| LIABILITY OF LOCAL GOVERNMENT ENTITIES |
Parts I & II of the Court’s opinion are set forth in Chapter II(A), supra.
III
The City of Chicago asserts that it is not liable under 42 U.S.C. § 1983. We do not stop to explore the whole range of questions tendered us on this issue at oral argument and in the briefs. For we are of the opinion that Congress did not undertake to bring municipal corporations within the ambit of § 1979.
When the bill that became the Act of April 20, 1871, was being debated in the Senate, Senator Sherman of Ohio proposed an amendment which would have made "the inhabitants of the county, city, or parish" in which certain acts of violence occurred liable "to pay full compensation" to the person damaged or his widow or legal representative.38
The objection to the Sherman amendment stated by Mr. Poland was that "the House had solemnly decided that in their judgment Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of state law." The question of constitutional power of Congress to impose civil liability on municipalities was vigorously debated with powerful arguments advanced in the affirmative.
Much reliance is placed on the Act of February 25, 1871, 16 Stat. 431, entitled "An Act prescribing the Form of the enacting and resolving Clauses of Acts and Resolutions of Congress, and Rules for the Construction thereof." Section 2 of this Act provides that "the word 'person' may extend and be applied to bodies politic and corporate."47
The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word "person" was used in this particular Act to include them. Accordingly we hold that the motion to dismiss the complaint against the City of Chicago was properly granted. But since the complaint should not have been dismissed against the officials the judgment must be and is
Reversed.
Monroe v. Pape 
The amendment was adopted by the Senate. The House, however, rejected it. The Conference Committee reported another version.41 The House rejected the Conference report. In a second conference the Sherman amendment was dropped and in its place § 6 of the Act of April 20, 1871, was substituted. This new section, which is now R. S. § 1981, 42 U. S. C. § 1986, dropped out all provision for municipal liability and extended liability in damages to "any person or persons, having knowledge that any" of the specified wrongs are being committed. Mr. Poland, speaking for the House Conferees about the Sherman proposal to make municipalities liable, said:
"We informed the conferees on the part of the Senate that the House had taken a stand on that subject and would not recede from it; that that section imposing liability upon towns and counties must go out or we should fail to agree."
It should be noted, however, that this definition is merely an allowable, not a mandatory, one. It is said that doubts should be resolved in favor of municipal liability because private remedies against officers for illegal searches and seizures are conspicuously ineffective, and because municipal liability will not only afford plaintiffs responsible defendants but cause those defendants to eradicate abuses that exist at the police level. We do not reach those policy considerations. Nor do we reach the constitutional question whether Congress has the power to make municipalities liable for acts of its officers that violate the civil rights of individuals.
Monroe v. Pape Transcript
Notes on Monroe v. Pape
, 411 U.S. 693 (1973) the Court rejected the claim that municipalities could be held liable under Section 1983 where the municipality is subject to liability under state law. In City of Kenosha v. Bruno, 412 U.S. 507 (1973), the Court held that its determination that municipalities are not “persons” within the meaning of Section 1983 applies to claims for equitable relief as well as to claims for damages.
, supra, the Court, while rejecting the claim against the municipality under Section 1983, remanded the case to the district court to consider the availability of § 1331 jurisdiction. Justice Brennan, concurring in Bruno, stated:
[S]ince the defendants named in the complaints were the municipalities of Kenosha and Racine, jurisdiction cannot be based on 28 U.S.C. § 1343...Appellees did assert 28 U.S.C. § 1331 [28 USCS § 1331] as an alternative ground of jurisdiction, but I agree with the Court’s conclusion that existence of the requisite amount in controversy is not, on this record, clearly established. If appellees can prove their allegation that at least $10,000 is in controversy, then § 1331 jurisdiction is available, Bell v. Hood
412 U.S. at 516. See also Mt. Healthy City School District v. Doyle, 429 U.S. 274, 278 (1977) (“The question of whether...we should, by analogy to our decision in Bivens...imply a cause of action directly from the Fourteenth Amendment...is one which has never been decided by this Court.”). The lower federal courts divided over the viability of Bivens actions against municipalities. For a discussion of the arguments for and against recognition of a direct constitutional cause of action against municipalities, see Turpin v. Mailet, 579 F.2d 152 (2d Cir.), vacated and remanded sub nom. Turpin v. City of West Haven, 439 U.S. 974 (1978).
|
Monell v. Department of Social Services of the City of New York |
Mr. Justice Brennan delivered the opinion of the Court.
Petitioners, a class of female employees of the Department of Social Services and of the Board of Education of the city of New York, commenced this action under 42 U. S. C. § 1983 in July 1971. The gravamen of the complaint was that the Board and the Department had as a matter of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons.2 Cf. Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974). The suit sought injunctive relief and backpay for periods of unlawful forced leave. Named as defendants in the action were the Department and its Commissioner, the Board and its Chancellor, and the city of New York and its Mayor. In each case, the individual defendants were sued solely in their official capacities.
On cross-motions for summary judgment, the District Court for the Southern District of New York held moot petitioners' claims for injunctive and declaratory relief since the city of New York and the Board, after the filing of the complaint, had changed their policies relating to maternity leaves so that no pregnant employee would have to take leave unless she was medically unable to continue to perform her job. 394 F.Supp. 853, 855 (1975). No one now challenges this conclusion. The court did conclude, however, that the acts complained of were unconstitutional under LaFleur, supra. 394 F.Supp., at 855. Nonetheless plaintiffs' prayers for backpay were denied because any such damages would come ultimately from the city of New York and, therefore, to hold otherwise would be to "[circumvent]" the immunity conferred on municipalities by Monroe v. Pape, 365 U.S. 167 (1961). See 394 F.Supp., at 855.
On appeal, petitioners renewed their arguments that the Board of Education4
We granted certiorari in this case, 429 U.S. 1071, to consider
Although, after plenary consideration, we have decided the merits of over a score of cases brought under § 1983 in which the principal defendant was a school board -- and, indeed, in some of which § 1983 and its jurisdictional counterpart, 28 U. S. C. § 1343, provided the only basis for jurisdiction -- we indicated in Mt. Healthy City Board of Education v. Doyle
I
In Monroe v. Pape, we held that "Congress did not undertake to bring municipal corporations within the ambit of [§ 1983]." 365 U.S., at 187. The sole basis for this conclusion was an inference drawn from Congress' rejection of the "Sherman amendment" to the bill which became the Civil Rights Act of 1871, 17 Stat. 13, the precursor of § 1983. The amendment would have held a municipal corporation liable for damage done to the person or property of its inhabitants by private persons "riotously and tumultuously assembled."8
A fresh analysis of the debate on the Civil Rights Act of 1871, and particularly of the case law which each side mustered in its support, shows, however, that Monroe incorrectly equated the "obligation" of which Representative Poland spoke with "civil liability."
A. An Overview
There are three distinct stages in the legislative consideration of the bill which became the Civil Rights Act of 1871. On March 28, 1871, Representative Shellabarger, acting for a House select committee, reported H. R. 320, a bill "to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes." H. R. 320 contained four sections. Section 1, now codified as 42 U. S. C. § 1983, was the subject of only limited debate and was passed without amendment. Sections 2 through 4 dealt primarily with the "other purpose" of suppressing Ku Klux Klan violence in the Southern States.11
Immediately prior to the vote on H. R. 320 in the Senate, Senator Sherman introduced his amendment. This was not an amendment to § 1 of the bill, but was to be added as § 7 at the end of the bill. Under the Senate rules, no discussion of the amendment was allowed and, although attempts were made to amend the amendment, it was passed as introduced. In this form, the amendment did not place liability on municipal corporations, but made any inhabitant of a municipality liable for damage inflicted by persons "riotously and tumultuously assembled."14
The House refused to acquiesce in a number of amendments made by the Senate, including the Sherman amendment, and the respective versions of H. R. 320 were therefore sent to a conference committee. Section 1 of the bill, however, was not a subject of this conference since, as noted, it was passed verbatim as introduced in both Houses of Congress.
On April 18, 1871, the first conference committee completed its work on H. R. 320. The main features of the conference committee draft of the Sherman amendment were these:
First, a cause of action was given to persons injured by
Second, the bill provided that the action would be against the county, city, or parish in which the riot had occurred and that it could be maintained by either the person injured or his legal representative. Third, unlike the amendment as proposed, the conference substitute made the government defendant liable on the judgment if it was not satisfied against individual defendants who had committed the violence. If a municipality were liable, the judgment against it could be collected
In the ensuing debate on the first conference report, which was the first debate of any kind on the Sherman amendment, Senator Sherman explained that the purpose of his amendment was to enlist the aid of persons of property in the enforcement of the civil rights laws by making their property "responsible" for Ku Klux Klan damage.16
The first conference substitute passed the Senate but was rejected by the House. House opponents, within whose ranks were some who had supported § 1, thought the Federal Government could not, consistent with the Constitution, obligate municipal corporations to keep the peace if those corporations were neither so obligated nor so authorized by their state charters. And, because of this constitutional objection, opponents of the Sherman amendment were unwilling to impose damages liability for nonperformance of a duty which Congress could not require municipalities to perform. This position is reflected in Representative Poland's statement that is quoted in Monroe.
Because the House rejected the first conference report a second conference was called and it duly issued its report. The second conference substitute for the Sherman amendment abandoned municipal liability and, instead, made "any person or persons having knowledge [that a conspiracy to violate civil rights was afoot], and having power to prevent or aid in preventing the same," who did not attempt to stop the same, liable to any person injured by the conspiracy. The amendment in this form was adopted by both Houses of Congress and is now codified as 42 U. S. C. § 1986.
The meaning of the legislative history sketched above can most readily be developed by first considering the debate on the report of the first conference committee. This debate shows conclusively that the constitutional objections raised against the Sherman amendment -- on which our holding in Monroe was based, see supra, at 664 -- would not have prohibited congressional creation of a civil remedy against state municipal corporations that infringed federal rights. Because § 1 of the Civil Rights Act does not state expressly that municipal corporations come within its ambit, it is finally necessary to interpret § 1 to confirm that such corporations were indeed intended to be included within the "persons" to whom that section applies.
B. Debate on the First Conference Report
House opponents of the Sherman amendment -- whose views are particularly important since only the House voted down the amendment -- did not dispute Shellabarger's claim that the Fourteenth Amendment created a federal right to protection, but they argued that the local units of government upon which the amendment fastened liability were not obligated to keep the peace at state law and further that the Federal Government could not constitutionally require local governments to create police forces, whether this requirement was levied directly, or indirectly by imposing damages for breach of the peace on municipalities. The most complete statement of this position is that of Representative Blair:
". . . [Here] it is proposed, not to carry into effect an obligation which rests upon the municipality, but to create that obligation, and that is the provision I am unable to assent to. . .
". . . [There] are certain rights and duties that belong to the States, . . . there are certain powers that inhere in the State governments. They create these municipalities, they say what their powers shall be and what their obligations shall be. If the Government of the United States can step in and add to those obligations, may it not utterly destroy the municipality? If it can say that it shall be liable for damages occurring from a riot, . . . where [will] its power . . . stop and what obligations . . . might [it] not lay upon a municipality. . . .
Thus, there was ample support for Blair's view that the Sherman amendment, by putting municipalities to the Hobson's choice of keeping the peace or paying civil damages, attempted to impose obligations on municipalities by indirection that could not be imposed directly, thereby threatening to "destroy the government of the States." Globe 795.
If municipal liability under § 1 of the Civil Rights Act of 1871 created a similar Hobson's choice, we might conclude, as Monroe did, that Congress could not have intended municipalities to be among the "persons" to which that section applied. But this is not the case.
First, opponents expressly distinguished between imposing an obligation to keep the peace and merely imposing civil liability for damages on a municipality that was obligated by state law to keep the peace, but which had not in violation of the Fourteenth Amendment.
Second, the doctrine of dual sovereignty apparently put no limit on the power of federal courts to enforce the Constitution against municipalities that violated it. Under the theory of dual sovereignty set out in Prigg, this is quite understandable. So long as federal courts were vindicating the Federal Constitution, they were providing the "positive" government action required to protect federal constitutional rights and no question was raised of enlisting the States in "positive" action.
C. Debate on § 1 of the Civil Rights Bill
From the foregoing discussion, it is readily apparent that nothing said in debate on the Sherman amendment would have prevented holding a municipality liable under § 1 of the Civil Rights Act for its own violations of the Fourteenth Amendment. The question remains, however, whether the general language describing those to be liable under § 1 -- "any person" -- covers more than natural persons. An examination of the debate on § 1 and application of appropriate rules of construction show unequivocally that § 1 was intended to cover legal as well as natural persons.
Representative Shellabarger was the first to explain the function of § 1:
By extending a remedy to all people, including whites, § 1 went beyond the mischief to which the remaining sections of the 1871 Act were addressed. Representative Shellabarger also stated without reservation that the constitutionality of § 2 of the Civil Rights Act of 1866 controlled the constitutionality of § 1 of the 1871 Act, and that the former had been approved by "the supreme courts of at least three States of this Union" and by Mr. Justice Swayne, sitting on circuit, who had concluded: "'We have no doubt of the constitutionality of every provision of this act.'" Globe App. 68. Representative Shellabarger then went on to describe how the courts would and should interpret § 1:
"'Where a power is remedial in its nature there is much reason to contend that it ought to be construed liberally, and it is generally adopted in the interpretation of laws.' -- 1 Story on Constitution, sec. 429." Globe App., at 68.
The sentiments expressed in Representative Shellabarger's opening speech were echoed by Senator Edmunds, the manager of H. R. 320 in the Senate:
"[Section 1 is] so very simple and really [reenacts] the Constitution." Id., at 569.
And he agreed that the bill "[secured] the rights of white men as much as of colored men." Id., at 696.
Representative Bingham, for example, in discussing § 1 of the bill, explained that he had drafted § 1 of the Fourteenth Amendment with the case of Barron v. Mayor of Baltimore, 7 Pet. 243 (1833), especially in mind. "In [that] case the city had taken private property for public use, without compensation . . . , and there was no redress for the wrong . . . ." Globe App. 84 (emphasis added). Bingham's further remarks clearly indicate his view that such takings by cities, as had occurred in Barron, would be redressable under § 1 of the bill. See Globe App. 85. More generally, and as Bingham's remarks confirm, § 1 of the bill would logically be the vehicle by which Congress provided redress for takings, since that section provided the only civil remedy for Fourteenth Amendment violations and that Amendment unequivocally prohibited uncompensated takings.46
In addition, by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis. This had not always been so. When this Court first considered the question of the status of corporations, Mr. Chief Justice Marshall, writing for the Court, denied that corporations "as such" were persons as that term was used in Art. III and the Judiciary Act of 1789. See Bank of the United States v. Deveaux, 5 Cranch 61, 86 (1809).48
And only two years before the debates on the Civil Rights Act, in Cowles v. Mercer County, 7 Wall. 118, 121 (1869), the Letson principle was automatically and without discussion extended to municipal corporations. Under this doctrine, municipal corporations were routinely sued in the federal courts and this fact was well known to Members of Congress.
That the "usual" meaning of the word "person" would extend to municipal corporations is also evidenced by an Act of Congress which had been passed only months before the Civil Rights Act was passed. This Act provided that
Municipal corporations in 1871 were included within the phrase "bodies politic and corporate" and, accordingly, the "plain meaning" of § 1 is that local government bodies were to be included within the ambit of the persons who could be sued under § 1 of the Civil Rights Act. Indeed, a Circuit Judge, writing in 1873 in what is apparently the first reported case under § 1, read the Dictionary Act in precisely this way in a case involving a corporate plaintiff and a municipal defendant.52
II
Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.54
On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor -- or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.
We begin with the language of § 1983 as originally passed:
The italicized language plainly imposes liability on a government that, under color of some official policy, "causes" an employee to violate another's constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A's tort became B's liability if B "caused" A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent.57
Equally important, creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional. To this day, there is disagreement about the basis for imposing liability on an employer for the torts of an employee when the sole nexus between the employer and the tort is the fact of the employer-employee relationship. See W. Prosser, Law of Torts § 69, p. 459 (4th ed. 1971). Nonetheless, two justifications tend to stand out. First is the common-sense notion that no matter how blameless an employer appears to be in an individual case, accidents might nonetheless be reduced if employers had to bear the cost of accidents. See, e. g., ibid.; 2 F. Harper & F. James, Law of Torts, § 26.3, pp. 1368-1369 (1956). Second is the argument that the cost of accidents should be spread to the community as a whole on an insurance theory. See, e.g., id., § 26.5; Prosser, supra, at 459.58
The first justification is of the same sort that was offered for statutes like the Sherman amendment: "The obligation to make compensation for injury resulting from riot is, by arbitrary enactment of statutes, affirmatory law, and the reason of passing the statute is to secure a more perfect police regulation." Globe 777 (Sen. Frelinghuysen). This justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable. The second justification was similarly put forward as a justification for the Sherman amendment: "we do not look upon [the Sherman amendment] as a punishment . . . . It is a mutual insurance." Id., at 792 (Rep. Butler). Again, this justification was insufficient to sustain the amendment.
We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, see supra, at 660-662, and n.2, we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day. III
Although we have stated that stare decisis has more force in statutory analysis than in constitutional adjudication because, in the former situation, Congress can correct our mistakes through legislation, see, e. g., Edelman v. Jordan, 415 U.S. 651, 671, and n. 14 (1974), we have never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes. See, e. g., Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 47-49 (1977); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 n. 1 (1932) (Brandeis, J., dissenting) (collecting cases). Nor is this a case where we should "place on the shoulders of Congress the burden of the Court's own error." Girouard v. United States, 328 U.S. 61, 70 (1946).
IV
Since the question whether local government bodies should be afforded some form of official immunity was not presented as a question to be decided on this petition and was not briefed by the parties or addressed by the courts below, we express no views on the scope of any municipal immunity beyond holding that municipal bodies sued under § 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under § 1983 "be drained of meaning," Scheuer v. Rhodes, 416 U.S. 232, 248 (1974). Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397-398 (1971).
V
For the reasons stated above, the judgment of the Court of Appeals is Reversed.
Mr. Justice Powell, concurring.
I join the opinion of the Court, and express these additional views.
Few cases in the history of the Court have been cited more frequently than Monroe v. Pape, 365 U.S. 167 (1961), decided less than two decades ago. Focusing new light on 42 U. S. C. § 1983, that decision widened access to the federal courts and permitted expansive interpretations of the reach of the 1871 measure. But Monroe exempted local governments from liability at the same time it opened wide the courthouse door to suits against officers and employees of those entities -- even when they act pursuant to express authorization. The oddness of this result, and the weakness of the historical evidence relied on by the Monroe Court in support of it, are well demonstrated by the Court's opinion today. Yet the gravity of overruling a part of so important a decision prompts me to write.
I
In addressing a complaint alleging unconstitutional police conduct that probably was unauthorized and actionable under state law, the Monroe Court treated the 42d Congress' rejection of the Sherman amendment as conclusive evidence of an intention to immunize local governments from all liability under the statute for constitutional injury. That reading, in light of today's thorough canvass of the legislative history, clearly "misapprehended the meaning of the controlling provision," Monroe, supra, at 192 (Harlan, J., concurring). In this case, involving formal, written policies of the Department of Social Services and the Board of Education of the city of New York that are alleged to conflict with the command of the Due Process Clause, cf. Cleveland Board of Education v. LaFleur As the Court demonstrates, the Sherman amendment presented an extreme example of "riot act" legislation that sought to impose vicarious liability on government subdivisions for the consequences of private lawlessness. As such, it implicated concerns that are of marginal pertinence to the operative principle of § 1 of the 1871 legislation -- now § 1983 -- that "any person" acting "under color of" state law may be held liable for affirmative conduct that "subjects, or causes to be subjected, any person . . . to the deprivation of any" federal constitutional or statutory right. Of the many reasons for the defeat of the Sherman proposal, none supports Monroe's observation that the 42d Congress was fundamentally "antagonistic,” 365 U.S., at 191, to the proposition that government entities and natural persons alike should be held accountable for the consequences of conduct directly working a constitutional violation. Opponents in the Senate appear to have been troubled primarily by the proposal’s unprecedented lien provision, which would have exposed even property held for public purposes to the demands of § 1983 judgment lienors. Ante, at 673-674, n.30. The opposition in the House of Representatives focused largely on the Sherman amendment's attempt to impose a peacekeeping obligation on municipalities when the Constitution itself imposed no such affirmative duty and when many municipalities were not even empowered under state law to maintain police forces. Ante, at 673-675, 679-682.2
The Court correctly rejects a view of the legislative history that would produce the anomalous result of immunizing local government units from monetary liability for action directly causing a constitutional deprivation, even though such actions may be fully consistent with, and thus not remediable under, state law. No conduct of government comes more clearly within the "under color of" state law language of § 1983. It is most unlikely that Congress intended public officials acting under the command or the specific authorization of the government employer to be exclusively liable for resulting constitutional injury.3
As elaborated in Part II of today's opinion, the rejection of the Sherman amendment can best be understood not as evidence of Congress' acceptance of a rule of absolute municipal immunity but as a limitation of the statutory ambit to actual wrongdoers, i.e., a rejection of respondeat superior or any other principle of vicarious liability. Cf. Levin, The Section 1983 Municipal Immunity Doctrine, 65 Geo. L. J. 1483, 1531-1535 (1977). Thus, it has been clear that a public official may be held liable in damages when his actions are found to violate a constitutional right and there is no qualified immunity, see Wood v. Strickland, 420 U.S. 308 (1975); Procunier v. Navarette, 434 U.S. 555 (1978). Today the Court recognizes that this principle also applies to a local government when implementation of its official policies or established customs inflicts the constitutional injury.
II
This Court traditionally has been hesitant to overrule prior constructions of statutes or interpretations of common-law rules. "Stare decisis is usually the wise policy," Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting), but this cautionary principle must give way to countervailing considerations in appropriate circumstances. I concur in the Court's view that this is not a case where we should "place on the shoulders of Congress the burden of the Court's own error." Girouard v. United States, 328 U.S. 61, 70 (1946).
Finally, if we continued to adhere to a rule of absolute municipal immunity under § 1983, we could not long avoid the question whether "we should, by analogy to our decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), imply a cause of action directly from the Fourteenth Amendment which would not be subject to the limitations contained in § 1983 . ." Mt. Healthy City Board of Ed. v. Doyle
Mr. Justice Stevens, concurring in part.
Since Parts II and IV of the opinion of the Court are merely advisory and are not necessary to explain the Court's decision, I join only Parts I, III, and V.
Mr. Justice Rehnquist, with whom the Chief Justice joins, dissenting.
Seventeen years ago, in Monroe v. Pape, 365 U.S. 167 (1961), this Court held that the 42d Congress did not intend to subject a municipal corporation to liability as a "person" within the meaning of 42 U. S. C. § 1983. Since then, the Congress has remained silent, but this Court has reaffirmed that holding on at least three separate occasions. Aldinger v. Howard
I
As this Court has repeatedly recognized, id., at 175 n.12; Edelman v. Jordan, 415 U.S. 651, 671 n.14 (1974), considerations of stare decisis are at their strongest when this Court confronts its previous constructions of legislation. In all cases, private parties shape their conduct according to this Court’s settled construction of the law, but the Congress is at liberty to correct our mistakes of statutory construction, unlike our constitutional interpretations, whenever it sees fit. The controlling principles were best stated by Mr. Justice Brandeis:
Only the most compelling circumstances can justify this Court’s abandonment of such firmly established statutory precedents. The best exposition of the proper burden of persuasion was delivered by Mr. Justice Harlan in Monroe itself:
The Court does not demonstrate that any exception to this general rule is properly applicable here.
Thus, our only task is to discern the intent of the 42nd Congress. That intent was first expounded in Monroe, and it has been followed consistently ever since. This is not some esoteric branch of the law in which congressional silence might reasonably be equated with congressional indifference. Indeed, this very year, the Senate has been holding hearings on a bill, S. 35, 95th Cong., 1st Sess. (1977), which would remove the municipal immunity recognized by Monroe. 124 Cong. Rec. D117 (daily ed. Feb. 8, 1978). In these circumstances, it cannot be disputed that established principles of stare decisis require this Court to pay the highest degree of deference to its prior holdings. Monroe may not be overruled unless it has been demonstrated beyond doubt from the legislative history of the 1871 statute that [Monroe] misapprehended the meaning of the controlling provision. Monroe, 365 U.S., at 192 (Harlan, J., concurring). The Court must show not only that Congress, in rejecting the Sherman amendment, concluded that municipal liability was not unconstitutional, but also that, in enacting § 1, it intended to impose that liability. I am satisfied that no such showing has been made.
Whatever the merits of the constitutional arguments raised against it, the fact remains that Congress rejected the concept of municipal tort liability on the only occasion in which the question was explicitly presented. Admittedly this fact is not conclusive as to whether Congress intended § 1 to embrace a municipal corporation within the meaning of person, and thus the reasoning of Monroe on this point is subject to challenge. The meaning of § 1 of the Act of 1871 has been subjected in this case to a more searching and careful analysis than it was in Monroe, and it may well be that on the basis of this closer analysis of the legislative debates a conclusion contrary to the Monroe holding could have been reached when that case was decided 17 years ago. But the rejection of the Sherman amendment remains instructive in that here alone did the legislative debates squarely focus on the liability of municipal corporations, and that liability was rejected. Any inference which might be drawn from the Dictionary Act or from general expressions of benevolence in the debate on § 1 that the word person was intended to include municipal corporations falls far short of showing beyond doubt that this Court in Monroe misapprehended the meaning of the controlling provision. Errors such as the Court may have fallen into in Monroe do not end the inquiry as to stare decisis; they merely begin it. I would adhere to the holding of Monroe as to the liability of a municipal corporation under § 1983.
III
The decision in Monroe v. Pape was the fountainhead of the torrent of civil rights litigation of the last 17 years. Using § 1983 as a vehicle, the courts have articulated new and previously unforeseeable interpretations of the Fourteenth Amendment. At the same time, the doctrine of municipal immunity enunciated in Monroe has protected municipalities and their limited treasuries from the consequences of their officials’ failure to predict the course of this Court’s constitutional jurisprudence. None of the Members of this Court can foresee the practical consequences of today’s removal of that protection. Only the Congress, which has the benefit of the advice of every segment of this diverse Nation, is equipped to consider the results of such a drastic change in the law. It seems all but inevitable that it will find it necessary to do so after today’s decision.
I would affirm the judgment of the Court of Appeals.
was not a "municipality" within the meaning of Monroe v. Pape, supra, and that, in any event, the District Court had erred in barring a damages award against the individual defendants. The Court of Appeals for the Second Circuit rejected both contentions. The court first held thatthe Board of Education was not a "person" under § 1983 because "it performs a vital governmental function.., and, significantly, while it has the right to determine how the funds appropriated to it shall be spent . . . , it has no final say in deciding what its appropriations shall be." 532 F.2d 259, 263 (1976). The individual defendants, however, were "persons" under § 1983, even when sued solely in their official capacities. 532 F.2d, at 264. Yet, because a damages award would "have to be paid by a city that was held not to be amenable to such an action in Monroe v. Pape," a damages action against officials sued in their official capacities could not proceed. Id., at 265.
