Petitioner, a physician and the proprietor of a clinic in
Cincinnati, Ohio, that provided medical services primarily to
welfare recipients, was indicted by a grand jury for fraudulently
accepting payments from state welfare agencies. During the grand
jury investigation, subpoenas were issued for the appearance of two
of petitioner's employees. When the employees failed to appear, the
Assistant County Prosecutor obtained capiases for their detention.
But when two County Deputy Sheriffs attempted to serve the capiases
at petitioner's clinic, he barred the door and refused to let them
enter the part of the clinic where the employees presumably were
located. Thereafter, Cincinnati police officers, whom petitioner
had called, appeared and told petitioner to allow the Deputy
Sheriffs to enter. Petitioner continued to refuse. The Deputy
Sheriffs then called their superior, who told them to call the
County Prosecutor's Office and to follow his instructions. The
Deputy Sheriffs spoke to the Assistant Prosecutor assigned to the
case. He in turn conferred with the County Prosecutor, who told him
to instruct the Deputy Sheriffs to "go in and get" the employees.
The Assistant Prosecutor relayed these instructions to the Deputy
Sheriffs. After the Deputy Sheriffs tried unsuccessfully to force
the door, city police officers obtained an axe and chopped down the
door. The Deputy Sheriffs then entered and searched the clinic, but
were unable to locate the employees sought. Although petitioner was
acquitted of the fraud charges, he was indicted and convicted for
obstructing police in the performance of an authorized act. His
conviction was upheld by the Ohio Supreme Court. Petitioner then
filed a damages action in Federal District Court under 42 U.S.C. §
1983 against the county, among other defendants, alleging that the
county had violated his rights under the Fourth and Fourteenth
Amendments. The District Court dismissed the claim against the
county 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 v. New York City Dept. of
Social Services, 436 U. S. 658. The
Court of Appeals affirmed, holding that petitioner had failed to
prove the existence of a county policy because he had shown nothing
more than that, on "this one occasion," the Prosecutor and the
Sheriff decided to force entry into petitioner's clinic.
Page 475 U. S. 470
Held: The judgment is reversed, and the case is
remanded. 746 F.2d 337, reversed and remanded.
JUSTICE BRENNAN delivered the opinion of the Court with respect
to Parts I, II-A, and II-C, concluding that:
1. The "official policy" requirement of
Monell was
intended to distinguish acts of the
municipality from acts
of the municipality's
employees, and thereby make clear
that municipal liability is limited to actions for which the
municipality is actually responsible.
Monell held that
recovery from a municipality is limited to acts that are, properly
speaking, "of the municipality,"
i.e., acts that 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. If the decision to adopt a particular course of
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. Pp.
475 U. S.
477-481.
2. It was error to dismiss petitioner's claim against the
county. Ohio law authorizes the County Sheriff to obtain
instructions from the County Prosecutor. The Sheriff followed the
practice of delegating certain decisions to the Prosecutor where
appropriate. In this case, the Deputy Sheriffs received
instructions from the Sheriff's Office to follow the orders of the
County Prosecutor, who made a considered decision based on his
understanding of the law and commanded the Deputy Sheriffs to enter
petitioner's clinic. That decision directly caused a violation of
petitioner's Fourth Amendment rights. In ordering the Deputy
Sheriffs to enter petitioner's clinic to serve the capiases on the
employees, the County Prosecutor was acting as the final
decisionmaker for the county, and the county may therefore be held
liable under § 1983. Pp.
475 U. S.
484-485.
JUSTICE BRENNAN, joined by JUSTICE WHITE, JUSTICE MARSHALL, and
JUSTICE BLACKMUN, concluded in Part II-B that not every decision by
municipal officers automatically subjects the municipality to §
1983 liability. The fact that a particular official has discretion
in the exercise of particular functions does not give rise to
municipal liability based on an exercise of that discretion unless
the official is also responsible, under state law, for establishing
final governmental policy respecting such activity. 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. Pp.
475 U. S.
481-484.
BRENNAN, J., delivered the opinion of the Court with respect to
Parts I, II-A, and II-C, in which WHITE, MARSHALL, BLACKMUN,
STEVENS, and
Page 475 U. S. 471
O'CONNOR (except for Part II-C), JJ., joined, and an opinion
with respect to Part II-B, in which WHITE, MARSHALL, and BLACKMUN,
JJ., joined. WHITE, J., filed a concurring opinion,
post,
p.
475 U. S. 485.
STEVENS, J.,
post, p.
475 U. S. 487,
and O'CONNOR, J.,
post, p.
475 U. S. 491,
filed opinions concurring in part and concurring in the judgment.
POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and
REHNQUIST, J., joined,
post, p.
475 U. S.
492.
