Amicus Curiae Brief — Polk County, Wisconsin, Petitioner v. J. K. J., et al.

No. 20-427

In the

Supreme Court of the United States

__________________

POLK COUNTY,

Petitioner,

v.

J.K.J. AND M.J.J.,

Respondents.

__________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

__________________

BRIEF OF AMICI CURIAE THE NATIONAL

ASSOCIATION OF COUNTIES, THE NATIONAL

LEAGUE OF CITIES, THE U.S. CONFERENCE OF

MAYORS, THE INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, AND THE

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION IN SUPPORT OF THE PETITIONER

__________________

LISA SORONEN

STATE AND LOCAL LEGAL CENTER

444 N. Capitol St. NW

Suite 515

Washington, DC 20001

JOHN M. REEVES

Counsel of Record

REEVES LAW LLC

3703 Watson Road

St. Louis, MO 63109

(314) 775-6985

reeves@reeveslawstl.com

AMANDA KELLAR

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION, INC.

51 Monroe Street, Suite 404

Rockville, MD 20850

Counsel for Amici Curiae

November 2, 2020

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE. . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE ARGUMENT . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

Absent the Court’s review, the Seventh

Circuit’s decision ensures that federal courts

will have significantly increased control over

municipalities’ daily operations, thus

undermining the Constitution’s federalist

structure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The federalism issues here are

exceptionally important, as §1983 cannot

be used as a vehicle to obviate the

Constitution’s federalist structure . . . . . . 5

B. The Seventh Circuit’s rationale extends to

every facet of municipal government . . . . 9

II.

This case presents an ideal vehicle to resolve

the tension between Canton’s theoretical

single-incident failure-to-train claim and the

federalism principles underlying Monell’s

admonishment against respondeat superior

liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ii

III.

The en banc opinion imposes a negligence

standard upon §1983 claims under Monell,

and in effect turns them into common law

tort claims. It should be up to the states

themselves to determine whether to allow

such claims. . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

iii

TABLE OF AUTHORITIES

Cases

Applewhite v. City of Baton Rouge,

380 So.2d 119 (La. Ct. App. 1979) . . . . . . . . . . . 15

Baker v. McCollan,

443 U.S. 137 (1979). . . . . . . . . . . . . . . . . . . . . . . 13

Bradley v. Village of Univ. Park, II.,

929 F.3d 875 (7th Cir. 2019). . . . . . . . . . . . . . . . . 9

Brady v. Maryland,

373 U.S. 83 (1963). . . . . . . . . . . . . . . . . . . . . . . . 12

Bryan Cty. v. Brown,

520 U.S. 397 (1997). . . . . . . . . . . . . . . . . . . . . 7, 13

Cafeteria and Rest. Workers Union v. McElroy,

367 U.S. 886 (1961). . . . . . . . . . . . . . . . . . . . . . . . 6

Canton v. Harris,

489 U.S. 378 (1989). . . . . . . . . . . . . . . . . . . passim

Connick v. Thompson,

563 U.S. 51 (2011). . . . . . . . . . . . . . . . . . . 7, 11, 12

Flores v. Colo. Dep’t of Corr.,

3 P.3d 464 (Colo. Ct. App. 1999) . . . . . . . . . . . . 15

Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701 (1989). . . . . . . . . . . . . . . . . . . . . . . . 7

Mary M. v. City of Los Angeles,

814 P.2d 1341 (Cal. 1991). . . . . . . . . . . . . . . . . . 15

Monell v. Dept. of Soc. Serv.,

436 U.S. 658 (1978). . . . . . . . . . . . . . . . . . . passim

iv

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012). . . . . . . . . . . . . . . . . . . . . . . . 8

