The Path to Municipal Liability for Racially Discriminatory Policing


Racist policing and the racially discriminatory use of force by police officers pose a serious challenge for a legal system committed to equal justice. Yet litigants cannot easily contest the systemic racism that permeates police departments across the country. Individuals injured by police violence may not have the resources to pursue systemic claims and there are barriers to prospective relief that obstruct structural reform litigation. Many § 1983 claimants seek damages for specific unconstitutional uses of force but do not necessarily challenge the culture of racist policing within which the violation of specific rights occurred.

This Comment explores an alternative to structural reform litigation that can enable litigants to foreground the problems of systemic racism in police departments: a claim of municipal liability, otherwise known as a Monell claim, for a police department’s pattern of racially discriminatory uses of force. Many have bemoaned the difficulties of litigating a Monell claim. Few have tried to determine whether Monell claims are still worth pursuing. This Comment offers a lessons-in-success approach, with the aim of excavating how a plaintiff might bring a claim that a municipal employer is liable for its police officers’ racially discriminatory uses of force. The problem of racially discriminatory uses of force by police is a particularly salient issue at the moment, and this Comment seeks to contribute to the conversation about how the legal system might address the systemic racism that permeates police departments across the country.

This Comment begins by introducing the problem of racially discriminatory uses of force by police and discusses how Monell claims, with their ability to interrogate system-wide practices, might be used to intervene. Because Monell claims can assign blame properly, gather information effectively, and expose system-wide racism, these functions can place pressure on policymakers and serve as a potential vehicle for change. Next, to chart the path to municipal liability for racially discriminatory policing, this Comment offers three sample cases where plaintiffs alleged this type of Monell claim. Ultimately, these cases demonstrate that such Monell claims are viable and worth pursuing, when possible, in part because they enable later litigants to pursue similar claims. Though the reform generated by a Monell verdict or settlement is not as transformative as necessary to end racialized police violence, it can lead to some immediate improvements to policing. Furthermore, race conscious Monell claims can shift the conversation that happens in the courtroom and among litigants, and force our legal system to better understand the systemic nature of racist policing.