The Coroner “Kept Several Skulls as Trophies from the Deceased He Examined”

A very short excerpt from yesterday’s Seventh Circuit opinion in Betts v. Boone County, written by Chief Judge Michael Brennan and joined by Judge Michael Scudder:

The Coroner of Boone County, Illinois, engaged in abhorrent and macabre behavior. Wesley Hyland kept several skulls as trophies from the deceased he examined. One was that of Louise Betts. Over four decades later, after the coroner’s death, the County returned her skull to the Betts family. The family sued the County under 42 U.S.C. § 1983 for violating the Due Process Clause of the Fourteenth Amendment.

The question in this appeal is whether Hyland’s actions established an “official policy” of unconstitutionally retaining human remains [which would make the County liable -EV]. We hold the answer is no. The County is not liable under Monell v. Department of Social Services (1978), because state law requires that coroners return bodily remains to families. Hyland frustrated an official policy rather than established one….

The Bettses’ § 1983 suit alleges that the County violated the Fourteenth Amendment by depriving them of property without due process. The first question is whether they have a property interest in their sister’s remains….

Illinois recognizes that family members have a property right to a next of kin’s remains, as the district court concluded, and on appeal the County does not appear to disagree. As the Supreme Court of Illinois has held, “while in the ordinary sense, there is no property right in a dead body, a right of possession of a decedent’s remains devolves upon the next of kin in order to make appropriate disposition thereof, whether by burial or otherwise.” …

[But] a municipality is not liable under § 1983 unless the deprivation of a constitutional right is caused by a municipal policy or custom. The problem, however, is defining “policy,” as § 1983 does not use that term. To fill the gap, caselaw has established that a plaintiff may demonstrate a policy or custom that causes a constitutional deprivation in one of three ways: (1) an express policy of the municipality; (2) a widespread practice constituting custom or usage; or (3) an act by a person with final policymaking authority. This appeal concerns the third way….

Here, a state statute unequivocally prohibited Hyland’s actions: “That as soon as may be consistent with the performance of his duties under this [statute] the coroner shall release the body of the decedent to the decedent’s next of kin.” Hyland, after his investigation, kept Louise’s skull; he did not “release the body of the decedent.” Hyland acted contrary to this unequivocal statutory command, just like the police superintendent in Auriemma and the mayor in Killinger. Hyland “frustrated,” rather than “implemented,” the government’s policy. Responsibility thus falls on him, not Boone County….

The dissenting opinion submits that as long as the relevant official is elected and has general authority over a particular domain, his actions make the municipality liable—even if a law constrains his authority or discretion. This is respondeat superior by another name. It is not supported in our caselaw or that of other circuits, and it extends Monell liability too far. We decline to break with the great weight of the caselaw until instructed differently.

Scores of plaintiffs are not left without redress for constitutional wrongs done to them by government, as the dissenting opinion suggests. The Bettses, or any hypothetical plaintiffs, are not without recourse. They can sue the sheriff in tort or under § 1983. The state could—and should—criminally prosecute government actors who commit crimes. But municipal liability does not arise simply because a rogue elected official acted unconstitutionally. Concluding otherwise stretches both Supreme Court and this court’s rulings too far….

And an excerpt from Judge David Hamilton’s dissent:

To pose the issue starkly, by the majority’s reasoning, Monell liability would not apply to a county whose elected sheriff raped a prisoner while on the job. Nor would Monell liability apply when a mayor orders police to shut down a political march by his opponents or discriminates on the basis of religion or race. After all, rape is a crime in every state. Political speech, freedom of religion, and racial equality are protected by every state constitution. On the majority’s reasoning, rape, political suppression, and religious and racial discrimination must therefore be contrary to every county’s or city’s policy, no matter what elected officials do under color of state law. Other circuits have had little difficulty in [such cases]. We should follow that course here….

In this case, Coroner Hyland was an independently elected county official. In his work, he was accountable to the voters rather than to another county governing body or official. Under Illinois law, the elected coroner is the only person who may authorize the release of a body after an autopsy. In his work as coroner in general and for the purpose of releasing bodies in particular, he was the county’s final policymaker….

State law is significant insofar as it allocates final policymaking authority between various officials, not in whatever limits it imposes on how officials wield the authority given to them….