"Whether local governmental officials and/or local independent school boards are 'persons' within the meaning of 42 U. S. C. § 1983 when equitable relief in the nature of back pay is sought against them in their official capacities?" Pet. for Cert. 8.
, 429 U.S. 274, 279 (1977), last Term that the question presented here was open and would be decided "another day." That other day has come and we now overrule Monroe v. Pape, supra, insofar as it holds that local governments are wholly immune from suit under § 1983.7
Cong. Globe, 42d Cong., 1st Sess., 749 (1871) (hereinafter Globe). Although the Sherman amendment did not seek to amend § 1 of the Act, which is now § 1983, and although the nature of the obligation created by that amendment was vastly different from that created by § 1, the Court nonetheless concluded in Monroe that Congress must have meant to exclude municipal corporations from the coverage of § 1 because "'the House [in voting against the Sherman amendment] had solemnly decided that in their judgment Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of state law.'" 365 U.S., at 190 (emphasis added), quoting Globe 804 (Rep. Poland). This statement, we thought, showed that Congress doubted its "constitutional power . . . to impose civil liability on municipalities," 365 U.S., at 190 (emphasis added), and that such doubt would have extended to any type of civil liability.9
The wisdom and constitutionality of these sections -- not § 1, now § 1983 -- were the subject of almost all congressional debate and each of these sections was amended. The House finished its initial debates on H. R. 320 on April 7, 1871, and one week later the Senate also voted out a bill. Again, debate on § 1 of the bill was limited and that section was passed as introduced.
"any persons riotously and tumultuously assembled together . . . with intent to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude . . . ."
"by execution, attachment, mandamus, garnishment, or any other proceeding in aid of execution or applicable to the enforcement of judgments against municipal corporations; and such judgment [would become] a lien as well upon all moneys in the treasury of such county, city, or parish, as upon the other property thereof."
Senator Sherman was apparently unconcerned that the conference committee substitute, unlike the original amendment, did not place liability for riot damage directly on the property of the well-to-do, but instead placed it on the local government. Presumably he assumed that taxes would be levied against the property of the inhabitants to make the locality whole. Statutes drafted on a similar theory, he stated, had long been in force in England and were in force in 1871 in a number of States.17 Nonetheless there were critical differences between the conference substitute and extant state and English statutes: The conference substitute, unlike most state riot statutes, lacked a short statute of limitations and imposed liability on the government defendant whether or not it had notice of the impending riot, whether or not the municipality was authorized to exercise a police power, whether or not it exerted all reasonable efforts to stop the riot, and whether or not the rioters were caught and punished.18
"The proposition known as the Sherman amendment. . . is entirely new. It is altogether without a precedent in this country. . . . That amendment claims the power in the General Government to go into the States of this Union and lay such obligations as it may please upon the municipalities, which are the creations of the States alone...
"[Section 1] not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights to which they are entitled under the Constitution by reason and virtue of their national citizenship." Globe App. 68.
"This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people. . . . Chief Justice Jay and also Story say:
"The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill [of 1866], which have since become a part of the Constitution." Globe 568.
In both Houses, statements of the supporters of § 1 corroborated that Congress, in enacting § 1, intended to give a broad remedy for violations of federally protected civil rights.45
Moreover, since municipalities through their official acts could, equally with natural persons, create the harms intended to be remedied by § 1, and, further, since Congress intended § 1 to be broadly construed, there is no reason to suppose that municipal corporations would have been excluded from the sweep of § 1. Cf., e. g., Ex parte Virginia, 100 U.S. 339, 346-347 (1880); Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 286-287, 294-296 (1913). One need not rely on this inference alone, however, for the debates show that Members of Congress understood "persons" to include municipal corporations.
Given this purpose, it beggars reason to suppose that Congress would have exempted municipalities from suit, insisting instead that compensation for a taking come from an officer in his individual capacity rather than from the government unit that had the benefit of the property taken.47
By 1844, however, the Deveaux doctrine was unhesitatingly abandoned:
"[A] corporation created by and doing business in a particular state, is to be deemed to all intents and purposes as a person, although an artificial person, . . . capable of being treated as a citizen of that state, as much as a natural person." Louisville R. Co. v. Letson, 2 How. 497, 558 (1844) (emphasis added), discussed in Globe 752.
"in all acts hereafter passed . . . the word 'person' may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense." Act of Feb. 25, 1871, § 2, 16 Stat. 431.
See Northwestern Fertilizing Co. v. Hyde Park, 18 F. Cas. 393, 394 (No. 10,336) (CC ND Ill. 1873).53
Local governing bodies,55 therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168 (1970): "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law."
"[Any] person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . ." 17 Stat. 13 (emphasis added).
See Rizzo v. Goode, 423 U.S. 362, 370-371 (1976).
, 414 U.S. 632 (1974), the Court decides "not to reject [wisdom] merely because it comes late," Henslee v. Union Planters Bank, 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting).
, 429 U.S. 274, 278 (1977). One aspect of that inquiry would be whether there are any "special factors counselling hesitation in the absence of affirmative action by Congress," Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396 (1971), such as an "explicit congressional declaration that persons injured by a [municipality] may not recover money damages . . . , but must instead be remitted to another remedy, equally effective in the view of Congress," id., at 397. In light of the Court's persuasive re-examination in today's decision of the 1871 debates, I would have difficulty inferring from § 1983 "an explicit congressional declaration" against municipal liability for the implementation of official policies in violation of the Constitution. Rather than constitutionalize a cause of action against local government that Congress intended to create in 1871, the better course is to confess error and set the record straight, as the Court does today.9
, 427 U.S. 1 (1976); City of Kenosha v. Bruno, 412 U.S. 507 (1973); Moor v. County of Alameda, 411 U.S. 693 (1973). See also Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 277-279 (1977). Today, the Court abandons this long and consistent line of precedents, offering in justification only an elaborate canvass of the same legislative history which was before the Court in 1961. Because I cannot agree that this Court is "free to disregard these precedents," which have been "considered maturely and recently" by this Court, Runyon v. McCrary, 427 U.S. 160, 186 (1976) (Powell, J., concurring), I am compelled to dissent.
"Stare decisis is usually wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . .This is commonly trueeven when the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-407 (1932) (dissenting opinion) (footnotes omitted).
"From my point of view, the policy of stare decisis, as it should be applied in matters of statutory construction, and, to a lesser extent, the indications of congressional acceptance of this Court’s earlier interpretation, require that it appear beyond doubt from the legislative history of the 1871 statute that [United States v.] Classic, [313 U.S. 299 (1941)] and Screws [v. United States, 325 U.S. 91 (1945)] misapprehended the meaning of the controlling provision, before a departure from what was decided in those cases would be justified." 365 U.S., at 192 (concurring opinion) (footnote omitted; emphasis added).
| Monell v. Department of Social Services of the City of New York Transcript |
|
Notes on Monell v. Department of Social Services of the City of New York |
, 471 U.S. 808 (1985), the Court reversed a damage award against the City of Oklahoma in a Section 1983 action arising out of a low-level police officer’s fatal shooting of the plaintiff’s husband. The Court ruled that the trial judge erred by instructing the jury that it could hold the city liable if this single incident of shooting amounted to an extraordinary use of excessive force, without further requiring proof that the shooting was caused by a municipal policy. Justice Stevens dissented, offering that the city should be vicariously liable for the actions of its employee:
[Section] 1983. . .was an especially important, remedial measure, drafted in expansive language
* * * * * At the time the statute was enacted the doctrine of respondeat superior was well recognized in the common law of the several states and in England. An employer could be held liable for the wrongful acts of his agents, even when acting contrary to specific instructions, and the rule had been specifically applied to municipal corporations, and to wrongful acts of police officers. Because it is always appropriate to assume that our elected representatives, like other citizens, know the law, it is equally appropriate to assume that the authors of the Civil Rights Act recognized that the rule of respondeat superior would apply to a species of tort liability that on its face admits of no immunities. Indeed, we have repeatedly held that § 1983 should be construed to incorporate common-law doctrine absent specific provisions to the contrary.
* * * * * The legislative history of the Ku Klux Act supports this conclusion for two reasons. First, the fact that nobody objected to § 1 is consistent with the view that Congress expected normal rules of tort law to be applied in enforcing it. Second, the debate on the Sherman Amendment -- an amendment that would have imposed an extraordinary and novel form of absolute liability on municipalities -- indicates that Congress seriously considered imposing additional responsibilities on municipalities without ever mentioning the possibility that they should have any lesser responsibility than any other person. The rejection of the Sherman Amendment sheds no light on the meaning of the statute, but the fact that such an extreme measure was even considered indicates that Congress thought it appropriate to require municipal corporations to share the responsibility for carrying out the commands of the Fourteenth Amendment.
The word policy does not appear in the text of § 1983. . . Part II of Monell contains dicta of the least persuasive kind. As Justice Powell noted in his separate concurrence, language that is not necessary to the holding may be accorded less weight in subsequent cases. Moreover, as he also pointed out, we owe somewhat less deference to a decision that was rendered without benefit of a full airing of all the relevant considerations. The commentary on respondeat superior in Monell was not responsive to any argument advanced by either party and was not even relevant to the Court’s actual holding. Moreover, in the Court’s earlier decision in Monroe v. Pape, although the petitioners had explained why it would be appropriate to apply the doctrine of respondeat superior in § 1983 litigation, no contrary argument had been advanced by the city. Thus, the views expressed in Part II of Monell constitute judicial legislation of the most blatant kind. Having overruled its earlier -- and, ironically also volunteered -- misconstruction of the word person in Monroe v. Pape, in my opinion, the Court in Monell should simply have held that municipalities are liable for the unconstitutional activities of their agents that are performed in the course of their official duties.
City of Oklahoma v. Tuttle
, 973 F.2d 1499, 1505 (9th Cir. 1992).
|
Owen v. City of Independence, Missouri |
Mr. Justice Brennan delivered the opinion of the Court.
Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), overruled Monroe v. Pape, 365 U.S. 167 (1961), insofar as Monroe held that local governments were not among the "persons" to whom 42 U. S. C. § 1983 applies and were therefore wholly immune from suit under the statute. Monell reserved decision, however, on the question whether local governments, although not entitled to an absolute immunity, should be afforded some form of official immunity in § 1983 suits. 436 U.S., at 701. In this action brought by petitioner in the District Court for the Western District of Missouri, the Court of Appeals for the Eighth Circuit held that respondent city of Independence, Mo., "is entitled to qualified immunity from liability" based on the good faith of its officials: "We extend the limited immunity the district court applied to the individual defendants to cover the City as well, because its officials acted in good faith and without malice." 589 F.2d 335, 337-338 (1978). We granted certiorari. 444 U.S. 822 (1979). We reverse.
I
The events giving rise to this suit are detailed in the District Court's findings of fact, 421 F.Supp. 1110 (1976). On February 20, 1967, Robert L. Broucek, then City Manager of respondent city of Independence, Mo., appointed petitioner George D. Owen to an indefinite term as Chief of Police.2 In 1972, Owen and a new City Manager, Lyle W. Alberg, engaged in a dispute over petitioner's administration of the Police Department's property room. In March of that year, a handgun, which the records of the Department's property room stated had been destroyed, turned up in Kansas City in the possession of a felon. This discovery prompted Alberg to initiate an investigation of the management of the property room.
On the evening of April 17, 1972, the City Council held its regularly scheduled meeting. After completion of the planned agenda, Councilman Roberts read a statement he had prepared on the investigation. Among other allegations, Roberts charged that petitioner had misappropriated Police Department property for his own use, that narcotics and money had "mysteriously disappeared" from his office, that traffic tickets had been manipulated, that high ranking police officials had made "inappropriate" requests affecting the police court, and that "things have occurred causing the unusual release of felons." At the close of his statement, Roberts moved that the investigative reports be released to the news media and turned over to the prosecutor for presentation to the grand jury, and that the City Manager "take all direct and appropriate action" against those persons "involved in illegal, wrongful, or gross inefficient activities brought out in the investigative reports." After some discussion, the City Council passed Roberts' motion with no dissents and one abstention.6
City Manager Alberg discharged petitioner the very next day. Petitioner was not given any reason for his dismissal; he received only a written notice stating that his employment as Chief of Police was "[terminated] under the provisions of Section 3.3 (1) of the City Charter." Petitioner's earlier demand for a specification of charges and a public hearing was ignored, and a subsequent request by his attorney for an appeal of the discharge decision was denied by the city on the grounds that "there is no appellate procedure or forum provided by the Charter or ordinances of the City of Independence, Missouri, relating to the dismissal of Mr. Owen." App. 26-27.
The local press gave prominent coverage both to the City Council's action and petitioner's dismissal, linking the discharge to the investigation.8 As instructed by the City Council, Alberg referred the investigative reports and witness statements to the Prosecuting Attorney of Jackson County, Mo., for consideration by a grand jury. The results of the audit and investigation were never released to the public, however. The grand jury subsequently returned a "no true bill," and no further action was taken by either the City Council or City Manager Alberg.
II
Petitioner named the city of Independence, City Manager Alberg, and the present members of the City Council in their official capacities as defendants in this suit.9
Monell held that "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." 436 U.S., at 694. The Court of Appeals held in the instant case that the municipality's official policy was responsible for the deprivation of petitioner's constitutional rights: "[The] stigma attached to [petitioner] in connection with his discharge was caused by the official conduct of the City's lawmakers, or by those whose acts may fairly be said to represent official policy. Such conduct amounted to official policy causing the infringement of [petitioner's] constitutional rights, in violation of section 1983." 589 F.2d, at 337.13
Nevertheless, the Court of Appeals affirmed the judgment of the District Court denying petitioner any relief against the respondent city, stating:
We turn now to the reasons for our disagreement with this holding.
III
Because the question of the scope of a municipality's immunity from liability under § 1983 is essentially one of statutory construction, see Wood v. Strickland, 420 U.S. 308, 314, 316 (1975); Tenney v. Brandhove
Moreover, the congressional debates surrounding the passage of § 1 of the Civil Rights Act of 1871, 17 Stat. 13 -- the forerunner of § 1983 -- confirm the expansive sweep of the statutory language. Representative Shellabarger, the author and manager of the bill in the House, explained in his introductory remarks the breadth of construction that the Act was to receive:
Similar views of the Act's broad remedy for violations of federally protected rights were voiced by its supporters in both Houses of Congress. See Monell v. New York City Dept. of Social Services, 436 U.S., at 683-687.17
However, notwithstanding § 1983's expansive language and the absence of any express incorporation of common-law immunities, we have, on several occasions, found that a tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that "Congress would have specifically so provided had it wished to abolish the doctrine." Pierson v. Ray, 386 U.S. 547, 555 (1967).
In each of these cases, our finding of § 1983 immunity "was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it." Imbler v. Pachtman
Since colonial times, a distinct feature of our Nation's system of governance has been the conferral of political power upon public and municipal corporations for the management of matters of local concern. As Monell recounted, by 1871, municipalities -- like private corporations -- were treated as natural persons for virtually all purposes of constitutional and statutory analysis. In particular, they were routinely sued in both federal and state courts. See 436 U.S., at 687-688. Cf. Cowles v. Mercer County, 7 Wall. 118 (1869). Local governmental units were regularly held to answer in damages for a wide range of statutory and constitutional violations, as well as for common-law actions for breach of contract.19
As a general rule, it was understood that a municipality's tort liability in damages was identical to that of private corporations and individuals.
Under this general theory of liability, a municipality was deemed responsible for any private losses generated through a wide variety of its operations and functions, from personal injuries due to its defective sewers, thoroughfares, and public utilities, to property damage caused by its trespasses and uncompensated takings.
Yet in the hundreds of cases from that era awarding damages against municipal governments for wrongs committed by them, one searches in vain for much mention of a qualified immunity based on the good faith of municipal officers. Indeed, where the issue was discussed at all, the courts had rejected the proposition that a municipality should be privileged where it reasonably believed its actions to be lawful.
That municipal corporations were commonly held liable for damages in tort was also recognized by the 42d Congress. See Monell v. New York City Dept. of Social Services, 436 U.S., at 688. For example, Senator Stevenson, in opposing the Sherman amendment's creation of a municipal liability for the riotous acts of its inhabitants, stated the prevailing law: "Numberless cases are to be found where a statutory liability has been created against municipal corporations for injuries resulting from a neglect of corporate duty." Cong. Globe, 42d Cong., 1st Sess., 762 (hereinafter Globe).23
To be sure, there were two doctrines that afforded municipal corporations some measure of protection from tort liability. The first sought to distinguish between a municipality's "governmental" and "proprietary" functions; as to the former, the city was held immune, whereas in its exercise of the latter, the city was held to the same standards of liability as any private corporation. The second doctrine immunized a municipality for its "discretionary" or "legislative" activities, but not for those which were "ministerial" in nature. A brief examination of the application and the rationale underlying each of these doctrines demonstrates that Congress could not have intended them to limit a municipality's liability under § 1983.
The governmental-proprietary distinction26
That the municipality's common-law immunity for "governmental" functions derives from the principle of sovereign immunity also explains why that doctrine could not have served as the basis for the qualified privilege respondent city claims under § 1983. First, because sovereign immunity insulates the municipality from unconsented suits altogether, the presence or absence of good faith is simply irrelevant. The critical issue is whether injury occurred while the city was exercising governmental, as opposed to proprietary, powers or obligations -- not whether its agents reasonably believed they were acting lawfully in so conducting themselves.29
The second common-law distinction between municipal functions -- that protecting the city from suits challenging "discretionary" decisions -- was grounded not on the principle of sovereign immunity, but on a concern for separation of powers. A large part of the municipality's responsibilities involved broad discretionary decisions on issues of public policy -- decisions that affected large numbers of persons and called for a delicate balancing of competing considerations. For a court or jury, in the guise of a tort suit, to review the reasonableness of the city's judgment on these matters would be an infringement upon the powers properly vested in a coordinate and coequal branch of government. See Johnson v. State, 69 Cal. 2d 782, 794, n. 8, 447 P. 2d 352, 361, n. 8 (1968) (en banc) ("Immunity for 'discretionary' activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government"). In order to ensure against any invasion into the legitimate sphere of the municipality's policymaking processes, courts therefore refused to entertain suits against the city "either for the non-exercise of, or for the manner in which in good faith it exercises, discretionary powers of a public or legislative character." 2 Dillon § 753, at 862.31
Although many, if not all, of a municipality's activities would seem to involve at least some measure of discretion, the influence of this doctrine on the city's liability was not as significant as might be expected. For just as the courts implied an exception to the municipality's immunity for its "governmental" functions, here, too, a distinction was made that had the effect of subjecting the city to liability for much of its tortious conduct. While the city retained its immunity for decisions as to whether the public interest required acting in one manner or another, once any particular decision was made, the city was fully liable for any injuries incurred in the execution of its judgment. See, e. g., Hill v. Boston, 122 Mass. 344, 358-359 (1877) (dicta) (municipality would be immune from liability for damages resulting from its decision where to construct sewers, since that involved a discretionary judgment as to the general public interest; but city would be liable for neglect in the construction or repair of any particular sewer, as such activity is ministerial in nature). See generally C. Rhyne, Municipal Law § 30.4, pp. 736-737 (1957); Williams § 7. Thus municipalities remained liable in damages for a broad range of conduct implementing their discretionary decisions.
Once again, an understanding of the rationale underlying the common-law immunity for "discretionary" functions explains why that doctrine cannot serve as the foundation for a good-faith immunity under § 1983. That common-law doctrine merely prevented courts from substituting their own judgment on matters within the lawful discretion of the municipality. But a municipality has no "discretion" to violate the Federal Constitution; its dictates are absolute and imperative. And when a court passes judgment on the municipality's conduct in a § 1983 action, it does not seek to second-guess the "reasonableness" of the city's decision nor to interfere with the local government's resolution of competing policy considerations. Rather, it looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes. As was stated in Sterling v. Constantin
In sum, we can discern no "tradition so well grounded in history and reason" that would warrant the conclusion that in enacting § 1 of the Civil Rights Act, the 42d Congress sub silentio extended to municipalities a qualified immunity based on the good faith of their officers. Absent any clearer indication that Congress intended so to limit the reach of a statute expressly designed to provide a "broad remedy for violations of federally protected civil rights," Monell v. New York City Dept. of Social Services, 436 U.S., at 685, we are unwilling to suppose that injuries occasioned by a municipality's unconstitutional conduct were not also meant to be fully redressable through its sweep.32
B
Our rejection of a construction of § 1983 that would accord municipalities a qualified immunity for their good-faith constitutional violations is compelled both by the legislative purpose in enacting the statute and by considerations of public policy. The central aim of the Civil Rights Act was to provide protection to those persons wronged by the "'[misuse] of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Monroe v. Pape, 365 U.S., at 184 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). By creating an express federal remedy, Congress sought to "enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it." Monroe v. Pape, supra, at 172.
How "uniquely amiss" it would be, therefore, if the government itself -- "the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct" -- were permitted to disavow liability for the injury it has begotten. See Adickes v. Kress & Co.
Moreover, § 1983 was intended not only to provide compensationto the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well. See Robertson v. Wegmann
Our previous decisions conferring qualified immunities on various government officials, see supra, at 637-638, are not to be read as derogating the significance of the societal interest in compensating the innocent victims of governmental misconduct. Rather, in each case we concluded that overriding considerations of public policy nonetheless demanded that the official be given a measure of protection from personal liability. The concerns that justified those decisions, however, are less compelling, if not wholly inapplicable, when the liability of the municipal entity is at issue.37
In Scheuer v. Rhodes
"(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good."38
The first consideration is simply not implicated when the damages award comes not from the official's pocket, but from the public treasury. It hardly seems unjust to require a municipal defendant which has violated a citizen's constitutional rights to compensate him for the injury suffered thereby. Indeed, Congress enacted § 1983 precisely to provide a remedy for such abuses of official power. See Monroe v. Pape, 365 U.S., at 171-172. Elemental notions of fairness dictate that one who causes a loss should bear the loss.
It has been argued, however, that revenue raised by taxation for public use should not be diverted to the benefit of a single or discrete group of taxpayers, particularly where the municipality has at all times acted in good faith. On the contrary, the accepted view is that stated in Thayer v. Boston -- "that the city, in its corporate capacity, should be liable to make good the damage sustained by an [unlucky] individual, in consequence of the acts thus done." 36 Mass., at 515. After all, it is the public at large which enjoys the benefits of the government's activities, and it is the public at large which is ultimately responsible for its administration. Thus, even where some constitutional development could not have been foreseen by municipal officials, it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights, albeit newly recognized, have been violated. See generally 3 K. Davis, Administrative Law Treatise § 25.17 (1958 and Supp. 1970); Prosser § 131, at 978; Michelman, Property, Utility, and Fairness: Some Thoughts on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165 (1967).39
The second rationale mentioned in Scheuer also loses its force when it is the municipality, in contrast to the official, whose liability is at issue. At the heart of this justification for a qualified immunity for the individual official is the concern that the threat of personal monetary liability will introduce an unwarranted and unconscionable consideration into the decisionmaking process, thus paralyzing the governing official's decisiveness and distorting his judgment on matters of public policy.40
IV
In sum, our decision holding that municipalities have no immunity from damages liability flowing from their constitutional violations harmonizes well with developments in the common law and our own pronouncements on official immunities under § 1983. Doctrines of tort law have changed significantly over the past century, and our notions of governmental responsibility should properly reflect that evolution. No longer is individual "blameworthiness" the acid test of liability; the principle of equitable loss-spreading has joined fault as a factor in distributing the costs of official misconduct.
We believe that today's decision, together with prior precedents in this area, properly allocates these costs among the three principals in the scenario of the § 1983 cause of action: the victim of the constitutional deprivation; the officer whose conduct caused the injury; and the public, as represented by the municipal entity. The innocent individual who is harmed by an abuse of governmental authority is assured that he will be compensated for his injury. The offending official, so long as he conducts himself in good faith, may go about his business secure in the knowledge that a qualified immunity will protect him from personal liability for damages that are more appropriately chargeable to the populace as a whole. And the public will be forced to bear only the costs of injury inflicted by the "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Monell v. New York City Dept. of Social Services, 436 U.S., at 694.
Reversed.
Mr. Justice Powell, with whom the Chief Justice, Mr. Justice Stewart, and Mr. Justice Rehnquist join, dissenting.
The Court today holds that the city of Independence may be liable in damages for violating a constitutional right that was unknown when the events in this case occurred. It finds a denial of due process in the city's failure to grant petitioner a hearing to clear his name after he was discharged. But his dismissal involved only the proper exercise of discretionary powers according to prevailing constitutional doctrine. The city imposed no stigma on petitioner that would require a "name clearing" hearing under the Due Process Clause.
On the basis of this alleged deprivation of rights, the Court interprets 42 U. S. C. § 1983 to impose strict liability on municipalities for constitutional violations. This strict liability approach inexplicably departs from this Court's prior decisions under § 1983 and runs counter to the concerns of the 42d Congress when it enacted the statute. The Court's ruling also ignores the vast weight of common-law precedent as well as the current state law of municipal immunity. For these reasons, and because this decision will hamper local governments unnecessarily, I dissent.
Having constructed a constitutional deprivation from the valid exercise of governmental authority, the Court holds that municipalities are strictly liable for their constitutional torts.
After today's decision, municipalities will have gone in two short years from absolute immunity under § 1983 to strict liability. As a policy matter, I believe that strict municipal liability unreasonably subjects local governments to damages judgments for actions that were reasonable when performed. It converts municipal governance into a hazardous slalom through constitutional obstacles that often are unknown and unknowable.
The Court's decision also impinges seriously on the prerogatives of municipal entities created and regulated primarily by the States. At the very least, this Court should not initiate a federal intrusion of this magnitude in the absence of explicit congressional action. Yet today's decision is supported by nothing in the text of § 1983. Indeed, it conflicts with the apparent intent of the drafters of the statute, with the common law of municipal tort liability, and with the current state law of municipal immunities.
Important public policies support the extension of qualified immunity to local governments. First, as recognized by the doctrine of separation of powers, some governmental decisions should be at least presumptively insulated from judicial review. Mr. Chief Justice Marshall wrote in Marbury v. Madison, 1 Cranch 137, 170 (1803), that "[the] province of the court is . . . not to inquire how the executive, or executive officers, perform duties in which they have a discretion." Marshall stressed the caution with which courts must approach "[questions], in their nature political, or which are, by the constitution and laws, submitted to the executive." The allocation of public resources and the operational policies of the government itself are activities that lie peculiarly within the competence of executive and legislative bodies. When charting those policies, a local official should not have to gauge his employer's possible liability under § 1983 if he incorrectly -- though reasonably and in good faith -- forecasts the course of constitutional law. Excessive judicial intrusion into such decisions can only distort municipal decisionmaking and discredit the courts. Qualified immunity would provide presumptive protection for discretionary acts, while still leaving the municipality liable for bad faith or unreasonable constitutional deprivations.
