As municipal defendants are aware, 42 USC 1983 claims for violations of civil rights can be time consuming and costly; however, the plaintiffs in these types of cases have a much higher hurdle than plaintiffs in other tort cases to prove liability. Specifically, 1983 plaintiffs have to show that a municipality's "deliberate indifference" caused the plaintiff's injuries.
In the February 2008 issue of the Nebraska Lawyer, attorney Eric Oelrich argued that this heightened standard encourages municipalities to ignore implementing more specific policies to provide guidance to municipal employees, and urges Congressional action to weaken this higher standard.
The primary case discussed in Mr. Oelrich's article is Szabla v. City of Brooklyn Park, 486 F.3d 385 (8th Cir. 2007). In that case, an officer was searching for a suspect with a police dog. The dog ultimately bit an individual who, almost immediately thereafter, was cleared as a potential suspect. The individual later sued claiming that the policies regarding the use of police dogs was not clear enough to provide guidance to the officers and was the proximate cause of his injuries.
The Eighth Circuit, en banc, ultimately held that the city and its employees were not liability for the injuries sustained by the plaintiff; however, Mr. Oelrich is concerned both with the lack of ability for a plaintiff to recover in these types of cases and as the potential for liability falling to the municipal employees in the event the plaintiff cannot prove "deliberate indifference" of a municipality. The article proposes lowering the plaintiff's burden of proof while creating a system for apportioning damages between a municipality and its employees.