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
436 U. S. 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.
Page 475 U. S. 472
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. [
Footnote
1]
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,
Page 475 U. S. 473
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,
Page 475 U. S. 474
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. [
Footnote 2] 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.
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
Page 475 U. S. 475
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
"[t]he 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.
Page 475 U. S. 476
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). [
Footnote
3]
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 "clea[r]" 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,
Page 475 U. S. 477
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,
[
Footnote 4] 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
436 U. S. 691.
[
Footnote 5] As we read its
opinion, the Court of Appeals held that a single decision to
Page 475 U. S. 478
take particular action, although made by municipal policymakers,
cannot establish the kind of "official policy" required by Monell
as a predicate to municipal liability under § 1983. [
Footnote 6] 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.
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
463 U. S. 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
463 U. S. 692.
Primarily,
Page 475 U. S. 479
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
463 U. S.
665-683. [
Footnote
7] 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
respondeat superior, we
concluded that § 1983 could not be interpreted to incorporate
doctrines of vicarious liability.
Id. at
463 U. S.
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. [
Footnote 8]
Page 475 U. S. 480
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.,
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
436 U. S. 694,
and whose decisions therefore may give rise to municipal liability
under § 1983.
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
Page 475 U. S. 481
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. [
Footnote 9] 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. [
Footnote 10] The fact that a
particular official -- even a policymaking
Page 475 U. S. 482
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
471 U. S.
822-824. [
Footnote
11] The official
Page 475 U. S. 483
must also be responsible for establishing final government
policy respecting such activity before the municipality can be held
liable. [
Footnote 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.
Page 475 U. S. 484
See Tuttle, supra, at
471 U. S. 823
("
policy' generally implies a course of action consciously
chosen from among various alternatives").
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. [
Footnote
13] Ohio Rev.Code Ann. § 309.09(A) (1979)
Page 475 U. S. 485
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.
[
Footnote 1]
A capias is a writ of attachment commanding a county official to
bring a subpoenaed witness who has failed to appear before the
court to testify and to answer for civil contempt.
See
Ohio Rev.Code Ann. § 2317.21 (1981).
[
Footnote 2]
Hamilton County Prosecutor Leis was not made a defendant because
counsel for petitioner believed that Leis was absolutely immune.
Tr., Mar. 14-Mar. 17, p. 267. We express no view as to the
correctness of this evaluation.
Cf. Imbler v. Pachtman,
424 U. S. 409,
424 U. S.
430-431 (1976) (leaving open the question of a
prosecutor's immunity when he acts "in the role of an administrator
or investigative officer, rather than that of an advocate").
[
Footnote 3]
The court found that there was a city policy respecting the use
of force in serving capiases, as well as a policy of aiding county
police. It based this conclusion on the testimony of Cincinnati
Chief of Police Myron Leistler, who stated that it was the policy
of his Department to take whatever steps were necessary, including
the forcing of doors, to serve an arrest document. 746 F.2d at
341-342;
see also Tr., Mar. 14-Mar. 17, pp. 43-45, 46-47.
The court remanded the case for a determination whether Pembaur's
injury was incurred as a result of the execution of this policy.
746 F.2d at 342.
[
Footnote 4]
See, e.g., McKinley v. City of Eloy, 705 F.2d 1110,
1116-1117 (CA9 1983);
Berdin v. Duggan, 701 F.2d 909,
913-914 (CA11),
cert. denied, 464 U.S. 893 (1983);
Van
Ooteghem v. Gray, 628 F.2d 488, 494-495 (CA5 1980),
cert.
denied, 455 U.S. 909 (1982);
Quinn v. Syracuse Model
Neighborhood Corp., 613 F.2d 438, 448 (CA2 1980).
See also
Sanders v. St. Louis County, 724 F.2d 665, 668 (CA8 1983) (per
curiam) ("It may be that one act of a senior county official is
enough to establish the liability of the county if that official
was in a position to establish policy and if that official himself
directly violated another's constitutional rights").
But see
Losch v. Borough of Parkesburg, Pa., 736 F.2d 903, 910-911
(CA3 1984) ("[E]ven if [the Police Chief] were the final authority
with regard to police activities, . . . there is no regulation or
evidence of any repeated action by [the chief] . . . that can
transmute his actions in the Losch incident into a general Borough
policy").
[
Footnote 5]
There is no question in this case that petitioner suffered a
constitutional deprivation. The Court of Appeals found, and
respondent concedes, that the entry and search of petitioner's
clinic violated the Fourth Amendment under
Steagald v. United
States, 451 U. S. 204
(1981).
See 746 F.2d at 340, n. 1; Brief for Respondents
11. Respondent never challenged, and has in fact also conceded,
that
Steagald applies retroactively to this case.