Because today's decision will inject constant consideration of § 1983 liability into local decisionmaking, it may restrict the independence of local governments and their ability to respond to the needs of their communities. Only this Term, we noted that the "point" of immunity under § 1983 "is to forestall an atmosphere of intimidation that would conflict with [officials'] resolve to perform their designated functions in a principled fashion." Ferri v. Ackerman
The Court now argues that local officials might modify their actions unduly if they face personal liability under § 1983, but that they are unlikely to do so when the locality itself will be held liable. Ante, at 655-656. This contention denigrates the sense of responsibility of municipal officers, and misunderstands the political process. Responsible local officials will be concerned about potential judgments against their municipalities for alleged constitutional torts. Moreover, they will be accountable within the political system for subjecting the municipality to adverse judgments. If officials must look over their shoulders at strict municipal liability for unknowable constitutional deprivations, the resulting degree of governmental paralysis will be little different from that caused by fear of personal liability. Cf. Wood v. Strickland, 420 U.S., at 319-320; Scheuer v. Rhodes
In addition, basic fairness requires a qualified immunity for municipalities. The good-faith defense recognized under § 1983 authorizes liability only when officials acted with malicious intent or when they "knew or should have known that their conduct violated the constitutional norm." Procunier v. Navarette, 434 U.S., at 562. The standard incorporates the idea that liability should not attach unless there was notice that a constitutional right was at risk. This idea applies to governmental entities and individual officials alike. Constitutional law is what the courts say it is, and -- as demonstrated by today's decision and its precursor, Monell -- even the most prescient lawyer would hesitate to give a firm opinion on matters not plainly settled. Municipalities, often acting in the utmost good faith, may not know or anticipate when their action or inaction will be deemed a constitutional violation.10
The Court nevertheless suggests that, as a matter of social justice, municipal corporations should be strictly liable even if they could not have known that a particular action would violate the Constitution. After all, the Court urges, local governments can "spread" the costs of any judgment across the local population. Ante, at 655. The Court neglects, however, the fact that many local governments lack the resources to withstand substantial unanticipated liability under § 1983. Even enthusiastic proponents of municipal liability have conceded that ruinous judgments under the statute could imperil local governments. E. g., Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv. L. Rev. 922, 958 (1976).11
B
The Court searches at length -- and in vain -- for legal authority to buttress its policy judgment. Despite its general statements to the contrary, the Court can find no support for its position in the debates on the civil rights legislation that included § 1983. Indeed, the legislative record suggests that the Members of the 42d Congress would have been dismayed by this ruling. Nor, despite its frequent citation of authorities that are only marginally relevant, can the Court rely on the traditional or current law of municipal tort liability. Both in the 19th century and now, courts and legislatures have recognized the importance of limiting the liability of local governments for official torts. Each of these conventional sources of law points to the need for qualified immunity for local governments.
1
The modern dispute over municipal liability under § 1983 has focused on the defeat of the Sherman amendment during the deliberations on the Civil Rights Act of 1871.
Because Senator Sherman initially proposed strict municipal liability for constitutional torts, the discussion of his amendment offers an invaluable insight into the attitudes of his colleagues on the question now before the Court. Much of the resistance to the measure flowed from doubts as to Congress' power to impose vicarious liability on local governments. Monell v. New York City Dept. of Social Services, 436 U.S., at 673-683; id., at 706 (Powell, J., concurring). But opponents of the amendment made additional arguments that strongly support recognition of qualified municipal immunity under § 1983.
First, several legislators expressed trepidation that the proposal's strict liability approach could bankrupt local governments.
Most significant, the opponents objected to liability imposed without any showing that a municipality knew of an impending constitutional deprivation.
Alleging that he was discharged without notice of reasons and without a hearing in violation of his constitutional rights to procedural and substantive due process, petitioner sought declaratory and injunctive relief, including a hearing on his discharge, backpay from the date of discharge, and attorney's fees.
"The Supreme Court's decisions in Board of Regents v. Roth, 408 U.S. 564 . . . (1972), and Perry v. Sindermann, 408 U.S. 593 . . . (1972), crystallized the rule establishing the right to a name-clearing hearing for a government employee allegedly stigmatized in the course of his discharge. The Court decided those two cases two months after the discharge in the instant case. Thus, officials of the City of Independence could not have been aware of [petitioner's] right to a name-clearing hearing in connection with the discharge. The City of Independence should not be charged with predicting the future course of constitutional law. We extend the limited immunity the district court applied to the individual defendants to cover the City as well, because its officials acted in good faith and without malice. We hold the City not liable for actions it could not reasonably have known violated [petitioner's] constitutional rights." Id., at 338 (footnote and citations omitted).
, 341 U.S. 367, 376 (1951), the starting point in our analysis must be the language of the statute itself. Andrus v. Allard, 444 U.S. 51, 56 (1979); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring). By its terms, § 1983 "creates a species of tort liability that on its face admits of no immunities." Imbler v. Pachtman, 424 U.S. 409, 417 (1976). Its language is absolute and unqualified; no mention is made of any privileges, immunities, or defenses that may be asserted. Rather, the Act imposes liability upon "every person" who, under color of state law or custom, "subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." And Monell held that these words were intended to encompass municipal corporations as well as natural "persons."
"I have a single remark to make in regard to the rule of interpretation of those provisions of the Constitution under which all the sections of the bill are framed. This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people."
Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871) (hereinafter Globe App.).
Imbler v. Pachtman, supra, at 421. Where the immunity claimed by the defendant was well established at common law at the time § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act, we have construed the statute to incorporate that immunity. But there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify the qualified immunity accorded the city of Independence by the Court of Appeals. We hold, therefore, that the municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983.18
And although, as we discuss below, a municipality was not subject to suit for all manner of tortious conduct, it is clear that at the time § 1983 was enacted, local governmental bodies did not enjoy the sort of "good-faith" qualified immunity extended to them by the Court of Appeals.
Nowhere in the debates, however, is there a suggestion that the common law excused a city from liability on account of the good faith of its authorized agents, much less an indication of a congressional intent to incorporate such an immunity into the Civil Rights Act.24 The absence of any allusion to a municipal immunity assumes added significance in light of the objections raised by the opponents of § 1 of the Act that its unqualified language could be interpreted to abolish the traditional good-faith immunities enjoyed by legislators, judges, governors, sheriffs, and other public officers.25 Had there been a similar common-law immunity for municipalities, the bill's opponents doubtless would have raised the specter of its destruction, as well.
owed its existence to the dual nature of the municipal corporation. On the one hand, the municipality was a corporate body, capable of performing the same "proprietary" functions as any private corporation, and liable for its torts in the same manner and to the same extent, as well. On the other hand, the municipality was an arm of the State, and when acting in that "governmental" or "public" capacity, it shared the immunity traditionally accorded the sovereign. But the principle of sovereign immunity -- itself a somewhat arid fountainhead for municipal immunity28 -- is necessarily nullified when the State expressly or impliedly allows itself, or its creation, to be sued. Municipalities were therefore liable not only for their "proprietary" acts, but also for those "governmental" functions as to which the State had withdrawn their immunity. And, by the end of the 19th century, courts regularly held that in imposing a specific duty on the municipality either in its charter or by statute, the State had impliedly withdrawn the city's immunity from liability for the nonperformance or misperformance of its obligation. See, e. g., Weightman v. The Corporation of Washington, 1 Black 39, 50-52 (1862); Providence v. Clapp, 17 How. 161, 167-169 (1855). See generally Shearman & Redfield §§ 122-126; Note, Liability of Cities for the Negligence and Other Misconduct of their Officers and Agents, 30 Am. St. Rep. 376, 385 (1893). Thus, despite the nominal existence of an immunity for "governmental" functions, municipalities were found liable in damages in a multitude of cases involving such activities.
More fundamentally, however, the municipality's "governmental" immunity is obviously abrogated by the sovereign's enactment of a statute making it amenable to suit. Section 1983 was just such a statute. By including municipalities within the class of "persons" subject to liability for violations of the Federal Constitution and laws, Congress -- the supreme sovereign on matters of federal law30 -- abolished whatever vestige of the State's sovereign immunity the municipality possessed.
, 287 U.S. 378, 398 (1932): "When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression."
, 398 U.S. 144, 190 (1970) (opinion of Brennan, J.). A damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees, and the importance of assuring its efficacy is only accentuated when the wrongdoer is the institution that has been established to protect the very rights it has transgressed. Yet owing to the qualified immunity enjoyed by most government officials, see Scheuer v. Rhodes, 416 U.S. 232 (1974), many victims of municipal malfeasance would be left remediless if the city were also allowed to assert a good-faith defense. Unless countervailing considerations counsel otherwise, the injustice of such a result should not be tolerated.33
, 436 U.S. 584, 590-591 (1978); Carey v. Piphus, 435 U.S. 247, 256-257 (1978). The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens' constitutional rights.34 Furthermore, the threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights.35 Such procedures are particularly beneficial in preventing those "systemic" injuries that result not so much from the conduct of any single individual, but from the interactive behavior of several government officials, each of whom may be acting in good faith. Cf. Note, Developments in the Law: Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1218-1219 (1977).36
, supra, at 240, the Chief Justice identified the two "mutually dependent rationales" on which the doctrine of official immunity rested:
The inhibiting effect is significantly reduced, if not eliminated, however, when the threat of personal liability is removed. First, as an empirical matter, it is questionable whether the hazard of municipal loss will deter a public officer from the conscientious exercise of his duties; city officials routinely make decisions that either require a large expenditure of municipal funds or involve a substantial risk of depleting the public fisc. See Kostka v. Hogg, 560 F.2d 37, 41 (CA1 1977). More important, though, is the realization that consideration of the municipality's liability for constitutional violations is quite properly the concern of its elected or appointed officials. Indeed, a decisionmaker would be derelict in his duties if, at some point, he did not consider whether his decision comports with constitutional mandates and did not weigh the risk that a violation might result in an award of damages from the public treasury. As one commentator aptly put it: "Whatever other concerns should shape a particular official's actions, certainly one of them should be the constitutional rights of individuals who will be affected by his actions. To criticize section 1983 liability because it leads decisionmakers to avoid the infringement of constitutional rights is to criticize one of the statute's raisons d'etre."41
, 444 U.S. 193, 203-204 (1979).
, 416 U.S., at 242.9
By simplistically applying the theorems of welfare economics and ignoring the reality of municipal finance, the Court imposes strict liability on the level of government least able to bear it.12 For some municipalities, the result could be a severe limitation on their ability to serve the public.
Owen v. City of Independence, Missouri Briefs |
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Notes on Owen v. City of Independence, Missouri |
In Howlett v. Rose, 496 U.S. 356 (1990), a student joined a Section 1983 claim with other state law claims filed in a Florida court against a school board arising out of the search of the student’s car. The Florida Court of Appeals affirmed dismissal of the Section 1983 count. The Florida statutory waiver of sovereign immunity rendered the school board amenable to suit for state law claims; the waiver, however, did not extend to Section 1983 actions.
In a unanimous opinion, the United States Supreme Court reversed:
If the District Court of Appeal meant to hold that governmental entities subject to § 1983 liability enjoy an immunity over and above those already provided in § 1983, that holding directly violates federal law. The elements of, and the defenses to, a federal cause of action are defined by federal law.
* * * * * Federal law makes governmental defendants that are not arms of the State, such as municipalities, liable for their constitutional violations. . .To the extent that the Florida law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities should be held liable for their constitutional violations, that disagreement cannot override the dictates of federal law. Congress surely did not intend to assign to state courts and legislatures a conclusive role in the formative function of defining and characterizing the essential elements of a federal cause of action. Wilson v. Garcia, 471 U.S. 261, 269, 85 L.Ed.2d 254, 105 S. Ct. 1938 (1985).
If, on the other hand, the District Court of Appeal meant that § 1983 claims are excluded from the category of tort claims that the Circuit Court could hear against a school board, its holding was no less violative of federal law. Cf. Atlantic Coast Line R. Co. v. Burnette, 239 U.S. 199, 201, 60 L.Ed. 226, 36 S. Ct. 75 (1915). This case does not present the questions whether Congress can require the States to create a forum with the capacity to enforce federal statutory rights or to authorize service of process on parties who would not otherwise be subject to the court’s jurisdiction. The State of Florida has constituted the Circuit Court for Pinellas County as a court of general jurisdiction. It exercises jurisdiction over tort claims by private citizens against state entities (including school boards), of the size and type of petitioner’s claim here, and it can enter judgment against them. That court also exercises jurisdiction over § 1983 actions against individual officers and is fully competent to provide the remedies the federal statute requires. Cf. Sullivan v. Little Hunting Park, Inc. 396 U.S. 229, 238, 24 L.Ed.2d 386, 90 S. Ct. 400 (1969). Petitioner has complied with all the state law procedures for invoking the jurisdiction of that court.
The mere facts, as argued by respondent’s amici, that state common law and statutory law do not make unlawful the precise conduct that § 1983 addresses and that § 1983 actions are more likely to be frivolous than are other suits, Brief for Washington Legal Foundation et. al. as Amici Curiae 17, clearly cannot provide sufficient justification for the State’s refusal to entertain such actions. These reasons. . .are not the kind of neutral policy that could be a valid excuse for the state court’s refusal to entertain federal actions. To the extent that the Florida rule is based upon the judgment that parties who are otherwise subject to the jurisdiction of the court should not be held liable for activity that would not subject them to liability under state law, we understand that to be only another way of saying that the court disagrees with the content of federal law.
The argument by amici that suits predicated on federal law are more likely to be frivolous and have less of an entitlement to the State’s limited judicial resources warrants little response. A State may adopt neutral procedural rules to discourage frivolous litigation of all kinds, as long as those rules are not pre-empted by a valid federal law. A State may not, however, relieve congestion in its courts by declaring a whole category of federal claims to be frivolous. Until it has been proven that the claim has no merit, that judgment is not up to the States to make.
* * * * * Respondent offers two final arguments in support of the judgment of the District Court of Appeal. First. . .it argued that a federal court has no power to compel a state court to entertain a claim over which the state court has no jurisdiction as a matter of state law. Second, respondent argues that sovereign immunity is not a creature of state law, but of long-established legal principles which have not been set aside by § 1983. We find no merit in these contentions.
The fact that a rule is denominated jurisdictional does not provide a court an excuse to avoid the obligation to enforce federal law if the rule does not reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect. . .A State cannot escape this constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent. Hughes, 341 U.S., at 611, 95 L.Ed. 1212, 71 S. Ct. 980. Similarly, a State may not evade the strictures of the Privileges and Immunities Clause by denying jurisdiction to a court otherwise competent. . .[T]he same is true with respect to a state court’s obligations under the Supremacy Clause. The force of the Supremacy Clause is not so weak that it can be evaded by mere mention of the word jurisdiction.
* * * * * Respondent’s argument that Congress did not intend to abrogate an immunity with an ancient common law heritage is the same argument, in slightly different dress, as the argument that we have already rejected that the States are free to redefine the federal cause of action. Congress did take common law principles into account in providing certain forms of absolute and qualified immunity. . .But as to persons that Congress subjected to liability, individual states may not exempt such persons from federal liability by relying on their own common law heritage. If we were to uphold the immunity claim in this case, every State would have the same opportunity to extend the mantle of sovereign immunity to persons who would otherwise be subject to § 1983 liability. States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People.
, 102 F.3d 96 (3rd Cir. 1996), the United States Court of Appeals for the Third Circuit joined its sister circuits in refusing to carve an exception to the Owen Court’s repudiation of immunity:
Local governments, unlike individual legislators, should be held liable for the losses they cause. Moreover, a doctrine of legislative immunity for local governments might have the undesirable effect of encouraging a county council to adopt all of its policies through a series of legislative actions passed by a newly created Board or Council.
* * * * * [B]ecause a legislator’s own money is not at risk, county liability does not distract the legislator from his job of serving the community’s interests. True, the legislator must contend with lawsuits brought against the county, but that distraction is borne equally by the local populace as a whole (at least in tax dollars) and not by any particular individual. If a county council forgoes enactment of legislation because it fears potential liability for the county under § 1983, its decision reflects a rational calculation that, whatever a given policy’s benefits, its risk of liability outweighs its collective benefit to the community. This is exactly the type of reckoning we want to encourage our legislators to make.
Defendants argue, however, that legislative immunity for the county is necessary to protect legislators from judicial inquiry into their motives in enacting legislation. This argument lacks weight given the intent-based inquiry of certain doctrines of Constitutional law. Developments in federal law over the last 30 years have tied the constitutionality of many types of municipal legislation directly to the purpose and motive of the legislation. Goldberg v. Town of Rocky Hill, 973 F.2d 70, 75 (2d Cir. 1992)(citing cases). For better or worse, lawsuits concerning constitutional matters such as equal protection, the First Amendment, and substantive due process all require judicial inquiry of the legislator’s motive. See Arlington Heights v. Metropolitan Housing Development Corp.
102 F.3d at 103-04.
The facts of Monell readily satisfied these requirements because defendants conceded that an express policy commanded the premature medical leaves that were found to be unconstitutional. The Monell Court therefore had no occasion to address...what the full contours of municipal liability under Section 1983 may be. Monell, 436 U.S. at 695.
Owen similarly presented no dispute over whether the constitutional violation was caused by municipal policy. The City Council formally adopted the resolution that authorized dismissal of Chief of Police Owen. City Manager Alberg discharged Owen the day after the City Council’s action. In addition, the city charter conferred sole authority upon the City Manager to fire the Chief of Police.
Difficult questions of local governmental liability are posed where, unlike Monell and Owen, there is no express policy at issue. May actions of the municipality, that are not formally promulgated nonetheless constitute policy? Under what circumstances may constitutional deprivations be said to result from governmental custom?
Additional complications arise where the conduct found to contravene constitutional norms is not mandated by the policy or custom. Must the plaintiff prove that the policy authorized the precise actions in issue? Is the municipality liable if the policy increased the likelihood that the violation would occur? Can the municipality be found to have caused the deprivation where it failed to proscribe or prevent the conduct?
In Tuttle, a jury returned a $1,500,000 judgment against the city for the fatal shooting of plaintiff’s husband by an Oklahoma City police officer. The trial court had instructed the jury that it could find the city liable for a deficient policy of training and supervising police officers, and that this policy could be established by proof of a single, unusually excessive use of force.
A majority of the Court agreed that the jury instruction was erroneous insofar as it permitted an inference of policy solely from the actions of a low-level police officer on a single occasion. However, no majority view emerged as to when a single instance of misconduct could constitute policy or whether a local governmental entity could be held liable for failure to train.
Justice Rehnquist expressly declined to assess a) whether inadequate training ever could constitute policy, or b) assuming failure to train could satisfy Monell’s policy requirement, whether plaintiff would have to prove a conscious decision, beyond gross negligence, to prevail. 471 U.S. at 824, n.7.
, 471 U.S. 808, 810 (1985) it purported to take a small but necessary step toward defining those contours.
Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the policy and the constitutional deprivation.
471 U.S. at 823-24.
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Pembaur v. City of Cincinnati |
Justice Brennan delivered the opinion of the Court, except as to Part II-B.
In Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), the Court concluded that municipal liability under 42 U. S. C. § 1983 is limited to deprivations of federally protected rights caused by action taken "pursuant to official municipal policy of some nature . . . ." Id., at 691. The question presented is whether, and in what circumstances, a decision by municipal policymakers on a single occasion may satisfy this requirement.
I
Bertold Pembaur is a licensed Ohio physician and the sole proprietor of the Rockdale Medical Center, located in the city of Cincinnati in Hamilton County. Most of Pembaur's patients are welfare recipients who rely on government assistance to pay for medical care. During the spring of 1977, Simon Leis, the Hamilton County Prosecutor, began investigating charges that Pembaur fraudulently had accepted payments from state welfare agencies for services not actually provided to patients. A grand jury was convened, and the case was assigned to Assistant Prosecutor William Whalen. In April, the grand jury charged Pembaur in a six-count indictment.
During the investigation, the grand jury issued subpoenas for the appearance of two of Pembaur's employees. When these employees failed to appear as directed, the Prosecutor obtained capiases for their arrest and detention from the Court of Common Pleas of Hamilton County.13
On May 19, 1977, two Hamilton County Deputy Sheriffs attempted to serve the capiases at Pembaur's clinic. Although the reception area is open to the public, the rest of the clinic may be entered only through a door next to the receptionist's window. Upon arriving, the Deputy Sheriffs identified themselves to the receptionist and sought to pass through this door, which was apparently open. The receptionist blocked their way and asked them to wait for the doctor. When Pembaur appeared a moment later, he and the receptionist closed the door, which automatically locked from the inside, and wedged a piece of wood between it and the wall. Returning to the receptionist's window, the Deputy Sheriffs identified themselves to Pembaur, showed him the capiases and explained why they were there. Pembaur refused to let them enter, claiming that the police had no legal authority to be there and requesting that they leave. He told them that he had called the Cincinnati police, the local media, and his lawyer. The Deputy Sheriffs decided not to take further action until the Cincinnati police arrived.
Shortly thereafter, several Cincinnati police officers appeared. The Deputy Sheriffs explained the situation to them and asked that they speak to Pembaur. The Cincinnati police told Pembaur that the papers were lawful and that he should allow the Deputy Sheriffs to enter. When Pembaur refused, the Cincinnati police called for a superior officer. When he too failed to persuade Pembaur to open the door, the Deputy Sheriffs decided to call their supervisor for further instructions. Their supervisor told them to call Assistant Prosecutor Whalen and to follow his instructions. The Deputy Sheriffs then telephoned Whalen and informed him of the situation. Whalen conferred with County Prosecutor Leis, who told Whalen to instruct the Deputy Sheriffs to "go in and get [the witnesses]." Whalen in turn passed these instructions along to the Deputy Sheriffs.
After a final attempt to persuade Pembaur voluntarily to allow them to enter, the Deputy Sheriffs tried unsuccessfully to force the door. City police officers, who had been advised of the County Prosecutor's instructions to "go in and get" the witnesses, obtained an axe and chopped down the door. The Deputy Sheriffs then entered and searched the clinic. Two individuals who fit descriptions of the witnesses sought were detained, but turned out not to be the right persons.
After this incident, the Prosecutor obtained an additional indictment against Pembaur for obstructing police in the performance of an authorized act. Although acquitted of all other charges, Pembaur was convicted for this offense. The Ohio Court of Appeals reversed, reasoning that Pembaur was privileged under state law to exclude the deputies because the search of his office violated the Fourth Amendment. State v. Pembaur, No. C-790380 (Hamilton County Court of Appeals, Nov. 3, 1982). The Ohio Supreme Court reversed and reinstated the conviction. State v. Pembaur, 9 Ohio St. 3d 136, 459 N. E. 2d 217, cert. denied, 467 U.S. 1219 (1984). The Supreme Court held that the state-law privilege applied only to bad-faith conduct by law enforcement officials, and that, under the circumstances of this case, Pembaur was obliged to acquiesce to the search and seek redress later in a civil action for damages. 9 Ohio St. 3d, at 138, 459 N. E. 2d, at 219.
On April 20, 1981, Pembaur filed the present action in the United States District Court for the Southern District of Ohio against the city of Cincinnati, the County of Hamilton, the Cincinnati Police Chief, the Hamilton County Sheriff, the members of the Hamilton Board of County Commissioners (in their official capacities only), Assistant Prosecutor Whalen, and nine city and county police officers.14
Much of the testimony at the 4-day trial concerned the practices of the Hamilton County Police in serving capiases. Frank Webb, one of the Deputy Sheriffs present at the clinic on May 19, testified that he had previously served capiases on the property of third persons without a search warrant, but had never been required to use force to gain access. Assistant Prosecutor Whalen was also unaware of a prior instance in which police had been denied access to a third person's property in serving a capias and had used force to gain entry. Lincoln Stokes, the County Sheriff, testified that the Department had no written policy respecting the serving of capiases on the property of third persons and that the proper response in any given situation would depend upon the circumstances. He too could not recall a specific instance in which entrance had been denied and forcibly gained. Sheriff Stokes did testify, however, that it was the practice in his Department to refer questions to the County Prosecutor for instructions under appropriate circumstances and that "it was the proper thing to do" in this case.
The District Court awarded judgment to the defendants and dismissed the complaint in its entirety. The court agreed that the entry and search of Pembaur's clinic violated the Fourth Amendment under Steagald, supra, but held Steagald inapplicable since it was decided nearly four years after the incident occurred. Because it construed the law in the Sixth Circuit in 1977 to permit law enforcement officials to enter the premises of a third person to serve a capias, the District Court held that the individual municipal officials were all immune under Harlow v. Fitzgerald, 457 U.S. 800 (1982).
The claims against the county and the city were dismissed on the ground that the individual officers were not acting pursuant to the kind of "official policy" that is the predicate for municipal liability under Monell. With respect to Hamilton County, the court explained that, even assuming that the entry and search were pursuant to a governmental policy, "it was not a policy of Hamilton County per se" because "[the] Hamilton County Board of County Commissioners, acting on behalf of the county, simply does not establish or control the policies of the Hamilton County Sheriff." With respect to the city of Cincinnati, the court found that "the only policy or custom followed . . . was that of aiding County Sheriff's Deputies in the performance of their duties." The court found that any participation by city police in the entry and search of the clinic resulted from decisions by individual officers as to the permissible scope of assistance they could provide, and not from a city policy to provide this particular kind of assistance.
On appeal, Pembaur challenged only the dismissal of his claims against Whalen, Hamilton County, and the city of Cincinnati. The Court of Appeals for the Sixth Circuit upheld the dismissal of Pembaur's claims against Whalen and Hamilton County, but reversed the dismissal of his claim against the city of Cincinnati on the ground that the District Court's findings concerning the policies followed by the Cincinnati police were clearly erroneous. 746 F.2d 337 (1984).15
The Court of Appeals affirmed the District Court's dismissal of Pembaur's claim against Hamilton County, but on different grounds. The court held that the County Board's lack of control over the Sheriff would not preclude county liability if "the nature and duties of the Sheriff are such that his acts may fairly be said to represent the county's official policy with respect to the specific subject matter." Id., at 340-341. Based upon its examination of Ohio law, the Court of Appeals found it "[clear]" that the Sheriff and the Prosecutor were both county officials authorized to establish "the official policy of Hamilton County" with respect to matters of law enforcement. Id., at 341. Notwithstanding these conclusions, however, the court found that Pembaur's claim against the county had been properly dismissed:
"We believe that Pembaur failed to prove the existence of a county policy in this case. Pembaur claims that the deputy sheriffs acted pursuant to the policies of the Sheriff and Prosecutor by forcing entry into the medical center. Pembaur has failed to establish, however, anything more than that, on this one occasion, the Prosecutor and the Sheriff decided to force entry into his office. . . . That single, discrete decision is insufficient, by itself, to establish that the Prosecutor, the Sheriff, or both were implementing a governmental policy." Ibid. (footnote omitted) (emphasis in original).
