Decades ago, the Supreme Court held in a case called Monell v. Department of Social Services that you can sue a local government for violating your constitutional rights only if the violation resulted from the locale’s “official policy.” The normal rule holding employers liable for the wrongs they commit within the scope of their employment (a doctrine called respondeat superior) does not apply to public employers. In other words, if a county employee goes rogue, you can’t hold the county itself responsible.
That’s a “massive loophole,” as my colleague Mike Fox has said. But a new court decision stretches it to the point of absurdity, holding that the county’s top official does not set official county policy. Boone County, Illinois’s Coroner Wesley Hyland committed a constitutional violation of an uncommonly disturbing sort. He “kept several skulls as trophies from the deceased he examined,” according to the Seventh Circuit’s decision last week in Betts v. Boone County. One of them belonged to Louise Betts, a high school student who was kidnapped, raped, and murdered. Forty-five years later, her brothers learned that Hyland had held onto her skull. They recovered it, exhumed Louise’s other remains, and reburied them together. Then, they sued Boone County.
They lost. The Seventh Circuit noted that a plaintiff can satisfy Monell by showing that a constitutional violation was “an act by a person with final policymaking authority.” Yet, the court determined, Hyland’s actions were illegal under state law, requiring that remains be released to the deceased’s next of kin. So in spite of his role as coroner, he “frustrated” official policy rather than deciding it. That means Boone County bears no responsibility for his acts—even though Hyland was Boone County’s decisionmaker concerning the treatment of remains.
Judge Hamilton dissented, pointing out the absurdity of treating “a local policymaking official’s violation of state law” as “a defense to Monell liability.” Under the majority’s reasoning, he wrote:
Monell liability would not apply to a county whose elected sheriff raped a prisoner while on the job. Nor would Monell liability apply when a mayor orders police to shut down a political march by his opponents or discriminates on the basis of religion or race. After all, rape is a crime in every state. Political speech, freedom of religion, and racial equality are protected by every state constitution.
It might seem logical to think, as did the majority, that official policy can only be what the law authorizes, and so illegal acts are inherently unofficial. But the entire point of federal civil rights law is to hold state and local decision-makers accountable when they violate it. Judge Hamilton recounted that Monell liability arises under Section 1983, a federal law enacted after the Civil War that lets people sue officials for violating their rights. The majority’s holding would leave Section 1983 powerless to address the precise sort of rights violations that first inspired it. Every Southern state during Reconstruction “nominally outlawed crimes like murder, arson, rape, kidnapping, and other methods of terrorizing black citizens.”
Yet Congress was outraged because “local officials were not enforcing those laws and were actively encouraging their violation,” so it enacted Section 1983 as a remedy. Letting laws on the books shield state and local governments from liability frustrates Congress’s design.
There is such a thing as a rogue underling. But when the wrongdoer is not a line officer on a lark but the very official in charge of making decisions for the county—as was Hyland concerning the treatment of remains—it is unjust to let the county off the hook. While the intern to the assistant to the coroner may not set official county policy, who does set that policy if not the coroner himself? The Supreme Court should review the Betts family’s case and reverse the Seventh Circuit’s impossibly stingy reading of Monell.
Regardless, Congress “can and should amend Section 1983 to create employer liability whenever a public employee violates someone’s constitutional rights,” as Cato scholars have argued. If a pizza place is liable when its delivery driver crashes into your car, there’s no reason a county should be off the hook when its coroner keeps human remains as his trophy. The rules that keep respondeat superior from applying to public employers like counties could be eliminated by legislators immediately.
Louise Betts’s remains are finally at rest. It would be unfortunate if her family’s efforts to secure redress were, too.