See Tr. of Oral Arg. 26-27. We decide this case in light
of respondent's concessions.
[
Footnote 6]
The opinion below also can be read as holding that municipal
liability cannot be imposed for a single incident of
unconstitutional
conduct by municipal employees whether or
not that conduct is pursuant to municipal
policy. Such a
conclusion is unsupported by either the language or reasoning of
Monell, or by any of our subsequent decisions. As we
explained last Term in
Oklahoma City v. Tuttle,
471 U. S. 808
(1985), once a municipal policy is established,
"it requires only one application . . . to satisfy fully
Monell's requirement that a municipal corporation be held
liable only for constitutional violations resulting from the
municipality's official policy."
Id. at
471 U. S. 822
(plurality opinion);
see also id. at
471 U. S.
831-832 (BRENNAN, J., concurring in part and concurring
in judgment.). The only issue before us, then, is whether
petitioner satisfied
Monell's requirement that the
tortious conduct be pursuant to "official municipal policy."
[
Footnote 7]
This legislative history is discussed at length in
Monell, and need only be summarized here. The distinction
between imposing liability on municipalities for their own
violations and imposing liability to force municipalities to
prevent violations by others was made by Members of the House of
Representatives who successfully opposed the "Sherman amendment" to
the Civil Rights Act of 1871, 17 Stat. 13, the precursor of § 1983.
The Sherman amendment sought to impose civil liability on
municipalities for damage done to the person or property of its
inhabitants by private persons "riotously and tumultuously
assembled." Cong.Globe, 42d Cong., 1st Sess., 749 (1871) (quoted in
Monell, 436 U.S. at
436 U. S.
664). Opponents of the amendment argued that, in effect,
it imposed an obligation on local governments to keep the peace,
and that the Federal Government could not constitutionally require
local governments to keep the peace if state law did not. This
argument succeeded in blocking passage of the amendment. However,
even the opponents of the Sherman amendment recognized Congress'
power to impose civil liability on a local government already
obligated to keep the peace by state law if that government failed
to do so, and thereby violated the Fourteenth Amendment.
See
id. at
436 U. S.
665-683.
[
Footnote 8]
Thus, our statement of the conclusion juxtaposes the policy
requirement with imposing liability on the basis of
respondeat
superior:
"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 . .
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
436 U. S.
694.
[
Footnote 9]
While the dictionary is not the source definitively to resolve
legal questions, we note that this description of "policy" is
consistent with the word's ordinary definition. For example,
Webster's defines the word as "a specific decision or set of
decisions designed to carry out such a chosen course of action."
Webster's Third New International Dictionary 1754 (1981).
Similarly, the Oxford English Dictionary defines "policy" as
"[a] course of action adopted and pursued by a government,
party, ruler, statesman, etc.; any course of action adopted as
advantageous or expedient."
VII Oxford English Dictionary 1071 (1933).
See also
Webster's New Twentieth Century Dictionary 1392 (2d ed.1979) ("any
governing principle, plan, or course of action"); Random House
Dictionary 1113 (1966) ("a course of action adopted and pursued by
a government, ruler, political party, etc.").
[
Footnote 10]
Section 1983 also refers to deprivations under color of a state
"custom or usage," and the Court in
Monell noted
accordingly that
"local governments, like every other § 1983 'person,' . . . 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."
436 U.S. at
436 U. S.
690-691. A § 1983 plaintiff thus may be able to recover
from a municipality without adducing evidence of an affirmative
decision by policymakers if able to prove that the challenged
action was pursuant to a state "custom or usage." Because there is
no allegation that the action challenged here was pursuant to a
local "custom," this aspect of
Monell is not at issue in
this case.
[
Footnote 11]
Respondent argues that the holding in
Tuttle is far
broader than this. It relies on the statement near the end of
JUSTICE REHNQUIST's plurality opinion that
"[p]roof 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."
471 U.S. at
471 U. S.
823-824 (emphasis added). Respondent contends that a
policy cannot be said to be "existing" unless similar action has
been taken in the past.
This reading of the
Tuttle plurality is strained, and
places far too much weight on a single word. The plaintiff in
Tuttle alleged that a police officer's use of excessive
force deprived her decedent of life without due process of law. The
plaintiff proved only a single instance of unconstitutional action
by a nonpolicymaking employee of the city. She argued that the city
had "caused" the constitutional deprivation by adopting a "policy"
of inadequate training. The trial judge instructed the jury that a
single, unusually excessive use of force may warrant an inference
that it was attributable to grossly inadequate training, and that
the municipality could be held liable on this basis. We reversed
the judgment against the city. Although there was no opinion for
the Court on this question, both the plurality and the opinion
concurring in the judgment found plaintiff's submission inadequate
because she failed to establish that the unconstitutional act was
taken
pursuant to a municipal policy, rather than simply
resulting from such a policy in a "but for" sense.
