Amicus Brief — Newport v. Fact Concerts, Inc.

NO. 80-396

IN THE

SUPREME COURT OF THE UNITED STRATES

October Term, 1980

THE CITY OF NEWPORT,

MAYOR HUMPHREY J. DONNELLY III,

Individually and in His Official Capacity

as Mayor,

THE CITY COUNCIL for the City of Newport and

LAWRENCE NEWSOME, JOHN H. WEST,

ROBERT O. BEATTIE, RAYMOND H. CARR,

EDWARD K. CORISTINE, JAMES F. RING,

All individually and in Their Official Capacity

as Members of the City Council for the

City of Newport, Rhode Island,

Petitioners,

vs.

FACT CONCERTS, INC. and MARVIN LERMAN,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF ACLU FOUNDATION,

SOUTHERN CALIFORNIA AND

AMERICAN CIVIL LIBERTIES UNION,

RHODE ISLAND AFFILIATE

AS AMICI CURIAE

MEIR J. WESTREICH FRED OKRAND

1711 North Broadway 633 South Shatto Place )

Santa Ana, California 92706 Los Angeles, California 90012

714 - 541-4324 213 - 487-1720

em

LYNETTE LABINGER

220 South Main Street

| Providence, Rhode Island 02903

401 - 277-9300

Attorneys for Amici Curiae

Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648 - (714) 536-7161

i

QUESTION PRESENTED

Does a municipality have an absolute immunity from

punitive damages in an action under 42 U.S.C. § 1983?

‘i

TOPICAL INDEX

i NS ieee a a

TORMCE INGSK cc cers c ces ecscrerpevevevens

Tene Oe Pete CHOOE vt cw vsasrnveuers

Brief of ACLU Foundation, Southern

California and American Civil Liberties

Union, Rhode Island Affiliate As

pO ES EER AEE SE a oe eee

|. i eA ea aa

I The question of whether to extend

absolute immunity from punitive

damages under 42 U.S.C. § 1983 to

municipalities must be viewed in light

of the fact that municipal liability under

§ 1983 will otherwise occur only when

the municipality is itself responsible

for the constitutional violation ..........

II The historical immunity of municipalities

from punitive damage awards was in a ‘con-

text qualitatively different than that which

exists under Monell liability ...........-.

Il Punitive damage awards are a necessary tool

for the meaningful enforcement of constitu-

tional rights through the remedial provision

Of 62 U.BA.. BUSS a eso dest vos ehbgaete

iii

TOPICAL INDEX

Argument (cont'd) Page

IV Municipal liability for punitive damages

is appropriate because it will be limited

to cases in which the municipality will

be at fault, and where there is a showing

of malice or bad faith by policy-making

hg a See ee 20

V__ The American public has an interest in

the vigorous enforcement of constitutional

protections that supersedes the financial

interests of individual communities and

the political interests of local officials ...... 25

ee Tee ee 28

TABLE OF AUTHORITIES CITEr

Cases

Addickes v. S. H. Kress & Co., 398 U.S. 144

STS Go SS UR bois 6 PN 4d CUS wik'o cece 24

Albemarle Paper Co. v. Moody, 422 U.S.405

SEP AEP I +> pcb Oh Sab de vdcces's bbe anec¥ 16, 19

Black v. Brown, 513 F.2d 652 (Sth Cir. 1975)... 21

Bradshaw v. Zoological Society of San Diego,

569 F.2d 1066 (9th Cir. 1978) .......... 28

Burt v. Abel, 585 F.2d 613 (4th Cir. 1978) ...... 17, 23

Carey v. Piphus, 435 U.S. 247 (1978) .......... %, 18, 25

Carlson v. Green, ..... Ie cesses :

100 S. Ct. 1468 (1980) ....02...... 13, 15, 19, 25

iv

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

Chicago v. Langlass, 52 Ill. 256,

4 Am. Rep. 603 (1869) «1... ss eereveees 12

Chicago v. Martini, 49 Ill. 241,

95 Am. Dec. 590 (1868) ......cccnceeees 12

City Council of Montgomery v. Gilmer &

Taylor, 33 Ala. 116, 70 Am. Dec. 562

CIBER C aol e o chews pe Oued stake ven 11

Coffy v. Multi-County Narcotics Bureau,

600 F.2d 570 (6th Cir. 1979) ....--- ce ee 21

Davis v. Zahradnick, 600 F.2d 458

(Athy Che. 19TS) noc civiccwercccccuse 22

Dellums v. Powell, 566 F.2d 167

(D.C. Cir. 1977), cert. denied,

438 U.S. 916, rehearing denied,

Pk | GRR es oe ee eee 16

Duchesne v. Sugarman, 566 F.2d 817

7 00 38 | fy) SPs ee ee 9

Edelman v. Jordan, 415 U.S.651(1972)_..... 7

Fisher v. Volz, 496 F.2d 333 (3d Cir. 1974) .... 23, 24

Fulton Market Cold Storage v. Cullerton,

582 F.2d 1071 (7th Cir. 1978) ...... ye 28

Guzman v. Western State Bank of Devils Lake,

450 F.2d 948 (8th Cir. 1976) .......-.. 18, 19, 25, 24

Hampton v. Holmesburg Prison Officials,

546 F.2d 1077 (3d Cir. 1976) ........ ae 21:

Herfurth v. Corporation of Washington,

6 Dist. Col. 288 (1868) ... ww eee eee eee 12

Vv

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

Holland v. Connors, 491 F.2d 539

coun oe. 2078) ii. ws. ck; Ges Peo Uda 16

Hunt v. Boonville, 65 Mo. 620,

ZF AM. ROP Lee CSTD vac eck 12

Imbler v. Pachtman, 424 U.S. 409 So eras 7

Jennings v. Davis, 476 F.2d 1271

SY hk Nid tea Be 12, 13

Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978) .. 22

Jones v. Marshal, 528 F.2d 132 (2d Cir. 1975)... 8

Kite v. Kelley, 546 F.2d 334 (10th Cir. 1976) .16, 20, 21

McDonnell-Douglas Corp. v. Green,

Ba OT POR Aah s Se x

McGary v. President and Council of Lafayette,

12 Rob. 674, 43 Am. Dec. 239 (1846) .... 12

Milton v. Nelson, 527 F.2d 1158 (9th Cir. 1976) . . 19

Monell v. New York City Dept. of Social

Services, 436 U.S. 658 (1978) ............