Pembaur petitioned for certiorari to review only the dismissal of his claim against Hamilton County. The decision of the Court of Appeals conflicts with holdings in several other Courts of Appeals, and we granted the petition to resolve the conflict. 472 U.S. 1016 (1985).
We reverse.
II
A
Our analysis must begin with the proposition that "Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. New York City Dept. of Social Services, 436 U.S., at 691. As we read its opinion, the Court of Appeals held that a single decision to take particular action, although made by municipal policymakers, cannot establish the kind of "officialpolicy" required by Monell as a predicate to municipal liability under § 1983.6
Monell is a case about responsibility. In the first part of the opinion, we held that local government units could be made liable under § 1983 for deprivations of federal rights, overruling a contrary holding in Monroe v. Pape, 365 U.S. 167 (1961). In the second part of the opinion, we recognized a limitation on this liability and concluded that a municipality cannot be made liable by application of the doctrine of respondeat superior. See Monell, 436 U.S., at 691. In part, this conclusion rested upon the language of § 1983, which imposes liability only on a person who "subjects, or causes to be subjected," any individual to a deprivation of federal rights; we noted that this language "cannot easily be read to impose liability vicariously on government bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor." Id., at 692. Primarily, however, our conclusion rested upon the legislative history, which disclosed that, while Congress never questioned its power to impose civil liability on municipalities for their own illegal acts, Congress did doubt its constitutional power to impose such liability in order to oblige municipalities to control the conduct of others. Id., at 665-683. We found that, because of these doubts, Congress chose not to create such obligations in § 1983. Recognizing that this would be the effect of a federal law of respondent superior, we concluded that § 1983 could not be interpreted to incorporate doctrines of vicarious liability. Id., at 692-694, and n. 57.
The conclusion that tortious conduct, to be the basis for municipal liability under § 1983, must be pursuant to a municipality's "official policy" is contained in this discussion. The "official policy" requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible. Monell reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts "of the municipality" -- that is, acts which the municipality has officially sanctioned or ordered.
With this understanding, it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances. No one has ever doubted, for instance, that a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body -- whether or not that body had taken similar action in the past or intended to do so in the future -- because even a single decision by such a body unquestionably constitutes an act of official government policy. See, e. g., Owen v. City of Independence, 445 U.S. 622 (1980) (City Council passed resolution firing plaintiff without a pretermination hearing); Newport v. Fact Concerts, Inc.
Indeed, any other conclusion would be inconsistent with the principles underlying § 1983. To be sure, "official policy" often refers to formal rules or understandings -- often but not always committed to writing -- that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time. That was the case in Monell itself, which involved a written rule requiring pregnant employees to take unpaid leaves of absence before such leaves were medically necessary. However, as in Owen and Newport, a government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government "policy" as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly. To deny compensation to the victim would therefore be contrary to the fundamental purpose of § 1983.
B
Having said this much, we hasten to emphasize that not every decision by municipal officers automatically subjects the municipality to § 1983 liability. Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.10
C
Applying this standard to the case before us, we have little difficulty concluding that the Court of Appeals erred in dismissing petitioner's claim against the county. The Deputy Sheriffs who attempted to serve the capiases at petitioner's clinic found themselves in a difficult situation. Unsure of the proper course of action to follow, they sought instructions from their supervisors. The instructions they received were to follow the orders of the County Prosecutor. The Prosecutor made a considered decision based on his understanding of the law and commanded the officers forcibly to enter petitioner's clinic. That decision directly caused the violation of petitioner's Fourth Amendment rights.
Respondent argues that the County Prosecutor lacked authority to establish municipal policy respecting law enforcement practices because only the County Sheriff may establish policy respecting such practices. Respondent suggests that the County Prosecutor was merely rendering "legal advice" when he ordered the Deputy Sheriffs to "go in and get" the witnesses. Consequently, the argument concludes, the action of the individual Deputy Sheriffs in following this advice and forcibly entering petitioner's clinic was not pursuant to a properly established municipal policy.
We might be inclined to agree with respondent if we thought that the Prosecutor had only rendered "legal advice." However, the Court of Appeals concluded, based upon its examination of Ohio law, that both the County Sheriff and the County Prosecutor could establish county policy under appropriate circumstances, a conclusion that we do not question here. Ohio Rev. Code Ann. § 309.09(A) (1979) provides that county officers may "require . . . instructions from [the County Prosecutor] in matters connected with their official duties." Pursuant to standard office procedure, the Sheriff's Office referred this matter to the Prosecutor and then followed his instructions. The Sheriff testified that his Department followed this practice under appropriate circumstances and that it was "the proper thing to do" in this case. We decline to accept respondent's invitation to overlook this delegation of authority by disingenuously labeling the Prosecutor's clear command mere "legal advice." In ordering the Deputy Sheriffs to enter petitioner's clinic the County Prosecutor was acting as the final decisionmaker for the county, and the county may therefore be held liable under § 1983.
The decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice White, concurring.
The forcible entry made in this case was not then illegal under federal, state, or local law. The city of Cincinnati frankly conceded that forcible entry of third-party property to effect otherwise valid arrests was standard operating procedure. There is no reason to believe that respondent county would abjure using lawful means to execute the capiases issued in this case or had limited the authority of its officers to use force in executing capiases. Further, the county officials who had the authority to approve or disapprove such entries opted for the forceful entry, a choice that was later held to be inconsistent with the Fourth Amendment. Vesting discretion in its officers to use force and its use in this case sufficiently manifested county policy to warrant reversal of the judgment below.
This does not mean that every act of municipal officers with final authority to effect or authorize arrests and searches represents the policy of the municipality. It would be different if Steagald v. United States
Such results would not conform to Monell and the cases following it. I do not understand the Court to hold otherwise in stating that municipal liability attaches 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." Ante, at 483-484. A sheriff, for example, is not the final policymaker with respect to the probable-cause requirement for a valid arrest. He has no alternative but to act in accordance with the established standard; and his deliberate or mistaken departure from the controlling law of arrest would not represent municipal policy.
In this case, however, the Sheriff and the Prosecutor chose a course that was not forbidden by any applicable law, a choice that they then had the authority to make. This was county policy, and it was no less so at the time because a later decision of this Court declared unwarranted forceful entry into third-party premises to be violation of the Fourth Amendment. Hence, I join the Court's opinion and judgment.
Justice Stevens, concurring in part and concurring in the judgment.
This is not a hard case. If there is any difficulty, it arises from the problem of obtaining a consensus on the meaning of the word "policy" -- a word that does not appear in the text of 42 U. S. C. § 1983, the statutory provision that we are supposed to be construing. The difficulty is thus a consequence of this Court's lawmaking efforts rather than the work of the Congress of the United States.
With respect to both the merits of the constitutional claim and the county's liability for the unconstitutional activities of its agents performed in the course of their official duties, there can be no doubt that the Congress that enacted the Ku Klux Act in 1871 intended the statute to authorize a recovery in a case of this kind. When police officers chopped down the door to petitioner's premises in order to serve capiases on two witnesses, they violated petitioner's constitutional rights. Steagald v. United States
Similarly, if we view the question of municipal liability from the perspective of the Legislature that enacted the Ku Klux Act of 1871, the answer is clear. The legislative history indicating that Congress did not intend to impose civil liability on municipalities for the conduct of third parties, ante, at 478-479, and n. 7, merely confirms the view that it did intend to impose liability for the governments' own illegal acts -- including those acts performed by their agents in the course of their employment. In other words, as I explained in my dissent in Oklahoma City v. Tuttle
Finally, in construing the scope of § 1983, the Court has sometimes referred to "considerations of public policy." To the extent that such "policy" concerns are relevant, they also support a finding of county liability. A contrary construction would produce a most anomalous result. The primary responsibility for protecting the constitutional rights of the residents of Hamilton County from the officers of Hamilton County should rest on the shoulders of the county itself, rather than on the several agents who were trying to perform their jobs. Although I recognize that the county may provide insurance protection for its agents, I believe that the primary party against whom the judgment should run is the county itself. The county has the resources and the authority that can best avoid future constitutional violations and provide a fair remedy for those that have occurred in the past. Thus, even if "public policy" concerns should inform the construction of § 1983, those considerations, like the statute's remedial purpose and common-law background, support a conclusion of county liability for the unconstitutional, axeswinging entry in this case.
Because I believe that Parts I, II-A, and II-C are consistent with the purpose and policy of § 1983, as well as with our precedents, I join those Parts of the Court's opinion and concur in the judgment.
Justice O’Connor, concurring in part and concurring in the judgment.
For the reasons stated by Justice White, I agree that the municipal officers here were acting as policymakers within the meaning of Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). As the city of Cincinnati freely conceded, forcible entry of third-party property to effect an arrest was standard operating procedure in May 1977. Given that this procedure was consistent with federal, state, and local law at the time the case arose, it seems fair to infer that respondent county's policy was no different. Moreover, under state law as definitively construed by the Court of Appeals, the county officials who opted for the forcible entry "had the authority to approve or disapprove such entries." Ante, at 485 (White, J., concurring). Given this combination of circumstances, I agree with Justice White that the decision to break down the door "sufficiently manifested county policy to warrant reversal of the judgment below." Ibid. Because, however, I believe that the reasoning of the majority goes beyond that necessary to decide the case, and because I fear that the standard the majority articulates may be misread to expose municipalities to liability beyond that envisioned by the Court in Monell, I join only Parts I and II-A of the Court's opinion and the judgment.
Justice Powell, with whom the Chief Justice and Justice Rehnquist join, dissenting.
The Court today holds Hamilton County liable for the forcible entry in May 1977 by Deputy Sheriffs into petitioner's office. The entry and subsequent search were pursuant to capiases for third parties -- petitioner's employees -- who had failed to answer a summons to appear as witnesses before a grand jury investigating petitioner. When petitioner refused to allow the Sheriffs to enter, one of them, at the request of his supervisor, called the office of the County Prosecutor for instructions. The Assistant County Prosecutor received the call, and apparently was in doubt as to what advice to give. He referred the question to the County Prosecutor, who advised the Deputy Sheriffs to "go in and get them [the witnesses]" pursuant to the capiases.
This five-word response to a single question over the phone is now found by this Court to have created an official county policy for which Hamilton County is liable under § 1983. This holding is wrong for at least two reasons. First, the Prosecutor's response and the Deputies' subsequent actions did not violate any constitutional right that existed at the time of the forcible entry. Second, no official county policy could have been created solely by an offhand telephone response from a busy County Prosecutor.
A
Under Monell, local government units may be liable only when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." 436 U.S., at 690. This case presents the opportunity to define further what was meant in Monell by "official policy." Proper resolution of the case calls for identification of the applicable principles for determining when policy is created. The Court today does not do this, but instead focuses almost exclusively on the status of the decisionmaker. Its reasoning is circular: it contends that policy is what policymakers make, and policymakers are those who have authority to make policy.
The Court variously notes that if a decision "is properly made by that government's authorized decisionmakers, it surely represents an act of official government 'policy' as that term is commonly understood," ante, at 481, and that "where action is directed by those who establish governmental policy, the municipality is equally responsible . . . ," ibid. Thus, the Court's test for determining the existence of policy focuses only on whether a decision was made "by the official or officials responsible for establishing final policy with respect to the subject matter in question." Ante, at 483-484.
In my view, the question whether official policy -- in any normal sense of the term -- has been made in a particular case is not answered by explaining who has final authority to make policy. The question here is not "could the County Prosecutor make policy?" but rather, "did he make policy?" By focusing on the authority granted to the official under state law, the Court's test fails to answer the key federal question presented. The Court instead turns the question into one of state law. Under a test that focuses on the authority of the decisionmaker, the Court has only to look to state law for the resolution of this case. Here the Court of Appeals found that "both the County Sheriff and the County Prosecutor [had authority under Ohio law to] establish county policy under appropriate circumstances." Ante, at 484. Apparently that recitation of authority is all that is needed under the Court's test because no discussion is offered to demonstrate that the Sheriff or the Prosecutor actually used that authority to establish official county policy in this case.
Moreover, the Court's reasoning is inconsistent with Monell. Today's decision finds that policy is established because a policymaking official made a decision on the telephone that was within the scope of his authority. The Court ignores the fact that no business organization or governmental unit makes binding policy decisions so cavalierly. The Court provides no mechanism for distinguishing those acts or decisions that cannot fairly be construed to create official policy from the normal process of establishing an official policy that would be followed by a responsible public entity. Thus, the Court has adopted in part what it rejected in Monell: local government units are now subject to respondeat superior liability, at least with respect to a certain category of employees, i. e., those with final authority to make policy. See Monell, 436 U.S., at 691; see also Oklahoma City v. Tuttle
In my view, proper resolution of the question whether official policy has been formed should focus on two factors: (i) the nature of the decision reached or the action taken, and (ii) the process by which the decision was reached or the action was taken.
Focusing on the nature of the decision distinguishes between policies and mere ad hoc decisions. Such a focus also reflects the fact that most policies embody a rule of general applicability. That is the tenor of the Court's statement in Monell that local government units are liable under § 1983 when the action that is alleged to be unconstitutional "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." 436 U.S., at 690. The clear implication is that policy is created when a rule is formed that applies to all similar situations -- a "governing principle [or] plan." Webster's New Twentieth Century Dictionary 1392 (2d ed. 1979).6
Another factor indicating that policy has been formed is the process by which the decision at issue was reached. Formal procedures that involve, for example, voting by elected officials, prepared reports, extended deliberation, or official records indicate that the resulting decisions taken "may fairly be said to represent official policy," Monell, supra, at 694. Owen v. City of Independence, 445 U.S. 622 (1980), provides an example. The City Council met in a regularly scheduled meeting. One member of the Council made a motion to release to the press certain reports that cast an employee in a bad light. After deliberation, the Council passed the motion with no dissents and one abstention. Id., at 627-629. Although this official action did not establish a rule of general applicability, it is clear that policy was formed because of the process by which the decision was reached.
Applying these factors to the instant case demonstrates that no official policy was formulated. Certainly, no rule of general applicability was adopted. The Court correctly notes that the Sheriff "testified that the Department had no written policy respecting the serving of capiases on the property of third persons and that the proper response in any given situation would depend upon the circumstances." Ante, at 474. Nor could he recall a specific instance in which entrance had been denied and forcibly gained. The Court's result today rests on the implicit conclusion that the Prosecutor's response -- "go in and get them" -- altered the prior case-by-case approach of the Department and formed a new rule to apply in all similar cases. Nothing about the Prosecutor's response to the inquiry over the phone, nor the circumstances surrounding the response, indicates that such a rule of general applicability was formed.
Pembaur sought damages under 42 U. S. C. § 1983, alleging that the county and city police had violated his rights under the Fourth and Fourteenth Amendments. His theory was that, absent exigent circumstances, the Fourth Amendment prohibits police from searching an individual's home or business without a search warrant even to execute an arrest warrant for a third person. We agreed with that proposition in Steagald v. United States, 451 U.S. 204 (1981), decided the day after Pembaur filed this lawsuit. Pembaur sought $ 10 million in actual and $ 10 million in punitive damages, plus costs and attorney's fees.
The Court of Appeals reached this conclusion without referring to Monell -- indeed, without any explanation at all. However, examination of the opinion in Monell clearly demonstrates that the Court of Appeals misinterpreted its holding.
, 453 U.S. 247 (1981) (City Council canceled license permitting concert because of dispute over content of performance). But the power to establish policy is no more the exclusive province of the legislature at the local level than at the state or national level. Monell's language makes clear that it expressly envisioned other officials "whose acts or edicts may fairly be said to represent official policy," Monell, supra, at 694, and whose decisions therefore may give rise to municipal liability under § 1983.
The fact that a particular official -- even a policymaking official -- has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. See, e. g., Oklahoma City v. Tuttle, 471 U.S., at 822-824.11 The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable.12 Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law. However, like other governmental entities, municipalities often spread policymaking authority among various officers and official bodies. As a result, particular officers may have authority to establish binding county policy respecting particular matters and to adjust that policy for the county in changing circumstances. To hold a municipality liable for actions ordered by such officers exercising their policymaking authority is no more an application of the theory of respondeat superior than was holding the municipalities liable for the decisions of the City Councils in Owen and Newport. In each case municipal liability attached to a single decision to take unlawful action made by municipal policymakers. 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. See Tuttle, supra, at 823 ("'policy' generally implies a course of action consciously chosen from among various alternatives").
, 451 U.S. 204 (1981), had been decided when the events at issue here occurred, if the State Constitution or statutes had forbidden forceful entries without a warrant, or if there had been a municipal ordinance to this effect. Local law enforcement officers are expected to obey the law and ordinarily swear to do so when they take office. Where the controlling law places limits on their authority, they cannot be said to have the authority to make contrary policy. Had the Sheriff or Prosecutor in this case failed to follow an existing warrant requirement, it would be absurd to say that he was nevertheless executing county policy in authorizing the forceful entry in this case and even stranger to say that the county would be liable if the Sheriff had secured a warrant and it turned out that he and the Magistrate had mistakenly thought there was probable cause for the warrant. If deliberate or mistaken acts like this, admittedly contrary to local law, expose the county to liability, it must be on the basis of respondent superior and not because the officers' acts represent local policy.
, 451 U.S. 204 (1981), makes it perfectly clear that forcible entry to a third party's premises to execute an arrest warrant is unconstitutional if the entry is without a search warrant and in the absence of consent or exigent circumstances. In my view, it is not at all surprising that respondents have "conceded" the retroactivity of Steagald. For Steagald plainly presented its holding as compelled by, and presaged in, well-established precedent.
, 471 U.S. 808, 835-840 (1985), both the broad remedial purpose of the statute and the fact that it embodied contemporaneous common law doctrine, including respondeat superior, require a conclusion that Congress intended that a governmental entity be liable for the constitutional deprivations committed by its agents in the course of their duties.
, 471 U.S. 808, 818 (1985) (rejecting theories akin to respondeat superior) (plurality opinion). The Court's reliance on the status of the employee carries the concept of "policy" far beyond what was envisioned in Monell.
When a rule of general applicability has been approved, the government has taken a position for which it can be held responsible.
| Pembaur v. City of Cincinnati Transcript |
| Pembaur v. City of Cincinnati Briefs |
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Notes on Pembaur v. City of Cincinnati |
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City of St. Louis v. Praprotnik |
Justice O’Connor announced the judgment of the Court and delivered an opinion, in which the Chief Justice Rehnquist, Justice White, and Justice Scalia join.
This case calls upon us to define the proper legal standard for determining when isolated decisions by municipal officials or employees may expose the municipality itself to liability under 42 U.S.C. § 1983.
I
The principal facts are not in dispute. Respondent James H. Praprotnik is an architect who began working for petitioner city of St. Louis in 1968. For several years, respondent consistently received favorable evaluations of his job performance, uncommonly quick promotions, and significant increases in salary. By 1980, he was serving in a management-level city planning position at petitioner's Community Development Agency (CDA).
The Director of CDA, Donald Spaid, had instituted a requirement that the agency's professional employees, including architects, obtain advance approval before taking on private clients. Respondent and other CDA employees objected to the requirement. In April 1980, respondent was suspended for 15 days by CDA's Director of Urban Design, Charles Kindleberger, for having accepted outside employment without prior approval. Respondent appealed to the city's Civil Service Commission, a body charged with reviewing employee grievances. Finding the penalty too harsh, the Commission reversed the suspension, awarded respondent back pay, and directed that he be reprimanded for having failed to secure a clear understanding of the rule.
The Commission's decision was not well received by respondent's supervisors at CDA. Kindleberger later testified that he believed respondent had lied to the Commission, and that Spaid was angry with respondent.
Respondent's next two annual job performance evaluations were markedly less favorable than those in previous years. In discussing one of these evaluations with respondent, Kindleberger apparently mentioned his displeasure with respondent's 1980 appeal to the Civil Service Commission. Respondent appealed both evaluations to the Department of Personnel. In each case, the Department ordered partial relief and was upheld by the city's Director of Personnel or the Civil Service Commission.
In April 1981, a new mayor came into office, and Donald Spaid was replaced as Director of CDA by Frank Hamsher. As a result of budget cuts, a number of layoffs and transfers significantly reduced the size of CDA and of the planning section in which respondent worked. Respondent, however was retained.
In the spring of 1982, a second round of layoffs and transfers occurred at CDA. At that time, the city's Heritage and Urban Design Division (Heritage) was seeking approval to hire someone who was qualified in architecture and urban planning. Hamsher arranged with the Director of Heritage, Henry Jackson, for certain functions to be transferred from CDA to Heritage. This arrangement, which made it possible for Heritage to employ a relatively high-level "city planning manager," was approved by Jackson's supervisor, Thomas Nash. Hamsher then transferred respondent to Heritage to fill this position.
Respondent objected to the transfer, and appealed to the Civil Service Commission. The Commission declined to hear the appeal because respondent had not suffered a reduction in his pay or grade. Respondent then filed suit in federal district court, alleging that the transfer was unconstitutional. The city was named as a defendant, along with Kindleberger, Hamsher, Jackson (whom respondent deleted from the list before trial), and Deborah Patterson, who had succeeded Hamsher at CDA.
At Heritage, respondent became embroiled in a series of disputes with Jackson and Jackson's successor, Robert Killen. Respondent was dissatisfied with the work he was assigned, which consisted of unchallenging clerical functions far below the level of responsibilities that he had previously enjoyed. At least one adverse personnel decision was taken against respondent, and he obtained partial relief after appealing that decision.
In December 1983, respondent was laid off from Heritage. The lay off was attributed to a lack of funds, and this apparently meant that respondent's supervisors had concluded that they could create two lower-level positions with the funds that were being used to pay respondent's salary. Respondent then amended the complaint in his lawsuit to include a challenge to the layoff. He also appealed to the Civil Service Commission, but proceedings in that forum were postponed because of the pending lawsuit and have never been completed. Tr. Oral Arg. 31-32.
The case went to trial on two theories: (1) that respondent's First Amendment rights had been violated through retaliatory actions taken in response to his appeal of his 1980 suspension; and (2) that respondent's layoff from Heritage was carried out for pretextual reasons in violation of due process. The jury returned special verdicts exonerating each of the three individual defendants, but finding the city liable under both theories. Judgment was entered on the verdicts, and the city appealed.
A panel of the Court of Appeals for the Eighth Circuit found that the due process claim had been submitted to the jury on an erroneous legal theory and vacated that portion of the judgment. With one judge dissenting, however, the panel affirmed the verdict holding the city liable for violating respondent's First Amendment rights. 798 F. 2d 1168 (1986). Only the second of these holdings is challenged here.
The Court of Appeals found that the jury had implicitly determined that respondent's layoff from Heritage was brought about by an unconstitutional city policy. Id., at 1173. Applying a test under which a "policymaker" is one whose employment decisions are "final" in the sense that they are not subjected to de novo review by higher-ranking officials, the Court of Appeals concluded that the city could be held liable for adverse personnel decisions taken by respondent's supervisors. Id., at 1173-1175. In response to petitioner's contention that the city's personnel policies are actually set by the Civil Service Commission, the Court of Appeals concluded that the scope of review before that body was too "highly circumscribed" to allow it fairly to be said that the Commission, rather than the officials who initiated the actions leading to respondent's injury, were the "final authority" responsible for setting city policy. Id., at 1175.
Turning to the question of whether a rational jury could have concluded that respondent had been injured by an unconstitutional policy, the Court of Appeals found that respondent's transfer from CDA to Heritage had been "orchestrated" by Hamsher, that the transfer had amounted to a "constructive discharge," and that the injury had reached fruition when respondent was eventually laid off by Nash and Killen. Id., at 1175-1176, and n. 8. The court held that the jury's verdict exonerating Hamsher and the other individual defendants could be reconciled with a finding of liability against the city because "the named defendants were not the supervisors directly causing the lay off, when the actual damages arose." Id., at 1173, n. 3. Cf. Los Angeles v. Heller, 475 U. S. 796 (1986).
The dissenting judge relied on our decision in Pembaur v. Cincinnati, 475 U. S. 469 (1986). He found that the power to set employment policy for petitioner city of St. Louis lay with the mayor and aldermen, who were authorized to enact ordinances, and with the Civil Service Commission, whose function was to hear appeals from city employees who believed that their rights under the city's Charter, or under applicable rules and ordinances, had not been properly respected. 798 F. 2d, at 1180. The dissent concluded that respondent had submitted no evidence proving that the mayor and aldermen, or the Commission, had established a policy of retaliating against employees for appealing from adverse personnel decisions. Id., at 1179-1181. The dissenting judge also concluded that, even if there were such a policy, the record evidence would not support a finding that respondent was in fact transferred or laid off in retaliation for the 1980 appeal from his suspension. Id., at 1181-1182.
We granted certiorari, 479 U. S. 1029 (1987), and we now reverse.
Two terms ago, in Pembaur, supra, we undertook to define more precisely when a decision on a single occasion may be enough to establish an unconstitutional municipal policy. Although the Court was unable to settle on a general formulation, Justice Brennan's plurality opinion articulated several guiding principles. First, a majority of the Court agreed that municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually responsible, "that is, acts which the municipality has officially sanctioned or ordered." 475 U. S., at 480. Second, only those municipal officials who have "final policymaking authority" may by their actions subject the government to § 1983 liability. Id., at 483. Third, whether a particular official has "final policymaking authority" is a question of state law. Ibid. Fourth, the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business. Id., at 482-483, and n. 12.
The Courts of Appeals have already diverged in their interpretations of these principles. Compare, for example, Williams v. Butler, 802 F. 2d 296, 299-302 (CA8 1986) (en banc), cert. pending sub nom. City of Little Rock v. Williams, No. 86-1049, with Jett v. Dallas Independent School Dist., 798 F. 2d 748, 759-760 (CA5 1986) (dictum). Today, we set out again to clarify the issue that we last addressed in Pembaur.
B
We begin by reiterating that the identification of policymaking officials is a question of state law. "Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law." Pembaur v. Cincinnati, 475 U. S., at 483 (plurality opinion).1
We are not, of course, predicting that state law will always speak with perfect clarity. We have no reason to suppose, however, that federal courts will face greater difficulties here than those that they routinely address in other contexts. We are also aware that there will be cases in which policymaking responsibility is shared among more than one official or body. In the case before us, for example, it appears that the mayor and aldermen are authorized to adopt such ordinances relating to personnel administration as are compatible with the City Charter. See St. Louis City Charter, art. XVIII, § 7(b), App. 62-63. The Civil Service Commission, for its part, is required to "prescribe . . . rules for the administration and enforcement of the provisions of this article, and of any ordinance adopted in pursuance thereof, and not inconsistent therewith." § 7(a), App. 62. Assuming that applicable law does not make the decisions of the Commission reviewable by the mayor and aldermen, or vice versa, one would have to conclude that policy decisions made either by the mayor and aldermen or by the Commission would be attributable to the city itself. In any event, however, a federal court would not be justified in assuming that municipal policymaking authority lies somewhere other than where the applicable law purports to put it. And certainly there can be no justification for giving a jury the discretion to determine which officials are high enough in the government that their actions can be said to represent a decision of the government itself.
