Standalone Municipal Liability

Under Monell v. Department of Social Services, municipalities may not be held liable for constitutional violations attributable to an errant employee’s actions. Instead, Monell dictates that municipal liability is appropriate only when the municipality itself is “the moving force” behind the constitutional violation. The Fourth and Fifth Circuits, based on a flawed reading of the Supreme Court case City of Los Angeles v. Heller, adopt an inapposite approach to the relationship between municipal and individual liability. Although every other circuit allows municipal claims to proceed absent any individual claim arising from the same underlying facts, the Fourth and Fifth Circuits have never definitively adopted this approach. Consequently, when Fourth or Fifth Circuit plaintiffs bring claims against municipalities without accompanying claims against individual employees—or when their accompanying individual claims are dismissed—the municipal claims stand on uncertain ground. This ambiguity erodes otherwise valid pathways to liability for plaintiffs whose constitutional injuries are properly attributable to the municipality qua municipality, rather than an individual municipal employee. The Fourth and Fifth Circuits should recognize the viability of standalone municipal liability, consistent with the approach taken in all other circuits applying the Monell doctrine.

Introduction

When a state or municipal actor violates an individual’s constitutional rights, the injured person can turn, at least in theory, to 42 U.S.C. § 1983, which creates a statutory cause of action for federal rights violations against any “person” acting under color of state law. In Monell v. Department of Social Services, the Supreme Court held that “person” within the statute’s meaning includes municipalities.¹Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
At the same time, the Court determined municipalities are not subject to vicarious liability in the same manner as private corporations.²Id. at 691–92.
Rather, the municipality qua municipality must be the “moving force” behind the constitutional injury to be liable under Monell.³Id. at 694.

Predictably, Monell spawned a complex body of case law that attempts to establish when the municipality itself is responsible, and thus liable, for a constitutional violation. Justice Breyer once wrote that “Monell’s basic effort to distinguish between vicarious liability and liability derived from ‘policy or custom’ has produced a body of law that is neither readily understandable nor easy to apply.”⁴Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 433 (1997) (Breyer, J., dissenting).
In short, Monell doctrine is difficult for plaintiffs to navigate, and claim success rates are accordingly low.⁵Joanna C. Schwartz, Municipal Immunity, 109 Va. L. Rev. 1181, 1199–200 (2023) (characterizing the obstacle posed by Monell’s doctrinal complexity as comparable to the obstacles posed by qualified immunity).

The doctrine’s complexity also impacts plaintiffs in extradoctrinal ways. Plaintiffs struggle to find lawyers willing take on even meritorious cases because the work is time consuming and labor intensive, with a relatively low chance of success. Since many civil rights attorneys are only compensated if they win, attorneys understandably prefer to pursue cases from which they can more reliably make a living.⁶See infra Section I.C.
Doctrinal complexity, ambiguity, and inconsistency reinforce these systemic barriers to plaintiff recovery. It is therefore critical that academics and practitioners identify and resolve doctrinal problems to make Monell litigation more approachable for plaintiffs.

This Note identifies one such doctrinal inconsistency and suggests a solution. In City of Los Angeles v. Heller, the Supreme Court upheld a district court’s summary dismissal of a Monell claim after a jury absolved the individual officers involved in the underlying incident.⁷City of Los Angeles v. Heller, 475 U.S. 796 (1986).
The Heller decision left circuit courts with this question: Does Heller foreclose liability only where the facts are such that a finding for the individual officer cannot be reconciled with the existence of a constitutional injury?⁸Compare, e.g., Epps v. Lauderdale Cnty., 45 F. App’x 332, 334 (6th Cir. 2002), with Barrett v. Orange Cnty. Hum. Rts. Comm’n, 194 F.3d 341, 349–50 (2d Cir. 1999).
Or, does Heller per se foreclose a plaintiff from sustaining a Monell claim against the municipality when a court has dismissed claims against the municipality’s individual officers? In other words, can claims against municipalities ever stand alone?

Disallowing standalone municipal liability is inconsistent with Monell’s broader doctrinal underpinnings and obstructs recovery for plaintiffs alleging constitutional injuries. This Note identifies two scenarios where obstacles to relief are insurmountable. First, plaintiffs may need to rely on a standalone claim against a municipality in the prison medical care context, where systemic understaffing and diffuse personnel responsibility—as opposed to the egregious conduct of any one officer—create conditions of confinement ripe for constitutional violations. Second, a municipal claim may be the only avenue for recovery in excessive force cases in which plaintiffs cannot identify the individual officers who harmed them and, thus, cannot maintain claims against any specific individuals.

In most circuits, plaintiffs are generally free to pursue standalone claims against municipalities. In the Fourth and Fifth Circuits, however, the viability of standalone municipal claims is unclear. The Fourth Circuit has never affirmatively embraced standalone municipal liability and has repeatedly disposed of standalone municipal claims using per se language.⁹See, e.g., Waybright v. Frederick Cnty., 528 F.3d 199, 203 (4th Cir. 2008) (“[M]unicipalities cannot be liable under § 1983 without some predicate ‘constitutional injury at the hands of the individual [state] officer.’ ” (alteration in the original) (quoting Heller, 475 U.S. at 799)).
The Fifth Circuit has pointedly declined opportunities to address whether standalone municipal liability is permissible.¹⁰See, e.g., Carnaby v. City of Houston, 636 F.3d 183, 194 (5th Cir. 2011) (“We have yet to address, directly, whether a municipality can ever be held liable for failure to train its officers adequately where the officers did not commit any constitutional violation . . . .”).
Lower courts in both circuits have been left guessing about the permissibility of these claims.¹¹See, e.g., Watkins v. Butler, No. 20-cv-00208, 2024 WL 2273384, at *7–8 (D. Md. May 20, 2024); Cook v. Dallas, No. 12-CV-3788, 2016 WL 11258075, at *3 (N.D. Tex. Mar. 15, 2016).
This ambiguity in Fourth and Fifth Circuit case law creates a chilling effect for certain litigant groups. This Note analyzes the current state of standalone municipal liability across circuits and argues that the Fourth and Fifth Circuits should permit standalone municipal liability.

This Note proceeds in four parts. Part I reviews the purpose and evolution of § 1983 and Monell liability generally and identifies some systemic obstacles to recovery that explain the low success rate of claims against municipalities. Part II identifies and explains two types of claims (Eighth, Fifth, and Fourteenth Amendment prison conditions and Fourth Amendment excessive force claims) directly impacted by reading Heller to disallow standalone municipal liability. Part III analyzes the state of standalone municipal liability in the Fourth and Fifth Circuits, compares it to the prevailing treatment of standalone municipal claims, and argues that the Fourth and Fifth Circuits should embrace the majority approach. Finally, Part IV argues that this Note’s proposed incremental reform would be more immediately effective in improving plaintiff outcomes than would a complete and immediate overhaul of Monell doctrine.

I. Municipal Liability Under Monell

Section 1983 creates a cause of action for citizens whose federal rights are violated by any person acting under color of state law.¹²42 U.S.C. § 1983. The statute provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 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 . . . .

My discussion of the legislative history underlying Monell is informed in large part by Jordyn Manly’s work on the same subject. See Jordyn Manly, Note, Policing the Police Under 42 U.S.C. § 1983: Rethinking Monell to Impose Municipal Liability on the Basis of Respondeat Superior, 107 Corn. L. Rev 567, 573–76 (2022).
Congress originally enacted the statute as part of the Civil Rights Act of 1871.¹³Civil Rights Act of 1871, ch. 22, 17 Stat. 13 (codified as amended at 42 U.S.C. §§ 1983, 1985, 1986); Monroe v. Pape, 365 U.S. 167, 170–80 (1961) (describing the legislative history of § 1983).
Known colloquially as the “Ku Klux Klan Act,” § 1983 was a congressional effort to enforce the mandates of the Fourteenth Amendment against state and local actors. Legislators hoped to improve access to federal courts for formerly enslaved people, who frequently suffered violence at the hands of state and local government officials.¹⁴Monroe, 365 U.S. at 170–80.
Toward these ends, the statute had two major goals: to provide a recovery mechanism for those whose civil rights had been violated and to deter future violations.¹⁵See id.

 A. Evolution of § 1983

Despite the Ku Klux Klan Act’s broad scope and lofty goals, it largely laid dormant for decades after its passage. Between 1871 and 1920, plaintiffs brought only twenty-one cases under the statute.¹⁶Comment, The Civil Rights Act: Emergence of an Adequate Federal Civil Remedy?, 26 Ind. L.J. 361, 363 (1951). The statute’s early ineffectiveness was due in large part to restrictive interpretations of the Fourteenth Amendment and state action doctrine, which excluded most civil rights violations from federal courts’ purview. See Developments in the Law—Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1156–61 (1977).
But in 1961, the Supreme Court revived the Act as a viable remedy to constitutional rights violations in Monroe v. Pape.¹⁷Monroe, 365 U.S. 167.
Monroe held that a government official acts “under color of” state law even if the challenged act is an abuse of authority that actually violates state law.¹⁸Id. at 187.
This decision paved the way for an influx of claims against government actors in their individual capacities.