bias Cae eU ane as ME, 3, 4, 6, 9, 11, 20, 22, 28, 29

Monroe v. Pape, 365 U.S. 167(1961) .......... 3,6

Order of Hermits of St. Augustine v. County of

Philadelphia, 4 Clark 124, Brightly NP

POO CAPTAINS Chediak daaicuta vey: 12

Owen v. City of Independence, Mo. ..... ee noon

100 S. Ct. 1398 (1980). . 6, 8, 9, 10, 11, 12, 19, 27, 28

Owens v. Haas, 601 F. 2d 1242 (2d Cir. ‘rey cule ee ao

vi

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

Pierson v. Ray, 386 U.S. 547 (1967)... eee eee 7

Pinckey v. Northampton County,

433 F. Supp. 373 (W.D. Pa. 19/6) ....-+-- 8

Procunier v. Navarette, 434 U.S. 555 (1978) .... 7

Reimer v. Short, 578 F.2d 621 (Sth Cir. 1978),

cert. denied, 440 U.S. 947 (1979) .....--- 8

Reitman v. Mulkey, 387 U.S. 369 (1967) ....-. 26

Rizzo v. Goode, 423 U.S. 362 (1976) .....-. 15, 16, 18, 20

Robertson v. Wegmann, 436 U.S. 584 (1978) .... 9

Santiago v. City of Philadelphia,

435 F. Supp. 136 (E.D. Pa. 1977) ...----- 16, 22

Scheur v. Rhodes, 416 U.S. 232 (1974) ....-+-- 7,10

Sethy v. Alameda County Water Dist.,

545 F.2d 1157 (9th Cir. 1976) (en banc) .. 7,10

Silver v. Cormier, 529 F.2d 161 (10th Cir. 1976).. 18, 23

Simineo v. School Dist. No. 16, Park City, Wyo.

594 F.2d 1353 (10th Cir. 1979) .........- 28

Sims v. Adams, $37 F.2d 829 (Sth Cir. 1976) ....15, 16, 21

Sullivan v. Little Hunting Park, Inc.,

396 U.S. 229 (1969) occ eee ee renee - 25

Tenney v. Brandhove, 341 U.S. 367(1951)_-... 7

United States v. Classic, 313 U.S. 299 (1941) .... 26,27

Wood v. Strickland, 420 U.S. 308 (1975) ....-. 7

Vii

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

Woodman vy. Nuttingham, 49 N.H. 387,

6 Am. Rep. 528 (1870) ................ 12

Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978) .... 27

Statutes (United States)

Title 42 United States Code

SU PAKS coca ccc ereescccecvscee's 7

ae 2, 3, 4, 5, 6, 8, 9, 10, 13, 14, 15,

19, 20, 21, 22, 23, 25, 26, 28

SS 18

Text

Restatement (2d) of Torts & 10 (1965) ........ 8

W. Prosser, Law of Torts, (4th Ed. 1971) ......

DME UaeR Waco 6ede¥0veccece 12, 13, 14, 17, 18, 24, 28

NO. 80-396

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

THE CITY OF NEWPORT,

MAYOR HUMPHREY J. DONNELLY III

Individually and in His Official Capacity

as Mayor,

THE CITY COUNCIL for the City of Newport and

LAWRENCE NEWSOME, JOHN H. WEST,

ROBERT O. BEATTIE, RAYMOND H. CARR

EDWARD K. CORISTINE, JAMES F. RING,

All individually and in Their Official Capacity

as Members of the City Council for the

City of Newport, Rhode Island,

Petitioners,

VS,

FACT CONCERTS, INC. and MARVIN LERMAN,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF ACLU FOUNDATION,

SOUTHERN CALIFORNIA AND

AMERICAN CIVIL LIBERTIES UNION,

RHODE ISLAND AFFILIATE

AS AMICI CURIAE

oilies

CONSENT

By consent of the petitioner and respondent herein, filed

separately with the Clerk of the Supreme Court by each such

party, ACLU Foundation, Southern California and American

Civil Liberties Union, Rhode Island Affiliate file this brief as

amici curiae.

INTEREST OF AMICI CURIAE

The amici curiae, the ACLU Foundation, Southern Calif-

ornia, and American Civil Liberties Union, Rhode Island

Affiliate, nonprofit corporations existing for the purpose

of preserving the Biil of Rights of the Constitution of the

United States, have the following interests in this case:

a) ACLU Foundation, Southern California and Ameri-

can Civil Liberties Union, Rhode Island Affiliate represent

many persons in the federal and state courts in which the

plaintiffs therein are seeking enforcement of constitutional

rights, and remedies for deprivations of constitutional rights,

under 42 U.S.C. 8 1983, the issues therein being substantially

similar as those in the instant action; and

b) ACLU Foundation, Southern California and Ameri-

can Civil Liberties Union, Rhode Island Affiliate, who frequently

_ represent persons whose constitutional rights have been violat-

ed and who lack the resources with which to pursue a vindica-

tion of those rights, are interested in the issue of municipal

liability for punitive damages, given that such damages may be

the only means of redressing constitutional torts which lack

compensable damages.

aod

SUMMARY OF ARGUMENT

The question of whether a municipality should be accord-

ed absolute immunity from punitive damages under 42 U.S.C.

§ 1983 must be viewed in light of the Monell rule that muni-

cipalities may be held liable under § 1983 only when the entity

itself is responsiblé for the constitutional tort. Previous to

Monell, this Court had construed § 1983 to apply to only

natural persons, excluding municipalities only on the basis

of statutory construction.

Unlike the question addressed in Pape and Monell—i.e.,

whether the term “person” in § 1983 contemplates fictional

persons like a municipal corporation—the question posed here

is whether a municipality, though otherwise liable under

§ 1983, should be accorded a privilege, absolving it of puni-

tive damages for malicious constitutional torts by persons

acting on behalf of the municipality. Immunity is accorded

when the shielding of an official from liability serves some

overriding public interest and the privilege is one that is

firmly rooted in the common law. The effect of according

the privilege sought by petitioner herein will be to exempt

a culpable “person” in derogation of the public policy inher-

ent in § 1983 to deter constitutional torts.

The historical immunity of municipalities from punitive

damage awards is qualitatively different from the immunity

from punitive damages that petitioner herein is seeking. In

the former case, the immunity existed in the context of

respondeat superior liability for many other torts. The

strict liability of the respondeat superior doctrine is justi-

fied by two public policies: a) The deliberate allocation of

risk to the public at large, rather than asking the innocent

Ber ed

victim to bear the cost of injury; and b) To give employers

incentive to be careful in the selection, instruction and super-

vision of their agents.

Conversely, the immunity sought by petitioner is in the

context of the Monell liability rule, which expressly excludes

strict liability per respondeat superior. Hence, the deterrent

effect of the respondeat superior doctrine will not be present

in the area of constitutional torts, as it is in other tort fields.

Thus, the immunity from punitive damages sought herein

is not an immunity “firmly rooted in the common law”. The

immunity “firmly rooted in the common law” is the one that

exists concurrently with strict liability for the compensable

portion of the damages. To implement the immunity sought

would result in a privilege significantly broader in net effect

than the immunity at common law.