As the plurality in Pembaur recognized, special difficulties can arise when it is contended that a municipal policymaker has delegated his policymaking authority to another official. 475 U. S., at 482-483, and n. 12. If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability. If, however, a city's lawful policymakers could insulate the government from liability simply by delegating their policymaking authority to others, § 1983 could not serve its intended purpose. It may not be possible to draw an elegant line that will resolve this conundrum, but certain principles should provide useful guidance.
First, whatever analysis is used to identify municipal policymakers, egregious attempts by local government to insulate themselves from liability for unconstitutional policies are precluded by a separate doctrine. Relying on the language of § 1983, the Court has long recognized that a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is "so permanent and well settled as to constitute a custom or usage' with the force of law." Adickes v. S. H. Kress & Co., 398 U. S. 144, 167-168 (1970). That principle, which has not been affected by Monell or subsequent cases, ensures that most deliberate municipal evasions of the Constitution will be sharply limited.
Second, as the Pembaur plurality recognized, the authority to make municipal policy is necessarily the authority to make final policy. 475 U. S., at 481-484. When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality. Similarly, when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.
C
Whatever refinements of these principles may be suggested in the future, we have little difficulty concluding that the Court of Appeals applied an incorrect legal standard in this case. In reaching this conclusion, we do not decide whether the First Amendment forbade the city from retaliating against respondent for having taken advantage of the grievance mechanism in 1980. Nor do we decide whether there was evidence in this record from which a rational jury could conclude either that such retaliation actually occurred or that respondent suffered any compensable injury from whatever retaliatory action may have been taken. Finally, we do not address petitioner's contention that the jury verdict exonerating the individual defendants cannot be reconciled with the verdict against the city. Even assuming that all these issues were properly resolved in respondent's favor, we would not be able to affirm the decision of the Court of Appeals.
The city cannot be held liable under § 1983 unless respondent proved the existence of an unconstitutional municipal policy. Respondent does not contend that anyone in city government ever promulgated, or even articulated, such a policy. Nor did he attempt to prove that such retaliation was ever directed against anyone other than himself. Respondent contends that the record can be read to establish that his supervisors were angered by his 1980 appeal to the Civil Service Commission; that new supervisors in a new administration chose, for reasons passed on through some informal means, to retaliate against respondent two years later by transferring him to another agency; and that this transfer was part of a scheme that led, another year and a half later, to his lay off. Even if one assumes that all this was true, it says nothing about the actions of those whom the law established as the makers of municipal policy in matters of personnel administration. The mayor and aldermen enacted no ordinance designed to retaliate against respondent or against similarly situated employees. On the contrary, the city established an independent Civil Service Commission and empowered it to review and correct improper personnel actions. Respondent does not deny that his repeated appeals from adverse personnel decisions repeatedly brought him at least partial relief, and the Civil Service Commission never so much as hinted that retaliatory transfers or lay offs were permissible. Respondent points to no evidence indicating that the Commission delegated to anyone its final authority to interpret and enforce the following policy set out in article XVIII of the city's Charter, § 2(a), App. 49:
Justice Brennan's opinion, concurring in the judgment, finds implications in our discussion that we do not think necessary or correct. See post, at 142-147. We nowhere say or imply, for example, that "a municipal charter's precatory admonition against discrimination or any other employment practice not based on merit and fitness effectively insulates the municipality from any liability based on acts inconsistent with that policy." Post, at 145, n. 7. Rather, we would respect the decisions, embodied in state and local law, that allocated policymaking authority among particular individuals and bodies. Refusals to carry out stated policies could obviously help to show that a municipality's actual policies were different from the ones that had been announced. If such a showing were made, we would be confronted with a different case than the one we decide today.
Nor do we believe that we have left a "gaping hole" in § 1983 that needs to be filled with the vague concept of "de facto final policymaking authority." Post, at 144. Except perhaps as a step towards overruling Monell and adopting the doctrine of respondeat superior, ad hoc searches for officials possessing such "de facto" authority would serve primarily to foster needless unpredictability in the application of § 1983.
Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Kennedy took no part in the consideration or decision of this case.
Justice Brennan, with whom Justice Marshall and Justice Blackmun join, concurring.
Despite its somewhat confusing procedural background, this case at bottom presents a relatively straightforward question: whether respondent's supervisor at the Community Development Agency, Frank Hamsher, possessed the authority to establish final employment policy for the city of St. Louis such that the city can be held liable under 42 U.S.C. § 1983 for Hamsher's allegedly unlawful decision to transfer respondent to a dead-end job. Applying the test set out two Terms ago by the plurality in Pembaur v. Cincinnati, 475 U. S. 469 (1986), I conclude that Hamsher did not possess such authority and I therefore concur in the Court's judgment reversing the decision below. I write separately, however, because I believe that the commendable desire of today's plurality to "define more precisely when a decision on a single occasion may be enough" to subject a municipality to § 1983 liability, ante, at 123, has led it to embrace a theory of municipal liability that is both unduly narrow and unrealistic, and one that ultimately would permit municipalities to insulate themselves from liability for the acts of all but a small minority of actual city policymakers.
In my view, Pembaur controls this case. As an "appointing authority," Hamsher was empowered under the City Charter to initiate lateral transfers such as the one challenged here, subject to the approval of both the Director of Personnel and the appointing authority of the transferee agency. The Charter, however, nowhere confers upon agency heads any authority to establish city policy, final or otherwise, with respect to such transfers. Thus, for example, Hamsher was not authorized to promulgate binding guidelines or criteria governing how or when lateral transfers were to be accomplished. Nor does the record reveal that he in fact sought to exercise any such authority in these matters. There is no indication, for example, that Hamsher ever purported to institute or announce a practice of general applicability concerning transfers. Instead, the evidence discloses but one transfer decision -- the one involving respondent -- which Hamsher ostensibly undertook pursuant to a city-wide program of fiscal restraint and budgetary reductions. At most, then, the record demonstrates that Hamsher had the authority to determine how best to effectuate a policy announced by his superiors, rather than the power to establish that policy. Like the hypothetical Sheriff in Pembaur's footnote 12, Hamsher had discretionary authority to transfer CDA employees laterally; that he may have used this authority to punish respondent for the exercise of his First Amendment rights does not, without more, render the city liable for respondent's resulting constitutional injury. The court below did not suggest that either Killen or Nash, who together orchestrated respondent's ultimate layoff, shared Hamsher's constitutionally impermissible animus. Because the court identified only one unlawfully motivated municipal employee involved in respondent's transfer and layoff, and because that employee did not possess final policymaking authority with respect to the contested decision, the city may not be held accountable for any constitutional wrong respondent may have suffered.
III
These determinations, it seems to me, are sufficient to dispose of this case, and I therefore think it unnecessary to decide, as the plurality does, who the actual policymakers in St. Louis are. I question more than the mere necessity of these determinations, however, for I believe that in the course of passing on issues not before us, the plurality announces legal principles that are inconsistent with our earlier cases and unduly restrict the reach of § 1983 in cases involving municipalities.
The plurality begins its assessment of St. Louis' power structure by asserting that the identification of policymaking officials is a question of state law, by which it means that the question is neither one of federal law nor of fact, at least "not in the usual sense." See ante, at 124. Instead, the plurality explains, courts are to identify municipal policymakers by referring exclusively to applicable state statutory law. Ante, at 124. Not surprisingly, the plurality cites no authority for this startling proposition, nor could it, for we have never suggested that municipal liability should be determined in so formulaic and unrealistic a fashion. In any case in which the policymaking authority of a municipal tortfeasor is in doubt, state law will naturally be the appropriate starting point, but ultimately the factfinder must determine where such policymaking authority actually resides, and not simply "where the applicable law purports to put it." Ante, at 126. As the plurality itself acknowledges, local governing bodies may take myriad forms. We in no way slight the dignity of municipalities by recognizing that in not a few of them real and apparent authority may diverge, and that in still others state statutory law will simply fail to disclose where such authority ultimately rests. Indeed, in upholding the Court of Appeals' determination in Pembaur that the County Prosecutor was a policymaking official with respect to county law enforcement practices, a majority of this Court relied on testimony which revealed that the County Sheriff's office routinely forwarded certain matters to the Prosecutor and followed his instructions in those areas. See 475 U. S., at 485; ibid. (White, J., concurring); id., at 491 (O’Connor, J., concurring). While the majority splintered into three separate camps on the ultimate theory of municipal liability, and the case generated five opinions in all, not a single member of the Court suggested that reliance on such extra-statutory evidence of the county's actual allocation of policymaking authority was in any way improper. Thus, although I agree with the plurality that juries should not be given open-ended "discretion to determine which officials are high enough in the government that their actions can be said to represent a decision of the government itself," ante, at 126 (emphasis added), juries can and must find the predicate facts necessary to a determination of whether a given official possesses final policymaking authority. While the jury instructions in this case were regrettably vague, the plurality's solution tosses the baby out with the bath water. The identification of municipal policymakers is an essentially factual determination "in the usual sense," and is therefore rightly entrusted to a properly instructed jury.
Nor does the "custom or usage" doctrine adequately compensate for the inherent inflexibility of a rule that leaves the identification of policymakers exclusively to state statutory law. That doctrine, under which municipalities and States can be held liable for unconstitutional practices so well settled and permanent that they have the force of law, see Adickes v. Kress & Co., 398 U. S., at 167, has little if any bearing on the question whether a city has delegated de facto final policymaking authority to a given official. A city practice of delegating final policymaking authority to a subordinate or mid-level official would not be unconstitutional in and of itself, and an isolated unconstitutional act by an official entrusted with such authority would obviously not amount to a municipal "custom or usage." Under Pembaur, of course, such an isolated act should give rise to municipal liability. Yet a case such as this would fall through the gaping hole the plurality's construction leaves in § 1983, because the state statutory law would not identify the municipal actor as a policymaking official, and a single constitutional deprivation, by definition, is not a well settled and permanent municipal practice carrying the force of law.6
For these same reasons, I cannot subscribe to the plurality's narrow and overly rigid view of when a municipal official's policymaking authority is "final." Attempting to place a gloss on Pembaur's finality requirement, the plurality suggests that whenever the decisions of an official are subject to some form or review -- however limited -- that official's decisions are nonfinal. Under the plurality's theory, therefore, even where an official wields policymaking authority with respect to a challenged decision, the city would not be liable for that official's policy decision unless reviewing officials affirmatively approved both the "decision and the basis for it." Ante, at 127. Reviewing officials, however, may as a matter of practice never invoke their plenary oversight authority, or their review powers may be highly circumscribed. See n. 4, supra. Under such circumstances, the subordinate's decision is in effect the final municipal pronouncement on the subject. Certainly a § 1983 plaintiff is entitled to place such considerations before the jury, for the law is concerned not with the niceties of legislative draftsmanship but with the realities of municipal decisionmaking, and any assessment of a municipality's actual power structure is necessarily a factual and practical one.7
Accordingly, I cannot endorse the plurality's determination, based on nothing more than its own review of the City Charter, that the mayor, the aldermen, and the CSC are the only policymakers for the city of St. Louis. While these officials may well have policymaking authority, that hardly ends the matter; the question before us is whether the officials responsible for respondent's allegedly unlawful transfer were final policymakers. As I have previously indicated, I do not believe that CDA Director Frank Hamsher possessed any policymaking authority with respect to lateral transfers and thus I do not believe that his allegedly improper decision to transfer respondent could, without more, give rise to municipal liability. Although the plurality reaches the same result, it does so by reasoning that because others could have reviewed the decisions of Hamsher and Killen, the latter officials simply could not have been final policymakers.
This analysis, however, turns a blind eye to reality, for it ignores not only the lower court's determination, nowhere disputed, that CSC review was highly circumscribed and deferential, but that in this very case the Commission refused to judge a propriety of Hamsher's transfer decision because a lateral transfer was not an "adverse" employment action falling within its jurisdiction. Nor does the plurality account for the fact that Hamsher's predecessor, Donald Spaid, promulgated what the city readily acknowledges was a binding policy regarding secondary employment;8
Finally, I think it necessary to emphasize that despite certain language in the plurality opinion suggesting otherwise, the Court today need not and therefore does not decide that a city can only be held liable under § 1983 where the plaintiff "prov[es] the existence of an unconstitutional municipal policy." See ante, at 128. Just last Term, we left open for the second time the question whether a city can be subjected to liability for a policy that, while not unconstitutional in and of itself, may give rise to constitutional deprivations. See Springfield v. Kibbe
Justice Stevens, dissenting.
If this case involved nothing more than a personal vendetta between a municipal employee and his superiors, it would be quite wrong to impose liability on the City of St. Louis. In fact, however, the jury found that top officials in the City administration, relying on pretextual grounds, had taken a series of retaliatory actions against respondent because he had testified truthfully on two occasions, one relating to personnel policy and the other involving a public controversy of importance to the Mayor and the members of his cabinet. No matter how narrowly the Court may define the standards for imposing liability upon municipalities in § 1983 litigation, the judgment entered by the District Court in this case should be affirmed.
Every act of a high official constitutes a kind of "statement" about how similar decisions will be carried out; the assumption is that the same decision would have been made, and would again be made, across a class of cases. Lower officials do not control others in the same way. Since their actions do not dictate the responses of various subordinates, those actions lack the potential of controlling governmental decisionmaking; they are not perceived as the actions of the city itself. If a County police officer had broken down Dr. Pembaur's door on the officer's own initiative, this would have been seen as the action of an overanxious officer, and would not have sent a message to other officers that similar actions would be countenanced. One reason for this is that the County Prosecutor himself could step forward and say "that was wrong"; when the County Prosecutor authorized the action himself, only a self-correction would accomplish the same task, and until such time his action would have County-wide ramifications. Here, the Mayor, those working for him, and the agency heads are high-ranking officials; accordingly, we must assume that their actions have City-wide ramifications, both through their similar response to a like class of situations, and through the response of subordinates who follow their lead.22
Just as the actions of high-ranking and low-ranking municipal employees differ in nature, so do constitutional torts differ. An illegal search (Pembaur) or seizure (Tuttle) is quite different from a firing without due process (Owen); the retaliatory personnel action involved in today's case is in still another category. One thing that the torts in Pembaur, Tuttle, and Owen had in common is that they occurred "in the open"; in each of those cases, the ultimate judgment of unconstitutionality was based on whether undisputed events (the breaking-in in Pembaur, the shooting in Tuttle, the firing in Owen) comported with accepted constitutional norms. But the typical retaliatory personnel action claim pits one story against another; although everyone admits that the transfer and discharge of respondent occurred, there is sharp, and ultimately central, dispute over the reasons -- the motivation -- behind the actions. The very nature of the tort is to avoid a formal process. Owens' relevance should thus be clear. For if the Court is willing to recognize the existence of municipal policy in a non-rule case as long as high enough officials engaged in a formal enough process, it should not deny the existence of such a policy merely because those same officials act "underground," as it were. It would be a truly remarkable doctrine for this Court to recognize municipal liability in an employee discharge case when high officials are foolish enough to act through a "formal process," but not when similarly high officials attempt to avoid liability by acting on the pretext of budgetary concerns, which is what the jury found based on the evidence presented at trial.
Thus, holding St. Louis liable in this case is supported by both Pembaur and Owen. We hold a municipality liable for the decisions of its high officials in large part because those decisions, by definition, would be applied across a class of cases. Just as we assume in Pembaur that the County Prosecutor (or his subordinates) would issue the same break-down-the-door order in similar cases, and just as we assume in Owen that the City Council (or those following its lead) would fire an employee without notice of reasons or opportunity to be heard in similar cases, so too must we assume that whistleblowers like respondent would be dealt with in similar retaliatory fashion if they offend the Mayor, his staff, and relevant agency heads, or if they offend those lower-ranking officials who follow the example of their superiors. Furthermore, just as we hold a municipality liable for discharging an employee without due process when its city council acts formally -- for a due process violation is precisely the type of constitutional tort that a city council might commit when it acts formally -- so too must we hold a municipality liable for discharging an employee in retaliation against his public speech when similarly high officials act informally -- for a first amendment retaliation tort is precisely the type of constitutional tort that high officials might commit when they act in concert and informally.
Whatever difficulties the Court may have with binding municipalities on the basis of the unconstitutional conduct of individuals, it should have no such difficulties binding a city when many of its high officials -- including officials directly under the mayor, agency heads, and possibly the mayor himself -- cooperate to retaliate against a whistleblower for the exercise of his First Amendment rights.23
I would affirm the judgment of the Court of Appeals.
Thus the identification of policymaking officials is not a question of federal law and it is not a question of fact in the usual sense. The States have extremely wide latitude in determining the form that local government takes, and local preferences have led to a profusion of distinct forms. Among the many kinds of municipal corporations, political subdivisions, and special districts of all sorts, one may expect to find a rich variety of ways in which the power of government is distributed among a host of different officials and official bodies. See generally C. Rhyne, The Law of Local Government Operations §§ 1.3-1.7 (1980). Without attempting to canvass the numberless factual scenarios that may come to light in litigation, we can be confident that state law (which may include valid local ordinances and regulations) will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of local government's business.2
"Merit and fitness. All appointments and promotions to positions in the service of the city and all measures for the control and regulation of employment in such positions, and separation therefrom, shall be on the sole basis of merit and fitness . . . ."
The Court of Appeals concluded that "appointing authorities," like Hamsher and Killen, who had the authority to initiate transfers and layoffs, were municipal "policymakers." The court based this conclusion on its findings (1) that the decisions of these employees were not individually reviewed for "substantive propriety" by higher supervisory officials; and (2) that the Civil Service Commission decided appeals from such decisions, if at all, in a circumscribed manner that gave substantial deference to the original decisionmaker. 798 F. 2d, at 1174-1175. We find these propositions insufficient to support the conclusion that Hamsher and Killen were authorized to establish employment policy for the city with respect to transfers and layoffs. To the contrary, the City Charter expressly states that the Civil Service Commission has the power and the duty:
"To consider and determine any matter involved in the administration and enforcement of this [Civil Service] article and the rules and ordinances adopted in accordance therewith that may be referred to it for decision by the director [or personnel], or on appeal by any appointing authority, employe, or taxpayer of the city, from any act of the director or of any appointing authority. The decision of the commission in all such matters shall be final, subject, however, to any right of action under any law of the state or of the United States." St. Louis City Charter, art. XVIII, § 7(d), App. 63.
This case therefore resembles the hypothetical example in Pembaur: "If [city] employment policy was set by the [Mayor and Aldermen and by the Civil Service Commission], only [those] bod[ies'] decisions would provide a basis for [city] liability. This would be true even if the [mayor and aldermen and the Commission] left the [appointing authorities] discretion to hire and fire employees and [they] exercised that discretion in an unconstitutional manner . . . ." 475 U.S., at 483, n. 12. A majority of the Court of Appeals panel determined that the Civil Service Commission's review of individual employment actions gave too much deference to the decisions of appointing authorities like Hamsher and Killen. Simply going along with discretionary decisions made by one's subordinates, however, is not a delegation to them of the authority to make policy. It is equally consistent with a presumption that the subordinates are faithfully attempting to comply with the policies that are supposed to guide them. It would be a different matter if a particular decision by a subordinate was cast in the form of a policy statement and expressly approved by the supervising policymaker. It would also be a different matter if a series of decisions by a subordinate official manifested a "custom or usage" of which the supervisor must have been aware. See supra, at 127. In both those cases, the supervisor could realistically be deemed to have adopted a policy that happened to have been formulated or initiated by a lower-ranking official. But the mere failure to investigate the basis of a subordinate's discretionary decisions does not amount to a delegation of policymaking authority, especially where (as here) the wrongfulness of the subordinate's decision arises from a retaliatory motive or other unstated rationale. In such circumstances, the purposes of § 1983 would not be served by treating a subordinate employees' decision as if it were a reflection of municipal policy.
although the CSC ultimately modified the sanctions respondent suffered as a result of his apparent failure to comply with that policy, the record is devoid of any suggestion that the Commission reviewed the substance or validity of the policy itself. Under the plurality's analysis, therefore, even the hollowest promise of review is sufficient to divest all city officials save the mayor and governing legislative body of final policymaking authority. While clarity and ease of application may commend such a rule, we have remained steadfast in our conviction that Congress intended to hold municipalities accountable for those constitutional injuries inflicted not only by their lawmakers, but "by those whose edicts or acts may fairly be said to represent official policy." Monell, 436 U. S., at 694. Because the plurality's mechanical "finality" test is fundamentally at odds with the pragmatic and factual inquiry contemplated by Monell, I cannot join what I perceive to be its unwarranted abandonment of the traditional factfinding process in § 1983 actions involving municipalities.
, 480 U.S. 257 (1987); see also Oklahoma City v. Tuttle, 471 U.S. 808 (1985). That question is certainly not presented by this case, and nothing we say today forecloses its future consideration.
, supra, at 479-481; ante, at 123 (plurality), at 139-140 (concurrence). Although the Court has explained its holdings by reference to the nonstatutory term "policy," it plainly has not embraced the standard understanding of that word as covering a rule of general applicability. Instead it has used that term to include isolated acts not intended to be binding over a class of situations. But when one remembers that the real question in cases such as this is not "what constitutes City policy?" but rather "when should a City be liable for the acts of its agents?", the inclusion of single acts by high officials make sense, for those acts bind a municipality in a way that the misdeeds of low officials do not.
| City of St. Louis v. Praprotnik Transcript |
| City of St. Louis v. Praprotnik Briefs |
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Notes on City of St. Louis v. Praprotnik |
, 890 F.2d 1557, 1568-69 (10th Cir. 1989) (Chief of Police is final policymaker even where meaningful administrative review is illusory) with Ware v. Unified School Dist. No. 492, 902 F.2d 815, 818-19 (10th Cir. 1990) (School Superintendent is not final policymaker where school board retained and exercised authority to review decisions of Superintendent). How does Justice O’Connor’s approach in Praprotnik differ from Justice Brennan’s opinion as to this scenario?
, 491 U.S. 701 (1989). Jett arose out of a suit by a white athletic director under 42 U.S.C. §§ 1981 and 1983 alleging discrimination in his reassignment to a position of lesser prestige. After holding that a municipality may not be held vicariously liable under §1981, the Court remanded the case for a determination of whether the school district could be liable on the basis that the school Superintendent had final policymaking authority in the area of employee reassignments. The Court explained how the lower court was to resolve this issue:
As with other questions of state law relevant to the application of federal law, the identification of those officials whose decisions represent the official policy of the local government unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury...[after] reviewing the relevant legal materials, including state and local positive law, as well as “‘custom and usage’ having the force of law,” Praprotnik, supra, at 124, n.1, 108 S. Ct. at 924, n.1, the trial judge must identify those officials who speak with final policymaking authority for the local government action alleged to have caused the particular constitutional or statutory violation at issue.
Jett, 491 U.S. at 736. Did the Jett Court endorse the opinion of Justice O’Connor or the test proposed by Justice Brennan in Praprotnik? In Worsham v. City of Pasadena, 881 F.2d 1336, 1343-44 (5th Cir. 1989), Judge Goldberg’s dissenting opinion interpreted Jett as follows:
Jett clarifies that...[b]y proving a “custom or usage,” a plaintiff may demonstrate as a matter of fact that an official is invested with final policymaking authority...
Jett also characterizes the final policymaker determination as a threshold question of law for the trial judge. Because facts concerning custom or usage may play a role in such a determination, the trial judge, after Jett, is empowered to resolve factual disputes in its threshold inquiry. Jett thus envisions a role for the trial judge in this context similar, for example, to the role a judge plays in determining admissibility of certain evidence, or whether a matter is of public concern in the First Amendment context....These issues may involve disputed factual issues that the judge is empowered to resolve.
The Supreme Court, however, never reached the issue of whether the sheriff was a policymaker for the county, for the Court held that the district court’s denial of summary judgment to the County Commission was not an appealable order. First, unlike the rejection of the individual officers’ claimed entitlement to qualified immunity, the district court’s repudiation of the County Commission’s contention that the sheriff was not a policymaker was not an immediately appealable collateral order under 28 U.S.C. §1291:
The Commission’s assertion that Sheriff Morgan is not its policymaker does not rank, under our decisions, as an immunity from suit. Instead, the plea ranks as a mere defense to liability. Mitchell, 472 U.S. at 526. An erroneous ruling on liability may be reviewed effectively on appeal from final judgment. Therefore, the order denying the County Commission’s summary judgment motion was not an appealable collateral order.
514 U.S. at 43. The Court likewise rules that the court of appeals did not have pendent appellate jurisdiction to review denial of the county’s summary judgment motion:
In a 5-4 decision, the Court held that for purposes of the particularized activity of law enforcement, the sheriff represented the State rather than the county. Deeming the issue to rest upon “the definition of the official’s function under relevant state law,” 520 U.S. at 785, the majority observed that the Alabama Constitution had been amended to add sheriffs to the list of officials designated as members of the executive department and transferred the power to impeach sheriffs from county courts to the State Supreme Court. The Court also referenced provisions of the Alabama Code that conferred upon state judges the authority to supervise sheriffs and gave sheriffs the authority to enforce state criminal law in their counties. However, the Court also entertained the plaintiff’s evidence that the county’s insurance policy arguably covered some of the claims, but concluded that the insurance policy displayed uncertainty as to whether the courts would consider the sheriff a county policymaker. 520 U.S. at 792 n.7.
Justice Ginsburg railed against the majority’s reliance upon provisions of state law labeling sheriffs as officials of the executive department:
[R]esponsibility for making law or setting policy--the objective under Praprotnik of our search through local law--is authority to adopt rules for the conduct of government. Authority to make a final decision need not imply authority to establish rules. In Chicago, it does not. The Superintendent of Police in Chicago had no power to countermand the statutes regulating the operation of the department. The chief has [c]omplete authority to administer the department in a manner consistent with the ordinances of the city, the laws of the state, and the rules and regulations of the police board.....If, in the course of selecting senior staff, Rice discriminated on account of race or policy, he violated rather than implemented the policy of Chicago.
, 514 U.S. 35 (1995). Swint arose out of a Section 1983 action complaining of police raids on a nightclub. Under Mitchell v. Forsyth, 472 U.S. 511 (1985), the court of appeals had jurisdiction over the individual police officers’ interlocutory appeal from the district court’s denial of their motion for summary judgment seeking qualified immunity. The appellate court also reviewed and reversed the denial of summary judgment to the County Commission, which had been based on the district court’s finding that the sheriff was a policymaker for the county for the purpose of authorizing police raids.
