of a quiet and inoffensive colored man standing near him. Immediately, an indiscriminate and rapid firing commenced. . . . For at least five minutes a steady fire was poured into the retreating crowd. . . . . [T]he panic was increased by the discovery that the police force was in full sympathy with the murderers, and were themselves emptying their revolvers into the terrified and struggling mass of human beings who were frantically striving to get beyond their range. Id. at app. 184 (statement of Rep. James Platt).
215. Id. at 375 (statement of Rep. Lowe).
216. Id.
217. The Supreme Court observed in Adickes that "Congress included customs and usages within the definition of law in [§ 1983] because of the persistent and widespread discriminatory practices of state officials." Adickes v. Kress & Co., 398 U.S. 144, 167 (1970).
218. As the Court held in Monroe, § 1983 was enacted, in large part, to provide a federal remedy where state law, "though adequate in theory," was unavailable in practice. See Monroe v. Pape, 365 U.S. 167, 174 (1961). See also Schnapper, supra note 16, at 229 ("The unconstitutional customs with which supporters of § 1983 were concerned were not . . . exercises of final or delegated authorities but the widespread and persistent practices of ordinary sheriffs, judges and prosecutors.").
219. For example, local law enforcement officials condoned or even participated in lynchings and other violence against blacks in the late eighteenth and early nineteenth centuries with little fear of civil rights suits, or any other form of punishment for their unconstitutional acts. See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1909-1950 8 (1980) (stating that "public officials . . . either cooperated with the mob or sought refuge in silence and inaction"); U.S. PRESIDENT'S COMMITTEE ON CIVIL RIGHTS, TO SECURE THESE RIGHTS: THE REPORT OF THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS 23 (1947) ("Punishment of lynchers is not accepted as the responsibility of state or local governments. . . . Frequently, state officials participate in the crime, actively or passively."); JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 24 (1993) (noting that police participated in at least half of the lynchings in the 1930s); WE CHARGE GENOCIDE 10-12, 58, 59, 81, 82, 120, 225 (William L. Patterson ed., 1951) (describing numerous cases of police participation in, and even instigation of, mob attacks on African Americans up to the 1950s); Howard N. Rabinowitz, The Conflict between Blacks and the Police in the Urban South, 1865-1900, HISTORIAN, Nov. 1976, at 62, reprinted in RACE AND CRIMINAL JUSTICE 318, 324-26 (Paul Finkelman ed., 1992) (recounting instances of police brutality against African Americans in post-Civil War urban communities that were rarely punished). Many scholars analogize police brutality and misconduct today to the lynchings of the past. See Abraham L. Davis, The Rodney King Incident: Isolated Occurrence or a Continuation of a Brutal Past?, 10 HARV. BLACKLETTER J. 67 (1993). For example, Judge Higginbotham described the Rodney King beating as "a haunting sequel to the widespread lynching of blacks in the south." A. Leon Higginbotham, Jr. & Aderson B. Francois, Looking for God and Racism in all the Wrong Places, 70 DENY. U. L. REV. 191, 192 (1993).
220. For example, local law enforcement officials condoned or even participated in lynchings and other violence against blacks in the late eighteenth and early nineteenth centuries with little fear of civil rights suits, or any other form of punishment for their unconstitutional acts. See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1909-1950 8 (1980) (stating that "public officials . . . either cooperated with the mob or sought refuge in silence and inaction"); U.S. PRESIDENT'S COMMITTEE ON CIVIL RIGHTS, TO SECURE THESE RIGHTS: THE REPORT OF THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS 23 (1947) ("Punishment of lynchers is not accepted as the responsibility of state or local governments. . . . Frequently, state officials participate in the crime, actively or passively."); JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 24 (1993) (noting that police participated in at least half of the lynchings in the 1930s); WE CHARGE GENOCIDE 10-12, 58, 59, 81, 82, 120, 225 (William L. Patterson ed., 1951) (describing numerous cases of police participation in, and even instigation of, mob attacks on African Americans up to the 1950s); Howard N. Rabinowitz, The Conflict between Blacks and the Police in the Urban South, 1865-1900, HISTORIAN, Nov. 1976, at 62, reprinted in RACE AND CRIMINAL JUSTICE 318, 324-26 (Paul Finkelman ed., 1992) (recounting instances of police brutality against African Americans in post-Civil War urban communities that were rarely punished). Many scholars analogize police brutality and misconduct today to the lynchings of the past. See Abraham L. Davis, The Rodney King Incident: Isolated Occurrence or a Continuation of a Brutal Past?, 10 HARV. BLACKLETTER J. 67 (1993). For example, Judge Higginbotham described the Rodney King beating as "a haunting sequel to the widespread lynching of blacks in the south." A. Leon Higginbotham, Jr. & Aderson B. Francois, Looking for God and Racism in all the Wrong Places, 70 DENY. U. L. REV. 191, 192 (1993).
221. For example, local law enforcement officials condoned or even participated in lynchings and other violence against blacks in the late eighteenth and early nineteenth centuries with little fear of civil rights suits, or any other form of punishment for their unconstitutional acts. See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1909-1950 8 (1980) (stating that "public officials . . . either cooperated with the mob or sought refuge in silence and inaction"); U.S. PRESIDENT'S COMMITTEE ON CIVIL RIGHTS, TO SECURE THESE RIGHTS: THE REPORT OF THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS 23 (1947) ("Punishment of lynchers is not accepted as the responsibility of state or local governments. . . . Frequently, state officials participate in the crime, actively or passively."); JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 24 (1993) (noting that police participated in at least half of the lynchings in the 1930s); WE CHARGE GENOCIDE 10-12, 58, 59, 81, 82, 120, 225 (William L. Patterson ed., 1951) (describing numerous cases of police participation in, and even instigation of, mob attacks on African Americans up to the 1950s); Howard N. Rabinowitz, The Conflict between Blacks and the Police in the Urban South, 1865-1900, HISTORIAN, Nov. 1976, at 62, reprinted in RACE AND CRIMINAL JUSTICE 318, 324-26 (Paul Finkelman ed., 1992) (recounting instances of police brutality against African Americans in post-Civil War urban communities that were rarely punished). Many scholars analogize police brutality and misconduct today to the lynchings of the past. See Abraham L. Davis, The Rodney King Incident: Isolated Occurrence or a Continuation of a Brutal Past?, 10 HARV. BLACKLETTER J. 67 (1993). For example, Judge Higginbotham described the Rodney King beating as "a haunting sequel to the widespread lynching of blacks in the south." A. Leon Higginbotham, Jr. & Aderson B. Francois, Looking for God and Racism in all the Wrong Places, 70 DENY. U. L. REV. 191, 192 (1993).
222. For example, local law enforcement officials condoned or even participated in lynchings and other violence against blacks in the late eighteenth and early nineteenth centuries with little fear of civil rights suits, or any other form of punishment for their unconstitutional acts. See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1909-1950 8 (1980) (stating that "public officials . . . either cooperated with the mob or sought refuge in silence and inaction"); U.S. PRESIDENT'S COMMITTEE ON CIVIL RIGHTS, TO SECURE THESE RIGHTS: THE REPORT OF THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS 23 (1947) ("Punishment of lynchers is not accepted as the responsibility of state or local governments. . . . Frequently, state officials participate in the crime, actively or passively."); JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 24 (1993) (noting that police participated in at least half of the lynchings in the 1930s); WE CHARGE GENOCIDE 10-12, 58, 59, 81, 82, 120, 225 (William L. Patterson ed., 1951) (describing numerous cases of police participation in, and even instigation of, mob attacks on African Americans up to the 1950s); Howard N. Rabinowitz, The Conflict between Blacks and the Police in the Urban South, 1865-1900, HISTORIAN, Nov. 1976, at 62, reprinted in RACE AND CRIMINAL JUSTICE 318, 324-26 (Paul Finkelman ed., 1992) (recounting instances of police brutality against African Americans in post-Civil War urban communities that were rarely punished). Many scholars analogize police brutality and misconduct today to the lynchings of the past. See Abraham L. Davis, The Rodney King Incident: Isolated Occurrence or a Continuation of a Brutal Past?, 10 HARV. BLACKLETTER J. 67 (1993). For example, Judge Higginbotham described the Rodney King beating as "a haunting sequel to the widespread lynching of blacks in the south." A. Leon Higginbotham, Jr. & Aderson B. Francois, Looking for God and Racism in all the Wrong Places, 70 DENY. U. L. REV. 191, 192 (1993).
223. For example, local law enforcement officials condoned or even participated in lynchings and other violence against blacks in the late eighteenth and early nineteenth centuries with little fear of civil rights suits, or any other form of punishment for their unconstitutional acts. See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1909-1950 8 (1980) (stating that "public officials . . . either cooperated with the mob or sought refuge in silence and inaction"); U.S. PRESIDENT'S COMMITTEE ON CIVIL RIGHTS, TO SECURE THESE RIGHTS: THE REPORT OF THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS 23 (1947) ("Punishment of lynchers is not accepted as the responsibility of state or local governments. . . . Frequently, state officials participate in the crime, actively or passively."); JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 24 (1993) (noting that police participated in at least half of the lynchings in the 1930s); WE CHARGE GENOCIDE 10-12, 58, 59, 81, 82, 120, 225 (William L. Patterson ed., 1951) (describing numerous cases of police participation in, and even instigation of, mob attacks on African Americans up to the 1950s); Howard N. Rabinowitz, The Conflict between Blacks and the Police in the Urban South, 1865-1900, HISTORIAN, Nov. 1976, at 62, reprinted in RACE AND CRIMINAL JUSTICE 318, 324-26 (Paul Finkelman ed., 1992) (recounting instances of police brutality against African Americans in post-Civil War urban communities that were rarely punished). Many scholars analogize police brutality and misconduct today to the lynchings of the past. See Abraham L. Davis, The Rodney King Incident: Isolated Occurrence or a Continuation of a Brutal Past?, 10 HARV. BLACKLETTER J. 67 (1993). For example, Judge Higginbotham described the Rodney King beating as "a haunting sequel to the widespread lynching of blacks in the south." A. Leon Higginbotham, Jr. & Aderson B. Francois, Looking for God and Racism in all the Wrong Places, 70 DENY. U. L. REV. 191, 192 (1993).
224. For example, local law enforcement officials condoned or even participated in lynchings and other violence against blacks in the late eighteenth and early nineteenth centuries with little fear of civil rights suits, or any other form of punishment for their unconstitutional acts. See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1909-1950 8 (1980) (stating that "public officials . . . either cooperated with the mob or sought refuge in silence and inaction"); U.S. PRESIDENT'S COMMITTEE ON CIVIL RIGHTS, TO SECURE THESE RIGHTS: THE REPORT OF THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS 23 (1947) ("Punishment of lynchers is not accepted as the responsibility of state or local governments. . . . Frequently, state officials participate in the crime, actively or passively."); JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 24 (1993) (noting that police participated in at least half of the lynchings in the 1930s); WE CHARGE GENOCIDE 10-12, 58, 59, 81, 82, 120, 225 (William L. Patterson ed., 1951) (describing numerous cases of police participation in, and even instigation of, mob attacks on African Americans up to the 1950s); Howard N. Rabinowitz, The Conflict between Blacks and the Police in the Urban South, 1865-1900, HISTORIAN, Nov. 1976, at 62, reprinted in RACE AND CRIMINAL JUSTICE 318, 324-26 (Paul Finkelman ed., 1992) (recounting instances of police brutality against African Americans in post-Civil War urban communities that were rarely punished). Many scholars analogize police brutality and misconduct today to the lynchings of the past. See Abraham L. Davis, The Rodney King Incident: Isolated Occurrence or a Continuation of a Brutal Past?, 10 HARV. BLACKLETTER J. 67 (1993). For example, Judge Higginbotham described the Rodney King beating as "a haunting sequel to the widespread lynching of blacks in the south." A. Leon Higginbotham, Jr. & Aderson B. Francois, Looking for God and Racism in all the Wrong Places, 70 DENY. U. L. REV. 191, 192 (1993).
225. For example, local law enforcement officials condoned or even participated in lynchings and other violence against blacks in the late eighteenth and early nineteenth centuries with little fear of civil rights suits, or any other form of punishment for their unconstitutional acts. See ROBERT L. ZANGRANDO, THE NAACP CRUSADE AGAINST LYNCHING, 1909-1950 8 (1980) (stating that "public officials . . . either cooperated with the mob or sought refuge in silence and inaction"); U.S. PRESIDENT'S COMMITTEE ON CIVIL RIGHTS, TO SECURE THESE RIGHTS: THE REPORT OF THE PRESIDENT'S COMMITTEE ON CIVIL RIGHTS 23 (1947) ("Punishment of lynchers is not accepted as the responsibility of state or local governments. . . . Frequently, state officials participate in the crime, actively or passively."); JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 24 (1993) (noting that police participated in at least half of the lynchings in the 1930s); WE CHARGE GENOCIDE 10-12, 58, 59, 81, 82, 120, 225 (William L. Patterson ed., 1951) (describing numerous cases of police participation in, and even instigation of, mob attacks on African Americans up to the 1950s); Howard N. Rabinowitz, The Conflict between Blacks and the Police in the Urban South, 1865-1900, HISTORIAN, Nov. 1976, at 62, reprinted in RACE AND CRIMINAL JUSTICE 318, 324-26 (Paul Finkelman ed., 1992) (recounting instances of police brutality against African Americans in post-Civil War urban communities that were rarely punished). Many scholars analogize police brutality and misconduct today to the lynchings of the past. See Abraham L. Davis, The Rodney King Incident: Isolated Occurrence or a Continuation of a Brutal Past?, 10 HARV. BLACKLETTER J. 67 (1993). For example, Judge Higginbotham described the Rodney King beating as "a haunting sequel to the widespread lynching of blacks in the south." A. Leon Higginbotham, Jr. & Aderson B. Francois, Looking for God and Racism in all the Wrong Places, 70 DENY. U. L. REV. 191, 192 (1993).
226. Adickes, 398 U.S. at 167. The Court has also explained: It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice . . . can establish what is state law . . . . Deeply embedded traditional ways of carrying out state policy . . . are often tougher and truer law than the dead words of the written text. Id. at 168 (quoting Nashville, Chattanooga & St. Louis Ry. v. Browning, 310 U.S. 362, 369 (1940) (noting the petitioner claimed that "all the organs of the state are conforming to a practice, systematic, unbroken for more than forty years")). It should be noted, however, both Adickes and Browning were decided prior to Monell's extension of § 1983 liability to municipal entities.
227. For example, the Ninth Circuit aptly described the purpose of municipal liability for unconstitutional customs as follows: The existence of custom as a basis for liability under § 1983 thus serves the critical role of insuring that local government entities are held responsible for widespread abuses or practices that cannot be affirmatively attributed to the decisions or ratification of an official government policymaker but are so pervasive as to have the force of law. Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989). The court observed that the "county maintained a 'custom' of unconstitutional jail conditions in the form of a shortage of beds." Id. at 1449.
228. Garza v. City of Omaha, 814 F.2d 553, 556 (8th Cir. 1987). Plaintiff introduced evidence that his supervisors engaged in the practice of distributing paychecks to non-minorities at 9:30 a.m., but not paying minorities until day's end because they believed minorities would leave after receiving their checks. See id. at 555. Plaintiff also showed that defendants hired a non-minorities "right off the street" for full-time positions that plaintiff, and other minorities, had been promised. Id. Finally, plaintiff proved that his supervisor ordered him to sign a false statement that a black employee had beaten and robbed a supervisor; apparently, plaintiff's false statement was necessary to "get rid of the nigger." Id. Plaintiff's refusal to obey this command led to his suspension and eventual dismissal.
229. Id.; see also Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1189 (7th Cir. 1986) (finding the City liable where sexual harassment of female employees was an "on-going and accepted practice at the East Chicago Fire Department," which constituted a custom for purposes of municipal liability under § 1983).
230. 856 F.2d 985 (7th Cir. 1988). George Jones was wrongfully arrested, jailed, and charged with murder and other crimes. After these charges were dropped, Jones sued the City of Chicago and several Chicago police officers and a police lab technician under 42 U.S.C. § 1983 for false arrest, false imprisonment, intentional infliction of emotional distress, and malicious prosecution, as well as conspiracy to commit these wrongs. He alleged that the defendants' conduct had denied him due process of law under the Fourteenth Amendment and violated his rights under the common law of Illinois. A jury awarded him $801,000 in compensatory and punitive damages. Id. at 988.
231. Id. at 995 (citing Brady v. Maryland, 373 U.S. 83 (1963) (requiring prosecution to turn over any exculpatory evidence to the defense)). According to Judge Posner, the maintenance of police street files reveals "a frightening abuse of power by members of the Chicago police force and unlawful conduct by the City itself." Id. at 988.
232. Id. at 995.
233. Mathias v. Bingley, 906 F.2d 1047 (5th Cir. 1990).
234. Id. at 1054.
235. Garza v. City of Omaha, 814 F.2d 553, 556 (8th Cir. 1987).
236. Walker v. City of New York, 974 F.2d at 293, 299-300 (2d Cir. 1992); see also supra notes 107-09, and accompanying text.
237. See, e.g., Liebe v. Norton, 157 F.3d 574, 579 (8th. Cir. 1998) (stating that a county's policy "cannot be both an effort to prevent suicides and, at the same time, deliberately indifferent to suicide"). See also supra text accompanying notes 116-18 (providing detailed analysis of Liebe v. Norton).
238. See, e.g., City of Canton v. Harris, 489 U.S. 378, 389 (1989) (stating that, although respondent has identified a deficiency in a police training program, she "must still prove that the deficiency in training actually caused the police officers' indifference to her medical needs"); Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 412 (1997) ("The connection between the background of the [officer inadequately screened] and the specific constitutional violation alleged must be strong."). See also supra notes 120-25 and accompanying text (providing analysis of Brown under "failure to screen applicants" model).