In the same breath, however, the Court rejected a statutory interpretation that would have allowed claims brought directly against municipalities. To do so, it relied on Congress’s consideration and rejection of the Sherman Amendment. This proposed § 1983 amendment would have imposed strict liability on municipalities for state-imposed federal rights violations that occur within city limits.¹⁹Lisa D. Hawke, Note, Municipal Liability and Respondeat Superior: An Empirical Study and Analysis, 38 Suffolk U. L. Rev. 831, 835 (2005).
The rejection of the Sherman Amendment persuaded the Court that Congress had intended to shield municipalities from direct liability, and the Court therefore declined to include municipalities within the definition of “persons” under the Act.²⁰Monroe, 365 U.S. at 191 (“The response of the Congress to the proposal to make municipalities liable for certain actions . . . was so antagonistic that we cannot believe that the word ‘person’ was used in this particular Act to include them.”).
The Supreme Court’s conclusion in Monroe thus barred direct municipal liability under § 1983.

Sixteen years later in Monell v. Department of Social Services, the Court reversed Monroe’s holding as to direct municipal liability, determining instead that the word “person” in § 1983 included municipal governments. For the first time, municipalities could be sued directly for constitutional violations.²¹Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 701 (1978).
The Court interpreted Congress’s rejection of the Sherman Amendment as less significant in Monell than in Monroe, reasoning that Congress did not intend to bar municipal liability completely.²²Hawke, supra note 19, at 838 n.49.
Under the correct interpretation of the word “person,” the Court explained, municipalities should be liable to the extent that the municipality itself is the “moving force” behind the constitutional violation.²³Monell, 436 U.S. at 685–86, 694–95; Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

But the Court’s holding in Monell came with a major caveat: Municipalities, unlike private employers, could not be held liable under a theory of respondeat superior. In other words, the city could not be held liable based solely on a principal-agent relationship between itself and its officers.²⁴Monell, 436 U.S. at 691.
The Court worried that saddling municipalities with such blanket vicarious liability would contravene Congress’s motivations for rejecting the Sherman Amendment.²⁵Hawke, supra note 19, at 839.
Thus, the Court held that a municipal claim could only be supported by evidence of “acts that are, properly speaking, acts ‘of the municipality’—that is, acts which the municipality has officially sanctioned or ordered,” rather than an isolated act of an errant agent.²⁶Pembaur, 475 U.S. at 480.

B. Categories of Municipal Liability

In the years since Monell, the Supreme Court has defined four main avenues by which plaintiffs can demonstrate that a municipality was the “moving force” behind the constitutional violation. The first type of case, which relies on the existence of an “official policy” or “custom,” is the simplest to plead and prove: Plaintiffs may simply point to an official written policy that on its face violates constitutional rights and demonstrate that the policy was executed in a way that caused the plaintiff to suffer a constitutional injury.²⁷Nancy Leong, Katelyn Elrod & Matthew Nilsen, Pleading Failures in Monell Litigation, 73 Emory L.J. 801, 816 tbl. 1 (2024); see, e.g., Monell, 436 U.S. at 691 (describing a written policy compelling pregnant employees to take unpaid leave before any medical leave was required).

Second, plaintiffs may point to an unofficial practice or custom so pervasive and long standing that it “practically ha[s] the force of law.”²⁸Connick v. Thompson, 563 U.S. 51, 61 (2011); accord Spell v. McDaniel, 824 F.2d 1380, 1392 (4th Cir. 1987) (finding an unofficial custom where unconstitutional conduct by lower-level employees was so pervasive that higher-up officials must have known of the custom and tacitly approved of it).
Proving an unofficial custom requires plaintiffs to clear three significant hurdles. Under this theory, plaintiffs must first prove the existence of a widespread and persistent practice of unconstitutional misconduct by government employees.²⁹3 Chester J. Antieau et al., Antieau on Local Government Law § 43.03(2)(c) (Sandra M. Stevenson ed., 2d ed. 2025).
Ordinarily, a custom cannot be inferred from a single incident; rather, it must “be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.”³⁰Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).
Next, plaintiffs must prove that policymaking officials knew about and were deliberately indifferent to the misconduct.³¹ Antieau, supra note 29, § 43.03(2)(c).
Finally, they must show that the policy or custom caused their constitutional injury.³²Id.

Third, plaintiffs can establish municipal liability through an act taken by an employee who is the municipality’s “final decisionmaker” on the relevant issue.³³Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 483 (1986) (holding a county prosecutor’s decision to send law enforcement on a search in violation of the Fourth Amendment constituted a county policy even though it occurred only once).
Plaintiffs must demonstrate that a final decisionmaker both approved a certain action and approved the improper basis for that action. Who qualifies as a final decisionmaker, however, is a question of law to be decided by the court;³⁴City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (“If the authorized [final] policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.”).
consequently, actions authorized by some supervisory employees may be insufficient to open the door to municipal liability.³⁵Id. at 128–30.

The fourth and final theory of municipal liability is premised on municipal failures or omissions: If the city failed to take some action to prevent a constitutional violation, and that failure evinced deliberate indifference to the constitutional violation, the city may be liable.³⁶See, e.g., Connick v. Thompson, 563 U.S. 51, 61–62 (2011) (“In limited circumstances, a local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes of § 1983.”); City of Canton v. Harris, 489 U.S. 378 (1989) (finding municipal liability where a city policy allowed jail officials to determine, in their discretion, whether a detainee needed medical attention, but provided no special training to the officials).
Omission liability claims are commonly based on failure to train,³⁷See, e.g., Connick, 563 U.S. at 61–62.
failure to supervise,³⁸See, e.g., Forrest v. Parry, 930 F.3d 93, 108 (3d Cir. 2019) (finding a failure to supervise when officers “engaged in illicit conduct . . . knowing that they were not being supervised”).
or failure to conduct a sufficiently thorough screen during the hiring process.³⁹See, e.g., Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 401 (1997) (assessing liability for a county sheriff who hired his nephew’s son to be a police officer but provided him with no training).
Plaintiffs may prove the requisite deliberate indifference either by demonstrating a pattern of similar constitutional violations resulting from the omission⁴⁰ Antieau, supra note 29, § 43.03(2)(d); see, e.g., Connick, 563 U.S. at 62 (stating that a pattern of violations is ordinarily necessary to prove deliberate indifference).
or by identifying a single violation that is an “obvious consequence” of the failure to act.⁴¹See, e.g., Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 796–97 (9th Cir. 2016) (holding that the need for social workers to be trained on the constitutional limitations of separating children from parents is obvious enough that failure to do so evinces deliberate indifference).

C. Obstacles to Recovery

Monell doctrine is widely understood to be unwieldy, overly complicated, and thus, in and of itself, a bar to recovery. There is no shortage of scholarship,⁴²See, e.g., Karen M. Blum, Section 1983 Litigation: The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 920 (2015) (calling municipal liability litigation “a maze that judges and litigants must navigate with careful attention to all the twists and turns); Leong, Elrod & Nilsen, supra note 27, at 803 (describing the complicated doctrinal standards as contributing to the infrequency of plaintiff success); Schwartz, supra note 5, at 1181 (characterizing the obstacle posed by the doctrinal complexity of Monell as comparable to the obstacle posed by qualified immunity).
nor judicial commentary,⁴³E.g., Brown, 520 U.S. at 433 (Breyer, J., dissenting) (“Monell’s basic effort to distinguish between vicarious liability and liability derived from ‘policy or custom’ has produced a body of law that is neither readily understandable nor easy to apply.”).
condemning it as such. But before encountering the doctrine’s substantive complexity, would-be Monell plaintiffs face obstacles just getting their claims into court.

First, a plaintiff must decide that they want to pursue a lawsuit, and the daunting process of recovery can chill even plainly meritorious claims at this stage.⁴⁴See William L.F. Felstiner, Richard L. Abel & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . ., 15 Law & Soc’y Rev. 631 (1980–1981) (“Formal litigation and even disputing within unofficial fora account for a tiny fraction of the antecedent events that could mature into disputes.”).
Then, assuming they do not wish to proceed pro se, they must find a competent lawyer.⁴⁵If they proceed pro se, their case is much less likely to succeed. Joanna C. Schwartz, Civil Rights Ecosystems, 118 Mich. L. Rev. 1539, 1557–58 (2020).
Outside a handful of urban hubs,⁴⁶Joanna Schwartz identifies New York, Los Angeles, Oakland, Chicago, and Philadelphia—“cities of the Great Migration”—as such hubs. Joanna Schwartz, Shielded: How the Police Became Untouchable 20.
this is likely to pose a significant obstacle. Compare Philadelphia, where, as of 2020, forty attorneys were regularly filing civil rights claims against law enforcement in federal court, with Houston, where only one attorney regularly undertook such cases.⁴⁷Schwartz, Ecosystems, supra note 45, at 1577–78.

Assuming a plaintiff successfully identifies a competent lawyer,⁴⁸And this may be a bold assumption. See generally Leong et al., supra note 27 (analyzing the poor quality of many pleadings filed on behalf of civil rights plaintiffs).
they must next convince the lawyer to take their case. This too may pose a challenge: Civil rights attorneys often work on contingency-fee models, and only “prevailing parties” in a § 1983 suit can recover attorney fees.⁴⁹42 U.S.C. § 1988(b); see also Leong et al., supra note 27, at 835–36.
Given the government-friendly pleading and doctrinal standards, low likelihood of success, and time-consuming nature of civil rights cases, lawyers may not be willing to take a risk on a less-than-plainly egregious case.⁵⁰ Schwartz, Shielded, supra note 46, at 27 (quoting one attorney who shared how he thinks about whether a case is worth taking: “It sounds crass but we say, ‘Well, is there blood on the street?’ Because if there isn’t, why are we doing it?”).

