This is an awful decision. Here we see some idiot judges who do not see the folly of their decision to allow a county to avoid liability for its employees. At least one judge spoke out in dissent.
In a stunning reversal, the Seventh U.S. Circuit Court of Appeals last month tossed a $4 million jury verdict imposed on Polk County, Wisconsin for failing to prevent—despite prior warning— the repeated sexual assaults of two female inmates by one of
The Seventh Circuit’s ruling hinges on Monell v. Department of Social Services of the City of New York, a controversial U.S. Supreme Court decision, which declared that municipalities cannot be held accountable for the unconstitutional acts of their employees. Monell did leave some room for accountability by permitting lawsuits directly against municipalities if their policies or customs subjected or “caused to be subjected…the deprivation of any federally protected rights.”
The High Court later clarified that a municipality’s failure to adequately train its employees could be proof that it was “deliberately indifferent,” which would be “the functional equivalent of a decision by the [county] itself to violate the Constitution.”
In overturning the jury verdict against Polk County, the Seventh Circuit claimed there was “no connection between the assaults and any county policy,” as the county explicitly banned sexual harassment, as well as any sex between inmates and guards, in its written materials.
But “policies cannot exist on paper alone,” Judge Michael Scudder shot back in a scathing dissent. As the judge recounted, there was no evidence presented to the jury that the county took steps “to train guards to hold each other accountable to the county’s bright-line prohibition on any intimate contact with inmates” or “monitored its employees’ compliance with its policies.”
Nor were there any accounts of the county “ensuring or reinforcing that inmates had access to a safe and confidential channel through which to report inappropriate sexual conduct by jail guards,” as inmates are especially vulnerable to sexual assault.
In fact, before the guard’s abuse came to light in 2014, the county already had evidence that its written policy was “insufficient.” Two years earlier, a female inmate alleged that another guard repeatedly engaged in predatory behavior, including “inappropriate touching.” This guard only got a written reprimand, while Polk County “took no action to reinforce its sexual assault policies with all other male guards.”
With this in mind, Judge Scudder argued that “a reasonable jury could have found that Polk County acted with deliberate indifference to the need for more training and monitoring to prevent the sexual assault of female inmates by male guards and in doing so caused the injuries suffered by plaintiffs.” After all, a “reasonable jury” already determined that Polk County should be held liable, which is why it imposed $4 million in damages against the county.
According to Scudder, the majority’s decision is not just “mistaken,” it’s “dangerous.” Thanks to the court’s ruling for Polk County, “municipalities may conclude that there is not much to be done to stop a rogue guard from engaging in secretive and heinous conduct,” even though under the Eighth Amendment, “cities and counties have a meaningful responsibility and role to play in preventing the sexual abuse of inmates in their custody by the guards they employ.”
Attorneys for both the inmates and the county declined to comment.
“If the panel’s decision stands,” the Institute for Justice warned in its amicus brief, “municipalities in this circuit will be able to skirt liability for constitutional infringements simply by promulgating policies they have no intention of ever enforcing.” This could have “perverse effects:” Cities and counties would “conclude that the work of monitoring and deterring violations of their paper policies is unnecessary,” while inmates would have “less incentive to report their abuse.” Without proper accountability, this would make constitutional violations even “more likely.” Local governments must pay the price when they fail to uphold the Constitution.