Municipal Immunity

*Professor of Law, UCLA School of Law. Thanks to Karen Blum, James Doyle, David Gans, James Pfander, Alexander Reinert, David Rudovsky, and Dan Schwartz for reading an early draft of this Article and offering sage advice. For help gathering and analyzing the data, special thanks to Madeleine Mozina, Brian Raphael, and Adam Swank. For calculating the statistical significance of my findings, I am indebted to UCLA School of Law’s Empirical Research Group—Benjamin Nyblade, Henry Kim, and Lucy Yang. Thanks also to David Anders, Biruktawit Assefa, Haley Gorman, Hunter Heck, Ella Jenak, Valerie Listorti, Lauren McNerney, Audrey Payne, Casey Schmidt, and the editors of the Virginia Law Review for their excellent editorial assistance.Show More

Although qualified immunity has taken center stage in recent debates about police misconduct and paths to reform, this Article focuses on another doctrine that has been largely overlooked yet merits at least equal attention—the standards for holding local governments liable for constitutional violations of their officers (also referred to as Monell doctrine, in reference to the Supreme Court case that first recognized the right to sue municipalities under Section 1983).

This Article reports the findings of the largest and most comprehensive study to date examining and comparing the challenges of qualified immunity and Monell doctrine in almost 1,200 police misconduct lawsuits filed in five federal districts across the country. I find that it is far more difficult for plaintiffs to prove Monell claims against municipalities than it is for plaintiffs to defeat qualified immunity. In my dataset, local governments challenged Monell claims more often than individual defendants raised qualified immunity—at both the motion to dismiss and summary judgment stages—and, at both stages, courts dismissed Monell claims more often than they granted officers qualified immunity. Plaintiffs regularly abandoned their Monell claims against local governments during the course of litigation as well. Very few Monell claims made it to trial; even fewer succeeded. If popular commentary has overstated the harms of qualified immunity doctrine, it has understated the challenges of Monell.

To ensure that people are compensated when their constitutional rights are violated, local governments should be held vicariously liable for their officers’ constitutional violations. Strengthening the deterrent effect of Section 1983 suits on officers and local governments is a more complicated task, but a package of state and local reforms I outline holds promise. These proposed reforms may be even more important than ending qualified immunity to our system of constitutional remediation; they may also be more palatable to lawmakers and law enforcement officials who have thus far opposed ending qualified immunity. This may be one of those rare instances when the most pressing reform—ending Monell—is also the most pragmatic.

Introduction

Qualified immunity has taken center stage in recent debates about police misconduct and paths to reform. In the weeks after George Floyd’s murder in May 2020, people held handwritten signs in protests across the country, calling for the defense’s abolition.¹ 1.See, e.g., Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests, N.Y. Times (Oct. 18, 2021), https://www.nytimes.com/2020/06/23/us/politics/‌qualified-immunity.html [https://perma.cc/PS4C-ZQSX]; Kimberly Kindy, Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Nearly Every Bill., Wash. Post (Oct. 7, 2021, 6:00 AM), https://www.washingtonpost.com/politics/‌qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1‌-42a8138f132a_story.html [https://perma.cc/4QUY-WC9M].Show More Eliminating qualified immunity quickly became a key component of proposed legislation introduced in Congress and state legislatures to shore up civil rights protections.² 2.See, e.g., Madeleine Carlisle, The Debate Over Qualified Immunity Is at the Heart of Police Reform. Here’s What to Know, Time (June 3, 2021, 6:35 PM), https://time.com/‌6061624/what-is-qualified-immunity/ [https://perma.cc/GCB4-72PG] (describing Congress’s George Floyd Justice in Policing Act); Kindy, supranote 1 (describing state legislative efforts).Show More Following the January 2023 killing of Tyre Nichols by Memphis police officers,³ 3.Jonathan Franklin & Emma Bowman, What We Know About the Killing of Tyre Nichols, NPR (Jan. 28, 2023, 4:50 PM), https://www.npr.org/2023/01/28/1151504967/tyre-nichols-memphis-police-body-cam-video [https://perma.cc/JGR2-D7Z2].Show More calls to end qualified immunity resumed with comparable passion.⁴ 4.See, e.g., Rep. Justin Amash (@justinamash), Twitter (Jan. 28, 2023, 10:58 AM), https://twitter.com/justinamash/status/1619364385214066688 [https://perma.cc/V97Z-Z3‌SA] (“Reintroduce and pass my tripartisan legislation to end qualified immunity.”); Rep. Ilhan Omar (@IlhanMN), Twitter (Jan. 27, 2023, 9:12 PM), https://twitter.com/IlhanMN/status/‌1619156319923212288 [https://perma.cc/6EQ7-75VM] (“End Qualified Immunity!”).Show More