Punitive damage awards are a necessary tool for the en-

forcement of constitutional rights under § 1983, especially

when the constitutional tort did not result in compensable

harm. In such cases, there may be no other practical

remedy, and therefore no other means of deterring future

misconduct. In the absence of a punitive damage remedy,

there is no incentive for plaintiffs to attempt to redress

petty, but outrageous, constitutional torts. Without that

incentive, and without the concomitant penalties, the policy

of deterrence under 8 1983 is undermined in respect to con-

stitutional torts which, though of significant public impor-

tance, result in nominal compensable damage.

Punitive damages would not, in any case, be awardable in

a § 1983 action against a municipality until there was an

adequate showing of liability under Monell.

When the municipality has not directly caused the consti-

oes

tutional tort, by legislative enactment or other like regula-

tion, municipal liability for the constitutional torts of

senior officials will likely be predicated on criteria similar

to those developed for supervisors.

The rules for the award of punitive damages require vroof

of malice and bad faith, and courts will reduce an award

when it is deemed excessive. The fear that the availability

of punitive damages will bankrupt municipal corporations

is not justified by the historical record for private corpora-

tions held similarly liable.

The American public as a whole has an affirmative

interest in seeing that municipalities are deterred from

future violations of the Constitution, particularly malicious

acts of misconduct.

A municipality and its citizenry are not distinguishable

legal entities. In many instances, constitutional violations

by a municipality may reflect, and may even have been

enacted by, the local community. Further, this political

sy.tem is founded on the principle of republicanism, with

political decisions reserved to elected representatives respon-

sible to the electorate.

If the consequences of punitive damage awards is that

the public then punishes the responsible officials at the

polis, then the deterrence design of § 1983 is working. If

the result of awarding such punitive damages against muni-

cipalities is the deterrence of future constitutional torts,

then that is reason enough to award them.

-

pe

ARGUMENT

I

The Question Of Whether To Extend Absolute Immun-

ity From Punitive Damages Under 42 U.S.C. § 1983 To

Municipalities Must Be Viewed In Light Of The Fact

That Municipal Liability Under § 1983 Will Otherwise

Occur Only When The Municipality Is Itself Responsible

For The Constitutional Violation.

The question presented before this Court is whether

a municipality, otherwise liable under 42 U.S.C. § 1983 under

the standards set out in Monell v. New York City Dept. of

Social Servicer, 436 U.S. 658 (1978), and Owen ». City of

Independence, Mo., ..... US. ....., 100 S. Ct. 1398 (1980), may

be held liable for punitive damages as well. Prior to Monell,

there was no liability whatever for municipalities under the

remedial provisions of 42 U.S.C. § 1983. See Monroe v. Pape,

365 U.S. 167 (1961). While Monroe was often said to have

conferred “immunity” from suit under § 1983 upon all muni-

cipalities, in fact the decision merely construed the word “person”

to cover only natural persons. See id. at 190. In other words,

this Court merely held that the statutory language of § 1983 does

not contemplate extension of the remedial provisions of § 1983

to governmental entities.

The distinction between an exclusion from liability and an

immunity from liability is significant. An exclusion from a

statutorily created liability merely reflects a legislative deter-

mination as to which parties will be deemed responsible for

particular injuries. Thus, while this Court was holding that

municipalities may not be sued under § 1983, municipalities

aw,

were deemed subject to suit under 42 U.S.C. § 1981. See

Edelman v. Jordan, 415 U.S. 651, 667 n. 12 (1972); Sethy

v. Alameda County Water Dist., 545 F.2d 1157, 1160-61

(9th Cir. 1976) (en banc). This distinction was based solely

upon the statutory construction of the two sections, with

the court relying on the fact that § 1981] does not limit the

scope of its applicability by reference to “persons” depriving

the rights protected thereby.

An immunity, however, confers a special status for parti-

cular “persons” who, though otherwise liable, are shielded

from liability to serve some specific public purpose. See, e.g.,

Imbler v. Pachtman, 424 U.S. 409 (1976) (absolute immunity

for prosecutors when acting as advocate); Pierson vy. Ray, 386

U.S. 547 (1967) (absolute immunity for judges when acting

within judicial jurisdiction); Tenney v. Brandhove, 341 U.S.

367 (1951) (absolute legislative privilege). In each of these

cases, this Court concluded that the vigorous and unintimidated

performance of critical public functions required that judicial,

prosecutorial and legislative officials be afforded the ability to

perform their duties without fear of litigation from dissatisfied

persons. Similar qualified immunities have been accorded other

Officials when acting in good faith in the performance of their

duties. See, e.g., Procunier y. Navarette, 434 U.S. 555 ( 1978)

(prison officials and officers); Wood v. Strickland, 420 U.S.

308 (1975) (school board members); Scheur v. Rhodes, 416

U.S. 232 (1974) (governor and other executive officers);

Pierson v. Ray, supra, 386 U.S. at 55 5-57 (police officers).

An immunity from liability is thus a privilege conferred

upon certain individuals for an ancillary public purpose. A

“privilege, simply stated, is a rule of law exempting one from

liability for conduct which would otherwise subject him to

an

it. Restatement (2d) of Torts 810 (1965).” Jones v. Marshal,

§28 F.2d 132, 139 (2d Cir. 1975). An immunity, if applicable,

is posed as a defense to liability otherwise inhering, and the

burden of coming forth with evidence thereof rests with the

defendant raising the defense. See Owen v. City of Indepen-

dence, Mo., supra, 100 S. Ct: at 1408-09; Reimer v. Short,

578 F.2d 621 (Sth Cir. 1978), cert. denied, 440 U.S. 947

(1979); Pinckey v. Northampton County, 433 F. Supp. 373

(W.D. Pa. 1976). Cf. McDonnell-Douglas Corp. v. Green, 411

U.S. 792 (1973) (Title VII good faith defense).

Thus, a holding that a particular official is immune from

suit under § 1983 does not indicate that no violation of a

constitutional right has occurred but, rather, that the statu-

tory remedy will not be available vis-a-vis that official due to

overriding public interest. The practical effect may thereby

render the victim of such a constitutional violation without

aremedy. It was this potential that lead this Court to con-

clude that no qualified, good faith immunity should be accord-

ed a municipality in a 8 1983 action. See Owen v. City of Inde-

pendence, Mo., supra, 100 S. Ct. at 1416-19. This Court

reasoned that the public policies served by the qualified

immunity accorded state officials attenudtes when’ considered

in respect to municipalities, and are therefore overridden by

the public policy inherent in & 1'983' to remedy constitutional’

violations. See id.

