Professor Mark C. Niles is publishing his article, Deliberate Indifference: Respondeat Superior Liability for Municipalities in Civil Rights Cases as an Alternative to Qualified Immunity Reform, in the NYU Journal of Legislation and Public Policy this Spring. Here’s an abstract:

The police killing of George Floyd in Minneapolis, Minnesota, has resulted in a renewed focus on adjudication of civil rights claims against government officials and the perceived inadequacy of the legal resolution of these claims. Calls for reform or complete removal of the defense of qualified immunity for government officials have been central to these discussions. This article argues that while arguments for qualified immunity reform are convincing and vital, the exclusive focus on this aspect of civil rights adjudication is misplaced and serves as a distraction from a more basic and consequential flaw in the constitutional tort jurisprudence: the severe limitation on municipal liability for violations of constitutional rights, in the form of a preclusion of respondeat superior liability, imposed by the Supreme Court since Monell v. Department of Social Services in 1978. Part I provides a summary of the development of legal analysis of Section 1983 claims and of the scope of municipal liability in those claims. Part II summarizes the extensive judicial and scholarly critique of the Monell approach to municipal liability in Section 1983 claims. Part III addresses some of the practical impacts of this approach on the actual litigation of constitutional tort claims, including reducing incentives for governments to prevent future constitutional violations and restricting the strategic options for civil rights plaintiffs. Part IV argues that application of respondeat superior doctrine to local governments in Section 1983 constitutional tort claims would focus the litigation of these claims on the entities most capable of providing sufficient compensation; incentivize implementation of training, hiring and other policies that could prevent injuries before they occur; and simplify an adjudication procedure that erects unnecessary complications for those seeking relief for serious injuries caused by the very governments that they rely on for their protection.