Can municipal agencies be liable under Monell Claims for policies that support HOAs? YES!

The legal doctrine of Monell claims appears to be suited for those instances where public policy permits violations of constitutional rights under 42 US 1983, “Civil action for deprivation of rights”.[i]    These claims can pertain to police departments and county attorneys, planning boards, and real estate departments and other HOA commissioners or ombudsmen officials if they have adopted such a policy. In other words, if it is the policy of a planning board, or the police department and/or county attorney to ignore or dismiss legitimate complaints against HOAs then this policy allows for the application of civil rights protection under federal law.

 In Nevada, Bob Frank and Tim Stebbins have filed such a federal claim[ii] against Henderson Police Department for false arrest and malicious prosecution relating to their whistle-blowing, which involved IRS rules violations relating to tax refunds to HOAs.  Without probable cause and an independent audit, the police arrested the two homeowners under filing a false claim.  Subsequent to their arrest, the IRS completed its audit that did indeed substantiate the allegations of Frank and Stebbins.

Basically, a Monell Claim involves a claim “against a government unit [with] sufficient facts to show (1) the existence of a government policy or custom and (2) that the unconstitutional act was taken pursuant to that policy or custom.”[iii]  Further clarification of what constitutes “policy” was provided in Pembaur v. City of Cincinnati[iv] decision that held, among other things,

We hold that municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.”

In other words, the policy or custom must come from a high-level official who can be said to speak for the agency, and thus the municipality.  For example, Commissioners and Directors who are permitted to set rules and regulations by law.  Any such rule, especially an explicit policy statement, may lead to a Monell Claim. For example, in Pembaur the Prosecutor was held to be the final authority when he told the police to break into a business without a warrant.  In Frank, it is shown that the Police Chief and Municipal Judge approved the probable cause claim for the criminal arrest warrant.  See this link for current documents in this case.

When the “unspoken alliance of no negatives about HOAs” becomes incorporated into an agency policy, then Monell Claims may arise.



[i] “Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected to . . . the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable . . .” (emphasis added).

[ii] Frank v. City of Cincinnati, 2:12-cv-01988-GMN-GFW (D. Nev.) (not decided).

[iii] Supra, note i.

[iv] Pembaur v. City of Cincinnati, 106 S.Ct. 1292 (1986).


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