If the plaintiff makes it to this stage, they’ll next encounter the obstructive interplay between the fact-intensive demands of Monell doctrine and the heightened pleading standards imposed by Twombly v. Bell Atlantic and Ashcroft v. Iqbal, which require plaintiffs to plead factual allegations “plausible on [their] face” to survive a motion to dismiss.⁵¹Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).
These pleading standards are particularly challenging for § 1983 plaintiffs, who are often required to allege facts related to the municipality’s inner workings at the prediscovery stage.⁵²See Schwartz, Municipal Immunity, supra note 5, at 1214–15.
Finally, plaintiffs will need to undertake a wide-ranging discovery process to prove fact-intensive elements of Monell claims, like “persistent and widespread” rights-violations practices,⁵³ Antieau, supra note 29, § 43.03(2)(c).
often over the best efforts of defendants who control—and limit—access to relevant information.⁵⁴Schwartz, Ecosystems, supra note 45, at 1556 n.70 (quoting an attorney describing the discovery process: “Some [city officials] are notoriously disorganized and that’s giving them the best of it, and then we have to constantly file motions and compel discovery.”); id. at 1571 (“[J]ust being allowed to do discovery has been a two-year battle.”).

It is easy to see how both doctrinal complexity and ambiguity have a chilling effect on § 1983 litigation. Because the doctrine is so complex, plaintiffs need a competent lawyer to have a reasonable chance of success.⁵⁵Leong et al., supra note 27, at 806 (“[P]leading failures are a symptom of a systemic problem: not enough plaintiffs have access to lawyers with expertise in § 1983 litigation who are willing to take their cases. We trace this shortfall in part to economic incentives.”).
Depending on location, the availability of such a lawyer can be a tall order.⁵⁶Schwartz, Ecosystems, supra note 45, at 1577–79.
And because the doctrine is at times ambiguous, lawyers cannot accurately predict when they will prevail, and are likely to be cautious about which cases to take on in the first place. Thus, academic and judicial efforts to clarify ambiguities in Monell doctrine can have a compounding effect on plaintiffs’ ability to get their claims into court.

II. Utility of Standalone Municipal Liability Claims

Typically, municipal liability claims in Monell litigation are premised on the unconstitutional actions of one or more individual municipal officers. The municipal claim exists because the municipality’s unconstitutional policy, custom, action, or omission was the “moving force” behind the injurious behavior of its officers, who are also named in the lawsuit in their individual capacities.⁵⁷See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
What this Note calls the “doctrine of standalone municipal liability” refers to courts’ treatment of cases in which no individual officer is sufficiently culpable to be individually liable, but a case against the municipality should nonetheless proceed.

Whether a circuit will recognize standalone municipal liability claims carries significant implications for litigants. Monell doctrine must be coherent and predictable to provide any practical value to litigants.⁵⁸See supra Section I.C.
Prohibiting standalone municipal liability is fundamentally inconsistent with the broader Monell doctrine. By their nature, standalone municipal liability claims decouple individual and municipal liability and are thus consistent with Monell’s rejection of vicarious liability. In cases where a constitutional injury has concededly occurred, and yet no individual officer can be deemed responsible, it becomes undeniable that the municipality is the moving force behind the injury.⁵⁹See Monell, 436 U.S. at 691.

As such, disallowing standalone municipal liability undermines the broader thrust of Monell doctrine, which rejects vicarious liability. When an individual is named as a defendant, and the injurious behavior of that individual defendant is the primary focus of a lawsuit, it becomes more likely that the nature of the claim against the municipality—however framed—is really an attempt to hold the municipality accountable for the acts of an errant agent. In contrast, when no one individual can be pinpointed as having caused the injury, the standalone claim against the municipality is likely to focus on systemic failures that are more appropriately attributable to the municipality alone.⁶⁰See Timothy M. Tymkovich, Municipal Liability: Tensions in the Tenth Circuit, 100 Denv. L. Rev. 439, 456–57 (2023) (referring to standalone municipal claims as “systemic failures”).
Thus, the municipal claim that is accompanied by an individual claim is more closely aligned with vicarious liability than a standalone municipal claim is. Yet, in circuits that take a restrictive approach to standalone municipal liability, the accompanied claim would be permissible while the standalone claim would not.

Beyond doctrinal inconsistency, disallowing standalone municipal liability harms specific types of litigants directly by eliminating one possible pathway to recovery for meritorious claims. This Note identifies two types of litigants whose chances for recovery may be diminished by restricting standalone municipal liability: those whose Fifth, Fourteenth, or Eighth Amendment rights were violated by systemic failures in jail or prison medical care, and those whose Fourth Amendment rights were violated through use of excessive force by unidentified police officers.

A. Systemic Failures in Prison Medical Care

Standalone municipal liability may matter a great deal to litigants in the prison medical care context. The Eighth Amendment guarantees protection from “cruel and unusual punishments.”⁶¹ U.S. Const. amend. VIII.
For incarcerated people, this includes a right to medical care.⁶²See Estelle v. Gamble, 429 U.S. 97 (1976).
When prison officials are “deliberate[ly] indifferent” to the “serious medical needs” of a person in their custody, they violate that person’s Eighth Amendment rights.⁶³Id. at 105 (“Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.”).
The Eighth Amendment does not apply until there has been an adjudication of guilt; so for pretrial detainees, the Due Process Clauses of the Fifth and Fourteenth Amendments provide a parallel right.⁶⁴See Bell v. Wolfish, 441 U.S. 520, 535–47. Circuit courts disagree about whether the same Gamble deliberate indifference standard applies to pretrial conditions of confinement cases but agree that the Fifth and Fourteenth Amendments are at least as protective of pretrial detainees as the Eighth Amendment is of convicted detainees. Compare Miranda v. Cnty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018) (applying a less demanding standard in the Fourteenth Amendment context than the Eighth Amendment context), with Cope v. Cogdill, 3 F.4th 198, 207 n.7 (5th Cir. 2021) (applying the same standard in both contexts).
An incarcerated person in this position will often have § 1983 claims against individual jail and prison personnel as well as a Monell claim against the municipality.⁶⁵See, e.g., Garcia v. Salt Lake Cnty., 768 F.2d 303, 305 (10th Cir. 1985) (describing initial claims against municipal and individual defendants); Grayson v. Peed, 195 F.3d 692, 694 (4th Cir. 1999) (same); see also A Jailhouse Lawyer’s Manual 524 (Colum. Hum. Rts. L. Rev. ed., 13th ed. 2024) (instructing pro se litigants on the benefits of naming both individual and municipal defendants).

Standalone municipal liability becomes important when an institution has “structured its affairs so that no one person [is] responsible for [the inmate’s] care.”⁶⁶Daniel v. Cook Cnty., 833 F.3d 728, 734 (7th Cir. 2016) (quoting Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 795 (7th Cir. 2014)) (second alteration in original).
Allowing municipal claims to stand alone in this context is essentially “a recognition that in some rare cases an injury can be caused by a group of officials, rather than by a single one.”⁶⁷Tymkovich, supra note 60, at 458.
For example, in Daniel v. Cook County, a person incarcerated pretrial, Alex Daniel, broke his wrist playing basketball.⁶⁸Daniel, 833 F.3d at 734 (calling this structure of diffuse responsibility “a common scenario”).
After the injury, Daniel was initially seen and treated in a timely fashion. But over the next six months, he was repeatedly denied access to an orthopedic specialist for his follow-up care.⁶⁹Id. at 731–32.
These avoidable delays caused permanent damage to his hand and wrist.

Paradoxically, the multiple necessary causes of Daniel’s injury made making out a claim against any one jail employee exceedingly difficult.⁷⁰Id. at 734.
Daniel was first placed in a long arm cast, which was timely replaced three weeks later with a short arm cast.⁷¹Id. at 731.
The short arm cast was supposed to be removed in another three weeks, but the jail waited ten weeks to take Daniel to have the cast removed. During that ten-week period, Daniel filed multiple grievances against the jail. In the first, he stated, “I have swelling in my fingers and I can barely move them.”⁷²Id.
The jail referred the matter to health administrators. Three weeks later, Daniel saw “an unidentified practitioner” who noted that Daniel was awaiting treatment from an orthopedic specialist.⁷³Id.
Two weeks after that, he saw another nonspecialist who again noted that Daniel needed to see a specialist.⁷⁴Id. at 732.
The following week, he saw the same nonspecialist, who this time stated that Daniel had been “scheduled for ortho last night . . . but apparently not taken by security.”⁷⁵Id.

During these weeks of waiting, Daniel filed two additional grievances expressing fear that he could not move his fingers and that he was not receiving proper medical care. The jail provided “perfunctory” replies.⁷⁶Id.
Finally, Daniel saw a specialist who determined that, because of the delay in removing the cast, Daniel needed to see an occupational therapist to recuperate his hand. Over the three months following this appointment, Daniel was scheduled for physical therapy, but jail personnel repeatedly failed to bring him to these appointments. Eventually, the same specialist saw Daniel once more and determined that, because of the delays in care, Daniel was left with low bone density, arthritis, and abnormal joint spacing in his left wrist. He would suffer “residual and permanent stiffness” in that arm.⁷⁷Id.

