Deliberate Indifference and Negligent Hiring Practices
August 11, 2005
For a city to be liable under Sec. 1983, it must be deliberately indifferent to a citizens' constitutional rights. In other words, the city must not care about your rights. When a city hires someone with an assault and battery conviction to be a police officer, is the city deliberately indifferent to your constitutional rights?
That issue arouse in Crete v. City of Lowell: there, a unanimous three judge panel of the First Circuit held that it did not.* Here's what happened:
Steve Ciavola was hired as a police officer with the City in the fall of 1995. In March 1999, Ciavola arrested Crete and Ciavola filed for bankruptcy and the claims against him were stayed. The excessive use of force by Ciavola was part of the claim against the City for negligent hiring, and this evidence was heard by the jury. The plaintiff voluntarily dismissed the claims against Ciavola after this trial. during the course of the arrest Ciavola "threw [Crete] down onto the pavement" and "pushed [his] head onto the sidewalk three or more times." Crete alleged that he never "threatened or physically resisted" Ciavola in any way, so as to justify Ciavola's response.
Slip op. at 2-3. The court held that although Ciavola had an assault and battery conviction, the city would not be held liable.
In this case, the City's hiring decision was itself legal, and the City did not authorize Ciavola to use excessive force. The process used to investigate the background of Ciavola was reasonable: it revealed the past conduct which Crete asserts links the hiring of Ciavola with his use of excessive force. The department made its hiring decision with knowledge of Ciavola's background and assurances from Ciavola's probation officer that Ciavola would "make an excellent police officer" despite his assault and battery conviction. But "[e]ven when an applicant's background contains complaints of physical violence, including acts of aggression and assault, this may still be insufficient to make a City liable for inadequate screening of an officer who then uses excessive force." And such is the case here: Crete simply cannot meet his heavy burden. There was insufficient evidence on which a jury could base a finding that a "plainly obvious consequence" of the City's decision to hire Ciavola was the violation of Crete's constitutional rights.
Id. at 26-27. This is a tough case for me. One one hand, it's important that cities hire people unlikely to violate citizens' rights. Police officers should be intelligent, responsible, law-abiding people. Here, Ciavola pled guilty to misdemanor assault.
On the other hand, this is a pretty minor offense. Indeed, I've seen lots of people charged with bogus assault counts. An assault conviction is nothing close to a scarlet letter.
* The First Circuit applies a heightened (and incorrect) standard that is overly charitable to cities. In the First Circuit, a city can be liable under 1983 for the acts of its employees only if a civil rights violation is a "plainly obvious consequence" of the city's decision.