VIII. CAUSATION AND CULPABILITY
Even assuming that a plaintiff can establish the existence of a municipal policy or custom, the inquiry does not end there. Before liability can be imposed upon a municipality, a plaintiff must establish causation between the policy and the constitutional deprivation.
This link was established in Monell, in which the Court stated that "the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for the deprivation of rights"143 under the Constitution. The Court also pointed out that "Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort."144 The connection between policy and constitutional deprivation has been reiterated by the Supreme Court in every case since Monell when municipal liability has been addressed.
In Bryan County v. Brown, the plaintiff brought a claim for damages under § 1983, alleging that a county deputy used excessive force in arresting her and that the county was liable based on the sheriff's decision to hire the deputy, who had a misdemeanor assault conviction. The plaintiff obtained judgment at the district court level, and the judgment was affirmed by the Fifth Circuit.145 The Supreme Court reversed, concluding that "Congress did not intend to impose liability on a municipality unless deliberate action attributable to the municipality itself is the 'moving force' behind the Plaintiff's deprivation of federal rights."146
The plaintiff's claims against Bryan County arose out of the sheriff's decision to hire a reserve officer without adequately checking his criminal background. The reserve officer had pleaded guilty to various driving-related offenses and other misdemeanors, including assault and battery, resisting arrest, and public drunkenness.
While Oklahoma law did not preclude the hiring of an individual as a police officer who had a misdemeanor conviction, the plaintiff asserted that the hiring policy of Bryan County, as instituted by its policymaker, Sheriff Moore, was so inadequate that it amounted to deliberate indifference to the plaintiff's constitutional rights.147 The county stipulated that Sheriff Moore was the policymaker for the county regarding the sheriff's department. The Court stated, however, that it is not enough for a § 1983 plaintiff to merely identify conduct attributable to the municipality. Additionally, the plaintiff must demonstrate "a direct causal link between the municipal action and the deprivation of federal rights."148
Distinguishing situations in which a municipality's legislative body has intentionally deprived a plaintiff of a federally protected right, the Court required "rigorous standards" of causation to be applied in Bryan County, as the plaintiff claimed the municipality had not directly inflicted injury but had caused an employee to do so.149 Since every injury at the hands of a municipal employee can be traced to a hiring decision in a "but for" sense (but for the decision to hire the employee, the plaintiff would not have suffered an injury), the Supreme Court stated that "a court must carefully test the link between the policymaker's inadequate decision and the particular injury alleged."150 The Court required that a plaintiff prove that a particular employee was "highly likely" to inflict the particular injury suffered by the plaintiff before municipal liability could attach. The Court explained:
[A] finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional injury. Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff. The connection between the background of the particular applicant and the specific constitutional violation alleged must be strong.151
After "carefully testing" the link between Sheriff Moore's hiring decision and the plaintiff's injury, the Court found the plaintiff's proofs to be inadequate. The Court concluded that the reserve deputy's criminal record was simply not of a nature that the sheriff would necessarily have determined that the use of excessive force would have been a plainly obvious consequence of the hiring decision.152 Concluding, the Court held: "Bryan County is not liable for Sheriff Moore's isolated decision to hire Burns without adequate screening, because respondent has not demonstrated that his decision reflected a conscious disregard for a high risk that Burns would use excessive force in violation of respondent's federally protected right."153
After Bryan County, the plaintiff who seeks to impose liability on a municipality for an injury inflicted by a non-policymaking employee bears a significant burden on the issue of causation.
The issue of causation is often tied to the issue of fault. As the Supreme Court explained in Bryan County, proof that a policymaker had intentionally deprived a plaintiff of a federally protected right necessarily establishes municipal liability. Similarly, if the action taken or directed by the policymaker violates federal law, the plaintiff will necessarily establish that the action was the moving force behind the injury. It is in the cases where some intervening act on the part of a lower-level employee inflicts the injury that the issue of causation arises.
Circuit decisions on the issue of causation predating Bryan County also required a strong showing of causation. For example, in Walker v. City of New York,154 the Second Circuit rejected a claim of failure to train officers not to commit perjury on the basis of causation. While the court acknowledged that there had not been a training program with respect to the obligation not to commit perjury, the Second Circuit found the obligation not to commit perjury was so obvious to all without training that the failure to train was not "so likely" to produce a constitutional violation that the city could be held liable.155
In Jones v. Wellham,156 the Fourth Circuit held that there was not the necessary affirmative link between a city policy and a violation in which a police officer had been disciplined, but not discharged, for a sexual assault ten years before committing a sexual assault on the plaintiff. The Fourth Circuit's standard for the connection between the policy and the injury was that the specific injury be "almost bound to happen, sooner or later, rather than merely likely to happen in the long run."157
In Gazette v. City of Pontiac,158 the Sixth Circuit accepted the plaintiff's facts as true but found no causal link between the municipal policy and the constitutional deprivation. The plaintiff alleged that when her mother was reported missing under circumstances that suggested foul play, the police assured her that they were taking appropriate action but in fact did nothing. The mother was found murdered several days later and the plaintiff claims that, had the police not lied to her, she could have investigated her mother's disappearance and found her before the murder.
In rejecting this argument, the Sixth Circuit Court stated that there was "no close causal connection between the police officers' lies and Bandy's death because many factors could have prevented the police officers, or Bandy's family and friends, from locating Bandy. The causal connection between the police officers' lies and Bandy's death simply is not sufficient to sustain a § 1983 claim."159
In Ricketts v. City of Columbia,160 the Eighth Circuit found no causal link in a case where the plaintiff claimed that the casual treatment of domestic abuse cases by police resulted in her and her mother being attacked by her estranged husband. Specifically, the plaintiff alleged that had her estranged husband been arrested for previous domestic assaults, he would not have raped her and murdered her mother on the date in question. Rejecting this claim, the Eighth Circuit stated that such speculation could not...
