Motions to Bifurcate: Procedural Qualified Immunity for Municipalities
Qualified immunity is getting a lot of well-deserved attention these days. The doctrine protects individual state actors—and by extension, their government employers—from liability when they have violated a constitutional right if that right was not “clearly established in law.” Protests over police brutality and demands for accountability have brought qualified immunity into the public spotlight. These conversations about individual accountability are important. But as necessary as they are, we cannot ignore the legal mechanisms for and barriers to institutional accountability and reform. Monell claims are the vehicle by which citizens can sue municipalities for policies, customs, and practices that cause individual constitutional violations. Plaintiffs will often simultaneously sue officers in their individual capacity for constitutional violations under Section 1983 and the municipality under Monell for having a practice or custom that caused that violation. But municipalities, wary of the potential effects of an unfavorable court finding on their policies, customs, and practices, frequently seek to avoid litigating the issue altogether using motions to bifurcate.
Beyond giving plaintiffs a means to recover damages for their injuries, Monell claims play an important role in government accountability. The financial cost of a successful Monell claim against a city can motivate a city to reform practices and policies. Even more important, as some courts have recognized, Monell claims can actually compel municipalities to reform through non-monetary remedies like consent decrees. They are also important in situations where many plaintiffs have claims of similar constitutional violations against individual officers within the same municipality. A decision against the city on a Monell claim in one case can have significant, pro-plaintiff ramifications in other similar cases. If the violation can be traced back to the same pattern, practice, or custom for which the city was found liable in the previous case, the city may be estopped from disputing the new plaintiff’s Monell claim. At the very least, there will be a developed record with a legal finding upon which later cases can rely. This reduces costs and time for other plaintiffs who suffer injuries due to the same custom or practice. On the other hand, a finding of an isolated, individual constitutional violation against an individual officer will generally be insufficient to establish a pattern or practice for future plaintiffs, sometimes even if the same officer is accused of a violation.
Bifurcation is a procedural gift to cities, a tool to avoid Monell liability. Motions to bifurcate are predicated on Federal Rule of Civil Procedure 42(b) which allows courts to separate trials “[f]or convenience, to avoid prejudice, or to expedite and economize.” Municipalities regularly argue that discovery and trial of a Monell issue simultaneous to, for example, an excessive force claim, will result in unnecessary and costly discovery as well as a trial that may confuse and prejudice a jury against the defendants. Instead, they argue, discovery and trial for the individual constitutional violation should proceed, and if that claim is successful, then the plaintiff should file a separate Monell claim against the city.
Cities argue that this strategy is best for everyone. Bifurcation saves the plaintiff the cost of engaging in complex discovery, instead simply focusing on the individual violation. And it allows the city to similarly save on costs, while still getting the plaintiff everything they want (at least financially) if they win on the individual claim. Sometimes, the city even agrees to a partial judgement in the event the officer is found liable; they will pay damages equivalent to what the plaintiff would have received had both claims (individual and Monell) been successful, and they will do so even if the officer is found to be protected by qualified immunity. This looks like a good deal for all parties involved, a win–win.
But looks can be deceiving. Financially, for that one plaintiff, the outcome may be the same. But the benefits end there. Unless the plaintiff is willing to pursue another (very costly) lawsuit, the end of the individual suit will probably end all litigation. Most plaintiffs do not have the resources to see two separate lawsuits all the way through. Here’s why that can be a problem: First, it means that there will be no judgement, on the record, against the city as to its patterns and practices causing constitutional violations. The city’s agreement to indemnify and pay up does not include an admission of a pattern and practice under Monell. This means other litigants claiming injuries from similar conduct cannot use the indemnification agreement as evidence in their own cases. And second, focusing only on individual claims curbs opportunities for institutional reform. Financial payment may be made, but Section 1983 claims against individual officers cannot be used as a vehicle to force non-monetary damages such as consent decrees and reforms to policing practices and training.
To illustrate the power of bifurcation to protect municipalities against Monell claims and accountability, let’s look at the case of former Chicago Police Commander Jon Burge. Burge and his subordinates tortured and abused over one hundred Black suspects in order to extract confessions. Even Chicago Mayor Lori Lightfoot has acknowledged the abuse. Chicago passed an ordinance providing reparations to victims of torture and subsequent wrongful convictions. That ordinance included a requirement that Chicago Public School history classes include a unit on Burge and “systemic” torture in the Chicago Police Department. Despite this public recognition, Chicago has refused to acknowledge the torture in a court of law, continuing to argue that it never happened, and characterizing assertions of abuse and torture as “fairy tales.” And the City has never had to admit that the abuse was part of a systemic pattern created by customs and practices within the Chicago Police Department, the standard required for Monell claims.
Many of the individuals tortured by Burge and his detectives have been released and granted certificates of innocence. Many have filed civil suits against the individuals responsible for their abuse and coerced confessions and against the City of Chicago for a pattern and practice that caused the violation of constitutional rights. Yet Chicago has regularly used motions to bifurcate to avoid liability on the Monell claims. For example, in 2006, the Northern District of Illinois granted Chicago’s motion to bifurcate Monell claims in the case of Leroy Orange. Orange was convicted of four murders and sentenced to death based solely on his coerced confession; fifteen years later he was granted a full pardon of innocence before filing his civil suit against Burge and Chicago. In granting the City’s motion to bifurcate, the court cited efficiency: the Monell case would have included an additional thirty potential witnesses. The City of Chicago also argued that because they were willing to pay all compensatory damages associated with the constitutional violation, there was no need to litigate the burdensome Monell claim. Similarly, Ronald Kitchen was convicted and sentenced for the murders of five people based on his coerced confession; in 2012, the Northern District of Illinois granted Chicago’s motion to bifurcate Kitchen’s Monell claim in a civil suit against Chicago and individual officers responsible for his coerced confession because “the burdens and costs of litigating the Monell claim can be avoided altogether.” Like the City in Leroy Orange’s civil suit, the court in Ronald Kitchen’s suit focused on monetary outcomes. Because compensation to the plaintiff would be no different with or without the Monell claim, the court reasoned, there was no justification for allowing the Monell claim to proceed as part of the suit against individual officers. In doing so, the court ignored the value to efficiency that a court ruling, which found that a city’s customs and practices caused the constitutional violation, could have for the many other plaintiffs with potential claims against Burge and his subordinates.
Notably, judges in the Northern District of Illinois have recently been more hesitant to grant motions to bifurcate in civil suits against the city related to torture and abuse by Burge and his detectives. Just a few months ago, Judge Ellis denied the City’s motion to bifurcate in James Gibson’s civil suit. Gibson was convicted for murder based on coerced statements and spent nearly thirty years in prison before having his conviction overturned and a certificate of innocence granted. But motions to bifurcate are still commonly granted because courts focus on the compensation available to plaintiffs, not acknowledging the power that a finding on Monell has in cases with similar constitutional violations within the same municipality and under similar circumstances. If the courts are concerned about costs—both financial and temporal—of litigation, surely the opportunity to delve into the allegations in one case would save future litigants, as well as courts, the cost and time of re-examining those same issues.
Monell claims are expensive and time-consuming, from discovery to trial. But the procedural barriers like bifurcation that make Monell claims even more difficult to establish in a court of law should not be ignored. Procedural rules may seem benign. But bifurcation is, in a way, procedural qualified immunity for cities. For real change in policing, procedural tactics like bifurcation used by municipalities to avoid liability and accountability must also be reexamined, alongside qualified immunity.
Sarah Chanski is a JD/PhD candidate at Northwestern Pritzker School of Law and Northwestern University School of Communication, and is Editor-in-Chief of Northwestern University Law Review.