Petitioners, female employees of the Department of Social
Services and the Board of Education of the city of New York,
brought this class action against the Department and its
Commissioner, the Board and its Chancellor, and the city of New
York and its Mayor under 42 U.S.C. § 19&3, which provides that
every "person" who, under color of any statute, ordinance,
regulation, custom, or usage of any State subjects, or "causes to
be subjected," any person to the deprivation of any federally
protected rights, privileges, or immunities shall be civilly liable
to the injured party. In each case, the individual defendants were
sued solely in their official capacities. The gravamen of the
complaint was that the Board and the Department had, as a matter of
official policy, compelled pregnant employees to take unpaid leaves
of absence before such leaves were required for medical reasons.
The District Court found that petitioners' constitutional rights
had been violated, but held that petitioners' claims for injunctive
relief were mooted by a supervening change in the official
maternity leave policy. That court further held that
Monroe v.
Pape, 365 U. S. 167,
barred recovery of backpay from the Department, the Board, and the
city. In addition, to avoid circumvention of the immunity conferred
by
Monroe, the District Court held that natural persons
sued in their official capacities as officers of a local government
also enjoy the immunity conferred on local governments by that
decision. The Court of Appeals affirmed on a similar theory.
Held:
1. In
Monroe v. Pape, supra, after examining the
legislative history of the Civil Rights Act of 1871, now codified
as 42 U.S.C. § 1983, and particularly the rejection of the
so-called Sherman amendment, the Court held that Congress, in 1871,
doubted its constitutional authority to impose civil liability on
municipalities, and therefore could not have intended to include
municipal bodies within the class of "persons" subject to the Act.
Reexamination of this legislative history compels the conclusion
that Congress, in 1871, would
not have thought § 1983
constitutionally infirm if it applied to local governments. In
addition, that history confirms that local governments were
intended to be included
Page 436 U. S. 659
among the "persons" to which § 1983 applies. Accordingly,
Monroe v. Pape is overruled insofar as it holds that local
governments are wholly immune from suit under § 1983. Pp.
436 U. S.
664-689.
2. Local governing bodies (and local officials sued in their
official capacities) can, therefore, be sued directly under § 1983
for monetary, declaratory, and injunctive relief in those
situations where, as here, the action that is alleged to be
unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted or
promulgated by those whose edicts or acts may fairly be said to
represent official policy. In addition, local governments, like
every other § 1983 "person," may be sued for constitutional
deprivations visited pursuant to governmental "custom" even though
such custom has not received formal approval through the
government's official decisionmaking channels. Pp.
436 U. S.
690-691.
3. On the other hand, the language and legislative history of §
1983 compel the conclusion that Congress did not intend a local
government to be held liable solely because it employs a tortfeasor
-- in other words, a local government cannot be held liable under §
1983 on a
respondeat superior theory. Pp.
436 U. S.
691-695.
4. Considerations of
stare decisis do not counsel
against overruling
Monroe v. Pape insofar as it is
inconsistent with this opinion. Pp.
436 U. S.
695-701.
(a)
Monroe v. Pape departed from prior practice insofar
as it completely immunized municipalities from suit under § 1983.
Moreover, since the reasoning of
Monroe does not allow a
distinction to be drawn between municipalities and school boards,
this Court's many cases holding school boards liable in § 1983
actions are inconsistent with
Monroe, especially as the
principle of that case was extended to suits for injunctive relief
in
City of Kenosha v. Bruno, 412 U.
S. 507. Pp.
436 U. S.
695-696.
(b) Similarly, extending absolute immunity to school boards
would be inconsistent with several instances in which Congress has
refused to immunize school boards from federal jurisdiction under §
1983. Pp.
436 U. S.
696-699.
(c) In addition, municipalities cannot have arranged their
affairs on an assumption that they can violate constitutional
rights for an indefinite period; accordingly, municipalities have
no reliance interest that would support an absolute immunity. Pp.
436 U. S.
699-700.
(d) Finally, it appears beyond doubt from the legislative
history of the Civil Rights Act of 1871 that
Monroe
misapprehended the meaning of the Act. Were § 1983 unconstitutional
as to local governments, it would have been equally
unconstitutional as to state or local officers,
Page 436 U. S. 660
yet the 1871 Congress clearly intended § 1983 to apply to such
officers and all agreed that such officers could constitutionally
be subjected to liability under § 1983. The Act also unquestionably
was intended to provide a remedy, to be broadly construed, against
all forms of official violation of federally protected rights.
Therefore, without a clear statement in the legislative history,
which is not present, there is no justification for excluding
municipalities from the "persons" covered by § 1983. Pp
436 U. S.
700-701.
5. Local governments sued under § 1983 cannot be entitled to an
absolute immunity, lest today's decision "be drained of meaning,"
Scheuer v. Rhodes, 416 U. S. 232,
416 U. S. 248.
P.
436 U. S.
701.
532 F.2d 259, reversed.
BRENNAN, J., delivered the opinion of the Court, in which
STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined, and in
Parts I, III, and V of which STEVENS, J., joined. POWELL, J., filed
a concurring opinion,
post, p.
436 U. S. 704.
STEVENS, J., filed a statement concurring in part,
post,
p.
436 U. S. 714.
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,
joined,
post, p.
436 U. S.
714.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Petitioners, a class of female employees of the Department of
Social Services and of the Board of Education of the city of New
York, commenced this action under 42 U.S.C. § 1983 in July, 1971.
[
Footnote 1] The gravamen of
the complaint was that the
Page 436 U. S. 661
Board and the Department had, as a matter of official policy,
compelled pregnant employees to take unpaid leaves of absence
before such leaves were required for medical reasons. [
Footnote 2]
Cf. Cleveland Board of
Education v. LaFleur, 414 U. S. 632
(1974). The suit sought injunctive relief and backpay for periods
of unlawful forced leave. Named as defendants in the action were
the Department and its Commissioner, the Board and its Chancellor,
and the city of New York and its Mayor. In each case, the
individual defendants were sued solely in their official
capacities. [
Footnote 3]
On cross-motions for summary judgment, the District Court for
the Southern District of New York held moot petitioners' claims for
injunctive and declaratory relief, since the city of New York and
the Board, after the filing of the complaint, had changed their
policies relating to maternity leaves so that no pregnant employee
would have to take leave unless she was medically unable to
continue to perform her job. 94 F. Supp. 853, 855 (1975). No one
now challenges this conclusion.
Page 436 U. S. 662
The court did conclude, however, that the acts complained of
were unconstitutional under
LaFleur, supra. 394 F. Supp.
at 855. Nonetheless plaintiffs' prayers for backpay were denied
because any such damages would come ultimately from the city of New
York and, therefore, to hold otherwise would be to "circumven[t]"
the immunity conferred on municipalities by
Monroe v.
Pape, 365 U. S. 167
(1961).
See 394 F. Supp. at 855.
On appeal, petitioners renewed their arguments that the Board of
Education [
Footnote 4] was not
a "municipality" within the meaning of
Monroe v. Pape,
supra, and that, in any event, the District Court had erred in
barring a damages award against the individual defendants. The
Court of Appeals for the Second Circuit rejected both contentions.
The court first held that the Board of Education was not a "person"
under § 1983 because
"it performs a vital governmental function . . . . and,
significantly, while it has the right to determine how the funds
appropriated to it shall be spent . . . , it has no final say in
deciding what its appropriations shall be."
532 F.2d 259, 263 (1976). The individual defendants, however,
were "persons" under § 1983, even when sued solely in their
official capacities. 532 F.2d at 264. Yet, because a damages award
would "have to be paid by a city that was held not to be amenable
to such an action in
Monroe v. Pape," a damages action
against officials sued in their official capacities could not
proceed.
Id. at 265.
We granted certiorari in this case, 429 U.S. 1071, to
consider
"Whether local governmental officials and/or local independent
school boards are 'persons' within the meaning of 42 U.S.C. § 1983
when equitable relief in the nature of back pay is sought against
them in their official capacities?"
Pet. for Cert. 8.
Page 436 U. S. 663
Although, after plenary consideration, we have decided the
merits of over a score of cases brought under § 1983 in which the
principal defendant was a school boar [
Footnote 5] -- indeed, in some of which § 1983 and its
jurisdictional counterpart, 28 U.S.C. § 1343, provided the only
basis for jurisdiction [
Footnote
6] -- we indicated in
Mt. Healthy City Board of Education
v. Doyle, 429 U. S. 274,
429 U. S. 279
(1977), last Term that the question presented here was open, and
would be decided "another day." That other day has come, and we now
overrule
Monroe v. Pape, supra, insofar as it holds that
local government are wholly immune from suit under § 1983.
[
Footnote 7]
Page 436 U. S. 664
I
In
Monroe v. Pape, we held that "Congress did not
undertake to bring municipal corporations within the ambit of [§
1983]." 365 U.S. at
365 U. S. 187.
The sole basis for this conclusion was an inference drawn from
Congress' rejection of the "Sherman amendment" to the bill which
became the Civil Rights Act of 1871, 17 Stat. 13, the precursor of
§ 1983. The amendment would have held a municipal corporation
liable for damage done to the person or property of its inhabitants
by
private persons "riotously and tumultuously assembled."