Qualified immunity is a deserving target of criticism—it shields individual officers from civil liability, even when they have violated the Constitution, simply because there is no prior court opinion holding unconstitutional nearly identical facts.⁵ 5.See, e.g., Carlisle, supra note 2; Joanna C. Schwartz, Suing Police for Abuse Is Nearly Impossible. The Supreme Court Can Fix That., Wash. Post (June 3, 2020, 2:17 PM), https://www.washingtonpost.com/outlook/2020/06/03/police-abuse-misconduct-supreme-co‌urt-immunity/ [https://perma.cc/TA4E-VN5H].Show More And although the U.S. Supreme Court has justified qualified immunity as necessary to protect officers from the costs and burdens of litigation in “insubstantial” cases,⁶ 6.Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982).Show More available evidence makes clear that the doctrine is neither necessary nor well-suited to achieve these policy goals.⁷ 7.See Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 60–64 (2017) [hereinafter Schwartz, How Qualified Immunity Fails] (finding, based on a review of 1,183 police misconduct cases, that qualified immunity leads to the dismissal of less than 4% of civil rights cases, undermining the role of qualified immunity as a protection against the burdens of discovery and trial, and may actually increase litigation costs); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 938–43 (2014) [hereinafter Schwartz, Police Indemnification] (showing that officers virtually never contribute to settlements and judgments against them, limiting the need for qualified immunity to protect officers from financial liability).Show More But there is another legal doctrine that has been largely overlooked⁸ 8.For a few exceptions, see Mark C. Niles, Here’s a More Important Reform than Ending Qualified Immunity,LawFare (May 18, 2021, 2:13 PM), https://www.lawfareblog.com/heres-more-important-reform-ending-qualified-immunity [https://perma.cc/84VD-Z84Y]; Orion de Nevers, A Dubious Legal Doctrine Protects Cities from Lawsuits over Police Brutality, Slate (June 2, 2020, 2:16 PM), https://slate.com/news-and-politics/2020/06/monell-supreme-court-qualified-immunity.html [https://perma.cc/PM6B-GM3B]. Municipal liability has been a more sustained focus of study and criticism among scholars and advocates. For examples of this research and commentary, see infraSection I.C.Show More in the current debate about civil rights enforcement, yet merits comparable attention and critique—the standard for holding local governments liable for the constitutional violations of their officers.

In 1978, in Monell v. Department of Social Services, the Supreme Court first ruled that local governments could be sued under 42 U.S.C. § 1983 for constitutional violations by their employees.⁹ 9.436 U.S. 658, 663 (1978).Show More But the Court ruled that local governments could not be held vicariously liable for their employees’ constitutional violations—as private employers are for the torts of their employees.¹⁰ 10.Id. at 691–95.Show More Instead, a plaintiff must prove that the local government had an unlawful policy or custom that caused their employee to violate the Constitution.¹¹ 11.Id.at 694 (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”).Show More

Monell, and the Supreme Court’s and lower courts’ decisions that have developed the contours of Monell doctrine over the past forty-five years, have inspired harsh critique.¹² 12.These critiques, along with an overview of the history of Monell doctrine and its contours, are outlined in Part I.Show More Some argue that the Court’s rejection of respondeat superior liability in its Monell decision was based on a misunderstanding of the legal landscape in 1871, when Section 1983 became law, as well as the statute’s legislative history.¹³ 13.See infranote 89 and accompanying text.Show More Commentators criticize the various theories that have emerged for proving municipal liability under Monell as exceedingly complex and indeterminate—a “maze,” in Karen Blum’s view.¹⁴ 14.Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 914 (2015); see also infranotes 90–91 and accompanying text (describing critiques of Monell doctrine’s complexity).Show More And many contend that Monell’s standards are so difficult for plaintiffs to satisfy that municipal liability is “practically unavailable to litigants.”¹⁵ 15.Brian J. Serr, Turning Section 1983’s Protection of Civil Rights into an Attractive Nuisance: Extra-Textual Barriers to Municipal Liability Under Monell, 35 Ga. L. Rev. 881, 883 (2001); see also infra notes 92–96 and accompanying text (describing the prevailing view that it is nearly impossible for plaintiffs to prevail on Monell claims).Show More