239. See Jones v. City of Chicago, 856 F.2d 985, 989 (7th. Cir. 1988).
240. Id.
241. See, e.g., Joel Berger, See-No-Evil Officers Should Pay, N.Y. TIMES, Aug. 24, 1997, at A13 (noting documentation of New York Police Department's failure to "adequately punish officers who blatantly lied to protect other officers charged with brutality); Jeff Gammage, Code of Silence: A Barrier to Truth in Investigations of Police, PHILA. INQUIRER, May 5, 1996, at E1 (citing examples where police officers refused to report the criminal behavior of other officers); Jose Martinez, 'Blue Wall' Stymies Cop-Beating Probe; 'Blue Wall' of Silence Thwarts Probe Into Cox Beating, BOS. HERALD, Jan. 28, 2000, at A1 (citing U.S. Attorney's explanation that a "sustained code of Silence" among Boston police thwarted investigation into police beating of a black fellow officer and outlasted the statute of limitations for bringing federal charges); Joseph D. McNamara, Has the Drug War Created an Officer Liars' Club?, L.A. TIMES, Feb. 11, 1996, at M1 (noting recent perjury scandals in police departments in Los Angeles, Boston, New Orleans, San Francisco, Denver, New York, and other large U.S. cities); Joyce Purnick, The Blue Line Between Rat and Right, N.Y. TIMES, Oct. 10, 1996, at B1 (reporting that an officer "put herself in harms way" by "breaching the 'blue wall of silence'"); Selwyn Raab, The Unwritten Code that Stops Police from Speaking, N.Y. TIMES, June 16, 1985, at B4 (citing testimony of Commissioner Ward acknowledging the code of silence as "an old tradition" in all police forces).
242. See, e.g., Joel Berger, See-No-Evil Officers Should Pay, N.Y. TIMES, Aug. 24, 1997, at A13 (noting documentation of New York Police Department's failure to "adequately punish officers who blatantly lied to protect other officers charged with brutality); Jeff Gammage, Code of Silence: A Barrier to Truth in Investigations of Police, PHILA. INQUIRER, May 5, 1996, at E1 (citing examples where police officers refused to report the criminal behavior of other officers); Jose Martinez, 'Blue Wall' Stymies Cop-Beating Probe; 'Blue Wall' of Silence Thwarts Probe Into Cox Beating, BOS. HERALD, Jan. 28, 2000, at A1 (citing U.S. Attorney's explanation that a "sustained code of Silence" among Boston police thwarted investigation into police beating of a black fellow officer and outlasted the statute of limitations for bringing federal charges); Joseph D. McNamara, Has the Drug War Created an Officer Liars' Club?, L.A. TIMES, Feb. 11, 1996, at M1 (noting recent perjury scandals in police departments in Los Angeles, Boston, New Orleans, San Francisco, Denver, New York, and other large U.S. cities); Joyce Purnick, The Blue Line Between Rat and Right, N.Y. TIMES, Oct. 10, 1996, at B1 (reporting that an officer "put herself in harms way" by "breaching the 'blue wall of silence'"); Selwyn Raab, The Unwritten Code that Stops Police from Speaking, N.Y. TIMES, June 16, 1985, at B4 (citing testimony of Commissioner Ward acknowledging the code of silence as "an old tradition" in all police forces).
243. See, e.g., Joel Berger, See-No-Evil Officers Should Pay, N.Y. TIMES, Aug. 24, 1997, at A13 (noting documentation of New York Police Department's failure to "adequately punish officers who blatantly lied to protect other officers charged with brutality); Jeff Gammage, Code of Silence: A Barrier to Truth in Investigations of Police, PHILA. INQUIRER, May 5, 1996, at E1 (citing examples where police officers refused to report the criminal behavior of other officers); Jose Martinez, 'Blue Wall' Stymies Cop-Beating Probe; 'Blue Wall' of Silence Thwarts Probe Into Cox Beating, BOS. HERALD, Jan. 28, 2000, at A1 (citing U.S. Attorney's explanation that a "sustained code of Silence" among Boston police thwarted investigation into police beating of a black fellow officer and outlasted the statute of limitations for bringing federal charges); Joseph D. McNamara, Has the Drug War Created an Officer Liars' Club?, L.A. TIMES, Feb. 11, 1996, at M1 (noting recent perjury scandals in police departments in Los Angeles, Boston, New Orleans, San Francisco, Denver, New York, and other large U.S. cities); Joyce Purnick, The Blue Line Between Rat and Right, N.Y. TIMES, Oct. 10, 1996, at B1 (reporting that an officer "put herself in harms way" by "breaching the 'blue wall of silence'"); Selwyn Raab, The Unwritten Code that Stops Police from Speaking, N.Y. TIMES, June 16, 1985, at B4 (citing testimony of Commissioner Ward acknowledging the code of silence as "an old tradition" in all police forces).
244. See, e.g., Joel Berger, See-No-Evil Officers Should Pay, N.Y. TIMES, Aug. 24, 1997, at A13 (noting documentation of New York Police Department's failure to "adequately punish officers who blatantly lied to protect other officers charged with brutality); Jeff Gammage, Code of Silence: A Barrier to Truth in Investigations of Police, PHILA. INQUIRER, May 5, 1996, at E1 (citing examples where police officers refused to report the criminal behavior of other officers); Jose Martinez, 'Blue Wall' Stymies Cop-Beating Probe; 'Blue Wall' of Silence Thwarts Probe Into Cox Beating, BOS. HERALD, Jan. 28, 2000, at A1 (citing U.S. Attorney's explanation that a "sustained code of Silence" among Boston police thwarted investigation into police beating of a black fellow officer and outlasted the statute of limitations for bringing federal charges); Joseph D. McNamara, Has the Drug War Created an Officer Liars' Club?, L.A. TIMES, Feb. 11, 1996, at M1 (noting recent perjury scandals in police departments in Los Angeles, Boston, New Orleans, San Francisco, Denver, New York, and other large U.S. cities); Joyce Purnick, The Blue Line Between Rat and Right, N.Y. TIMES, Oct. 10, 1996, at B1 (reporting that an officer "put herself in harms way" by "breaching the 'blue wall of silence'"); Selwyn Raab, The Unwritten Code that Stops Police from Speaking, N.Y. TIMES, June 16, 1985, at B4 (citing testimony of Commissioner Ward acknowledging the code of silence as "an old tradition" in all police forces).
245. See, e.g., Joel Berger, See-No-Evil Officers Should Pay, N.Y. TIMES, Aug. 24, 1997, at A13 (noting documentation of New York Police Department's failure to "adequately punish officers who blatantly lied to protect other officers charged with brutality); Jeff Gammage, Code of Silence: A Barrier to Truth in Investigations of Police, PHILA. INQUIRER, May 5, 1996, at E1 (citing examples where police officers refused to report the criminal behavior of other officers); Jose Martinez, 'Blue Wall' Stymies Cop-Beating Probe; 'Blue Wall' of Silence Thwarts Probe Into Cox Beating, BOS. HERALD, Jan. 28, 2000, at A1 (citing U.S. Attorney's explanation that a "sustained code of Silence" among Boston police thwarted investigation into police beating of a black fellow officer and outlasted the statute of limitations for bringing federal charges); Joseph D. McNamara, Has the Drug War Created an Officer Liars' Club?, L.A. TIMES, Feb. 11, 1996, at M1 (noting recent perjury scandals in police departments in Los Angeles, Boston, New Orleans, San Francisco, Denver, New York, and other large U.S. cities); Joyce Purnick, The Blue Line Between Rat and Right, N.Y. TIMES, Oct. 10, 1996, at B1 (reporting that an officer "put herself in harms way" by "breaching the 'blue wall of silence'"); Selwyn Raab, The Unwritten Code that Stops Police from Speaking, N.Y. TIMES, June 16, 1985, at B4 (citing testimony of Commissioner Ward acknowledging the code of silence as "an old tradition" in all police forces).
246. See, e.g., Joel Berger, See-No-Evil Officers Should Pay, N.Y. TIMES, Aug. 24, 1997, at A13 (noting documentation of New York Police Department's failure to "adequately punish officers who blatantly lied to protect other officers charged with brutality); Jeff Gammage, Code of Silence: A Barrier to Truth in Investigations of Police, PHILA. INQUIRER, May 5, 1996, at E1 (citing examples where police officers refused to report the criminal behavior of other officers); Jose Martinez, 'Blue Wall' Stymies Cop-Beating Probe; 'Blue Wall' of Silence Thwarts Probe Into Cox Beating, BOS. HERALD, Jan. 28, 2000, at A1 (citing U.S. Attorney's explanation that a "sustained code of Silence" among Boston police thwarted investigation into police beating of a black fellow officer and outlasted the statute of limitations for bringing federal charges); Joseph D. McNamara, Has the Drug War Created an Officer Liars' Club?, L.A. TIMES, Feb. 11, 1996, at M1 (noting recent perjury scandals in police departments in Los Angeles, Boston, New Orleans, San Francisco, Denver, New York, and other large U.S. cities); Joyce Purnick, The Blue Line Between Rat and Right, N.Y. TIMES, Oct. 10, 1996, at B1 (reporting that an officer "put herself in harms way" by "breaching the 'blue wall of silence'"); Selwyn Raab, The Unwritten Code that Stops Police from Speaking, N.Y. TIMES, June 16, 1985, at B4 (citing testimony of Commissioner Ward acknowledging the code of silence as "an old tradition" in all police forces).
247. See Carol Streiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 835 (1994) ("Despite widespread and frequent complaints about police corruption . . . [t]he lack of effective regulation and concomitant corruption have persisted throughout the twentieth century."); see also THOMAS J. DEAKIN, POLICE PROFESSIONALISM: THE RENAISSANCE OF AMERICAN LAW ENFORCEMENT 200-215(1988).
248. See Carol Streiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 835 (1994) ("Despite widespread and frequent complaints about police corruption . . . [t]he lack of effective regulation and concomitant corruption have persisted throughout the twentieth century."); see also THOMAS J. DEAKIN, POLICE PROFESSIONALISM: THE RENAISSANCE OF AMERICAN LAW ENFORCEMENT 200-215(1988).
249. See generally SEYMOUR MANDELBAUM, BOSS TWEED'S NEW YORK (1965) (detailing rampant corruption throughout New York City political structure). The New York City Police Department has been rocked by a major corruption scandal approximately every 20 years, as evidenced by the numerous commissions convened to investigate the department. See, e.g., REPORT OF THE SENATE COMMITTEE APPOINTED TO INVESTIGATE THE POLICE DEPARTMENT OF THE CITY OF NEW YORK 30 (Jan. 18, 1895) [hereinafter LEXOW COMMISSION REPORT] (Senator Clarence Lexow, Chair) (reporting that, between January 1, 1891, to May 1, 1894, twelve officers were convicted of criminal neglect of duty; twelve of oppression; one each of indecent exposure, burglary and attempt at rape; fifty-six of assault in the third degree; and forty-five of assault in the second degree); REPORT OF THE SPECIAL COMMITTEE OF THE BOARD OF ALDERMAN OF THE CITY OF NEW YORK APPOINTED AUGUST 5, 1912 TO INVESTIGATE THE POLICE DEPARTMENT (June 10, 1913) 6 [hereinafter CURRAN COMMISSION REPORT] (Henry H. Curran, Chair) (reporting that "practically all of the proprietors of gambling and disorderly houses in the City have been compelled to make regular monthly payments to certain members of the Police Department"); FINAL REPORT OF SAMUEL SEABURY, REFEREE, IN THE MATTER OF THE INVESTIGATION OF THE MAGISTRATE'S COURTS IN THE FIRST JUDICIAL DEPARTMENT AND THE MAGISTRATES THEREOF. AND OF ATTORNEYS AT LAW PRACTICING IN SAID COURTS 80-96 (Mar. 28, 1932) [hereinafter SEABURY REPORT] (Samuel Seabury, Referee) (detailing police "frame-ups" and providing several examples); EDWARD S. SILVER, REPORT OF SPECIAL INVESTIGATION BY THE DISTRICT ATTORNEY OF KINGS COUNTY AND THE DECEMBER 1949 GRAND JURY, DECEMBER 1949 TO APRIL 1954 9-13 (January 8, 1955) (citing several examples of corruption, including police involvement in substantial gambling operations at Brooklyn College); REPORT OF THE COMMISSION TO INVESTIGATE ALLEGATIONS OF POLICE CORRUPTION AND THE CITY'S ANTI-CORRUPTION PROCEDURES (Dec. 26, 1972) 83-84 [hereinafter KNAPP COMM'N REPORT] (Whitman Knapp, Chair) (describing practice of phony arrests to satisfy quotas); see also William Murphy & Leonard Levitt, It's Blue Deja Vu: New Scandal Reads Like Old Police Stories, N. Y. NEWSDAY, June 21, 1994 at 7 (discussing the similarities and differences between corruption scandals revealed by the various commissions from 1894 to the present).
250. See generally SEYMOUR MANDELBAUM, BOSS TWEED'S NEW YORK (1965) (detailing rampant corruption throughout New York City political structure). The New York City Police Department has been rocked by a major corruption scandal approximately every 20 years, as evidenced by the numerous commissions convened to investigate the department. See, e.g., REPORT OF THE SENATE COMMITTEE APPOINTED TO INVESTIGATE THE POLICE DEPARTMENT OF THE CITY OF NEW YORK 30 (Jan. 18, 1895) [hereinafter LEXOW COMMISSION REPORT] (Senator Clarence Lexow, Chair) (reporting that, between January 1, 1891, to May 1, 1894, twelve officers were convicted of criminal neglect of duty; twelve of oppression; one each of indecent exposure, burglary and attempt at rape; fifty-six of assault in the third degree; and forty-five of assault in the second degree); REPORT OF THE SPECIAL COMMITTEE OF THE BOARD OF ALDERMAN OF THE CITY OF NEW YORK APPOINTED AUGUST 5, 1912 TO INVESTIGATE THE POLICE DEPARTMENT (June 10, 1913) 6 [hereinafter CURRAN COMMISSION REPORT] (Henry H. Curran, Chair) (reporting that "practically all of the proprietors of gambling and disorderly houses in the City have been compelled to make regular monthly payments to certain members of the Police Department"); FINAL REPORT OF SAMUEL SEABURY, REFEREE, IN THE MATTER OF THE INVESTIGATION OF THE MAGISTRATE'S COURTS IN THE FIRST JUDICIAL DEPARTMENT AND THE MAGISTRATES THEREOF. AND OF ATTORNEYS AT LAW PRACTICING IN SAID COURTS 80-96 (Mar. 28, 1932) [hereinafter SEABURY REPORT] (Samuel Seabury, Referee) (detailing police "frame-ups" and providing several examples); EDWARD S. SILVER, REPORT OF SPECIAL INVESTIGATION BY THE DISTRICT ATTORNEY OF KINGS COUNTY AND THE DECEMBER 1949 GRAND JURY, DECEMBER 1949 TO APRIL 1954 9-13 (January 8, 1955) (citing several examples of corruption, including police involvement in substantial gambling operations at Brooklyn College); REPORT OF THE COMMISSION TO INVESTIGATE ALLEGATIONS OF POLICE CORRUPTION AND THE CITY'S ANTI-CORRUPTION PROCEDURES (Dec. 26, 1972) 83-84 [hereinafter KNAPP COMM'N REPORT] (Whitman Knapp, Chair) (describing practice of phony arrests to satisfy quotas); see also William Murphy & Leonard Levitt, It's Blue Deja Vu: New Scandal Reads Like Old Police Stories, N. Y. NEWSDAY, June 21, 1994 at 7 (discussing the similarities and differences between corruption scandals revealed by the various commissions from 1894 to the present).
251. See generally SEYMOUR MANDELBAUM, BOSS TWEED'S NEW YORK (1965) (detailing rampant corruption throughout New York City political structure). The New York City Police Department has been rocked by a major corruption scandal approximately every 20 years, as evidenced by the numerous commissions convened to investigate the department. See, e.g., REPORT OF THE SENATE COMMITTEE APPOINTED TO INVESTIGATE THE POLICE DEPARTMENT OF THE CITY OF NEW YORK 30 (Jan. 18, 1895) [hereinafter LEXOW COMMISSION REPORT] (Senator Clarence Lexow, Chair) (reporting that, between January 1, 1891, to May 1, 1894, twelve officers were convicted of criminal neglect of duty; twelve of oppression; one each of indecent exposure, burglary and attempt at rape; fifty-six of assault in the third degree; and forty-five of assault in the second degree); REPORT OF THE SPECIAL COMMITTEE OF THE BOARD OF ALDERMAN OF THE CITY OF NEW YORK APPOINTED AUGUST 5, 1912 TO INVESTIGATE THE POLICE DEPARTMENT (June 10, 1913) 6 [hereinafter CURRAN COMMISSION REPORT] (Henry H. Curran, Chair) (reporting that "practically all of the proprietors of gambling and disorderly houses in the City have been compelled to make regular monthly payments to certain members of the Police Department"); FINAL REPORT OF SAMUEL SEABURY, REFEREE, IN THE MATTER OF THE INVESTIGATION OF THE MAGISTRATE'S COURTS IN THE FIRST JUDICIAL DEPARTMENT AND THE MAGISTRATES THEREOF. AND OF ATTORNEYS AT LAW PRACTICING IN SAID COURTS 80-96 (Mar. 28, 1932) [hereinafter SEABURY REPORT] (Samuel Seabury, Referee) (detailing police "frame-ups" and providing several examples); EDWARD S. SILVER, REPORT OF SPECIAL INVESTIGATION BY THE DISTRICT ATTORNEY OF KINGS COUNTY AND THE DECEMBER 1949 GRAND JURY, DECEMBER 1949 TO APRIL 1954 9-13 (January 8, 1955) (citing several examples of corruption, including police involvement in substantial gambling operations at Brooklyn College); REPORT OF THE COMMISSION TO INVESTIGATE ALLEGATIONS OF POLICE CORRUPTION AND THE CITY'S ANTI-CORRUPTION PROCEDURES (Dec. 26, 1972) 83-84 [hereinafter KNAPP COMM'N REPORT] (Whitman Knapp, Chair) (describing practice of phony arrests to satisfy quotas); see also William Murphy & Leonard Levitt, It's Blue Deja Vu: New Scandal Reads Like Old Police Stories, N. Y. NEWSDAY, June 21, 1994 at 7 (discussing the similarities and differences between corruption scandals revealed by the various commissions from 1894 to the present).
