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

In Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (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 deprive[s] 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 "easonably be said to have been deliberately indifferent" with respect to it, Canton v. Harris, 489 U.S. 378, 390 (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. Compare, e.g., Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 47-49 (1977) (reexamining Sherman Act's interpretation set forth in United States v. Arnold, Schwinn & Co., 388 U.S. 365 (1967)); Hubbard v. United States, 514 U.S. 695, 697-715 (1995) (reexamining interpretation of 18 U.S.C. § 1001 set forth in United States v. Bramblett, 348 U.S. 503 (1955); Monell, supra, at 664-690, 695-701 (reexamining interpretation of 42 U.S.C. § 1983 set forth in Monroe v. Pape, 365 U.S. 167 (1961)). See also United States v. Gaudin, 515 U. S. ___ (1995) (slip op., at 15-16).

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. Oklahoma City v. Tuttle, 471 U.S. 808, 834-844 (1985) (Stevens, J., dissenting); Pembaur v. Cincinnati, 475 U.S. 469, 489-491 (1986) (Stevens, J., concurring in part and concurring in judgment). 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. Monell, supra, at 666-667, 694. Cf. Jett v. Dallas Independent School Dist., 491 U.S. 701, 726-729 (1989) (plurality opinion). 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. See Tuttle, supra, at 836, n. 8 (Stevens, J., dissenting) (citing cases); Pembaur, supra, at 489-490 (Stevens, J., concurring in part and concurring in judgment). See also, e.g., Kramer & Sykes, Municipal Liability Under §1983: A Legal and Economic Analysis, 1987 Sup. Ct. Rev. 249, 256-265; Mead, 42 U.S.C. § 1983 Municipal Liability: The Monell Sketch Becomes a Distorted Picture, 65 N. C. L. Rev. 517, 535-537 (1987). But see Welch & Hofmeister, Praprotnik, Municipal Policy and Policymakers: The Supreme Court's Constriction of Municipal Liability, 13 S. Ill. U. L. J. 857, 881 (1989) (adopting Monell's reading of the legislative history).

Without supporting history, it is difficult to find §1983's words "[e]very person" inconsistent with respondeat superior liability. In 1871 "bodies politic and corporate," such as municipalities were "person[s]." See Act of Feb. 25, ch. 71, §2, 16 Stat. 431 (repealed 1939); Monell, supra, at 688-689. Section 1983 requires that the "person" either "subjec[t]" or "caus[e]" 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 "subject[ed]" a person or to have "cause[d]" 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. See, e.g., American Telephone and Telegraph Co. v. Winback and Conserve Program, Inc., 42 F. 3d 1421, 1429-1434 (CA3 1994), cert. denied, 514 U.S. 1103 (1995) (Lanham Act); American Soc. of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982) (Sherman Act); United States v. A & P Trucking Co., 358 U.S. 121, 124-125 (1958) (criminal statute). See also Tuttle, supra, at 835 (Stevens, J., dissenting).

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):

"[I]n 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).

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 (1988) (plurality opinion). Compare Tuttle, 471 U. S., at 817 (plurality opinion), with Canton, supra, at 389-390. Without some such distinction, "municipal liability [might] collaps[e] 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 andmunicipal law that distributes different state powers among different local officials and local entities. Praprotnik, supra, at 125-126, 127-131 (plurality opinion); Jett, 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. See also Praprotnik, supra, at 143 (Brennan, J., concurring in judgment); Schnapper, A Monell Update: Clarity, Conflict, and Complications, Practising Law Institute, Litigation and Administrative Practice Series, No. 381, Vol. 2, p. 36 (1989); Schuck, Municipal Liability Under Section 1983: Some Lessons From Tort Law and Organization Theory, 77 Geo. L. J. 1753, 1774-1779 (1989).

It is not surprising that results have sometimes proved inconsistent. Compare ante, at 10 (sheriff was final policymaker in hiring matters), with Greensboro Professional Fire Fighters Assn., Local 3157 v. Greensboro, 64 F. 3d 962, 965-966 (CA4 1995) (fire chief was not policymaker with respect to hiring and firing), and Harris v. Pagedale, 821 F. 2d 499, 505-508 (CA8), cert. denied, 484 U.S. 986 (1987) (municipality was deliberately indifferent to charges of sexual assault), with Wilson v. Chicago, 6 F. 3d 1233, 1240-1241 (CA7 1993), cert. denied, 511 U.S. 1088 (1994) (municipal policymaker was not deliberately indifferent to charges of abuse of pretrial detainees). See also Auriemma v. Rice, 957 F. 2d 397, 400-401 (CA7 1992) (describing confusion in courts).

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, supra, 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 "collaps[es] 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. See Mead, 65 N. C. L. Rev., at 542 (describing the "confusion and uncertainty" in the lower courts "caused by the Monell Court's choice of the policy or custom causation requirement"); Schuck, supra, at 1783 (noting the "extraordinary unpredictability of the `official policy' test").

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 (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. See, e.g., Gerhardt, The Monell Legacy: Balancing Federalism Concerns and Municipal Accountability under Section 1983, 62 S. Cal. L. Rev. 539 (1989) (discussing federalism); Nahmod, Constitutional Accountability in Section 1983 Litigation, 68 Iowa L. Rev. 1, 24-25 (1982) (describing Monell as having the "proper approach to local government accountability under section 1983" and describing a fault based interpretation of §1983); Welch & Hofmeister, 13 S. Ill. U. L. J., at 883, n. 176 (discussing disadvantages of an "expansive view of municipal liability," including lack of insurance coverage).

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.