[
Footnote 8] Cong.Globe, 42d
Cong., 1st Sess., 749 (1871) (hereinafter Globe). Although the
Sherman amendment did not seek to amend § 1 of the Act, which is
now § 1983, and although the nature of the obligation created by
that amendment was vastly different from that created by § 1, the
Court nonetheless concluded in
Monroe that Congress must
have meant to exclude municipal corporations from the coverage of §
1 because
"'the House [in voting against the Sherman amendment] had
solemnly decided that, in their judgment, Congress had no
constitutional power to impose any
obligation upon county
and town organizations, the mere instrumentality for the
administration of state law.'"
365 U.S. at
365 U. S. 190
(emphasis added), quoting Globe 804 (Rep. Poland). This statement,
we thought, showed that Congress doubted its "constitutional power
. . . to impose
civil liability on municipalities," 365
U.S. at
365 U. S. 190
(emphasis added), and that such doubt would have extended to any
type of civil liability. [
Footnote
9]
Page 436 U. S. 665
A fresh analysis of the debate on the Civil Rights Act of 1871,
and particularly of the case law which each side mustered in its
support, shows, however, that
Monroe incorrectly equated
the "obligation" of which Representative Poland spoke with "civil
liability."
A. An Overview
There are three distinct stages in the legislative consideration
of the bill which became the Civil Rights Act of 1871. On March 28,
1871, Representative Shellabarger, acting for a House select
committee, reported H.R. 320, a bill "to enforce the provisions of
the fourteenth amendment to the Constitution of the United States,
and for other purposes." H.R. 320 contained four sections. Section
1, now codified as 42 U.S.C. § 1983, was the subject of only
limited debate, and was passed without amendment. [
Footnote 10] Sections 2 through 4 dealt
primarily with the "other purpose" of suppressing Ku Klux Klan
violence in the Southern States. [
Footnote 11] The wisdom and constitutionality of these
sections -- not § 1, now § 1983 -- were the subject of almost all
congressional debate, and each of these sections was amended. The
House finished its initial debates on H.R. 320 on April 7, 1871,
and, one week later, the Senate also voted out a bill. [
Footnote 12] Again, debate on § 1 of
the bill was limited, and that section was passed as
introduced.
Page 436 U. S. 666
Immediately prior to the vote on H.R. 320 in the Senate, Senator
Sherman introduced his amendment. [
Footnote 13] This was not an amendment to § 1 of the
bill, but was to be added as § 7 at the end of the bill. Under the
Senate rules, no discussion of the amendment was allowed, and,
although attempts were made to amend the amendment, it was passed
as introduced. In this form, the amendment did not place liability
on municipal corporations, but made any inhabitant of a
municipality liable for damage inflicted by persons "riotously and
tumultuously assembled." [
Footnote 14]
The House refused to acquiesce in a number of amendments made by
the Senate, including the Sherman amendment, and the respective
versions of H.R. 320 were therefore sent to a conference committee.
Section 1 of the bill, however, was not a subject of this
conference since, as noted, it was passed verbatim as introduced in
both Houses of Congress.
On April 18, 1871, the first conference committee completed its
work on H.R. 320. The main features of the conference committee
draft of the Sherman amendment were these: [
Footnote 15] first, a cause of action was given
to persons injured by
"any persons riotously and tumultuously assembled together . . .
with intent to deprive any person of any right conferred upon him
by the Constitution and laws of the United States, or to deter him
or punish him for exercising such right, or by reason of his race,
color, or previous condition of servitude. . . . "
Page 436 U. S. 667
Second, the bill provided that the action would be against the
county, city, or parish in which the riot had occurred, and that it
could be maintained by either the person injured or his legal
representative. Third, unlike the amendment as proposed, the
conference substitute made the government defendant liable on the
judgment if it was not satisfied against individual defendants who
had committed the violence. If a municipality were liable, the
judgment against it could be collected
"by execution, attachment, mandamus, garnishment, or any other
proceeding in aid of execution or applicable to the enforcement of
judgments against municipal corporations; and such judgment [would
become] a lien as well upon all moneys in the treasury of such
county, city, or parish, as upon the other property thereof."
In the ensuing debate on the first conference report, which was
the first debate of any kind on the Sherman amendment, Senator
Sherman explained that the purpose of his amendment was to enlist
the aid of persons of property in the enforcement of the civil
rights laws by making their property "responsible" for Ku Klux Klan
damage. [
Footnote 16]
Statutes drafted on a similar theory, he stated, had long been in
force in England and were in force in 1871 in a number of States.
[
Footnote 17]
Page 436 U. S. 668
Nonetheless, there were critical differences between the
conference substitute and extant state and English statutes: the
conference substitute, unlike most state riot statutes, lacked a
short statute of limitations and imposed liability on the
government defendant whether or not it had notice of the impending
riot, whether or not the municipality was authorized to exercise a
police power, whether or not it exerted all reasonable efforts to
stop the riot, and whether or not the rioters were caught and
punished. [
Footnote 18]
The first conference substitute passed the Senate but was
rejected by the House. House opponents, within whose ranks were
some who had supported § 1, thought the Federal Government could
not, consistent with the Constitution, obligate municipal
corporations to keep the peace if those corporations were neither
so obligated nor so authorized by their state charters. And,
because of this constitutional objection, opponents of the Sherman
amendment were unwilling to impose damages liability for
nonperformance of a duty which Congress could not require
municipalities to perform. This position is reflected in
Representative Poland's statement that is quoted in
Monroe. [
Footnote
19]
Because the House rejected the first conference report, a second
conference was called, and it duly issued its report. The second
conference substitute for the Sherman amendment abandoned municipal
liability and, instead, made
"any person
Page 436 U. S. 669
or persons having knowledge [that a conspiracy to violate civil
rights was afoot], and having power to prevent or aid in preventing
the same,"
who did not attempt to stop the same, liable to any person
injured by the conspiracy. [
Footnote 20] The amendment in this form was adopted by
both Houses of Congress, and is now codified as 42 U. S. C.
§1986.
The meaning of the legislative history sketched above can most
readily be developed by first considering the debate on the report
of the first conference committee. This debate shows conclusively
that the constitutional objections raised against the Sherman
amendment -- on which our holding in
Monroe was based,
see supra at 664 -- would not have prohibited
congressional creation of a civil remedy against state municipal
corporations that infringed federal rights. Because §1 of the Civil
Rights Act does not state expressly that municipal corporations
come within its ambit, it is finally necessary to interpret § 1 to
confirm that such corporations were indeed intended to be included
within the "persons" to whom that section applies.
B. Debate on the First Conference Report
The style of argument adopted by both proponents and opponents
of the Sherman amendment in both Houses of Congress was largely
legal, with frequent references to cases decided by this Court and
the Supreme Courts of the several States. Proponents of the Sherman
amendment did not, however, discuss in detail the argument in favor
of its constitutionality. Nonetheless, it is possible to piece
together such an argument from the debates on the first conference
report and those on § 2 of the civil rights bill, which, because it
allowed the Federal Government to prosecute crimes "in the States,"
had also raised questions of federal power. The account of
Representative Shellabarger, the House sponsor of H R. 320, is the
most complete.
Page 436 U. S. 670
Shellabarger began his discussion of H.R. 320 by stating that
"there is a domain of constitutional law involved in the right
consideration of this measure which is wholly unexplored." Globe
App. 67. There were analogies, however. With respect to the meaning
of § 1 of the Fourteenth Amendment, and particularly its Privileges
or Immunities Clause, Shellabarger relied on the statement of Mr.
Justice Washington in
Corfield v. Coryell, 4 Wash.C.C. 371
(CC ED Pa. 1825), which defined the privileges protected by Art.
IV:
"'What these fundamental privileges are[,] it would perhaps be
more tedious than difficult to enumerate. They may, however, be all
comprehended under the following general heads: protection by the
Government;' -- "
"
Mark that -- "
"
'protection by the Government; the enjoyment of life
and liberty, with the right to acquire and possess property of
every kind, and to pursue and obtain happiness and safety. . .
.'"
Globe App. 69 (emphasis added), quoting 4 Wash.C.C. at
380-381.
Building on his conclusion that citizens were owed protection --
a conclusion not disputed by opponents of the Sherman amendment
[
Footnote 21] --
Shellabarger then considered Congress' role in providing that
protection. Here again there were precedents: "[Congress has always
assumed to enforce, as against
Page 436 U. S. 671
the States, and also persons, every one of the provisions of the
Constitution. Most of the provisions of the Constitution which
restrain and directly relate to the States, such as those in [Art.
I, § 10,] relate to the divisions of the political powers of the
State and General Governments. . . . These prohibitions upon
political powers of the States are all of such nature that they can
be, and even have been, . . . enforced by the courts of the United
States declaring void all State acts of encroachment on Federal
powers. Thus, and thus sufficiently, has the United States
"enforced" these provisions of the Constitution. But there are some
that are not of this class. These are where the court secures the
rights or the liabilities of persons within the States, as between
such persons and the States.