252. See generally SEYMOUR MANDELBAUM, BOSS TWEED'S NEW YORK (1965) (detailing rampant corruption throughout New York City political structure). The New York City Police Department has been rocked by a major corruption scandal approximately every 20 years, as evidenced by the numerous commissions convened to investigate the department. See, e.g., REPORT OF THE SENATE COMMITTEE APPOINTED TO INVESTIGATE THE POLICE DEPARTMENT OF THE CITY OF NEW YORK 30 (Jan.
253. See generally SEYMOUR MANDELBAUM, BOSS TWEED'S NEW YORK (1965) (detailing rampant corruption throughout New York City political structure). The New York City Police Department has been rocked by a major corruption scandal approximately every 20 years, as evidenced by the numerous commissions convened to investigate the department. See, e.g., REPORT OF THE SENATE COMMITTEE APPOINTED TO INVESTIGATE THE POLICE DEPARTMENT OF THE CITY OF NEW YORK 30 (Jan. 18, 1895) [hereinafter LEXOW COMMISSION REPORT] (Senator Clarence Lexow, Chair) (reporting that, between January 1, 1891, to May 1, 1894, twelve officers were convicted of criminal neglect of duty; twelve of oppression; one each of indecent exposure, burglary and attempt at rape; fifty-six of assault in the third degree; and forty-five of assault in the second degree); REPORT OF THE SPECIAL COMMITTEE OF THE BOARD OF ALDERMAN OF THE CITY OF NEW YORK APPOINTED AUGUST 5, 1912 TO INVESTIGATE THE POLICE DEPARTMENT (June 10, 1913) 6 [hereinafter CURRAN COMMISSION REPORT] (Henry H. Curran, Chair) (reporting that "practically all of the proprietors of gambling and disorderly houses in the City have been compelled to make regular monthly payments to certain members of the Police Department"); FINAL REPORT OF SAMUEL SEABURY, REFEREE, IN THE MATTER OF THE INVESTIGATION OF THE MAGISTRATE'S COURTS IN THE FIRST JUDICIAL DEPARTMENT AND THE MAGISTRATES THEREOF. AND OF ATTORNEYS AT LAW PRACTICING IN SAID COURTS 80-96 (Mar. 28, 1932) [hereinafter SEABURY REPORT] (Samuel Seabury, Referee) (detailing police "frame-ups" and providing several examples); EDWARD S. SILVER, REPORT OF SPECIAL INVESTIGATION BY THE DISTRICT ATTORNEY OF KINGS COUNTY AND THE DECEMBER 1949 GRAND JURY, DECEMBER 1949 TO APRIL 1954 9-13 (January 8, 1955) (citing several examples of corruption, including police involvement in substantial gambling operations at Brooklyn College); REPORT OF THE COMMISSION TO INVESTIGATE ALLEGATIONS OF POLICE CORRUPTION AND THE CITY'S ANTI-CORRUPTION PROCEDURES (Dec. 26, 1972) 83-84 [hereinafter KNAPP COMM'N REPORT] (Whitman Knapp, Chair) (describing practice of phony arrests to satisfy quotas); see also William Murphy & Leonard Levitt, It's Blue Deja Vu: New Scandal Reads Like Old Police Stories, N. Y. NEWSDAY, June 21, 1994 at 7 (discussing the similarities and differences between corruption scandals revealed by the various commissions from 1894 to the present).
254. See generally SEYMOUR MANDELBAUM, BOSS TWEED'S NEW YORK (1965) (detailing rampant corruption throughout New York City political structure). The New York City Police Department has been rocked by a major corruption scandal approximately every 20 years, as evidenced by the numerous commissions convened to investigate the department. See, e.g., REPORT OF THE SENATE COMMITTEE APPOINTED TO INVESTIGATE THE POLICE DEPARTMENT OF THE CITY OF NEW YORK 30 (Jan. 18, 1895) [hereinafter LEXOW COMMISSION REPORT] (Senator Clarence Lexow, Chair) (reporting that, between January 1, 1891, to May 1, 1894, twelve officers were convicted of criminal neglect of duty; twelve of oppression; one each of indecent exposure, burglary and attempt at rape; fifty-six of assault in the third degree; and forty-five of assault in the second degree); REPORT OF THE SPECIAL COMMITTEE OF THE BOARD OF ALDERMAN OF THE CITY OF NEW YORK APPOINTED AUGUST 5, 1912 TO INVESTIGATE THE POLICE DEPARTMENT (June 10, 1913) 6 [hereinafter CURRAN COMMISSION REPORT] (Henry H. Curran, Chair) (reporting that "practically all of the proprietors of gambling and disorderly houses in the City have been compelled to make regular monthly payments to certain members of the Police Department"); FINAL REPORT OF SAMUEL SEABURY, REFEREE, IN THE MATTER OF THE INVESTIGATION OF THE MAGISTRATE'S COURTS IN THE FIRST JUDICIAL DEPARTMENT AND THE MAGISTRATES THEREOF. AND OF ATTORNEYS AT LAW PRACTICING IN SAID COURTS 80-96 (Mar. 28, 1932) [hereinafter SEABURY REPORT] (Samuel Seabury, Referee) (detailing police "frame-ups" and providing several examples); EDWARD S. SILVER, REPORT OF SPECIAL INVESTIGATION BY THE DISTRICT ATTORNEY OF KINGS COUNTY AND THE DECEMBER 1949 GRAND JURY, DECEMBER 1949 TO APRIL 1954 9-13 (January 8, 1955) (citing several examples of corruption, including police involvement in substantial gambling operations at Brooklyn College); REPORT OF THE COMMISSION TO INVESTIGATE ALLEGATIONS OF POLICE CORRUPTION AND THE CITY'S ANTI-CORRUPTION PROCEDURES (Dec. 26, 1972) 83-84 [hereinafter KNAPP COMM'N REPORT] (Whitman Knapp, Chair) (describing practice of phony arrests to satisfy quotas); see also William Murphy & Leonard Levitt, It's Blue Deja Vu: New Scandal Reads Like Old Police Stories, N. Y. NEWSDAY, June 21, 1994 at 7 (discussing the similarities and differences between corruption scandals revealed by the various commissions from 1894 to the present).
255. See generally SEYMOUR MANDELBAUM, BOSS TWEED'S NEW YORK (1965) (detailing rampant corruption throughout New York City political structure). The New York City Police Department has been rocked by a major corruption scandal approximately every 20 years, as evidenced by the numerous commissions convened to investigate the department. See, e.g., REPORT OF THE SENATE COMMITTEE APPOINTED TO INVESTIGATE THE POLICE DEPARTMENT OF THE CITY OF NEW YORK 30 (Jan. 18, 1895) [hereinafter LEXOW COMMISSION REPORT] (Senator Clarence Lexow, Chair) (reporting that, between January 1, 1891, to May 1, 1894, twelve officers were convicted of criminal neglect of duty; twelve of oppression; one each of indecent exposure, burglary and attempt at rape; fifty-six of assault in the third degree; and forty-five of assault in the second degree); REPORT OF THE SPECIAL COMMITTEE OF THE BOARD OF ALDERMAN OF THE CITY OF NEW YORK APPOINTED AUGUST 5, 1912 TO INVESTIGATE THE POLICE DEPARTMENT (June 10, 1913) 6 [hereinafter CURRAN COMMISSION REPORT] (Henry H. Curran, Chair) (reporting that "practically all of the proprietors of gambling and disorderly houses in the City have been compelled to make regular monthly payments to certain members of the Police Department"); FINAL REPORT OF SAMUEL SEABURY, REFEREE, IN THE MATTER OF THE INVESTIGATION OF THE MAGISTRATE'S COURTS IN THE FIRST JUDICIAL DEPARTMENT AND THE MAGISTRATES THEREOF. AND OF ATTORNEYS AT LAW PRACTICING IN SAID COURTS 80-96 (Mar. 28, 1932) [hereinafter SEABURY REPORT] (Samuel Seabury, Referee) (detailing police "frame-ups" and providing several examples); EDWARD S. SILVER, REPORT OF SPECIAL INVESTIGATION BY THE DISTRICT ATTORNEY OF KINGS COUNTY AND THE DECEMBER 1949 GRAND JURY, DECEMBER 1949 TO APRIL 1954 9-13 (January 8, 1955) (citing several examples of corruption, including police involvement in substantial gambling operations at Brooklyn College); REPORT OF THE COMMISSION TO INVESTIGATE ALLEGATIONS OF POLICE CORRUPTION AND THE CITY'S ANTI-CORRUPTION PROCEDURES (Dec. 26, 1972) 83-84 [hereinafter KNAPP COMM'N REPORT] (Whitman Knapp, Chair) (describing practice of phony arrests to satisfy quotas); see also William Murphy & Leonard Levitt, It's Blue Deja Vu: New Scandal Reads Like Old Police Stories, N. Y. NEWSDAY, June 21, 1994 at 7 (discussing the similarities and differences between corruption scandals revealed by the various commissions from 1894 to the present).
256. See, e.g., United States v. Philadelphia, 644 F.2d 187 (3d Cir. 1980) (dismissing case where entire Philadelphia police force indicted for suppressing evidence that inculpates police officers); see also Charles R. Babcock, Justice Accuses Philadelphia of Police Abuses, WASH. POST, Aug. 14, 1979, at A1 (noting that the "police department's practices of abuse were directed at all persons but were especially harmful to the rights of blacks and Hispanics"); In Chicago in the 70s, a six-year investigation of the police department led to over 60 prison sentences and uncovered a long-standing relationship between the police, organized crime and city government involving bribery, extortion, conspiracy, and perjury. See CONTROL IN THE POLICE ORGANIZATION 23-4 (Maurice Punch ed., 1983). And in New York City, a major inquiry conducted by the Knapp Commission in 1972 uncovered institutionalized corruption throughout the police department, mainly involving officers taking bribes to allow gamblers, prostitutes, and others to avoid arrest. In the Commission's words, "[t]he tradition of the policeman's code of silence is so strong . . . that it was futile to expect testimony [regarding corrupt activities] from any police officer." KNAPP COMM'N REPORT, supra note 204, at 47.
257. See, e.g., United States v. Philadelphia, 644 F.2d 187 (3d Cir. 1980) (dismissing case where entire Philadelphia police force indicted for suppressing evidence that inculpates police officers); see also Charles R. Babcock, Justice Accuses Philadelphia of Police Abuses, WASH. POST, Aug. 14, 1979, at A1 (noting that the "police department's practices of abuse were directed at all persons but were especially harmful to the rights of blacks and Hispanics"); In Chicago in the 70s, a six-year investigation of the police department led to over 60 prison sentences and uncovered a long-standing relationship between the police, organized crime and city government involving bribery, extortion, conspiracy, and perjury. See CONTROL IN THE POLICE ORGANIZATION 23-4 (Maurice Punch ed., 1983). And in New York City, a major inquiry conducted by the Knapp Commission in 1972 uncovered institutionalized corruption throughout the police department, mainly involving officers taking bribes to allow gamblers, prostitutes, and others to avoid arrest. In the Commission's words, "[t]he tradition of the policeman's code of silence is so strong . . . that it was futile to expect testimony [regarding corrupt activities] from any police officer." KNAPP COMM'N REPORT, supra note 204, at 47.
258. See, e.g., United States v. Philadelphia, 644 F.2d 187 (3d Cir. 1980) (dismissing case where entire Philadelphia police force indicted for suppressing evidence that inculpates police officers); see also Charles R. Babcock, Justice Accuses Philadelphia of Police Abuses, WASH. POST, Aug. 14, 1979, at A1 (noting that the "police department's practices of abuse were directed at all persons but were especially harmful to the rights of blacks and Hispanics"); In Chicago in the 70s, a six-year investigation of the police department led to over 60 prison sentences and uncovered a long-standing relationship between the police, organized crime and city government involving bribery, extortion, conspiracy, and perjury. See CONTROL IN THE POLICE ORGANIZATION 23-4 (Maurice Punch ed., 1983). And in New York City, a major inquiry conducted by the Knapp Commission in 1972 uncovered institutionalized corruption throughout the police department, mainly involving officers taking bribes to allow gamblers, prostitutes, and others to avoid arrest. In the Commission's words, "[t]he tradition of the policeman's code of silence is so strong . . . that it was futile to expect testimony [regarding corrupt activities] from any police officer." KNAPP COMM'N REPORT, supra note 204, at 47.
259. See generally Hon. Harold Baer, Jr. & Joseph P. Armao, The Mollen Commission Report: An Overview, 40 N.Y.L. SCH. L. REV. 73, 76 (1995) ("Gambling, prostitution and other vice rackets are no longer the springboard to a career of corruption in the Police Department as they were in times gone by. Corrupt cops. . .now actively engage in criminal activity.").
260. See id.
261. The Rodney King incident implicates the police code of silence because it was carried out with an attitude of impunity: the officers were apparently so certain that they would suffer no recrimination for this assault that they communicated their actions to other officers via official police radios, and even bragged to medical personnel caring for King that they had inflicted the injuries he sustained. Victim 's Account of Police Beating, L.A. TIMES, March 7, 1991, at A21. See Martin Berg, Now, Time for the Real Thing: Trial in Rodney King Beating Set to Start, L.A. DAILY J. (Feb. 3, 1992) (reporting that a police officer defendant in the Rodney King trial was charged as an accessory after the fact for concealing his conduct and that of other officers under his command).
262. The Rodney King incident implicates the police code of silence because it was carried out with an attitude of impunity: the officers were apparently so certain that they would suffer no recrimination for this assault that they communicated their actions to other officers via official police radios, and even bragged to medical personnel caring for King that they had inflicted the injuries he sustained. Victim 's Account of Police Beating, L.A. TIMES, March 7, 1991, at A21. See Martin Berg, Now, Time for the Real Thing: Trial in Rodney King Beating Set to Start, L.A. DAILY J. (Feb. 3, 1992) (reporting that a police officer defendant in the Rodney King trial was charged as an accessory after the fact for concealing his conduct and that of other officers under his command).
263. See Berger, supra note 202 (responding to outrage over "nest of perjury" in Louima incident, Mayor Giuliani ordered all officers to spend several hours in discussion groups); see also Dan Barry, Officers' Silence Still Thwarting Torture Inquiry, N.Y. TIMES, Sept. 5, 1997 at A1 (noting that of 100 officers granted limited immunity in Louima torture case, approximately 12 are expected to have knowledge of the incident, and only two have provided valuable information); Claude Lewis, Fallout From the Brooklyn Torture Case, THE RECORD, Sept. 9, 1997 at L13 (noting that officers fear that bystanders, remembering "blue wall of silence" encountered in Louima case, will refuse to offer assistance when routine arrests present unforeseen trouble); see also supra note 6, and accompanying text (providing additional details surrounding the torture of Abner Louima by New York City police officers).
264. See Berger, supra note 202 (responding to outrage over "nest of perjury" in Louima incident, Mayor Giuliani ordered all officers to spend several hours in discussion groups); see also Dan Barry, Officers' Silence Still Thwarting Torture Inquiry, N.Y. TIMES, Sept. 5, 1997 at A1 (noting that of 100 officers granted limited immunity in Louima torture case, approximately 12 are expected to have knowledge of the incident, and only two have provided valuable information); Claude Lewis, Fallout From the Brooklyn Torture Case, THE RECORD, Sept. 9, 1997 at L13 (noting that officers fear that bystanders, remembering "blue wall of silence" encountered in Louima case, will refuse to offer assistance when routine arrests present unforeseen trouble); see also supra note 6, and accompanying text (providing additional details surrounding the torture of Abner Louima by New York City police officers).
265. REPORT OF THE COMMISSION TO INVESTIGATE ALLEGATIONS OF POLICE CORRUPTION AND THE ANTI-CORRUPTION PROCEDURES OF THE POLICE DEPARTMENT 1 (July 7, 1994) [hereinafter MOLLEN COMMISSION REPORT] (Milton Mollen, Chair).
266. REPORT OF THE INDEPENDENT COMMISSION ON THE Los ANGELES POLICE DEPARTMENT 169 (1991) [hereinafter CHRISTOPHER COMMISSION REPORT].
267. See, e.g., WICKERSHAM REPORT, supra note 1; 1961 U.S. COMM'N ON CIVIL RIGHTS REPORT, supra note 2, at 6-12 (detailing two examples of police brutality where the state's power to punish criminal behavior "may be blocked . . . by the fact that the potential defendant is the person who must start up the machinery of the criminal law"; PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE (1967) [hereinafter PRESIDENT'S COMMISSION ON LAW ENFORCEMENT]; REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 162 (1968) [hereinafter 1968 KERNER COMMISSION REPORT] (arguing that one possible source of Negro hostility to police is the lack of effective complaint mechanisms evidenced by the fact "that policemen in some cities have little fear of punishment for using unnecessary force because they appear to have a degree of immunity from their departments); U.S. COMMISSION ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS? 50 (1981) [hereinafter 1981 U.S. COMMISSION ON CIVIL RIGHTS REPORT] (noting that citizens' complaints are valuable because the code of silence often prevents internal police command from learning about important problems); U.S. DEPARTMENT OF JUSTICE, POLICE INTEGRITY: PUBLIC SERVICE WITH HONOR (1997) [hereinafter POLICE INTEGRITY REPORT]; HUMAN RIGHTS WATCH REPORT, supra note 12, at 68-71 (stating that the Mollen Commission found the code of silence strongest in New York City's most dangerous neighborhoods, and that one officer, admitting to corrupt and brutal practices, never feared he would be turned in by another officer); POLICE BRUTALITY AND EXCESSIVE FORCE IN THE NEW YORK CITY POLICE DEPARTMENT 4 (Amnesty International 1996) [hereinafter AMNESTY INT'L REPORT] (citing Mollen Commission and finding that senior officers practice "a deliberate 'blindness' to corruption"); N.Y.C COMMISSION ON HUMAN RIGHTS, BREAKING THE US v. THEM BARRIER: A REPORT ON POLICE/COMMUNITY RELATIONS (1993) [hereinafter BREAKING US v. THEM BARRIER].
