Defense of Monell Claims
Hilary S. Taylor II
Weston Hurd
1301 E 9th St Ste 1900
Cleveland, OH 44114-1862
(216) 241-6602
[email protected]
Hilary S. Taylor II is a partner with Weston Hurd LLP in Cleveland, Ohio. An
experienced civil defense attorney, he focuses on municipal liability, medical
malpractice and civil rights matters. Mr. Taylor is an adjunct professor at Case
Western Reserve University Law School, teaching lawyering process and trial tactics.
He is a life member of the Sixth Circuit Judicial Conference and a member of the
prestigious Life Member Committee.
Defense of Monell Claims
Table of Contents
I.Overview......................................................................................................................................................145
II. Limits on Discovery....................................................................................................................................145
A. Keys to Identifying Overly Broad Discovery Request.......................................................................145
B. Other Limiting Parameters.................................................................................................................145
C. Other Arguments on Limits of Discovery Monell Cases...................................................................146
III. Bifurcation of Monell Claims or Issues......................................................................................................146
A. Separate Counsel for Each of the Entities..........................................................................................146
IV. Themes and Labels .....................................................................................................................................146
A. Elements of a Winning Theme or Label............................................................................................147
B.Don’ts....................................................................................................................................................148
V. Claims Against Municipalities for Cutting Back Public Services and Training
Due to Budget Constraints.........................................................................................................................148
VI. Position the Case for Summary Judgment................................................................................................148
A. After You Have Gone Through the OLEO Process You Move to Decree..........................................149
VII. Dealing with Claims at Trial.......................................................................................................................149
VIII. Dealing with Claims and Avoiding Consent Decrees and Handling Cases
Involving the Justice Department .............................................................................................................152
A. Title 42 14141 Actions.........................................................................................................................152
B.Recommendations...............................................................................................................................153
C. Lightening Rod Issues.........................................................................................................................155
IX. Dealing with the Department of Justice....................................................................................................156
Endnotes....................................................................................................................................................................156
Attachment................................................................................................................................................................157
Defense of Monell Claims ❖ Taylor ❖ 143
Defense of Monell Claims
I.Overview
Impact of Monell on the defense of claims against political subdivisions. In overturning Monroe v.
Pape (365 U.S. 167 (1961)), this case brought about the ability to join local governing bodies (political subdivisions) as defendants in Section 1983 actions.
II. Limits on Discovery
Attacks on discovery and seeking to limit plaintiffs’ discovery can be made on the basis of that discovery’s being:
■ Overbroad (see Wright v. City of Chicago, 2010 U.S. Dist. LEXIS 123920);
■Irrelevant;
■ Unrelated to The Issues; and
■ Unrelated in Terms of Time.
A. Keys to Identifying Overly Broad Discovery Request
■ Interrogatories that exceed 25 including discrete subparts (see Federal Rule of Civil Procedure
33(a)(1)).
■ Document requests that seek “all records” relating to other suits filed against the city.
■ “All records” related to acquisitions of “false arrest, false imprisonment, police brutality, malicious prosecution, assault and battery, improper actions”.
■ Document requests that seek records for time periods not applicable to the matter at hand.
■ Records for all civilian complaints against the city.
■ Requests that seek to compare the disciplinary rates of the city police officers to other cities.
■The Monell discovery must be limited to policies and practices that are the “moving force”
behind the specific constitutional violations allegedly inflicted on plaintiff. See e.g. Thomas v.
Cook County Sheriff ’s Department 604 F.3d 293, 306 (7th Cir. 2010).
■ In some instances courts have favored interrogatories rather than depositions and large document demands (See Honorable Jack B. Weinstein in Mark Maragh v. City of New York 2012 U.S.
Dist. LEXIS 68523, Case No. 11-cv-1748).
B. Other Limiting Parameters
■Years/timeframe.