"These three are: first, that as to fugitives from justice;
[
Footnote 22] second, that
as to fugitives from service, (or slaves;) [
Footnote 23] third, that declaring that the
'citizens of each State shall be entitled to all the privileges and
immunities of citizens in the several States.' [
Footnote 24] "
Page 436 U. S. 672
"And, sir, every one of these -- the only provisions where it
was deemed that legislation was required to enforce the
constitutional provisions -- the only three where the rights or
liabilities of persons in the States, as between these persons and
the States, are directly provided for, Congress has by legislation
affirmatively interfered to protect . . . such persons."
Globe App. 69-70.
Of legislation mentioned by Shellabarger, the closest analog of
the Sherman amendment, ironically, was the statute implementing the
fugitives from justice and fugitive slave provisions of Art. IV --
the Act of Feb. 12, 1793, 1 Stat. 302 the constitutionality of
which had been sustained in 1842, in
Prigg v.
Pennsylvania, 16 Pet. 539. There, Mr. Justice
Story, writing for the Court, held that Art. IV gave slaveowners a
federal right to the unhindered possession of their slaves in
whatever State such slaves might be found. 16 Pet. at
41 U. S. 612.
Because state process for recovering runaway slaves might be
inadequate or even hostile to the rights of the slaveowner, the
right intended to be conferred could be negated if left to state
implementation.
Id. at
41 U. S. 614.
Thus, since the Constitution guaranteed the right, and this, in
turn, required a remedy, Story held it to be a "natural inference"
that Congress had the power itself to ensure an appropriate (in the
Necessary and Proper Clause sense) remedy for the right.
Id. at
41 U. S.
615.
Building on
Prigg, Shellabarger argued that a remedy
against municipalities and counties was an appropriate -- and hence
constitutional -- method for ensuring the protection which the
Fourteenth Amendment made every citizen's federal right. [
Footnote 25] This much was clear
from the adoption of such statutes by the several States as devices
for suppressing riot. [
Footnote
26] Thus, said Shellabarger, the only serious question
remaining
Page 436 U. S. 673
was
"whether, since a county is an integer or part of a State, the
United States can impose upon it, as such,
any obligations to
keep the peace in obedience to United States laws. [
Footnote 27]"
This he answered affirmatively, citing
Board of
Comm'rs v. Aspinwall, 24 How. 376 (1861), the first
of many cases [
Footnote 28]
upholding the power of federal courts to enforce the Contract
Clause against municipalities. [
Footnote 29]
House opponents of the Sherman amendment -- whose views are
particularly important, since only the House voted down the
amendment -- did not dispute Shellabarger's claim that the
Fourteenth Amendment created a federal right to protection,
see n.
21
supra, but they argued that the local units of government
upon which the amendment fastened liability were not obligated to
keep the peace at state law, and further that the Federal
Government could not constitutionally require local governments to
create police forces, whether this requirement was levied directly,
or indirectly by imposing damages for breach of the peace on
municipalities. The most complete statement of this position is
that of Representative Blair: [
Footnote 30]
"The proposition known as the Sherman amendment . . .
Page 436 U. S. 674
is entirely new. It is altogether without a precedent in this
country. . . . That amendment claims the power in the General
Government to go into the States of this Union and lay such
obligations as it may please upon the municipalities, which are the
creations of the States alone. . . . "
". . . [H]ere it is proposed not to carry into effect an
obligation which rests upon the municipality, but to
Page 436 U. S. 675
create that obligation, and that is the provision I am unable to
assent to. The parallel of the hundred does not in the least meet
the case. The power that laid the obligation upon the hundred first
put the duty upon the hundred that it should perform in that
regard, and failing to meet the obligation which had been laid upon
it, it was very proper that it should suffer damage for its
neglect. . . ."
". . . [T]here are certain rights and duties that belong to the
States, . . . there are certain powers that inhere in the State
governments. They create these municipalities, they say what their
powers shall be and what their obligations shall be. If the
Government of the United States can step in and add to those
obligations, may it not utterly destroy the municipality? If it can
say that it shall be liable for damages occurring from a riot, . .
. where [will] its power . . . stop and what obligations . . .
might [it] not lay upon a municipality. . . . "
"Now, only the other day, the Supreme Court . . . decided [in
Collector v. Day, 11 Wall.
113 (1871)] that there is no power in the Government of the United
States, under its authority to tax, to tax the salary of a State
officer. Why? Simply because the power to tax involves the power to
destroy, and it was not the intent to give the Government of the
United States power to destroy the government of the States in any
respect. It was held also in the case of
Prigg vs.
Pennsylvania [16 Pet. 539 (1842)] that it is not
within the power of the Congress of the United States to lay duties
upon a State officer; that we cannot command a State officer to do
any duty whatever, as such; and I ask . . . the difference between
that and commanding a municipality, which is equally the creature
of the State, to perform a duty."
Globe 795.
Any attempt to impute a unitary constitutional theory to
opponents of the Sherman amendment is, of course, fraught
Page 436 U. S. 676
with difficulties, not the least of which is that most Members
of Congress did not speak to the issue of the constitutionality of
the amendment. Nonetheless, two considerations lead us to conclude
that opponents of the Sherman amendment found it unconstitutional
substantially because of the reasons stated by Representative
Blair: first, Blair's analysis is precisely that of Poland, whose
views were quoted as authoritative in
Monroe, see supra at
436 U. S. 664,
and that analysis was shared in large part by all House opponents
who addressed the constitutionality of the Sherman amendment.
[
Footnote 31] Second,
Blair's exegesis of the reigning constitutional theory of his day,
as we shall explain, was clearly supported by precedent -- albeit
precedent that has not survived,
see Ex parte Virginia,
100 U. S. 339,
100 U. S.
347-348 (1880);
Graves v. New York ex rel.
O'Keefe, 306 U. S. 466,
306 U. S. 486
(1939) -- and no other constitutional formula was advanced by
participants in the House debates.
Collector v. Day, cited by Blair, was the clearest and,
at the time of the debates, the most recent pronouncement of a
doctrine of coordinate sovereignty that, as Blair stated, placed
limits on even the enumerated powers of the National Government in
favor of protecting state prerogatives. There, the Court held that
the United States could not tax the income of Day, a Massachusetts
state judge, because the independence of the States within their
legitimate spheres would be imperiled if the instrumentalities
through which States executed their powers were "subject to the
control of another and distinct government." 11 Wall. at
78 U. S. 127.
Although the Court in
Day apparently rested this holding
in part on the proposition that the taxing "power acknowledges no
limits but the will of the legislative body imposing the tax,"
id. at
78 U. S.
125-126;
cf. 17 U. S.
Maryland, 4 Wheat. 316 (1819), the Court had, in other cases,
limited other national powers in order to avoid interference with
the States. [
Footnote
32]
Page 436 U. S. 677
In
Prigg v. Pennsylvania, for example, Mr. Justice
Story, in addition to confirming a broad national power to
legislate under the Fugitive Slave Clause,
see supra at
436 U. S. 672,
held that Congress could not "insist that states . . . provide
means to carry into effect the duties of the national government."
16 Pet. at
41 U. S.
615-16. [
Footnote
33] And Mr. Justice McLean agreed that, "[a]s a general
principle," it was true "that Congress had no power to impose
duties on state officers, as provided in the [Act of Feb. 12,
1793]." Nonetheless, he wondered whether Congress might not impose
"positive" duties on state officers where a clause of the
Constitution, like the Fugitive Slave Clause, seemed to require
affirmative government assistance, rather than restraint of
government, to secure federal rights.
See id. at
41 U. S.
664-665.
Had Mr. Justice McLean been correct in his suggestion that,
where the Constitution envisioned affirmative government
assistance, the States or their officers or instrumentalities could
be required to provide it, there would have been little doubt that
Congress could have insisted that municipalities afford by
"positive" action the protection [
Footnote 34] owed individuals under § 1 of the Fourteenth
Amendment whether or not municipalities were obligated by state law
to keep the peace. However, any such argument, largely foreclosed
by
Prigg, was made
Page 436 U. S. 678
impossible by the Court's holding in
Kentucky v.
Dennison, 24 How. 66 (1861). There, the Court was
asked to require Dennison, the Governor of Ohio, to hand over Lago,
a fugitive from justice wanted in Kentucky, as required by § 1 of
the Act of Feb. 12, 1793, [
Footnote 35] which implemented Art. IV, § 2, cl. 2, of
the Constitution. Mr. Chief Justice Taney, writing for a unanimous
Court, refused to enforce that section of the Act:
"[W]e think it clear that the Federal Government, under the
Constitution, has no power to impose on a State officer, as such,
any duty whatever, and compel him to perform it; for if it
possessed this power, it might overload the officer with duties
which would fill up all his time, and disable him from performing
his obligations to the State, and might impose on him duties of a
character incompatible with the rank and dignity to which he was
elevated by the State."