Id. at
471 U. S.
822-824 (plurality opinion),
471 U. S.
829-830 (BRENNAN, J., concurring in part and concurring
in judgment). That conclusion is entirely consistent with our
holding today that the policy which ordered or authorized an
unconstitutional act can be established by a single decision by
proper municipal policymakers.
[
Footnote 12]
Thus, for example, the County Sheriff may have discretion to
hire and fire employees without also being the county official
responsible for establishing county employment policy. If this were
the case, the Sheriff's decisions respecting employment would not
give rise to municipal liability, although similar decisions with
respect to law enforcement practices, over which the Sheriff
is the official policymaker,
would give rise to
municipal liability. Instead, if county employment policy was set
by the Board of County Commissioners, only that body's decisions
would provide a basis for county liability. This would be true even
if the Board left the Sheriff discretion to hire and fire employees
and the Sheriff exercised that discretion in an unconstitutional
manner; the decision to act unlawfully would not be a decision of
the Board. However, if the Board delegated its power to establish
final employment policy to the Sheriff, the Sheriff's decisions
would represent county policy, and could give rise to
municipal liability.
[
Footnote 13]
We generally accord great deference to the interpretation and
application of state law by the courts of appeals.
United
States v. S.A. Empresa de Viacao Aerea Rio Grandense,
467 U. S. 797,
467 U. S. 815,
n. 12 (1984);
Brockett v. Spokane Arcades, Inc.,
472 U. S. 491,
472 U. S.
499-500 (1985) (citing cases);
see also Bishop v.
Wood, 426 U. S. 341,
426 U. S.
345-347 (1976).
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.
Page 475 U. S. 486
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, 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
respondeat superior,
and not because the officers' acts represent local policy.
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
475 U. S.
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
Page 475 U. S. 487
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.
* The county has not challenged the retroactivity of
Steagald v. United States, 451 U.
S. 204 (1981), and I do not address that issue.
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. [
Footnote 2/1]
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, 451 U. S. 204
(1981),
Page 475 U. S. 488
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. [
Footnote
2/2] 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. [
Footnote 2/3]
Page 475 U. S. 489
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
475 U. S.
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, 471 U. S. 808,
471 U. S.
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. [
Footnote 2/4]
Page 475 U. S. 490
Finally, in construing the scope of §1983, the Court has
sometimes referred to "considerations of public policy." [
Footnote 2/5] 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
Page 475 U. S. 491
a conclusion of county liability for the unconstitutional,
axe-swinging entry in this case.
Because I believe that Parts
475 U. S.
475 U. S. and
475 U. S. as
well as with our precedents, I join those Parts of the Court's
opinion [
Footnote 2/6] and concur
in the judgment.
[
Footnote 2/1]
See Oklahoma City v. Tuttle, 471 U.
S. 808,
471 U. S. 841
(1985) (STEVENS, J., dissenting) ("While the Court purports to
answer a question of statutory construction, . . . its opinion
actually provides us with an interpretation of the word
policy'
as it is used in Part II of the opinion in Monell v. New York
City Dept. of Social Services, 436 U.
S. 658, 436 U. S.
690-695 (1978). The word `policy' does not appear in the
text of § 1983, but it provides the theme for today's decision").
It may be significant that the issue has apparently become, not the
purpose and scope of 42 U.S.C. § 1983, but the nature of the
liability "envisioned" by this Court "in Monell."
Post at 475 U. S. 491
(O'CONNOR, J., concurring in part and concurring in judgment);
post at 475 U. S. 499
(POWELL, J., dissenting).
[
Footnote 2/2]
Indeed, it can be argued that the justification for a forcible
entry to serve a capias, as in this case, is even weaker than the
justification for a forcible entry to execute an arrest warrant, as
in
Steagald. Since the Sixth Circuit in this action, 746
F.2d 337 (1984), and the Ohio Supreme Court in reviewing
petitioner's conviction,
State v. Pembaur, 9 Ohio St.3d
136, 459 N.E.2d 217,
cert. denied, 467 U.S. 1219 (1984),
did not distinguish between the two situations, however, and since
the forcible entry was unconstitutional under either conception, it
is unnecessary to rest on that possible difference.
