Board of the County Commissioners of Bryan County, Oklahoma v. Brown (95-1100), 520 U.S. 397 (1997)
[ Souter ]
[ Breyer ]
[ O'Connor ]
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No. 95-1100


on writ of certiorari to the united states court of appeals for the fifth circuit

[April 28, 1997]

Justice Souter, with whom Justice Stevens and Justice Breyer join, dissenting.

In Pembaur v. Cincinnati, 475 U.S. 469, 480 (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 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.

Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), overruled Monroe v. Pape, 365 U.S. 167 (1961), insofar as Monroe had held §1983 inapplicable to governments beneath the state level ("municipal," for short). Monell, supra, at 663. At the same time that we decided Congress meant municipalities to be persons subject to §1983, however, we also concluded that municipal liability under the statute could not be based on the traditional theory of respondeat superior. 436 U. S., at 691. We said that for purposes of §1983 an act could not be attributed to a municipality merely because it was an act of a municipal agent performed in the course of exercising a power delegated to the municipality by local law, and we reasoned instead that "it is [only] 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." Id., at 694; see Pembaur, supra, at 480.

In assigning municipal liability under Monell, we accordingly distinguish an act of a municipal agent without independent authority to establish policy from the act of one authorized to set policy under local law, and we likewise distinguish the acts of lower level employees depending on whether they do or do not implement or manifest a policy set by those with the authority to set it. The act of the municipality is the act only of an authorized policymaker or of an employee following the policymaker's lead. "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." Pembaur, supra, at 479-480.

While this overview indicates that 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, supra, 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, supra, at 480-481; cf. Newport v. Fact Concerts, Inc., 453 U.S. 247, 250-252 (1981) (implicitly assuming that a policymaker's single act can sustain §1983 action); Owen v. Independence, 445 U.S. 622, 625-630 (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.

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 policymake[r] . . . can reasonably be said to have been deliberately indifferent to the need." Canton v. Harris, 489 U.S. 378, 390 (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, [n.1] 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. Compare Pembaur, supra, at 483 (plurality opinion of Brennan, J.) ("deliberate choice" by policymaker) and Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985) (plurality opinion of Rehnquist, J.) (" `policy' generally implies a course of action consciously chosen") with Canton, supra, at 389 ("Only where a municipality's failure to train its employees . . . evidences a `deliberate indifference' to the rights of its inhabitants can . . . a shortcoming be . . . city `policy or custom' . . . actionable under §1983").

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, supra, 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 underexisting precedent. [n.2]

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.

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 policymake[r] . . . can reasonably be said to have been deliberately indifferent to the need." Id., at 390. While we speculated in Canton that "[i]t 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. [n.3] 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.

The Court's skepticism that the modified standard of fault can ever be met in a single act case of inadequate screening without a patently unconstitutional policy, ante, at 15, both reveals the true value of the assumption that in theory there might be municipal liability in such a case, and dictates the result of the Court's review of the record in the case before us. It is skepticism gone too far.

It is plain enough that a facially unconstitutional policy is likely to produce unconstitutional injury, see, e.g., Pembaur, 475 U. S., at 480-481; Monell, 436 U. S., at 660-661, and obvious, too, that many facially neutral policy decisions evince no such clear portents. Written standards for hiring law enforcement personnel might be silent on the significance of a prior criminal record without justifying much worry about employing axe murderers (who are unlikely to apply) or subjecting the public to attacks by someone with a 30-year old assault conviction (who has probably grown up). But a policymaker need not mandate injury to be indifferent to its risk when obvious, and, because a particular hiring decision may raise a very high probability of harm down the line, it simply ignores the issue before us to lump together in one presumptively benign category every singular administrative act of a policymaker that does not expressly command or constitute unconstitutional behavior. Thus a decision to give law enforcement authority to a scofflaw who had recently engaged in criminal violence presents a very different risk from hiring someone who once drove an overweight truck. While the decision to hire the violent scofflaw may not entail harm to others as unquestionably as an order to "go out and rough up some suspects," it is a long way from neutral in the risk it creates.