■ Type of Complaint. In Deluccia v. City of Paterson, 2012 U.S. Dist. LEXIS 35855, the district court
judge upheld a magistrate decision to limit plaintiff ’s review of internal affairs’ files relating
to police officers and supervisory officials other than the officers alleged to have been directly
involved in the conduct set forth in the excessive force and false arrest claim. The Magistrate
Judge ordered defendants to release a “privilege log” containing:
1. A description of facts or circumstances surrounding each such complaint;
Defense of Monell Claims ❖ Taylor ❖ 145
2. Any injuries alleged to have been suffered by the complainant and
3. The names of the complainants. Further, the order limited discovery on prior notice as to
notices of claims, lawsuits, and notices of disciplinary action for a period of three years, as
opposed to the five years requested by plaintiff. This magistrate’s decision was upheld by
the court.
C. Other Arguments on Limits of Discovery Monell Cases
■ Persons involved.
■ Matters involved.
■ Issues involved.
III. Bifurcation of Monell Claims or Issues
Courts have decided, at times, to bifurcate the Monell claim. This bifurcation may take several forms:
■ Holding off the Monell claim until the claims against the individual defendants can be tried. This
is the court’s discretion under Federal Rule of Civil Procedure 42(b) BECAUSE: “Litigation of the
first issue might eliminate the need to litigate the second issue.” In Bonilla v. Jaronczyk 354 Fed.
Appx. 579 (2010), other courts have held that the findings on bifurcation in favor of the individual officers did not moot the claims against a municipality, especially where the plaintiff alleged
that the city had committed separate and distinct constitutional violations from those committed by the individual officers. Amato v. City of Saratoga Springs, 170 F.3d 311 2d Cir. 1999 Ftnt 9.
■The Amato court further held that bifurcation of Monell proceedings is appropriate in Section
1983 actions which are particularly well suited for bifurcation because the evidence needed to
show a “policy and custom” on behalf of the municipal entity is often unnecessary in the suit
against the individual official. Furthermore, if a plaintiff fails to show that a constitutional violation occurred in the suit against the individual official, the corresponding cause of action against
a municipality will be mooted since a claim of negligent training is only actionable where some
constitutional violation actually occurred. Id. at Headnote 8.
A. Separate Counsel for Each of the Entities
■ In the post Monell and Harlow era, one attorney or firm was usually assigned to one of these
cases.1
■ However it is a rare Section 1983 case that would allow for one attorney or firm to handle the
whole case.
IV. Themes and Labels
The theme should occur to you as a defense lawyer the first time you hear of the case and its elements
and facts. We live in a society that abounds with jingoes, trite sayings, bromides, mottos, marketing handles
and snares, and all matter and manner of saying meant to persuade. Meant to evoke an emotional appeal in
the listener. Meant to motivate the listener to action:
■ “Millions for defense, but not one cent for tribute”
■ “Fifty-four – forty or fight”
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■ Remember “The Maine”
■ Remember “Pearl Harbor”
■ “Live Free or Die”
■ “Don’t fire until you see the whites of their eyes”
Trial themes are the same. In Monell cases, it’s hard to obtain a personalized response to a city, township, village or State. It is possible to do this, though keeping in mind that the theme should go to the central
issue in the case.
A. Elements of a Winning Theme or Label
■Emotional.
■ Is the essence of the case.
■ Projects an image.
■ You cannot have more than four themes at the most.
■ Begins at jury selection and ends in final argument.
■ Creates a mental image.
■ Summarizes what happened.
■ Must be consistent with the audience and their beliefs, or common experiences, or attitudes or
motives, or life experiences. For example, a military veteran will most likely be responding to
such themes as duty, honor, country, the unit, the mission, and “my” comrades.
■ A teacher might be responsive to discipline, learning, and inspiring others to be their best.
■ An athlete would respond to team work, the value of practice, the meaning of victory and defeat,
the value of hard work and training.
The theme must relate to the three major issues and a trial:
■ Element’s issues.
■ Inference issues.
■ Creditability issues.
■ Below are the same event, but containing a label consistent with the theme one wants to present.
“Died-Executed or Slaughtered” – “Injured-Broken or Beaten or Abused” – “My Client or Mr.
Wilson” – “lacerations-gash” – “accident as opposed to crash”
You can guess which ones the plaintiffs will use as opposed to defendants.
