The Seventh Circuit no doubt raised some eyebrows last month when it reversed a $44.7 million jury verdict in First Midwest Bank v. City of Chicago. But despite the high verdict and tragic facts, the decision simply applied longstanding Supreme Court precedent on the distinction between government wrongs, which certainly do violate the federal constitution, and private wrongs, which do not—even if they are tortious or criminal under state law.
Back in 2010, Chicago police officer Patrick Kelly and his longtime friend Michael LaPorta spent the evening drinking together, some kind of argument ensued, and LaPorta ended up shot in the head. He suffered severe and life-altering brain injuries. Kelly claimed that LaPorta had attempted suicide, but LaPorta’s family alleged that Kelly shot LaPorta. Of note, Officer Kelly had a long history of allegations of on-duty misconduct, but was not significantly disciplined by CPD.
After settling with Kelly’s personal insurer, LaPorta’s family sued the City of Chicago, alleging that the City’s policy failures caused Kelly to shoot LaPorta and thereby violated his substantive due process rights under the Fourteenth Amendment. They argued that the City implicitly and explicitly condoned misconduct and allowed a “code of silence” among police officers, and these practices made Kelly think he could shoot LaPorta and get away with it. Plaintiff’s counsel made fiery arguments that a big verdict was necessary to reform the Chicago Police Department and deter future misconduct from officers. The jury returned a verdict of $44.7 million, the largest police misconduct verdict in Chicago history.
On appeal the City pressed the same point that it had made in the lower court: Kelly’s actions occurred off duty, at his home, and were completely unrelated to his role as a police officer. They did not violate LaPorta’s rights because they were not government action, but private action. The U.S. Supreme Court has held decades ago that the Fourteenth Amendment does not apply to private conduct and the government has no constitutional duty to protect against private violence.
The Seventh Circuit agreed. Plaintiff’s attempt to bring a Monell claim and point to the City’s policies and practices misunderstood the nature of such claims. Monell is not a separate source of substantive rights, but a procedural means to sue municipalities that cause such violations. Here, there was no substantive constitutional violation. Instead, it was an act of tragic, but thoroughly private violence. The Seventh Circuit added that several other lower courts had made the same mistake that the district court made in this case, allowing Monell claims to go forward on the theory that municipal policies somehow “caused” acts of private violence. In conclusion, the Seventh Circuit went out of its way to acknowledge sympathy for LaPorta’s injuries, but reiterated that because Kelly’s actions were not government action, they did not violate LaPorta’s federal constitutional rights.
First Midwest Bank is good news for municipalities in that is reiterates that they, alone among employers, are not on the hook for private, off-duty actions of their employees. Other district court decisions to the contrary are no longer good law. That said, it is equally true that most suits against municipalities arise from the on-duty actions of their employees, for which there certainly is liability.