268. See, e.g., WICKERSHAM REPORT, supra note 1; 1961 U.S. COMM'N ON CIVIL RIGHTS REPORT, supra note 2, at 6-12 (detailing two examples of police brutality where the state's power to punish criminal behavior "may be blocked . . . by the fact that the potential defendant is the person who must start up the machinery of the criminal law"; PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE (1967) [hereinafter PRESIDENT'S COMMISSION ON LAW ENFORCEMENT]; REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 162 (1968) [hereinafter 1968 KERNER COMMISSION REPORT] (arguing that one possible source of Negro hostility to police is the lack of effective complaint mechanisms evidenced by the fact "that policemen in some cities have little fear of punishment for using unnecessary force because they appear to have a degree of immunity from their departments); U.S. COMMISSION ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS? 50 (1981) [hereinafter 1981 U.S. COMMISSION ON CIVIL RIGHTS REPORT] (noting that citizens' complaints are valuable because the code of silence often prevents internal police command from learning about important problems); U.S. DEPARTMENT OF JUSTICE, POLICE INTEGRITY: PUBLIC SERVICE WITH HONOR (1997) [hereinafter POLICE INTEGRITY REPORT]; HUMAN RIGHTS WATCH REPORT, supra note 12, at 68-71 (stating that the Mollen Commission found the code of silence strongest in New York City's most dangerous neighborhoods, and that one officer, admitting to corrupt and brutal practices, never feared he would be turned in by another officer); POLICE BRUTALITY AND EXCESSIVE FORCE IN THE NEW YORK CITY POLICE DEPARTMENT 4 (Amnesty International 1996) [hereinafter AMNESTY INT'L REPORT] (citing Mollen Commission and finding that senior officers practice "a deliberate 'blindness' to corruption"); N.Y.C COMMISSION ON HUMAN RIGHTS, BREAKING THE US v. THEM BARRIER: A REPORT ON POLICE/COMMUNITY RELATIONS (1993) [hereinafter BREAKING US v. THEM BARRIER].
269. See, e.g., WICKERSHAM REPORT, supra note 1; 1961 U.S. COMM'N ON CIVIL RIGHTS REPORT, supra note 2, at 6-12 (detailing two examples of police brutality where the state's power to punish criminal behavior "may be blocked . . . by the fact that the potential defendant is the person who must start up the machinery of the criminal law"; PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE (1967) [hereinafter PRESIDENT'S COMMISSION ON LAW ENFORCEMENT]; REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 162 (1968) [hereinafter 1968 KERNER COMMISSION REPORT] (arguing that one possible source of Negro hostility to police is the lack of effective complaint mechanisms evidenced by the fact "that policemen in some cities have little fear of punishment for using unnecessary force because they appear to have a degree of immunity from their departments); U.S. COMMISSION ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS? 50 (1981) [hereinafter 1981 U.S. COMMISSION ON CIVIL RIGHTS REPORT] (noting that citizens' complaints are valuable because the code of silence often prevents internal police command from learning about important problems); U.S. DEPARTMENT OF JUSTICE, POLICE INTEGRITY: PUBLIC SERVICE WITH HONOR (1997) [hereinafter POLICE INTEGRITY REPORT]; HUMAN RIGHTS WATCH REPORT, supra note 12, at 68-71 (stating that the Mollen Commission found the code of silence strongest in New York City's most dangerous neighborhoods, and that one officer, admitting to corrupt and brutal practices, never feared he would be turned in by another officer); POLICE BRUTALITY AND EXCESSIVE FORCE IN THE NEW YORK CITY POLICE DEPARTMENT 4 (Amnesty International 1996) [hereinafter AMNESTY INT'L REPORT] (citing Mollen Commission and finding that senior officers practice "a deliberate 'blindness' to corruption"); N.Y.C COMMISSION ON HUMAN RIGHTS, BREAKING THE US v. THEM BARRIER: A REPORT ON POLICE/COMMUNITY RELATIONS (1993) [hereinafter BREAKING US v. THEM BARRIER].
270. See, e.g., WICKERSHAM REPORT, supra note 1; 1961 U.S. COMM'N ON CIVIL RIGHTS REPORT, supra note 2, at 6-12 (detailing two examples of police brutality where the state's power to punish criminal behavior "may be blocked . . . by the fact that the potential defendant is the person who must start up the machinery of the criminal law"; PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE (1967) [hereinafter PRESIDENT'S COMMISSION ON LAW ENFORCEMENT]; REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 162 (1968) [hereinafter 1968 KERNER COMMISSION REPORT] (arguing that one possible source of Negro hostility to police is the lack of effective complaint mechanisms evidenced by the fact "that policemen in some cities have little fear of punishment for using unnecessary force because they appear to have a degree of immunity from their departments); U.S. COMMISSION ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS? 50 (1981) [hereinafter 1981 U.S. COMMISSION ON CIVIL RIGHTS REPORT] (noting that citizens' complaints are valuable because the code of silence often prevents internal police command from learning about important problems); U.S. DEPARTMENT OF JUSTICE, POLICE INTEGRITY: PUBLIC SERVICE WITH HONOR (1997) [hereinafter POLICE INTEGRITY REPORT]; HUMAN RIGHTS WATCH REPORT, supra note 12, at 68-71 (stating that the Mollen Commission found the code of silence strongest in New York City's most dangerous neighborhoods, and that one officer, admitting to corrupt and brutal practices, never feared he would be turned in by another officer); POLICE BRUTALITY AND EXCESSIVE FORCE IN THE NEW YORK CITY POLICE DEPARTMENT 4 (Amnesty International 1996) [hereinafter AMNESTY INT'L REPORT] (citing Mollen Commission and finding that senior officers practice "a deliberate 'blindness' to corruption"); N.Y.C COMMISSION ON HUMAN RIGHTS, BREAKING THE US v. THEM BARRIER: A REPORT ON POLICE/COMMUNITY RELATIONS (1993) [hereinafter BREAKING US v. THEM BARRIER].
271. See, e.g., WICKERSHAM REPORT, supra note 1; 1961 U.S. COMM'N ON CIVIL RIGHTS REPORT, supra note 2, at 6-12 (detailing two examples of police brutality where the state's power to punish criminal behavior "may be blocked . . . by the fact that the potential defendant is the person who must start up the machinery of the criminal law"; PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE (1967) [hereinafter PRESIDENT'S COMMISSION ON LAW ENFORCEMENT]; REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 162 (1968) [hereinafter 1968 KERNER COMMISSION REPORT] (arguing that one possible source of Negro hostility to police is the lack of effective complaint mechanisms evidenced by the fact "that policemen in some cities have little fear of punishment for using unnecessary force because they appear to have a degree of immunity from their departments); U.S. COMMISSION ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS? 50 (1981) [hereinafter 1981 U.S. COMMISSION ON CIVIL RIGHTS REPORT] (noting that citizens' complaints are valuable because the code of silence often prevents internal police command from learning about important problems); U.S. DEPARTMENT OF JUSTICE, POLICE INTEGRITY: PUBLIC SERVICE WITH HONOR (1997) [hereinafter POLICE INTEGRITY REPORT]; HUMAN RIGHTS WATCH REPORT, supra note 12, at 68-71 (stating that the Mollen Commission found the code of silence strongest in New York City's most dangerous neighborhoods, and that one officer, admitting to corrupt and brutal practices, never feared he would be turned in by another officer); POLICE BRUTALITY AND EXCESSIVE FORCE IN THE NEW YORK CITY POLICE DEPARTMENT 4 (Amnesty International 1996) [hereinafter AMNESTY INT'L REPORT] (citing Mollen Commission and finding that senior officers practice "a deliberate 'blindness' to corruption"); N.Y.C COMMISSION ON HUMAN RIGHTS, BREAKING THE US v. THEM BARRIER: A REPORT ON POLICE/COMMUNITY RELATIONS (1993) [hereinafter BREAKING US v. THEM BARRIER].
272. See, e.g., WICKERSHAM REPORT, supra note 1; 1961 U.S. COMM'N ON CIVIL RIGHTS REPORT, supra note 2, at 6-12 (detailing two examples of police brutality where the state's power to punish criminal behavior "may be blocked . . . by the fact that the potential defendant is the person who must start up the machinery of the criminal law"; PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE (1967) [hereinafter PRESIDENT'S COMMISSION ON LAW ENFORCEMENT]; REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 162 (1968) [hereinafter 1968 KERNER COMMISSION REPORT] (arguing that one possible source of Negro hostility to police is the lack of effective complaint mechanisms evidenced by the fact "that policemen in some cities have little fear of punishment for using unnecessary force because they appear to have a degree of immunity from their departments); U.S. COMMISSION ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS? 50 (1981) [hereinafter 1981 U.S. COMMISSION ON CIVIL RIGHTS REPORT] (noting that citizens' complaints are valuable because the code of silence often prevents internal police command from learning about important problems); U.S. DEPARTMENT OF JUSTICE, POLICE INTEGRITY: PUBLIC SERVICE WITH HONOR (1997) [hereinafter POLICE INTEGRITY REPORT]; HUMAN RIGHTS WATCH REPORT, supra note 12, at 68-71 (stating that the Mollen Commission found the code of silence strongest in New York City's most dangerous neighborhoods, and that one officer, admitting to corrupt and brutal practices, never feared he would be turned in by another officer); POLICE BRUTALITY AND EXCESSIVE FORCE IN THE NEW YORK CITY POLICE DEPARTMENT 4 (Amnesty International 1996) [hereinafter AMNESTY INT'L REPORT] (citing Mollen Commission and finding that senior officers practice "a deliberate 'blindness' to corruption"); N.Y.C COMMISSION ON HUMAN RIGHTS, BREAKING THE US v. THEM BARRIER: A REPORT ON POLICE/COMMUNITY RELATIONS (1993) [hereinafter BREAKING US v. THEM BARRIER].
273. See, e.g., WICKERSHAM REPORT, supra note 1; 1961 U.S. COMM'N ON CIVIL RIGHTS REPORT, supra note 2, at 6-12 (detailing two examples of police brutality where the state's power to punish criminal behavior "may be blocked . . . by the fact that the potential defendant is the person who must start up the machinery of the criminal law"; PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE (1967) [hereinafter PRESIDENT'S COMMISSION ON LAW ENFORCEMENT]; REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 162 (1968) [hereinafter 1968 KERNER COMMISSION REPORT] (arguing that one possible source of Negro hostility to police is the lack of effective complaint mechanisms evidenced by the fact "that policemen in some cities have little fear of punishment for using unnecessary force because they appear to have a degree of immunity from their departments); U.S. COMMISSION ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS? 50 (1981) [hereinafter 1981 U.S. COMMISSION ON CIVIL RIGHTS REPORT] (noting that citizens' complaints are valuable because the code of silence often prevents internal police command from learning about important problems); U.S. DEPARTMENT OF JUSTICE, POLICE INTEGRITY: PUBLIC SERVICE WITH HONOR (1997) [hereinafter POLICE INTEGRITY REPORT]; HUMAN RIGHTS WATCH REPORT, supra note 12, at 68-71 (stating that the Mollen Commission found the code of silence strongest in New York City's most dangerous neighborhoods, and that one officer, admitting to corrupt and brutal practices, never feared he would be turned in by another officer); POLICE BRUTALITY AND EXCESSIVE FORCE IN THE NEW YORK CITY POLICE DEPARTMENT 4 (Amnesty International 1996) [hereinafter AMNESTY INT'L REPORT] (citing Mollen Commission and finding that senior officers practice "a deliberate 'blindness' to corruption"); N.Y.C COMMISSION ON HUMAN RIGHTS, BREAKING THE US v. THEM BARRIER: A REPORT ON POLICE/COMMUNITY RELATIONS (1993) [hereinafter BREAKING US v. THEM BARRIER].
274. See, e.g., WICKERSHAM REPORT, supra note 1; 1961 U.S. COMM'N ON CIVIL RIGHTS REPORT, supra note 2, at 6-12 (detailing two examples of police brutality where the state's power to punish criminal behavior "may be blocked . . . by the fact that the potential defendant is the person who must start up the machinery of the criminal law"; PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE (1967) [hereinafter PRESIDENT'S COMMISSION ON LAW ENFORCEMENT]; REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 162 (1968) [hereinafter 1968 KERNER COMMISSION REPORT] (arguing that one possible source of Negro hostility to police is the lack of effective complaint mechanisms evidenced by the fact "that policemen in some cities have little fear of punishment for using unnecessary force because they appear to have a degree of immunity from their departments); U.S. COMMISSION ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS? 50 (1981) [hereinafter 1981 U.S. COMMISSION ON CIVIL RIGHTS REPORT] (noting that citizens' complaints are valuable because the code of silence often prevents internal police command from learning about important problems); U.S. DEPARTMENT OF JUSTICE, POLICE INTEGRITY: PUBLIC SERVICE WITH HONOR (1997) [hereinafter POLICE INTEGRITY REPORT]; HUMAN RIGHTS WATCH REPORT, supra note 12, at 68-71 (stating that the Mollen Commission found the code of silence strongest in New York City's most dangerous neighborhoods, and that one officer, admitting to corrupt and brutal practices, never feared he would be turned in by another officer); POLICE BRUTALITY AND EXCESSIVE FORCE IN THE NEW YORK CITY POLICE DEPARTMENT 4 (Amnesty International 1996) [hereinafter AMNESTY INT'L REPORT] (citing Mollen Commission and finding that senior officers practice "a deliberate 'blindness' to corruption"); N.Y.C COMMISSION ON HUMAN RIGHTS, BREAKING THE US v. THEM BARRIER: A REPORT ON POLICE/COMMUNITY RELATIONS (1993) [hereinafter BREAKING US v. THEM BARRIER].
275. See, e.g., WICKERSHAM REPORT, supra note 1; 1961 U.S. COMM'N ON CIVIL RIGHTS REPORT, supra note 2, at 6-12 (detailing two examples of police brutality where the state's power to punish criminal behavior "may be blocked . . . by the fact that the potential defendant is the person who must start up the machinery of the criminal law"; PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE (1967) [hereinafter PRESIDENT'S COMMISSION ON LAW ENFORCEMENT]; REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS 162 (1968) [hereinafter 1968 KERNER COMMISSION REPORT] (arguing that one possible source of Negro hostility to police is the lack of effective complaint mechanisms evidenced by the fact "that policemen in some cities have little fear of punishment for using unnecessary force because they appear to have a degree of immunity from their departments); U.S. COMMISSION ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS? 50 (1981) [hereinafter 1981 U.S. COMMISSION ON CIVIL RIGHTS REPORT] (noting that citizens' complaints are valuable because the code of silence often prevents internal police command from learning about important problems); U.S. DEPARTMENT OF JUSTICE, POLICE INTEGRITY: PUBLIC SERVICE WITH HONOR (1997) [hereinafter POLICE INTEGRITY REPORT]; HUMAN RIGHTS WATCH REPORT, supra note 12, at 68-71 (stating that the Mollen Commission found the code of silence strongest in New York City's most dangerous neighborhoods, and that one officer, admitting to corrupt and brutal practices, never feared he would be turned in by another officer); POLICE BRUTALITY AND EXCESSIVE FORCE IN THE NEW YORK CITY POLICE DEPARTMENT 4 (Amnesty International 1996) [hereinafter AMNESTY INT'L REPORT] (citing Mollen Commission and finding that senior officers practice "a deliberate 'blindness' to corruption"); N.Y.C COMMISSION ON HUMAN RIGHTS, BREAKING THE US v. THEM BARRIER: A REPORT ON POLICE/COMMUNITY RELATIONS (1993) [hereinafter BREAKING US v. THEM BARRIER].
276. See Brandon v. Allen, 516 F. Supp. 1355, 1356-58 (W.D. Tenn. 1981) (detailing the unprovoked attack by Officer Allen on Elizabeth Brandon and James Muse, resulting in a § 1983 suit filed against Alien, the Police Chief, and the city of Memphis), reversed, 719 F.2d 151 (6th Cir. 1983), rev'd sub nom. Brandon v. Holt, 469 U.S. 464 (1985); see also Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975) (providing analogous § 1983 claim where off-duty police officer shot and killed two men and paralyzed another while acting under color of state law). Allen was convicted and imprisoned for the incident involving Brandon and Muse. Brandon, 516 F. Supp. at 1358. See also generally Brandon v. Allen, 645 F. Supp. 1261, 1264 (W.D. Tenn. 1986) (awarding "compensatory damages to plaintiff Elizabeth Brandon in the amount of $10,000 and to plaintiff James Sherman Muse in the amount of $41,310.75, jointly and severally against the defendant John D. Holt, in his official capacity, to be paid by the City of Memphis, Tennessee, and defendant Robert J. Allen in his personal capacity"); see also infra notes 254-57 and accompanying text (discussing Brandon v. Allen and the code of silence as police department custom).
277. Brandon, 516 F. Supp. at 1358.
278. Id. (noting that Allen "was known to have bragged about killing a man in the course of duty," and he would "ceremoniously" don his "killing gloves" when called to the scene of a crime).
279. Id.
280. See id. at 1361 (court notes that "due to a code of silence induced by peer pressure among the rank-and-file officers and among some police supervisors, few - if any - formal complaints were ever filed by police personnel" and found that the Police Director's procedures "were highly conducive to 'covering up' officer misconduct"). The Police Director himself candidly acknowledged: "We have never, since I have been director, had the first single case where officers would really cooperate in terms of telling us on an official basis what they knew about a fellow officer." Id.
