Was Monroe v. Pape Wrongly Decided?

The New Year is a time to ask big questions, to put nagging issues and concerns into perspective, and to chart a course which, perhaps, will make the world a more elegant place in which to live and work. So I ask this question on the cusp of 2010. It is a question that has been on my mind for the past few years. I simply have not had the courage to ask it.

Was Monroe v. Pape wrongly decided?

It sure feels as though most judges think it was. But none of them seem willing to think things through to their logical conclusion. So let me offer a helping hand.

The 1961 Supreme Court decision is the lodestone of modern civil rights practice. It clearly established that individuals can bring a federal cause of action against state actors for abusing a person's constitutional rights. This single decision breathed new life into the Ku Klux Klan Act, codified at 42 U.S.C. Section 1983. And for several decades, litigation under the act was robust. During the past decade, however, the courts have done all they could to trim the sails of civil rights litigants. All, that is, except the one thing remaining: overturn Monroe v. Pape.

Here are the facts of the case: Chicago police officers investigating a murder burst into the Monroe home in Chicago. They rousted the family, forcing them to stand naked in the livingroom while they ransacked the family apartment. They then whisked Mr. Monroe to the police station for a couple days of interrogation. It was Gestapo treatment, pure and simple.

Monroe sued the officers in federal court. The police officers argued that they were not acting under color of law. Their acts were, in effect, ultra vires. If Monroe had a beef, he should and could raise the claims in state-law tort actions. His claims had no business in federal court.

A majority of the Supreme Court thought otherwise, and thus was spawned a complex jurisprudence filled with crazy patchwork logic: You can sue a cop for money damages, but only in his individual capacity. To do otherwise is to violate Eleventh Amendment immunity. And thus was born a public policy that has municipalities throughout the nation in effect providing free insurance to police officers who break the law in the performance of their duties. Sue a cop for violating the right to be free from unreasonable force, and he'll get a city-appointed lawyer; why, the city will even pay damages in most jurisdictions.

The law, Dickens noted, is an ass.

Justice Felix Frankfurter dissented in Monroe v. Pape. His logic is elegant. When a cop violates the law, they lose the cloak of lawman. A thug is a thug is a thug. Ultra vires acts transform a cop into a citizen, and citizens can bring tort claims against one another under state common law. (Good luck with the state-law immunities.)

The federal courts are now behaving as though Frankfurter's dissent is the law of the land, only the judges won't admit it. In the past decade of so a judicial doctrine you'll never hear a rock-ribbed conservative fuss and moan about prevents most cases from ever seeing the light of a courtroom floor. Qualified immunity has become a judicial fantasy land. All but the most egregious conduct by state actors is now forgiven by lifetime appointees.

The federal courts also show hostility to these claims by adopting new rules requiring heightened pleading standards, a boon to the defense bar, which blithely bills every hour. And there are special rules on emotional distress damages. A single witness can testify to a crime, but emotional distress requires corroboration by other witnesses.

The fact is that the federal courts have lost interest in claims of official misconduct. If that is the case, then why not reconsider Monroe v. Pape? Is a little intellectual honesty from the judiciary too much to expect?

Happy New Year, and if you see a cop on the road, genuflect: the law requires it.

Reprinted courtesy of the Connecticut Law Tribune.

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