While the Court should rightly be skeptical about predicating municipal or individual liability merely on a failure to adopt a crime free personnel policy or on a particular decision to hire a guilty trucker, why does it extend that valid skepticism to the quite unsound point of doubting liability for hiring the violent scofflaw? The Court says it fears that the latter sort of case raises a danger of liability without fault, ante, at 10. But if the Court means fault generally (as distinct from the blame imputed on classic respondeat superior doctrine), it need only recall that whether a particular violent scofflaw is violent enough or scoffing enough to implicate deliberate indifference will depend on applying the highly demanding standard the Court announces: plainly obvious consequence of particular injury. It is the high threshold of deliberate indifference that will ensure that municipalities be held liable only for considered acts with substantial risks. That standard will distinguish single act cases with only a mild portent of injury from single act cases with a plainly obvious portent, and from cases in which the harm is only the latest in a series of injuries known to have followed from the policymaker's action. The Court has fenced off the slippery slope.

A second stated reason of the skeptical majority is that, because municipal liability under Monell cannot rest on respondeat superior, ante, at 12, 17, "a court must carefully test the link between the policymaker's inadequate decision and the particular injury alleged." Ante, at 12. But that is simply to say that the tortious act must be proximately caused by the policymaker. The policy requirement is the restriction that bars straightforward respondeat superior liability, and the need to "test the link" is merely the need to apply the law that defines what a cognizable link is. The restriction on imputed fault that saves municipalities from liability has no need of categorical immunization in single act cases.

In short, the Court's skepticism is excessive in ignoring the fact that some acts of a policymaker present substantial risks of unconstitutional harm even though the acts are not unconstitutional per se. And the Court's purported justifications for its extreme skepticism are washed out by the very standards employed to limit liability.

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, [n.4] 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 [n.5] ) 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. [n.6] 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.

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 City v. Tuttle, 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.

I respectfully dissent.


1 See, e.g., American Law Institute, Model Penal Code §2.02(2)(c) (1985) ("A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct."); J. I. Case Credit Corp. v. First Nat. Bank of Madison Cty., 991 F. 2d 1272, 1278 (CA7 1993) ("To consciously ignore or to deliberately close one's eyes to a manifest danger is recklessness, a mental state that the law commonly substitutes for intent or actual knowledge."). Cf. Estelle v. Gamble, 429 U.S. 97, 105-106 (1976) (deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment); United States v. Giovannetti, 919 F. 2d 1223, 1228 (CA7 1990) (a "deliberate effort to avoid guilty knowledge is all the guilty knowledge the law requires"); United States v. Jewell, 532 F. 2d 697, 700 (CA9), cert. denied, 426 U.S. 951 (1976) ("[D]eliberate ignorance and positive knowledge are equally culpable").

2 Given the sheriff's position as law enforcement policymaker, it is simply off the point to suggest, as the Court does, that there is some significance in either the fact that Sheriff Moore's failure to screen may have been a "deviation" from his ordinary hiring practices or that a pattern of injuries resulting from his past practices is absent. See ante, at 10. Pembaur made clear that a single act by a designated policymaker is sufficient to establish a municipal policy, see Pembaur v. Cincinnati, 475 U.S. 469, 480-81 (1986), and Canton explained, as the Court recognizes, see ante, at 10-11, that evidence of a single violation of federal rights can trigger municipal liability under §1983, see Canton v. Harris, 489 U.S. 378, 390, n. 10 (1989). See infra, Part II B.

3 The Court's embellishment on the deliberate indifference standard is, in any case, no help in resolving this case because there has never been any suggestion that Deputy Burns's criminal background, including charges of assault and battery, indicated that he would commit a constitutional violation different from the one he in fact committed.

4 After Sheriff Moore testified that he knew Burns had been charged with driving while intoxicated, the following exchange with respondent's counsel took place:

"Q. And how did you obtain that information?

"A. I don't remember now how I got it.