[
Footnote 2/3]
See 451 U.S. at 211 ("Except in [cases of consent or
exigent circumstances], we have consistently held that the entry
into a home to conduct a search or make an arrest is unreasonable
under the Fourth Amendment unless done pursuant to a warrant");
id. at
451 U. S.
213-214 ("In the absence of exigent circumstances, we
have consistently held that such judicially untested determinations
are not reliable enough to justify an entry into a person's home to
arrest him without a warrant, or a search of a home for objects in
the absence of a search warrant. . . . We see no reason to depart
from this settled course when the search of a home is for a person,
rather than an object");
id. at
451 U. S. 216
("Since warrantless searches of a home are impermissible absent
consent or exigent circumstances, we conclude that the instant
search violated the Fourth Amendment");
id. at
451 U. S. 219
("[I]f anything, the little guidance that can be gleaned from
common law authorities undercuts the Government's position. The
language of
Semayne's Case, [5 Co.Rep. 91a, 77 Eng.Rep.194
(K. B. 1603)], . . . suggests that, although the subject of an
arrest warrant could not find sanctuary in the home of the third
party, the home remained a
castle or privilege' for its
residents. Similarly, several [common law] commentators suggested
that a search warrant, rather than an arrest warrant, was necessary
to fully insulate a constable from an action for trespass brought
by a party whose home was searched"); id. at 451 U. S. 220
("[T]he history of the Fourth Amendment strongly suggests that its
Framers would not have sanctioned the instant search").
The fact that the Sixth Circuit and two other Circuits had
reached a contrary conclusion does not transform
Steagald
into a nonretroactive opinion. This Court has never suggested that
resolution of a split in the Circuits somehow means that a holding
is presumptively nonretroactive in the Circuits that have disagreed
with the Court's ultimate conclusion. Furthermore, the suggestion
that there is a more compelling need for nonretroactivity in a
civil context than in a criminal context,
post at
475 U. S.
492-496 (POWELL, J., dissenting), ignores the fact that,
in a civil context, there is not the societal cost of reversing
convictions.
Cf. Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 731
(1966) ("[R]etroactive application of
Escobedo [v.
Illinois, 378 U. S. 478
(1964),] and
Miranda [v. Arizona, 384 U.
S. 436 (1966),] would seriously disrupt the
administration of our criminal laws. It would require the retrial
or release of numerous prisoners found guilty by trustworthy
evidence in conformity with previously announced constitutional
standards"). Additionally,
Payton v. New York,
445 U. S. 573
(1980), which
Steagald cites and discusses, has, of
course, been held retroactive in the only context in which the
Court has considered the issue.
See United States v.
Johnson, 457 U. S. 537
(1982).
[
Footnote 2/4]
Several commentators have concluded that the dicta in
Monell
v. New York City Dept. of Social Services, 436 U.
S. 658 (1978), regarding
respondeat superior
misreads the legislative history of § 1983.
See, e.g.,
Blum, From
Monroe to
Monell: Defining the Scope
of Municipal Liability in Federal Courts, 51 Temp. L.Q. 409, 413,
n. 15 (1978) ("The interpretation adopted by the Court with respect
to the rejection of vicarious liability under § 1983 had been
espoused prior to
Monell by one author who drew a
distinction between
political' § 1983 cases, in which a city
itself causes the constitutional violation, and `constitutional
tort' § 1983 cases, in which an attempt is made to impose vicarious
liability on the city for the misconduct of its employees. . . .
Although this view of § 1983 may represent a sensitive response to
the fiscal plight of municipal corporations today, it should not be
acknowledged as a legitimate interpretation of congressional intent
in 1871"); Note, Section 1983 Municipal Liability and the Doctrine
of Respondeat Superior, 46 U.Chi.L.Rev. 936, 936 (1979) ("[T]he
purposes and legislative history of the provision demand a scheme
of respondeat superior liability"); Note, Monell v.
Department of Social Services: One Step Forward and a Half
Step Back for Municipal Liability Under Section 1983, 7 Hofstra
L.Rev. 893, 921 (1979) ("Analysis of the legislative history of
section 1983 does not indicate that Congress intended to exclude
respondeat superior from the act. The language of the
statute similarly offers no such proof. Since both were relied on
by the Court in Monell, the dicta in that decision is, at
best, poorly reasoned authority for the proposition that a
municipality is not liable for the unauthorized acts of its
employees"); Comment, Municipal Liability under Section 1983 for
Civil Rights Violations After Monell, 64 Iowa L.Rev. 1032,
1046 (1979) ("The Court's [respondeat superior] limitation
. . . is not justified by the legislative history of section 1983
or by policy considerations").
[
Footnote 2/5]
Newport v. Fact Concerts, Inc., 453 U.
S. 247,
453 U. S. 266
(1981);
Owen v. City of Independence, 445 U.
S. 622,
445 U. S. 650
(1980).
[
Footnote 2/6]
The reasons for my not joining Parts II and IV of
Monell, 436 U.S. at
436 U. S. 714
(STEVENS, J., concurring in part), are also applicable to my
decision not to join Part
475 U. S.
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
475 U. S. 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
475 U. S. S.
477|>II-A of the Court's opinion and the judgment.
