Can you sue the City for prosecuting an unconstitutional State law?

Here's a great question that can arise in a Section 1983 civil rights action: if you are prosecuted by the City for violating what turns out to be an unconstitutional Sate law, can you sue the City under Section 1983 on the theory that the City's enforcement of that law was the kind of unlawful "policy" that can give rise to a Section 1983 action?

That answer was resolved (kind of) by the Second Circuit in Vives v. City of New York, decided on May 1. Here's the dilemma: if you're victimized by a civil rights violation, you can sue a government official or municipality under Section 1983, which authorizes these lawsuits for the violation of a Federal right. Suing a municipality is harder than you think, because you have to show the City or County violated your civil rights under a "policy." This is because, in suing the City, it's not enough to show that your civil rights were violated by a City employee like a police officer.

In Vives, the City prosecuted the plaintiff for distributing political literature which caused a City official alarm. The Federal judge ruled that the Penal Law under which Vives was prosecuted, Section 240.30(1), governing aggravated harassment when someone's communication causes someone else "anger or alarm," violates the First Amendment because it potentially covers protected and nonviolent speech. Vives then sued the City for enforcing this law against him, arguing that its decision to prosecute him amounted to City policy. So the question, as the Second Circuit puts it, is: "whether -- and under what circumstances -- a municipality can be liable for enforcing a state law." That issue has never been resolved by the Second Circuit, and the Court cites other Circuit court rulings which have only nibbled around the edges.

The issue boils down to whether the City was required to enforce the Penal Law or whether it had a choice in doing so. A municipality's decision to fulfill its mandatory obligation in enforcing the Penal Law is not policy, as it has no choice but to comply with State laws. But the Court of Appeals holds, "On the other hand, if a municipality decides to enforce a statute that it is authorized, but not required, to enforce, it may have created a municipal policy." The Second Circuit thus sends the case back to the district court to determine whether New York City had a meaningful choice as to whether it would enforce this provision of the Penal Law and, if so, whether the City adopted a discrete policy to enforce this law insofar as that choice represented a conscious choice by a municipal policymaker.

You may ask, why doesn't the plaintiff just sue the State of New York for enacting an unlawful provision of the Penal Law which violates the First Amendment? You can't sue the State for this because it is not a "person" under Section 1983. For technical reasons, cities and other municipalities are "persons" under Section 1983. So why not sue the police officer who applied that provision of the Penal Law in arresting you? Because the police are immune from suit when they simply enforce an existing law; the officers are just doing their job. Vives' only damages action for his arrest and incarceration was against the City. When his case went to trial on that theory, the jury awarded him $3,300 for his troubles. That damages award is vacated so the trial court can resolve the question of whether the City's policy of enforcing the Penal Law violated Vives' rights.