Monell’s historical critique is well documented. The critique of Monell’s complex and indeterminate standards is self-evident. Yet, the claim that it is near-impossible to prevail on Monell claims is based on little more than anecdote and supposition. Over the past several years, we have come to learn a great deal about how qualified immunity works on the ground—how it influences attorneys’ decisions about whether to take a case;¹⁶ 16.See generally Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477 (2011) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file Bivens claims against federal officials); Joanna C. Schwartz, Qualified Immunity’s Selection Effects, 114 Nw. U. L. Rev. 1101 (2020) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file § 1983 claims against law enforcement defendants).Show More the frequency with which the defense is raised, granted by courts, and is dispositive;¹⁷ 17.See generally Schwartz, How Qualified Immunity Fails, supranote 7 (reporting these findings).Show More the role that it plays at trial;¹⁸ 18.See Alexander A. Reinert, Qualified Immunity at Trial, 93 Notre Dame L. Rev. 2065, 2068 (2018) (finding that “juries are rarely instructed on qualified immunity, nor are they routinely asked to resolve disputed factual questions that might bear on application of the defense,” but that “when juries are instructed on qualified immunity, plaintiffs are much less likely to prevail at trial”).Show More and the success of qualified immunity on appeal.¹⁹ 19.See generally Aaron L. Nielson & Christopher J. Walker, Strategic Immunity, 66 Emory L.J. 55 (2016) (measuring variation among circuit judges in their assessment of qualified immunity appeals); Alexander A. Reinert, Qualified Immunity on Appeal: An Empirical Assessment (Cardozo L. Sch. Fac. Rsch. Paper No. 634, 2021), https://ssrn.com/abstract‌=3798024 [https://perma.cc/WJR2-KWVZ] (finding that appellate courts reverse decisions denying qualified immunity far more often than they reverse decisions granting qualified immunity).Show More But we have comparably little understanding of how federal constitutional claims against local governments fare in court.²⁰ 20.For important research about municipal liability claims that is a clear exception to this general observation, see Nancy Leong, Municipal Failures, 108 Cornell L. Rev. 345, 380 (2023) [hereinafter Leong, Municipal Failures] (examining the success of failure-to-supervise claims on appeal and arguing that such claims are often overlooked by attorneys but successful in court); Nancy Leong, Civil Rights Liability for Bad Hiring 1, 46–49 (Aug. 8, 2023) (unpublished manuscript) (on file with author) (examining the difficulty of proving failure-to-screen claims). See generally Nancy Leong, Katelyn Elrod & Matthew Nilsen, Pleading Failures inMonell Litigation, Emory L.J. (forthcoming 2024), https://papers.ssrn.com/sol3/‌papers.cfm?abstract_id=4378738 [https://perma.cc/MK7R-PZAX] (examining widespread deficiencies in complaints’ Monell allegations).Show More How often do plaintiffs sue local governments for the constitutional violations of their officers? How often do local governments seek to dismiss these claims before and after discovery? How often do courts grant governments’ motions? How often do plaintiffs abandon their Monell claims?

In this Article, I begin to fill these critically important gaps. In 2017, I published a study that analyzed the federal dockets of 1,183 lawsuits filed against law enforcement defendants over a two-year period in five federal district courts across the country to better understand the role qualified immunity actually plays in police misconduct cases.²¹ 21.See generally Schwartz, How Qualified Immunity Fails, supra note 7 (finding that fewer than 4% of the police misconduct cases filed were dismissed on qualified immunity grounds, offering possible explanations for these findings, and considering their implications for qualified immunity doctrine’s goals).Show More In this Article, I examine those same 1,183 federal case dockets to understand how Monell claims fared in these lawsuits.