The parties do not contend that the District Court’s decision to deny the Chambers County Commission’s summary judgment motion was inextricably entwined with the court’s decision to deny the individual defendants’ qualified immunity motions, or that review of the former decision was necessary to ensure meaningful review of the latter...Nor could the parties so argue. The individual defendants’ qualified immunity turns on whether they violated clearly established federal law; the County Commission’s liability turns on the allocation of law enforcement power in Alabama.
514 U.S. at 51.
, 520 U.S. 781 (1997), a Section 1983 action arising out of the Sheriff of Monroe County’s concealment of exculpatory evidence. As a result of the sheriff's actions, the plaintiff served six years on death row before his murder conviction was reversed. The parties agreed that the sheriff had final policymaking authority in matters of law enforcement; they differed, however, as to whether the sheriff was a policymaker for the State of Alabama or for the county.
[D]esignations Alabama attaches to sheriffs in its laws and decisions are not dispositive of a court’s assessment of Sheriff Tate’s status for § 1983 purposes. Cf. Regents of Univ. of Cal. v. Doe
520 U.S. at 798-99. Justice Ginsburg noted that Alabama sheriffs are elected by residents of the county, have power to execute law enforcement policies only within the geographic boundaries of their respective counties, are paid by the county, and have their offices provided, furnished and equipped by the county, all of which is directly contrary to the categorization of sheriffs as members of the executive department.
, 519 U.S. 425, --- n.5 (1997); Howlett v. Rose, 496 U.S. 356, 376 (1990) (defenses to § 1983 actions are questions of federal law); Martinez v. California, 444 U.S. 277, 284 and n.8 (1980) (state law granting immunity to parole officials does not control question whether such officers have immunity under § 1983). If a State’s designation sufficed to answer the federal question at issue, States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People. Howlett, 496 U.S. at 383.
If it were enough to point to the agent whose act was the final one in a particular case, we would have vicarious liability....That a particular agent is the apex of a bureaucracy makes the decision final but does not forge a link between finality and policy.....Unless today’s decision ought to govern tomorrow’s case under a law or custom with the force of law, it cannot be said to carry out the municipality’s policy.
Id. at 400-01. How is the court to determine which decisionmakers with final authority are policymakers? May a municipality shield itself from Section 1983 liability for constitutional violations by enacting an ordinance that prohibits all officials with final authority from taking any actions that contravene the Constitution? Compare Greenboro Prof. Fire Fighters Ass’n v. Greensboro, 64 F.3d 962, 965 (4th Cir. 1995)(When a final decision by an employee implements municipal policy, then municipal liability may follow. But if a final decision does not implement municipal policy, or is contrary to it, then it is not imputable to the municipality.) with Gonzalez v. Ysleta Independent School Dist., 996 F.2d 745, 754 (5th Cir. 1993)([T]he existence of a well-established, officially adopted policy will not insulate the municipality from liability where the policy-maker herself departs from these formal rules.).
, 839 F.2d 375, 380 (7th Cir. 1988)(In a procedural due process case such as this, resolution of the Monell issue will also resolve the Parratt issue....Because a municipality may only be liable for ‘acts which the municipality has officially sanctioned or ordered,’...its liability can never be premised on the result of a random and unauthorized act.).
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City of Canton, Ohio v. Harris |
Justice White delivered the opinion of the Court.
In this case, we are asked to determine if a municipality can ever be liable under 42 U. S. C. § 1983 for constitutional violations resulting from its failure to train municipal employees. We hold that, under certain circumstances, such liability is permitted by the statute.
I
In April 1978, respondent Geraldine Harris was arrested by officers of the Canton Police Department. Mrs. Harris was brought to the police station in a patrol wagon.
When she arrived at the station, Mrs. Harris was found sitting on the floor of the wagon. She was asked if she needed medical attention, and responded with an incoherent remark. After she was brought inside the station for processing, Mrs. Harris slumped to the floor on two occasions. Eventually, the police officers left Mrs. Harris lying on the floor to prevent her from falling again. No medical attention was ever summoned for Mrs. Harris. After about an hour, Mrs. Harris was released from custody, and taken by an ambulance (provided by her family) to a nearby hospital. There, Mrs. Harris was diagnosed as suffering from several emotional ailments; she was hospitalized for one week and received subsequent outpatient treatment for an additional year.
Some time later, Mrs. Harris commenced this action alleging many state-law and constitutional claims against the city of Canton and its officials. Among these claims was one seeking to hold the city liable under 42 U. S. C. § 1983 for its violation of Mrs. Harris' right, under the Due Process Clause of the Fourteenth Amendment, to receive necessary medical attention while in police custody.
A jury trial was held on Mrs. Harris' claims. Evidence was presented that indicated that, pursuant to a municipal regulation,2
At the close of the evidence, the District Court submitted the case to the jury, which rejected all of Mrs. Harris' claims except one: her § 1983 claim against the city resulting from its failure to provide her with medical treatment while in custody. In rejecting the city's subsequent motion for judgment notwithstanding the verdict, the District Court explained the theory of liability as follows:
shift commanders were authorized to determine, in their sole discretion, whether a detainee required medical care. Tr. 2-139 -- 2-143. In addition, testimony also suggested that Canton shift commanders were not provided with any special training (beyond first-aid training) to make a determination as to when to summon medical care for an injured detainee. Ibid.; App. to Pet. for Cert. 4a.
"The evidence construed in a manner most favorable to Mrs. Harris could be found by a jury to demonstrate that the City of Canton had a custom or policy of vesting complete authority with the police supervisor of when medical treatment would be administered to prisoners. Further, the jury could find from the evidence that the vesting of such carte blanche authority with the police supervisor without adequate training to recognize when medical treatment is needed was grossly negligent or so reckless that future police misconduct was almost inevitable or substantially certain to result." Id., at 16a.
On appeal, the Sixth Circuit affirmed this aspect of the District Court's analysis, holding that "a municipality is liable for failure to train its police force, [where] the plaintiff . . . prove[s] that the municipality acted recklessly, intentionally, or with gross negligence." Id., at 5a.3 The Court of Appeals also stated that an additional prerequisite of this theory of liability was that the plaintiff must prove "that the lack of training was so reckless or grossly negligent that deprivations of persons' constitutional rights were substantially certain to result." Ibid. Thus, the Court of Appeals found that there had been no error in submitting Mrs. Harris' "failure to train" claim to the jury. However, the Court of Appeals reversed the judgment for respondent, and remanded this case for a new trial, because it found that certain aspects of the District Court's jury instructions might have led the jury to believe that it could find against the city on a mere respondeat superior theory. Because the jury's verdict did not state the basis on which it had ruled for Mrs. Harris on her § 1983 claim, a new trial was ordered.
The city petitioned for certiorari, arguing that the Sixth Circuit's holding represented an impermissible broadening of municipal liability under § 1983. We granted the petition. 485 U.S. 933 (1988).
In Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), we decided that a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983. Id., at 694-695. "It is only when the 'execution of the government's policy or custom . . . inflicts the injury' that the municipality may be held liable under § 1983." Springfield v. Kibbe, 480 U.S. 257, 267 (1987) (O'Connor, J., dissenting) (quoting Monell, supra, at 694).
Thus, our first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. The inquiry is a difficult one; one that has left this Court deeply divided in a series of cases that have followed Monell; one that is the principal focus of our decision again today.
A
Based on the difficulty that this Court has had defining the contours of municipal liability in these circumstances, petitioner urges us to adopt the rule that a municipality can be found liable under § 1983 only where "the policy in question [is] itself unconstitutional." Brief for Petitioner 15. Whether such a rule is a valid construction of § 1983 is a question the Court has left unresolved. See, e. g., St. Louis v. Praprotnik, supra, at 147 (Brennan, J., concurring in judgment); Oklahoma City v. Tuttle, supra, at 824, n. 7. Under such an approach, the outcome here would be rather clear: we would have to reverse and remand the case with instructions that judgment be entered for petitioner.5 There can be little doubt that on its face the city's policy regarding medical treatment for detainees is constitutional. The policy states that the city jailer "shall . . . have [a person needing medical care] taken to a hospital for medical treatment, with permission of his supervisor . . . ." App. 33. It is difficult to see what constitutional guarantees are violated by such a policy.
Nor, without more, would a city automatically be liable under § 1983 if one of its employees happened to apply the policy in an unconstitutional manner, for liability would then rest on respondeat superior. The claim in this case, however, is that if a concededly valid policy is unconstitutionally applied by a municipal employee, the city is liable if the employee has not been adequately trained and the constitutional wrong has been caused by that failure to train. For reasons explained below, we conclude, as have all the Courts of Appeals that have addressed this issue, that there are limited circumstances in which an allegation of a "failure to train" can be the basis for liability under § 1983. Thus, we reject petitioner's contention that only unconstitutional policies are actionable under the statute.
B
Though we agree with the court below that a city can be liable under § 1983 for inadequate training of its employees, we cannot agree that the District Court's jury instructions on this issue were proper, for we conclude that the Court of Appeals provided an overly broad rule for when a municipality can be held liable under the "failure to train" theory. Unlike the question whether a municipality's failure to train employees can ever be a basis for § 1983 liability -- on which the Courts of Appeals have all agreed, see n. 6, supra, -- there is substantial division among the lower courts as to what degree of fault must be evidenced by the municipality's inaction before liability will be permitted.7
Monell's rule that a city is not liable under § 1983 unless a municipal policy causes a constitutional deprivation will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city is responsible.9
In resolving the issue of a city's liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform. That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program. See Springfield v. Kibbe
Moreover, for liability to attach in this circumstance the identified deficiency in a city's training program must be closely related to the ultimate injury. Thus in the case at hand, respondent must still prove that the deficiency in training actually caused the police officers' indifference to her medical needs.12
To adopt lesser standards of fault and causation would open municipalities to unprecedented liability under § 1983. In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city "could have done" to prevent the unfortunate incident. See Oklahoma City v. Tuttle
Consequently, while claims such as respondent's -- alleging that the city's failure to provide training to municipal employees resulted in the constitutional deprivation she suffered -- are cognizable under § 1983, they can only yield liability against a municipality where that city's failure to train reflects deliberate indifference to the constitutional rights of its inhabitants.
IV
The final question here is whether this case should be remanded for a new trial, or whether, as petitioner suggests, we should conclude that there are no possible grounds on which respondent can prevail. See Tr. of Oral Arg. 57-58. It is true that the evidence in the record now does not meet the standard of § 1983 liability we have set forth above. But, the standard of proof the District Court ultimately imposed on respondent (which was consistent with Sixth Circuit precedent) was a lesser one than the one we adopt today, see Tr. 4-389 -- 4-390. Whether respondent should have an opportunity to prove her case under the "deliberate indifference" rule we have adopted is a matter for the Court of Appeals to deal with on remand.
V
Consequently, for the reasons given above, we vacate the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion.
It is so ordered.
Justice Brennan, concurring.
The Court's opinion, which I join, makes clear that the Court of Appeals is free to remand this case for a new trial.
Justice O’Connor, with whom Justice Scalia and Justice Kennedy join, concurring in part and dissenting in part.
I join Parts I and II and all of Part III of the Court's opinion except footnote 11, see ante, at 390, n. 11. I thus agree that where municipal policymakers are confronted with an obvious need to train city personnel to avoid the violation of constitutional rights and they are deliberately indifferent to that need, the lack of necessary training may be appropriately considered a city "policy" subjecting the city itself to liability under our decision in Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). As the Court observes, "[o]nly where a failure to train reflects a 'deliberate' or 'conscious' choice by a municipality -- a 'policy' as defined by our prior cases -- can a city be liable for such a failure under [42 U. S. C.] § 1983." Ante, at 389. I further agree that a § 1983 plaintiff pressing a "failure to train" claim must prove that the lack of training was the "cause" of the constitutional injury at issue and that this entails more than simply showing "but for" causation. Ante, at 392. Lesser requirements of fault and causation in this context would "open municipalities to unprecedented liability under § 1983," ante, at 391, and would pose serious federalism concerns. Ante, at 392.
My single point of disagreement with the majority is thus a small one. Because I believe, as the majority strongly hints, see ibid., that respondent has not and could not satisfy the fault and causation requirements we adopt today, I think it unnecessary to remand this case to the Court of Appeals for further proceedings. This case comes to us after a full trial during which respondent vigorously pursued numerous theories of municipal liability including an allegation that the city had a "custom" of not providing medical care to detainees suffering from emotional illnesses. Respondent thus had every opportunity and incentive to adduce the type of proof necessary to satisfy the deliberate indifference standard we adopt today. Rather than remand in this context, I would apply the deliberate indifference standard to the facts of this case. After undertaking that analysis below, I conclude that there is no evidence in the record indicating that the city of Canton has been deliberately indifferent to the constitutional rights of pretrial detainees.
I
In Monell, the Court held that municipal liability can be imposed under § 1983 only where the municipality, as an entity, can be said to be "responsible" for a constitutional violation committed by one of its employees. "[T]he touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution." 436 U.S., at 690. The Court found that the language of § 1983, and rejection of the "Sherman Amendment" by the 42d Congress, were both strong indicators that the framers of the Civil Rights Act of 1871 did not intend that municipal governments be held vicariously liable for the constitutional torts of their employees. Thus a § 1983 plaintiff seeking to attach liability to the city for the acts of one of its employees may not rest on the employment relationship alone; both fault and causation as to the acts or omissions of the city itself must be proved. The Court reaffirms these requirements today.
Where, as here, a claim of municipal liability is predicated upon a failure to act, the requisite degree of fault must be shown by proof of a background of events and circumstances which establish that the "policy of inaction" is the functional equivalent of a decision by the city itself to violate the Constitution. Without some form of notice to the city, and the opportunity to conform to constitutional dictates both what it does and what it chooses not to do, the failure to train theory of liability could completely engulf Monell, imposing liability without regard to fault. Moreover, absent a requirement that the lack of training at issue bear a very close causal connection to the violation of constitutional rights, the failure to train theory of municipal liability could impose "prophylactic" duties on municipal governments only remotely connected to underlying constitutional requirements themselves.
Such results would be directly contrary to the intent of the drafters of § 1983. The central vice of the Sherman Amendment, as noted by the Court's opinion in Monell, was that it "impose[d] a species of vicarious liability on municipalities since it could be construed to impose liability even if the municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything about it." 436 U.S., at 692, n. 57 (emphasis added). Moreover, as noted in Monell, the authors of § 1 of the Ku Klux Act did not intend to create any new rights or duties beyond those contained in the Constitution. Id., at 684-685. Thus, § 1 was referred to as "reenacting the Constitution." Cong. Globe, 42d Cong., 1st Sess., 569 (1871) (Rep. Edmunds). Representative Bingham, the author of § 1 of the Fourteenth Amendment, saw the purpose of § 1983 as "the enforcement . . . of the Constitution on behalf of every individual citizen of the Republic . . . to the extent of the rights guaranteed to him by the Constitution." Id., at App. 81. See also Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617 (1979) ("[Section] 1 of the Civil Rights Act of 1871 did not provide for any substantive rights -- equal or otherwise. As introduced and enacted, it served only to insure that an individual had a cause of action for violations of the Constitution"). Thus § 1983 is not a "federal good government act" for municipalities. Rather it creates a federal cause of action against persons, including municipalities, who deprive citizens of the United States of their constitutional rights.
Sensitive to these concerns, the Court's opinion correctly requires a high degree of fault on the part of city officials before an omission that is not in itself unconstitutional can support liability as a municipal policy under Monell. As the Court indicates, "it may happen that . . . the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Ante, at 390. Where a § 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens, the dictates of Monell are satisfied. Only then can it be said that the municipality has made "'a deliberate choice to follow a course of action . . . from among various alternatives.'" Ante, at 389, quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-484 (1986).
In my view, it could be shown that the need for training was obvious in one of two ways. First, a municipality could fail to train its employees concerning a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face. As the majority notes, see ante, at 390, n. 10, the constitutional limitations established by this Court on the use of deadly force by police officers present one such situation. The constitutional duty of the individual officer is clear, and it is equally clear that failure to inform city personnel of that duty will create an extremely high risk that constitutional violations will ensue.
The claim in this case -- that police officers were inadequately trained in diagnosing the symptoms of emotional illness -- falls far short of the kind of "obvious" need for training that would support a finding of deliberate indifference to constitutional rights on the part of the city. As the Court's opinion observes, ante, at 388-389, n. 8, this Court has not yet addressed the precise nature of the obligations that the Due Process Clause places upon the police to seek medical care for pretrial detainees who have been physically injured while being apprehended by the police. SeeRevere v. Massachusetts General Hospital
Second, I think municipal liability for failure to train may be proper where it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations involving the exercise of police discretion. In such cases, the need for training may not be obvious from the outset, but a pattern of constitutional violations could put the municipality on notice that its officers confront the particular situation on a regular basis, and that they often react in a manner contrary to constitutional requirements. The lower courts that have applied the "deliberate indifference" standard we adopt today have required a showing of a pattern of violations from which a kind of "tacit authorization" by city policymakers can be inferred. See, e. g., Fiacco v. Rensselaer
The Court's opinion recognizes this requirement, see ante, at 390, and n. 10, but declines to evaluate the evidence presented in this case in light of the new legal standard. Ante, at 392. From the outset of this litigation, respondent has pressed a claim that the city of Canton had a custom of denying medical care to pretrial detainees with emotional disorders. See Amended Complaint para. 28, App. 27. Indeed, up to and including oral argument before this Court, counsel for respondent continued to assert that respondent was attempting to hinge municipal liability upon "both a custom of denying medical care to a certain class of prisoners, and a failure to train police that led to this particular violation." Tr. of Oral Arg. 37-38. At the time respondent filed her complaint in 1980, it was clear that proof of the existence of a custom entailed a showing of "practices . . . so permanent and well settled as to constitute a 'custom or usage' with the force of law." Adickes v. S. H. Kress & Co.
Whatever the prevailing standard at the time concerning liability for failure to train, respondent thus had every incentive to adduce proof at trial of a pattern of violations to support her claim that the city had an unwritten custom of denying medical care to emotionally ill detainees. In fact, respondent presented no testimony from any witness indicating that there had been past incidents of "deliberate indifference" to the medical needs of emotionally disturbed detainees or that any other circumstance had put the city on actual or constructive notice of a need for additional training in this regard. At trial, David Maser, who was Chief of Police of the city of Canton from 1971 to 1980, testified without contradiction that during his tenure he received no complaints that detainees in the Canton jails were not being accorded proper medical treatment. Tr. 4-347 -- 4-348. Former Officer Cherry, who had served as a jailer for the Canton Police Department, indicated that he had never had to seek medical treatment for persons who were emotionally upset at the prospect of arrest, because they usually calmed down when a member of the department spoke with them or one of their family members arrived. Id., at 4-83 -- 4-84. There is quite simply nothing in this record to indicate that the city of Canton had any reason to suspect that failing to provide this kind of training would lead to injuries of any kind, let alone violations of the Due Process Clause. None of the Courts of Appeals that already apply the standard we adopt today would allow respondent to take her claim to a jury based on the facts she adduced at trial. See Patzner v. Burkett
Allowing an inadequate training claim such as this one to go to the jury based upon a single incident would only invite jury nullification of Monell. "To infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell." Oklahoma City v. Tuttle We hold today that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.8 This rule is most consistent with our admonition in Monell, 436 U.S., at 694, and Polk County v. Dodson, 454 U.S. 312, 326 (1981), that a municipality can be liable under § 1983 only where its policies are the "moving force [behind] the constitutional violation." Only where a municipality's failure to train its employees in a relevant respect evidences a "deliberate indifference" to the rights of its inhabitants can such a shortcoming be properly thought of as a city "policy or custom" that is actionable under § 1983. As Justice Brennan's opinion in Pembaur v. Cincinnati, 475 U.S. 469, 483-484 (1986) (plurality) put it: "[M]unicipal liability under § 1983 attaches where -- and only where -- a deliberate choice to follow a course of action is made from among various alternatives" by city policymakers. See also Oklahoma City v. Tuttle, 471 U.S., at 823 (opinion of Rehnquist, J.). Only where a failure to train reflects a "deliberate" or "conscious" choice by a municipality -- a "policy" as defined by our prior cases -- can a city be liable for such a failure under § 1983.
That much may be true. The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent "city policy." It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.10 In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.11
, 480 U.S., at 268 (O'Connor, J., dissenting); Oklahoma City v. Tuttle, supra, at 821 (opinion of Rehnquist, J.). It may be, for example, that an otherwise sound program has occasionally been negligently administered. Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal. And plainly, adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable.
Would the injury have been avoided had the employee been trained under a program that was not deficient in the identified respect? Predicting how a hypothetically well-trained officer would have acted under the circumstances may not be an easy task for the factfinder, particularly since matters of judgment may be involved, and since officers who are well trained are not free from error and perhaps might react very much like the untrained officer in similar circumstances. But judge and jury, doing their respective jobs, will be adequate to the task.
, 471 U.S., at 823 (opinion of Rehnquist, J.). Thus, permitting cases against cities for their "failure to train" employees to go forward under § 1983 on a lesser standard of fault would result in de facto respondeat superior liability on municipalities -- a result we rejected in Monell, 436 U.S., at 693-694. It would also engage the federal courts in an endless exercise of second-guessing municipal employee-training programs. This is an exercise we believe the federal courts are ill suited to undertake, as well as one that would implicate serious questions of federalism. Cf. Rizzo v. Goode, 423 U.S. 362, 378-380 (1976).
, 463 U.S. 239, 246 (1983) (Rehnquist, J., concurring). There are thus no clear constitutional guideposts for municipalities in this area, and the diagnosis of mental illness is not one of the "usual and recurring situations with which [the police] must deal." Ante, at 391. The lack of training at issue here is not the kind of omission that can be characterized, in and of itself, as a "deliberate indifference" to constitutional rights.
, 783 F. 2d 319, 327 (CA2 1986) (multiple incidents required for finding of deliberate indifference); Patzner v. Burkett, 779 F. 2d 1363, 1367 (CA8 1985) ("[A] municipality may be liable if it had notice of prior misbehavior by its officers and failed to take remedial steps amounting to deliberate indifference to the offensive acts"); Languirand v. Hayden, 717 F. 2d 220, 227-228 (CA5 1983) (municipal liability for failure to train requires "evidence at least of a pattern of similar incidents in which citizens were injured or endangered"); Wellington v. Daniels, 717 F. 2d 932, 936 (CA4 1983) ("[A] failure to supervise gives rise to § 1983 liability, however, only in those situations where there is a history of widespread abuse. Only then may knowledge be imputed to the supervisory personnel").
, 398 U.S. 144, 168 (1970); see also Garner v. Memphis Police Department, 600 F. 2d 52, 54-55, and n. 4 (CA6 1979) (discussing proof of custom in light of Monell).
, supra, at 1367 (summary judgment proper under "deliberate indifference" standard where evidence of only single incident adduced); Languirand v. Hayden, supra, at 229 (reversing jury verdict rendered under failure to train theory where there was no evidence of prior incidents to support a finding that municipal policymakers were "consciously indifferent" to constitutional rights); Wellington v. Daniels, supra, at 937 (affirming judgment notwithstanding verdict for municipality under "deliberate indifference" standard where evidence of only a single incident was presented at trial); cf. Fiacco v. Rensselaer, supra, at 328-332 (finding evidence of "deliberate indifference" sufficient to support jury verdict where a pattern of similar violations was shown at trial).
, 471 U.S. 808, 831 (1985) (Brennan, J., concurring in part and concurring in judgment). As the authors of the Ku Klux Act themselves realized, the resources of local government are not inexhaustible. The grave step of shifting those resources to particular areas where constitutional violations are likely to result through the deterrent power of § 1983 should certainly not be taken on the basis of an isolated incident. If § 1983 and the Constitution require the city of Canton to provide detailed medical and psychological training to its police officers, or to station paramedics at its jails, other city services will necessarily suffer, including those with far more direct implications for the protection of constitutional rights. Because respondent's evidence falls far short of establishing the high degree of fault on the part of the city required by our decision today, and because there is no indication that respondent could produce any new proof in this regard, I would reverse the judgment of the Court of Appeals and order entry of judgment for the city.
| City of Canton, Ohio v. Harris Transcript |
| City of Canton, Ohio v. Harris Briefs |
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Notes on City of Canton, Ohio v. Harris |
, 996 F.2d 745, 760-61 (5th Cir. 1993) (There are some indications that Canton requires a showing of deliberate indifference to citizens’ constitutional rights, not merely the harm inflicted by city employees that gives rise to constitutional claims....It therefore may well be, as several district courts have held, that to be ‘deliberately indifferent’ to rights requires that those rights be clearly established.’); Cornfield by Lewis v. School Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993) (Given the nebulous standards governing student searches, school districts...cannot be held accountable on this ground [failure to train] because the particular constitutional duty is not clear.).
, 503 U.S. 115 (1992), the plaintiff averred that the city’s deliberate indifference to her husband’s safety was arbitrary governmental action that shocked the conscience under the Due Process Clause. The Court upheld dismissal of plaintiff’s complaint, concluding that the claimed failure to train the city’s employees did not contravene the substantive due process protections of the Fourteenth Amendment:
Our refusal to characterize the city’s alleged omission in this case as arbitrary in a constitutional sense rests upon the presumption that the administration of government programs is based upon the rational decisionmaking process that takes account of competing social, political and economic forces....Decisions concerning the allocation of resources to...the training...of employees, involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country.Collins, 503 U.S. at 128-29. Should the same presumption and deference apply in assessing whether the plaintiff has proven deliberate indifference to the need to train to establish municipal policy under Section 1983?
, 974 F.3d 293, 297-98 (2nd Cir. 1992), the court of appeals offered that under Canton, three requirements must be satisfied to prove deliberate indifference:
First, the plaintiff must show that a policymaker knows to a moral certainty that her employees will confront a given situation. Id. Thus, a policymaker does not exhibit deliberate indifference by failing to train employees for rare or unforeseen events.Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation. Whether to use deadly force in apprehending a fleeing suspect qualifies as a difficult choice because more than the application of common sense is required. Instead, police officers must adhere to the rule of Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L.Ed.2d 1 (1985), that deadly force may constitutionally be applied to a fleeing suspect only when the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm and when, where possible, some warning has been given. Id. at 11-12, 105 S. Ct. at 1701. A choice might also be difficult where, although the proper course is clear, the employee has powerful incentives to make the wrong choice.
Finally, the plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizens’ constitutional rights. City of Canton, 489 U.S. at 390, 109 S. Ct. at 1205. Thus, municipal policymakers may appropriately concentrate training and supervision resources on those situations where employee misconduct is likely to deprive citizens of constitutional rights.
Where the plaintiff establishes all three elements, then we think it can be said with confidence that the policymaker should have known that inadequate training or supervision was so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to need.
, 10 F.3d 1535 (11th Cir. 1994) (en banc), the personal representatives of the estates of two inmates who committed suicide by hanging themselves by a strip of bed sheet tied to a bar across the cell window brought a Section 1983 action against the County. In sixteen months prior to the one inmate’s suicide, there had been twenty-seven suicide attempts and two suicides in the Jefferson County Jail.