New York v. U.S.,

505 U.S. 144 (1992). . . . . . . . . . . . . . . . . . . . . . . . 8

Printz v. United States,

521 U.S. 898 (1997). . . . . . . . . . . . . . . . . . . . . 5, 16

Rizzo v. Goode,

423 U.S. 362 (1976). . . . . . . . . . . . . . . . . . . 6, 8, 10

Sampson v. Murray,

415 U.S. 61 (1974). . . . . . . . . . . . . . . . . . . . . . . . . 6

Savage v. State of Wash.,

899 P.2d 1270 (Wash. 1995) . . . . . . . . . . . . . . . . 15

Upchurch v. State of Haw.,

454 P.2d 112 (Haw. 1969). . . . . . . . . . . . . . . . . . 15

Statutes

34 U.S.C. §30307(e)(2)(A). . . . . . . . . . . . . . . . . . . . . . 8

42 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . passim

Other Authorities

1 J.R.R. Tolkein, The Lord of the Rings (1991) . . . . 10

The Federalist No. 39 (James Madison) (Robert

Scigliano ed., 2000) . . . . . . . . . . . . . . . . . . . . . . . . 5

1

INTEREST OF AMICI CURIAE1

Amici curiae are national organizations

representing the interests of local governments. They

have a critical interest in ensuring the maintenance of

the Constitution’s federalist structure, under which

local governments retain their autonomy to conduct

their affairs as they best see fit, so long as they remain

within the Constitution’s substantive parameters.

To that end, amici believe that the Seventh Circuit’s

en banc decision below amounts to an unprecedented

evisceration of that autonomy by morphing 42 U.S.C.

§1983 from a statute protecting the Constitutional

rights of individuals into one that mandates federal

judicial oversight of every aspect of a local

government’s affairs, even if the local government has

not itself committed a Constitutional violation. Given

the importance of preserving the Constitution’s

federalist structure, the Court should intervene and

grant certiorari.

The National Association of Counties (NACo) is the

only national association that represents county

governments in the United States. Founded in 1935,

NACo provides essential services to the Nation’s 3,069

counties through advocacy, education, and research.

1

Amici provided timely notice to both parties of its intent to file

this brief, and both parties provided amici with written consent to

file this brief. No counsel for either party authored this brief in

whole or in part, nor did counsel for either party make any

monetary contribution intended to fund the preparation or

submission of this brief.

2

The National League of Cities (NLC) is the oldest

and largest organization representing municipal

governments throughout the United States. Working in

partnership with 49 state municipal leagues, NLC is

the voice of more than 19,000 American cities, towns,

and villages, representing collectively more than 200

million people. NLC works to strengthen local

leadership, influence federal policy, and drive

innovative solutions.

The U.S. Conference of Mayors (USCM) is the

official nonpartisan organization of all U.S. cities with

a population of more than 30,000 people, which

includes over 1,200 cities at present. Each city is

represented in the USCM by its chief elected official,

the mayor.

The International City/County Management

Association (ICMA) is a nonprofit professional and

educational organization of over 12,000 appointed chief

executives and assistants, serving cities, counties,

towns, and regional entities. ICMA’s mission is to

advance professional local government through

leadership, management, innovation, and ethics.

The International Municipal Lawyers Association

(IMLA) is a non-profit, nonpartisan professional

organization consisting of more than 2,500 members.

The membership is comprised of local government

entities, including cities, counties and subdivisions

thereof, as represented by their chief legal officers,

state municipal leagues, and individual attorneys.

Established in 1935, IMLA’s mission is to advance the

responsible development of municipal law through

education and advocacy by providing the collective

3

viewpoint of local governments around the country on

legal issues before the United States Supreme Court,

the United States Courts of Appeals, and in state

supreme and appellate courts.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

To ensure the Constitution’s federalist structure

remains intact, local governments can only be held

liable for constitutional violations under §1983 when

they themselves inflict such violations; they cannot be

held liable on a respondeat superior theory. See Monell

v. Dept. of Soc. Serv., 436 U.S. 658, 691-95 (1978). The

Court’s review of the Seventh Circuit’s en banc opinion

below is critically needed to reiterate these principles

and preserve that federalist structure.