281. See id. at 1358-59 (noting that none of the Police Director's new procedures encouraged or imposed any duty on officers to file formal complaints against other officers).
282. Cam Simpson, City Settles Lawsuit From '89 Cop Raid, CHI. SUN TIMES, Feb. 4, 1998, at 23. See Sledd v. Linsay, 102 F.3d 282, 284 (7th Cir. 1996) (detailing the events with took place on March 31, 1989, at Sledd's residence in the South Side of Chicago).
283. See id.
284. See id. at 286 (describing the manner in which the officers entered Sledd's residence). Sledd subsequently filed a § 1983 suit against the against the offending officers, the Chicago Police Department, and the City of Chicago alleging, in part, that the Department maintained a "custom" of the code of silence. The case eventually settled out of court for an undisclosed sum. Telephone Interview with Erica Thompson, Attorney for Andrew Sledd, People's Law Office, Chicago, IL (June 1998). See also infra text accompanying notes 256-60.
285. See id.
286. See id. (describing Sledd's reaction to the presence of "intruders"); see also Steven P. Garmisa. Police Officers Granted Immunity for Shooting, CHI. DAILY L. BULL., Oct. 13, 1994, at 6 (reiterating the contentions of the police officers regarding the events that took place on March 31, 1989).
287. See Sledd, 102 F.3d at 286 (According to the court's findings, the African-American man "was wearing blue jeans, a blue jacket, and white tennis shoes," but nothing bearing Chicago Police Department insignia. As he ran from Sledd, the man shouted "he's got a gun, let's get the fuck out of here.").
288. Id. (describing events that gave rise to Sledd's § 1983 action against the officers).
289. See id.
290. See Andrew Martin, City Settles Costly Lawsuits, CHI. TRIB., Apr. 30, 1998, at 3 (Metro-Chicago) (reporting that Sledd suffered serious nerve damage as the result of being shot and was cleared of all criminal charges).
291. See Garmisa, supra note 223, at 6, and accompanying text (analyzing the testimony of the police officers involved in the Sledd incident).
292. See Sledd, 102 F.3d at 287 (noting that Sledd was acquitted following a bench trial).
293. See Merle English, Panel Hears of Racism, Cronyism, Nepotism, and Sexism, NEWSDAY, June 14, 1994, at A29 (providing report of events that led to Ward's dismissal).
294. See White-Ruiz v. City of New York, 983 F. Supp. 365, 368 (S.D.N.Y. 1997) (detailing events that led to the harassment of White-Ruiz); see also infra notes 254-70, 290-99 and accompanying text (providing analysis of the police code of silence).
295. See id.
296. See id. (noting the inconsistency with the assurances of confidentiality White-Ruiz had received regarding the reporting of police misconduct).
297. See id.
298. See id. Scagnelli explained to White-Ruiz that he was being reassigned to another precinct and would be unable to shield her from future retaliation by other officers. See id.
299. See id. See also English, supra note 230, at A29 (noting that Ruiz found notes on her locker that said "black bitch).
300. See White-Ruiz, 983 F. Supp. at 368.
301. See id. at 369.
302. See id. at 370. White-Ruiz alleged that because officers' home addresses were required to be kept confidential by the Department, whoever had sent the letter -"presumably a fellow officer" - was being helped by others at the precinct, who were apparently "willing to go so far as to breach security." Id.
303. See NYPD Blues: New York City Police Commissioner William Bratton Works To Break The Policeman's Code Of Silence And Expose Corruption, Eye to Eye With Connie Chung (CBS television broadcast, Apr. 21, 1994) (interviews with then-New York City Police Commissioner, William Bratton, and police officers, including White-Ruiz, discussing the police code of silence).
304. See id.
305. See White-Ruiz, 983 F. Supp. at 371. See also Eye to Eye, supra note 240.
306. See White-Ruiz, 983 F. Supp. at 371. Apparently, the graffiti also referred to another officer, Hector Ariza, who had publicly criticized the Department's discriminatory law enforcement methods, and was therefore also viewed as a "rat" by fellow officers. Id.; see also Ariza v. City of New York, No. CV-93-5287, 1996 WL 118535, at *5 (E.D.N.Y. March 7, 1996) (discussing Ariza's allegations that "his name and the names of other officers were displayed on bathroom walls in the precinct along with the word 'rat' in reference to their speaking out against police malfeasance").
307. See White-Ruiz, 983 F. Supp. at 371. See also NYPD Blues, supra note 240. According to the MOLLEN COMMISSION REPORT, strikingly similar incidents have occurred to other officers who have reported police corruption or misconduct. MOLLEN COMMISSION REPORT, supra note 210, at 51-60. In one instance, a police captain who had disciplined subordinates for misconduct and reported acts of police brutality had to be transferred 38 times. Id. at 54. Apparently, "[i]n almost every case, on the very day he arrived to report for duty at his new command, he found evidence that his reputation had preceded him. At one command, his locker was burned; at another, his car tires were slashed; at another, he received threats of physical harm." Id. Similarly, a detective in the Internal Affairs Division who was transferred to a precinct detective squad testified that his colleagues "placed dead rats on his car windshield, stole or destroyed his personal property, and told him directly that he could not count on them times of danger." Id. at 55 .
308. See White-Ruiz, 983 F. Supp. at 371. See also NYPD Blues, supra note 240. According to the MOLLEN COMMISSION REPORT, strikingly similar incidents have occurred to other officers who have reported police corruption or misconduct. MOLLEN COMMISSION REPORT, supra note 210, at 51-60. In one instance, a police captain who had disciplined subordinates for misconduct and reported acts of police brutality had to be transferred 38 times. Id. at 54. Apparently, "[i]n almost every case, on the very day he arrived to report for duty at his new command, he found evidence that his reputation had preceded him. At one command, his locker was burned; at another, his car tires were slashed; at another, he received threats of physical harm." Id. Similarly, a detective in the Internal Affairs Division who was transferred to a precinct detective squad testified that his colleagues "placed dead rats on his car windshield, stole or destroyed his personal property, and told him directly that he could not count on them times of danger." Id. at 55 .
309. See White-Ruiz, 983 F. Supp. at 370.
310. See White-Ruiz v. City of New York, No. CIV-93-7233, 1996 WL 603983, at *2 (S.D.N.Y. Oct. 22, 1996) ("Plaintiff further alleges that, throughout the period from 1989 to 1991, she also suffered retaliatory assignment changes and inappropriate posts, which did not adequately reflect her seniority").
311. See White-Ruiz, 983 F. Supp. at 378-79. When White-Ruiz contacted the Department's Office of Equal Employment Opportunity to lodge a complaint, she was told that the "whistleblower" nature of her case placed it outside the jurisdiction of that office. Id.
312. See id.
313. In Monell, the Court cited a previous case, Adickes, in its discussion of custom and municipal liability: local governments . . . may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes . . . "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law. Monell, 436 U.S. at 691 (quoting Adickes v. Kress & Co., 398 U.S. 144, 167-68 (197O)). As previously noted, the Supreme Court had only directly addressed "custom" under § 1983 in Adickes, a pre-Monell case. While Adickes was decided prior to the extension of liability to municipal governments, the Court's analysis of the statutory "custom" language informs our understanding of "custom" in the post-Monell era. See id. at 166-68 (finding that custom under § 1983 "requires state involvement and is not simply a practice that reflects longstanding social habits, generally observed by the people in a locality," and that "settled practices of state officials may, by imposing sanctions or withholding benefits, transform private predilections into compulsory rules of behavior no less than legislative pronouncements.")
314. A number of circuits have adopted the language of Monell in discussing custom-based § 1983 municipal liability claims. See Sorlucco v. New York Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992) (noting that "the policy or custom used to anchor liability need not be contained in an explicitly adopted rule or regulation" so long as the "practices are persistent and widespread, and thus, so permanent and well-settled as to constitute 'custom and usage.'"); Andrews v. City of Philadelphia. 895 F.2d 1469, 1480 (3d Cir. 1990) ("[A] course of conduct is considered to be a 'custom' when, though not authorized by law, 'such practices of state officials [are] so permanent and well settled as to virtually constitute law.'") (quoting Monell, 436 U.S. at 690).
315. See Praprotnik, 485 U.S. at 127 (noting that to prove § 1983 liability based on custom, plaintiff must establish the existence of a widespread practice that, "although not authorized by written law or express municipal policy . . . is so permanent and well settled as to constitute custom or usage with the force of law").
316. See Fletcher v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir. 1989). (noting that "[c]ustom may be established by proof of knowledge and acquiescence."); Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987) (noting that "[a]ctual knowledge may be evidenced by recorded reports to or discussions by a municipal governing body . . . [and c]onstructive knowledge may be evidenced by the fact that the practices have been so widespread or flagrant that in the proper exercise of its responsibilities the governing body should have known of them") (citing Bennet v. Slidell, 728 F.2d 762, 768 (5th Cir. 1984) (en banc)).
317. See Spell, 824 F.2d at 1387 (noting that when a municipal policy or custom is unconstitutional, "the causal connection between policy and violation is manifest and does not require independent proof," but that when a policy or custom is not unconstitutional it must be shown to have caused the violation: "[p]roof merely that such a policy or custom was 'likely' to cause a particular violation is not sufficient; there must be proven at least an 'affirmative link' between policy or custom and violation. . . .") (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 822-23, 833 n.9) (Brennan J., dissenting).
318. See Brandon v. Allen, 645 F. Supp. 1261, 1266 (W.D. Tenn. 1986) (finding that "there was throughout the Department a code of silence binding patrolmen and supervisors alike not to testify against or report on their colleagues . . . . That code was enforced by peer pressure, and tacitly sanctioned by the refusal of the Department to impose on its employees any obligation to disclose, even under questioning, misconduct by their fellow officers.") The Brandon court held that the code was "was precisely the sort of custom referred to in Monell." Id.
319. See generally HUMAN RIGHTS WATCH REPORT supra note 12, at 5 (study of 14 U.S. cities found that most police departments' internal affairs units "conducted substandard investigations, sustained few allegations of excessive force, and failed to identify and punish officers against whom repeated complaints had been filed; these units "often shielded officers who committed human rights violations from exposure and guaranteed them immunity from disciplinary sanctions or criminal prosecution" rather than investigating the alleged misconduct).
320. The fact that no other officer reported Allen, who was universally regarded as a "fringe" cop, a "mental case" that everyone feared, reveals just how indiscriminate the code can be. The code protects any and all officers from complaints, no matter how they are viewed by their colleagues. See generally, PRESIDENT'S COMMISSION ON LAW ENFORCEMENT, supra note 212, at 211 ("Whenever a number of dishonest officers are tolerated by other officers within a police organization, an atmosphere of mutual support and protection may develop, and eventually it may taint the entire police system."); COHEN & FELDBERG, supra note 56, at 7-8 (noting that police work can "drive its practitioners together in such strong fraternal bonds" that a "structural immorality" is created that causes "even those offers who will not go along with the illegalities [to] compromise their sense of integrity by looking the other way rather than revealing these abuses); SKOLNICK & FYFE, supra note 186, at 90-92 (arguing that the "fundamental culture of policing" involves "danger, authority, and the mandate to use coercive force," and that this combination may result in "a banding together, a cover-up, a conspiracy of silence"): Gabriel J. Chin & Scott C. Wells, The Blue Wall of Silence As Evidence of Bias And Motive To Lie: A New Approach to Police Perjury, 59 U. PITT. L. REV. 233, 252 (1998) (stating that "the closed nature of the [police] culture, the resentment of police by the public, the dangers and volatility of police work, and officers' dependence upon one another for mutual safety, spawns a strong loyalty on the part of police officers to each other").
321. The fact that no other officer reported Allen, who was universally regarded as a "fringe" cop, a "mental case" that everyone feared, reveals just how indiscriminate the code can be. The code protects any and all officers from complaints, no matter how they are viewed by their colleagues. See generally, PRESIDENT'S COMMISSION ON LAW ENFORCEMENT, supra note 212, at 211 ("Whenever a number of dishonest officers are tolerated by other officers within a police organization, an atmosphere of mutual support and protection may develop, and eventually it may taint the entire police system."); COHEN & FELDBERG, supra note 56, at 7-8 (noting that police work can "drive its practitioners together in such strong fraternal bonds" that a "structural immorality" is created that causes "even those offers who will not go along with the illegalities [to] compromise their sense of integrity by looking the other way rather than revealing these abuses); SKOLNICK & FYFE, supra note 186, at 90-92 (arguing that the "fundamental culture of policing" involves "danger, authority, and the mandate to use coercive force," and that this combination may result in "a banding together, a cover-up, a conspiracy of silence"): Gabriel J. Chin & Scott C. Wells, The Blue Wall of Silence As Evidence of Bias And Motive To Lie: A New Approach to Police Perjury, 59 U. PITT. L. REV. 233, 252 (1998) (stating that "the closed nature of the [police] culture, the resentment of police by the public, the dangers and volatility of police work, and officers' dependence upon one another for mutual safety, spawns a strong loyalty on the part of police officers to each other").
322. According to David Rudowsky, similar attitudes contributed to the Rodney King incident: The officers involved had to be fully confident of their colleagues' silence and of their department's dismissal of any complaints made by the numerous witnesses to this incident. Indeed, so sure were these officers of their immunity from punishment that they bragged about their abuses on the official police computer system and to medical personnel at the hospital where King was belatedly taken for treatment. Only officers assured by prior experience and knowledge of departmental attitudes that the department would not investigate or punish this type of abuse (regardless of the credibility of the witnesses or of their own incriminating statements) could have rationally taken the risk of engaging in this type of behavior. Rudovsky, supra note 11, at 482.
323. See CHRISTOPHER COMMISSION REPORT, supra note 211, at 70 (finding that "[w]ithin minority communities of Los Angeles, there is a widely-held view that police misconduct is commonplace. The King beating refocused public attention on long-standing complaints by African-Americans, Latinos and Asians that LAPD officers frequently treat minorities differently from whites, more often using disrespectful and abusive language, employing unnecessarily intrusive practices . . . and engaging in use of excessive force when dealing with minorities"); HUMAN RIGHTS WATCH REPORT, supra note 12, at 39 (finding that minorities allege violations by police "more frequently than white residents, and far out of proportion to their representation in those cities" examined in the study); 1968 KERNER COMMISSION REPORT, supra note 212, at 5 (noting that "to some Negroes, police have come to symbolize white power, white racism, and white repression . . . . The atmosphere of hostility and cynicism is reinforced by a widespread belief among Negroes in the existence of police brutality and in a 'double standard' of justice and protection - one for Negroes and one for whites.") ST. CLAIR COMMISSION, REPORT OF THE BOSTON POLICE DEPARTMENT MANAGEMENT REVIEW COMMITTEE, 124 (1992) [hereinafter ST. CLAIR REPORT] (examining the Boston Police Department and finding that 50% of complainants in the sample group were African-American, while only 26% of Boston's population was African-American); SKOLNICK & FYFE, supra note 186, at 24 (the authors argue that contemporary police often brutalize members of a feared "outgroup" - some population thought to be "undesirable, undeserving and underpunished by established law" - with the result that victims of police brutality are often members of racial or ethnic minorities); Paul Hoffman, The Feds, Lies, and Videotape: The Need for an Effective Federal Role in Controlling Police Abuse in Urban America, 66 S. CAL. L. REV. 1455, 1471-82 (1993) (arguing that: (1) the beating of Rodney King was part of a pattern of abuse by Los Angeles police officers directed against young African American and Latino men; and (2) the police department tolerated that abuse).
324. See CHRISTOPHER COMMISSION REPORT, supra note 211, at 70 (finding that "[w]ithin minority communities of Los Angeles, there is a widely-held view that police misconduct is commonplace. The King beating refocused public attention on long-standing complaints by African-Americans, Latinos and Asians that LAPD officers frequently treat minorities differently from whites, more often using disrespectful and abusive language, employing unnecessarily intrusive practices . . . and engaging in use of excessive force when dealing with minorities"); HUMAN RIGHTS WATCH REPORT, supra note 12, at 39 (finding that minorities allege violations by police "more frequently than white residents, and far out of proportion to their representation in those cities" examined in the study); 1968 KERNER COMMISSION REPORT, supra note 212, at 5 (noting that "to some Negroes, police have come to symbolize white power, white racism, and white repression . . . . The atmosphere of hostility and cynicism is reinforced by a widespread belief among Negroes in the existence of police brutality and in a 'double standard' of justice and protection - one for Negroes and one for whites.") ST. CLAIR COMMISSION, REPORT OF THE BOSTON POLICE DEPARTMENT MANAGEMENT REVIEW COMMITTEE, 124 (1992) [hereinafter ST. CLAIR REPORT] (examining the Boston Police Department and finding that 50% of complainants in the sample group were African-American, while only 26% of Boston's population was African-American); SKOLNICK & FYFE, supra note 186, at 24 (the authors argue that contemporary police often brutalize members of a feared "outgroup" - some population thought to be "undesirable, undeserving and underpunished by established law" - with the result that victims of police brutality are often members of racial or ethnic minorities); Paul Hoffman, The Feds, Lies, and Videotape: The Need for an Effective Federal Role in Controlling Police Abuse in Urban America, 66 S. CAL. L. REV. 1455, 1471-82 (1993) (arguing that: (1) the beating of Rodney King was part of a pattern of abuse by Los Angeles police officers directed against young African American and Latino men; and (2) the police department tolerated that abuse).