Themes in Monell type cases:
1. The people of Podunk.
2. The elected officials.
3. The borough of . . . .
4. The village of . . . .
5. The people of the village of. . . .
6. The people of the township of. . . .
7. The thin blue line. This is a case about a city that did not care about its citizens.
8. This is a case about a person who broke all the rules, but still wants to blame everyone else.
Defense of Monell Claims ❖ Taylor ❖ 147
9. This is about a person who takes pleasure with hurting others.
10. This is about a person who refuses to take responsibility for his actions.
11. This is about a person who refuses to follow the laws and rules of our society.
The theme should eventually be incorporated into a story. “Into the night the case began. The driver
now claims he’s mentally disabled, but on that night he drove through a residential area at the unbelievable –
incredible – uncaring speed of 90 mph. Of course, a police pursuit ensued. He then turned this potential death
machine onto a divided highway. He chose to go west. He chose west on the eastbound lane. Was he seeking a
family returning home from a movie? Was he seeking a father returning to his family after a hard day at work?
Was he seeking a new teenage driver coming home from school perhaps driving on the highway for the first
time in her young life? Was he seeking a car full of nuns? Fortunately, he crashes. He suffered injuries in the
crash. Now he wants us to believe those officers seeking to protect society from this crazed, drug filled, uncaring person caused him injury. Should have let him continue this . . . madness.
This whole case is a case about a man hiding behind his race. Using it like a shield. His whole case
says I lied, I cheated, I stole and you can’t touch me because I’m ___________!
B.Don’ts
■ Don’t use any language that depersonalizes the city, township, village, etc.
■ The city of, the borough of, the township of, must be expressed in terms of its people.
■ Now this is a matter of preference, but I always refer to plaintiff as “plaintiff ”.
■ He, she, them, they, for the other side.
■ Now claims against municipalities, for cutting back public services and training due to budget
constraints.
V. Claims Against Municipalities for Cutting Back Public Services and
Training Due to Budget Constraints
VI. Position the Case for Summary Judgment
Really a personalized view. I use two mnemonics when I think of the thought process involved in
moving a case to summary judgment.
■ OLEO; and
■Decree.
OLEO stands for:
■Observe
■Learn
■Evaluate
■Orient
Observe:
■ Understand the clients and their motives;
■ Discern what happen; and
■ Try to find the pitfalls and determine the opposite viewpoint.
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Learn:
■ All about the opponent;
■ The strengths and weaknesses;
■ All about the judge and that person’s past decision; and
■ All about yourself and what type of help you need to accomplish the task.
Evaluate:
■ What you have observed and learned; and
■ How changes in society affect the course of the litigation and the outcome.
Orient:
■ Yourself to the situation;
■ Yourself to the mission; and
■ Your assistant to all of the above.
A. After You Have Gone Through the OLEO Process You Move to Decree
DECIDE
■ Evidence you need.
EVALUATE
■ Evaluate the evidence you have gathered.
COLLECT
■ After having evaluated the data, determine if you must collect any additional data.
REMEMBER
■ All lessons you have learned in prior situations.
■ Your successes and failures on this issue.
■ Your experiences with opposing counsel and the court.
EVALUATE
■ Continuously measure all outcomes and modify as appropriate.
EMBARK
■ Embark on the path and start using all you’ve learned.
VII. Dealing with Claims at Trial
Here their case has survived summary judgment. Then there is a need to embark upon the process of
dealing with the claims. This should follow the trial process:
■
Opening Statement. In a Monell case, especially if it is bifurcated, you are separated from some
of the emotional issues found in the case involving the officers. The mechanics of what occurred.
The personalities involved. Dealing with public attitudes expressed through jurors. No case like
this can be presented without some form of visual presentation. I still think that charts and
graphs are important in presenting a Monell case.
■
Jury Selection. Determine the profile of the person you are looking for as the ideal juror. I like
middle aged people. People in sales and marketing are another preference. Military service for
Defense of Monell Claims ❖ Taylor ❖ 149
me is to die for. That is because, as you know, a police department is a para-military organization. Those with military background are familiar with chain of command, command and control, the importance of orders, the significance of a uniform, adherence to authority figures, the
importance of discipline. Let’s face it, we want management people on the jury. I once picked a
jury in Columbus, Ohio where it seemed that everyone on the jury had a Master’s Degree from
Ohio State University. It was a public employment case. The body language favorable to our side
was palpable. The smiles and favorable vibes were cheery. Much different from the urban juries I
face in Cleveland!