Page 475 U. S. 492
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 off-hand telephone response from a busy County
Prosecutor.
I
Petitioner's allegation of a constitutional violation rests
exclusively on
Steagald v. United States, 451 U.
S. 204 (1981), decided four years after the entry here.
In
Steagald, we held that an officer may not search for
the subject of an arrest warrant in a third party's home without
first obtaining a search warrant, unless the search is consensual
or justified by exigent circumstances. In 1977, the law in the
Sixth Circuit was that a search warrant was not required in such
situations if the police had an arrest warrant and reason to
believe that the person to be arrested was within the home to
be
Page 475 U. S. 493
searched.
United States v. McKinney, 379 F.2d 259,
262-263 (1967). That view was shared by at least two other
Circuits.
See United States v. Gaultney, 606 F.2d 540,
544-545 (CA5 1979);
United States v. Harper, 550 F.2d 610,
612-614 (CA10),
cert. denied, 434 U.S. 837 (1977). Another
Circuit had favored that view in dicta.
See United States v.
Manley, 632 F.2d 978, 983 (CA2 1980). Thus, under the
governing law in the applicable Circuit, uncontradicted by any
opinion of this Court, the entry into petitioner's office pursuant
to an arrest warrant was not a violation of petitioner's Fourth
Amendment rights.
The only way to transform this search -- legitimate at the time
-- into a constitutional violation is to apply
Steagald
retroactively. This would not be a startling proposition if all
that petitioner sought was retroactive application of a new rule of
criminal law to a direct appeal from his criminal conviction.
[
Footnote 3/1] But petitioner seeks
something very different -- retroactive application of the new rule
of criminal law announced in
Steagald to his subsequent
civil lawsuit. Even if one accepts the proposition that a new rule
of criminal law should be applied retroactively to create a basis
for civil liability under § 1983, [
Footnote 3/2] existing principles of retroactivity
for
Page 475 U. S. 494
civil cases show that
Steagald should not be applied
retroactively to this action.
The leading case explaining the framework of analysis for civil
retroactivity is
Chevron Oil Co. v. Huson, 404 U. S.
97 (1971). Under
Chevron, a court must assess:
(i) whether the new decision
"establish[ed] a new principle of law . . . by overruling clear
past precedent . . . or by deciding an issue of first impression
whose resolution was not clearly foreshadowed,"
id. at
404 U. S. 106;
(ii) "the prior history of the rule in question, its purpose and
effect, and whether retrospective operation will further or retard
its operation,"
id. at
404 U. S. 107;
and (iii) the respective inequities of retroactive or
nonretroactive application,
ibid.
When viewed in light of these factors, retroactive application
of
Steagald is not justified. First,
Steagald
overruled past Courts of Appeals precedent, and the decision had
not been foreshadowed in opinions of this Court. The governing law
in three Federal Circuits permitted searches of third parties'
homes pursuant to an arrest warrant,
see supra at
475 U. S. 493,
and earlier decisions of this Court arguably supported such
searches. [
Footnote 3/3] Second,
the "purpose" of
Steagald was to clarify the application
of the Fourth Amendment to such searches, not to provide for money
damages. Finally, retroactive
Page 475 U. S. 495
application of
Steagald in this context would produce
substantial inequitable results by imposing liability on local
government units for law enforcement practices that were legitimate
at the time they were undertaken.
See Griffin v. Illinois,
351 U. S. 12,
351 U. S. 26
(1956) (Frankfurter, J., concurring in judgment) ("We should not
indulge in the fiction that the law now announced has always been
the law . . ."). Civil liability should not attach unless there was
notice that a constitutional right was at risk.
Procunier v.
Navarette, 434 U. S. 555,
434 U. S. 562
(1978).
We ought to be even more wary of applying new rules of Fourth
Amendment law retroactively to civil cases than we are with new
rules of civil law. The primary reason for imposing § 1983
liability on local government units is deterrence, so that, if
there is any doubt about the constitutionality of their actions,
officials will "err on the side of protecting citizens' rights."
Owen v. City of Independence, 445 U.
S. 622,
445 U. S. 652
(1980). But law enforcement officials, particularly prosecutors,
are in a much different position with respect to deterrence than
other local government officials.
Cf. Imbler v. Pachtman,
424 U. S. 409,
424 U. S. 425
(1976). Their affirmative duty to enforce the law vigorously often
requires them to take actions that legitimately intrude on
individual liberties, often acting "under serious constraints of
time and even information."