Implicit in Owen and other decisions of the Court extend-

ing or limiting immunities from suit under # 1983 is that the

question of immunity does:not even arise except in those cir

cumstances wherein, absent a privilege, liability would attach.

See Jones v. Marshal, supra, 528 F.2d at 139; Restatement (2d)

of Torts #10(1965). Thus; a plaintiff often may be limited to

gilts.

injunctive relief for a constitutional violation, which will be

available even though the guilty officials have acted in good

faith and, due to a privilege, are not liable in damages. See

Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977).

Therefore, the decision to deny municipalities the qualified

immunity of the good faith defense must be viewed in light of

the preceding decision in Monell that liability against a muni-

cipality may be predicated only upon a finding of actual fault

by the municipality itself, as represented by officials in policy-

making positions. See Monell v. New York City Dept. of Social

Services, supra, 436 U.S, at 690-94, The Court expressly reject-

ed the doctrine of respondeat superior—i.e., strict liability for

the acts of one’s employees—as a basis for finding liability

against a municipality. See id. Similarly, the question of

whether to extend an absolute immunity from punitive

damages to all governmental entities must be viewed against

the background of this fault standard for municipal liability

under § 1983. Inasmuch as a municipality can be held liable

under § 1983 only upon a showing of fault by the municial-

ity itself, immunity can be extended only in circumstances

wherein a constitutional violation has occurred, and the muni-

cipality is itself responsible for the deprivation of rights.

Hence, a decision to extend absolute immunity from punitive

damage awards under § 1983 to municipalities would be in

derogation of the public policy inherent in § 1983 to deter

future violations of constitutionally protected rights. See

Owen v. City of Independence, Mo., supra, 100 S. Ct. at

1415-17; Robertson v. Wegmann, 436 U.S. 584, 590-91 (1978);

Carey v. Piphus, 435 U.S. 247, 256-57 (1978).

The test for determining whether a particular claimed im-

munity is implied in § 1983 is a two-pronged une, contemplating

\ ‘

oti

~

both the prevalence of the immunity at common law, and

the compatibility of the public policy served by the privilege

with the public policy enforced by § 1983. See Owen v.

City of Independence, Mo., supra, 100 S. Ct. at 1408-09;

Scheur v. Rhodes, supra, 416 U.S. at 237-47. Thus, in order

to justify the absolute immunity from liability for punitive

damages sought by petitioner-municipality herein, in respect

to its deprivation of constitutionally protected rights, peti-

tioner must show that the immunity sought was firmly rooted

in the common law and that it serves a public policy that

justifies the negative impact upon the policies served by

42 U.S.C. § 1983.

II

The Historical Immunity Of Municipalities From

Punitive Damage Awards Was In A Context Qual

itatively Different Than That Which Exists Under

Monell Liability.

Municipal liability for the acts of its employees and officials

has always occupied a unique position in the law of torts. Both

the majority and dissenting opinions in Owen v. City of Inde-

pendence, Mo., supra, extensively discussed the state of muni-

cipal liability in the mid-Nineteenth Century. Two undisputed

principles appear in respect to the extent of municipal liability.

First, there was never a rule applying an absolute sovereign

immunity to municipal corporations. See id, 100 S. Ct. at

1410-13; Sethy v. Alameda County Water District, supra.

Second, a municipality will, in appropriate circumstances, be

liable for the tortious acts of its employees or agents, without

the necessity of proof that the municipality itself was culpable

may

per the Monell standard. See Owen v. City of Independence,

Mo., supra, 100 S, Ct. at 1410-12 (and authorities cited there-

in).

Petitioner cites several mid-Nineteenth Century cases as

authority for its contention that municipal immunity for

punitive damage awards was firmly rooted in the common

law of the day. While each of the authorities cited do in fact

stand for that proposition, each authority also concedes the

municipalities’ strict liability for negligent torts of its employees,

committed within the course and scope of their empiloyment—

ie., liability predicated upon the doctrine of respondeat sup-

erior. For example, the Alabama Supreme Court, addressing

the question as one of first impression, after some discussion

of countervailing opinions, stated:

“Notwithstanding there is some conflict of authority

upon the subject, we think the doctrine, that a muni-

cipal corpo: ation, in the construction of sewers, acts

ministerially, and is responsible for damages caused by

the careless and negligent manner in which it discharges

that duty, is consistent with reason, demanded by jus-

tice, and supported by a preponderance of authority.

We therefore adopt it.”

City Council of Montgomery v. Gilmer & Taylor,

33 Ala. 116, 130, 70 Am. Dec. 562 (1858).

In that court’s discussion of potential liability, no distinction

was made between the acts of agents of the city and the city

itself, as would only be the case under the doctrine of respon-

deat superior. The theory operated under was essentially that

a municipal corporation, when acting for the benefit of its

members, was little distinguishable from a private corporation.

Thus, when a municipal corporation was “performing the same

owt Jax

‘proprietary ’ functions as any private corporation, [it was

deemed] liable for its torts in the same manner and to the

same extent as well.”” Owen v. City of Independence, Mo.,

supra, 100 S, Ct. at 1412. Accord Chicago v. Langlass, 52

Ill. 256, 4 Am. Rep. 603 (1869); McGary v. President and

Council of Lafayette, 12 Rob. 674, 43 Am. Dec. 239 (1846);

Hunt v. Boonville, 65 Mo. 620, 27 Am. Rep. 299 (1877);

Order of Hermits of St. Augustine v. County of Philadelphia,

4 Clark 124, Brightly NP 116 (1847); Herfurth v. Corporation

of Washington, 6 Dist. Col. 288 (1868); Chicago v. Martini,

49 Ill. 241, 95 Am. Dec. 590 (1869); Woodman v. Nuttingham,

49 N.H. 387, 6 Am. Rep. 528 (1870).

The doctrine of respondeat superior has two primary policy

justifications for its seemingly harsh rule of strict liability.

First, it is a “rule of policy, a deliberate allocation of a risk

. . . [to the] employer [who] . . . is better able to absorb

them, and to distribute them . . . to the community at

large.” W. Prosser, Law of Torts, 458-59 (4th Ed. 1971).

See Jennings v. Davis, 476 F.2d 1271, 1274-75 (8th Cir. ,

1973). This allocation of risk to the public as a whole,

through the employer-principal, is deemed preferable to

obliging the innocent victim to bear the full costs alone,

given the often impecunious condition of the employee-agent

who therefore would be largely judgment-proof.

A second policy justification for this rule of strict liability

of employers for the acts of employees is “the makeweight

argument that an employer who is held strictly liable is under

- the greatest incentive to be careful in the selection, instruction

and supervision of his servants, and to take every precaution

to see that the enterprise is conducted safely.” W. Prosser,

Law of Torts, supra, at 459. Prosser is thus referring to the

- | 3—

normative effect of damage awards upon the persons held

liable. This rationale holds that future torts can be deterred

by forcing the employer-principal to recognize his responsi-

bilities in the operation of his business to properly select,

supervise and instruct employee-agents.