In my 2017 study, I concluded that qualified immunity doctrine had a more nuanced impact on police misconduct cases than is suggested in court opinions and critical commentary.²² 22.See id. at 9–11; see also Joanna C. Schwartz, After Qualified Immunity, 120 Colum. L. Rev. 309, 316–17 (2020) [hereinafter Schwartz, After Qualified Immunity] (offering several predictions about how constitutional litigation would function in a world without qualified immunity).Show More I found that qualified immunity doctrine increases the burdens and time spent on civil rights cases for plaintiffs’ attorneys, and likely discourages lawyers from taking some civil rights cases.²³ 23.See Schwartz, How Qualified Immunity Fails, supra note 7, at 50–51 (arguing that qualified immunity increases the costs and time necessary to litigate civil rights cases, and may discourage attorneys from accepting civil rights cases); Schwartz, After Qualified Immunity, supranote 22, at 338–51 (same).Show More But qualified immunity is raised by defendants and granted by courts less frequently than is suggested in popular critiques, and is the reason a relatively small percentage of civil rights cases are dismissed.²⁴ 24.See Schwartz, How Qualified Immunity Fails, supranote 7, at 48–49 (describing these findings).Show More

Having reviewed these same cases to understand how constitutional claims against local governments progress in federal courts, I find that the doctrine makes it extremely difficult for plaintiffs to prevail on Monell claims challenging police policies and practices. If popular commentary has overstated the harms of qualified immunity doctrine, it has understated the challenges of Monell.

It is far more difficult for plaintiffs to prove Monell claims against municipalities than it is for plaintiffs to defeat qualified immunity when raised by individual government defendants.²⁵ 25.I outline these findings in Part II.Show More In my dataset, local governments challenged municipal liability claims more often than individual defendants raised qualified immunity—at both the motion to dismiss and summary judgment stages—and, at both stages, courts dismissed Monell claims more often than they granted officers qualified immunity. Plaintiffs regularly abandoned their Monell claims against local governments during the course of litigation as well. Very few Monell claims made it to trial; even fewer succeeded.

Careful study of the dockets and decisions in my dataset suggests several reasons that it might be so difficult to plead and prove Monell claims.²⁶ 26.I describe these possible explanations for my findings in Part III.Show More First, the plausibility standard articulated by the Supreme Court in Iqbal and Twombly makes it particularly challenging for plaintiffs to survive motions to dismiss;²⁷ 27.See infra notes 121–26 (outlining findings in the dataset); infra notes 153–57 and accompanying text (presenting the plausibility standard theory).Show More in many cases, plaintiffs cannot find the type of evidence that would support their Monell claims without formal discovery. Second, at summary judgment, plaintiffs have a heavy burden—in addition to proving that their constitutional rights were violated, they must come forth with evidence of an unconstitutional policy or a pattern of prior misconduct that suggests an unwritten policy, the policymaker’s deliberate indifference to that prior misconduct, and proof that that deliberate indifference caused the constitutional violation.²⁸ 28.See Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 411 (1997); City of Canton v. Harris, 489 U.S. 378, 388–89 (1989).Show More Even when plaintiffs managed to offer proof to support each of these elements, courts in my dataset found that the evidence was not sufficient to create a material factual dispute. Third, Monell claims are expensive, even at the pleadings stage, and these costs may lead plaintiffs to abandon their Monell claims—especially if the named officers are likely to be indemnified. Fourth, Monell doctrine is unsettled;²⁹ 29.See, e.g., Michael Avery, David Rudovsky, Karen M. Blum & Jennifer Laurin, Police Misconduct Law and Litigation § 4:15 (3d ed. 2022) (“Despite the resolution of several principal questions in this area by the Supreme Court, one should still expect both factual and legal issues to be hotly contested where municipal liability claims are made.”); see also infranotes 199–201 and accompanying text (describing intra-circuit disagreement about how to apply Iqbal’s “plausibility” pleading standard to Monell claims).Show More multiple open questions lead courts to apply widely varying standards, even in the same circuit, which likely encourages defendants to file more motions and creates greater uncertainties for plaintiffs evaluating the costs and benefits of pursuing a Monell claim.