The court of appeals, sitting en banc, overturned the panel’s reversal of the district court’s grant of summary judgment to the County on the claim that the County was deliberately indifferent to the risk of suicide at the jail:
[A] finding of deliberate indifference requires that officials have notice of the suicidal tendency of the individual whose rights are at issue in order to be held liable for then suicide of that individual....[D]eliberate indifference can only be established where a plaintiff demonstrates a ‘strong likelihood, rather than a mere possibility,’ that suicide would result from a defendant’s action or inaction.
* * * * * The plaintiffs cite no authority that supports the argument that the occurrence of two suicides and twenty-seven attempted suicides in the jail requires County officials to conclude that all prisoners of the Jefferson County Jail are likely to attempt suicide....The fact that one suicide occurred before Tittle committed suicide and two suicides occurred before Harrell committed suicide, without more, did not increase the possibility of suicide to a strong likelihood.
10 F.3d at 1540-41.
, 948 F.2d 10 (1st Cir. 1991), the First Circuit considered whether evidence of subsequent incidents of alleged violations can be used to establish a municipal policy of inadequate of training. Plaintiff arrestee alleged: 1) that his Fourteenth Amendment due process rights had been violated when he was brutally beaten by police; and 2) the City of Lowell had inadequately trained and supervised its police force and had allowed its police force to enforce constitutionally offensive policies. Id. at 12.
Plaintiff sought to admit evidence of a subsequent incident of police misconduct (which involved a police officer urinating on an individual) as evidence of a municipal policy and custom of studied indifference to the violation of constitutional rights by police officers. Id. at 13. Plaintiff further wished to include evidence of the individual officer’s subsequent promotion as relevant to proving indifference to such misconduct. Id. In allowing evidence of the promotion to be introduced, the court reasoned,
Id. (italics added).
[w]e think the actions taken subsequent to an event are admissible if, and to the extent that, they provide reliable insight into the policy in force at the time of the incident....[w]e do not mean to imply that all post-event evidence is automatically admissible in a section 1983 custom or policy case. Rather, the question that must be asked when post-event evidence is proffered is whether the evidence is sufficiently related to the central occurrence....
See also Henry v. County of Shasta, 132 F.3d 512, 519 (9th Cir. 1997) ([P]ost-event evidence is not only admissible for purposes of proving the existence of a municipal defendant’s policy or custom, but is highly probative with respect to that inquiry.)
, 92 F.3d 831 (9th Cir. 1996), Searcy v. City of Dayton, 38 F.3d 282 (6th Cir. 1994), Ricketts v. City of Columbia, 36 F.3d 775 (8th Cir. 1994) and Fernandez v. Leonard, 963 F.2d 459 (1st Cir. 1992) (municipality not liable absent proof of causal link).
In City of Springfield, Mass v. Kibbe, 475 U.S. 1064 (1986), the Supreme Court had granted certiorari to resolve whether a plaintiff is required to prove more than negligence to establish municipal liability for failure to train. The Court subsequently dismissed the writ of certiorari as improvidently granted because the city had not objected to the trial court’s instruction that the jury could award damages against the city for gross negligence in training. City of Springfield v. Kibbe, 480 U.S. 257 (1987).
Justice O’Connor, joined by Chief Justice Rehnquist, Justice White and Justice Powell, dissented from dismissal of the writ and promoted the following view of the culpability issue:
In this case, the causal connection between the municipal policy and the constitutional violation is an inherently tenuous one. Respondent does not contend that the City’s police training program authorizes the use of deadly force in the apprehension of fleeing vehicles; rather, her argument is that the methods taught in the City’s training program were inadequate, and that if individual officers had received more complete training, they would have resorted to those alternative methods without engaging in the unconstitutional conduct. The difficulty with respondent’s argument is that at the time of the officer’s alleged misconduct, any number of other factors were also in operation that were equally likely to contribute or play a predominant part in bringing about the constitutional injury: the disposition of the individual officers, the extent of their experience with similar incidents, the actions of the other officers involved, and so forth. To conclude, in a particular instance, that omissions in a municipal training program constituted the moving force in bringing about the officer’s unconstitutional conduct, notwithstanding the large number of intervening causes also at work up to the time of the constitutional harm, appears to be largely a matter of speculation and conjecture.Kibbe, 480 U.S. at 268-69.Because of the remote causal connection between omissions in a police training program and affirmative misconduct by individual officers in a particular instance, in my view the inadequacy of police training may serve as a basis for § 1983 liability only where failure to train amounts to a reckless disregard for or deliberate indifference to the rights of persons with the city’s domain. The causation requirement of § 1983 is a matter of statutory interpretation rather than of common tort law. Cf. Martinez v. California, 444 U.S. 277, 285, 100 S. Ct. 553, 559, 62 L.Ed.2d 481 (1980) (injury too remote a consequence of official conduct to impose liability under § 1983, even if conduct proximately caused injury under state tort law). Analogy to traditional tort principles, however, shows that the law has been willing to trace more distant causation when there is a cognitive component to the defendant’s fault than when the defendant’s conduct results from simple or heightened negligence. See, e.g., Restatement (Second) of Torts § 501, Comment a, p.591 (1965) (a jury may be permitted to find that a defendant’s reckless misconduct bears a sufficient causal relation to a plaintiff’s harm to make him liable, although were the defendant’s conduct merely negligent, no such finding would be permissible). See generally, W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 34, p.213 (5th ed. 1984). Similarly, a jury should be permitted to find that the municipality’s inadequate training caused the plaintiff’s injury only if the inadequacy of the training amounts to deliberate indifference or reckless disregard for the consequences. Negligence in training alone is not sufficient to satisfy the causation requirement of § 1983.
, 926 F.2d 142, 152-53 (2nd Cir. 1990) (Plaintiffs were not obligated to produce specific evidence that defendants had knowledge of a declared policy of the County and acted on this knowledge in promoting the malicious prosecution of plaintiffs....The critical question here is whether there is sufficient evidence in the record of municipal policy, custom or practice so that the jury could reasonably infer that the individual conduct in this case was causally connected to the policy....’[A] causal connection...might permissibly be implied’ from ‘conduct’ such as inadequate training.).
, 15 F.3d 443, 453 (5th Cir. 1994) (en banc) (The legal elements of an individual’s supervisory liability and a political subdivision’s liability...are similar enough that the same standards of fault and causation should govern.); Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990); Greason v. Kemp, 891 F.2d 829 (11th Cir. 1990); Sample v. Diecks, 855 F.2d 1099, 1118 (3rd. Cir. 1989) (the standard of individual liability for supervisory public officials will be found no less stringent than the standard of liability for the public entities that they serve.).
What language in Section 1983 was the Canton Court interpreting? Does Canton have any relevance to the liability of individual supervisors?
, 475 U.S. 796 (1986), plaintiff sued the City of Los Angeles as well as police officer Bushey for allegedly using excessive force in the course of an arrest. The district court bifurcated the case and first heard the claim against Officer Bushey.
Officer Bushey did not plead a qualified immunity defense. However, Bushey offered evidence that his conduct comported with official department policy, which was deemed relevant to plaintiff’s allegation that the use of force was unreasonable under all the circumstances, and therefore unconstitutional. The jury returned a general verdict in favor of Officer Bushey. The district court then dismissed the action against the city.
The court of appeals found that the district court erred in dismissing the city, agreeing with plaintiff’s argument that the jury could have believed that Bushey, having followed Police Department regulations, was entitled in substance to a defense of good faith. Such a belief would not negate the existence of a constitutional injury. Heller v. Bushey, 759 F.2d 1371, 1373-74 (9th Cir. 1985).
In a per curiam opinion, the Supreme Court reversed the judgment of the court of appeals, reasoning as follows:
[T]he jury was not charged on any affirmative defense such as good faith which might have been availed of by the individual police officer. Respondent contends in his brief in opposition to certiorari that even though no issue of qualified immunity was presented to the jury, the jury might nonetheless have considered evidence which would have supported a finding of such immunity. But the theory under which the jury instructions are given by trial courts and reviewed on appeal is that juries act in accordance with the instructions given them...and that they do not consider and base their decisions on legal questions with respect to which they are not charged...475 U.S. at 798-99.[N]either Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), nor any other of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm. If a defendant has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.
Justice Stevens, joined by Justice Marshall, vigorously dissented:
If the Court’s unprecedented, ill-considered, and far-reaching decision happens to be correct, defendants as a class have been presented with a tactical weapon of great value. By persuading trial judges to bifurcate trials in which both the principal and its agents are named as defendants, and to require the jury to bring in its verdict on the individual claim first, they may obtain the benefit of whatever intangible factors have prompted juries to bring in a multitude of inconsistent verdicts in past years; defendants will no longer have to abide the mechanisms that courts have used to mitigate and resolve apparent inconsistencies. Perhaps that is an appropriate response to the current widespread concern about the potential liabilities of our municipalities, but I doubt it.Id. at 807-08.
, 507 A.2d 233 (1986), the Supreme Court of New Jersey reviewed the Supreme Court’s Advisory Committee on Professional Ethics ruling which barred an attorney from simultaneously representing a governmental entity and any of its officials when they are co-defendants in a Section 1983 action.
In a § 1983 suit against both the governmental entity and individual government officials, the governmental entity, in an effort to shift liability, may claim that the assertedly wrongful conduct of the individuals was unauthorized and outside the scope of the employment. Conversely, in his or her defense, an employee-defendant may claim that the alleged offending conduct was taken pursuant to an official governmental policy or directive and that the government entity is the party properly responsible and ultimately liable. Thus, under the defenses asserted or available, one party-defendant may seek to avoid or lessen its exposure at the expense of the other.507 A.2d at 235.The Committee in Opinion 552 recognized that where a governmental official or employee has been named as a co-defendant in a § 1983 civil rights action against a municipality, the attorney who undertakes representation of both defendants may be in a situation of potential conflict. Indeed, the Committee was of the view that a potential conflict of interests was almost invariably present in these situations, and therefore such potential conflicts could be overcome effectively only by an absolute prohibition against multiple representations.
The New Jersey Supreme Court agreed that a conflict could be presented by joint representation. The Court found, however, that in certain circumstances an attorney could represent both the governmental entity and its official without any conflict of interest problems. No conflict would exist where the government entity conceded that the official acted in furtherance of official policy or where the entity is obligated to indemnify its officials for any damages. The Court expressed concern with the financial burden that would be imposed on municipalities if they automatically were forced to obtain independent counsel for employees, a burden which would be aggravated by the possibility that the plaintiffs would sue numerous officials to induce municipalities to settle in order to avoid the costs of separate counsel. The Court, therefore, modified the ethics committee’s opinion as follows:
In conclusion, we determine that the per se ban as formulated by the Committee, prohibiting joint representation of multiple defendants in all § 1983 civil-rights actions, is too broad. We rule that in situations in which there is no actual conflict of interests, or the likelihood of an actual conflict of interests is remote and poses no realistic threat to the effective representation of such multiple defendants, an attorney should not be prohibited from representing both parties. We rule further that in cases where there is a potential conflict of interests joint representation may be allowed, provided the guidelines of our current Rules of Professional Conduct are followed by the attorney furnishing such joint representation. Stated somewhat differently, we rule that in a § 1983 action, a government attorney is precluded from representing co-defendant government officers or employees only where the allegations or the facts as developed present an actual conflict of interests or the realistic possibility of such a conflict. If no such conflict is presented, then a government attorney may simultaneously represent as co-defendants governmental officers or employees and the government entity. The joint representation, however, is conditioned upon the continuing obligation of the attorney to ascertain whether there exist potential conflicts of interests among the defendants, and if, under the circumstances, such potential conflicting interests emerge that outweigh the mutuality or similarity of the interests among defendants, the attorney shall be obligated promptly to terminate such joint representation and initiate steps for the separate representation of the defendants.507 A.2d at 240-41. See also M. Schwartz and J. Kirkland, Section 1983 Litigation: Claims, Defenses and Fees, § 4.13 (1986).
|
Board of the County Commissioners of Bryan County, Oklahoma v. Brown |
Justice O’Connor delivered the opinion of the Court.
Respondent Jill Brown brought a claim for damages against petitioner Bryan County under Rev. Stat. § 1979, 42 U.S.C. § 1983. She alleged that a county police officer used excessive force in arresting her, and that the county itself was liable for her injuries based on its sheriff's hiring and training decisions. She prevailed on her claims against the county following a jury trial, and the Court of Appeals for the Fifth Circuit affirmed the judgment against the county on the basis of the hiring claim alone. 67 F.3d 1174 (1995). We granted certiorari. We conclude that the Court of Appeals' decision cannot be squared with our recognition that, in enacting § 1983, Congress did not intend to impose liability on a municipality unless deliberate action attributable to the municipality itself is the "moving force" behind the plaintiff's deprivation of federal rights. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
I
In the early morning hours of May 12, 1991, respondent Jill Brown and her husband were driving from Grayson County, Texas, to their home in Bryan County, Oklahoma. After crossing into Oklahoma, they approached a police checkpoint. Mr. Brown, who was driving, decided to avoid the checkpoint and return to Texas. After seeing the Browns' truck turn away from the checkpoint, Bryan County Deputy Sheriff Robert Morrison and Reserve Deputy Stacy Burns pursued the vehicle. Although the parties' versions of events differ, at trial both deputies claimed that their patrol car reached speeds in excess of 100 miles per hour. Mr. Brown testified that he was unaware of the deputies' attempts to overtake him. The chase finally ended four miles south of the police checkpoint.
After he got out of the squad car, Deputy Sheriff Morrison pointed his gun toward the Browns' vehicle and ordered the Browns to raise their hands. Reserve Deputy Burns, who was unarmed, rounded the corner of the vehicle on the passenger's side. Burns twice ordered respondent Jill Brown from the vehicle. When she did not exit, he used an "arm bar" technique, grabbing respondent's arm at the wrist and elbow, pulling her from the vehicle, and spinning her to the ground. Respondent's knees were severely injured, and she later underwent corrective surgery. Ultimately, she may need knee replacements.
Respondent sought compensation for her injuries under 42 U.S.C. § 1983 and state law from Burns, Bryan County Sheriff B. J. Moore, and the county itself. Respondent claimed, among other things, that Bryan County was liable for Burns' alleged use of excessive force based on Sheriff Moore's decision to hire Burns, the son of his nephew. Specifically, respondent claimed that Sheriff Moore had failed to adequately review Burns' background. Burns had a record of driving infractions and had pleaded guilty to various driving-related and other misdemeanors, including assault and battery, resisting arrest, and public drunkenness. Oklahoma law does not preclude the hiring of an individual who has committed a misdemeanor to serve as a peace officer. See Okla. Stat., Tit. 70, § 3311(D)(2)(a) (1991) (requiring that the hiring agency certify that the prospective officer's records do not reflect a felony conviction). At trial, Sheriff Moore testified that he had obtained Burns' driving record and a report on Burns from the National Crime Information Center, but had not closely reviewed either. Sheriff Moore authorized Burns to make arrests, but not to carry a weapon or to operate a patrol car.
In a ruling not at issue here, the District Court dismissed respondent's § 1983 claim against Sheriff Moore prior to trial. App. 28. Counsel for Bryan County stipulated that Sheriff Moore "was the policy maker for Bryan County regarding the Sheriff's Department." Id., at 30. At the close of respondent's case and again at the close of all of the evidence, Bryan County moved for judgment as a matter of law. As to respondent's claim that Sheriff Moore's decision to hire Burns triggered municipal liability, the county argued that a single hiring decision by a municipal policymaker could not give rise to municipal liability under § 1983. Id., at 59-60. The District Court denied the county's motions. The court also overruled the county's objections to jury instructions on the § 1983 claim against the county. Id., at 125-126, 132.
To resolve respondent's claims, the jury was asked to answer several interrogatories. The jury concluded that Stacy Burns had arrested respondent without probable cause and had used excessive force, and therefore found him liable for respondent's injuries. It also found that the "hiring policy" and the "training policy" of Bryan County "in the case of Stacy Burns as instituted by its policymaker, B. J. Moore," were each "so inadequate as to amount to deliberate indifference to the constitutional needs of the Plaintiff." Id., at 135. The District Court entered judgment for respondent on the issue of Bryan County's § 1983 liability. The county appealed on several grounds, and the Court of Appeals for the Fifth Circuit affirmed. 67 F.3d 1174 (1995). The court held, among other things, that Bryan County was properly found liable under § 1983 based on Sheriff Moore's decision to hire Burns. Id., at 1185. The court addressed only those points that it thought merited review; it did not address the jury's determination of county liability based on inadequate training of Burns, id., at 1178, nor do we. We granted certiorari, 517 U.S. --- (1996), to decide whether the county was properly held liable for respondent's injuries based on Sheriff Moore's single decision to hire Burns. We now reverse.
II
The parties join issue on whether, under Monell and subsequent cases, a single hiring decision by a county sheriff can be a "policy" that triggers municipal liability. Relying on our decision in Pembaur, respondent claims that a single act by a decisionmaker with final authority in the relevant area constitutes a "policy" attributable to the municipality itself. So long as a § 1983 plaintiff identifies a decision properly attributable to the municipality, respondent argues, there is no risk of imposing respondeat superior liability. Whether that decision was intended to govern only the situation at hand or to serve as a rule to be applied over time is immaterial. Rather, under respondent's theory, identification of an act of a proper municipal decisionmaker is all that is required to ensure that the municipality is held liable only for its own conduct. The Court of Appeals accepted respondent's approach.
As our § 1983 municipal liability jurisprudence illustrates, however, it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.
Where a plaintiff claims that a particular municipal action itself violates federal law, or directs an employee to do so, resolving these issues of fault and causation is straightforward. Section 1983 itself "contains no state-of-mind requirement independent of that necessary to state a violation" of the underlying federal right. Daniels v. Williams, 474 U.S. 327, 330, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation. Accordingly, proof that a municipality's legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.
Sheriff Moore's hiring decision was itself legal, and Sheriff Moore did not authorize Burns to use excessive force. Respondent's claim, rather, is that a single facially lawful hiring decision can launch a series of events that ultimately cause a violation of federal rights. Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee. See Canton, 489 U.S. at 391-392; Tuttle
In relying heavily on Pembaur, respondent blurs the distinction between § 1983 cases that present no difficult questions of fault and causation and those that do. To the extent that we have recognized a cause of action under § 1983 based on a single decision attributable to a municipality, we have done so only where the evidence that the municipality had acted and that the plaintiff had suffered a deprivation of federal rights also proved fault and causation. For example, Owen v. Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980), and Newport v. Fact Concerts, Inc.
Similarly, Pembaur v. Cincinnati concerned a decision by a county prosecutor, acting as the county's final decisionmaker, 475 U.S. at 485, to direct county deputies to forcibly enter petitioner's place of business to serve capiases upon third parties. Relying on Owen and Newport, we concluded that a final decisionmaker's adoption of a course of action "tailored to a particular situation and not intended to control decisions in later situations" may, in some circumstances, give rise to municipal liability under § 1983. 475 U.S. at 481. In Pembaur, it was not disputed that the prosecutor had specifically directed the action resulting in the deprivation of petitioner's rights. The conclusion that the decision was that of a final municipal decisionmaker and was therefore properly attributable to the municipality established municipal liability. No questions of fault or causation arose.
Claims not involving an allegation that the municipal action itself violated federal law, or directed or authorized the deprivation of federal rights, present much more difficult problems of proof. That a plaintiff has suffered a deprivation of federal rights at the hands of a municipal employee will not alone permit an inference of municipal culpability and causation; the plaintiff will simply have shown that the employee acted culpably. We recognized these difficulties in Canton v. Harris, supra, where we considered a claim that inadequate training of shift supervisors at a city jail led to a deprivation of a detainee's constitutional rights. We held that, quite apart from the state of mind required to establish the underlying constitutional violation--in that case, a violation of due process, 489 U.S. at 388-389, n. 8--a plaintiff seeking to establish municipal liability on the theory that a facially lawful municipal action has led an employee to violate a plaintiff's rights must demonstrate that the municipal action was taken with "deliberate indifference" as to its known or obvious consequences. Id., at 388. A showing of simple or even heightened negligence will not suffice.
We concluded in Canton that an "inadequate training" claim could be the basis for § 1983 liability in "limited circumstances." Id., at 387. We spoke, however, of a deficient training "program," necessarily intended to apply over time to multiple employees. Id., at 390. Existence of a "program" makes proof of fault and causation at least possible in an inadequate training case. If a program does not prevent constitutional violations, municipal decisionmakers may eventually be put on notice that a new program is called for. Their continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action--the "deliberate indifference"--necessary to trigger municipal liability. Id., at 390, n. 10 ("It could . . . be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are 'deliberately indifferent' to the need"); id., at 397 (O’Connor, J., concurring in part and dissenting in part) ("Municipal liability for failure to train may be proper where it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations . . ."). In addition, the existence of a pattern of tortious conduct by inadequately trained employees may tend to show that the lack of proper training, rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the "moving force" behind the plaintiff's injury. See id., at 390-391.
Before trial, counsel for Bryan County stipulated that Sheriff Moore "was the policy maker for Bryan County regarding the Sheriff's Department." App. 30. Indeed, the county sought to avoid liability by claiming that its Board of Commissioners participated in no policy decisions regarding the conduct and operation of the office of the Bryan County Sheriff. Id., at 32. Accepting the county's representations below, then, this case presents no difficult questions concerning whether Sheriff Moore has final authority to act for the municipality in hiring matters. Cf. Jett v. Dallas Independent School Dist.
In Canton, we did not foreclose the possibility that evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, could trigger municipal liability. 489 U.S. at 390, and n. 10 ("It may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious . . . that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need"). Respondent purports to rely on Canton, arguing that Burns' use of excessive force was the plainly obvious consequence of Sheriff Moore's failure to screen Burns' record. In essence, respondent claims that this showing of "obviousness" would demonstrate both that Sheriff Moore acted with conscious disregard for the consequences of his action and that the Sheriff's action directly caused her injuries, and would thus substitute for the pattern of injuries ordinarily necessary to establish municipal culpability and causation.
The proffered analogy between failure-to-train cases and inadequate screening cases is not persuasive. In leaving open in Canton the possibility that a plaintiff might succeed in carrying a failure-to-train claim without showing a pattern of constitutional violations, we simply hypothesized that, in a narrow range of circumstances, a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations. The likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that situation will violate citizens' rights could justify a finding that policymakers' decision not to train the officer reflected "deliberate indifference" to the obvious consequence of the policymakers' choice--namely, a violation of a specific constitutional or statutory right. The high degree of predictability may also support an inference of causation--that the municipality's indifference led directly to the very consequence that was so predictable.
Where a plaintiff presents a § 1983 claim premised upon the inadequacy of an official's review of a prospective applicant's record, however, there is a particular danger that a municipality will be held liable for an injury not directly caused by a deliberate action attributable to the municipality itself. Every injury suffered at the hands of a municipal employee can be traced to a hiring decision in a "but-for" sense: But for the municipality's decision to hire the employee, the plaintiff would not have suffered the injury. To prevent municipal liability for a hiring decision from collapsing into respondeat superior liability, a court must carefully test the link between the policymaker's inadequate decision and the particular injury alleged.
In attempting to import the reasoning of Canton into the hiring context, respondent ignores the fact that predicting the consequence of a single hiring decision, even one based on an inadequate assessment of a record, is far more difficult than predicting what might flow from the failure to train a single law enforcement officer as to a specific skill necessary to the discharge of his duties. As our decision in Canton makes clear, "deliberate indifference" is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action. Unlike the risk from a particular glaring omission in a training regimen, the risk from a single instance of inadequate screening of an applicant's background is not "obvious" in the abstract; rather, it depends upon the background of the applicant. A lack of scrutiny may increase the likelihood that an unfit officer will be hired, and that the unfit officer will, when placed in a particular position to affect the rights of citizens, act improperly. But that is only a generalized showing of risk. The fact that inadequate scrutiny of an applicant's background would make a violation of rights more likely cannot alone give rise to an inference that a policymaker's failure to scrutinize the record of a particular applicant produced a specific constitutional violation. After all, a full screening of an applicant's background might reveal no cause for concern at all; if so, a hiring official who failed to scrutinize the applicant's background cannot be said to have consciously disregarded an obvious risk that the officer would subsequently inflict a particular constitutional injury.
We assume that a jury could properly find in this case that Sheriff Moore's assessment of Burns' background was inadequate. Sheriff Moore's own testimony indicated that he did not inquire into the underlying conduct or the disposition of any of the misdemeanor charges reflected on Burns' record before hiring him. But this showing of an instance of inadequate screening is not enough to establish "deliberate indifference." In layman's terms, inadequate screening of an applicant's record may reflect "indifference" to the applicant's background. For purposes of a legal inquiry into municipal liability under § 1983, however, that is not the relevant "indifference." A plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision. Only where adequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's federally protected right can the official's failure to adequately scrutinize the applicant's background constitute "deliberate indifference."
Neither the District Court nor the Court of Appeals directly tested the link between Burns' actual background and the risk that, if hired, he would use excessive force. The District Court instructed the jury on a theory analogous to that reserved in Canton. The court required respondent to prove that Sheriff Moore's inadequate screening of Burns' background was "so likely to result in violations of constitutional rights" that the Sheriff could "reasonably [be] said to have been deliberately indifferent to the constitutional needs of the Plaintiff." App. 123 (emphasis added). The court also instructed the jury, without elaboration, that respondent was required to prove that the "inadequate hiring . . . policy directly caused the Plaintiff's injury." Ibid.
As discussed above, a finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict any constitutional injury. Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff. The connection between the background of the particular applicant and the specific constitutional violation alleged must be strong. What the District Court's instructions on culpability, and therefore the jury's finding of municipal liability, failed to capture is whether Burns' background made his use of excessive force in making an arrest a plainly obvious consequence of the hiring decision. The Court of Appeals' affirmance of the jury's finding of municipal liability depended on its view that the jury could have found that "inadequate screening of a deputy could likely result in the violation of citizens' constitutional rights." 67 F.3d at 1185 (emphasis added). Beyond relying on a risk of violations of unspecified constitutional rights, the Court of Appeals also posited that Sheriff Moore's decision reflected indifference to "the public's welfare." Id., at 1184.
Even assuming without deciding that proof of a single instance of inadequate screening could ever trigger municipal liability, the evidence in this case was insufficient to support a finding that, in hiring Burns, Sheriff Moore disregarded a known or obvious risk of injury. To test the link between Sheriff Moore's hiring decision1
The fact that Burns had pleaded guilty to traffic offenses and other misdemeanors may well have made him an extremely poor candidate for reserve deputy. Had Sheriff Moore fully reviewed Burns' record, he might have come to precisely that conclusion. But unless he would necessarily have reached that decision because Burns' use of excessive force would have been a plainly obvious consequence of the hiring decision, Sheriff Moore's inadequate scrutiny of Burns' record cannot constitute "deliberate indifference" to respondent's federally protected right to be free from a use of excessive force.