24 How. at
65 U. S.
107-108
The rationale of
Dennison -- that the Nation could not
impose duties on state officers since that might impede States in
their legitimate activities -- is obviously identical to that which
animated the decision in
Collector v. Day. See
supra at
436 U. S. 676.
And, as Blair indicated, municipalities, as instrumentalities
through which States executed their policies, could be equally
disabled from carrying out state policies if they were also
obligated to carry out federally imposed duties. Although no one
cited
Dennison by name, the principle for which it
Page 436 U. S. 679
stands was well known to Members of Congress, [
Footnote 36] many of whom discussed
Day [
Footnote 37]
as well as a series of State Supreme Court cases [
Footnote 38] in the mid-1860's which had
invalidated a federal tax on the process of state courts on the
ground that the tax threatened the independence of a vital state
function. [
Footnote 39]
Thus, there was ample support for Blair's view that the Sherman
amendment, by putting municipalities to the Hobson's choice of
keeping the peace or paying civil damages, attempted to impose
obligations on municipalities by indirection that could not be
imposed directly, thereby threatening to "destroy the government of
the States." Globe 795.
If municipal liability under § 1 of the Civil Rights Act of 1871
created a similar Hobson's choice, we might conclude, as
Monroe did, that Congress could not have intended
municipalities to be among the "persons" to which that section
applied. But this is not the case.
First, opponents expressly distinguished between imposing an
obligation to keep the peace and merely imposing civil liability
for damages on a municipality that was obligated by state law to
keep the peace, but which had not in violation of the Fourteenth
Amendment. Representative Poland, for example, reasoning from
Contract Clause precedents, indicated that Congress could
constitutionally confer jurisdiction on the federal courts to
entertain suits seeking to hold municipalities
Page 436 U. S. 680
liable for using their authorized powers in violation of the
Constitution -- which is as far as § 1 of the Civil Rights Act
went:
"I presume . . . that where a State had imposed a duty [to keep
the peace] upon [a] municipality . . . , an action would be allowed
to be maintained against them in the courts of the United States
under the ordinary restrictions as to jurisdiction. But the
enforcing a liability, existing by their own contract, or by a
State law, in the courts is a very widely different thing from
devolving a new duty or liability upon them by the national
Government, which has no power either to create or destroy them,
and no power or control over them whatever."
Globe 794.
Representative Burchard agreed:
"[T]here is no duty imposed by the Constitution of the United
States, or usually by State laws, upon a county to protect the
people of that county against the commission of the offenses herein
enumerated, such as the burning of buildings or any other injury to
property or injury to person. Police powers are not conferred upon
counties as corporations; they are conferred upon cities that have
qualified legislative power. And so far as cities are concerned,
where the equal protection required to be afforded by a State is
imposed upon a city by State laws, perhaps the United States courts
could enforce its performance. But counties . . . do not have any
control of the police. . . ."
Id. at 795.
See also the views of Rep.
Willard, discussed at
n 30,
supra. Second, the doctrine of dual sovereignty apparently
put no limit on the power of federal courts to enforce the
Constitution against municipalities that violated it. Under the
theory of dual sovereignty set out in
Prigg, this is quite
understandable. So long as federal courts were vindicating the
Federal Constitution, they were providing the "positive" government
action
Page 436 U. S. 681
required to protect federal constitutional rights, and no
question was raised of enlisting the States in "positive" action.
The limits of the principles announced in
Dennison and
Day are not so well defined in logic, but are clear as a
matter of history. It must be remembered that the same Court which
rendered
Day also vigorously enforced the Contract Clause
against municipalities -- an enforcement effort which included
various forms of "positive" relief, such as ordering that taxes be
levied and collected to discharge federal court judgments, once a
constitutional infraction was found. [
Footnote 40] Thus, federal judicial enforcement of the
Constitution's express limits on state power, since it was done so
frequently, must, notwithstanding anything said in
Dennison or
Day, have been permissible, at least
so long as the interpretation of the Constitution was left in the
hands of the judiciary. Since § 1 of the Civil Rights Act simply
conferred jurisdiction on the federal courts to enforce § 1 of the
Fourteenth Amendment -- a situation precisely analogous to the
grant of diversity jurisdiction under which the Contract Clause was
enforced against municipalities
Page 436 U. S. 682
-- there is no reason to suppose that opponents of the Sherman
amendment would have found any constitutional barrier to § 1 suits
against municipalities.
Finally, the very votes of those Members of Congress, who
opposed the Sherman amendment, but who had voted for § 1, confirm
that the liability imposed by § 1 was something very different from
that imposed by the amendment. Section 1 without question could be
used to obtain a damages judgment against state or municipal
officials who violated federal constitutional rights while
acting under color of law. [
Footnote 41] However, for
Prigg-Dennison-Day
purposes, as Blair and others recognized, [
Footnote 42] there was no distinction of
constitutional magnitude between officers and agents -- including
corporate agents -- of the State: both were state
instrumentalities, and the State could be impeded no matter over
which sort of instrumentality the Federal Government sought to
assert its power.
Dennison and
Day, after all,
were not suits against municipalities, but against
officers, and Blair was quite conscious that he was
extending these cases by applying them to municipal corporations.
[
Footnote 43] Nonetheless,
Senator Thurman, who gave the most exhaustive critique of § 1 --
inter alia, complaining that it would be applied to state
officers,
see Globe App. 217 -- and who opposed both § 1
and the Sherman amendment, the latter on
Prigg grounds,
agreed unequivocally that § 1 was constitutional. [
Footnote 44]
Page 436 U. S. 683
Those who voted for § 1 must similarly have believed in its
constitutionality despite
Prigg, Dennison, and
Day.
C. Debate on § 1 of the Civil Rights Bill
From the foregoing discussion, it is readily apparent that
nothing said in debate on the Sherman amendment would have
prevented holding a municipality liable under § 1 of the Civil
Rights Act for its own violations of the Fourteenth Amendment. The
question remains, however, whether the general language describing
those to be liable under § 1 -- "any person" -- covers more than
natural persons. An examination of the debate on § 1 and
application of appropriate rules of construction show unequivocally
that § 1 was intended to cover legal, as well as natural,
persons.
Representative Shellabarger was the first to explain the
function of § 1:
"[Section 1] not only provides a civil remedy for persons whose
former condition may have been that of slaves, but also to all
people where, under color of State law, they or any of them may be
deprived of rights to which they are entitled under the
Constitution by reason and virtue of their national
citizenship."
Globe App. 68. By extending a remedy to all people, including
whites, § 1 went beyond the mischief to which the remaining
sections of the 1871 Act were addressed. Representative
Shellabarger also stated without reservation that the
constitutionality of § 2 of the Civil Rights Act of 1866 controlled
the constitutionality of § 1 of the 1871 Act, and that the former
had been
Page 436 U. S. 684
approved by "the supreme courts of at least three States of this
Union" and by Mr. Justice Swayne, sitting on circuit, who had
concluded: "
We have no doubt of the constitutionality of every
provision of this act.'" Globe App. 68. Representative Shellabarger
then went on to describe how the courts would and should interpret
§ 1:
"This act is remedial, and in aid of the preservation of human
liberty and human rights. All statutes and constitutional
provisions authorizing such statutes are liberally and beneficently
construed. It would be most strange and, in civilized law,
monstrous were this not the rule of interpretation. As has been
again and again decided by your own Supreme Court of the United
States, and everywhere else where there is wise judicial
interpretation, the largest latitude consistent with the words
employed is uniformly given in construing such statutes and
constitutional provisions as are meant to protect and defend and
give remedies for their wrongs to all the people. . . . Chief
Justice Jay and also Story say:"
" Where a power is remedial in its nature, there is much reason
to contend that it ought to be construed liberally, and it is
generally adopted in the interpretation of laws."
"1 story on Constitution, sec. 429."
Globe App. at 68.
The sentiments expressed in Representative Shellabarger's
opening speech were echoed by Senator Edmunds, the manager of H.R.
320 in the Senate:
"The first section is one that I believe nobody objects to, as
defining the rights secured by the Constitution of the United
States when they are assailed by any State law or under color of
any State law, and it is merely carrying out the principles of the
civil rights bill [of 1866], which have since become a part of the
Constitution."
Globe 568.
Page 436 U. S. 685
"[Section 1 is] so very simple, and really reenact[s] the
Constitution."
Id. at 569. And he agreed that the bill "secure[d] the
rights of white men as much as of colored men."
Id. at
696.
In both Houses, statements of the supporters of § 1 corroborated
that Congress, in enacting § 1, intended to give a broad remedy for
violations of federally protected civil rights. [
Footnote 45] Moreover, since
municipalities, through their official
Page 436 U. S. 686
acts could, equally with natural persons, create the harms
intended to be remedied by § 1, and, further, since Congress
intended § 1 to be broadly construed, there is no reason to suppose
that municipal corporations would have been excluded from the sweep
of § 1.
Cf., e.g., Ex parte Virginia, 100 U.
S. 339,
100 U. S.
346-347 (1880);
Home Tel. & Tel. Co. v. Los
Angeles, 227 U. S. 278,
227 U. S.
286-287,
227 U. S.
294-296 (1913). One need not rely on this inference
alone, however, for the debates show that Members of Congress
understood "persons" to include municipal corporations.