Having explored the challenges associated with bringing Monell claims, I next consider the extent to which these challenges frustrate our system of civil rights remediation.³⁰ 30.I set out these challenges in Part IV.Show More Some commentators—myself included—have observed that the difficulty of prevailing on Monell claims may matter little because individual officers can be sued and are almost always indemnified by their government employers.³¹ 31.See infranote 205 and accompanying text.Show More Further reflection and research has led me to reconsider this view. It is true that when a plaintiff prevails against an officer and the local government indemnifies, she effectively recovers from the city, even if her Monell claim fails. It is also true that, as I found in a prior study, local governments—not officers—pay 99.98% of the money received by plaintiffs in police misconduct cases.³² 32.See generally Schwartz, Police Indemnification, supranote 7, at 890 (“Between 2006 and 2011, in forty-four of the country’s largest jurisdictions, officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil rights damages actions resolved in plaintiffs’ favor, and their contributions amounted to just .02% of the over $730 million spent by cities, counties, and states in these cases.”).Show More But, despite the ubiquity of indemnification, there are multiple ways in which municipal immunity enlarges the schism between right and remedy. If an officer who violated a person’s constitutional rights is denied indemnification, or granted qualified immunity, or cannot be identified by name, a Monell claim against the local government can be the only opportunity to recover. Monell claims can also afford the only way to win a judgment against a local government that may create political pressure to change, and secure injunctive relief.

Section 1983 was enacted more than 150 years ago as a means to compensate people whose constitutional rights have been violated and deter future misconduct.³³ 33.See Monroe v. Pape, 365 U.S. 167, 171 (1961) (describing the historical context of Section 1983).Show More Monell doctrine in its current form undermines both of these values. To ensure that people are compensated, local governments should be held vicariously liable when their officers violate the Constitution. Strengthening the deterrent effect of Section 1983 suits on officers and local governments is a more complicated task, but a package of state and local reforms I outline holds promise.³⁴ 34.These proposals are described in further detail inPart V.Show More

My recommendations, although ambitious, are not merely academic musings. Indeed, these types of changes to municipal liability doctrine may actually be more politically palatable than are proposals to do away with qualified immunity. Critics of qualified immunity reform rest their opposition on the (baseless) concern that officers will be bankrupted for reasonable mistakes and “leave the profession in droves”;³⁵ 35.See, e.g., Kindy, supra note 1 (“[State legislative efforts to limit qualified immunity] failed amid multifaceted lobbying campaigns by police officers and their unions targeting legislators, many of whom feared public backlash if the dire predictions by police came true. Officers said they would go bankrupt and lose their homes. They said their colleagues would leave the profession in droves.”).Show More vicarious liability for local governments would eliminate these concerns about officers’ bank accounts and motivations.³⁶ 36.For bills introduced by Congress and state legislatures, and enacted in New Mexico, that would make local governments vicariously liable for constitutional violations by their officers, see infranotes 261–64 and accompanying text.Show More Perhaps for this reason, Republican Senators Tim Scott and Lindsey Graham, who are staunchly opposed to any provision ending qualified immunity, have each signaled that they favor holding local governments liable for their officers’ constitutional violations.³⁷ 37.See Billy Binion, Tim Scott Is Proposing a Major Reform to Qualified Immunity, Reason (Apr. 22, 2021, 12:24 PM), https://reason.com/2021/04/22/tim-scott-is-proposing-a-major-reform-to-qualified-immunity/ [https://perma.cc/Q2QA-D6ZE] (describing Senator Scott’s proposal to create vicarious liability during police reform legislation negotiations after George Floyd’s death); Janice Hisle, In Wake of Tyre Nichols’s Death, Sen. Lindsey Graham Suggests Policing Reform Compromise, Epoch Times (Jan. 31, 2023), https://www.theepochtimes.‌com/in-wake-of-tyre-nichols-death-sen-lindsey-graham-suggests-policing-reform-compromi‌se_5020259.html [https://perma.cc/5ZW8-LDEM] (describing Senator Graham’s suggestion that police departments be held liable following the killing of Tyre Nichols). For articles describing Senator Scott’s and Senator Graham’s opposition to qualified immunity reform, see Sahil Kapur & Scott Wong, Senators Aim to Revive Police Reform Talks but Face Major Hurdles, NBC News (Jan. 30, 2023, 8:58 PM), https://www.nbcnews.com/politics/congress/‌senators-aim-revive-police-reform-talks-face-major-hurdles-rcna68171 [https://perma.cc/R5‌ZQ-RHET] (“I think qualified immunity should stay in place for individual officers, but I’ve always been of the view that departments need to be held accountable.” (quoting Senator Graham)); Melissa Quinn, Tim Scott Says Ending Qualified Immunity Is “Poison Pill” in Police Reform Bill, CBS News (June 14, 2020, 9:48 AM), https://www.cbsnews.com/news/‌tim-scott-police-reform-bill-qualified-immunity-face-the-nation/ [https://perma.cc/L9JA-7W‌DN] (“From the Republican perspective, and the president has sent a signal that qualified immunity is off the table. They see that as a poison pill on our side.” (quoting Senator Scott)).Show More