Ibid. While law enforcement
officials, as much as any other official, ought to "err on the side
of protecting citizens' rights" when they have legitimate doubts
about the constitutionality of their actions, they should not be
deterred from doing their duty to enforce the criminal law when
they have no such doubts. In this case, for example, Sixth Circuit
law expressly authorized the Prosecutor's decision. Because a court
engages in the same balancing of interests in a Fourth Amendment
case that is required, with much less deliberation, of law
enforcement officials, they are justified in relying on the
judgment of the applicable federal court. Under these
circumstances, there was nothing that should
Page 475 U. S. 496
have caused the officials to "harbor doubts about the lawfulness
of their intended actions,"
Owen, supra, at
445 U. S. 652,
and therefore nothing to deter.
Moreover, there is a significant cost to unwarranted deterrence
of law enforcement officials. We recognized in
Imbler a
strong state interest in "vigorous and fearless" prosecution, and
found that to be "essential to the proper functioning of the
criminal justice system." 424 U.S. at
424 U. S.
427-428. Those same general concerns apply to other law
enforcement officials. Unwarranted deterrence has the undesirable
effect of discouraging conduct that is essential to our justice
system and protects the State's interest in public safety. In that
sense, this case is different from
Owen. It is no answer
to say that some officials are entitled either to absolute or
qualified immunity. It ignores reality to say that, if petitioner
is successful in his $20-million suit, it will not have a chilling
effect on law enforcement practices in Hamilton County. [
Footnote 3/4]
For these reasons,
Steagald should not be applied
retroactively. Consequently, petitioner has no constitutional
violation of which to complain. I therefore would affirm the
decision of the Court of Appeals. [
Footnote 3/5]
Page 475 U. S. 497
II
Even if
Steagald is applied retroactively, petitioner
has failed to demonstrate the existence of an official policy for
which Hamilton County can be liable. The action said to have
created policy here was nothing more than a brief response to a
single question over the telephone. The Deputy Sheriffs sought
instructions concerning a situation that had never occurred before,
at least in the memory of the participants.
Ante at
475 U. S.
474-475. That in itself, and the fact that the Assistant
Prosecutor had to obtain advice from the County Prosecutor,
strongly indicate that no prior policy had been formed. Petitioner
therefore argues that the County Prosecutor's reaction in this case
formed county policy. The sparse facts supporting petitioner's
theory -- adopted by the Court today -- do not satisfy the
requirement in
Monell v. New York City Dept. of Social
Services, 436 U. S. 658,
436 U. S. 691
(1978), that local government liability under § 1983 be imposed
only when the injury is caused by government policy.
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
436 U. S. 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
Page 475 U. S. 498
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
475 U. S. 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
475 U. S.
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
475 U. S. 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.
Page 475 U. S. 499
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
436 U. S. 691;
see also Oklahoma City v. Tuttle, 471 U.
S. 808,
471 U. S. 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.
B
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
436 U. S. 690.
The clear implication is that policy is created when a rule is
formed that applies to all similar
Page 475 U. S. 500
situations -- a "governing principle [or] plan." Webster's New
Twentieth Century Dictionary 1392 (2d ed.1979). [
Footnote 3/6] When a rule of general applicability
has been approved, the government has taken a position for which it
can be held responsible. [
Footnote
3/7]
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
436 U. S. 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
445 U. S.
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
Page 475 U. S. 501
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
475 U. S. 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. [
Footnote 3/8]
Similarly, nothing about the way the decision was reached
indicates that official policy was formed. The prosecutor, without
time for thoughtful consideration or consultation, simply gave an
off-the-cuff answer to a single question. There was no
process at all. The Court's holding undercuts
Page 475 U. S. 502
the basic rationale of
Monell, and unfairly increases
the risk of liability on the level of government least able to bear
it. I dissent.
[
Footnote 3/1]
In fact, on direct appeal from his criminal conviction,
petitioner did enjoy retroactive application of the rule in
Steagald, although it did not entitle him to reversal of
his conviction.
State v. Pembaur, 9 Ohio St.3d 136, 459
N.E.2d 217 (1984). While the Ohio Supreme Court did not
specifically address the retroactivity issue, it did discuss the
applicability of
Steagald to petitioner's criminal appeal.
9 Ohio St.3d at 137-138, 459 N.E.2d at 218-219. The court reasoned,
however, that, because no "substantive" offense was involved, but
only a conviction for obstructing the police, petitioner could not
rely on the unconstitutionality of the search as a defense.
Id. at 138, 459 N.E.2d at 219.
[
Footnote 3/2]
If new criminal rules are so applied, it is possible that a
person could obtain the benefit of retroactive application of a new
criminal rule to his civil § 1983 case, even though he could not
use the new rule to attack his conviction collaterally. A prisoner
literally could be forced to remain in prison while collecting his
civil damages award. In
Shea v. Louisiana, 470 U. S.