■
Batson challenges to jury strikes. In my jurisdiction, the judges must discuss my tenancy to
strike certain jurors in certain cases. In Batson challenges you have to have a legitimate nondiscriminatory reason for your strike. Thus, I prefer a blind strike if I can convince the judge to
do that, and certainly doing the strikes in chambers or its sidebar, rather than in open court. In
Ohio, it runs the gamut in state and federal courts.
■
Defense of the Plaintiff ’s Case. In a non-bifurcated trial, it will be hard to distinguish what evidence is being presented on what claim. It is easier to direct the jury to issues such as “deliberate indifference” and the effect and impact of policies, procedures, customs and habits of the
employees.
■
The Plaintiff ’s Case-In-Chief. In Ohio, we allow calling the defendant’s witnesses in plaintiff ’s
case-in-chief. This is troublesome because many of the federal judges have adopted this rule. You
don’t get a chance to examine the witnesses when they are presented by the plaintiff and the witnesses are your employees and officials. It is very troubling to sit there for a couple of days and
not be able to get any of your evidence out. You have to tell the jury about that in voir dire if you
can get away with it and, certainly, in your opening statement.
■
The Defendant’s Case-In-Chief. It has to be quickly presented. I prefer short and hopefully crisp
examinations. Again, the use of visuals and sharing what the witness is reviewing with the jury
is essential. It is easier now that the courtrooms come with TV monitors at every seated position.
I used to make those large charts and present important documents using those, but now it is
much easier.
■
Closing Argument. This is where it all comes out. The themes, the labels, you’re putting those on
as well as hopefully countering the same from plaintiffs. In a Monell case, again, you don’t have
the additional issue of personality, race, gender, class-warfare that you do in the full fledged trial.
■
Claims Against Municipalities for Cutting Back Public Services and Training Due to Budget Constraints. Courts have held that under Monell, deficiencies created by inadequate funding may
require court monitoring of these facilities to keep them “constitutional” e.g. Casey v. Lewis 834
F.Supp. 477 (U.S.D.C. Arizona 1993). A prison facility was shown to be deliberately indifferent.
Both in the type of medical care provided and in length of time many prisoners were required to
wait before getting treatment for serious health problems.
■ Deliberate indifference was also found in the use of security personnel, who lacked medical
training, for conducting health checks and making diagnosis and of medical decisions. Also, the
court found that referrals to outside medical providers were unduly delayed. The court found
that the mental health care given female prisoners was not equal to that given male prisoners,
and that no important government objective justified the discrepancy between the service to the
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sexes. The court recognized that since the action’s filing, prison officials had made progress in
implementing changes to rectify these problems.
■ This lack of funding is particularly problematic in the prison and local detention facilities. That
is because of the need for medical care for all prisoners under the Eighth Amendment.
■ Another battle ground when public services are cut back, involves cases where public employees complain that the cutbacks deteriorate public service. Employees disciplined for this or other
reasons may be entitled to First Amendment protection.
■ An employee receives First Amendment protection when that employee speaks “as a citizen” and
“addresses matters of public concern.” Weisbarth v. Geauga Park District, 499 F.3d 638, 542 (6th
Cir. 2007).
■ When public employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes. Garcetti v. Cedallos 547 U.S. 410 (2006).
Speech by public employees made pursuant to ad hoc or de-facto duties not appearing in any
written job description, is nevertheless, not protected if it “owes its existence to the [speakers]
professional duties.” Weisbarth, 499 F.3d at 544. (Quoting Garcetti, 547 U.S. at 421).
■ Usually the discipline, especially in para-military organizations, centers around the concept of
insubordination or the like.
■ In the Second Circuit, a regulation barring the employees from commenting on a shortage of
manpower and insinuating insufficient funding was the cause of the death of one firefighter and
the serious injury to another. The court held that regulations prohibiting statements regarding
department policy and practice without authorization was unconstitutional. See Moore v. City
of Kilgore, Texas 877 F.2d 364 (1989) (validity question by subsequent cases). The Moore court
held that the questioning was one of law and for the court. In Moore the employee argued he was
speaking out as a citizen upon matters of public concern.
