Liability of Public Entities under Section 1983 of the Civil Rights Act 45 Southern California Law Review 1972

45 S. Cal. L. Rev. 131 (1972)
Liability of Public Entities under Section 1983 of the Civil Rights Act

handle is hein.journals/scal45 and id is 133 raw text is: LIABILITY OF PUBLIC ENTITIES UNDER
SECTION 1983 OF THE
CIVIL RIGHTS ACT
DON -B. KATES, JR.*
J. ANTHONY KOUBA**
Whether public entities are proper defendants, and if so, for what
forms of relief, is one of the most unsettled technical problems of liti-
gation under Section 1983 of the Civil Rights Act.' Monroe v. Pape2
holds that municipalities are not persons against whom Section 1983
damage actions may be maintained. Some lower courts have expanded
Monroe to immunize a broad range of public entities from suit under
this section.3 By holding these entities immune, the federal courts have
forced a difficult choice upon the litigant seeking redress for violation
of his civil rights. To join the public entity as a defendant in a suit
against a government employee under Section 1983, the plaintiff must
often forego the benefits of a federal forum4 If he should choose that
federal forum, however, he may be compelled to sue a judgment-proof
individual defendant. Furthermore, if he chooses the federal forum
he must often sacrifice the opportunity to exert economic pressure upon
local policy-making officials.5 Therefore, so long as municipal immu-
* Member, California Bar. JI). 1965, Yale University. Attorney, San Francisco Office
of California Rural Legal Assistance.
0* Executive Editor (Lead Articles), Soum Nmi CALiFORNIA LAW REvIEw.
1. 42 U.S.C. § 1983 (19,64) provides:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory, subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdiction thereof to deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
2. 365 U.S. 167 (1961).
3. See, e.g., Zuckerman v. Appellate Div., Second Dep't, Supreme Court of the State
of New York, 421 F.2d 625, 626 (2d Cir. 1970):
In Monroe v. Pape. . . it was held that a municipal corporation was not a
person within the intended meaning of that word in section 1983. Since a
municipal corporation is but a political subdivision of a state, it has also been
held that the state itself is not subject to suit under section 1983.... It follows
that the Appellate Division, as part of the judicial arm of the State of New
York, must also not be a person within the purview of the section of the
Civil Rights Act.
4. The plaintiff may sue the municipality in the court of a state which has ab-
rogated municipal immunity.
5. See text accompanying notes 45-52 infra.

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