# Amicus Brief — Newport v. Fact Concerts, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1981
- **Citation:** 453 U.S. 247

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0415%3A07. Public record. Not legal advice.