■ Cutbacks in funding can be the source of claims against municipalities in the case of jails and
involuntarily committed persons and state hospitals. There is a right to custodial care which is
different from treatment. Rouse v. Cameron, 125 U.S. App. D. C. 366, 373 F.2d 451, 455 (D.C. Cir.
1967); Wyatt v. Stickney 325 F. Supp. 781, 784 (M.D. Ala. 1971). Custodial care includes food,
shelter, safety and medical care. This care is directed at maintaining the patient’s status quo.
Wyatt v. Aderholt, 503 F.2d 1305, 1306 N.1. (Fifth Cir. 1974). Certainly, patients confined to a
state hospital or subject to State authority have a constitutional right to such care. Id.
■ Such cases are not actionable or isolated mishaps Romeo v. Youngberg, 644 F.2d at 163; or mere
negligent supervision. Id. See Staras, 507 F.2d at 557.
■ The defenses to such claims are on the policies in a Monell context and customs and procedures.
The discovery in such cases will center around.
■ Policies and procedures;
■ Anecdotal evidence regarding customs and practices;
■ Documentation of incidents related to the policies, procedures and customs; and
■ Tying together the cutbacks with the incidents especially when the cutbacks involve training. See generally, Seide v. Prevost, 536 F.Supp. 1121 (U.S.D.C. N.Y. 1982).
■ Seemingly in the parlance of police responses, plaintiffs will seek to tie the cutbacks to policies
and customs. They will try to link incidents and tie them to the shortage of personnel. They may
Defense of Monell Claims ❖ Taylor ❖ 151
even have experts look at how municipal funding is being used and where. The first weak spot
would be if the cutbacks disproportionately impact training. Closely following would be equipment and personnel inadequacies. Since it would be difficult to tie a late response or inadequate
response or other training frailties to individuals, generally you can expect that there would be
a wide based Monell attack on the entity. These factors also create a tension between the officers
and the entity. In the case of an inadequate investigation and follow-up, the officers might very
well claim at the end of the day that the cutbacks implicated their training.
VIII. Dealing with Claims and Avoiding Consent Decrees and Handling Cases
Involving the Justice Department
Title 42 Section 14141 is entitled the “VIOLENT CRIME CONTROL ACT”. It is an act to control
police discretion. The actions under this act, though, are not brought against individual police officers. They
are brought against the city and the police department.2
A. Title 42 14141 Actions
1 Section 14141 of Title 42 U.S.C. provides:
(a) Unlawful conduct
It shall be unlawful for any governmental authority, or any agent thereof, or any person acting
on behalf of a governmental authority, to engage in a pattern or practice of conduct by law
enforcement officers or by officials or employees of any governmental agency with responsibility
for the administration of juvenile justice or the incarceration of juveniles that deprives persons
of rights, privileges, or immunities secured or protected by the Constitution or laws of the
United States.
(b) Civil action by Attorney General
Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1)
has occurred, the Attorney General, for or in the name of the United States, may in a civil action
obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
42 U.S.C.A. §14141
Who Brings It ?
■ The United States Department of Justice.
■ Attorneys who are specialists and don’t have your case load.
Why Do They Bring It ?
■ Media stories.
■ Citizen complaints.
■ Repeat lawsuits with a commonality of issues. Usually involving training and/or policy gaps.
■ An inadequate internal review process.
■ Poor training records.
What Do They Want?
1. A Consent Decree covering:
2. Specific use of force policies.
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3. A review process for each use of force.
4. From handcuffing to shooting.
5. Documentation of force used.
6. Specific citizen complaint process. Including investigation of all complaints. A separate unit for
this function. No more investigations in the same chain of command.
7. Keeping complainants informed on a schedule.
Wants
A Risk Management System documenting:
■ All uses of force;
■ All injuries;
■ All firearm discharges;
■ All pointing of weapons;
■ All criminal and civil proceedings;
■ All discipline;
■ All positive commendations, awards, reviews;
■ Keeps track of all performance appraisals;
■ A disciplinary matrix;
■ All training, including a Director of training; and
■ An Independent Monitor who reports to the DOJ but for whom you pay.