Daniel sued the Cook County Sheriff’s Office, the Sheriff in his individual capacity,⁷⁸The claim against the Sheriff is one of supervisory liability and is properly treated as municipal liability, not individual liability, for the purposes of our Heller analysis. See Kentucky v. Graham, 473 U.S. 159, 166 (1985).
and Cook County under § 1983.⁷⁹Daniel, 833 F.3d at 732.
He did not make claims against any one doctor or jail employee involved in his care. The Seventh Circuit Court of Appeals acknowledged that, “[o]n this record, it is hard to see how he might have done so.”⁸⁰Id. at 734.
The district court had granted summary judgment against Daniel’s claims because of an unrelated evidentiary issue, which the Seventh Circuit reversed and remanded.

As the decision in Daniel indicates, this type of systemic failure is by no means uncommon.⁸¹Id.
In the pre-Heller case Garcia v. Salt Lake County, the Tenth Circuit upheld a jury verdict that found the county liable while exonerating all individual defendants.⁸²Garcia v. Salt Lake Cnty., 768 F.2d 303, 306 (10th Cir. 1985).
Ronald Garcia was admitted to jail while unconscious, and police had reason to suspect he was intoxicated.⁸³Id. at 308.
Garcia was placed in a holding cell and died of an overdose some hours later. During those critical hours, medics and jail personnel failed to conduct regular wellness checks to ensure he was still breathing. The Tenth Circuit concluded that the jail’s monitoring policy was deficient and that the lack of medical personnel staffing evinced deliberate indifference: “[T]here was no physician present at the jail most of the time,” “[a] nurse was at the jail ‘four to five hours five days a week,’ ” and a medical technician was on duty from 5:00 AM to 9:00 PM.⁸⁴Id.
This “medical team” was responsible for as many as 400 detainees. Although no individual officers were found liable, the circuit court reasoned that “the cumulative effect of what they did pursuant to the practice or policy of the County” could still support a Monell claim.⁸⁵Id. at 310.

In the Seventh and Tenth Circuits, there is no per se bar to standalone municipal claims. This means that municipalities within these circuits cannot avoid liability by structuring their affairs “so that no one person [is] responsible for [the detainee’s] care.”⁸⁶Daniel v. Cook Cnty., 833 F.3d 728, 734 (7th Cir. 2016) (quoting Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 795 (7th Cir. 2014)); see Garcia v. Salt Lake Cnty., 768 F.2d 303, 310 (10th Cir. 1985).
This theory of the claim allowed Alex Daniel to proceed against Cook County without needing to establish liability against any individual defendant. In the Fourth and Fifth Circuits, however, comparable claims against a municipality would proceed on uncertain ground—even if the existence of a constitutional injury was undisputed—because precedent in those circuits is more hostile to standalone municipal liability.

B. Excessive Force by John Doe Officers

Prohibiting standalone municipal liability also erodes the pathway to recovery for plaintiffs who suffer Fourth Amendment injuries through the use of excessive force by unidentified “John Doe” officers.⁸⁷This Section draws on Professor Teressa Ravenell’s work, both in framing the challenges faced by plaintiffs harmed by John Doe officers, and in identifying cases that fit this fact pattern. See generally Teressa Ravenell, Unidentified Police Officials, 100 Texas L. Rev. 891 (2022) (proposing an alternative solution to the problem presented by excessive force claims against John Doe officers).
Plaintiffs victimized by police violence are, through no fault of their own, frequently unable to identify the specific police officers who harmed them.⁸⁸Plaintiffs may be unable to take note of badge numbers or faces during a chaotic and traumatic incident. See Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 286 (3d Cir. 2018). Or the constitutional violation may occur outside of their immediate presence. See Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017).
Where plaintiffs do not know the identities of their assailants, they may choose to proceed with claims against “John Doe” officers. Such claims are generally allowed at the pleading stage,⁸⁹See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388, 390 n.2 (1971) (implicitly approving the use of John Doe designations as placeholders during the pleading stage).
but if the defendant officers cannot be identified during subsequent discovery proceedings, these claims are vulnerable to dismissal at summary judgment.⁹⁰See, e.g., Colbert, 851 F.3d at 657–58 (granting summary judgment to defendants who had violated the plaintiff’s Fourth Amendment right to be free from unreasonable searches by ransacking his home). Plaintiff was confined to one room of his house while police searched, so he was unable to identify the individual officers who had caused the damage and thus could not satisfy Section 1983’s “individual-responsibility requirement.” Id.

Because of this informational asymmetry, the claim’s viability depends significantly on police officers’ cooperation in giving up the exact information they know will expose them to liability.⁹¹See Ravenell, supra note 87.
Predictably, police departments do not always cooperate with discovery under this perverse incentive system. The following cases, although they did not turn on the issue of standalone municipal liability, demonstrate how individual defendants are incentivized and enabled to evade liability by impeding discovery efforts.

In Jutrowski v. Township of Riverdale, the plaintiff, Emil Jutrowski, was driving while intoxicated and ran his car into a guardrail.⁹²Jutrowski, 904 F.3d at 285.
Five police officers arrived to carry out the ensuing arrest.⁹³Id.
While Jutrowski lay face down on the pavement in handcuffs, one of the officers kicked him in the face so hard that it broke his eye socket.⁹⁴Id. at 286.
Jutrowski filed suit under § 1983 against the five officers and two police departments involved in his arrest, claiming the defendants had violated his Fourth Amendment rights by using excessive force.⁹⁵Id. at 287 n.8. Jutrowski made seven counts total against the police departments and individual defendants, including the excessive force claims discussed here.
During the discovery process, Jutrowski was able to identify the four officers who were on the scene, but no individual officer would claim responsibility nor assign blame to another officer.⁹⁶See Brief of Plaintiff-Appellant at 8–9, 13, 17, Jutrowski, 904 F.3d 280 (No. 17-2594).
Additionally, video evidence from the officers’ vehicle “was not produced during discovery,” despite a department-wide policy requiring officers to record all vehicle stops.⁹⁷Id. at 4.
Because he was unable to identify the individual officer responsible for his injury, Jutrowski’s excessive force claims against all four John Does were dismissed.⁹⁸Jutrowski, 904 F.3d at 285.

In Tanaka v. City of Detroit, the plaintiff, Peter Tanaka, was participating in a Black Lives Matter protest in the summer following George Floyd’s murder by Minneapolis police officer Derek Chauvin.⁹⁹Plaintiff’s Complaint and Jury Demand, Tanaka v. City of Detroit, No. 22-11219 (E.D. Mich. filed June 2, 2022). This case was one of several arising from the Detroit Will Breathe protests. Sarah Raza, City Offers to Settle Detroit Will Breathe Lawsuit for Million, Detroit Free Press (July 26, 2022), https://freep.com/story/news/local/michigan/detroit/2022/07/26/detroit-will-breathe-lawsuit-settlement-offer/10157397002 [perma.cc/T27B-Q8Y6].
Police officers in riot gear surrounded the group that Tanaka was standing with and began to tackle, beat, and arrest the demonstrators.¹⁰⁰Plaintiff’s Complaint & Jury Demand at 2–3, supra note 99, at 2–3.
Tanaka was punched in the eye and thrown to the ground, where his wrists were tightly zip-tied.¹⁰¹Id. at 3.
Following the assault, an open wound under his eyebrow required stitches, and the overly tightened zip-ties caused him temporary nerve damage.¹⁰²Id. at 11–13.
Tanaka could not identify any of the officers present, so he brought suit against five John Doe officers for the use of excessive force¹⁰³Id. at 16.
and a Monell claim against the City of Detroit for maintaining a policy of allowing abusive police practices.¹⁰⁴Id. at 27. Tanaka brought seven claims total against the John Doe officers, the city, and one named officer who had written him a ticket after his arrest, alleging various violations of state and federal law. See id. at 14–27.

Like Jutrowski, Tanaka was unable to identify the individual officers responsible for his assault during the discovery process, though not for lack of diligence. Tanaka deposed the lieutenant responsible for overseeing the six officers involved in his arrest.¹⁰⁵See Plaintiff’s Response to Defendants’ Motion for Summary Judgment at 7–8, Tanaka v. City of Detroit, No. 22-11219 (E.D. Mich. filed June 2, 2022).
When provided with videos from the protests on the night in question, the lieutenant said that he had “identified certain officers” while watching but would not provide any names, citing vague “investigative privileges.”¹⁰⁶Plaintiff’s Response to Defendant’s Motion for Summary Judgment, Exhibit 1, at 69:13-70:5, Tanaka v. City of Detroit, No. 22-cv-11219 (E.D. Mich. Feb. 7, 2024). No privilege log was ever produced to support the withholding of this information. Plaintiff’s Response to Defendant’s Motion for Summary Judgment, supra note 105, at 8.
Tanaka eventually stipulated to the dismissal of claims against the John Doe officers,¹⁰⁷See Order of Voluntary Dismissal of Claims at 2, Tanaka v. City of Detroit, No. 22-cv-11219 (E.D. Mich. filed June 20, 2024). The record is not entirely clear as to why the plaintiff agreed to the stipulation instead of filing a motion to compel. The discovery dispute was set to be resolved at a status conference, which was cancelled the day before it was scheduled. See Notice of Telephone Conference, Tanaka v. City of Detroit, No. 22-cv-11219 (E.D. Mich. filed Feb. 12, 2024); Notice of Cancellation, Tanaka v. City of Detroit, No. 22-cv-11219 (E.D. Mich. filed Feb. 12, 2024). From the remainder of the record, it is reasonable to conclude that the parties were entering settlement talks around the time the stipulation was made, and the plaintiff may have wished to avoid the fuss of a discovery dispute. For a full account of the back-and-forth related to the identification of the officers, see Plaintiff’s Response to Defendants’ Motion for Summary Judgment, supra note 105, at 7–8.
noting that “[t]he City of Detroit has evidenced its commitment to a policy of intentionally obscuring the identity of the officers. . . . The chilling effect of these efforts should not go unnoted, as they permit officers to use violence with complete impunity.”¹⁰⁸Plaintiff’s Response to Defendants’ Motion for Summary Judgment, supra note 105, at 1 n.1.

