Municipium, Absens Parens: Rectifying Monell and Parens Patriae for Institutional Liability

Abstract

The impact of the carceral system and policing on youth led to the development of a separate juvenile system recognizing the special needs of young people. However, policing-based harm remains at the forefront of legal scholarship not just for its continued prevalence in the country as a whole, but also because of the disproportionate impact on Black and Brown people. This impact is compounded when the targets of police violence are youth, who are subjected to extreme force by police at higher rates in comparison to adults and their white youth counterparts. Legal protections that purport to protect citizens’ rights inhibit victims from obtaining any meaningful recourse or compensation after experiencing the most heinous forms of police misconduct or violence. Individual police officers are protected by qualified immunity, and institutional liability is an illusory concept due to the flawed and extremely high bars created by the Monell framework. States have obligations to protect children under the parens patriae doctrine but are shielded from liability both because policing falls under municipal control and because the Eleventh Amendment provides states with sovereign immunity. Municipalities responsible for police conduct and discipline lack a similar common law obligation to their vulnerable citizens. This Note explores how the existing Monell and parens patriae doctrines can be reformed and adapted to ensure that institutions not only have a duty to protect youth from policing-based harm, but also that this duty is enforced with mechanisms for finding liability. Only with a meaningful pathway to liability for harm caused to youth at the hands of police can any real police accountability or long-term reform in policing be expected and racial disparities in this harm be addressed.