CONSTITUTIONAL ACCOUNTABILITY THROUGH STATE TORT LAW.

When local governments violate the Constitution, plaintiffs traditionally seek recourse under 42 U.S.C. § 1983. But success in Section 1983 litigation against municipalities has become increasingly elusive for plaintiffs. Under Monell v. Department of Social Services, a plaintiff must show that a municipal "policy or custom" caused the violation of their constitutional rights. This stringent requirement, and its subsequent interpretation by the Supreme Court, has resulted in virtually complete municipal immunity. Given the difficulty of recovering under Section 1983, commentators have recently considered whether state law mechanisms can provide an alternative avenue for constitutional enforcement. Can state law effectively substitute for Section 1983 liability by holding local governments accountable for violations of constitutional rights? Possible state law mechanisms include state constitutions, implied rights of action under state law, and state legislation creating a Section 1983 analog. While each of these alternatives holds some promise for civil rights litigators, this Essay takes a different approach by examining state tort alternatives to Monell liability. As a first foray into this area, I focus on the possibility of municipal liability for negligent hiring, negligent training, and negligent supervision under state tort law. My Essay considers how such actions play out on the ground. In some states, plaintiffs cannot pursue the claims due to either a statutory immunity granted to municipalities or to a common law immunity imposed by judges. In other states, however, some plaintiffs have successfully pursued claims that might otherwise have been brought under Section 1983 against local governments. My research also indicates that plaintiffs often do not bring claims of negligent screening, training, and supervision even when they could have brought such claims, and I further suggest that in some instances this is a missed opportunity for plaintiffs. This Essay considers the implications of my findings for the enforcement of constitutional rights and offers some suggestions for future inquiry. [ABSTRACT FROM AUTHOR]