325. See CHRISTOPHER COMMISSION REPORT, supra note 211, at 70 (finding that "[w]ithin minority communities of Los Angeles, there is a widely-held view that police misconduct is commonplace. The King beating refocused public attention on long-standing complaints by African-Americans, Latinos and Asians that LAPD officers frequently treat minorities differently from whites, more often using disrespectful and abusive language, employing unnecessarily intrusive practices . . . and engaging in use of excessive force when dealing with minorities"); HUMAN RIGHTS WATCH REPORT, supra note 12, at 39 (finding
326. See CHRISTOPHER COMMISSION REPORT, supra note 211, at 70 (finding that "[w]ithin minority communities of Los Angeles, there is a widely-held view that police misconduct is commonplace. The King beating refocused public attention on long-standing complaints by African-Americans, Latinos and Asians that LAPD officers frequently treat minorities differently from whites, more often using disrespectful and abusive language, employing unnecessarily intrusive practices . . . and engaging in use of excessive force when dealing with minorities"); HUMAN RIGHTS WATCH REPORT, supra note 12, at 39 (finding that minorities allege violations by police "more frequently than white residents, and far out of proportion to their representation in those cities" examined in the study); 1968 KERNER COMMISSION REPORT, supra note 212, at 5 (noting that "to some Negroes, police have come to symbolize white power, white racism, and white repression . . . . The atmosphere of hostility and cynicism is reinforced by a widespread belief among Negroes in the existence of police brutality and in a 'double standard' of justice and protection - one for Negroes and one for whites.") ST. CLAIR COMMISSION, REPORT OF THE BOSTON POLICE DEPARTMENT MANAGEMENT REVIEW COMMITTEE, 124 (1992) [hereinafter ST. CLAIR REPORT] (examining the Boston Police Department and finding that 50% of complainants in the sample group were African-American, while only 26% of Boston's population was African-American); SKOLNICK & FYFE, supra note 186, at 24 (the authors argue that contemporary police often brutalize members of a feared "outgroup" - some population thought to be "undesirable, undeserving and underpunished by established law" - with the result that victims of police brutality are often members of racial or ethnic minorities); Paul Hoffman, The Feds, Lies, and Videotape: The Need for an Effective Federal Role in Controlling Police Abuse in Urban America, 66 S. CAL. L. REV. 1455, 1471-82 (1993) (arguing that: (1) the beating of Rodney King was part of a pattern of abuse by Los Angeles police officers directed against young African American and Latino men; and (2) the police department tolerated that abuse).
327. See CHRISTOPHER COMMISSION REPORT, supra note 211, at 70 (finding that "[w]ithin minority communities of Los Angeles, there is a widely-held view that police misconduct is commonplace. The King beating refocused public attention on long-standing complaints by African-Americans, Latinos and Asians that LAPD officers frequently treat minorities differently from whites, more often using disrespectful and abusive language, employing unnecessarily intrusive practices . . . and engaging in use of excessive force when dealing with minorities"); HUMAN RIGHTS WATCH REPORT, supra note 12, at 39 (finding that minorities allege violations by police "more frequently than white residents, and far out of proportion to their representation in those cities" examined in the study); 1968 KERNER COMMISSION REPORT, supra note 212, at 5 (noting that "to some Negroes, police have come to symbolize white power, white racism, and white repression . . . . The atmosphere of hostility and cynicism is reinforced by a widespread belief among Negroes in the existence of police brutality and in a 'double standard' of justice and protection - one for Negroes and one for whites.") ST. CLAIR COMMISSION, REPORT OF THE BOSTON POLICE DEPARTMENT MANAGEMENT REVIEW COMMITTEE, 124 (1992) [hereinafter ST. CLAIR REPORT] (examining the Boston Police Department and finding that 50% of complainants in the sample group were African-American, while only 26% of Boston's population was African-American); SKOLNICK & FYFE, supra note 186, at 24 (the authors argue that contemporary police often brutalize members of a feared "outgroup" - some population thought to be "undesirable, undeserving and underpunished by established law" - with the result that victims of police brutality are often members of racial or ethnic minorities); Paul Hoffman, The Feds, Lies, and Videotape: The Need for an Effective Federal Role in Controlling Police Abuse in Urban America, 66 S. CAL. L. REV. 1455, 1471-82 (1993) (arguing that: (1) the beating of Rodney King was part of a pattern of abuse by Los Angeles police officers directed against young African American and Latino men; and (2) the police department tolerated that abuse).
328. See James Barron, New York Study of Police Finds No Wide Misuse of Deadly Force, N.Y. TIMES, May 19, 1987, at A1, B4 (noting that a New York State commission appointed by then-Governor Mario Cuomo concluded that 73% of those killed by white officers were African-American or Hispanic, while 27% of those killed by white officers were white and that 79% of those killed by non-white officers were minorities, while 21% were white. Id. See also Selwyn Raab, City's Police Brutality Report Card: Complaints Down, Needs Improving, N.Y. TIMES, Aug. 17, 1997, at 41 (reporting that in 1996, 80% of New York City police misconduct complaints were filed by Blacks, Latinos, and Asians).
329. See James Barron, New York Study of Police Finds No Wide Misuse of Deadly Force, N.Y. TIMES, May 19, 1987, at A1, B4 (noting that a New York State commission appointed by then-Governor Mario Cuomo concluded that 73% of those killed by white officers were African-American or Hispanic, while 27% of those killed by white officers were white and that 79% of those killed by non-white officers were minorities, while 21% were white. Id. See also Selwyn Raab, City's Police Brutality Report Card: Complaints Down, Needs Improving, N.Y. TIMES, Aug. 17, 1997, at 41 (reporting that in 1996, 80% of New York City police misconduct complaints were filed by Blacks, Latinos, and Asians).
330. See Rudovsky, supra note 11 ("Because police abuse is most often directed against those without political power or social status, their complaints are often dismissed or ignored."); Daniel Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General, 88 COLUM. L. REV. 247, 284 (1988) (noting that victims of constitutional misconduct by local law enforcement are often individuals who "are in contact with the criminal justice system, generally as suspects or defendants," and are unlikely to bring suit because of "ignorance of their rights, poverty, fear of police reprisals or the burdens of incarceration.")
331. See CHRISTOPHER COMMISSION REPORT, supra note 211, at 170 (finding that officers who give evidence of misconduct against fellow officers "are often ostracized and harassed, and in some instances themselves become the target of complaints."); MOLLEN COMMISSION REPORT, supra note 210, at 53 (noting that "[o]fficers who report misconduct are ostracized and harassed; become targets of complaints and even physical threats; and are made to fear that they will be left alone on the streets in a time of crisis This draconian enforcement of the code of silence fuels corruption because it makes corrupt cops feel protected and invulnerable."); SKOLNICK & FYFE, supra note 186, at 110-11 (contending that "the code . . . typically is enforced by the threat of shunning, by fear that informing will lead to exposure of one's own derelictions, and by fear that colleagues' assistance may be withheld in emergencies."); Maurice Possley & Andrew Martin, 'Code' is Cracking in Austin Case: Wall of Secrecy Around Corruption Begins to Crumble, CHI. TRIB., Feb. 3, 1997, at 1 (noting officers' fear of ostracism by those considered "family").
332. See CHRISTOPHER COMMISSION REPORT, supra note 211, at 170 (finding that officers who give evidence of misconduct against fellow officers "are often ostracized and harassed, and in some instances themselves become the target of complaints."); MOLLEN COMMISSION REPORT, supra note 210, at 53 (noting that "[o]fficers who report misconduct are ostracized and harassed; become targets of complaints and even physical threats; and are made to fear that they will be left alone on the streets in a time of crisis This draconian enforcement of the code of silence fuels corruption because it makes corrupt cops feel protected and invulnerable."); SKOLNICK & FYFE, supra note 186, at 110-11 (contending that "the code . . . typically is enforced by the threat of shunning, by fear that informing will lead to exposure of one's own derelictions, and by fear that colleagues' assistance may be withheld in emergencies."); Maurice Possley & Andrew Martin, 'Code' is Cracking in Austin Case: Wall of Secrecy Around Corruption Begins to Crumble, CHI. TRIB., Feb. 3, 1997, at 1 (noting officers' fear of ostracism by those considered "family").
333. See CHRISTOPHER COMMISSION REPORT, supra note 211, at 170 (finding that officers who give evidence of misconduct against fellow officers "are often ostracized and harassed, and in some instances themselves become the target of complaints."); MOLLEN COMMISSION REPORT, supra note 210, at 53 (noting that "[o]fficers who report misconduct are ostracized and harassed; become targets of complaints and even physical threats; and are made to fear that they will be left alone on the streets in a time of crisis This draconian enforcement of the code of silence fuels corruption because it makes corrupt cops feel protected and invulnerable."); SKOLNICK & FYFE, supra note 186, at 110-11 (contending that "the code . . . typically is enforced by the threat of shunning, by fear that informing will lead to exposure of one's own derelictions, and by fear that colleagues' assistance may be withheld in emergencies."); Maurice Possley & Andrew Martin, 'Code' is Cracking in Austin Case: Wall of Secrecy Around Corruption Begins to Crumble, CHI. TRIB., Feb. 3, 1997, at 1 (noting officers' fear of ostracism by those considered "family").
334. Former NYPD officer Bernard Cawley testified before the Mollen Commission that he never feared another officer would turn him in: Cops don't tell on cops. And if they did tell on them, just say if a cop decided to tell on me, his career's ruined. He's going to be labeled a rat. So if he's got fifteen more years to go on the job, he's going to be miserable because it follows you wherever you go . . . he's going to have nobody to work with. And chances are, if it comes down to it, they're going to let him get hurt. MOLLEN COMMISSION REPORT, supra note 210, at 53-54. Another officer explained, "[S]ee, we're all blue . . . we have to protect each oer no matter what." Id. at 58. See also CHRISTOPHER COMMISSION REPORT, supra note 211, at 170 (containing the testimony of an officer who indicated that he was forced out of the police department for corroborating a suspect's report of being beaten by police and the public statement of another officer that breaking the code of silence "will mark the end of [an officer's] career"); Selwyn Raab, The Unwritten Code that Stops Police from Speaking, N.Y. TIMES, June 16, 1985, S4 at 6 (quoting an anonymous New York City police officer: "If they mark you as a 'rat,' you're finished on the job . . . .").
335. Former NYPD officer Bernard Cawley testified before the Mollen Commission that he never feared another officer would turn him in: Cops don't tell on cops. And if they did tell on them, just say if a cop decided to tell on me, his career's ruined. He's going to be labeled a rat. So if he's got fifteen more years to go on the job, he's going to be miserable because it follows you wherever you go . . . he's going to have nobody to work with. And chances are, if it comes down to it, they're going to let him get hurt. MOLLEN COMMISSION REPORT, supra note 210, at 53-54. Another officer explained, "[S]ee, we're all blue . . . we have to protect each oer no matter what." Id. at 58. See also CHRISTOPHER COMMISSION REPORT, supra note 211, at 170 (containing the testimony of an officer who indicated that he was forced out of the police department for corroborating a suspect's report of being beaten by police and the public statement of another officer that breaking the code of silence "will mark the end of [an officer's] career"); Selwyn Raab, The Unwritten Code that Stops Police from Speaking, N.Y. TIMES, June 16, 1985, S4 at 6 (quoting an anonymous New York City police officer: "If they mark you as a 'rat,' you're finished on the job . . . .").
336. Former NYPD officer Bernard Cawley testified before the Mollen Commission that he never feared another officer would turn him in: Cops don't tell on cops. And if they did tell on them, just say if a cop decided to tell on me, his career's ruined. He's going to be labeled a rat. So if he's got fifteen more years to go on the job, he's going to be miserable because it follows you wherever you go . . . he's going to have nobody to work with. And chances are, if it comes down to it, they're going to let him get hurt. MOLLEN COMMISSION REPORT, supra note 210, at 53-54. Another officer explained, "[S]ee, we're all blue . . . we have to protect each oer no matter what." Id. at 58. See also CHRISTOPHER COMMISSION REPORT, supra note 211, at 170 (containing the testimony of an officer who indicated that he was forced out of the police department for corroborating a suspect's report of being beaten by police and the public statement of another officer that breaking the code of silence "will mark the end of [an officer's] career"); Selwyn Raab, The Unwritten Code that Stops Police from Speaking, N.Y. TIMES, June 16, 1985, S4 at 6 (quoting an anonymous New York City police officer: "If they mark you as a 'rat,' you're finished on the job . . . .").
337. New York City police officer Frank Serpico testified before the Knapp Commission regarding corruption within the Police Department. KNAPP COMMISSION REPORT at vii. Serpico was portrayed by actor A1 Pacino in a 1973 motion picture chronicling the officer's life and involvement in anti-corruption investigations. SERPlCO (Paramount Pictures 1973).
338. See Nat Hentoff, Howard Safir Should Resign Says Serpico, THE VILLAGE VOICE, June 16, 1998, at 20 (describing how Serpico was shot in the face when his back-up team failed him during a "buy and bust" operation and noting that "[n]ow as then, even honest cops are afraid to report corruption and brutality because of what happens to 'rats' in the department."): see also Chris Sturgis, Serpico To Students: Integrity Is Crucial, TIMES UNION. June 6, 1998, at B7, available in 1998 WL 7261323 (noting that some believe Serpico was set up by "colleagues who were angered by his speaking out against police corruption").
339. See Nat Hentoff, Howard Safir Should Resign Says Serpico, THE VILLAGE VOICE, June 16, 1998, at 20 (describing how Serpico was shot in the face when his back-up team failed him during a "buy and bust" operation and noting that "[n]ow as then, even honest cops are afraid to report corruption and brutality because of what happens to 'rats' in the department."): see also Chris Sturgis, Serpico To Students: Integrity Is Crucial, TIMES UNION. June 6, 1998, at B7, available in 1998 WL 7261323 (noting that some believe Serpico was set up by "colleagues who were angered by his speaking out against police corruption").
340. For example, in Farrar v. Davis, the plaintiff observed police officers beating a handcuffed man and videotaped the incident. Farrar v. Davis, No. 97C6433, 1998 WL 142368, at *1 (N.D. Ill., Mar. 19, 1998). Still filming, she approached the group of offending officers and informed one of them that she had seen him beat the man in the face and planned to report him to the United States Attorney. Id. When the officers ignored her, plaintiff "commented in the general direction of the remaining officers, although to no one in particular, that they were paid to uphold the law, not to break it." Id. One of the officers then grabbed the plaintiff and arrested her. Id. She was taken to the police station where she was detained for over ten hours,. Id. Meanwhile, one of the officers confiscated her camera and erased the videotape. Id. The plaintiff brought a § 1983 suit against the city, alleging that the officers unlawfully arrested and detained her and destroyed her videotape of an incident of excessive force because of a pervasive code of silence in the police department. Id. at *2.
341. The planting of evidence on suspected felons - "frame-ups" - is a particularly common complaint. See Chin & Wells, supra note 256, at 246-47 (discussing "frame-ups" in the context of a recent case where New Yorker Daniel Batista was convicted of criminal possession of a weapon: "Batista's claim, supported by several civilian witnesses, was that the officers planted the gun after the keys they confiscated from him failed to open the door of apartments the officers wanted to rob . . . Batista's conviction was vacated only after he has served his prison sentence.").
342. In Albany, New York, six state police officers were indicted for a false-evidence scandal, which resulted in dozens of these officers' prior cases being reopened for review. See Richard Perez-Pena, Troopers' Supervisor Faulted in Evidence Tampering Scandal, N.Y. TIMES, Feb. 4, 1997, at B1. And in September 1999, the Los Angeles Police Department's criminal investigation into the Rampart Division - a cadre of officers charged with law enforcement in one of the toughest neighborhoods in the city - uncovered alleged unjustified shootings, beatings, drug dealing, planting of evidence, false arrests, witness intimidation and perjury by police officers. Eleven criminal convictions already have been overturned as a consequence of the investigation and, to date, 20 officers have resigned or been relieved of duty, suspended without pay or fired in connection with the scandal. See Matt Lait, D.A. Seeks to Void 10 More Rampart Cases, L.A. TIMES, Jan. 25, 2000, at A1.
343. In Albany, New York, six state police officers were indicted for a false-evidence scandal, which resulted in dozens of these officers' prior cases being reopened for review. See Richard Perez-Pena, Troopers' Supervisor Faulted in Evidence Tampering Scandal, N.Y. TIMES, Feb. 4, 1997, at B1. And in September 1999, the Los Angeles Police Department's criminal investigation into the Rampart Division - a cadre of officers charged with law enforcement in one of the toughest neighborhoods in the city - uncovered alleged unjustified shootings, beatings, drug dealing, planting of evidence, false arrests, witness intimidation and perjury by police officers. Eleven criminal convictions already have been overturned as a consequence of the investigation and, to date, 20 officers have resigned or been relieved of duty, suspended without pay or fired in connection with the scandal. See Matt Lait, D.A. Seeks to Void 10 More Rampart Cases, L.A. TIMES, Jan. 25, 2000, at A1.
344. See Chin & Wells, supra note 256, at 256 (noting that "[p]olice created false excessive force claims by simply adding bogus charges of resisting arrest to their arrest reports, and sticking to the stories at trial . . . [and] where more than one officer was involved in the wrongful conduct or present at the scene, the officers would agree upon a common false tale, and use that tale in complicity to justify the actions"); Rudovsky, supra note 11, at 481 (arguing that, when faced with charges of wrongful arrest, an officer may justify arrest through fabricating evidence of assault; because of the code of silence, "other officers would testify either that they did not observe the incident or confirm the fabrication and testify that the arresting officers acted properly in self-defense"); Alan Dershowitz, A Police Badge is Not a License to Commit Perjury, SAN DIEGO UNION-TRIB., Apr. 4, 1991, at B11, B11 (arguing that in cases involving allegations of police brutality or misconduct, officers will conceal or justify their malfeasance or that of a fellow officer with "boilerplate" allegations against the victim).
345. See MOLLEN COMMISSION REPORT, supra note 210, at 36 ("the practice of police falsification . . . is so common in certain precincts that it has spawned its own word: 'testilying.'"); Chin & Wells, supra note 256, at 256 (discussing the willingness of police to perjure themselves to protect their fellow officers as a function of the "overwhelming pressure placed upon the officer to heed the police code of silence"); Morgan Cloud, Judges, "Testilying," and the Constitution, 69 S. CAL. L. REV. 1341, 1341-44, 1387 (1996) (discussing the implications of police perjury in the search and seizure context and suggesting that judges should adopt a two-part test that examines subjective motive and objective reasonableness).