The Seventh Circuit found that Polk County could

be liable under Monell for one of its correctional officers

raping two of its inmates. Despite admitting that Polk

County’s jail had a policy explicitly prohibiting

correctional officers from sexually assaulting inmates,

that no earlier pattern or practice of such rapes existed

in the jail, and that the correctional officer knew his

training prohibited the rapes, the en banc opinion

found Polk County could be liable on the single-incident

failure-to-train theory mentioned in Canton v. Harris,

489 U.S. 378, 390 (1989). According to the Seventh

Circuit, the jail’s failure to adopt the procedures of the

non-mandatory federal Prison Rape Elimination Act

(PREA) amounted to deliberate indifference under

Monell and Canton.

The Court’s review is urgent in order to clarify the

scope of Monell liability in the context of single-incident

4

failure-to-train claims. The Seventh Circuit’s opinion

has warped §1983 into a mechanism whereby federal

courts can mandate local governments adopt nonbinding federal regulations in practically any area,

thus obviating the basic principles of federalism. The

facts of this case, furthermore, make it an ideal

mechanism for the Court to resolve the inherent

tensions between federalism and Canton’s hypothetical

single-incident failure-to-train claim. Finally, and

further underscoring the important federalism issues

at play in this case, the Seventh Circuit’s opinion

creates a common law tort action out of §1983, a matter

that the States themselves—and not the federal

courts—are best equipped to decide.

ARGUMENT

I.

Absent the Court’s review, the Seventh

Circuit’s decision ensures that federal

courts will have significantly increased

control over municipalities’ daily

operations, thus undermining the

Constitution’s federalist structure.

The Seventh Circuit’s decision undermines the

carefully-crafted power balance between the federal

government and the States by enabling federal courts

to take over local governments and micromanage their

daily operations. This warrants the Court granting

certiorari. As Polk County describes in its petition, the

en banc opinion creates a circuit split and ignores

Monell’s limitations on liability for local governments.

Those limitations on liability are reasonable, fair, and

respectful of federalism. By expanding Monell’s limited

holding into respondent superior liability and holding

5

a local government may be liable for failing to adopt a

specific policy, the lower court decision operates as a

judicial run-around to the prohibition on the federal

government directly regulating local governments by

enabling federal courts to order them to enact such

regulations under the guise of enforcing Constitutional

rights under §1983. This expanded liability will drain

the financial resources of local governments, cause

significant reputation damages to the local entities who

have followed Monell’s actual requirements, and will

further erode the limits of Monell liability beyond the

facts in the Seventh Circuit’s opinion.

A. The federalism issues here are

exceptionally important, as §1983

cannot be used as a vehicle to obviate

the Constitution’s federalist structure.

The Constitution provides for a dual-sovereign

system of government, under which the States (of

which local governments form a part) have surrendered

some of their powers to the federal government while

still retaining their status as sovereign entities. Printz

v. United States, 521 U.S. 898, 918-19 (1997). “[T]he

local or municipal authorities form distinct and

independent portions of the supremacy, no more

subject, within their respective spheres, to the general

authority than the general authority is subject to them,

within its own sphere.” The Federalist No. 39, at 245

(James Madison) (Robert Scigliano ed., 2000), quoted in

Printz, 521 U.S. at 920-21 (1991). It is not surprising,

therefore, that the Court has rejected the notion that

federal judges may compel municipalities to enact

particular policies in the absence of the municipality

6

itself having caused any constitutional violations. See,

e.g., Rizzo v. Goode, 423 U.S. 362, 378-79 (1976). But

that is what the Seventh Circuit has done here: its en

banc opinion imposes respondeat superior liability on

local governments and requires them to adopt specific

policies that are not, of themselves, required under the

Constitution.