The deterrence rationale enunciated by Prosser and cited

in Jennings v. Davis, supra, is essentially the same justifica-

tion for the award of punitive damages against a tort-feasor.

See, e.g., Carlson v. Green, ..... U.S. ....., 100 S. Ct. 1468,

1473 (1980). In fact, this is the primary justification for

the assessment of punitive damages. See W. Prosser, Law of

Torts, supra, at i 1-14. ,

Therefore, in considering the common law immunity of

municipalities from awards of punitive damages, and the

consequential lack of the deterrent effect, one must also

bear in mind whether other types of damage awards are

obtainable and, if so, whether they can serve a similar pur-

pose of deterrence. Under the common law scheme portray-

ed by petitioner, municipalities were not liable for punitive

damage awards; however, they were strictly liable for many

torts of their agents, thus serving to deter further such torts

by making the municipalities responsible for the selection,

retention, supervision and instruction of employee-agents.

Under Monell, municipalities are clearly not strictly liable

for the acts of employee-agents. To the contrary, they are

liable only for acts committed by persons who, by their

positions and authority, are capable of speaking and/or acting

on behalf of the municipal entity as a whole. Therefore, the

deterrent effect that accrues from implementation of strict

liability per respondeat superior will be absent in § 1983

enforcement of constitutional protections.

re

eS,

Eliminating municipal liability for punitive damages has

some logic when the municipality is accepting respondeat

superior liability for all of the torts of its agents within the

course and scope of employment. See W. Prosser, Law of

Torts, supra, at 12. When the question of whether to bar

punitive damage awards for municipalities is in the context

of limited liability of the municipality for the acts of its

employees—limited to the acts of employees in policy- _'

making positions—the issue presented is qualitatively differ-

ent,

A rule barring the award of punitive damages against a

municipality under § 1983, for constitutional violations by

the entity itself, will not merely implement a traditional

immunity. Rather, such a rule will create a privilege signi-

ficantly broader in scope and weaker in normative effect

than the common law immunity, which went hand in hand

with respondeat superior liability. This difference is suffi-

cient to render considerably less significant the historical

fact that municipalities were afforded immunity from puni-

tive damage awards. Given the change of context within

which the issue of immunity is now arising, the: immunity

rule being sought by petitioner cannot be said to be “firmly

rooted in the common law.”’ Hence, the determinative test

for the question raised herein, whether to accord municipalities

absolute immunity from punitive damages under § 1983,

should be the balance of public interests served by the pro-

posed privilege and the enforcement of constitutional liberties

via punitive damage awards.

Ii

Punitive Damage Awards Are A Necessary Tool For

ish

The Meaningful Enforcement Of Constitutional Rights

Through The Remedial Provisions Of 42 U.S.C. § 1983.

“It is almost axiomatic that the threat of damages has a

deterrent effect, [citation omitted] ... . Punitive damages

are ‘a particular remedial mechanism available in the federal

courts’, [citation omitted] , and are especially appropriate

to redress the violation . . . of a citizen’s constitutional

rights.” Carlson v. Green, supra, 100 S. Ct. at 1473. There

is a significant logic behind the statements of this Court in

Carlson. In many circumstances a clear and unexcusable

violation of constitutional rights has occurred, but the actual

damages are nominal. Under such conditions, there may be

no effective means of deterring future such violations. See

id. at 1473 n. 9.

This problem becomes clear when other potential remedies

are considered in the context of factual circumstances that

are not at all unusual. In Rizzo v. Goode, 423 U.S. 362

(1976), this Court ruled that absent a strong showing of

causation between official conduct and a pervasive pattern

of employee misconduct, federal courts will abstain from

affording injunctive relief that significantly interferes with

the management of a local agency. Under the facts of that

particular case, plaintiffs had alleged approximately twenty

incidents of alleged police misconduct, and based upon that,

sought federal injunctive relief imposing judicial supervision

over police management functions. The Court overruled the

lower federal courts, stating that proof of a mere twenty

such incidents was insufficient proof to justify such a sweep-

ing federal intrusion into a local police agency, in derogation

of the principles of comity and federalism. See Sims v. Adams,

a os

537 F.2d 829, 832 (Sth Cir. 1976). Further, the Court

reasoned that twenty incidents of police misconduct are

probably not at all uncommon in large municipalities,

and that that evidence alone was insufficient proof that

lack of supervision by police management or city officials

is causally connected with any one or more of those inci-

dents, sufficient to meet the causation test under 8 1983.

See Rizzo v. Goode, supra, 423 U.S. at 371; Santiago v.

City of Philadelphia, 435 F. Supp. 136, 149-53 (E.D.Pa.

1977). This latter causation requirement has been read to

require an “affirmative link”’ between the constitutional

deprivations and the alleged acts or omissions of the super-

visors against whom liability is sought. See Rizzo v. Goode,

supra, at 371; Kite v. Kelley, 546 F.2d 334, 337 (10th Cir.

1976).

Even when the evidence is in a state strongly favoring

federal judicial intervention, the mere “‘prospect of an

injunctive order would [create] little incentive to shun

practices of dubious legality.”” Albemarle Paper Co. v.

Moody, 422 U.S. 405, 417-18 (1975).

The abstention rule enunciated in Rizzo reserves injunc-

tive relief to only those most aggravated cases, wherein

sweeping violations have occurred (see Holland v. Connors,

491 F.2¢ 539,541 [Sth Cir. 1974] ), or the officials have

acted with such manifest bad faith as to convince a federal

court that absent judicial intervention the violations will

recur unabated. Thus, injunctive relief will be unavailable

for those cases involving less drastic violations, and in those

cases deterrence necessarily will have to come from damage

awards,

When the sole remedy sought is damages, principles of

va,

~~

comity and federalism are less pertinent. See Sims v. Adams,

supra. This is so because the court is not intruding into the

day-to-day management of the affairs of a local governmental

entity. Damages afford a more specific remedy, as they can be

directed at the express evil sought to be remedied. Conversely,

injunctive relief will often entangle the supervising court in

many local affairs. only tangentially related to the evil that is

the basis for intervention, but which are inseparable therefrom.