B.Recommendations
■ Make training an ongoing process;
■ Document it;
■ Keep the policies and procedures current;
■ Consistent with the CBA, perform performance appraisals;
■ Put the citizen’s complaint form on line; and
■ Investigate, or have investigated, all force uses where there is injury, complaint, damage to property , or independent technological recording;
■ Consider having another entity investigate certain situations;
■ Use outside experts like Ohio OPOTA;
■ Highway Patrol, various local and national chiefs organization; and
■ Perform periodic reviews of policies and procedures and document it.
■ §14141 is called “pattern or practice reform”. It empowers the United States Attorney General
to bring a civil action to obtain equitable and declaratory relief to eliminate certain patterns
or practice. The focus is upon the city and such actions have been used to address a number of
issues facing cities, including the illegal use of criminal agent propellants (Buffalo); racial profiling (Mt. Prospect, IL); (state of New Jersey), illegal canine control and management policy
(Prince George’s County, MD) improper search and seizure practices (Steubenville, Ohio); (Villa
Rica, GA), an unconstitutional holding conditions (Cleveland, Detroit).
Defense of Monell Claims ❖ Taylor ❖ 153
A non-exclusive list of cities have entered into agreements with the DOJ:
1. Cincinnati; Ohio;
2. Detroit, Michigan;
3. Pittsburgh, Pennsylvania;
4. Prince George’s County, Maryland;
5. Los Angeles, California;
6. Washington, D.C.; and
7. Warren, Ohio.
These are brought by the Special Litigation Section (See http://www.usdoj.gov/crt/split)
The United States DOJ is the ultimate plaintiff ’s attorney! They are seeking equitable relief on an
equitable order from a federal district court. If you wish, you can enter into extensive litigation over the issues.
It is not advisable! At they cited, you can see a relatively long list of communities which have been the subject
of this scrutiny.
■ Baltimore City Detention Center; Maryland;
■ Cook County Jail, Illinois;
■ Correctional Facilities of the Common Wealth of the Northern Mariana Islands;
■ Dallas County Jail, Texas;
■ Delaware Correction Center, Delaware;
■ Erie County Holding Center and the Erie County Correctional Facility, New York;
■ Golden Grove Adult Correction and Detention Facility, Virgin Island;
■ Grant County Detention Center, Kentucky;
■ Harris County Jail, Texas;
■ King County Correctional Facility, Washington;
■ Lake County Jail, Indiana;
■ Los Angeles County Jail, California;
■ Miami-Dade County Jail, Florida;
■ Mobile County Metro Jail, Alabama;
■ Muscogee County Jail, Georgia;
■ Oahu Community Correctional Center, Hawaii;
■ Oklahoma County Jail and Jail Annex, Oklahoma;
■ Orleans Parish Prison System, Louisiana;
■ Piedmont Regional Jail, Virginia;
■ Robertson County Jail, Tennessee;
■ Sebastian County Adult Detention Center, Arkansas;
■
Shreve v. Franklin County, Ohio;
■ St. Tammany Parish Jail, Louisiana;
■ Taycheedah Correctional Institution, Wisconsin;
■ Terrell County Jail, Georgia;
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■ Topeka Correctional Facility, Kansas;
■ Westchester County Jail, New York;
■ Wilson County Jail, Tennessee;
■ Worcester County Jail and House Correction, Massachusetts;
■ Also included are a host of juvenile justice facilities throughout the United States.
It would appear that there is little to no insurance coverage for such claims, although I am not sure of
that.
The DOJ seeks to reform:
■ Use of force policies.
The next era of reform involves developing a database. I have enclosed in the materials, the “Settlement Agreement” with the City of Warren which I negotiated. The database is designed to
allow ready access by the DOJ to the required information from the Settlement Agreement.
An excellent article in this whole area is found in “Police Reform and The Department of Justice:
An Essay on Accountability”. Buffalo Criminal Law Review Volume II: 817 by Debra Livingston.
