By Nancy Leong. Full Text. Appendix.
Suppose that a municipality hires a police officer, teacher, jail guard, or other official with an extensive record of past misconduct—someone the municipality should have known better than to hire. When such an employee causes a violation of constitutional rights, the injured party often brings a civil rights suit under 42 U.S.C. § 1983, arguing that the municipality failed to screen the wrongdoer prior to hiring. Yet little is known about how such lawsuits play out on the ground.
In the first empirical study of municipal liability for bad hiring, this Article demonstrates that municipalities enjoy de facto immunity for failing to screen employees with poor records. Only one federal appellate court in the past twenty-five years has upheld § 1983 liability against a municipality for its deficient hiring practices. Analysis of hundreds of district court dockets tells the same story: among all § 1983 cases initiated in 2019, just three courts nationwide ruled in favor of a plaintiff when presented with a bad hiring claim on a motion, and no plaintiff won a judgment against a municipality for bad hiring. The reasons for plaintiffs’ lack of success include the demanding doctrinal standard applicable to municipal liability claims, the challenges of plausibility pleading after Iqbal, and the surprisingly poor quality of lawyering in municipal liability cases.
Because liability for bad hiring is so rare, municipalities have little incentive to screen employees carefully. These lackluster screening practices result in dubious hiring decisions and enable the serial job-hopping of municipal employees who are fired or resign under threat of termination for misconduct. The result is that the public is endangered by powerful officials who likely should not have been hired in the first place. But all is not lost for civil rights advocates: the Article concludes with a suite of interventions both within and beyond litigation that can combat the problem of bad hiring.