However, constitutional violations are not always amenable

to monetary valuation. For instance, in Dellums v. Powell,

566.F.2d 167 (D.C. Cir, 1977), cert, denied, 438 U.S..916,

rehearing denied, 439.U.S. 886, the Circuit Court of Appeals

reversed the damage award of $7500. given by the jury for a

. finding that defendants had violated plaintiff's First Amend-

ment rights. The court, found the amount of damages excessive

for a mere. loss of First Amendment rights, without a further

showing of actual loss. See.id. at.195-96, Similarly, the Fourth

Circuit Court of Appeals, in Burt v. Abel, 585 F.2d 613 (4th

Cir. 1978), discussed the amount of damages recoverable for a

denia], of a.property right. See,id, at 615,16. In such cases,

there is nevertheless a constitutional tort, (Carey v. Piphus, supra,

435.U.S. at 266-67), but “in most cases,.a plaintiff who suffers

only a procedural deprivation, will recover no more than nomi-

nal damages.” Burt,v. Abel, supra, at.61,6. An appropriate

remedy in such circumstances would be “‘recovery of punitive

damages where the deprivation of procedural due process has

been malicious and there is need, to deter or punish violations

of constitutional rights.” Jd. at 616.

_ As Prosser noted, in discussing the rule as to the availability

_ of punitive damages in cases wherein there is no proof of actual

Joss: Tet eer koe

=.=

“Since it is precisely in the cases of nominal damages

that the policy of providing an incentive for plaintiffs

to bring petty outrages into court comes into play, the

view very much to be preferred appears to be that of

the minority which have held that there is sufficient

support for punitive damages.”

W. Prosser, Law of Torts, supra, at 14.

Prosser was thereby recognizing that the critical threshold

necessity of any system of deterrence is the willingness of

some party to initiate the first steps in that system. Carey

v. Piphus, supra, made it very clear that actual loss was not

a prerequisite of an actionable constitutional tort under

§ 1983, and further provided for the liberal allowance of

attorneys fees per 42 U.S.C. § 1988 (i.¢., assessable against

governmental entity). The logical inference from this hold-

ing is that punitive damages may be assessed in a proper

§ 1983 case, whether or not there is proof of actual loss.

See Silver v. Cormier, 529 F.2d 161, 163-64 (10th Cir. 1976)

(and cases cited therein); Guzman v. Western State Bank of

Deviis Lake, 540 F.2d 948, 953 (8th Cir, 1976) (and cases

cited therein). However, few people will pursue civil litiga-

tion when the prospect of success offers only nominal

damages and attorneys fees, but not even a meaningful

deterrence of future tortious conduct. Thus, coiistitutional

deprivations resulting in nominal damages will be without a

meaningful remedy, until such time as they become so per-

vasive as to justify the injunctive remedy repudiated in Rizzo

v. Goode, supra.

This problem becomes severe in those cases wherein the

defendant is alleging a defense of qualified immunity on the

grounds that his acts were merely the “good faith enforcement

ante.

of governmental regulations.” See Milton v, Nelson, 527 F.2d

1158, 1159-60 (9th Cir. 1976); Guzman v, Western State Bank

of Devils Lake, supra, 450 F.2d at 951-53. This defense can

be successfully asserted even though the government regula-

tion is itself ultimately determined to be unconstitutional

Milton v, Nelson, supra, at 1159-60, Thus, if the alleged con-

stitutional violation occurs as a result of the good faith en-

forcement of unconstitutional government regulations, but

the regulations were enacted or retained in patently bad

faith by the municipality, punitive damages assessed against

the municipality may be the only effective deterrent of

future violations, See Carlson v, Green, supra, 100 S. Ct.

at 1473 n. 9, If the plaintiff has not suffered actual loss,

and injunctive relief is unavailable or relatively ineffective

(see Albemarle Paper Co. v. Moody, supra), no remedy other

than punitive damages will succeed in placing a penalty on

the malicious conduct of the municipality’s policy-making

officials.

As this Court noted in Owen v. City of Independence, Mo:,

supra, a critical purpose of § 1983 is the deterrence of future

constitutionnal violations. See Owen v. City of Independence,

Mo., supra, 100 S. Ct. at 1416. To create a rule of absolute

immunity from punitive damages for municipalities would

be to insulate such municipalities from a critical deterrent

against constitutional torts, often in circumstances when no

other practical tool is available for that purpose. The result

of such a rule would be inconsistent with the policy under-

lying § 1983. No countervailing policy upholding municipal

immunity justifies so extreme a result. Even the dissenting

opinion in Owen, see id., at 1419, does not seem to counten-

ance such an extreme result, since the gravamen of the dissent

20

is that a qualified immunity should be available for muni-

cipalities, creating a privilege for good faith violations of

constitutional protections, In contrast, the liability of a

municipality for punitive damages under Monell v, New

York City Dept. of Social Services, supra, and other deci-

sions relating to the award of punitive damages, see discus-

sion infra, could only be predicated upon a finding of actual

fault and malice by the municipal entity itself. There is little

logic in affording a privilege to a defendant who, on the

broad spectrum of possibilities, is among the most culpable.

IV

Municipal Liability For Punitive Damages Is Appro-

priate Because It Will Be Limited To Cases In Which

The Municipality Will Be At Fault, And Where There

Is A Showing Of Malice Or Bad Faith By Policy-making

Officials.

In Rizzo v. Goode, supra, this Court provided the stan-

dard by which a supervisor may be amenable to suit under

42 U.S.C, § 1983 for constitutional violations perpetrated

by employees under his supervision. Specifically, the Court

postulated, in effect, that there must be an “affirmative link

between the occurrence of the various incidents of police

misconduct and the adoption of any plan or policy . . .

—express or otherwise—showing their authorization or approv-

al of such misconduct.” Rizzo v. Goode, supra, 423 U.S. at

371. Although Rizzo involved a claim for injunctive relief,

the same causation standard has been generally adopted in

cases both preceding and following the Rizzo decision.

In Kite v. Kelley, supra, the Tenth Circuit ruled that the

‘a.

“ ‘affirmative link’ requirement . . . means . . . that before

a superior may be held for acts of an inferior, the superior, ex-

pressly or otherwise, must have participated or acquiesced in

the constitutional deprivations of which complaint is made.”

Kite v. Kelley, supra, 546 F.2d at 337. In Hampton v. Holm-

esburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976), the

Third Circuit held that, to obtain liability against a super-

visor for the acts of an inferior, the plaintiff must show that

the supervisor either (a) participated in the act complained

of, or (b) had knowledge of the constitutiona! deprivation and

acquiesced in the conduct. Jd. at 1082. Accord, Black v.

Brown, 513 F.2d 652, 654 n. 3 (Sth Cir, 1975). The Fifth

Circuit has also held that a “supervisory defendant is subject

to § 1983 liability when he breaches a duty imposed by state

or local law, and this breach causes plaintiff's constitutional

injury.”” Sims v. Adams, supra, 537 F.2d at 831. The same

court added that a “complaint alleging that a . . . supervisor

has notice of past culpable conduct of his subordinates and

has failed to prevent a recurrence of such misconduct states

a8 1983 claim.” Jd. at 832.