In both cases, because § 1983’s individual-responsibility requirement was not met, Emil Jutrowski’s and Peter Tanaka’s excessive force claims against individual officers failed. Because these cases arose in the Third and Sixth Circuits, respectively, the individual excessive force claims’ dismissals had no impact on either plaintiffs’ municipal claims. Jutrowski’s municipal claim had already been dismissed,¹⁰⁹See Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 287 n.8 (3d Cir. 2018).
and the City of Detroit subsequently settled the municipal claim with Tanaka.¹¹⁰Order Resolving Case at 1, Tanaka v. City of Detroit, No. 22-cv-11219 (E.D. Mich. filed Aug. 19, 2024).
Crucially, in the Third and Sixth Circuits, a municipal claim’s fate is not tied to the success of claims against individual officers.¹¹¹See Fagan v. City of Vineland, 22 F.3d 1283, 1292 (3d Cir. 1994); Grote v. Kenton Cnty., 85 F.4th 397, 414 (6th Cir. 2023).
These cases provide a useful yardstick for measuring the utility of standalone municipal liability not because they were impeded by a circuit that disallows this type of claim, but because they exemplify the unique, if not uncommon, challenge of bringing excessive force claims against John Doe officers: Individual defendants are incentivized to evade liability by impeding discovery efforts.

In circuits where standalone municipal liability is not permitted, the perversity of this incentive system is amplified. Municipalities, knowing that the Monell claim against them cannot proceed if the charges against the officers are dismissed, will be tempted to engage in evasive discovery tactics to limit officer liability. To minimize incentives for municipalities to protect constitutionally abusive “bad apple” officers, ¹¹²This is, of course, more important than ever considering the national reckoning with police brutality and widespread public demand for police accountability and transparency. See, e.g., Audra D.S. Burch, Amy Harmon, Sabrina Tavernise & Emily Badger, The Death of George Floyd Reignited a Movement. What Happens Now?, N.Y. Times (June 23, 2023), https://nytimes.com/2021/04/20/us/george-floyd-protests-police-reform.html [perma.cc/Z373-VBRK].
the Fourth and Fifth Circuits should detach municipal liability from individual officer liability by definitively permitting standalone municipal liability. Doing so would ensure that plaintiffs can recover and hold officers accountable for constitutional violations.

III. Standalone Municipal Liability Under Heller

The Fourth and Fifth Circuits have dubiously interpreted City of Los Angeles v. Heller to hold that standalone municipal liability is impermissible under Monell. The Heller case arose when two Los Angeles police officers stopped Ronald Heller, whom they suspected was driving while intoxicated.¹¹³City of Los Angeles v. Heller, 475 U.S. 796, 797 (1986).
They administered field sobriety tests and placed Heller under arrest to take him back to the station for further testing. At that point, Heller began to struggle with the officers and ultimately fell through a plate glass window.¹¹⁴Id. at 797.
Heller brought § 1983 claims against two individual officers and the municipality for violating his due process rights and for excessive use of force in carrying out the arrest.¹¹⁵Id.
One officer was granted summary judgment, and the case against the other officer proceeded to trial separate from the municipal claim.

The jury returned a verdict in favor of the individual officer, and the district court then summarily dismissed the claim against the city. The court explained that, because a jury had absolved the officer, there could be no basis for asserting liability against the city. The court reasoned that the constitutionality of the police department’s policies was immaterial if Heller had not suffered a constitutional injury.¹¹⁶See Heller v. Bushey, 759 F.2d 1371, 1373 (9th Cir. 1985), rev’d sub nom. City of Los Angeles v. Heller, 475 U.S. 796 (1986).
The Ninth Circuit Court of Appeals was not convinced that the jury’s finding for the officer indicated the absence of any constitutional injury. It reasoned that the claim against the municipality still ought to be heard on the merits because the jury could have surreptitiously applied something like a good-faith or qualified-immunity defense, although neither were argued or instructed.¹¹⁷See id. at 1373–75.

The Supreme Court disagreed, reversing the Ninth Circuit’s holding and reinstating the district court’s dismissal of the case. The Court did so on the grounds that the jury’s exoneration of the individual officer was ultimately a determination that there had been no constitutional violation during the arrest.¹¹⁸See Heller, 475 U.S. at 799.
The Supreme Court stated, “If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.”¹¹⁹Id.
The jury decision was therefore conclusive as to both the officer and the city. Standalone municipal liability may have been inappropriate in the context of Heller, but a fair reading of this decision does not indicate that claims against municipalities should be foreclosed as a procedural matter simply because the individual claims were dismissed.

The line of dispute in Heller mirrors arguments about whether the municipality is shielded from liability when individual officers successfully assert qualified immunity defenses. When officers are found responsible for a constitutional injury but are entitled to a qualified immunity defense, there is consensus among circuit courts that the municipality may still be liable.¹²⁰See, e.g., Horton ex rel. Horton v. City of Santa Maria, 915 F.3d 592, 603–04 (9th Cir. 2019).
In other words, when an individual municipal employee is responsible, but not liable, a claim against the municipality may stand alone. The question left to circuits after Heller is subtly different: Can municipal claims ever stand alone where the plaintiff demonstrates a constitutional injury but no individual municipal employee is pinpointed as responsible for the injury?

Framing this question in the facts of Heller, has the Court foreclosed municipal liability only in cases where finding for the individual officer conclusively determines there is no constitutional injury, or does Heller foreclose Monell claims per se if no individual officer can be pinpointed as responsible for the injury?¹²¹ Martin A. Schwartz, Section 1983 Litigation 120 (3d ed. 2014); see also Epps v. Lauderdale Cnty., 45 F. App’x 332, 334 (6th Cir. 2002).
The former, narrower interpretation differs from the latter in that it does not require claims against the municipality to be summarily dismissed when claims against individual officers are unsuccessful. This narrow interpretation requires courts to take the additional step of asking whether the decision exonerating individual municipal officers can “be harmonized with a concomitant verdict or decision imposing liability on the municipal entity.”¹²²Speer v. City of Wynne, 276 F.3d 980, 986 (8th Cir. 2002) (“The outcome of the inquiry depends on the nature of the constitutional violation alleged, the theory of municipal liability asserted by the plaintiff, and the defenses set forth by the individual actors. We do not suggest that municipal liability may be sustained where there has been no violation of the plaintiff’s constitutional rights . . . .”).

A. Interpretation of Heller in the Fourth Circuit

The Fourth Circuit has never explicitly confronted the question of standalone municipal liability. It has, however, embraced a procedural and doctrinal approach to standalone municipal liability that strongly implies a municipal liability claim’s validity depends on the success of claims against individual officers.

The Fourth Circuit has adopted a procedural norm of bifurcating municipal claims from claims against individual officers and declining to consider the merits of the claim against the municipality until claims against individual officers are resolved.¹²³See, e.g., Haughie v. Wexford Health Sources, Inc., No. 18-3963, 2020 WL 1158568, at *18 (D. Md. Mar. 9, 2020); Beasley v. Kelly, 2010 WL 3221848, at *3 (D. Md. Aug. 13, 2010) (first citing Dawson v. Prince George’s Cnty., 896 F.Supp. 537, 539 (D. Md. 1995); and then citing Marryshow v. Town of Bladensburg, 139 F.R.D. 318, 319 (D. Md. 1991)) (“Bifurcation is fairly common in Section 1983 cases where a plaintiff has asserted claims against individual government employees as well as the municipal entity that employs and supervises these individuals.”).
This procedural norm alone indicates a doctrinally problematic conception of the relationship between individual and municipal liability.¹²⁴The bifurcation norm may be aimed at improving judicial efficiency, but that efficiency only follows if a circuit court assumes that where the individual claims fail, the claim against the municipality will also fail. This is likely to be true in only some cases: Were the municipal claim to prevail after the individual claims fail, that would create another type of inefficiency altogether. After all, joinder too is driven by efficiency considerations—so judgments about what the Fourth Circuit deems efficient will hinge on its background assumptions about the relationships between the two types of claims.
Bifurcation is not, in and of itself, a bar to standalone municipal liability claims, so long as municipal claims are not dismissed with unsuccessful individual claims on a per se basis.¹²⁵But note the possibility of extradoctrinal chilling given the additional time and expense bifurcation is likely to demand. See supra Section I.C.
Case law suggests, however, the Fourth Circuit has adopted this per se approach.