Congress carefully wrote what is now §1983 to

ensure that federal courts, in applying it against

local governments, would only do so to vindicate

Constitutional rights, and not use it as a pretext for

compelling municipalities to enact policies or take

actions that, while seemingly good in the abstract, are

not mandated under the Constitution. See Monell, 436

U.S. at 691-95. Relying in part on the Court’s own

federalism rulings, see id. at 673-95, Congress

recognized how, under the Constitution’s federalist

structure, local governments have “traditionally been

granted the widest latitude in the ‘dispatch of [their]

own internal affairs….’” See Sampson v. Murray, 415

U.S. 61, 83 (1974) (quoting Cafeteria and Rest. Workers

Union v. McElroy, 367 U.S. 886, 896 (1961)), quoted in

Rizzo, 423 U.S. at 378-79. Section 1983 is harmonious

with the Constitution’s dual-sovereign structure. It “is

not a ‘federal good government act’ for municipalities.

Rather it creates a federal cause of action against

persons, including municipalities, who deprive citizens

of the United States of their constitutional rights.”

Canton v. Harris, 489 U.S. 395-96 (1989) (O’Connor, J.,

concurring in part and dissenting in part). This ensures

that local governments retain the autonomy necessary

to govern as they best see fit, so long as they stay

within the Constitution’s boundaries and respect the

7

substantive rights it accords to individuals. See Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 734-35 (1989).

Contrary to the Seventh Circuit’s holding, §1983 does

not require local governments to adopt specific policies.

To vindicate these federalism concerns, in Monell

the Court held that §1983 imposes civil liability on

municipalities only for constitutional injuries that

municipalities themselves cause through an unlawful

policy or custom. See Monell, 436 U.S. at 673-95.

Consequently, a local government cannot be held liable

under §1983 on a respondeat superior theory,

notwithstanding the Seventh Circuit’s holding to the

contrary. Allowing respondeat superior liability under

§1983 would do far more than discard the statute’s

plain language—as the Court has long recognized, it

would undermine the Constitution’s federalist

structure. See Monell, 436 U.S. at 673-95. Federal

courts are not—and should not be—empowered to

encroach on the autonomy of local governments via

§1983. See Connick v. Thompson, 563 U.S. 51, 61-62

(2011); Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997);

Canton, 489 U.S. at 391-92.

In upholding Polk County’s liability, the Seventh

Circuit primarily relied on how it had failed to adopt

the PREA in administering its jail despite conceding

that the “PREA is not a constitutional standard.”

(App.31). It further acknowledged that Polk County’s

policies—as well as Wisconsin state law—explicitly

prohibited sexual assault, and that all correctional

officers were explicitly informed of the County’s

categorical prohibition against sexual contact with

inmates. This is a textbook violation of the very

8

federalism principles that Congress sought to uphold in

passing §1983 and that the Court has sought to uphold

in its own precedents.

By holding Polk County to the PREA’s standards,

and not those of the Constitution, the Seventh Circuit

has “engage[d] the federal courts in an exercise of

second-guessing municipal employee-training

programs,” Canton, 489 U.S. 392, a matter “the federal

courts are ill suited to undertake, as well as one

that…implicate[s] serious questions of federalism.” Id.

(citing Rizzo, 423 U.S. at 378-80). Indeed, Congress

itself, in passing the PREA, recognized that it had no

Constitutional authority to mandate that

municipalities adopt it. Instead, Congress conditioned

grants on State and local compliance with certain

standards set forth in the Act. See 34 U.S.C.

§30307(e)(2)(A). This was an appropriate exercise of its

authority under the Spending Clause. See Nat’l Fed’n

of Indep. Bus. v. Sebelius, 567 U.S. 519, 576 (2012)

(“We have long recognized that Congress may use this

power to grant federal funds to the States, and may

condition such a grant upon the States’ ‘taking certain

actions that Congress could not require them to

take.’”). By upholding Polk County’s liability here for

failing to adopt measures outlined in the PREA, the

Seventh Circuit did precisely what Congress knew the

Tenth Amendment, the Constitution’s dual-sovereign

system of government, and this Court’s very own

jurisprudence on federalism prohibited it from doing.