Similarly, the Sixth Circuit has ruled that in the absence of

a showing that the supervisor “tis somehow personally at fault

by actively participating in, encouraging or directing the com-

mission of illegal acts by his subordinates, there can be no

recovery against him.” Coffy v. Multi-County Narcotics

Bureau, 600 F.2d 570, 580 (6th Cir. 1979). That Circuit

added that to make out an actionable case of “‘nonfeasance’’,

there must be evidence that the supervisor “‘was put on notice

of an alleged scheme . . . that he should have prevented. /d.

The Ninth Circuit has held that a supervisor may te deemed

liable for a failure to act when there was a clear duty to act,

93.

whether by virtue of statute or regulation. See Johnson v.

Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). Accord, Davis

vp, Zahradnick, 600 F.2d 458, 459 n. 1 (4th Cir. 1979) (neg-

lect of duty to supervise prison guards actionable under

§ 1983). See, generally, Santiago v. City of Philadelphia,

supra, 435 F. Supp. at 150-53 (and cases cited therein) (ex-

haustive discussion of causation requirement). ‘.

42 U.S.C, 8 1983 requires that the “‘person”’ held liable

either be a direct participant in the alleged deprivation of

rights, or have some other causal relationship with the mis-

conduct—i.e., there must be an affirmative link between the

supervisory conduct and the alleged deprivation of rights.

Liability of municipalities will also result only after a similar

showing of an affirmative link between the acts of “its law-

makers or by those whose edicts or acts may fairly be said

to represent official policy” (see Monell v. New York City

Dept. of Social Services, supra, 436 U.S. at 694) and the

acts of alleged misconduct. The Second Circuit, following

Moneil, has ruled that such liability may be founded upon

a supervisor’s failure to supervise when that failure is so

severe as to amount to “gross negligence”’ or “deliberate

indifference”. See Owens v. Haas, 601 F.2d 1242, 1246

(2d Cir. 1979),

The sum of these decisions is that a municipality will not

be held liable absent a clear showing of fault by the muni-

cipality, as evidenced by the officials and/or bodies which

have the authority to act or speak for the governmental

entity on matters of policy or practice. Therefore, the issue

of punitive damages vis-a-vis a municipality will arise only in

those cases where the plaintiff alleges facts sufficient to bring

his cause of action within the fault requirement under Monell,

ee

As the Second Circuit noted in Owens v. Haas, supra, “this

concept of ‘deliberate indifference’ does not hold the county

at fault for the actions of its employees on a respondeat sup-

erior basis; it holds the county liable for its own actions

which result in deprivation of constitutional rights.”’ Jd. at

1246.

Once a determination is made that a governmental entity

is liable to a plaintiff for constitutional violations resulting

from its “own actions”, punitive damages may be awarded,

but only if the plaintiff can meet the-burden of proof that

is normally required for such damages. Urider normal cir-

cumstances, a plaintiff will not be able to recover punitive

damages. See Burt v. Abel, supra, 585 F.2d at 616. How-

ever, ‘punitive damages may also be awarded in civil rights

actions where the defendant exhibits oppression, malice,

gross negligence, willful or wanton misconduct, or a reck-

less disregard for the civil rights of the plaintiff. [Citations

omitted.]’’ Guzman v. Western State Bank of Devils Lake,

supra, 450 F.2d at 953. The Tenth Circuit used similar

language in providing the standard for liability for punitive

damages, stating that a jury may award punitive damages

when a “public official manifests a reckless indifference

to the property rights of others, ill will, a desire to injure,

or malice.” Silver v. Cormier, supra, 529 F.2d at 163-64

(and cases cited therein).

Conversely, the Third Circuit held that:

‘A superior police officer may not be subjected to pun-

itive damages because of wrongful acts by a subordinate

officer if there is no evidence that the superior officer

ordered or personally participated in the acts, or knew

or should have known that the acts were taking place

pa,

and acquiesced in them. See Restatement (2d) of

Torts §909.”

Fisher v. Volz, 496 F.2d 333, 349 (3d Cir. 1974).

Moreover, even when a jury has properly found the ele-

ments prerequisite to an award of punitive damages, a trial

or appellate court can modify the award downward if the

initial award is excessive. See Guzman v. Western State Bunk

of Devils Lake, supra, at 954 (award reduced by appellate

court). Thus, the courts, who will not be as prone as juries

might be to make extravagant awards based upon the emo-

tions of the moment, will be able to assure that reasonable

and appropriate awards of punitive damages will be made.

There is in fact no reason to believe that municipalities will

be bankrupted by excessive punitive damage awards. The

majority rule has long been to hold private corporations

liable for punitive damages for the acts of their agents within

the course and scope of their employment. This rule has

applied even to those acts not ratified or approved by the

corporation—i.e, strict liability per respondeat superior.

W. Prosser, Law of Torts, supra, at 12. Prosser added that

“this is especially true in the case of corporations, who can

only act through their agents.”’ Jd. F

Thus, the award of punitive damages against municipal

entities will be limited by the strict application of those

rules already in force in respect to such awards against

supervisors. Liability for punitive damages will not arise

from evidence of “‘a bare violation of § 1983.” See Addickes

v. S. H. Kress & Co., 398 U.S. 144, 233 (1970) (Brennan, J.

concurring in part and dissenting in part). There does not

appear to be any significant policy consideration counter-

vailing the public interest in having the Constitution duly

—~25—

enforced, including by the means of punitive damages, when

necessary to implement the policies inherent in § 1983.

V

The American Public Has An Interest In The Vigor-

ous Enforcement Of Constitutional Protections That

Supersedes The Financial Interests Of Individual

Communities And The Political Interests Of Local

Officials.

The deterrent policies underlying 8 1983 are for the benefit

of the entire population whose rights are enforced thereby, not

merely for the benefit of the individual plaintiff. This is the

essence of the private attorney general doctrine, on which

attorneys fees rulings were initially based, and upon which

this Court has sought to base many of its expansive interpre-

tations of the various civil rights statutes. See, generally,

Carey v. Piphus, supra; Sullivan v. Little Hunting Park, Inc.,

396 U.S. 229 (1969). The public clearly has an interest in the

proper enforcement of constitutional protections, and when

government officials abrogate their sworn duty to uphold the

Constitution, they must be brought to task. As noted earlier,

“punitive damages may be the only significant remedy avail-

able in some § 1983 actions where constitutio“ial rights are

maliciously violated but the victim cannot prove compensable

injury.” Carlson v. Green, supra, 100 S. Ct. at 1473 n. 9. In

such circumstances, the public has an interest that there be

some remedy for those malicious violations to, at minimum,

deter future misconduct.

