Articles

Burke, Miele & Golden, LLP

County Liability Based Upon Its District Attorney's Prosecution Policies.

Written by Richard B.Golden
Published by: County Attorney's Association of the State of New York

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Introduction

Recent years have seen an explosion in Section 1983 ¹ litigation. Municipalities have been a particularly favorite target. The language of Section 1983 is as simple as it is far reaching:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured..."

Since Mondell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), municipalities have been included within the statute's definition of "person." In addition to a municipality being held liable for the unconstitutional acts taken directly by it, municipalities can be liable for the actions of its policymakers. In Myers v. County of Orange, 157 F.3d 66 (2d Cir. 1998). Cert denied, __U.S. __, 67 U.S.L.W. 3514 (1999), the Second Circuit recently expanded County liability under Section 1983 to include liability for the actions of its District Attorneys in promulgating general prosecutorial policies; policies over which the County has no control.

Ironically, policymakers of the County may be entitled to immunity ² (absolute or qualified) when they are sued in their individual capacity, ³ but the County may still be held liable, notwithstanding the policymaker's immunity. Municipalities may not invoke qualified or absolute immunity. Indeed, in Myers, supra, the District Attorney was found to have absolute immunity for the prosecutorial policy in issue, and was accordingly dismissed from the case, leaving the County as the liable party. ⁴

Policymaker Status

Monell, supra, established that Counties, as municipal corporations, were to be held liable under Section 1983 for the actions of its policymakers, although not liable generally for its employee actions under a respondeat superior theory. Complicating the issue is the fact that District Attorneys, and certain other County officials (e.g., County Clerks and Sheriffs), act from time to time in a dual capacity: sometimes they act as a State official. This dual capacity status, and the concomitant Section 1983 liability, was recently recognized by the Supreme Court in McMillian v. Monroe County, Alabama, 520 U.S. 781 (1997).

In a series of cases by the Second Circuit, it had been apparently clear that a District Attorney was not a Section 1983 policymaker for a County when making prosecutorial decisions. However, the District Attorney could be a County policymaker when formulating policies concerning supervising and training of his/her assistants, or when sanctioning or covering-up law enforcement wrongdoing. ⁵ Until Myers, it appeared clear that Counties would not be held liable for the prosecutorial decisions of its District Attorney:

"It is well established in New york that the district attorney, and the district attorney alone, should decide when and in what manner to prosecute a suspected offender . . . .No county policy can require them to act otherwise. . . .Where, as here, controlling law places limits on the County's authority over the district attorney, the County cannot be said to be responsible for the conduct at issue." ⁶

Myers has changed the landscape of County liability under Section 1983.

Myers' Facts

The facts in Myers are fairly simple. An altercation arose between Myers and a group of family members in the neighborhood. First the family members, then Myers' girlfriend, each called the police. After an investigation, the police arrested Myers and did not arrest any of the family members. After meeting with the Assistant District Attorney, assigned to the case, and submitting wheat they believed to be certain exculpatory evidence, the criminal defense attorney asked that the charges against Myers be dismissed and the family members prosecuted. The Assistant District Attorney did not believe Myers and, therefore, did not prosecute the family members, but continued with the prosecution of Myers. At trial, Myers was acquitted of one charge and found guilty of one charge. The Appellate Division reversed.

Myers claimed in his subsequent Section 1983 civil action against the District Attorney and the County that his civil rights were violated because the family members were also not arrested. Myers alleged that his prosecution and the failure to prosecute the family members was owing to the District Attorney's policy not to prosecute cross-complaints, which violated Myers' equal protection rights. After the District Attorney was dismissed from the case on absolute immunity grounds, ⁷ a jury found the County liable for the actions of the district Attorney only as to a decision of a District Attorney to prosecute, or not to prosecute, a single, particular individual. Counties may now be liable if a decision to prosecute is done in the context of a general prosecutorial policy of the District Attorney. For example, if a District Attorney decided not to plea bargain at a particular rape case, there would be no county liability. However, if the District Attorney had a policy or practice for not plea bargaining rape cases, the District Attorney had a policy or practice for not plea bargaining rape cases, the District Attorney would have absolute immunity from suit, but the County would be liable for any resulting civil damages and attorney fees.

County's Lack of Control

The troubling issue in Myers is not that the Court found that the cross-complaint policy violated Myers' equal protection rights, but that it is the County that is the liable party when it has no real ability to control or alter the District Attorney's prosecutorial policies. Control should be a critical issue in determining County liability under Section 1983. This issue was brought into focus during oral argument before the Supreme Court in McMillan v. Monroe County, 520 U.S. 781(1997), (Sheriffs under Alabama law were found to be State actors for the events at issue, and not policymakers for their County).

Justice Scalia (voting with the majority): "[Monell] intended to make municipalities liable because they were like corporations. That's why we decided Monell the way we did, that in fact they were municipal corporations, but surely it is an essential characteristic of a corporation that its board of directors can decide what happens within that corporation. But you're coming before us here and saying that this is a corporation, namely the governing body of the county. That's what troubles me the most that this doesn't fit into the whole theory of section 1983 liability for municipalities, which is that they are like corporations. ⁸

The importance of the element of control is demonstrated by the legislative history of Section 1983 and the rejection of a proposed amendment, which would have imposed liability on persons regardless of their ability to control the offending actions. ⁹ It was "thought the Federal Government could not, consistent with the Constitution, obligate municipal corporations to keep the peace if those corporations were neither so obligated nor so authorized by their state charters." ¹⁰

Conclusion

Precisely because County's have no control over the prosecutorial policies of their District Attorneys, there is nothing pro-active that a County, on its own, can do to limit liability in this area. All that can be said is that in defending such actions, a County must now try to prove that the decision by a District Attorney to prosecute, or not to prosecute, was an individual decision, and not a decision made consistent with any policy of the District Attorney. ¹¹

1 42 U.S.C. § 1983

2 See, e.g., Imbler v. Pachtman, 424 U.S. 429 (1976)(absolute immunity for District Attorneys); Bogan v. Scott-Harris, 118 S. Ct. 966 (1998)(absolute immunity for legislators).

3 Leatherman v. Tarrant County, 507 U.S. 163, 166 (1993).

4 Myers v. County of Orange, 870 F. Supp.555 (S.D.N.Y. 1994)

5 See, Baez v. Hennessy, 853 F.2d 73 (2d Cir. 1988), cert denied, 109 S.Ct. 805 (1989); Gentile v. County of Suffolk, 926 F.2d 142 (2d Cir. 1991); Walker v. City of New York, 974 F. 2d 293 (2d Cir. 1992), cert. denied 113 S. Ct. 1387 (1993)

6 Baez, supra, 835 F.2d at 76-77 (citations omitted).

7 Myers v. County of Orange, 870 F. Supp. 555 (S.D.N.Y. 1994).

8 McMillian, supra, oral argument. 1997 WL 136243 at 22-23.

9 Monell, supra, 436 U.S. at 674-675.

10 ID. at 668

11 See, e.g. Zachary v. County of Onondaga, ___F. Supp. ___, 1999 WL14041 (N.D.N.Y. 1999).

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