See Monell, 436 U.S. at 673-95; New York v. U.S., 505

U.S. 144, 156-57 (1992) (“The Tenth Amendment…

restrains the power of Congress, but this limit is not

derived from the text of the Tenth Amendment

9

itself….Instead, the Tenth Amendment confirms that

the power of the Federal Government is subject to

limits that may…reserve power to the States.”).

B. The Seventh Circuit’s rationale

extends to every facet of municipal

government.

The Court’s review of the Seventh Circuit’s decision

is urgent, as the decision has implications reaching far

beyond its specific facts. There is no reason why the en

banc opinion’s rationale cannot—indeed, will

not—extend beyond the area of local prison

administration and allow federal courts to supervise

every facet of local government. After all, if a local

government’s failure to adopt a particularized federal

program in the context of prison administration

amounts to a Constitutional violation, why should this

rationale not apply to all areas of a local government’s

day-to-day operations?

For example, a federal court could easily utilize the

en banc opinion to find a local police department

violated a discharged employee’s procedural due

process rights merely because the local police

department did not enact deprivation procedures

identical to those that may be provided by a federal law

enforcement agency, such as the U.S. Marshals Service,

even though the Fourteenth Amendment does not

require such procedures. See Bradley v. Village of Univ.

Park, II., 929 F.3d 875, 907 (7th Cir. 2019) (Manion, J.,

dissenting) (“[I]f the State has provided sufficient postdeprivation remedies, then there is no justification to

supplant the State’s authority and subvert federalism

10

by allowing the plaintiff to pursue a federal due process

claim instead of the State’s provided remedies.”).

Similarly, the Seventh Circuit’s opinion enables a

federal court to hold that a local or state court system’s

failure to adopt the Federal Rules of Civil Procedure or

the Federal Rules of Evidence itself amounts to a due

process deprivation. Such a holding would, of course, be

absurd. See Rizzo, 423 U.S. at 379 (noting that

federalism principles counsel restraint on the part of a

federal court interfering with the operations of state

courts). Nevertheless, it is the natural outcome of the

en banc opinion’s rationale.

In short, and absent the Court’s review, the Seventh

Circuit’s decision will wreak havoc on the ability of

thousands of local governments around the country to

manage their own affairs without the potential of

federal courts intruding and watching their every move

in the spirit of the Eye of Sauron, rendering Monell

practically meaningless. See 1 J.R.R. Tolkein, The Lord

of the Rings 392 (1991).

II.

This case presents an ideal vehicle to

resolve the tension between Canton’s

theoretical single-incident failure-to-train

claim and the federalism principles

underlying Monell’s admonishment against

respondeat superior liability.

So far as amici are aware, the Seventh Circuit’s

opinion is only the second time any federal appellate

court has upheld a §1983 verdict against a local

government on a single-incident failure-to-train theory.

See Canton, 489 U.S. at 390 (“[I]t may happen that in

11

light of the duties assigned…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.”). The

last time a federal appellate court did so, the Court

granted certiorari to clarify the scope of single-incident

failure-to-train liability. See Connick, 563 U.S. at 54.

But this area of the law remains murky even following

Connick, and the facts of this case present the Court

with the perfect opportunity to bring clarity to the

matter.

This case is unique in that Christensen—the

correctional officer who committed the underlying

violations under the Eighth and Fourteenth

Amendments—explicitly admitted that he knew, from

his training, that raping inmates was wrong before he

committed his terrible actions. (App.105). In addition,

it is undisputed both that the jail’s policies themselves

explicitly prohibited correctional officers from raping

inmates and that there was no prior pattern or practice

of such rapes taking place within the jail. (App.71).