346. See MOLLEN COMMISSION REPORT, supra note 210, at 36 ("the practice of police falsification . . . is so common in certain precincts that it has spawned its own word: 'testilying.'"); Chin & Wells, supra note 256, at 256 (discussing the willingness of police to perjure themselves to protect their fellow officers as a function of the "overwhelming pressure placed upon the officer to heed the police code of silence"); Morgan Cloud, Judges, "Testilying," and the Constitution, 69 S. CAL. L. REV. 1341, 1341-44, 1387 (1996) (discussing the implications of police perjury in the search and seizure context and suggesting that judges should adopt a two-part test that examines subjective motive and objective reasonableness).
347. See HUMAN RIGHTS WATCH REPORT, supra note 12, at 50 (noting that "filing a complaint is unnecessarily difficult and often intimidating" and discussing "one of the most notorious dissuasion efforts" that occurred when Rodney King's brother tried to complain after the beating and "the sergeant on duty treated him skeptically, asked whether he had ever been in trouble, and never filled out a complaint form.") (citing CHRISTOPHER COMMISSION REPORT, supra note 211, at 10.)
348. It so happens there were extraordinary circumstances at work in Brandon v. Allen. In particular, the district court found that the Memphis Police Department in the 1970s had a "policy never to show the [Police] Director complaints or internal reports regarding police brutality," and the Department "imposed on its supervisors no duty to discover officers who might have dangerous propensities, and no duty to report known problems. . . ." Brandon v. Allen, 645 F. Supp. 1261, 1266 (W.D. Tenn. 1986). Further, pursuant to the police collective bargaining agreement, it was "a policy of the Department never to reassign an officer from a position for disciplinary reasons." Id. at 1267. Finally, any "disciplinary action involving the dismissal of an officer . . . required approval of the City Civil Service Commission." Id. According to the Director, it was the policy of the Commission "never to uphold the dismissal of an officer if it were based on violent misconduct." Id. In the end, the plaintiffs prevailed by proving these unconstitutional policies, as well as the maintenance of an unconstitutional custom in the form of the code of silence, see id.
349. Board of the County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 412-13 (1997).
350. See Sledd v. Lindsay, 780 F. Supp. 554, 557 (N.D. Ill. 1991).
351. Id. at 558. The lower court's dismissal of Sledd's claim highlights the evidentiary problems faced by plaintiffs who allege a municipal policy of inadequate investigation of misconduct complaints. In particular, the district court rejected plaintiff's argument that only one to two percent of police misconduct complaints were substantiated in the departmental review process, reasoning that plaintiff was unable to show that a greater percentage of complaints were in fact meritorious. Id. at 559. Similarly, the court faulted plaintiff's failure to "identif[y] structural defects in the police disciplinary system with relatively simple solutions." Id. In addressing the problem of remedies, the court asked: What should the City's policymakers have done? Always believed the accuser in one-on-one credibility contests? Flipped a coin? Given [the investigative department] an unlimited investigation budget? Forced police officers to testify against other officers? Suspended officers facing complaints until the allegations against them are disproven? Suspended or fired officers with repeated complaints, regardless of the merits of the complaints? Id. The court went on to acknowledge that "Sledd, of course, is not required to suggest remedies," but noted that "a plaintiff must offer much more specificity in showing the problems which the municipality should have prevented or corrected." Id.; see also infra note 277 and accompanying text.
352. See Sledd, 780 F. Supp. at 558 (holding that "in sum, Sledd had failed to plead facts sufficient to show a City policy or custom, or 'deliberate indifference' by a City policymaker to constitutional violations, that proximately caused the alleged violations of Sledd's rights").
353. Sledd v. Linsay, 102 F.3d 282, 289 (7th Cir. 1996)
354. Sledd was able to muster some very specific evidence concerning the breadth of the code of silence within the Chicago Police Department. In particular, Sledd showed "that only one police officer. . . among the thousands who gave statements or testified in the scores of alleged misconduct complaints . . . [had ever] implicated his fellow officers in brutality or unconstitutional conduct." Sledd, 780 F. Supp. at 557.
355. See White-Ruiz v. City of New York, No. CIV-93-7233, 1996 WL 603983, at*10 (S.D.N.Y. Oct. 22, 1996).
356. White-Ruiz v. City of New York, 983 F. Supp. 365, 391 (S.D.N.Y. 1997) (italics added). The court, in determining that such a "custom or usage" existed, relied in part on the findings of the MOLLEN REPORT. Id. at 391.
357. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691-92 (1978) (finding that a municipality cannot be held liable under § 1983 unless its official policy caused a "constitutional tort").
358. See WILLIAM L. PROSSER & W. PAGE KEETON, THE LAW OF TORTS 991 (5th ed. 1984).
359. Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987).
360. See supra Part III.C.
361. Board of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 412-13 (1997).
362. Id. at 408 (finding that a higher standard applies when an isolated incident is disputed; when "the [municipality's] decision necessarily governs a single case, there can be no notice to the municipal decision maker, based on previous violations of federally protected rights, that his approach is inadequate").
363. Id. at 409-10.
364. See Adickes v. Kress, 398 U.S. 144, 167-68 (1970) (noting that "practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law"); see also Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691 (1978) (quoting this exact passage from Adickes in discussing custom claims); cf. Nashville, Chattanooga & St. Louis Ry. v. Browning, 310 U.S. 362 (1940). The Browning Court noted: It would be a narrow conception of justice to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice . . . can establish what is state law . . . . Deeply embedded traditional ways of carrying out state policy . . . are often tougher and truer law than the dead words of the written text. Id. at 369.
365. See, e.g., CHRISTOPHER COMMISSION REPORT, supra note 211, and accompanying text (finding that for the Los Angeles Police Department, the "greatest single barrier to the effective investigation and adjudication of complaints is the officers' unwritten code of silence: an officer does not provide adverse information against a fellow officer"); see also HUMAN RIGHTS WATCH REPORT, supra note 12, at 68 (noting the silence of police officers when misconduct occurs).
366. See, e.g., CHRISTOPHER COMMISSION REPORT, supra note 211, and accompanying text (finding that for the Los Angeles Police Department, the "greatest single barrier to the effective investigation and adjudication of complaints is the officers' unwritten code of silence: an officer does not provide adverse information against a fellow officer"); see also HUMAN RIGHTS WATCH REPORT, supra note 12, at 68 (noting the silence of police officers when misconduct occurs).
367. As an evidentiary matter, in many code of silence cases the plaintiff will be able to satisfy the "highly predictable consequence" standard in code of silence cases once the plaintiff has shown that the practice was "widespread" and "known to policymakers." Evidence that can be used to demonstrate that constitutional deprivations are "highly predictable consequences" of a pervasive code of silence includes commission reports, other civil rights cases, and the testimony of municipal officials and officers.
368. See Spell v. McDaniel, 824 F.2d 1380, 1390-91 (4th Cir. 1987).
369. See id. at 1391 (stating that "fault for a violation resulting from condoned custom can only be ascribed when a pattern of comparable practices has become actually or constructively known to responsible policymakers"). Courts generally agree that § 1983 plaintiffs cannot simply use their own injury to prove widespread misconduct. See, e.g., Armstead v. City of St. Petersburg, No. 95-1548-Civ-T-17C, 1997 WL 724420, at *7 (M.D. Fla. Nov. 13, 1997) (holding that plaintiff's cause of action failed since she did not establish a citywide custom by pointing only to violative, discriminatory conduct that occurred in relation to her).
370. See Spell, 824 F.2d at 1391 (finding that knowledge may be imputed when a widespread pattern exists, as officials have a duty to be informed of such policies); see also Jones v. City of Chicago, 856 F.2d 985, 995-96 (7th Cir. 1988) (finding that as police custom of keeping "street files" was long-standing and department-wide, jury was entitled "to conclude that it had been consciously approved at the highest policymaking level for decisions involving the police department").
371. See, e.g., MOLLEN COMMISSION REPORT, supra note 210, at 53 (finding that New York Police Department officers did not fear that other officers would testify against them due to the "Blue Wall of Silence"). Whether or not a plaintiff will be allowed to introduce such reports into evidence is another matter. In recent years, courts have disagreed regarding the admissibility into evidence of such reports. Compare White-Ruiz v. City of New York, 983 F. Supp. 365, 380-382 (S.D.N.Y. 1997) (allowing plaintiff to introduce MOLLEN COMMISSION REPORT into evidence and frequently referencing the Commission's findings in the opinion), Ariza v. City of New York, No. CV-93-5287, 1996 WL 118535, at *5-6 (E.D.N.Y. March 7, 1996) (admitting MOLLEN COMMISSION REPORT into evidence), and Montiel v. City of Los Angeles, 2 F.3d 335, 341-42 (9th Cir. 1993) (finding lower court should have presumed CHRISTOPHER COMMISSION REPORT trustworthy and put burden of establishing untrustworthiness on city), with Williams v. City of New York, CV-94-6234, at 78-85 (S.D.N.Y. Sept. 6, 1996) (barring plaintiff's admission of MOLLEN COMMISSION REPORT findings on the "code of silence" for purposes of questioning the credibility of police officer witnesses), and Bryant v. New York City, CV-92-0960, slip op. at 9-10 (E.D.N.Y. Oct. 27, 1994) (excluding MOLLEN COMMISSION REPORT in case alleging excessive force by a police officer). Though the admissibility of commission reports is beyond the scope of this Article, Chin & Wells, supra note 241, at 284-85, discuss the practical concerns of using such reports to demonstrate the existence and effect of the code of silence as evidence against individual police officers. See also Carol Ann Humiston, Paved With Good Intentions: The Use of Internal Evaluations of Law Enforcement Agencies in Civil Lawsuits, 41 FED. B. NEWS & J. 364, 368 (1994) (concluding that the issue of the admissibility into evidence of a commission's findings "is a question which must soon be definitely resolved").
372. See, e.g., MOLLEN COMMISSION REPORT, supra note 210, at 53 (finding that New York Police Department officers did not fear that other officers would testify against them due to the "Blue Wall of Silence"). Whether or not a plaintiff will be allowed to introduce such reports into evidence is another matter. In recent years, courts have disagreed regarding the admissibility into evidence of such reports. Compare White-Ruiz v. City of New York, 983 F. Supp. 365, 380-382 (S.D.N.Y. 1997) (allowing plaintiff to introduce MOLLEN COMMISSION REPORT into evidence and frequently referencing the Commission's findings in the opinion), Ariza v. City of New York, No. CV-93-5287, 1996 WL 118535, at *5-6 (E.D.N.Y. March 7, 1996) (admitting MOLLEN COMMISSION REPORT into evidence), and Montiel v. City of Los Angeles, 2 F.3d 335, 341-42 (9th Cir. 1993) (finding lower court should have presumed CHRISTOPHER COMMISSION REPORT trustworthy and put burden of establishing untrustworthiness on city), with Williams v. City of New York, CV-94-6234, at 78-85 (S.D.N.Y. Sept. 6, 1996) (barring plaintiff's admission of MOLLEN COMMISSION REPORT findings on the "code of silence" for purposes of questioning the credibility of police officer witnesses), and Bryant v. New York City, CV-92-0960, slip op. at 9-10 (E.D.N.Y. Oct. 27, 1994) (excluding MOLLEN COMMISSION REPORT in case alleging excessive force by a police officer). Though the admissibility of commission reports is beyond the scope of this Article, Chin & Wells, supra note 241, at 284-85, discuss the practical concerns of using such reports to demonstrate the existence and effect of the code of silence as evidence against individual police officers. See also Carol Ann Humiston, Paved With Good Intentions: The Use of Internal Evaluations of Law Enforcement Agencies in Civil Lawsuits, 41 FED. B. NEWS & J. 364, 368 (1994) (concluding that the issue of the admissibility into evidence of a commission's findings "is a question which must soon be definitely resolved").
373. See CHRISTOPHER COMMISSION REPORT, supra note 211, at 168.
374. Id.
375. See id. at 169 (explaining that officer's explanation for lying to investigators was the "non-written rule that you do not roll over, tell on your partner, your companion").
376. See id. at ix-xii, 165-70 (stating that frequently "bad cops" were not held accountable for their actions).
377. See id. at 169. The Report concluded that high-ranking officials knew or should have known of the "officer code of silence" prior to the release of the report based largely on the testimony of Department officials, including Los Angeles Police Commissioner Darryl Gates, who testified that the existence of a police code of silence discouraged officers from reporting instances of misconduct by fellow officers, and created an environment in which officers who defied the expectation of silence suffered recrimination. See id.
378. Id. at 168.
379. See MOLLEN COMMISSION REPORT, supra note 210, at vii-viii (finding "police committed perjury in the course of their work, 'as a means to conceal other underlying acts of corruption'").
380. See id. at 51 (noting that lack of fear on the part of dishonest officers, documented over 20 years ago during the Knapp Commission, still persisted in the New York Police Department in 1994, and that officers of every rank verified the existence of the code of silence).
381. Id.
382. Id. at 53.
383. See id. at 51 (finding that officers of every rank verified the existence of a code of silence in the department).
384. See id. at 58 (warning that department's failure to protect officers who report corruption "communicates a powerful message: that the [d]epartment is not really interested in enlisting the police in the fight against corruption). During testimony before the Mollen Commission, the Police Commissioner at the time, Raymond Kelly, along with other high-ranking Department officials, conceded that the so-called code of silence endured within the police department. See id. at 51-53. The Commission described the problem as follows: The Department also has done little to attempt to penetrate the wall of silence, although it is one of the major barriers to identifying and uncovering corruption. The Department never aggressively solicited information from its members. It did not reward courageous officers who came forward with valuable information; or penalize those who failed to report evidence of widespread or serious corruption about which they had personal knowledge. And it did nothing to try to educate its members as to why reporting and not tolerating corruption is essential to the Department and to them. Indeed, we found that the first time the Department's top managers made an affirmative effort to solicit any information on corruption from its members was when this Commission attempted to do so. Id. at 107.
385. See HUMAN RIGHTS WATCH REPORT, supra note 12, at 139-40 (describing the excessive force used during Boston's Charles Stuart case as one impetus for appointment of the Commission). In the 1989 Stuart murder case, Charles Stuart, a white man, allegedly murdered his pregnant wife and then diverted suspicion from himself by claiming that the assailant had been a black man. Stuart's description of a black assailant led to round-ups and harassment of African-American men, which produced outrage in the African-American community, especially once it seemed clear that Stuart was, in fact, the killer. See Kevin Cullen & Mike Barnicle, Probers Suspect Stuart Killed Wife to Collect Insurance, Start Restaurant, BOSTON GLOBE, Jan. 10, 1990, at 1 (reporting that recovered murder weapon matched description of gun missing from store where Stuart was a manager); Kevin Cullen et al., Stuart Dies in Jump Off Tobin Bridge After Police Are Told He Killed His Wife, BOSTON GLOBE, Jan. 5. 1990, at 1 (stating that Stuart's brother admitted to helping Stuart dispose of the .38 caliber revolver used in the shooting).
386. See HUMAN RIGHTS WATCH REPORT, supra note 12, at 139-40 (describing the excessive force used during Boston's Charles Stuart case as one impetus for appointment of the Commission). In the 1989 Stuart murder case, Charles Stuart, a white man, allegedly murdered his pregnant wife and then diverted suspicion from himself by claiming that the assailant had been a black man. Stuart's description of a black assailant led to round-ups and harassment of African-American men, which produced outrage in the African-American community, especially once it seemed clear that Stuart was, in fact, the killer. See Kevin Cullen & Mike Barnicle, Probers Suspect Stuart Killed Wife to Collect Insurance, Start Restaurant, BOSTON GLOBE, Jan. 10, 1990, at 1 (reporting that recovered murder weapon matched description of gun missing from store where Stuart was a manager); Kevin Cullen et al., Stuart Dies in Jump Off Tobin Bridge After Police Are Told He Killed His Wife, BOSTON GLOBE, Jan. 5. 1990, at 1 (stating that Stuart's brother admitted to helping Stuart dispose of the .38 caliber revolver used in the shooting).
387. See HUMAN RIGHTS WATCH REPORT, supra note 12, at 139-40 (describing the excessive force used during Boston's Charles Stuart case as one impetus for appointment of the Commission). In the 1989 Stuart murder case, Charles Stuart, a white man, allegedly murdered his pregnant wife and then diverted suspicion from himself by claiming that the assailant had been a black man. Stuart's description of a black assailant led to round-ups and harassment of African-American men, which produced outrage in the African-American community, especially once it seemed clear that Stuart was, in fact, the killer. See Kevin Cullen & Mike Barnicle, Probers Suspect Stuart Killed Wife to Collect Insurance, Start Restaurant, BOSTON GLOBE, Jan. 10, 1990, at 1 (reporting that recovered murder weapon matched description of gun missing from store where Stuart was a manager); Kevin Cullen et al., Stuart Dies in Jump Off Tobin Bridge After Police Are Told He Killed His Wife, BOSTON GLOBE, Jan. 5. 1990, at 1 (stating that Stuart's brother admitted to helping Stuart dispose of the .38 caliber revolver used in the shooting).
388. See ST. CLAIR REPORT, supra note 258.
389. Id.
390. See id.
391. Id. at 59.
392. HUMAN RIGHTS WATCH REPORT, supra note 12, at 71. The report also noted that the code of silence had a particularly strong effect in police departments like New Orleans and Philadelphia, "where police abuse and corruption have been visibly rampant." Id.
393. See id. at 72 (citing the reluctance of ranking officers to discipline fellow officers, and the imposition of arbitrary statutes of limitation following indecisive action by the department, as two explanations for the infrequency of officer punishment).