The notion that a municipality and its citizenry are separable

legal persons defies logic. First, the acts of the municipality

= 26—

are not necessarily distinguishable from those of its citizenry.

Participatory democracy at the local level is often very high,

with legislative enactments often originating or culminating

with a vote of the public at large. In some circumstances,

such referenda may result in legislation that is in violation

of the United States Constitution. See Reitman v. Mulkey,

387 U.S. 369 (1967). (Supreme Court held an initiative

concerning housing, passed by statewide referendum, to

violate the Fourteenth Amendment to the federal Consti-

tution! ). Further, this country’s political system is founded

upon republicanism—i.e., the principle that political decisions

on behalf of the public are made by elected representatives,

who are in turn responsible to the voters for their decisions

and conduct.

The public served by enforcement of the Constitution is not

the local population wherein the constitutional violations are

alleged to be occurring. Rather, the public interest benefited

by enforcement via § 1983 is that of the entire nation. Every

citizen is deemed to have an interest in the vigorous enforce-

ment of constitutional rights guarantees, whether the malfeasor

is an individual acting under color of state law, or a governmen-

tal entity acting in the name of a local population. As this

Court stated in United States v. Classic, 313 U.S. 299 (1941),

the purpose of the Civil Rights Act was to protect against the

“misuse of power, possessed by virtue of state law and made

10 Amici curiae do not suggest by citation of this case that the State

of California, which is immune under the doctrine of sovereign

immunity, would or should be liable for any damages. Reitman is

offered only as significant example of an unconstitutional enactment

by a governmental entity wherein the body politic was directly respon-

sible.

a, y Pe

possible only because the wrongdoer is clothed with the

authority of state law.”’ Jd. at 326.

If the consequences of a punitive damage award is that

public officials responsible therefor are politically held to

account for their actions, that fact is at worst irrelevant

(see Zarcone v. Perry, $72 F.2d 52 [2d Cir. 1978] ), and at

best a salutary result intended by damage awards in cases

of constitutional torts (see Owen v, City of Independence,

Mo., supra, 100 S. Ct. at 1418-19 & nn. 40, 41). A punitive

damage award can only arise upon a finding that the party

so assessed committed a malicious violation of constitu-

tional rights, in derogation of the official’s sworn duty

to uphold and defend the Constitution. Unlike the issues

presented in Owen v. City of Independence, Mo, and other

cases defining the extent of the good faith immunity of

public officials, the issue in this case is the liability for

malicious, knowing acts of misconduct. Sympathy for

the perpetrators of the acts is surely misplaced.

Petitioner’s concern for the political future of the local

officials deemed responsible for the violations of plaintiff's

constitutional rights, as determined by a jury following trial,

> only underlines the effectiveness of the deterrent force of

punitive damage awards against both the municipality and

the individuals. It is only fitting that these individuals

should now find themselves compelled to answer to the

local body politic for their failure to properly carry out

their duties of office. To grant the absolute privilege sought

by petitioner would only assist the malfeasant officials in

shielding their tortious conduct from public view, with the

attendant possibility that their misconduct will be repeated.

Applying liability for punitive damages to municipalities

a,

will compel municipal officials to duly consider the impact

of their actions, particularly malicious constitutional torts,

on the public treasury, for they will fear being held political-

ly or personally responsible for the consequences. This is as

it should be. See Owen v. City of Independence, Mo., supra,

100 S. Ct. at 1418 7 n. 41; Simineo v. School Dist. No. 16,

Park City, Wyo., 594 F.2d 1353, 1357 (10th Cir. 1979)

(punitive damages allowable against municipality); Fulton

Market Cold Storage v. Cullerton, 582 F.2d 1071, 1073 (7th

Cir. 1978) (punitive damages allowable against municipality);

Bradshaw v. Zoological Society of San Diego, 569 F.2d 1066,

1068 (9th Cir. 1978) (punitive damages allowable against

municipality). As Prosser stated, in relating the essential

rationale for awarding punitive damages: “If such damages

will encourage employers to exercise closer control over

their servants for the prevention of outrageous torts, that

is sufficient ground for awarding them.” W. Prosser, Law of

Toris, supra, at 12.

CONCLUSION

This Court in Monell deemed municipalities to be persons

under 42 U.S.C. § 1983, and based upon that statutory con-

struction, limited municipal liability to circumstances in which

the municipality itself is culpable in the same sense that fault

must be proved against any natural person. Inasmuch as muni-

cipal liability has been limited to fault situations, municipalities

should have coextensive liability with all natural persons

found liable under the terms of 8.1983. Therefore, munici-

palities should be liable for punitive damages to the same extent

as natural persons—i.e., when the elements of malice or bad faith

29.

can be directly attributed to officials or governmental

bodies in whose name Monell liability can be attributed

to the municipality.

Respectfully submitted,

MEIR J. WESTREICH

1711 North Broadway

Santa Ana, California 92706

714 - 541-4324

FRED OKRAND

633 South Shatto Place

Los Angeles, California 90012

213 - 487-1720

LYNETTE LABINGER

220 South Main Street

Providence, Rhode Island 02903

403 - 277-9300

Attorneys for Amici Curiae

PROOF OF SERVICE BY MAIL

Rule 28(c)

STATE OF CALIFORNIA )

) ss,

County of Orange )

I, the undersigned, say: I am and was at all times herein mentioned, a citizen of the

United States and employed in the County of Orange, State of California, over the

age of eighteen years and not a party to the within action or proceeding;

My address and place of doing business is 326% Main Street, Huntington Beach,

California 92648, that on FEBRUARY 27, 1981, I served the within BRIEF OF

ACLU FOUNDATION, SOUTHERN CALIFORNIA AND AMERICAN CIVIL

LIBERTIES UNION, RHODE ISLAND AFFILATE AS AMICI CURIAE (No. 80-396)

on the following named parties by depositing three copies thereof, enclosed in a

sealed envelope with postage thereon fully prepaid, in the United States Post Office

in the City of Huntington Beach, California, addressed to said parties at the addresses

as follows:

LEONARD DECOF

DECOF & GRIMM

One Smith Hill

Providence, Rhode Island 02903

Attorney for Respondent

GUY J, WELLS

GUNNING, LaFAZIA & GYNS, INC.

410 Turks Head Building

Providence, Rhode Island 02903

Attorney for Petitioner

I declare under penalty of perjury that the foregoing is true and correct.

Executed on FEBRUARY 27, 1981, at HUNTINGTON BEACH, CALIFORNIA.

D. A. Standefer

The affidavit of Fred Okrand, an attorney at law admitted to

practice before the Supreme Court of the United States, will be

forwarded with reference to the mailing of the original and 40

copies of the within Brief of Amici Curiaz to the Supreme Court

Clerk.

Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648

(714) 536-7161