Circuit case law first touched on standalone municipal liability in Grayson v. Peed.¹²⁶Grayson v. Peed, 195 F.3d 692, 696 (4th Cir. 1999).
In Grayson, police arrested Gerald Collins in a shopping mall bathroom, where he was acting erratically while carrying marijuana and PCP. He remained disoriented throughout the booking process and twice tried to leave his cell: first, by crawling out of his cell after a strip search, and second, by wedging his foot in the open cell door and refusing to move it. Officers pepper-sprayed him both times. The second time, they beat him and placed him in restraints. Shortly after the second incident, he was found unconscious and not breathing.¹²⁷Id. at 694.
In the early morning following his arrest, Collins was transported to the hospital where he was declared brain dead.¹²⁸Id. at 695.

Collins’s mother, Thelma Grayson, brought § 1983 claims against Fairfax County, an individual officer involved in the arrest, and the county sheriff charged with overseeing the jail. The district court granted summary judgment to the defendants on each claim. On appeal, the Fourth Circuit concluded that no officer had evinced deliberate indifference to Collins’s medical needs, so there was no constitutional injury.¹²⁹Id. at 695–96.
The opinion dealt with Ms. Grayson’s supervisory and municipal claims in short shrift, citing Heller for their conclusion that “[a]s there are no underlying constitutional violations by any individual, there can be no municipal liability.”¹³⁰Id. at 697.

At first glance, Grayson’s interpretation of Heller appears relatively neutral as to the issue of standalone municipal liability. The facts in Grayson supported dismissal of the supervisory and municipal claims because the Fourth Circuit determined that there was no underlying constitutional injury. The opinion did not address whether individual liability is a per se conditional antecedent to the municipal claim; courts could properly dismiss Grayson’s municipal claim even under a reading of Heller that allowed standalone municipal liability.

Despite Grayson’s apparent neutrality, subsequent case law reads Grayson as mandating a per se bar to standalone municipal liability. In the years following Grayson, the Fourth Circuit has described the relationship between individual and municipal liability in increasingly absolutist terms. For example, in Waybright v. Frederick County, the Fourth Circuit affirmed a district court’s grant of summary judgment to individual, supervisory, and municipal defendants in a § 1983 action.¹³¹See Waybright v. Frederick Cnty., 528 F.3d 199, 201, 203, 210 (4th Cir. 2008). In Waybright, a firefighter trainee died of cardiac arrest after he was made to overexert himself in hot weather during a physical training session. The trainee’s family alleged substantive due process violations against Frederick County, the individual firefighter who ran the training camp, and a handful of supervisors within the fire department and county board of commissioners. Id. at 202–03.
The court’s analysis centered almost entirely on the individual officer’s liability. The opinion describes individual liability as “the gateway to all the other § 1983 claims,” and cites Heller and Grayson for the proposition that “supervisors and municipalities cannot be liable under § 1983 without some predicate ‘constitutional injury at the hands of the individual [state] officer.’ ”¹³²See id. at 203–04 (quoting City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).

After affirming the dismissal of the claim against the individual officer, the court concluded “with the claim against [the individual] gone, so go the § 1983 claims against everyone else.”¹³³Id. at 209 (first citing Heller, 475 U.S. at 799; and then citing Grayson, 195 F.3d at 696).
Other cases reinforce this conception of the relationship between individual and municipal liability as one of per se reliance. For example, in Wright v. Granville County, the Fourth Circuit affirmed a district court’s grant of summary judgment for individual officers in a § 1983 action.¹³⁴See Wright v. Granville Cnty., No. 24-1389, 2025 WL 671466, at *1 (4th Cir. Mar. 3, 2025). In Wright, Chad Price died of fentanyl poisoning while in Granville County’s custody. Video evidence showed that officers were responsive to Price’s requests for help and that their failure to recognize the medical crisis was reasonable. Id.
It concluded that since these claims were dismissed, the accompanying claims against the county must fail “as a matter of law.”¹³⁵Id. at *2 (citing Heller, 475 U.S. at 799).

The underlying issue with this line of cases is not that plaintiffs have been denied recovery against the municipality on meritorious claims. In each case, the Fourth Circuit analyzed the underlying facts and concluded that there was no constitutional injury for which liability could be assigned. When no constitutional injury has occurred, it is, of course, appropriate to dismiss claims against individuals and the municipality alike. The problem, however, is that the language used to dismiss municipal claims presumes a per se relationship between individual claims, leaving no room for plaintiffs or trial courts to advance standalone municipal actions supported by the underlying facts.

Some Fourth Circuit case law aims to provide clarity on this point. In International Ground Transportation, Inc. v. Mayor of Ocean City, the court attempted to reconcile a jury verdict that found the municipal defendant liable but none of the individual defendants liable.¹³⁶See Int’l Ground Transp., Inc. v. Mayor of Ocean City, 475 F.3d 214, 216 (4th Cir. 2007).
The majority allowed the verdicts to stand on the basis that the jury could have applied a qualified immunity rationale to absolve the individual officers.¹³⁷Id. at 219–20. Unlike in Heller, the qualified immunity defense was known with certainty to have been asserted in this case. Id. at 219.
Judge Traxler wrote separately to clarify his position on Heller: The relationship between individual and municipal liability turns on the specific facts of the case and standalone municipal liability may sometimes be appropriate, even where individual defendants cannot be pinpointed as responsible.¹³⁸Id. at 226 (“Heller does not stand for the broad proposition that where municipal employees and the municipality are sued together a finding of individual liability is necessary to a finding of municipal liability. . . . ‘The outcome of the inquiry depends on the nature of the constitutional violation alleged, the theory of municipal liability asserted by the plaintiff, and the defenses set forth by the individual actors.’ ” (quoting Speer v. City of Wynne, 276 F.3d 980, 986 (8th Cir. 2002))). Judge Traxler’s analysis mirrors Judge Cole’s in Epps v. Lauderdale County. See Epps v. Lauderdale Cnty., 45 F. App’x 332, 335 (6th Cir. 2002).
In addition to International Ground Transportation, a handful of unpublished lower court decisions indicate that standalone municipal liability should be permissible where the facts dictate a need.¹³⁹See Watkins v. Butler, No. 20-cv-00208, 2024 WL 2273384, at *7 (D. Md. May 20, 2024); Jones v. Chapman, No. 14-2627, 2017 WL 2472220, at *41 (D. Md. June 7, 2017).

The Fourth Circuit should definitively adopt Judge Traxler’s position that standalone municipal liability is appropriate in some cases as a viable theory of the claim in § 1983 actions. To do so would not radically shift the doctrine. Rather, it would be entirely consistent with the Supreme Court’s intent in Heller and would align with the approach taken by the vast majority of circuits.¹⁴⁰See supra Part III and infra Section III.C.
The current uncertain position of standalone municipal liability in the Fourth Circuit resulted from a flawed and superficial understanding of text and precedent. The case law belies a snowball effect: In Grayson, the court first assumed that Heller bars standalone municipal liability, and from there it grew increasingly comfortable relying on per se language to dismiss municipal claims when individual claims fail.¹⁴¹See Grayson v. Peed, 195 F.3d 692, 697 (4th Cir. 1999); Waybright v. Frederick Cnty., 528 F.3d 199, 203 (4th Cir. 2008); Wright v. Granville Cnty., No. 24-1389, 2025 WL 671466, at *2 (4th Cir. Mar. 3, 2025).

The doctrine’s normative goals are better served by a more flexible approach to standalone municipal liability. Monell’s major innovation recognized direct liability for municipalities when they are the “moving force” behind a constitutional violation.¹⁴²Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91, 694–95 (1978).
Under Monell’s original framing, claims against municipalities are most appropriate when there has been a constitutional injury but no individual officer is deemed responsible. In situations where a finding of no individual liability can be plausibly reconciled with the existence of a constitutional injury, there is no valid doctrinal reason to preclude the issue of municipal liability on the merits. To reconcile doctrine with practice, the municipal claim must be allowed to stand alone.

B. Interpretation of Heller in the Fifth Circuit

The Fifth Circuit has so far avoided explicitly addressing whether municipal liability can ever be found absent a constitutional violation by an individual officer. Several cases allude to the issue but have determined that—even if Heller were read to permit standalone municipal liability—no constitutional injury had taken place, so there existed no liability to be assigned to the municipality.¹⁴³See Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir. 2011); Brown v. Lyford, 243 F.3d 185, 191 n.18 (5th Cir. 2001); Cook v. City of Dallas, No. 12-CV-3788, 2016 WL 11258075, at *3–4 (N.D. Tex. Mar. 15, 2016).
The Fifth Circuit thus acknowledges the issue but has declined to clarify whether a finding of standalone municipal liability would be possible.¹⁴⁴Accord Grote v. Kenton Cnty., 85 F.4th 397, 414 (6th Cir. 2023).

The clearest example of the Fifth Circuit declining to reach the standalone municipal liability issue comes from Carnaby v. City of Houston.¹⁴⁵Carnaby, 636 F.3d at 189.
Carnaby affirmed a district court’s grant of summary judgment to the City of Houston and two individual police officers.¹⁴⁶Id. at 185.
The two police officers had pulled over Roland Carnaby for speeding. Carnaby behaved erratically during the stop and then sped off, leading officers on a fifteen-minute chase. Carnaby eventually stopped of his own accord but refused to exit the car. One officer pointed a gun at Carnaby while the other attempted to break a car window. At that point, Carnaby leaned toward the floor of the vehicle, momentarily disappearing from the police’s line of vision. He then got out of the car holding a cell phone, which the officers mistook for a gun. They shot and killed Carnaby, who was unarmed.¹⁴⁷Id. at 185–87.