Representative Bingham, for example, in discussing § 1 of the
bill, explained that he had drafted § 1 of the Fourteenth Amendment
with the case of
Barron v. Mayor of
Baltimore, 7 Pet. 243 (1833), especially in
mind.
"In [that] case, the
Page 436 U. S. 687
city had taken private property for public use, without
compensation . . . , and there was no redress for the wrong. . .
."
Globe App. 84 (emphasis added). Bingham's further remarks
clearly indicate his view that such takings by cities, as had
occurred in
Barron, would be redressable under § 1 of the
bill.
See Globe App. 85. More generally, and as Bingham's
remarks confirm, § 1 of the bill would logically be the vehicle by
which Congress provided redress for takings, since that section
provided the only civil remedy for Fourteenth Amendment violations
and that Amendment unequivocally prohibited uncompensated takings.
[
Footnote 46] Given this
purpose, it beggars reason to suppose that Congress would have
exempted municipalities from suit, insisting instead that
compensation for a taking come from an officer in his individual
capacity, rather than from the government unit that had the benefit
of the property taken. [
Footnote
47]
In addition, by 1871, it was well understood that corporations
should be treated as natural persons for virtually all purposes of
constitutional and statutory analysis. This had not always been so.
When this Court first considered the question of the status of
corporations, Mr. Chief Justice Marshall, writing for the Court,
denied that corporations "as such" were persons as that term was
used in Art. III and the Judiciary Act of 1789.
See Bank of the
United States v. Deveaux, 5 Cranch 61,
9 U. S. 86 (1809).
[
Footnote 48] By 1844,
however, the
Deveaux doctrine was unhesitatingly
abandoned:
"[A] corporation created by and doing business in a
particular
Page 436 U. S. 688
state, is to be deemed
to all intents and purposes as a
person, although an artificial person, . . . capable of being
treated as a citizen of that state, as much as a natural
person."
Louisville R. Co. v.
Letson, 2 How. 497,
43 U. S. 558
(1844) (emphasis added), discussed in Globe 752. And only two years
before the debates on the Civil Rights Act, in
Cowles v.
Mercer County, 7 Wall. 118,
74 U. S. 121
(1869), the
Letson principle was automatically and without
discussion extended to municipal corporations. Under this doctrine,
municipal corporations were routinely sued in the federal courts
[
Footnote 49] and this fact
was well known to Members of Congress. [
Footnote 50]
That the "usual" meaning of the word "person" would extend to
municipal corporations is also evidenced by an Act of Congress
which had been passed only months before the Civil Rights Act was
passed. This Act provided that
"in all acts hereafter passed . . . , the word 'person' may
extend and be applied to bodies politic and corporate . . . unless
the context shows that such words were intended to be used in a
more limited sense."
Act of Feb. 25, 1871, § 2, 16 Stat. 431. Municipal corporations
in 1871 were included within the phrase "bodies politic and
corporate" [
Footnote 51]
and, accordingly, the
Page 436 U. S. 689
"plain meaning" of § 1 is that local government bodies were to
be included within the ambit of the persons who could be sued under
§ 1 of the Civil Rights Act. Indeed, a Circuit Judge, writing in
1873 in what is apparently the first reported case under § 1, read
the Dictionary Act in precisely this way in a case involving a
corporate plaintiff and a municipal defendant. [
Footnote 52]
See Northwestern
Fertilizing Co. v. Hyde Park, 18 F. Cas. 393, 394 (No. 10,336)
(CC ND Ill. 1873). [
Footnote
53]
Page 436 U. S. 690
II
Our analysis of the legislative history of the Civil Rights Act
of 1871 compels the conclusion that Congress did intend
municipalities and other local government units to be included
among those persons to whom § 1983 applies. [
Footnote 54] Local governing bodies, [
Footnote 55] therefore, can be sued
directly under § 1983 for monetary, declaratory, or injunctive
relief where, as here, the action that is alleged to be
unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and
promulgated by that body's officers. Moreover, although the
touchstone of the § 1983 action against a government body is an
allegation that official policy is responsible for a deprivation of
rights protected by the Constitution, local governments, like every
other § 1983 "person," by the very terms of the statute, may be
sued for constitutional
Page 436 U. S. 691
deprivations visited pursuant to governmental "custom" even
though such a custom has not received formal approval through the
body's official decisionmaking channels. As Mr. Justice Harlan,
writing for the Court, said in
Adickes v. H. Kress &
Co., 398 U. S. 144,
398 U. S.
167-168 (1970):
"Congress included customs and usages [in § 1983] because of the
persistent and widespread discriminatory practices of state
officials. . . . Although not authorized by written law, such
practices of state officials could well be so permanent and well
settled as to constitute a 'custom or usage' with the force of law.
[
Footnote 56]"
On the other hand, the language of § 1983, read against the
background of the same legislative history, compels the conclusion
that Congress did not intend municipalities to be held liable
unless action pursuant to official municipal policy of some nature
caused a constitutional tort. In particular, we conclude that a
municipality cannot be held liable
solely because it
employs a tortfeasor -- or, in other words, a municipality cannot
be held liable under § 1983 on a
respondeat superior
theory.
We begin with the language of § 1983 as originally passed:
"
[A]ny person who, under color of any law, statute,
ordinance, regulation, custom, or usage of any State,
shall
subject, or cause to be subjected, any person . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution of the United States, shall, any such
Page 436 U. S. 692
law, statute, ordinance, regulation, custom, or usage of the
State to the contrary notwithstanding, be liable to the party
injured in any action at law, suit in equity, or other proper
proceeding for redress. . . ."
17 Stat. 13 (emphasis added). The italicized language plainly
imposes liability on a government that, under color of some
official policy, "causes" an employee to violate another's
constitutional rights. At the same time, that language cannot be
easily read to impose liability vicariously on governing bodies
solely on the basis of the existence of an employer-employee
relationship with a tortfeasor. Indeed, the fact that Congress did
specifically provide that A's tort. became B's liability if B
"caused" A to subject another to a tort suggests that Congress did
not intend § 1983 liability to attach where such causation was
absent. [
Footnote 57]
See Rizzo v. Goode, 423 U. S. 362,
423 U. S.
370-371 (1976).
Page 436 U. S. 693
Equally important, creation of a federal law of
respondeat
superior would have raised all the constitutional problems
associated with the obligation to keep the peace, an obligation
Congress chose not to impose because it thought imposition of such
an obligation unconstitutional. To this day, there is disagreement
about the basis for imposing liability on an employer for the torts
of an employee when the sole nexus between the employer and the
tort is the fact of the employer-employee relationship.
See W. Prosser, Law of Torts § 69, p. 459 (4th ed.1971).
Nonetheless, two justifications tend to stand out. First is the
common sense notion that, no matter how blameless an employer
appears to be in an individual case, accidents might nonetheless be
reduced if employers had to bear the cost of accidents.
See,
e.g., ibid.; 2 F. Harper & F. James, Law of Torts, § 26.3,
pp. 1368-1369 (1956). Second is the argument that the cost of
accidents should be
Page 436 U. S. 694
spread to the community as a whole on an insurance theory.
See, e.g., id. § 6.5; Prosser,
supra at 459.
[
Footnote 58]
The first justification is of the same sort that was offered for
statutes like the Sherman amendment:
"The obligation to make compensation for injury resulting from
riot is by arbitrary enactment of statutes, affirmatory law, and
the reason of passing the statute is to secure a more perfect
police regulation."
Globe 777 (Sen. Frelinghuysen). This justification was obviously
insufficient to sustain the amendment against perceived
constitutional difficulties, and there is no reason to suppose that
a more general liability imposed for a similar reason would have
been thought less constitutionally objectionable. The second
justification was similarly put forward as a justification for the
Sherman amendment: "we do not look upon [the Sherman amendment] as
a punishment. . . . It is a mutual insurance."
Id. at 792
(Rep. Butler). Again, this justification was insufficient to
sustain the amendment.
We conclude, therefore, that a local government may not be sued
under § 1983 for an injury inflicted solely by its employees or
agents. Instead, it is when execution of a government's policy or
custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the
injury that the government, as an entity, is responsible under §
1983. Since this case unquestionably involves official policy as
the moving force of the constitutional violation found by the
District Court,
see supra at
Page 436 U. S. 695
436 U. S.
660-662, and n. 2, we must reverse the judgment below.
In so doing, we have no occasion to address, and do not address,
what the full contours of municipal liability under § 1983 may be.
We have attempted only to sketch so much of the § 1983 cause of
action against a local government as is apparent from the history
of the 1871 Act and our prior cases, and we expressly leave further
development of this action to another day.
III
Although we have stated that
stare decisis has more
force in statutory analysis than in constitutional adjudication
because, in the former situation, Congress can correct our mistakes
through legislation,
see, e.g., Edelman v. Jordan,
415 U. S. 651,
415 U. S. 671,
and n. 14 (1974), we have never applied
stare decisis
mechanically to prohibit overruling our earlier decisions
determining the meaning of statutes.
See, e.g., Continental
T.V., Inc. v. GTE Sylvania, Inc., 433 U. S.
36,
433 U. S. 47-49
(1977);
Burnet v. Coronado Oil & Gas Co., 285 U.