Nevertheless, and paradoxically, the Seventh Circuit

found that the need to ensure correctional officers not

rape inmates was an area where “the need for more or

different training [was] so obvious” in Polk County

despite Christen himself admitting he knew, from Polk

County’s very training, that such conduct was wrong,

and despite nothing like this ever occurring before in

the jail (App.77-84). It is difficult, if not impossible, to

see how “it could be obvious” that there could be a need

for further training, or that such training was

adequate, given the fact that the perpetrator himself

12

admitted to knowing that what he was doing was

wrong, and that he did not require additional training

to know that what he did was illegal and contrary to

Polk County’s policy. (App.105). The Court’s review is

sorely needed to provide clarity in this area.

If it was appropriate for the Court to grant

certiorari in Connick to address the scope of singleincident liability in the context of a prosecutor’s

decision to commit Brady2 violations, it is all the more

appropriate (and urgent) for the Court to grant

certiorari here to address the scope of single-incident

liability in the context of in the context of a correctional

officer’s decision to commit a sexual assault, something

that Polk County’s policy and training had taught him

was illegal. The Brady violations in Connick involved

decision making in an area that of its very nature

required years of legal training. See Connick, 563 U.S.

at 63-68. By contrast, here the decisionmaker himself

admitted he knew, ahead of time, that his decision was

wrong, and that his training explicitly prohibited it.

And as Judge Brennan noted in his dissent from the en

banc opinion below, the decision was one forbidden “by

the law, written policies and training here, as well as

any moral code.” (App.83).

It is nearly impossible to imagine a more ideal fact

pattern under which the Court can resolve the inherent

tension between Canton’s theoretical single-incident

liability and federalism principles. Absent the Court’s

review, this area will remain unclear.

2

See Brady v. Maryland, 373 U.S. 83 (1963).

13

III.

The en banc opinion imposes a

negligence standard upon §1983 claims

under Monell, and in effect turns them

into common law tort claims. It should

be up to the states themselves to

determine whether to allow such claims.

The Seventh Circuit’s en banc opinion effectively

opens the door for the federal judiciary to create new

common law negligence actions under the guise of

§1983, thus interfering in an area the Constitution’s

federalist structure leaves to the determination of state

governments. The Court should grant certiorari to bolt

that door shut.

“Section 1983 imposes liability for violations

protected by the Constitution, not for violations of

duties of care arising out of tort law. Remedy for the

latter type of injury must be sought in state court

under traditional tort-law principles.” Baker v.

McCollan, 443 U.S. 137, 146 (1979). It is precisely the

need to prevent §1983 claims from degenerating into

such tort claims that justifies a heightened standard of

fault beyond mere negligence. See Bryan Cty., 520 U.S.

at 407 (“A showing of simple or even heightened

negligence will not suffice.”). Yet the en banc opinion

ignores all of this, and effectively holds that Polk

County was negligent in failing to prevent its

correctional officer from raping the respondents and

that such negligence amounted to a constitutional

violation.

Nobody denies that what Christensen did to J.K.J.

and M.J.J. was horrendous. (App.4). He has been

convicted of his crimes and is now spending 30 years in

14

prison. (Pet.1). In addition, the jury below found him

personally liable under §1983 for violating J.K.J. and

M.J.J.’s Eighth Amendment rights, awarding each of

them $5.75 million in damages on their claims against

him. (App.110). The Seventh Circuit, furthermore,

quickly and correctly rejected his challenge to that

verdict. (App.14-15). Nor does anybody deny that, as a

general policy goal outside of any Constitutional

requirements, correctional institutions should protect

their inmates from suffering harm at the hand of

others—be they correctional officers or fellow inmates.

But that is not the issue here. Rather, the issue is

whether, given Congress’s concern to uphold the

Constitution’s federalist structure in enacting §1983

and this Court’s longstanding precedent seeking to

vindicate that concern, §1983 can serve as a vehicle for

changing correctional institution’s policies and

practices in the absence of any evidence that such

polies and practices caused a violation of the Eighth

and Fourteenth Amendments. Plainly it cannot, but

absent the Court granting certiorari the Seventh

Circuit’s opinion will result in §1983 doing just that.