The negotiation of the Warren order took approximately seven months. Prior to that time the
DOJ had been in with three former Chiefs who worked for almost eight months data gathering
information.
Tips for handling cases with the DOJ:
“It is better to negotiate than litigate.”
■ Be forthcoming and work with the Assistant United States Attorneys.
■ Help establish a committee of persons within the department and the city, knowledgeable about
the workings of the department and the inner-workings of the committee.
■ You have to organize the various versions of the agreement. I would stamp each edition of the
proposed agreement with a number like Edition No. 1, and stamp which entity has submitted to
the other such as “submitted by the City” or “submitted by the DOJ”. Thus, you can remember
what you had agreed to, etc.
■ I would separate these documents from any public documents which must be turned to the general public. In Ohio, we have a very liberal Public Records Act and I would stamp everything
with “attorney client privilege”.
■ The city should hire outside counsel and make sure that the privilege can be protected to the
greatest extent possible.
■ What will help you to avoid your community being singled out with this type of scrutiny and
ultimate imposition of some form of order?
C. Lightening Rod Issues
■ More than one “Rodney King” type incident;
■ Work with the community, all aspects of the community, to make sure there is communication
between the department and the citizens you serve. One thing that will get the DOJ’s attention is
letters from the NAACP, and the like, advocacy groups such as the ACLU, etc.;
■ Develop a relationship with the media. If you don’t communicate with them, what comes out will
eventually lead all the other groups to your door. Adverse editorials and stories don’t help;
Defense of Monell Claims ❖ Taylor ❖ 155
■ The Chief and the Officers should have a public profile including membership in public groups,
non-profits, involvement with the schools, bringing in the businesses to solicit their points of
view, etc.;
■ Make sure that citizen complaint forms are readily available;
■ Make sure that all citizen complaints are quickly investigated and that the citizens making
complaints are communicated with in some way. In the more serious complaints, not only are
written communication, but an in person communication from someone with the ability to
communicate with diverse groups of people is the best practice;
■ Make sure that you engage your media contact person immediately so that your side of the story
gets out to the public; and
■ Work with Do-Gooder interest groups and try to gain trust.
IX. Dealing with the Department of Justice
■ Communicate frequently.
■ Make sure you are accessible.
■ Return phone calls, emails quickly and completely. In cases of dispute, understand “the chain of
command of the DOJ”, for an understanding of how they tick, and understand how to effectively
communicate with them; read and understand all of the manuals published by the United States
Department of Justice which are Assistant United States Attorney General Manuals. This will
help you understand the metes and bounds of the officials you are dealing with. Who they report
to.
■ Escalate your contact in the chain of command only in the most dire circumstances. Even in
incidental contact with high ranking officials (at social events or Bar Association events or the
like), it may be viewed adversely by the official with whom you are dealing.
■ Know who to communicate with if a need for escalation arises (this is very rare, but be aware).
■ In a case of escalation, proceed at one level at a time. To jump two or three levels will offend
those intermediate persons, especially if they have not had an opportunity to deal with the situation or circumstance.
Endnotes
1
Using the Texas Ranger motto, “One Riot One Ranger”.
In most states, a police department is not sui juris and thus the city, township, village, etc. is the real party in interest.
2
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Attachment
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160 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013
Defense of Monell Claims ❖ Taylor ❖ 161
162 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013
Defense of Monell Claims ❖ Taylor ❖ 163
164 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013
Defense of Monell Claims ❖ Taylor ❖ 165
166 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013
Defense of Monell Claims ❖ Taylor ❖ 167
168 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013
Defense of Monell Claims ❖ Taylor ❖ 169
170 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013
Defense of Monell Claims ❖ Taylor ❖ 171
172 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013
Defense of Monell Claims ❖ Taylor ❖ 173
174 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013
Defense of Monell Claims ❖ Taylor ❖ 175
176 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013
Defense of Monell Claims ❖ Taylor ❖ 177
178 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013
Defense of Monell Claims ❖ Taylor ❖ 179
180 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013
Defense of Monell Claims ❖ Taylor ❖ 181
182 ❖ Civil Rights and Governmental Tort Liability Seminar ❖ January 2013