The injustices of qualified immunity have been a worthy focus of reform efforts in recent years. But vicarious liability for local governments is an equally important goal—and a more achievable one. Alongside handwritten signs demanding an end to qualified immunity, it is time to start raising signs reading “End Monell.”

1.  See, e.g., Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests, N.Y. Times (Oct. 18, 2021), https://www.nytimes.com/2020/06/23/us/politics/‌qualified-immunity.html [https://perma.cc/PS4C-ZQSX]; Kimberly Kindy, Dozens of States Have Tried to End Qualified Immunity. Police Officers and Unions Helped Beat Nearly Every Bill., Wash. Post (Oct. 7, 2021, 6:00 AM), https://www.washingtonpost.com/politics/‌qualified-immunity-police-lobbying-state-legislatures/2021/10/06/60e546bc-0cdf-11ec-aea1‌-42a8138f132a_story.html [https://perma.cc/4QUY-WC9M]. ↑
2.  See, e.g., Madeleine Carlisle, The Debate Over Qualified Immunity Is at the Heart of Police Reform. Here’s What to Know, Time (June 3, 2021, 6:35 PM), https://time.com/‌6061624/what-is-qualified-immunity/ [https://perma.cc/GCB4-72PG] (describing Congress’s George Floyd Justice in Policing Act); Kindy, supra note 1 (describing state legislative efforts). ↑
3.  Jonathan Franklin & Emma Bowman, What We Know About the Killing of Tyre Nichols, NPR (Jan. 28, 2023, 4:50 PM), https://www.npr.org/2023/01/28/1151504967/tyre-nichols-memphis-police-body-cam-video [https://perma.cc/JGR2-D7Z2]. ↑
4.  See, e.g., Rep. Justin Amash (@justinamash), Twitter (Jan. 28, 2023, 10:58 AM), https://twitter.com/justinamash/status/1619364385214066688 [https://perma.cc/V97Z-Z3‌SA] (“Reintroduce and pass my tripartisan legislation to end qualified immunity.”); Rep. Ilhan Omar (@IlhanMN), Twitter (Jan. 27, 2023, 9:12 PM), https://twitter.com/IlhanMN/status/‌1619156319923212288 [https://perma.cc/6EQ7-75VM] (“End Qualified Immunity!”). ↑
5.  See, e.g., Carlisle, supra note 2; Joanna C. Schwartz, Suing Police for Abuse Is Nearly Impossible. The Supreme Court Can Fix That., Wash. Post (June 3, 2020, 2:17 PM), https://www.washingtonpost.com/outlook/2020/06/03/police-abuse-misconduct-supreme-co‌urt-immunity/ [https://perma.cc/TA4E-VN5H]. ↑
6.  Harlow v. Fitzgerald, 457 U.S. 800, 813 (1982). ↑
7.  See Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 60–64 (2017) [hereinafter Schwartz, How Qualified Immunity Fails] (finding, based on a review of 1,183 police misconduct cases, that qualified immunity leads to the dismissal of less than 4% of civil rights cases, undermining the role of qualified immunity as a protection against the burdens of discovery and trial, and may actually increase litigation costs); Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 938–43 (2014) [hereinafter Schwartz, Police Indemnification] (showing that officers virtually never contribute to settlements and judgments against them, limiting the need for qualified immunity to protect officers from financial liability). ↑
8.  For a few exceptions, see Mark C. Niles, Here’s a More Important Reform than Ending Qualified Immunity, LawFare (May 18, 2021, 2:13 PM), https://www.lawfareblog.com/heres-more-important-reform-ending-qualified-immunity [https://perma.cc/84VD-Z84Y]; Orion de Nevers, A Dubious Legal Doctrine Protects Cities from Lawsuits over Police Brutality, Slate (June 2, 2020, 2:16 PM), https://slate.com/news-and-politics/2020/06/monell-supreme-court-qualified-immunity.html [https://perma.cc/PM6B-GM3B]. Municipal liability has been a more sustained focus of study and criticism among scholars and advocates. For examples of this research and commentary, see infra Section I.C. ↑
9.  436 U.S. 658, 663 (1978). ↑
10.  Id. at 691–95. ↑
11.  Id. at 694 (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”). ↑
12.  These critiques, along with an overview of the history of Monell doctrine and its contours, are outlined in Part I. ↑
13.  See infra note 89 and accompanying text. ↑
14.  Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 914 (2015); see also infra notes 90–91 and accompanying text (describing critiques of Monell doctrine’s complexity). ↑
15.  Brian J. Serr, Turning Section 1983’s Protection of Civil Rights into an Attractive Nuisance: Extra-Textual Barriers to Municipal Liability Under Monell, 35 Ga. L. Rev. 881, 883 (2001); see also infra notes 92–96 and accompanying text (describing the prevailing view that it is nearly impossible for plaintiffs to prevail on Monell claims). ↑
16.  See generally Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477 (2011) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file Bivens claims against federal officials); Joanna C. Schwartz, Qualified Immunity’s Selection Effects, 114 Nw. U. L. Rev. 1101 (2020) (presenting the results of a study examining how qualified immunity influences attorneys’ decisions about whether to file § 1983 claims against law enforcement defendants). ↑
17.  See generally Schwartz, How Qualified Immunity Fails, supra note 7 (reporting these findings). ↑