While J.K.J. and M.J.J. also brought a negligence

claim under Wisconsin state law against Polk County

(App.3), the district court dismissed that claim after

discovery and a jury trial on the ground that Polk

County was, as a matter of Wisconsin law, immune

from liability on that claim. (App.13, 178-181). As the

district court noted, Wisconsin has immunized local

governments like Polk County from such negligence

claims. (App.178-181). Under our Constitution’s

federalist structure, Wisconsin—along with the other

49 states in the union—is free to mold its tort law as it

15

sees fit. Whether to allow a common law negligence

action against a municipality under facts like this is

exactly the type of matter over which different entities

can—and do—reasonably come to different conclusions,

which is precisely why its resolution is better suited to

state legislatures than to an unelected federal

judiciary.

Many states disagree with Wisconsin and allow

common law tort claims under facts similar to this

case. For example, Colorado has authorized inmates of

correctional centers to bring negligence actions against

correctional facilities for injuries they allegedly suffer

while in custody. See Flores v. Colo. Dep’t of Corr., 3

P.3d 464 (Colo. Ct. App. 1999) (ruling that the Colorado

General Assembly had abrogated sovereign immunity

in actions for injuries arising out of the operation of

correctional facilities). The same can be said for

Louisiana, California, Washington, and Hawaii. See

Applewhite v. City of Baton Rouge, 380 So.2d 119 (La.

Ct. App. 1979) (ruling a city could be liable after a

police officer and a correctional officer forced a detainee

to perform sexual acts on them); Mary M. v. City of Los

Angeles, 814 P.2d 1341 (Cal. 1991) (holding a city could

be liable under respondeat superior for a police officer

raping a detainee); Savage v. State of Wash., 899 P.2d

1270 (Wash. 1995) (ruling the State could be held liable

for its parole officer’s failure to supervise a parolee

after the parolee raped a third party); Upchurch v.

State of Haw., 454 P.2d 112 (Haw. 1969) (ruling that

the State owed a duty of reasonable care to an inmate

who had suffered an attack from another inmate).

16

The Constitution’s federalist structure leaves it to

the States themselves to determine which common law

tort actions are appropriate and which are not. This is

a matter of prudential judgment over which reasonable

disagreements can exist, not a matter of safeguarding

one’s rights under the federal Constitution. Section

1983 addresses the latter situation, not the former. To

hold otherwise and conclude that Monell liability is

satisfied under a negligence standard—as the Seventh

Circuit did—expands §1983 beyond what both

Congress and the Court have concluded are

constitutional boundaries. Left standing, the en banc

opinion will erode the ability of the States and their

local governments to “remain independent and

autonomous within their proper sphere of authority.”

See Printz, 521 U.S. at 928.

17

CONCLUSION

The Seventh Circuit’s opinion renders the federalist

system of government set forth in the Constitution

practically meaningless and invites other circuits to

issue holdings that do the same. To vindicate this

fundamental part of the Constitution’s structure and

foreclose other courts from further weakening it by

following the Seventh Circuit’s lead, the Court should

grant Polk County’s petition for a writ of certiorari.

Respectfully submitted,

JOHN M. REEVES

Counsel of Record

REEVES LAW LLC

3703 Watson Road

St. Louis, MO 63109

(314) 775-6985

reeves@reeveslawstl.com

LISA SORONEN

STATE AND LOCAL

LEGAL CENTER

444 N. Capitol St. NW

Suite 515

Washington, DC 20001

AMANDA KELLAR

INTERNATIONAL MUNICIPAL

LAWYERS ASSOCIATION, INC.

51 Monroe Street, Suite 404

Rockville, MD 20850

Counsel for Amici Curiae