Municipal Failures

Calls for reforming the civil rights enforcement regime often focus on individual government officers. Recent years have brought demands to abolish qualified immunity—a defense that protects individual officers from liability so long as they did not violate clearly established law—and to end indemnification—a practice in which government employers satisfy judgments against their employees.This Article focuses instead on liability directly against municipalities and draws attention to a promising and underused avenue for recovery: the theory of municipal failure to supervise. It presents two original data sets—one including every municipal liability case decided in 2019, and the other including every case involving a failure-to-supervise claim during the twelve years from 2010 through 2021—to develop a comprehensive quantitative and qualitative account of failure-to-supervise claims in the federal courts. Failure-to-supervise claims are rarely litigated: just fifteen such claims were adjudicated by the federal appellate courts in 2019, most in a cursory fashion. Yet all twelve circuits have confirmed that the theory is a viable way of establishing municipal policy or custom, and failure-to-supervise claims are in fact feasible to win. Between 2010 and 2021, plaintiffs prevailed on the theory in seven circuits, in several instances winning large jury verdicts.On the basis of this new empirical information, the Article concludes that the failure-to-supervise theory offers plaintiffs a valuable opportunity at a time when they face considerable challenges. The failure-to-supervise theory provides plaintiffs with an avenue to recover against municipalities even when no individual officer can be held liable due to qualified immunity or other obstacles. Moreover, the failure-to-supervise theory is uniquely well-suited to capturing municipal culpability for constitutional harms that result from a municipality’s lax oversight or unresponsiveness to complaints. The theory correctly focuses courts’ attention on institutional cultures that foster and enable constitutional violations, countering the misleading view that constitutional violations are caused by a “few bad apples,” and advances the remedial goals of compensation and deterrence. The Article therefore contends that civil rights lawyers should advance the failure-to-supervise theory more vigorously and that courts should evaluate the theory more closely