"Q. Did you make an inquiry with the proper authorities in Oklahoma to get a copy of Mr. Burns' rap sheet?

"A. I run his driving record, yes.

"Q. All right. And you can get that rap sheet immediately, can't you?

"A. It don't take long.

"Q. All right. And did you not see on there where Mr. Burns had been arrested for assault and battery. Did you see that one on there?

"A. I never noticed it, no.

"Q. Did you notice on there he'd been arrested or charged with [Driving While License Suspended] on several occasions?

. . . . .

"A. I'm sure I did.

"Q. All right. Did you notice on there that he'd been arrested and convicted for possession of false identification?

"A. No, I never noticed that.

"Q. Did you notice on there where he had been arrested for public drunk?

"A. He had a long record.

"Q. Did you notice on there where he had been arrested for resisting arrest?

"A. No, I didn't.

"Q. Did you make any inquiries after you got that information to determine exactly what the disposition of those charges were?

"A. No, I didn't.

"Q. Did you not make any attempt to find out the status of Mr. Burns' criminal record at that time?

"A. As far as him having a criminal record, I don't believe he had a criminal record. It was just all driving and--most of it was, misdemeanors.

"Q. Well, did you make any attempts to determine whether or not Mr. Burns was on probation at the time you placed him out there?

"A. I didn't know he was on probation, no.

"Q. Did you make any effort to find out?

"A. I didn't have no idea he was on probation, no.

"Q. Well, you saw on his rap sheet where he had been charged with [Driving Under the Influence], didn't you?

"A. I had heard about that. I don't remember whether I had seen it on the rap sheet or not.

"Q. So you'd heard about it?

. . . . .

"A. I don't know remember whether I seen it on the rap sheet or heard about it.

"Q. All right. Well, whichever way you, it came to your attention, you didn't check to find out with the proper authorities as to what the disposition of that charge was, did you?

. . . . .

"A. I don't really know. I can't say.

"Q. Did you check to see if Mr. Burns had an arrest warrant out for him?

"A. We--I run him through [the National Crime Information Center] and there wasn't--didn't show no warrant, no." 9 Record 672-675.

5 Burns is the son of Sheriff Moore's nephew and Burns's grandfather had been involved with the sheriff's department for 16 years. See 67 F. 3d 1174, 1184 (CA5 1995).

6 The Court points out that Burns had only one conviction for assault and battery, that respondent has never claimed otherwise, and that her expert witness so testified. See ante, at 16, n.2. This is entirely correct. But the issue here is not what might have been learned by thoroughly investigating Burns's behavior; the issue is the sufficiency of the evidence to support the jury's finding that the sheriff acted with deliberate indifference when he hired Burns. Specifically, assuming the jury found that the sheriff looked at Burns's criminal record, an assumption the Court acknowledges is "plausible," see ante, at 17, what does the evidence show that the sheriff learned from this examination? The criminal record was not itself introduced into evidence in written form, but it was, in relevant part, read to the jury by petitioner's expert witness Ken Barnes. According to Barnes's testimony, this criminal record's list of numerous charges included four references to assault and battery, two of which the witness said were duplicative, though he conceded this was not necessarily so. See 9 Record 532-533. The upshot was that if the jury found that the sheriff looked at the written record, it could have found that he read four separate references to assault and battery charges. That is not to say that four assaults necessarily occurred, but only that the record refers four times to such charges before listing one conviction for assault and battery. Barnes also testified that the record does not contain a disposition for all the charges listed, and that a sheriff reviewing such a record should have investigated further to determine the disposition of such charges. See id., at 536.

In my judgment, the evidence would have been sufficient (under the majority's test) if it had shown no more than one complaint and conviction for assault and battery, given the mixture of charges of resisting an officer, public drunkenness and multiple traffic offenses over a four month period ending only sixteen months before Burns was hired. The inference to be drawn would have been that a repeatedly lawless young man had shown a proclivity to violence against the person. But, as it turns out, the evidentiary record is ostensibly more damaging than that.