Susan Carnaby, Ronald’s wife, sued the two police officers and the City of Houston under § 1983 for use of excessive force in violation of the Fourth Amendment. Mrs. Carnaby grounded her municipal claim in a failure-to-train theory of liability. She argued that the city failed to train its officers to properly approach a “high-risk vehicle” and that such an improper approach to her husband’s car led to the officers’ use of deadly force.¹⁴⁸Id. at 187, 189.
She further argued that if the officers had been properly trained, the situation would not have escalated to the use of deadly force.¹⁴⁹Id. at 189.
The district court granted the officers’ motion for summary judgment, concluding that their use of deadly force had been objectively reasonable. The municipal liability claim was also dismissed; the district court explained that if it were to reach the merits, there would have been no failure to train on behalf of the city. Mrs. Carnaby appealed.¹⁵⁰Id. at 187.

The Fifth Circuit reviewed and affirmed the dismissal of each claim, starting with her claims against the individual officers.¹⁵¹Id. at 183, 189.
It then analyzed the municipality claim on the merits and determined that the municipality had not evinced the deliberate indifference sufficient to meet the bar required by the Monell omissions cases.¹⁵²See id. at 189–90; see also supra Section I.C.
Although deciding the municipal liability issue on the merits would have been both sufficient to dispose of the claim and consistent with interpreting Heller to allow standalone municipal liability, the Fifth Circuit also announced that, “[w]e have yet to address, directly, whether a municipality can ever be held liable for failure to train its officers adequately where the officers did not commit any constitutional violation.”¹⁵³Carnaby, 636 F.3d at 189–90; see also supra Part III.

Since Carnaby, the Fifth Circuit has continued to skirt the question of whether municipal liability claims may ever stand alone, typically reasoning that a broad reading of Heller sufficiently dismisses the claim because there is no underlying constitutional injury.¹⁵⁴See e.g., Cook v. City of Dallas, No. 12-CV-3788, 2016 WL 11258075, at *4, 12 (N.D. Tex. Mar. 15, 2016).
Because the broad reading is sufficient for dismissal, the court avoids addressing whether standalone municipal liability is permissible. One unpublished case from the Northern District of Texas attempted to provide some clarity, noting that “[i]n most Circuits, therefore, it is settled law that a finding of no individual liability should not automatically result in judgment of no liability for the municipality . . . [a]lthough Fifth Circuit case law is less developed, the Court concludes that it would analyze the issue the same way.”¹⁵⁵Id. at *3–4.
The district court surveyed Fifth Circuit cases that came close to addressing the issue and concluded that Carnaby represents the current state of affairs: “More recently, the Fifth Circuit has avoided answering the question of whether municipal liability is ever available if no individual liability exists.”¹⁵⁶Id. at *4 (first citing Brown v. Lyford, 243 F.3d 185 (5th Cir. 2001); and then citing Carnaby, 636 F.3d at 189).

One reasonable way of reading this case law is that factual circumstances eliciting standalone municipal liability are relatively uncommon. Perhaps the Fifth Circuit would adopt a narrower reading of Heller if the question were squarely presented, but it has not yet found the opportunity. If that is the case, it is difficult to understand why the court would so deliberately avoid the issue in Carnaby, stating that they “have yet to address” the issue,¹⁵⁷Carnaby, 636 F.3d at 189.
or why they would not take one of several opportunities¹⁵⁸See, e.g., Brown, 243 F.3d at 191 n.18.
to clarify for litigants that the option is open—as did, for example, the Sixth Circuit in a case where the issue was only peripherally presented.¹⁵⁹See Grote v. Kenton Cnty., 85 F.4th 397, 414 (6th Cir. 2023); see also infra Section III.C.

Of course, the natural rejoinder is that courts should refrain from addressing issues not squarely presented by the parties. But that is precisely the point: The standalone municipal liability question is not presented here. The circuit court fully disposes of the municipal liability question on the merits and then announces spontaneously that it lacks a holding on an issue not presented by the case. In context, the statement on standalone municipal liability reads as an unprompted and unhelpful obfuscation of a doctrinally contested question—one that appears to signal the circuit’s reluctance to permit standalone municipal claims. This obfuscation, especially on a point that is easily clarified and doctrinally sensible, is particularly troubling in the context of Monell doctrine, where a plaintiff’s chances of recovery depend so heavily on a lawyer’s assessment of the likelihood of their claim succeeding.¹⁶⁰See supra Section I.C.

The Fifth Circuit should affirm that municipal claims can stand alone. As in the Fourth Circuit, the Fifth Circuit’s hesitancy to allow standalone municipal liability appears premised on applying Heller to cases in which it was never intended to apply. As nine other circuits have recognized, there are factual circumstances under which findings of no individual liability cohere with the existence of a constitutional injury.¹⁶¹See Wilson v. Town of Mendon, 294 F.3d 1, 7 (1st Cir. 2002); Curley v. Village of Suffern, 268 F.3d 65, 71 (2d Cir. 2001); Fagan v. City of Vineland, 22 F.3d 1283, 1292 (3d Cir. 1994); Grote, 85 F.4th at 414; Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 305 (7th Cir. 2009); Speer v. City of Wynne, 276 F.3d 980, 986 (8th Cir. 2002); Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002); Garcia v. Salt Lake Cnty., 768 F.2d 303, 306 (10th Cir. 1985); Anderson v. City of Atlanta, 778 F.2d 678, 686 (11th Cir. 1985).
When that is the case, Heller cannot plausibly be read to bar municipal claims. If a court can coherently make both findings, then Monell doctrine’s broader logic dictates that a court must decide municipal liability claims on the merits.

C. Majority Interpretation of Heller

In most circuits, early case law interpreting Heller favored a restrictive treatment of standalone municipal liability: Courts initially found that if claims against individual officers were dismissed, then the municipal claim must also be dismissed.¹⁶² Schwartz, supra note 121, at 120 (first citing Dodd v. City of Norwich, 827 F.2d 1, 5 (2d Cir. 1987); and then citing Williams v. Borough of West Chester, 891 F.2d 458, 467 (3rd Cir. 1989)).
Meanwhile, contemporary scholarship on the subject advocated for Heller’s narrower reading: The relationship between municipal and individual liability is fact specific, and in some cases, it makes sense for municipal claims to stand alone.¹⁶³See Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims, Defenses, and Fees § 7.6 (2d ed. 1991) (“Heller . . . should not be read as announcing a broad rule requiring dismissal of the claim against the municipality in every case in which it is found that the defendant officer was not a constitutional violator.”); Barbara Kritchevsky, Making Sense of State of Mind: Determining Responsibility in Section 1983 Municipal Liability Litigation, 60 Geo. Wash. L. Rev. 417, 454 (1992) (“Heller is best viewed as a case in which the Supreme Court struck what it considered an inconsistent jury verdict and did not seek to establish any new principle of municipal liability law.”).
In the years following those early cases, all circuits but the Fourth and Fifth have come to favor the narrow approach; they agree that where a plaintiff’s theory of municipal liability is not wholly dependent on the conduct of an individual officer, a municipality may still be liable under § 1983.¹⁶⁴E.g., Fairley, 281 F.3d at 917 (per curiam) (“If a plaintiff establishes he suffered a constitutional injury by the City, the fact that individual officers are exonerated is immaterial to liability under § 1983.”); Garcia, 768 F.2d at 310.

Heller involved a bifurcated trial in which the jury found that a police officer did not cause a constitutional injury.¹⁶⁵City of Los Angeles v. Heller, 475 U.S. 796, 797–98 (1986).
Because the municipal defendants were sued only for their role in this alleged constitutional injury, the Court held that the municipality could not be liable: “If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.”¹⁶⁶Id. at 799 (emphasis omitted).
Contextualizing this sentence with the case’s underlying facts, the majority of circuit courts have clarified that Heller does not preclude municipal liability where the theory of liability is not entirely derivative of the absolved officers’ conduct.¹⁶⁷See, e.g., Speer v. City of Wynne, 276 F.3d 980, 985–96 (8th Cir. 2002); Praprotnik v. City of St. Louis, 798 F.2d 1168, 1172–73 n.3 (8th Cir. 1986), rev’d on other grounds, 485 U.S. 112 (1988); Grote v. Kenton Cnty., 85 F.4th 397, 414 (6th Cir. 2023).

For example, in Speer v. City of Wynne, the Eighth Circuit held that “Heller should not be read to require a plaintiff to show more than that a governmental policy or custom was the ‘moving force’ that led to the deprivation of his constitutional rights.”¹⁶⁸Speer, 276 F.3d at 986. Wynne police officer Roger Speer was fired following allegations of sexual misconduct involving detainees. The city decided not to press charges, citing evidentiary issues, but Speer was terminated anyways. The mayor and prosecutor both gave comments to a local newspaper in an article publicizing the allegations. Speer filed suit under § 1983, alleging the city violated his procedural due process rights by failing to provide a name-clearing hearing before publicizing information about his dismissal. The claims against the individual defendants were unsuccessful, but the claim against the municipality prevailed at trial. On appeal, the city argued that Heller protected it from liability. Id. at 982–85.
The court acknowledged that municipal liability does not necessarily rely on a finding of individual responsibility: Constitutional harm may result from the actions of multiple employees whose combined conduct amounts to a violation, even if no individual officer can be pinpointed for the purposes of individual liability.¹⁶⁹Id. at 986 (“[S]ituations may arise where the combined actions of multiple officials or employees may give rise to a constitutional violation, supporting municipal liability, but where no one individual’s actions are sufficient to establish personal liability for the violation.”).

