Patrick Kelly, a Chicago police officer, went drinking with his friend Michael La Porta in January 2010. Kelly was not on duty at the time. After going to some bars, they returned to Kelly’s home. Kelly began hitting his dog and LaPorta objected. Kelly grabbed his police service pistol and shot LaPorta in the head. [1] LaPorta survived but suffered traumatic brain injuries that left him severely and permanently disabled.
The trial court proceedings and jury verdict
First Midwest Bank, acting as LaPorta’s guardian, sued the City of Chicago in state court pursuant to 42 U.S.C. § 1983 alleging a due process violation. The City removed the case to the federal district court.
A jury trial was eventually held, and the jury returned a verdict against the City for $44.7 million dollars. The jurors determined that two of the City’s policies (or informal customs) caused Kelly to shoot LaPorta:
- Its failure to maintain an early warning system to identify problem officers likely to engage in future misconduct;
- Its failure to adequately investigate and discipline officers involved in misconduct.
Post-verdict, the City moved for judgment in its favor. The City argued that it had no constitutional duty to protect LaPorta because Kelly was acting as a private citizen when he shot LaPorta. The trial judge denied the motion and the City appealed to the Federal Court of Appeals for the Seventh Circuit. [2]
Jury verdict reversed by the Seventh Circuit
42 U.S. C. §1983 (the federal civil rights statute) provides a monetary damages remedy for persons who are deprived of constitutional rights by persons (including municipalities) who act under color of state or local law.
The Seventh Circuit observed that for a plaintiff to prevail in an action of this nature, the “plaintiff must prove that ‘(1) he was deprived of a right secured by the constitution or laws of the United States; and (2) the deprivation was visited upon him by a person or persons acting under color of state [or local] law.’” [3]
The court explained that an action is not performed under color of state law simply because it was performed by a public employee or officer. Instead, the conduct of the public officer must be “’related in some way to the performance of the duties of the state office.’” [4]
In addition, the court explained that in order to prevail against a City or a municipality in a §1983 action, the plaintiff must establish that his/her injuries were caused by a “governmental ‘policy or custom whether made by its lawmakers or by those whose edits or acts may fairly be said to represent official policy.’” [5]
In this instance, the plaintiff alleged that the City had a widespread policy or custom of failure to identify problem officers before they engaged in deprivation of constitutional rights and likewise a policy or custom of failing to investigate misconduct allegations against officers and discipline them for their misconduct.
The court stated that in order to prevail, the plaintiff at the outset must prove that his injuries were caused by a person acting under color of state (or local) law. Only after overcoming that hurdle is the plaintiff required to prove the existence of a city policy or custom that caused his injuries. Here, the court explained that “Kelly was not acting under color of state [or local] law when he shot LaPorta. His actions were wholly unconnected to his duties as a Chicago police officer. He was off duty. He shot LaPorta after they spent a night out drinking together and had returned to his home to continue socializing … This was, in short, an act of private violence.”
The DeShaney decision [6]
In reaching its decision in the LaPorta matter, the Seventh Circuit examined the Supreme Court ruling in the DeShaney case.
DeShaney was decided in 1989 and involved a §1983 lawsuit filed against Winnebago County in Wisconsin by the mother of a young boy who alleged a due process violation for the County’s failure to protect him from physical abuse and injuries caused by his father.
County social workers were alerted to suspicious injuries and signs of abuse that were suspected of being caused by the boy’s father who had legal custody of the child. However, they took no action to remove the boy from the father’s custody. The father subsequently administered another severe beating to the child that left him permanently disabled. The father was arrested and convicted of child abuse.
The Supreme Court ruled against the boy’s mother and explained that the due process clause of the constitution was designed to protect the people from the government rather than to guarantee government protection to people from non-governmental persons. DeShaney’s bottom line was aptly captured by the Seventh Circuit by a quote from the case itself: “because … the State [i.e., the County] had no constitutional duty to protect [the child] against his father’s violence, its failure to do so – though calamitous in hindsight – simply does not constitute a violation of the Due Process Clause.” [7]
The Seventh Circuit observed that the Supreme Court in DeShaney created two exceptions to its general rule that governmental entities are not responsible for private violence: First, the government is responsible for the protection and safety of persons it takes into custody. Second, the government is responsible for the safety of a person when it affirmatively places that person in a position of danger (i.e., creates the danger) that the person would not have otherwise faced. In the latter instance, the government-created danger must “shock the conscience” to rise to the level of a due process violation. The Supreme Court found no government created danger in DeShaney and the Seventh Circuit ruled likewise in the instant matter.
Lessons learned
- A person can successfully sue a municipality (i.e., city or town) pursuant to 42 U.S.C. §1983 for the failure of its official policymakers to train, supervise, or discipline a subordinate employee (e.g. a police officer) only after demonstrating that a policy or custom of the municipality was the cause of the person’s injuries.
- A prerequisite to a §1983 lawsuit against a municipality is the establishment by the plaintiff that the employee (police officer) who initially violated his/her constitutional rights (e.g., by using unjustified or excessive force) was acting under color of state or local law.
- Private violence directed against a person by a public employee will not result in constitutional liability for a municipality.
- The United States Supreme Court ruled in DeShaney that a law enforcement entity has no constitutional duty to protect the public at large from private violence.
- The constitutional duty for a law enforcement entity to protect a particular person arises only when that person is taken into custody or is placed in a dangerous situation created by the law enforcement entity.
References
1. This point is disputed because during the trial in the federal district court, Kelly’s defense claimed that LaPorta shot himself with Kelly’s gun. The jury rejected Kelly’s claim at trial and ruled in favor of LaPorta. Because of federal procedural rules, the Seventh Circuit decided the appeal upon LaPorta’s version of the facts.
2. First Midwest Bank (Guardian of Estate of Michael LaPorta) v. City of Chicago, (No. 14 C 9665) (7th Cir. 2021).
3. Id. (Quoting), Buchanan-Moore v. County of Milwaukee, 570 F.3d824, 827 (7th Cir. 2009).
4. Id. (Quoting), Barnes v. City of Centralia, 943 F.3d 826, 831 (7th Cir. 2019).
5. Id. (Quoting), Monell v. Department of Social Services, 436 U.S. 658 (1978).
6. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
7. Id. at 202.
