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Parker v. Banner

March 22, 2007


The opinion of the court was delivered by: Judge James B. Zagel


Plaintiff Arvin Parker claims that certain individual police officers denied him his constitutional rights. He has now sued those officers for damages and added a count claiming that the City of Chicago is liable as well because the officers' actions were caused by unconstitutional policies, practices or customs of the City.

Parker now questions whether a city may gain dismissal or postponement of § 1983 liability claims for damages by simply stipulating that it will pay whatever monetary judgment is entered against its employee who is a co-defendant in the lawsuit. The City has already made such a stipulation in this case.

The commonplace nature of the case -- an allegation of police officer's misconduct -- is significant. The Supreme Court opinion that permitted such policy and practice lawsuits did not consider a case like this one. In Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658 (1978), the issue was a gender-based discriminatory policy of a municipal government. A legal change in that official policy made injunctive relief moot. There were no individual employees who decided to act unconstitutionally; there was only the city policy to blame. So the only issue was whether money damages could be awarded against the city.

In Monell, the Court held that a municipality could not be held to pay damages simply because its employee, acting within the scope of his or her employment, wrongly injured the plaintiff. Instead of allowing respondeat superior to be the rule, the plaintiff instead would have to prove that an unconstitutional policy, practice or custom existed. By overruling Monroe v. Pape, 436 U.S. 658 (1961), the Court decided that municipalities were not immune from monetary damages under § 1983. However, the ruling created a fairly unique standard of employer liability for damages. This could have been in recognition of the effect its new rule would have on municipal finances, of the decidedly more formal way in which governments set policy or possibly of the winding way in which custom and practice arise.

The other seminal case of Owen v. City of Independence, 445 U.S. 622 (1980), also did not resemble an ordinary police liability claim. In Owen, the city manager fired a police chief for management failures with respect to the police property room without giving the chief notice or a hearing. The individual city employees were protected by qualified immunity rules,*fn1 so the plaintiff's only available remedy was the suit against the city. The Court allowed the suit to go forward.

§ 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well. The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens' constitutional rights. 445 U.S. at 651-52 (citations omitted).*fn2 The Court clarified its reasoning by stating that, "[a] damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees . . . ." Id. at 651. I read Owens to say that deterrence of future violations will occur because the city will have to pay damages and, if damages grow too large, then the city will change its policies, customs and practices.

In this case, the City has already stipulated that it would pay whatever compensatory damages are awarded for the actions of its employees.*fn3 If a constitutional violation occurred, then the City pays. In my view, that is all Owen requires. The idea that the Supreme Court requires some extra incentive to deter cities from allowing their employees to violate rights is inconsistent with its policy of immunizing cities from punitive damages. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-71 (1981).

In other cases, I have postponed consideration (including discovery) of Monell claims against the City. In this case, Plaintiff offers an extensively briefed motion contending that my decisions are in error, so I will re-examine the issue.

There is nothing in the precedents of our Court of Appeals that dictates the rule. In Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988), Judge Posner, writing for the Court, noted the importance of the claim against the City.

The issue has little, probably no, practical significance. No damages were awarded against the City that were not also awarded on a joint and several basis against the individual defendants; and since the City indemnifies its employees for damage awards . . . Jones will collect his judgment in full whether or not the City is held liable.

Id. at 995.

Plaintiff argues that this means that, even if nothing is at stake, the claim against the City must go forward alongside the individual claims. This is patently untrue. The City did not challenge (nor did Judge Posner address) the validity of proceeding on a claim of no practical significance. Practical significance is not an irrelevant consideration. See, e.g., Alliance to End Repression v. City of Chicago, 820 F.2d 873 (7th Cir. 1987). If nothing is at stake then there may be no case or controversy. If that is true then there may not be any reason, or even jurisdiction, to proceed.

Other circuits have walked through this field. Plaintiff relies on Amato v. City of Saratoga Springs, 170 F.3d 311 (2nd Cir. 1999). In Amato the plaintiff claimed excessive force and the District Judge postponed trial of the count against the City until the claim against the individual officers was tried. On its face, Plaintiff's use of this case is perplexing. Both the majority and the concurrence in Amato approved the severance and postponement of the Monell claim and noted that such action was taken "with some frequency . . . [because] severance is often appropriate in terms of judicial efficiency . . . ." Id. at 320. Moreover, Amato offers no holding concerning the issue here. Amato won a pyrrhic victory against the individual officers when the jury awarded him $1.00 in damages. The District Judge then dismissed the case without stating a ground. The panel assumed his ground was "the futility of proceeding when only nominal damages were at ...

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