Justice Souter’s reading of the case is that the jury believed that Sheriff Moore in fact read Burns' entire record. Post, at 12-13. That is plausible, but it is also irrelevant. It is not sufficient for respondent to show that Sheriff Moore read Burns' record and therefore hired Burns with knowledge of his background. Such a decision may reflect indifference to Burns' record, but what is required is deliberate indifference to a plaintiff's constitutional right. That is, whether Sheriff Moore failed to examine Burns' record, partially examined it, or fully examined it, Sheriff Moore's hiring decision could not have been "deliberately indifferent" unless in light of that record Burns' use of excessive force would have been a plainly obvious consequence of the hiring decision. Because there was insufficient evidence on which a jury could base a finding that Sheriff Moore's decision to hire Burns reflected disregard of an obvious risk that a use of excessive force would follow, the District Court erred in submitting respondent's inadequate screening claim to the jury.
III
Cases involving constitutional injuries allegedly traceable to an ill-considered hiring decision pose the greatest risk that a municipality will be held liable for an injury that it did not cause. In the broadest sense, every injury is traceable to a hiring decision. Where a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat superior liability. As we recognized in Monell and have repeatedly reaffirmed, Congress did not intend municipalities to be held liable unless deliberate action attributable to the municipality directly caused a deprivation of federal rights. A failure to apply stringent culpability and causation requirements raises serious federalism concerns, in that it risks constitutionalizing particular hiring requirements that States have themselves elected not to impose. Cf. Canton v. Harris, 489 U.S. at 392. Bryan County is not liable for Sheriff Moore's isolated decision to hire Burns without adequate screening, because respondent has not demonstrated that his decision reflected a conscious disregard for a high risk that Burns would use excessive force in violation of respondent's federally protected right. We therefore vacate the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion.
It is so ordered.
Justice Souter, with whom Justice Stevens and Justice Breyer join, dissenting.
In Pembaur v. Cincinnati, 475 U.S. 469, 480, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986), we held a municipality liable under 42 U.S.C. § 1983 for harm caused by the single act of a policymaking officer in a matter within his authority but not covered by a policy previously identified. The central question presented here is whether that rule applies to a single act that itself neither violates nor commands a violation of federal [*35] law. The answer is yes if the single act amounts to deliberate indifference to a substantial risk that a violation of federal law will result. With significant qualifications, the Court assumes so, too, in theory, but it raises such skeptical hurdles to reaching any such conclusion in practice that it virtually guarantees its disposition of this case: it holds as a matter of law that the sheriff's act could not be thought to reflect deliberate indifference to the risk that his subordinate would violate the Constitution by using excessive force. I respectfully dissent as much from the level of the Court's skepticism as from its reversal of the judgment.
I
While...the policy requirement may be satisfied in more than one way, there are in fact three alternatives discernible in our prior cases. It is certainly met when the appropriate officer or entity promulgates a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy. Monell exemplified these circumstances, where city agencies had issued a rule requiring pregnant employees to take unpaid leaves of absence before any medical need arose. Monell, 436 U.S. at 660-661.
We have also held the policy requirement satisfied where no rule has been announced as "policy" but federal law has been violated by an act of the policymaker itself. In this situation, the choice of policy and its implementation are one, and the first or only action will suffice to ground municipal liability simply because it is the very policymaker who is acting. See Pembaur, 475 U.S. at 480-481; cf. Newport v. Fact Concerts, Inc.
We have, finally, identified a municipal policy in a third situation, even where the policymaker has failed to act affirmatively at all, so long as the need to take some action to control the agents of the Government "is so obvious, and the inadequacy [of existing practice] so likely to result in the violation of constitutional rights, that the policymaker . . . can reasonably be said to have been deliberately indifferent to the need." Canton v. Harris, 489 U.S. 378, 390, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989). Where, in the most obvious example, the policymaker sits on his hands after repeated, unlawful acts of subordinate officers and that failure "evidences a 'deliberate indifference' to the rights of [the municipality's] inhabitants," Id., at 389, the policymaker's toleration of the subordinates' behavior establishes a policy-in-practice just as readily attributable to the municipality as the one-act policy-in-practice described above. Such a policy choice may be inferred even without a pattern of acts by subordinate officers, so long as the need for action by the policymaker is so obvious that the failure to act rises to deliberate indifference. Id., at 390, n. 10.
Deliberate indifference is thus treated, as it is elsewhere in the law, as tantamount to intent, so that inaction by a policymaker deliberately indifferent to a substantial risk of harm is equivalent to the intentional action that setting policy presupposes.
Under this prior law, Sheriff Moore's failure to screen out his 21-year-old great-nephew Burns on the basis of his criminal record, and the decision instead to authorize Burns to act as a deputy sheriff, constitutes a policy choice attributable to Bryan County under § 1983. There is no serious dispute that Sheriff Moore is the designated policymaker for implementing the sheriff's law enforcement powers and recruiting officers to exercise them, or that he "has final authority to act for the municipality in hiring matters." Ante, at 10. As the authorized policymaker, Sheriff Moore is the county for purposes of § 1983 municipal liability arising from the sheriff's department's exercise of law enforcement authority. As I explain in greater detail below, it was open to the jury to find that the sheriff knew of the record of his nephew's violent propensity, but hired him in deliberate indifference to the risk that he would use excessive force on the job, as in fact he later did. That the sheriff's act did not itself command or require commission of a constitutional violation (like the order to perform an unlawful entry and search in Pembaur) is not dispositive under § 1983, for we have expressly rejected the contention that "only unconstitutional polices are actionable" under § 1983, see Canton, 489 U.S. at 387, and have never suggested that liability under the statute is otherwise limited to policies that facially violate other federal law. The sheriff's policy choice creating a substantial risk of a constitutional violation therefore could subject the county to liability under existing precedent.2
II
At the level of theory, at least, the Court does not disagree, and it assumes for the sake of deciding the case that a single, facially neutral act of deliberate indifference by a policymaker could be a predicate to municipal liability if it led to an unconstitutional injury inflicted by subordinate officers. See ante, at 14. At the level of practice, however, the tenor of the Court's opinion is decidedly different: it suggests that the trial court insufficiently appreciated the specificity of the risk to which such indifference must be deliberate in order to be actionable; it expresses deep skepticism that such appreciation of risk could ever reasonably be attributed to the policymaker who has performed only a single unsatisfactory, but not facially unconstitutional, act; and it finds the record insufficient to make any such showing in this case. The Court is serially mistaken. This case presents no occasion to correct or refine the District Court's jury instructions on the degree of risk required for deliberate indifference; the Court's skepticism converts a newly-demanding formulation of the standard of fault into a virtually categorical impossibility of showing it in a case like this; and the record in this case is perfectly sufficient to support the jury's verdict even on the Court's formulation of the high degree of risk that must be shown.
A
The Court is certainly correct in emphasizing the need to show more than mere negligence on the part of the policymaker, for at the least the element of deliberateness requires both subjective appreciation of a risk of unconstitutional harm, and a risk substantial enough to justify the heightened responsibility that deliberate indifference generally entails. The Court goes a step further, however, in requiring that the "particular" harmful consequence be "plainly obvious" to the policymaker, ante, at 13, a characterization of deliberate indifference adapted from dicta set forth in a footnote in Canton, see 489 U.S. at 390, n. 10. Canton, as mentioned above, held that a municipal policy giving rise to liability under § 1983 may be inferred even when the policymaker has failed to act affirmatively at all, so long as a need to control the agents of the Government "is so obvious, and the inadequacy [of existing practice] so likely to result in the violation of constitutional rights, that the policymaker . . . can reasonably be said to have been deliberately indifferent to the need." Id., at 390. While we speculated in Canton that "it could . . . be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are 'deliberately indifferent' to the need," see id., at 390, n. 10, we did not purport to be defining the fault of deliberate indifference universally as the failure to act in relation to a "plainly obvious consequence" of harm. Nor did we, in addressing the requisite risk that constitutional violations will occur, suggest that the deliberate indifference necessary to establish municipal liability must be, as the Court says today, indifference to the particular constitutional violation that in fact occurred.
The Court's formulation that deliberate indifference exists only when the risk of the subsequent, particular constitutional violation is a plainly obvious consequence of the hiring decision, see ante, at 13, while derived from Canton, is thus without doubt a new standard. See post, at 4-5 (Breyer, J., dissenting). As to the "particular" violation, the Court alters the understanding of deliberate indifference as set forth in Canton, where we spoke of constitutional violations generally. As to "plainly obvious consequence," the Court's standard appears to be somewhat higher, for example, than the standard for "reckless" fault in the criminal law, where the requisite indifference to risk is defined as that which "consciously disregards a substantial and unjustifiable risk that the material element exists or will result . . . [and] involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation." See American Law Institute, Model Penal Code § 2.02(2)(c)(1985).
That said, it is just possible that our prior understanding of the requisite degree of fault and the standard as the Court now states it may in practice turn out to amount to much the same thing, but I would have preferred an argument addressing the point before ruling on it. There was, however, no such argument here for the simple reason that petitioner never asked that deliberate indifference be defined to occur only when the particular constitutional injury was the plainly obvious consequence of the policymaker's act. Petitioner merely asked the District Court to instruct the jury to determine whether Sheriff Moore acted with "conscious indifference," see 2 Record 342, and made no objection to the District Court's charge that "Sheriff B. J. Moore would have acted with deliberate indifference in adopting an otherwise constitutional hiring policy for a deputy sheriff if the need for closer scrutiny of Stacy Burns' background was so obvious and the inadequacy of the scrutiny given so likely to result in violations of constitutional rights, that Sheriff B. J. Moore can be reasonably said to have been deliberately indifferent to the constitutional needs of the Plaintiff." 10 Record 800-801. If, as it appears, today's standard does raise the threshold of municipal liability, it does so quite independently of any issue posed or decided in the trial court.
C
For demonstrating the extreme degree of the Court's inhospitality to single-act municipal liability, this is a case on point, for even under the "plainly obvious consequence" rule the evidence here would support the verdict. There is no dispute that before the incident in question the sheriff ordered a copy of his nephew's criminal record. While the sheriff spoke euphemistically on the witness stand of a "driving record," the scope of the requested documentation included crimes beyond motor vehicle violations and the sheriff never denied that he knew this. He admitted that he read some of that record; he said he knew it was "long"; he said he was sure he had noticed charges of driving with a suspended license; and he said that he had taken the trouble to make an independent search for any outstanding warrant for Burns's arrest. As he put it, however, he somehow failed to "notice" charges of assault and battery or the list of offenses so long as to point either to contempt for law or to incapacity to obey it. Although the jury might have accepted the sheriff's disclaimer, no one who has read the transcript would assume that the jurors gave any credit to that testimony, and it was open to them to find that the sheriff was simply lying under oath about his limited perusal. The Court of Appeals noted this possibility, see 67 F.3d 1174, 1184 (CA5 1995), which is more likely than any other reading of the evidence. Law enforcement officers, after all, are not characteristically so devoid of curiosity as to lose interest part way through the criminal record of a subject of personal investigation.
If, as is likely, the jurors did disbelieve the sheriff and concluded he had read the whole record, they certainly could have eliminated any possibility that the sheriff's decision to employ his relative was an act of mere negligence or poor judgment. He did not even claim, for example, that he thought any assault must have been just a youthful peccadillo magnified out of proportion by the criminal charge, or that he had evaluated the assault as merely eccentric behavior in a young man of sound character, or that he was convinced that wild youth had given way to discretion. There being no such evidence of reasonable but mistaken judgment, the jury could readily have found that the sheriff knew his nephew's proven propensities, that he thought the thrust of the evidence was so damaging that he would lie to protect his reputation and the county treasury, and that he simply chose to put a family member on the payroll (the third relative, in fact) disregarding the risk to the public.
At trial, petitioner's expert witness stated during cross-examination that Burns's rap sheet listed repeated traffic violations, including driving while intoxicated and driving with a suspended license, resisting arrest, and more than one charge of assault and battery. The witness further testified that Burns pleaded guilty to assault and battery and other charges 16 months before he was hired by Sheriff Moore. Respondent's expert witness testified that Burns's arrest record showed a "blatant disregard for the law and problems that may show themselves in abusing the public or using excessive force," 7 Record 316, and petitioner's own expert agreed that Burns's criminal history should have caused concern. When asked if he would have hired Burns, he replied that it was "doubtful." 9 Record 537. On this evidence, the jury could have found that the string of arrests and convictions revealed "that Burns had [such] a propensity for violence and a disregard for the law," see 67 F.3d at 1184, n. 20, that his subsequent resort to excessive force was the plainly obvious consequence of hiring him as a law enforcement officer authorized to employ force in performing his duties.
III
The county escapes from liability through the Court's untoward application of an enhanced fault standard to a record of inculpatory evidence showing a contempt for constitutional obligations as blatant as the nepotism that apparently occasioned it. The novelty of this escape shows something unsuspected (by me, at least) until today. Despite arguments that Monell's policy requirement was an erroneous reading of § 1983, see Oklahoma v. Tuttle
I respectfully dissent.
Justice Breyer, with whom Justice Stevens and Justice Ginsberg join, dissenting.
In Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), this Court said that municipalities cannot be held liable for constitutional torts under 42 U.S.C. § 1983 "on a respondeat superior theory," but they can be held liable "when execution of" a municipality's "policy or custom . . . inflicts the injury." 436 U.S. at 691, 694. That statement has produced a highly complex body of interpretive law. Today's decision exemplifies the law's complexity, for it distinguishes among a municipal action that "itself violates federal law," ante, at 6, an action that "intentionally deprives a plaintiff of a federally protected right," ibid., and one that "has caused an employee to do so," ante, at 7. It then elaborates this Court's requirement that a consequence be "so likely" to occur that a policymaker could "reasonably be said to have been deliberately indifferent" with respect to it, Canton v. Harris, 489 U.S. 378, 390, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989) (emphasis added), with an admonition that the unconstitutional consequence must be "plainly obvious." Ante, at 13. The majority fears that a contrary view of prior precedent would undermine Monell's basic distinction. That concern, however, rather than leading us to spin ever finer distinctions as we try to apply Monell's basic distinction between liability that rests upon policy and liability that is vicarious, suggests that we should reexamine the legal soundness of that basic distinction itself.
I believe that the legal prerequisites for reexamination of an interpretation of an important statute are present here. The soundness of the original principle is doubtful. The original principle has generated a body of interpretive law that is so complex that the law has become difficult to apply. Factual and legal changes have divorced the law from the distinction's apparent original purposes. And there may be only a handful of individuals or groups that have significantly relied upon perpetuation of the original distinction. If all this is so, later law has made the original distinction, not simply wrong, but obsolete and a potential source of confusion.
First, consider Monell's original reasoning. The Monell "no vicarious liability" principle rested upon a historical analysis of § 1983 and upon § 1983's literal language --language that imposes liability upon (but only upon) any "person." Justice Stevens has clearly explained why neither of these rationales is sound....Essentially, the history on which Monell relied consists almost exclusively of the fact that the Congress that enacted § 1983 rejected an amendment (called the Sherman amendment) that would have made municipalities vicariously liable for the marauding acts of private citizens....That fact, as Justice Stevens and others have pointed out, does not argue against vicarious liability for the act of municipal employees--particularly since municipalities, at the time, were vicariously liable for many of the acts of their employees.
Without supporting history, it is difficult to find § 1983's words "every person" inconsistent with respondeat superior liability. In 1871 "bodies politic and corporate," such as municipalities were "persons." See Act of Feb. 25, ch. 71, § 2, 16 Stat. 431 (repealed 1939); Monell, 436 U.S. at 688-689. Section 1983 requires that the "person" either "subject" or "cause" a different person "to be subjected" to a "deprivation" of a right. As a purely linguistic matter, a municipality, which can act only through its employees, might be said to have "subjected" a person or to have "caused" that person to have been "subjected" to a loss of rights when a municipality's employee acts within the scope of his or her employment. See Restatement (Second) of Agency § 219 (1957); W. Landes & R. Posner, The Economic Structure of Tort Law 120-121 (1987). Federal courts on occasion have interpreted the word "person" or the equivalent in other statutes as authorizing forms of vicarious liability.
Second, Monell's basic effort to distinguish between vicarious liability and liability derived from "policy or custom" has produced a body of law that is neither readily understandable nor easy to apply. Today's case provides a good example. The District Court in this case told the jury it must find (1) Sheriff Moore's screening "so likely to result in violations of constitutional rights" that he could "reasonably [be] said to have been deliberately indifferent to the constitutional needs of the Plaintiff" and (2) that the "inadequate hiring . . . policy directly caused the Plaintiff's injury." App. 123a (emphasis added). This instruction comes close to repeating this Court's language in Canton v. Harris. In Canton, the Court said (of the city's failure to train officers in the use of deadly force):
The majority says that the District Court and the Court of Appeals did not look closely enough at the specific facts of this case. It also adds that the harm must be a "plainly obvious consequence" of the "decision to hire" Burns. Ante, at 13. But why elaborate Canton's instruction in this way? The Court's verbal formulation is slightly different; and that being so, a lawyer or judge will ignore the Court's precise words at his or her peril. Yet those words, while adding complexity, do not seem to reflect a difference that significantly helps one understand the difference between "vicarious" liability and "policy." Cf. ante, at 7-8 (Souter, J., dissenting). Even if the Court means only that the record evidence does not meet Canton's standard, it will be difficult for juries, and for judges, to understand just why that is so. It will be difficult for them to apply today's elaboration of Canton--except perhaps in the limited context of police force hiring decisions that are followed by a recruit's unconstitutional conduct.
Consider some of the other distinctions that this Court has had to make as it has sought to distinguish liability based upon policymaking from liability that is "vicarious." It has proved necessary, for example, to distinguish further, between an exercise of policymaking authority and an exercise of delegated discretionary policy-implementing authority. See St. Louis v. Praprotnik, 485 U.S. 112, 126-127, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988) (plurality opinion). Compare Tuttle, 471 U.S. at 817 (plurality opinion), with Canton, 489 U.S. at 389-390. Without some such distinction, "municipal liability [might] collapse into respondeat superior," ante, at 12, for the law would treat similarly (and hold municipalities responsible for) both a police officer's decision about how much force to use when making a particular arrest and a police chief's decision about how much force to use when making a particular kind of arrest. But the distinction is not a clear one. It requires federal courts to explore state and municipal law that distributes different state powers among different local officials and local entities. Praprotnik, 485 U.S. at 125-126, 127-131 (plurality opinion); Jett
Nor does the location of "policymaking" authority pose the only conceptually difficult problem. Lower courts must also ask decide whether a failure to make policy was "deliberately indifferent," rather than "grossly negligent." Canton, 489 U.S. at 388, n. 7. And they must decide, for example, whether it matters that some such failure occurred in the officer-training, rather than the officer-hiring, process. Ante, at 11-12.
Given the basic Monell principle, these distinctions may be necessary, for without them, the Court cannot easily avoid a "municipal liability" that "collapses into respondeat superior." Ante, at 12. But a basic legal principle that requires so many such distinctions to maintain its legal life may not deserve such longevity.
Finally, relevant legal and factual circumstances may have changed in a way that affects likely reliance upon Monell's liability limitation. The legal complexity just described makes it difficult for municipalities to predict just when they will be held liable based upon "policy or custom." Moreover, their potential liability is, in a sense, greater than that of individuals, for they cannot assert the "qualified immunity" defenses that individuals may raise. Owen v. Independence, 445 U.S. 622, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980). Further, many States have statutes that appear to, in effect, mimic respondeat superior by authorizing indemnification of employees found liable under § 1983 for actions within the scope of their employment. See, e.g, Conn. Gen. Stat. § 7-465 (1997); Idaho Code § 6-903 (1990); Ill. Comp. Stat., ch. 745, § 10/2-302 (1994); Kan. Stat. Ann. § 75-6109 (1989); Minn. Stat. § 466.07 (1994); Mont. Code Ann. § 2-9-305 (1994); Nev. Rev. Stat. § 41.0349 (1989); N. H. Rev. Stat. Ann. § 29-A:2 (1988); N. D. Cent. Code § 32-12.1-04(4) (Supp. 1993); Okla. Stat., Tit. 51, § 162 (Supp. 1995); 42 Pa. Cons. Stat. § 8548 (1982); S. D. Codified Laws § 3-19-1 (1994); Utah Code Ann. § 63-30-36 (1993); W. Va. Code § 29-112A-11 (1992); Wis. Stat. § 895.46 (1993-1994). These statutes--valuable to government employees as well as to civil rights victims--can provide for payments from the government that are similar to those that would take place in the absence of Monell's limitations. To the extent that they do so, municipal reliance upon the continuation of Monell's "policy" limitation loses much of its significance.
Any statement about reliance, of course, must be tentative, as we have not heard argument on the matter. We do not know the pattern of indemnification: how often, and to what extent, States now indemnify their employees, and which of their employees they indemnify. I also realize that there may be other reasons, constitutional and otherwise, that I have not discussed that argue strongly for reaffirmation of Monell's holding.
Nonetheless, for the reasons I have set forth, I believe the case for reexamination is a strong one. Today's decision underscores this need. Consequently, I would ask for further argument that would focus upon the continued viability of Monell's distinction between vicarious municipal liability and municipal liability based upon policy and custom.
, supra, at 824 (plurality opinion). See also Springfield v. Kibbe, 480 U.S. 257, 270-271, 94 L. Ed. 2d 293, 107 S. Ct. 1114 (1987) (dissent from dismissal of writ as improvidently granted).
, 453 U.S. 247, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981), involved formal decisions of municipal legislative bodies. In Owen, the city council allegedly censured and discharged an employee without a hearing. 445 U.S. at 627-629, 633, and n. 13. In Fact Concerts, the city council canceled a license permitting a concert following a dispute over the performance's content. 453 U.S. at 252. Neither decision reflected implementation of a generally applicable rule. But we did not question that each decision, duly promulgated by city lawmakers, could trigger municipal liability if the decision itself were found to be unconstitutional. Because fault and causation were obvious in each case, proof that the municipality's decision was unconstitutional would suffice to establish that the municipality itself was liable for the plaintiff's constitutional injury.
, 491 U.S. 701, 105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989); St. Louis v. Praprotnik, 485 U.S. 112, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988). Respondent does not claim that she can identify any pattern of injuries linked to Sheriff Moore's hiring practices. Indeed, respondent does not contend that Sheriff Moore's hiring practices are generally defective. The only evidence on this point at trial suggested that Sheriff Moore had adequately screened the backgrounds of all prior deputies he hired. App. 106-110. Respondent instead seeks to trace liability to what can only be described as a deviation from Sheriff Moore's ordinary hiring practices. Where a claim of municipal liability rests on a single decision, not itself representing a violation of federal law and not directing such a violation, the danger that a municipality will be held liable without fault is high. Because the decision necessarily governs a single case, there can be no notice to the municipal decisionmaker, based on previous violations of federally protected rights, that his approach is inadequate. Nor will it be readily apparent that the municipality's action caused the injury in question, because the plaintiff can point to no other incident tending to make it more likely that the plaintiff's own injury flows from the municipality's action, rather than from some other intervening cause.
and respondent's injury, we must ask whether a full review of Burns' record reveals that Sheriff Moore should have concluded that Burns' use of excessive force would be a plainly obvious consequence of the hiring decision. On this point, respondent's showing was inadequate. To be sure, Burns' record reflected various misdemeanor infractions. Respondent claims that the record demonstrated such a strong propensity for violence that Burns' application of excessive force was highly likely. The primary charges on which respondent relies, however, are those arising from a fight on a college campus where Burns was a student. In connection with this single incident, Burns was charged with assault and battery, resisting arrest, and public drunkenness. In January 1990, when he pleaded guilty to those charges, Burns also pleaded guilty to various driving-related offenses, including nine moving violations and a charge of driving with a suspended license. In addition, Burns had previously pleaded guilty to being in actual physical control of a vehicle while intoxicated.
, 453 U.S. 247, 250-252, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981) (implicitly assuming that a policymaker's single act can sustain § 1983 action); Owen v. Independence, 445 U.S. 622, 625-630, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980) (same). It does not matter that the policymaker may have chosen "a course of action tailored [only] to a particular situation and not intended to control decisions in later situations," Pembaur, 475 U.S. at 481; if the decision to adopt that particular course of action is intentionally made by the authorized policymaker, "it surely represents an act of official government 'policy'" and "the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly." Ibid.
, 471 U.S. at 834 (Stevens, J., dissenting), I had not previously thought that there was sufficient reason to unsettle the precedent of Monell. Now it turns out, however, that Monell is hardly settled. That being so, Justice Breyer's powerful call to reexamine § 1983 municipal liability afresh finds support in the Court's own readiness to rethink the matter.
"In light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." 489 U.S. at 390 (emphasis added).
, 491 U.S. at 737-738. That law is highly specialized; it may or may not say just where policymaking authority lies, and it can prove particularly difficult to apply in light of the Court's determination that a decision can be "policymaking" even though it applies only to a single instance. Pembaur, 475 U.S. at 481.
| Board of the County Commissioners of Bryan County, Oklahoma v. Brown Transcript |
| Board of the County Commissioners of Bryan County, Oklahoma v. Brown Briefs |
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Notes on Board of the County Commissioners of Bryan County, Oklahoma v. Brown |
, 103 F.3d 495 (6th Cir. 1996), the court of appeals detailed its interpretation of what is necessary to establish “custom:”
A “custom” for purposes of Monell liability must “be so permanent and well settled as to constitute a custom or usage with the force of law.” In turn, hte notion of “law” must include “[d]eeply embedded traditional ways of carrying out state policy.” It must reflect a course of action deliberately chosen from among various alternatives. In short, a “custom” is a “legal institution” not memorialized by written law.
To state a municipal liability claim under an “inaction” theory, Doe must establish:
, 133 F.3d 649, 653 (8th Cir. 1998).
, 130 F.3d 26 (1st Cir. 1997), the court of appeals held that the City of New Bedford did not have a custom of banning cars carrying political roof rack signs:
There is no evidence that Mayor Tierney or other high ranking city officials, or prior policymakers, were even aware of the practice, much less that they did nothing to end it....In order to show that City officials had constructive knowledge of the practice, the plaintiff must show that “[t]he practices have been so widespread or flagrant that in the proper exercise of their official responsibilities the municipal policymakers should have known of them.” Bordanaro, 871 F.2d at 1157....In Bordanaro...the evidence demonstrated the existence of a widespread practice of which the defendant’s policymaking officials should have been aware. See id. at 1159-61. In contrast, the evidence in this case at best suggests a practice, sporadic at most, of which only some lower-level managerial employees were aware. This evidence is insufficient to show that the City’s policymaking officials had constructive notice of the practice.
Id. at 32. See also McNabola v. CTA, 10 F.3d 501, 511 (10th Cir. 1993) (custom may be established “by proof of knowledge of policymaking officials and their acquiescence in the established practice.”).