S. 393,
285 U. S. 406
n. 1 (1932) (Brandeis, J., dissenting) (collecting cases). Nor is
this a case where we should "place on the shoulders of Congress the
burden of the Court's own error."
Girouard v. United
States, 328 U. S. 61,
328 U. S. 70
(1946).
First,
Monroe v. Pape, insofar as it completely
immunizes municipalities from suit under § 1983, was a departure
from prior practice.
See, e.g., Northwestern Fertilizing Co. v.
Hyde Park, 18 F. Cas. 393 (No. 10,336) (CC ND Ill. 1873);
City of Manchester v. Leiby, 117 F.2d 661 (CA1 1941);
Hannan v. City of Haverhill, 120 F.2d 87 (CA1 1941);
Douglas v. City of Jeannette, 319 U.
S. 157 (1943);
Holmes v. Atlanta, 350 U.S. 879
(1955), in each of which municipalities were defendants in § 1983
suits. [
Footnote 59]
Moreover, the constitutional defect
Page 436 U. S. 696
that led to the rejection of the Sherman amendment would not
have distinguished between municipalities and school boards, each
of which is an instrumentality of state administration.
See
supra at
436 U. S.
673-682. For this reason, our cases -- decided both
before and after
Monroe, see n 5,
supra -- holding school boards liable in §
1983 actions are inconsistent with
Monroe, especially as
Monroe's immunizing principle was extended to suits for
injunctive relief in
City of Kenosha v. Bruno,
412 U. S. 507
(1973). [
Footnote 60] And
although, in many of these cases, jurisdiction was not questioned,
we ought not "disregard the implications of an exercise of judicial
authority assumed to be proper for [100] years."
Brown Shoe Co.
v. United States, 370 U. S. 294,
370 U. S. 307
(1962);
see Bank of the United States v. Deveaux, 5 Cranch
at
9 U. S. 88
(Marshall, C.J.) ("Those decisions are not cited as authority . . .
, but they have much weight, as they show that this point neither
occurred to the bar or the bench"). Thus, while we have reaffirmed
Monroe without further examination on three occasions,
[
Footnote 61] it can
scarcely be said that
Monroe is so consistent with the
warp and woof of civil rights law as to be beyond question.
Second, the principle of blanket immunity established in
Monroe cannot be cabined short of school boards. Yet such
an extension would itself be inconsistent with recent expressions
of congressional intent. In the wake of our decisions, Congress not
only has shown no hostility to federal court decisions against
school boards, but it has indeed rejected efforts to strip the
federal courts of jurisdiction over school boards. [
Footnote 62] Moreover, recognizing that
school boards are often
Page 436 U. S. 697
defendants in school desegregation suits, which have almost
without exception been § 1983 suits, Congress has twice passed
legislation authorizing grants to school boards to assist them in
complying with federal court decrees. [
Footnote 63] Finally, in
Page 436 U. S. 698
regard to the Civil Rights Attorney's Fees Awards Act of 1976,
90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.), which allows prevailing
parties (in the discretion of the court) in § 1983 suits
Page 436 U. S. 699
to obtain attorney's fees from the losing parties, the Senate
stated:
"[D]efendants in these cases are often State or local bodies or
State or local officials. In such cases, it is intended that the
attorneys' fees, like other items of costs, will be collected
either directly from the official,
in his official
capacity, from funds of his agency or under his control, or
from the State or local government (whether or not the agency
or government is a named party)."
S.Rep. No. 94-1011, p. 5 (1976) (emphasis added; footnotes
omitted). Far from showing that Congress has relied on
Monroe, therefore, events since 1961 show that Congress
has refused to extend the benefits of
Monroe to school
boards, and has attempted to allow awards of attorney's fees
against local governments even though
Monroe, City of
Kenosha v. Bruno, and
Aldinger v. Howard,
427 U. S. 1 (1976),
have made the joinder of such governments impossible. [
Footnote 64]
Third, municipalities can assert no reliance claim which can
Page 436 U. S. 700
support an absolute immunity. As Mr. Justice Frankfurter said in
Monroe,
"[t]his is not an area of commercial law in which, presumably,
individuals may have arranged their affairs in reliance on the
expected stability of decision."
365 U.S. at
365 U. S.
221-222 (dissenting in part). Indeed, municipalities
simply cannot "arrange their affairs" on an assumption that they
can violate constitutional rights indefinitely, since injunctive
suits against local officials under § 1983 would prohibit any such
arrangement. And it scarcely need be mentioned that nothing in
Monroe encourages municipalities to violate constitutional
rights or even suggests that such violations are anything other
than completely wrong.
Finally, even under the most stringent test for the propriety of
overruling a statutory decision proposed by Mr. Justice Harlan in
Monroe [
Footnote
65] -- "that it appear beyond doubt from the legislative
history of the 1871 statute that [
Monroe] misapprehended
the meaning of the [section]," 365 U.S. at
365 U. S. 192
(concurring opinion) -- the overruling of
Monroe insofar
as it holds that local governments are not "persons" who may be
defendants in § 1983 suits is clearly proper. It is simply beyond
doubt that, under the 1871 Congress' view of the law, were § 1983
liability unconstitutional as to local governments, it would have
been equally unconstitutional as to state officers. Yet everyone --
proponents and opponents alike -- knew § 1983 would be applied to
state officers, and nonetheless stated that § 1983 was
constitutional.
See supra at
436 U. S.
680-682. And, moreover, there can be no doubt that § 1
of the Civil Rights Act was intended to provide a remedy, to be
broadly construed, against all forms of official violation of
federally protected
Page 436 U. S. 701
rights. Therefore, absent a clear statement in the legislative
history supporting the conclusion that § 1 was not to apply to the
official acts of a municipal corporation -- which simply is not
present -- there is no justification for excluding municipalities
from the "persons" covered by § 1.
For the reasons stated above, therefore, we hold that
stare
decisis does not bar our overruling of
Monroe insofar
as it is inconsistent with Parts I and II of this opinion.
[
Footnote 66]
IV
Since the question whether local government bodies should be
afforded some form of official immunity was not presented as a
question to be decided on this petition and was not briefed by the
parties or addressed by the courts below, we express no views on
the scope of any municipal immunity beyond holding that municipal
bodies sued under § 1983 cannot be entitled to an absolute
immunity, lest our decision that such bodies are subject to suit
under § 1983 "be drained of meaning,"
Scheuer v. Rhodes,
416 U. S. 232,
416 U. S. 248
(1974).
Cf. Bivens v. Six Unknown Fed. Narcotics Agents,
403 U. S. 388,
403 U. S.
397-398 (1971).
Page 436 U. S. 702
V
For the reasons stated above, the judgment of the Court of
Appeals is
Reversed.
|
436
U.S. 658app|
APPENDIX TO OPINION OF THE COURT
As proposed, the Sherman amendment was as follows:
"That if any house, tenement, cabin, shop, building, barn, or
granary shall be unlawfully or feloniously demolished, pulled down,
burned, or destroyed, wholly or in part, by any persons riotously
and tumultuously assembled together; or if any person shall
unlawfully and with force and violence be whipped, scourged,
wounded, or killed by any persons riotously and tumultuously
assembled together; and if such offense was committed to deprive
any person of any right conferred upon him by the Constitution and
laws of the United States, or to deter him or punish him for
exercising such right, or by reason of his race, color, or previous
condition of servitude, in every such case the inhabitants of the
county, city, or parish in which any of the said offenses shall be
committed shall be liable to pay full compensation to the person or
persons damnified by such offense if living, or to his widow or
legal representative if dead; and such compensation may be
recovered by such person or his representative by a suit in any
court of the United States of competent jurisdiction in the
district in which the offense was committed, to be in the name of
the person injured, or his legal representative, and against said
county, city, or parish. And execution may be issued on a judgment
rendered in such suit and may be levied upon any property, real or
personal, of any person in said county, city, or parish, and the
said county, city, or parish may recover the full amount of such
judgment, costs and interest,
Page 436 U. S. 703
from any person or persons engaged as principal or accessory in
such riot in an action in any court of competent jurisdiction."
Globe 663.
The complete text of the first conference substitute for the
Sherman amendment is:
"That if any house, tenement, cabin, shop, building, barn, or
granary shall be unlawfully or feloniously demolished, pulled down,
burned, or destroyed, wholly or in part, by any persons riotously
and tumultuously assembled together; or if any person shall
unlawfully and with force and violence be whipped, scourged,
wounded, or killed by any persons riotously and tumultuously
assembled together, with intent to deprive any person of any right
conferred upon him by the Constitution and laws of the United
States, or to deter him or punish him for exercising such right, or
by reason of his race, color, or previous condition of servitude,
in every such case the county, city, or parish in which any of the
said offenses shall be committed shall be liable to pay full
compensation to the person or persons damnified by such offense, if
living, or to his widow or legal representative if dead; and such
compensation may be recovered in an action on the case by such
person or his representative in any court of the United States of
competent jurisdiction in the district in which the offense was
committed, such action to be in the name of the person injured, or
his legal representative, and against said county, city, or parish,
and in which action any of the parties committing such acts may be
joined as defendants. And any payment of any judgment, or part
thereof unsatisfied, recovered by the plaintiff in such action,
may, if not satisfied by the individual defendant therein within
two months next after the recovery of such judgment upon execution
duly issued against such individual defendant in such judgment, and
returned unsatisfied, in whole or in part, be enforced
Page 436 U. S. 704
against such county, city, or parish, by execution, attachment,
mandamus, garnishment, or any other proceeding in aid of execution
or applicable to the enforcement of judgments against municipal
corporations; and such judgment shall be a lien as well upon all
moneys in the treasury of such county, city, or parish, as upon the
other property thereof. And the court in any such action may on
motion cause additional parties to be made therein prior to issue
joined, to the end that justice may be done. And the said county,
city, or parish may recover the full amount of such judgment, by it
paid, with costs and interest, from any person or persons engaged
as principal or accessory in such riot, in an action in any court
of competent jurisdiction. And such county, city, or parish, so
paying, shall also be subrogated to all the plaintiff's rights
under such judgment."