394. Id. at 71. Amnesty International's study of the New York City Police Department also found that in many cases "international standards as well as United States law and police guidelines prohibiting torture or other cruel, inhuman or degrading treatment appear[ed] to have been violated with impunity" and that prosecutions for excessive force were very low, due, in part, to the code of silence. AMNESTY INT'L REPORT, supra note 212, at 2: cf. Seth Mydans, Era in Los Angeles Ends as Chief Quits. N. Y. TIMES, June 27, 1992, at 6L (reporting that one of new Police Chief Willie I. Williams' responses to the release of the report criticizing the Los Angeles Police Department was that "he hoped to start a community-based approach to policing [that would end] what he called the 'paramilitary mentality' of the department under [newly-resigned] Chief [Daryl F.] Gates").
395. Id. at 71. Amnesty International's study of the New York City Police Department also found that in many cases "international standards as well as United States law and police guidelines prohibiting torture or other cruel, inhuman or degrading treatment appear[ed] to have been violated with impunity" and that prosecutions for excessive force were very low, due, in part, to the code of silence. AMNESTY INT'L REPORT, supra note 212, at 2: cf. Seth Mydans, Era in Los Angeles Ends as Chief Quits. N. Y. TIMES, June 27, 1992, at 6L (reporting that one of new Police Chief Willie I. Williams' responses to the release of the report criticizing the Los Angeles Police Department was that "he hoped to start a community-based approach to policing [that would end] what he called the 'paramilitary mentality' of the department under [newly-resigned] Chief [Daryl F.] Gates").
396. Tim Weiner, Ex-Officer Who Broke the Code of Silence Given Probation, PHILA. INQUIRER, Feb. 13, 1985. at A1.
397. See id. (reporting that the judge stated that though officer "had committed 'terrible offenses under the law' . . . he was the first indicted officer to cooperate fully with the investigation, and that the government's plea for 'extraordinary leniency' was persuasive").
398. 740 F.2d 505, 505 (7th Cir. 1984), abrogated by United States v. Pino-Perez, 870 F.2d 1230 (7th Cir. 1989).
399. See id. at 521, quoted in Myatt v. City of Chicago, No. 90-C-03991, 1991 WL 94036, at *6 (N.D. Ill. May 23, 1991) (finding plaintiff could cite Judge Grady's comments to support allegations of a code of silence); cf. CHRISTOPHER COMMISSION REPORT, supra note 211, at 170 (citing a judge's statement during prosecution of three Los Angeles Police Department officers that "many of the [police officer witnesses were] clearly lying" and that he could not "think of a case in [his] life . . . where [he had] seen more false testimony").
400. See HUMAN RIGHTS WATCH REPORT, supra note 12, at 69 (finding that officers will give false testimony in court, or "testilie," in order to cover up police misconduct).
401. See Beck v. City of Pittsburgh, 89 F.3d 966, 973 (3d Cir. 1996) (allowing plaintiff to introduce civilian complaints, similar in nature to his own, which had been "transmitted through the police department chain of command to the Chief of Police" who "[t]hus . . . had knowledge of the complaints," to establish that the Chief "knew, or should have known" of the defendant officer's customary violence when making arrests); Kopf v. Wing, 942 F.2d 265, 269 (4th Cir. 1991) (reversing grant of summary judgment because appellant had cited numerous instances of excessive police force such that "a fair-minded jury could find that the county has a custom or practice of letting incidents of excessive force go unpunished"); Bielevicz v. Dubinon. 915 F.2d 845, 852-53 (3d Cir. 1990) (finding plaintiff's introduction of a former station commander's testimony, that it was customary police conduct to charge someone with public intoxication "for reasons other than intoxication," and that during his command he allowed this custom to continue, was sufficient evidence upon which the jury could have concluded that a long-standing custom existed); Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir. 1984) (holding that the trial judge erred in refusing to allow plaintiffs to use evidence of similar instances of excessive police force to establish that excessive force was a widespread custom).
402. See White-Ruiz v. City of New York, 983 F. Supp. 365, 378 (S.D.N.Y. 1997) ("From the outset of plaintiff's tenure at the precinct, she was made to feel like an outcast, shunned by many of her fellow officers and plainly not supported by her precinct commander. In microcosm, this series of events reproduces the pattern identified six years later by the Mollen Commission."); see also Beck, 89 F.3d at 973 (holding that the district court erred in granting defendants' motion for summary judgment, as plaintiff had presented a series of written complaints describing defendant officer's use of excessive force on prior occasions, along with the testimony of witnesses to some of the incidents, from which a reasonable jury could infer that a custom existed within the department); Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989) (finding that plaintiff had proven a municipal "custom" existed based on current police sergeant's testimony that the department "had a longstanding, widespread" practice of breaking down doors without a warrant and that he, himself, had been present at "20 or 30" or "50, 60" door breakdowns during his 24 years as a police officer).
403. As Professor Meltzer has noted in an analogous context, "the deterrent remedy is a distinctive creature, inspired (and perhaps required) by the Constitution, and, more specifically, by an interpretation that seeks to adapt the Constitution's demands to the distinctive problems of preventing conduct by public officials in an era of large government institutions." In other words, the enforced constitutional behavior is a major goal of the federal civil rights laws. Meltzer, supra note 260, at 278.
404. See Andrea A. Curcio, Painful Publicity - An Alternative Punitive Damage Sanction, 45 DEPAUL L. REV. 341, 364-65 (1996) (arguing that publication of monetary punitive damage awards will further punitive goals); Lant B. Davis et al., Suing the Police in Federal Court, 88 YALE L.J. 781, 809 n.154 (1979) (stating that police misconduct suits may also have a deterrent effect on an officer due to potential "emotional stress, adverse publicity, and detrimental effects on the officer's career"); Sheldon H. Nahmod, Section 1983 and the "Background" of Tort Liability, 50 IND. L.J. 5, 10-11 (1974) (finding remedial goals of § 1983 different from the goals of tort law, as § 1983 goals include deterrence along with compensation).
405. See Andrea A. Curcio, Painful Publicity - An Alternative Punitive Damage Sanction, 45 DEPAUL L. REV. 341, 364-65 (1996) (arguing that publication of monetary punitive damage awards will further punitive goals); Lant B. Davis et al., Suing the Police in Federal Court, 88 YALE L.J. 781, 809 n.154 (1979) (stating that police misconduct suits may also have a deterrent effect on an officer due to potential "emotional stress, adverse publicity, and detrimental effects on the officer's career"); Sheldon H. Nahmod, Section 1983 and the "Background" of Tort Liability, 50 IND. L.J. 5, 10-11 (1974) (finding remedial goals of § 1983 different from the goals of tort law, as § 1983 goals include deterrence along with compensation).
406. See Andrea A. Curcio, Painful Publicity - An Alternative Punitive Damage Sanction, 45 DEPAUL L. REV. 341, 364-65 (1996) (arguing that publication of monetary punitive damage awards will further punitive goals); Lant B. Davis et al., Suing the Police in Federal Court, 88 YALE L.J. 781, 809 n.154 (1979) (stating that police misconduct suits may also have a deterrent effect on an officer due to potential "emotional stress, adverse publicity, and detrimental effects on the officer's career"); Sheldon H. Nahmod, Section 1983 and the "Background" of Tort Liability, 50 IND. L.J. 5, 10-11 (1974) (finding remedial goals of § 1983 different from the goals of tort law, as § 1983 goals include deterrence along with compensation).
407. The greatest obstacle facing § 1983 litigants who seek injunctive relief is the concept of "equitable standing," articulated most recently by the Supreme Court in City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, the Supreme Court found that respondent, a black motorist who had been injured by defendant officer's use of a chokehold, lacked standing to seek injunctive relief because he failed to "make a reasonable showing that he [would] again be subjected to the alleged illegality." Id. at 109. In order to establish an actual threat of future injury, respondent "would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, or (2) that the City ordered or authorized police officers to act in such manner." Id. at 106. Thus, after Lyons, the equitable standing test requires a plaintiff to show that at the time the request for equitable relief is considered, he is virtually certain to fall victim to that illegal practice in the future. Clearly, in most circumstances, this will be an impossible showing. For criticism of the Lyons test, see Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on The Jurisprudence of Lyons, 59 N.Y.U.L. REV. 1, 7 (1984) (stating that the Lyons decision undermined the federal government's ability to effectively redress injury to federally protected rights); LAURENCE TRIBE, CONSTITUTIONAL CHOICES 99-117 (1985); Linda E. Fisher, Caging Lyons: The Availability of Injunctive Relief in Section 1983 Actions, 18 LOY. U. CHI. L.J. 1085, 1118 (1987) (concluding that "Lyons unnecessarily limits the remedies available to those subjected to unconstitutional conduct"). For cases involving denied pleas for equitable intervention preceding Lyons, see Rizzo v. Goode, 423 U.S. 362, 372 (1976) (finding plaintiff's claim of future, potential injury was too "attenuated" to warrant injunctive relief); O'Shea v. Littleton, 414 U.S. 488, 494 (1974) (ruling that "past exposure to illegal conduct did not in itself show a present case or controversy [warranting] injunctive relief").
408. The greatest obstacle facing § 1983 litigants who seek injunctive relief is the concept of "equitable standing," articulated most recently by the Supreme Court in City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, the Supreme Court found that respondent, a black motorist who had been injured by defendant officer's use of a chokehold, lacked standing to seek injunctive relief because he failed to "make a reasonable showing that he [would] again be subjected to the alleged illegality." Id. at 109. In order to establish an actual threat of future injury, respondent "would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, or (2) that the City ordered or authorized police officers to act in such manner." Id. at 106. Thus, after Lyons, the equitable standing test requires a plaintiff to show that at the time the request for equitable relief is considered, he is virtually certain to fall victim to that illegal practice in the future. Clearly, in most circumstances, this will be an impossible showing. For criticism of the Lyons test, see Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on The Jurisprudence of Lyons, 59 N.Y.U.L. REV. 1, 7 (1984) (stating that the Lyons decision undermined the federal government's ability to effectively redress injury to federally protected rights); LAURENCE TRIBE, CONSTITUTIONAL CHOICES 99-117 (1985); Linda E. Fisher, Caging Lyons: The Availability of Injunctive Relief in Section 1983 Actions, 18 LOY. U. CHI. L.J. 1085, 1118 (1987) (concluding that "Lyons unnecessarily limits the remedies available to those subjected to unconstitutional conduct"). For cases involving denied pleas for equitable intervention preceding Lyons, see Rizzo v. Goode, 423 U.S. 362, 372 (1976) (finding plaintiff's claim of future, potential injury was too "attenuated" to warrant injunctive relief); O'Shea v. Littleton, 414 U.S. 488, 494 (1974) (ruling that "past exposure to illegal conduct did not in itself show a present case or controversy [warranting] injunctive relief").
409. The greatest obstacle facing § 1983 litigants who seek injunctive relief is the concept of "equitable standing," articulated most recently by the Supreme Court in City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, the Supreme Court found that respondent, a black motorist who had been injured by defendant officer's use of a chokehold, lacked standing to seek injunctive relief because he failed to "make a reasonable showing that he [would] again be subjected to the alleged illegality." Id. at 109. In order to establish an actual threat of future injury, respondent "would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, or (2) that the City ordered or authorized police officers to act in such manner." Id. at 106. Thus, after Lyons, the equitable standing test requires a plaintiff to show that at the time the request for equitable relief is considered, he is virtually certain to fall victim to that illegal practice in the future. Clearly, in most circumstances, this will be an impossible showing. For criticism of the Lyons test, see Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on The Jurisprudence of Lyons, 59 N.Y.U.L. REV. 1, 7 (1984) (stating that the Lyons decision undermined the federal government's ability to effectively redress injury to federally protected rights); LAURENCE TRIBE, CONSTITUTIONAL CHOICES 99-117 (1985); Linda E. Fisher, Caging Lyons: The Availability of Injunctive Relief in Section 1983 Actions, 18 LOY. U. CHI. L.J. 1085, 1118 (1987) (concluding that "Lyons unnecessarily limits the remedies available to those subjected to unconstitutional conduct"). For cases involving denied pleas for equitable intervention preceding Lyons, see Rizzo v. Goode, 423 U.S. 362, 372 (1976) (finding plaintiff's claim of future, potential injury was too "attenuated" to warrant injunctive relief); O'Shea v. Littleton, 414 U.S. 488, 494 (1974) (ruling that "past exposure to illegal conduct did not in itself show a present case or controversy [warranting] injunctive relief").
410. No. 93-CIV-7233, 1996 WL 603983, *1 (S.D.N.Y. Oct. 22, 1996).
411. Id. at *8.
412. Id.
413. Id.
414. See English, supra note 230, at A29 (detailing the retribution Officer White-Ruiz faced from other officers after "ratting" on her partner's corrupt activities); NYPD Blues, Eye to Eye, supra note 240, and accompanying text (interview with White-Ruiz, Commissioner Bratton and others regarding the "blue wall of silence").
415. See NYPD Blues, Eye to Eye, supra note 240.
416. Id.
417. See Owen v. City of Independence, Mo., 445 U.S. 622 (1980). The Owen Court stated that [Section] 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well. (citations omitted) The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor
418. See. e.g., Meltzer, supra note 260, at 54-58; Davis et al., supra note 322, at 809 n.154 (noting that the verdict can deter the particular defendant-officer due to adverse publicity and the effect on the officer's career).
419. Based on this blame-shifting, I am doubtful that the doctrine of respondeat superior liability would be effective to induce institutional behavior modification. The imposition of strict municipal liability by operation of a respondeat regime - or for that matter, pursuant to an indemnification statute - does nothing to locate guilt within the internal culture of the institution, and, indeed, invites the institution to deflect responsibility and eschew corrective reform measures.
420. For example, the New York Times recently reported on "[t]he hallowed police rite known as the 'perp walk,'" a term that refers to the ritual of "walking" a recently arrested "perpetrator" in front of reporters and photographers in order to "showcas[e] the police department's crime-fighting skills, and satiat[e] the media's demand for a glimpse of the suspect." Benjamin Weiser, Judge Condemns Policy of Parading Suspects Past Cameras, N.Y. TIMES, Feb. 26, 1999, at B1. The media has recently focused on the "perp walk" (an age-old custom dating back to Theodore Roosevelt's tenure as New York City Police Commissioner) after a burglary suspect subjected to the "perp walk" filed a § 1983 suit claiming that this New York City Police Department custom violated his constitutional rights. See id. (noting that Judge Allen G. Schwartz announced that the suspect could proceed with his lawsuit against the City). See also Blaine Harden, Parading of Suspects is Evolving Tradition, N.Y. TIMES, Feb. 27, 1999, at B1 (reporting that police had temporarily halted "perp walk" tradition pending appeal of judge's ruling that "perp walk" of plaintiff was an unconstitutional violation of his right to privacy).
421. For example, the New York Times recently reported on "[t]he hallowed police rite known as the 'perp walk,'" a term that refers to the ritual of "walking" a recently arrested "perpetrator" in front of reporters and photographers in order to "showcas[e] the police department's crime-fighting skills, and satiat[e] the media's demand for a glimpse of the suspect." Benjamin Weiser, Judge Condemns Policy of Parading Suspects Past Cameras, N.Y. TIMES, Feb. 26, 1999, at B1. The media has recently focused on the "perp walk" (an age-old custom dating back to Theodore Roosevelt's tenure as New York City Police Commissioner) after a burglary suspect subjected to the "perp walk" filed a § 1983 suit claiming that this New York City Police Department custom violated his constitutional rights. See id. (noting that Judge Allen G. Schwartz announced that the suspect could proceed with his lawsuit against the City). See also Blaine Harden, Parading of Suspects is Evolving Tradition, N.Y. TIMES, Feb. 27, 1999, at B1 (reporting that police had temporarily halted "perp walk" tradition pending appeal of judge's ruling that "perp walk" of plaintiff was an unconstitutional violation of his right to privacy).
422. See Nicholas Wishart, Statistics Support Racial Profiling on Turnpike Lawyers Say, PHILA. INQUIRER, July 12, 1995, at S01 (citing attorneys' data findings that between January, 1988 and April, 1991, African-American and Latino motorists in New Jersey were l"500 percent more likely to get stopped than white motorists"). A civil rights advocacy group recently filed a § 1983 suit against the New York City Police Department alleging that the elite Street Crimes Unit had engaged in unconstitutional stops and searches on the basis of race. See Benjamin Weiser, Lawsuit Seeks to Curb Street Crimes Unit, Alleging Racially Biased Searches, N.Y. TIMES, Mar. 9, 1999, at B3. But cf. Whren v. United States, 517 U.S. 806, 817-18 (1996) (finding that probable cause justified stop and searches of two black defendants). Biased or selective prosecutions may also, under certain circumstances, fall within the § 1983 "custom" model of municipal liability. See, e.g., Butler v. Cooper, 554 F.2d 645, 648-49 (4th Cir. 1977) (sustaining summary judgment against pro se defendant, even assuming the truth of defendant's contention that between 84% and 98% of all persons arrested for violations of specific liquor laws in Portsmouth, Virginia were African-American).
423. See Nicholas Wishart, Statistics Support Racial Profiling on Turnpike Lawyers Say, PHILA. INQUIRER, July 12, 1995, at S01 (citing attorneys' data findings that between January, 1988 and April, 1991, African-American and Latino motorists in New Jersey were l"500 percent more likely to get stopped than white motorists"). A civil rights advocacy group recently filed a § 1983 suit against the New York City Police Department alleging that the elite Street Crimes Unit had engaged in unconstitutional stops and searches on the basis of race. See Benjamin Weiser, Lawsuit Seeks to Curb Street Crimes Unit, Alleging Racially Biased Searches, N.Y. TIMES, Mar. 9, 1999, at B3. But cf. Whren v. United States, 517 U.S. 806, 817-18 (1996) (finding that probable cause justified stop and searches of two black defendants). Biased or selective prosecutions may also, under certain circumstances, fall within the § 1983 "custom" model of municipal liability. See, e.g., Butler v. Cooper, 554 F.2d 645, 648-49 (4th Cir. 1977) (sustaining summary judgment against pro se defendant, even assuming the truth of defendant's contention that between 84% and 98% of all persons arrested for violations of specific liquor laws in Portsmouth, Virginia were African-American).