December 23, 2021

Whitehouse, Cicilline Introduce Bill to Hold Police Departments Accountable for Officers’ Constitutional Violations

Constitutional Accountability Act would apply the proven legal principle that employers bear responsibility for employees’ misconduct

Washington, DC – Senator Sheldon Whitehouse (D-RI), a senior member of the Senate Judiciary Committee and a former Rhode Island Attorney General and U.S. Attorney, and Congressman David Cicilline (D-RI) have introduced the Constitutional Accountability Act to hold police departments accountable for unconstitutional conduct by their officers. The legislation would extend liability for constitutional violations to the departments responsible for officer hiring, training, supervision, discipline, and culture, all of which shape police behavior. The change would encourage departments to improve command environments that contribute to misconduct and risk the safety of both officers and the communities they serve.

“As chain-of-command organizations, police departments decide how to train, supervise, and discipline their personnel. That means departments ought to bear responsibility for the behavior of their officers,” said Whitehouse. “This bill will extend to police departments the well-known and widely-applied doctrine of respondeat superior – rendering employers liable for actions of their employees. It’s a time-tested and proven way to encourage responsible management.”

“As we work towards a fairer and more just policing system, we must be able to hold police departments and government agencies that oversee law enforcement accountable,” said Cicilline. “For too long these agencies and governments — who employ, train, and oversee their officers — have been immune from lawsuits even in cases of egregious constitutional violations by their employees. Removing immunity for these types of violations will incentivize agencies to take a hard look at their policies and make the changes that Americans deserve, as well as promote a fairer system in our courtrooms.”

Congressmen Hank Johnson (D-GA) and Jamie Raskin (D-MD) joined Whitehouse and Cicilline in introducing the bill.

Police departments are entrusted with providing proper training, supervision, and discipline of officers. Yet, a number of recent high-profile suits against departments have exposed systemic failures in policing and our legal tools for ensuring accountability. Over 5,400 Americans have been killed in police encounters nationwide since 2015. These fatalities stem in part from systemic issues within police departments, as well as uneven management. In the United States, there are 18,000 police departments, but no uniform standards for officer training.

Victims of police misconduct encounter obstacles to challenging police departments at every level of government. Even though local police departments are best suited to address deficiencies in training and supervision that often lead to police misconduct, current law makes them less responsible for officer conduct than a big-box store would be for the conduct of its security guards. State agencies cannot be sued at all due to state sovereign immunity. There is also no statutory cause of action for constitutional violations by federal officials; victims’ only recourse at the federal level is bringing their claims if courts imply a cause of action (so-called Bivens claims)—which they are increasingly unlikely to do.

The Constitutional Accountability Act would recognize that municipal and county police departments should be held civilly liable for police misconduct under respondeat superior—the long-established legal doctrine that employers are responsible for the actions of their employees. It would also ensure that constitutional violations by federal officers are treated the same as violations by state and local officers. The risk of being liable to compensate victims of constitutional violations will create a strong incentive for departments to change command environments that permit misconduct.

Specifically, the bill:

  • Codifies that the federal government and federal employees can be sued for constitutional violations;
  • Waives state sovereign immunity, so plaintiffs can sue state governments and government officers in their official capacity for monetary damages; and
  • Establishes that federal, state, and local governments have the same respondeat superior liability that private employers have for their employees (abrogating the Supreme Court’s decision in Monell v. City of New York).

Rich Davidson (202) 228-6291 (press office)

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