51 (1985), the Court created a distinction between
retroactivity on direct review of a conviction and on collateral
attack of a conviction that has become final. On collateral attack
the principles of
Solem v. Stumes, 465 U.
S. 638 (1984), apply, which make it less likely that a
new rule would be applied retroactively. A key factor under
Stumes is the extent of the reliance by law enforcement
authorities on the old standards.
Id. at
465 U. S.
643.
[
Footnote 3/3]
In
Dalia v. United States, 441 U.
S. 238 (1979), the Court rejected the argument that a
separate search warrant was required before police could enter a
business office to install an eavesdropping device when officers
already had a warrant authorizing the eavesdropping itself. The
Court noted that,
"in executing a warrant, the police may find it necessary to
interfere with privacy rights not explicitly considered by the
judge who issued the warrant."
Id. at
441 U. S. 257.
In
Payton v. New York, 445 U. S. 573
(1980), the Court rejected the suggestion that a separate search
warrant was required before police could execute an arrest warrant
by entering the home of the subject of the warrant.
[
Footnote 3/4]
JUSTICE STEVENS misunderstands the unique posture of this case.
This is not a question of retroactivity of a new civil rule to
civil cases versus retroactivity of a new criminal rule to criminal
cases. The special concerns discussed in the text above arise in
part out of the retroactive application of a new rule of criminal
law to civil cases. I see little to be gained by comparing the
societal costs of civil and criminal retroactivity,
see
concurring opinion of STEVENS, J.,
ante at
475 U. S.
488-489, n. 3, because they can be severe in either
case. Today's opinion could result in even a nonnegligent mistake
in judgment imposing heavy liability on units of local government,
especially now in view of the skyrocketing cost -- or
unavailability -- of liability insurance.
See also Malley v.
Briggs, ante p.
475 U. S. 335.
[
Footnote 3/5]
The Court's only response to these concerns is to note that
respondent has
"never challenged, and has in fact also conceded, that
Steagald applied retroactively to this case. . . . We
decide this case in light of respondent's concessions."
Ante at
475 U. S. 477,
n. 5. The retroactivity issue, however, is central to this case. We
need not reach the difficult federal issues in this case if the
Court correctly resolved
Steagald's retroactivity. Nor are
we prevented from doing so by any actual concession of the
respondent.
See Tr. of Oral Arg. 26-27. JUSTICE WHITE does
not address the retroactivity of
Steagald on the ground
that the county had not relied on this contention. In my view,
although we need not address this retroactivity issue, there is no
question as to our right to do so -- especially in view of the
unfairness of holding the respondent county liable for not
anticipating
Steagald. Procunier v. Navarette,
434 U. S. 555,
559, n. 6 (1978);
Blonder-Tongue Laboratories, Inc. v.
University of Illinois Foundation, 402 U.
S. 313,
402 U. S. 320,
n. 6 (1971).
[
Footnote 3/6]
The focus on a rule of general applicability does not mean that
more than one instance of its application is required. The local
government unit may be liable for the first application of a duly
constituted unconstitutional policy.
[
Footnote 3/7]
An example of official policy in the form of a rule of general
applicability is
Newport v. Fact Concerts, Inc.,
453 U. S. 247
(1981). While the Court in that case was not called on to define
the scope of the word "policy," the complaint was based on a rule
of general applicability. The city canceled a scheduled concert
pursuant to its rule of not allowing rock concerts. Plaintiffs
alleged that the general rule against rock concerts violated their
First Amendment rights. Even if the cancellation was the first
implementation of the rule, it was clear that the city had
committed itself to a general position that would govern future
cases.
[
Footnote 3/8]
There is nothing in the record to support the inference relied
on by JUSTICES WHITE and O'CONNOR. Nor has this Court ever held
that, because a policy has been adopted by one city or county we
may
assume that a similar policy has been adopted by
neighboring cities or counties. After all, the city and county in
this case are separate governmental entities.
Moreover, and again contrary to the views of my colleagues, this
Court has never held -- at least to my knowledge -- that we may
assume that, simply because certain conduct is permitted by
existing law, it must have been adopted as county policy. The
undisputed facts in this case refute these
assumptions by
JUSTICES WHITE and O'CONNOR. Neither the Sheriffs who had been
denied entry nor the Assistant County Prosecutor knew of any such
policy. Otherwise, one of the Sheriffs would not have called the
Prosecutor's office, and certainly the Assistant Prosecutor would
not have thought it necessary to put the question to the
Prosecutor. Nor did the Prosecutor, when asked, say that the
county's policy was to force an entry when necessary to serve a
valid arrest warrant. Rather, he simply said "go in and get them"
-- the sort of spontaneous reply that a busy official might make
quite thoughtlessly. As noted above, the Sheriff testified that the
proper response would depend on the circumstances.