The Eighth Circuit acknowledged a similar possibility in St. Louis v. Praprotnik, distinguishing Heller on the grounds that the constitutional injury was caused by employees who had never been named in the suit.¹⁷⁰Praprotnik, 798 F.2d at 1172–73 n.3.
In other words, the plaintiff had sued the wrong employee, but he had suffered a constitutional injury for which the municipality was liable. These cases acknowledge that Heller does not create a per se bar to municipal liability where individual defendants have been absolved: “The appropriate question under Heller is whether a verdict or decision exonerating the individual governmental actors can be harmonized with a concomitant verdict or decision imposing liability on the municipal entity.”¹⁷¹Speer, 276 F.3d at 986.

The Sixth Circuit embraced the same distinction in Grote v. Kenton County.¹⁷²Grote, 85 F.4th at 414.
In Grote, the Sixth Circuit analyzed a failure-to-train claim, noting at the outset that “it is proper to consider possible constitutional violations committed by a municipality qua municipality, even in the absence of a showing of a constitutional violation by any one individual officer,” though “[o]ur precedent has not been a model of consistency on this point.”¹⁷³Id.
In so concluding, the Sixth Circuit joined the vast majority of circuits in its narrow interpretation of Heller and favorable treatment of standalone municipal liability.¹⁷⁴See also, e.g., Curley v. Village of Suffern, 268 F.3d 65, 71 (2d Cir. 2001) (“Heller should not, of course, be applied indiscriminately. For example, where alleged injuries are not solely attributable to the actions of named individual defendants, municipal liability may still be found.”); Fagan v. City of Vineland, 22 F.3d 1283, 1292 (3d Cir. 1994) (holding that, in certain circumstances, “an underlying constitutional tort can still exist even if no individual police officer violated the Constitution”).

These cases demonstrate that courts can and must embrace standalone municipal liability under Monell and Heller. Heller is fact dependent and should not be read to create a universal rule; it doesn’t excuse courts from their obligation to decide whether a finding of municipal liability can be reconciled with a dismissal of accompanying individual claims. These circuits’ approach is necessary as a practical matter, too: Standalone municipal liability enables recovery for claims based on systemic failure in jail and prison medical care, and use of excessive force by John Doe officers.¹⁷⁵See infra Part II.
These types of cases often arise from egregious constitutional abuses, and courts should not circumscribe the protections of § 1983 by categorically barring standalone municipal liability.

IV. The Case for Incrementalism in § 1983 Reform

Making sense of the minutiae of Monell doctrine is so burdensome that it is tempting to simply abandon the enterprise. In fact, a 2015 survey asked experts what single change would be most helpful to “fix” Monell doctrine—the most common proposed solution was to overrule Monell and instead subject municipalities to respondeat superior liability.¹⁷⁶Blum, supra note 42, at 962–63.
One civil rights attorney opined that changing the respondeat superior rule would “in one elegant move remove[] all of the difficult and irrelevant issues regarding municipal policy and practice.”¹⁷⁷Id. (quoting David Rudovsky, founding partner of Kairys, Rudovsky, Messing & Feinberg, LLP in Philadelphia, Pennsylvania).

In a prior era, there were some reasons to think that overruling Monell could have been possible.¹⁷⁸See Jordyn Manly, Note, Policing the Police Under 42 U.S.C. § 1983: Rethinking Monell to Impose Municipal Liability on the Basis of Respondeat Superior, 107 Corn. L. Rev. 567, 568 (2022).
Three former Supreme Court justices openly criticized the doctrine. Justice Stevens, dissenting in Oklahoma City v. Tuttle, argued that nothing in the text of the statute, the legislative history, or common law mandates Monell’s no-vicarious-liability scheme.¹⁷⁹City of Oklahoma City v. Tuttle, 471 U.S. 808, 834 (1985) (Stevens, J., dissenting).
Justice Breyer, joined by Justice Ginsburg, leveled a similar criticism in his Board of County Commissioners v. Brown dissent.¹⁸⁰Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 431–32 (1997) (Breyer, J., dissenting).
Additionally, scholars have pointed out that, relative to its enthusiastic reinforcement of qualified immunity standards, the Court has shown an “equivocal attitude” towards municipal liability.¹⁸¹Edward C. Dawson, Replacing Monell Liability with Qualified Immunity for Municipal Defendants in 42 U.S.C. § 1983 Litigation, 86 U. Cin. L. Rev. 483, 537–38 (2018) (explaining that while the Court has afforded qualified immunity cases a privileged place on its docket and consistently ruled in defendants’ favor, they have not granted a case involving Monell liability since 2011 and in cases before that could garner only a plurality for defendants).
And of course, in theory, Congress could always override the Court’s decision in Monell and pass legislation permitting municipal liability through respondeat superior.¹⁸²Manly, supra note 178, at 586–87.
But given the current Court’s apparent eagerness to shield government actors from liability, there are good reasons to doubt that its tacit acceptance of Monell will change any time soon.¹⁸³See, e.g., Egbert v. Boule, 142 S. Ct. 1793 (2022) (limiting the right to sue federal agents under Bivens). The court is even happy to do so in antistatutory ways. For example, qualified immunity is nowhere to be found in § 1983, but the Court still established the standard. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For the argument that qualified immunity also has no legitimate basis in common law, see Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1801 (2018).
Legislative reform seems equally unlikely, given Congress’s recent paralysis in passing even widely supported civil rights reforms.¹⁸⁴See, e.g., Richard Cowan & Moira Warburton, U.S. Senate Democrats Fail in Bid to Pass Voting Rights Bill, Reuters (Jan. 20, 2022), https://reuters.com/world/us/voting-rights-brawl-takes-center-stage-us-senate-2022-01-19 [perma.cc/8XRK-YXYL]; Felicia Sonmez & Mike DeBonis, No Deal on Bill to Overhaul Policing in Aftermath of Protests over Killing of Black Americans, Wash. Post (Sep. 22, 2021), https://washingtonpost.com/powerpost/policing-george-floyd-congress-legislation/2021/09/22/36324a34-1bc9-11ec-a99a-5fea2b2da34b_story.html [perma.cc/8KN3-BMCE].

In contrast to the Supreme Court and Congress, there are good reasons to believe that the Fourth and Fifth Circuits may be willing to reconsider their current approach to standalone municipal liability. For one, a modest doctrinal shift like the one proposed here is unlikely to pique concerns over judicial economy: Allowing standalone municipal claims will create additional work for courts only in the relatively limited set of cases where such claims are viable. Yet, despite its narrow scope, the shift would have an outsized impact—it would open the door to recovery for some of the most egregious constitutional violations.¹⁸⁵See supra Part II.
For another, district courts within both the Fourth and Fifth Circuits have expressed uncertainty about how to treat the relationship between individual and municipal claims under Grayson and Carnaby.¹⁸⁶E.g., Watkins v. Butler, No. 20-cv-00208, 2024 WL 2273384, at *7–8 (D. Md. May 20, 2024); Cook v. City of Dallas, No. 12-CV-37788, 2016 WL 11258075, at *3 (N.D. Tex. Mar. 15, 2016).
Clarifying that standalone municipal liability is permissible if the facts support it would make the law more comprehensible for courts and parties alike. And finally, the Fourth and Fifth Circuits need not worry that allowing standalone municipal liability is a policy-driven decision; to the contrary, the holdings of nine other circuits and the logic underpinning Heller demonstrate that courts are doctrinally compelled to consider these claims.

In short, accepting standalone municipal liability in the Fourth and Fifth Circuits may be a relatively incremental reform, but it has potential to make whole more victims of municipal misconduct.¹⁸⁷Small doctrinal improvements are more practical than sweeping reform because they can be adopted by courts without the need for dramatic action from Congress or the Supreme Court. See Stephen Rushin, Incrementalism and Police Reform, 101 Tex. L. Rev. Online 1, 3–4 (2022); Joanna C. Schwartz, Monell’s Untapped Potential, 125 Colum. L. Rev. 925, 982 (2025).
This type of plausible reform can meaningfully improve mechanisms for government accountability under § 1983 without requiring an unlikely about-face from Congress or the Supreme Court.

Conclusion

Adopting standalone municipal liability under Heller won’t resolve every obstacle § 1983 plaintiffs face. Nevertheless, courts and academics alike should focus efforts on resolving doctrine in a way that permits recovery for valid constitutional injuries. Ensuring that municipal claims can stand alone, even where individual liability is elusive, is a feasible starting point. Insisting that plaintiffs pinpoint a specific individual actor before they can hold cities accountable for constitutional injuries is a misapplication of Monell doctrine that has been perpetuated by some lower courts. The Fourth and Fifth Circuits should adopt standalone municipal liability. Injured plaintiffs should not be denied recovery simply because blame for their injuries cannot be neatly assigned.

* J.D. Candidate, May 2026, University of Michigan Law School. I am grateful to: Professor Maureen Carroll, for generous support and thoughtful feedback throughout the entire writing process; Professor Don Herzog, for helpful comments on a later draft; and the Vol. 124 Notes Office—Luke Pomrenke, Suji Kim, Jacob León, Ruben Piñuelas, Haley Rogers, and Dustin Smith—for helping me clarify my thinking on important parts of the Note. Finally, thank you to my family, my friends, and especially my partner, Andrew, for cheering me on. All mistakes are my own.