Id. at 749, 755.
The relevant text of the second conference substitute for the
Sherman amendment is as follows:
"[A]ny person or persons having knowledge that any of the wrongs
conspired to be done and mentioned in the second section of this
act are about to be committed, and having power to prevent or aid
in preventing the same, shall neglect or refuse so to do, and such
wrongful act shall be committed, such person or persons shall be
liable to the person injured, or his legal representatives."
Id. at 804 (emphasis added).
[
Footnote 1]
The complaint was amended on September 14, 1972, to allege a
claim under Title VII of the Civil Rights Act of 1964, 78 Stat.
253, as amended, 42 U.S.C. § 2000e
et seq. (1970 ed. and
Supp. V). The District Court held that the 1972 amendments to Title
VII did not apply retroactively to discrimination suffered prior to
those amendments even when an action challenging such prior
discrimination was pending on the date of the amendments.
394 F.
Supp. 853,
856
(SDNY 1975). This holding was affirmed on appeal. 532 F.2d 259,
261-262 (CA2 1976). Although petitioners sought certiorari on the
Title VII issue as well as the § 1983 claim, we restricted our
grant of certiorari to the latter issue. 429 U.S. 1071.
[
Footnote 2]
The plaintiffs alleged that New York had a citywide policy of
forcing women to take maternity leave after the fifth month of
pregnancy unless a city physician and the head of an employee's
agency allowed up to an additional two months of work. Amended
Complaint � 28, App. 13-14. The defendants did not deny this, but
stated that this policy had been changed after suit was instituted.
Answer � 13, App. 32-33. The plaintiffs further alleged that the
Board had a policy of requiring women to take maternity leave after
the seventh month of pregnancy unless that month fell in the last
month of the school year, in which case the teacher could remain
through the end of the school term. Amended Complaint �� 39, 42,
45, App. 18-19, 21. This allegation was denied. Answer �� 18, 22,
App. 35, 37.
[
Footnote 3]
Amended Complaint � 24, App. 11-12.
[
Footnote 4]
Petitioners conceded that the Department of Social Services
enjoys the same status as New York City for
Monroe
purposes.
See 532 F.2d at 263.
[
Footnote 5]
Milliken v. Bradley, 433 U. S. 267
(1977);
Dayton Board of Education v. Brinkman,
433 U. S. 406
(1977);
Vorchheimer v. School District of Philadelphia,
430 U. S. 703
(1977);
East Carroll Parish School Board v. Marshall,
424 U. S. 636
(1976);
Milliken v. Bradley, 418 U.
S. 717 (1974);
Bradley v. Richmond School
Board, 416 U. S. 696
(1974);
Cleveland Board of Education v. LaFleur,
414 U. S. 632
(1974);
Keyes v. School District No. 1, Denver, Colo.,
413 U. S. 189
(1973);
San Antonio School District v. Rodriguez,
411 U. S. 1 (1973);
Swann v. Charlotte-Mecklenburg Board of Education,
402 U. S. 1 (1971);
Northcross v. Memphis Board of Education, 397 U.
S. 232 (1970);
Carter v. West Feliciana Parish
School Board, 396 U. S. 226
(1969);
Alexander v. Holmes County Board of Education,
396 U. S. 19
(1969);
Kramer v Union Free School District, 395 U.
S. 621 (1969);
Tinker v. Des Moines Independent
School District, 393 U. S. 503
(1969);
Monroe v. Board of Comm'rs, 391 U.
S. 450 (1968);
Raney v. Board of Education,
391 U. S. 443
(1968);
Green v. New Kent County School Board,
391 U. S. 430
(1968);
Abington School District v. Schempp, 374 U.
S. 203 (1963);
Goss v. Board of Education,
373 U. S. 683
(1963);
McNeese v. Board of Education, 373 U.
S. 668 (1963);
Orleans Parish School Board v.
Bush, 365 U. S. 569
(1961);
Brown v. Board of Education, 347 U.
S. 483 (1954).
[
Footnote 6]
Cleveland Board of Education v. LaFleur, supra at
414 U. S. 636;
App. in
Keyes v. School District No. 1, Denver, Colo.,
O.T. 1972, No. 71-507, p. 4a; App. in
Swann v.
Charlotte-Mecklenburg Board of Education, O.T. 1970, No. 281,
p. 465a; Pet. for Cert. in
Northcross v. Memphis Board of
Education, O.T. 1969, No. 1136, p. 3;
Tinker v. Des Moines
Independent School District, supra at
393 U. S. 504;
McNeese v. Board of Education, supra at
373 U. S.
671.
[
Footnote 7]
However, we do uphold
Monroe v. Pape insofar as it
holds that the doctrine of
respondeat superior is not a
basis for rendering municipalities liable under § 1983 for the
constitutional torts of their employees.
See Part
II, infra.
[
Footnote 8]
We expressly declined to consider "policy considerations" for or
against municipal liability.
See 365 U.S. at
365 U. S.
191.
[
Footnote 9]
Mr. Justice Douglas, the author of
Monroe, has
suggested that the municipal exclusion might more properly rest on
a theory that Congress sought to prevent the financial ruin that
civil rights liability might impose on municipalities.
See City
of Kenosha v. Bruno, 412 U. S. 507,
412 U. S.
517-520 (1973). However, this view has never been shared
by the Court,
see Monroe v. Pape, 365 U.S. at
365 U. S. 190;
Moor v. County of Alameda, 411 U.
S. 693,
411 U. S. 708
(1973), and the debates do not support this position.
[
Footnote 10]
Globe 522.
[
Footnote 11]
Briefly, § 2 created certain federal crimes in addition to those
defined in § 2 of the 1866 Civil Rights Act, 14 Stat. 27, each
aimed primarily at the Ku Klux Klan. Section 3 provided that the
President could send the militia into any State wracked with Klan
violence. Finally, § 4 provided for suspension of the writ of
habeas corpus in enumerated circumstances, again primarily those
thought to obtain where Klan violence was rampant.
See
Cong.Globe, 42d Cong., 1st Sess., App. 335-336 (1871) (hereinafter
Globe App.).
[
Footnote 12]
Globe 709.
[
Footnote 13]
See id. at 663, quoted in Appendix to this opinion,
infra at
436 U. S.
702-703.
[
Footnote 14]
Ibid. An action for recovery of damages was to be in
the federal courts and denominated as a suit against the county,
city, or parish in which the damage had occurred.
Ibid.
Execution of the judgment was not to run against the property of
the government unit, however, but against the private property of
any inhabitant.
Ibid.
[
Footnote 15]
See Globe 749 and 755, quoted in Appendix to this
opinion,
infra at
436 U. S. 703-704.
[
Footnote 16]
"Let the people of property in the southern States understand
that, if they will not make the hue and cry and take the necessary
steps to put down lawless violence in those States, their property
will be holden responsible, and the effect will be most
wholesome."
Globe 761. Senator Sherman was apparently unconcerned that the
conference committee substitute, unlike the original amendment, did
not place liability for riot damage directly on the property of the
well-to-do, but instead placed it on the local government.
Presumably he assumed that taxes would be levied against the
property of the inhabitants to make the locality whole.
[
Footnote 17]
According to Senator Sherman, the law had originally been
adopted in England immediately after the Norman Conquest, and had
most recently been promulgated as the law of 7 & 8 Geo. 4, ch.
31 (1827).
See Globe 760. During the course of the
debates, it appeared that Kentucky, Maryland, Massachusetts, and
New York had similar laws.
See id. at 751 (Rep.
Shellabarger);
id. at 762 (Sen. Stevenson);
id.
at 771 (Sen. Thurman);
id. at 792 (Rep. Butler). Such a
municipal liability was apparently common throughout New England.
See id. at 761 (Sen. Sherman).
[
Footnote 18]
In the Senate, opponents, including a number of Senators who had
voted for § 1 of the bill, criticized the Sherman amendment as an
imperfect and impolitic rendering of the state statutes. Moreover,
as drafted, the conference substitute could be construed to protect
rights that were not protected by the Constitution. A complete
critique was given by Senator Thurman.
See Globe
770-772.
