On July 16, the U.S. Court of Appeals for the Seventh Circuit decided a significant case on municipal liability. A petition for rehearing en banc remains pending.

Following a move by the mayor and board of the Village of University Park, Illinois, to terminate the employment of Eddie Ray Bradley, the village police chief, Bradley filed suit against the village and mayor under 42 U.S.C. Section 1983 for purportedly violating his federal due process rights. See Bradley v. Village of University Park, 929 F.3d 875, 878 (7th Cir. 2019).

Many often-contested issues were not in dispute. The parties agreed that Bradley enjoyed a property interest in his job, that the mayor and board were the relevant village "policymakers" when it came to Bradley's firing, and that his employment was terminated without notice or a hearing. This violated Illinois law, which empowered the mayor and board to fire the police chief only after providing "a statement of the reasons for such removal or discharge" and "a fair and impartial hearing on the charges."

With this as background, the parties' legal dispute on appeal focused on whether Bradley could proceed against defendants for violating his federal due process rights, or whether he was instead limited to remedies available under Illinois law. Specifically, defendants claimed the benefit of a line of cases—starting with Parratt v. Taylor, 451 U.S. 527 (1981)—holding that federal due process liability does not exist under Section 1983 "for the absence of pre-deprivation due process if the deprivation is the result of a random, unauthorized act by a state employee, rather than an established state procedure," and if "a meaningful post-deprivation remedy for the loss is available" under state law. The district court had embraced this theory, holding that because defendants allegedly violated Illinois law requiring pre-deprivation process, their conduct was "random and unauthorized," and the availability of a post-deprivation remedy under Illinois administrative law was therefore "fatal" to Bradley's due process claim.

The Seventh Circuit reversed in an opinion by Judge David Hamilton, joined by Judge Ilana Rovner, over a dissent by Judge Daniel Manion. The majority's reasoning drew heavily on Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), which held that plaintiffs may sue municipalities under Section 1983 so long as the "execution of [the] government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury … ." Because the mayor and board were "policymakers" for Monell purposes in deciding to fire Bradley, their conduct was attributable to the village for Section 1983 purposes. More importantly, the court continued, as "policymakers" under Monell, defendants' actions could not be described as "random and unauthorized" within  the meaning of Parratt, notwithstanding the fact that defendants violated state law. "[I]t does not make sense," the court concluded, "to treat a municipal policymaker's actions as 'random and unauthorized.'"

In reaching this conclusion, the court also relied heavily on Zinermon v. Burch, 494 U.S. 113, 114-15 (1990), which involved a Section 1983 due process claim against doctors, administrators, and others at a state-run mental health facility in Florida. These defendants admitted the plaintiff to the facility, depriving him of his liberty, pursuant to the state's voluntary admission procedures, although the plaintiff's condition at the time required application of the more robust procedural protections used in cases of involuntary admission. While the defendants violated Florida law in failing to apply the involuntary-admission process, this violation was not "random [and] unauthorized" for Parratt purposes, the court held, because the defendants were "the very state officials charged with the power to deprive mental patients of their liberty and the duty to implement procedural safeguards." Further, because "[s]uch a deprivation is foreseeable, due to the nature of mental illness, and will occur, if at all, at a predictable point in the admission process," it would have been possible for the State to bolster its pre-deprivation protections.

The panel majority in Bradley concluded that Zinermon was squarely on point, supporting the court's decision to allow Bradley's due process claim to proceed. In both cases, the court explained, state law "'delegated to [defendants] the power and authority to effect the very deprivation complained of here, [Burch's confinement or Bradley's termination], and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful [confinement or termination].'"

The Bradley majority then addressed the Seventh Circuit's en banc decision in Easter House v. Felder, 910 F.2d 1387 (7th Cir. 1990), which distinguished Zinermon in finding no due process liability for officials at the Illinois Department of Children and Family Services (DCFS). These state defendants allegedly conspired with the former executive director of Easter House (a private adoption agency) after she left to start a competing agency. As relevant here, the en banc majority rejected the theory that Zinermon created "a per se exception to the application of Parratt in situations where the state actor occupies a 'high ranking' position in the state hierarchy.'" Rather, the court explained, the due process claim could proceed in Zinermon because the Florida statute governing pre-admission process "gave the officials at the mental health facility broad discretion in admitting patients … but did not provide for procedural safeguards necessary to protect against any potential abuse of that discretion." In Easter House, in contrast, the discretion enjoyed by the defendant DCFS officials "was not 'uncircumscribed' or otherwise unregulated." The defendants' violation of their statutory obligations in Easter House was therefore unauthorized, meaning Parratt's exception to Section 1983 liability applied.

The Bradley majority acknowledged that the Easter House court "rejected [the] attempt to impose a Monell-like framework for determining state liability"—as the Bradley majority did for determining municipal liability—but the majority distinguished Easter House on the ground that it "dealt with state officials, not local governments," and the en banc decision in that case accordingly "did not address … any question of municipal liability under Monell."

The Bradley dissent disagreed with the majority's interpretation of Easter House, which Manion construed to allow "even high-ranking local and state officials" to commit random and unauthorized acts, triggering the Parratt exception, so long as these officials "act contrary to established state law." This is because, the dissent continued, whether an act is random and unauthorized within the meaning of Parratt must be determined from the state's point of view, not the municipality's. Because the mayor and village board failed to follow required state-law procedures in firing Bradley, Manion concluded, the defendants' acts were random and unauthorized from Illinois' perspective, meaning Parratt foreclosed Section 1983 relief and limited Bradley to his post-deprivation remedies under Illinois law.

On July 29, the defendants filed a petition for en banc review. The court ordered a response, which plaintiffs filed on Aug. 29. As of this article's submission, the petition remains pending.

Michael A. Scodro is a partner in Mayer Brown's Chicago office and a member of the Supreme Court and appellate practice. Prior to joining the firm, he spent more than six years as the Illinois Solicitor General, where he oversaw the civil and criminal appeals divisions of the Attorney General's Office, supervising more than 40 attorneys in appeals in which the state was a party.