18.  See Alexander A. Reinert, Qualified Immunity at Trial, 93 Notre Dame L. Rev. 2065, 2068 (2018) (finding that “juries are rarely instructed on qualified immunity, nor are they routinely asked to resolve disputed factual questions that might bear on application of the defense,” but that “when juries are instructed on qualified immunity, plaintiffs are much less likely to prevail at trial”). ↑
19.  See generally Aaron L. Nielson & Christopher J. Walker, Strategic Immunity, 66 Emory L.J. 55 (2016) (measuring variation among circuit judges in their assessment of qualified immunity appeals); Alexander A. Reinert, Qualified Immunity on Appeal: An Empirical Assessment (Cardozo L. Sch. Fac. Rsch. Paper No. 634, 2021), https://ssrn.com/abstract‌=3798024 [https://perma.cc/WJR2-KWVZ] (finding that appellate courts reverse decisions denying qualified immunity far more often than they reverse decisions granting qualified immunity). ↑
20.  For important research about municipal liability claims that is a clear exception to this general observation, see Nancy Leong, Municipal Failures, 108 Cornell L. Rev. 345, 380 (2023) [hereinafter Leong, Municipal Failures] (examining the success of failure-to-supervise claims on appeal and arguing that such claims are often overlooked by attorneys but successful in court); Nancy Leong, Civil Rights Liability for Bad Hiring 1, 46–49 (Aug. 8, 2023) (unpublished manuscript) (on file with author) (examining the difficulty of proving failure-to-screen claims). See generally Nancy Leong, Katelyn Elrod & Matthew Nilsen, Pleading Failures in Monell Litigation, Emory L.J. (forthcoming 2024), https://papers.ssrn.com/sol3/‌papers.cfm?abstract_id=4378738 [https://perma.cc/MK7R-PZAX] (examining widespread deficiencies in complaints’ Monell allegations). ↑
21.  See generally Schwartz, How Qualified Immunity Fails, supra note 7 (finding that fewer than 4% of the police misconduct cases filed were dismissed on qualified immunity grounds, offering possible explanations for these findings, and considering their implications for qualified immunity doctrine’s goals). ↑
22.  See id. at 9–11; see also Joanna C. Schwartz, After Qualified Immunity, 120 Colum. L. Rev. 309, 316–17 (2020) [hereinafter Schwartz, After Qualified Immunity] (offering several predictions about how constitutional litigation would function in a world without qualified immunity). ↑
23.  See Schwartz, How Qualified Immunity Fails, supra note 7, at 50–51 (arguing that qualified immunity increases the costs and time necessary to litigate civil rights cases, and may discourage attorneys from accepting civil rights cases); Schwartz, After Qualified Immunity, supra note 22, at 338–51 (same). ↑
24.  See Schwartz, How Qualified Immunity Fails, supra note 7, at 48–49 (describing these findings). ↑
25.  I outline these findings in Part II. ↑
26.  I describe these possible explanations for my findings in Part III. ↑
27.  See infra notes 121–26 (outlining findings in the dataset); infra notes 153–57 and accompanying text (presenting the plausibility standard theory). ↑
28.  See Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 411 (1997); City of Canton v. Harris, 489 U.S. 378, 388–89 (1989). ↑
29.  See, e.g., Michael Avery, David Rudovsky, Karen M. Blum & Jennifer Laurin, Police Misconduct Law and Litigation § 4:15 (3d ed. 2022) (“Despite the resolution of several principal questions in this area by the Supreme Court, one should still expect both factual and legal issues to be hotly contested where municipal liability claims are made.”); see also infra notes 199–201 and accompanying text (describing intra-circuit disagreement about how to apply Iqbal’s “plausibility” pleading standard to Monell claims). ↑
30.  I set out these challenges in Part IV. ↑
31.  See infra note 205 and accompanying text. ↑
32.  See generally Schwartz, Police Indemnification, supra note 7, at 890 (“Between 2006 and 2011, in forty-four of the country’s largest jurisdictions, officers financially contributed to settlements and judgments in just .41% of the approximately 9225 civil rights damages actions resolved in plaintiffs’ favor, and their contributions amounted to just .02% of the over $730 million spent by cities, counties, and states in these cases.”). ↑
33.  See Monroe v. Pape, 365 U.S. 167, 171 (1961) (describing the historical context of Section 1983). ↑
34.  These proposals are described in further detail in Part V. ↑
35.  See, e.g., Kindy, supra note 1 (“[State legislative efforts to limit qualified immunity] failed amid multifaceted lobbying campaigns by police officers and their unions targeting legislators, many of whom feared public backlash if the dire predictions by police came true. Officers said they would go bankrupt and lose their homes. They said their colleagues would leave the profession in droves.”). ↑
36.  For bills introduced by Congress and state legislatures, and enacted in New Mexico, that would make local governments vicariously liable for constitutional violations by their officers, see infra notes 261–64 and accompanying text. ↑

37.  See Billy Binion, Tim Scott Is Proposing a Major Reform to Qualified Immunity, Reason (Apr. 22, 2021, 12:24 PM), https://reason.com/2021/04/22/tim-scott-is-proposing-a-major-reform-to-qualified-immunity/ [https://perma.cc/Q2QA-D6ZE] (describing Senator Scott’s proposal to create vicarious liability during police reform legislation negotiations after George Floyd’s death); Janice Hisle, In Wake of Tyre Nichols’s Death, Sen. Lindsey Graham Suggests Policing Reform Compromise, Epoch Times (Jan. 31, 2023), https://www.theepochtimes.‌com/in-wake-of-tyre-nichols-death-sen-lindsey-graham-suggests-policing-reform-compromi‌se_5020259.html [https://perma.cc/5ZW8-LDEM] (describing Senator Graham’s suggestion that police departments be held liable following the killing of Tyre Nichols). For articles describing Senator Scott’s and Senator Graham’s opposition to qualified immunity reform, see Sahil Kapur & Scott Wong, Senators Aim to Revive Police Reform Talks but Face Major Hurdles, NBC News (Jan. 30, 2023, 8:58 PM), https://www.nbcnews.com/politics/congress/‌senators-aim-revive-police-reform-talks-face-major-hurdles-rcna68171 [https://perma.cc/R5‌ZQ-RHET] (“I think qualified immunity should stay in place for individual officers, but I’ve always been of the view that departments need to be held accountable.” (quoting Senator Graham)); Melissa Quinn, Tim Scott Says Ending Qualified Immunity Is “Poison Pill” in Police Reform Bill, CBS News (June 14, 2020, 9:48 AM), https://www.cbsnews.com/news/‌tim-scott-police-reform-bill-qualified-immunity-face-the-nation/ [https://perma.cc/L9JA-7W‌DN] (“From the Republican perspective, and the president has sent a signal that qualified immunity is off the table. They see that as a poison pill on our side.” (quoting Senator Scott)). ↑