[
Footnote 19]
See 365 U.S. at
365 U. S. 190,
quoted
supra at
436 U. S.
664.
[
Footnote 20]
See Globe 804, quoted in Appendix to this opinion,
infra at
436 U. S.
704.
[
Footnote 21]
See Globe 758 (Sen. Trumbull);
id. at 772
(Sen. Thurman);
id. at 791 (Rep. Willard). The Supreme
Court of Indiana had so held in giving effect to the Civil Rights
Act of 1866.
See Smith v. Moody, 26 Ind. 299 (1866)
(following
Coryell), one of three State Supreme Court
cases referred to in Globe App. 68 (Rep. Shellabarger). Moreover, §
2 of the 1871 Act as passed, unlike § 1, prosecuted persons who
violated federal rights, whether or not that violation was under
color of official authority, apparently on the theory that Ku Klux
Klan violence was infringing the right of protection defined by
Coryell. Nonetheless, opponents argued that municipalities
were not generally charged by the States with keeping the peace,
and hence did not have police forces, so that the duty to afford
protection ought not devolve on the municipality, but on whatever
agency of state government was charged by the State with keeping
the peace.
See infra at
436 U. S. 673,
and n. 30. In addition, they argued that Congress could not
constitutionally add to the duties of municipalities.
See
infra at
436 U. S.
673-678.
[
Footnote 22]
U.S.Const., Art. IV, § 2, cl. 2:
"A Person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State,
shall on Demand of the executive Authority of the State from which
he fled, be delivered up, to be removed to the State having
Jurisdiction of the Crime."
[
Footnote 23]
Id. cl. 3:
"No Person held to Service or Labour in one State, under the
Laws thereof, escaping into another, shall, in Consequence of any
Law or Regulation therein, be discharged from such Service or
Labour, but shall be delivered up on Claim of the Party to whom
such Service or Labour may be due."
[
Footnote 24]
Id. cl. 1
[
Footnote 25]
See Globe 751.
See also id. at 760 (Sen.
Sherman) ("If a State may . . . pass a law making a county . . .
responsible for a riot in order to deter such crime, then we may
pass the same remedies. . . .").
[
Footnote 26]
Id. at 751;
see n 17,
supra.
[
Footnote 27]
Globe 751 (emphasis added). Compare this statement with
Representative Poland's remark upon which our holding in
Monroe was based.
See supra at
436 U. S.
664.
[
Footnote 28]
See, e.g., 68 U. S.
Dubuque, 1 Wall. 175 (1864);
Von
Hoffman v. City of Quincy, 4 Wall. 535 (1867);
Riggs v. Johnson
County, 6 Wall. 166 (1868);
Weber v.
Lee County, 6 Wall. 210 (1868);
Supervisors v.
Rogers, 7 Wall. 175 (1869);
Benbow v.
Iowa City, 7 Wall. 313 (1869);
Supervisors v.
Durant, 9 Wall. 415 (1870).
See generally
6 C. Fairman, History of the Supreme Court of the United States:
Reconstruction and Reunion, 1864-1888, ohs. 17-18 (1971).
[
Footnote 29]
See Globe 751-752.
[
Footnote 30]
Others taking a view similar to Representative Blair's included
Representative Willard,
see id. at 791; Representative
Poland,
see id. at 794; Representative Burchard,
see
id. at 795; Representative Farnsworth,
see id. at
799. Representative Willard also took a somewhat different
position; he thought that the Constitution would not allow the
Federal Government to dictate the manner in which a State fulfilled
its obligation of protection. That is, he thought it a matter of
state discretion whether it delegated the peacekeeping power to a
municipal or county corporation, to a sheriff, etc. He did not
doubt, however, that the Federal Government could impose on the
States the obligation imposed by the Sherman amendment, and
presumably he would have enforced the amendment against a municipal
corporation to which the peacekeeping obligation had been
delegated.
See id. at 791.
Opponents of the Sherman amendment in the Senate agreed with
Blair that Congress had no power to pass the Sherman amendment
because it fell outside limits on national power implicit in the
federal structure of the Constitution and recognized in,
e.g.,
78 U. S. Day,
11 Wall. 113 (1871). However, the Senate opponent focused not on
the amendment's attempt to obligate municipalities to keep the
peace, but on the lien created by the amendment, which ran against
all money and property of a defendant municipality, including
property held for public purposes, such as jails or courthouses.
Opponents argued that such a lien, once entered, would have the
effect of making it impossible for the municipality to function,
since no one would trade with it.
See, e.g., Globe 762
(Sen. Stevenson);
id. at 763 (Sen. Casserly). Moreover,
everyone knew that sound policy prevented execution against public
property, since this, too, was needed if local government was to
survive.
See, e.g., ibid. See also Meriwether v.
Garrett, 102 U. S. 472,
102 U. S. 501,
102 U. S. 513
(1880) (recognizing principle that public property of a
municipality was not subject to execution); 2 J. Dillon, The Law of
Municipal Corporations §§ 445-446 (1873 ed.) (same).
Although the arguments of the Senate opponents appear to be a
correct analysis of then-controlling constitutional and common law
principles, their arguments are not relevant to an analysis of the
constitutionality of § 1 of the Civil Rights Act, since any
judgment under that section, as in any civil suit in the federal
courts in 1871, would have been enforced pursuant to state laws
under the Process Acts of 1792 and 1828.
See Act of May 8,
1792, ch. 36, 1 Stat. 275 ; Act of May 19, 1828, 4 Stat. 278.
[
Footnote 31]
See n 30,
supra.
[
Footnote 32]
In addition to the cass discussed in the text,
See Lane County
v. Oregon, 7 Wall. 71,
74 U. S. 77,
74 U. S. 81
(1869), in which the Court held that the federal Legal Tender Acts
should not be construed to require the States to accept taxes
tendered in United States notes, since this might interfere with a
legitimate state activity.
[
Footnote 33]
Mr. Chief Justice Taney agreed:
"The state officers mentioned in the law [of 1793] are not bound
to execute the duties imposed upon them by Congress, unless they
choose to do so, or are required to do so by a law of the state;
and the state legislature has the power, if it thinks proper, to
prohibit them. The act of 1793, therefore, must depend altogether
for its execution upon the officers of the United States named in
it."
16 Pet. at
41 U. S. 630
(concurring in part).
[
Footnote 34]
See supra at
436 U. S. 670,
and n. 21.
[
Footnote 35]
"Be it enacted . . . That whenever the executive authority of
any state in the Union . . . shall demand any person as a fugitive
from justice . . . and shall moreover produce the copy of an
indictment found . . . charging the person so demanded, with having
committed treason, felony or other crime, certified as authentic by
the governor or chief magistrate of the state . . . from whence the
person so charged fled, it shall be the duty of the executive
authority of the state or territory to which such person shall have
fled, to cause him or her to be arrested and secured . . . and to
cause the fugitive to be delivered to such agent [of the demanding
State] when he shall appear. . . ."
1 Stat. 302.
[
Footnote 36]
"The Supreme Court of the United States has decided repeatedly
that Congress can impose no duty on a State officer." Globe 799
(Rep. Farnsworth).
See also id. at 788-789 (Rep.
Kerr).
[
Footnote 37]
See, e.g., id. at 764 (Sen. Davis);
ibid.
(Sen. Casserly);
id. at 772 (Sen. Thurman) (reciting logic
of Day);
id. at 777 (Sen. Frelinghuysen);
id. at
788-789 (Rep. Kerr) (reciting logic of Day);
id. at 793
(Rep. Poland);
id. at 799 (Rep. Farnsworth) (also reciting
logic of
Day).
[
Footnote 38]
Warren v. Paul, 22 Ind. 276 (1864);
Jones v. Estate
of Keep, 19 Wis. 369 (1865);
Fifield v. Close, 15
Mich. 505 (1867);
Union Bank v. Hill, 43 Tenn. 325 (1866);
Smith v. Short, 40 Ala. 385 (1867).
[
Footnote 39]
See Globe 764 (Sen. Davis);
ibid. (Sen.
Casserly).
See also T. Cooley, Constitutional Limitations
*483-*484 (1871 ed.).
[
Footnote 40]
See cases cited in
n 28,
supra. Since this Court granted
unquestionably "positive" relief in Contract Clause cases, it
appears that the distinction between the Sherman amendment and
those cases was not that the former created a positive obligation
whereas the latter imposed only a negative restraint. Instead, the
distinction must have been that a violation of the Constitution was
the predicate for "positive" relief in the Contract Clause cases,
whereas the Sherman amendment imposed damages without regard to
whether a local government was in any way at fault for the breach
of the peace for which it was to be held for damages.
See
supra at
436 U. S. 668.
While no one stated this distinction expressly during the debates,
the inference is strong that Congressmen in 1871 would have drawn
this distinction, since it explains why Representatives Poland,
Burchard, and Willard,
see supra at
436 U. S. 680,
could oppose the amendment while at the same time saying that the
Federal Government might impose damages on a local government that
had defaulted in a state-imposed duty to keep the peace, and it
also explains why everyone agreed that a state or municipal officer
could constitutionally be held liable under § 1 for violations of
the Constitution.
See infra at
436 U. S.
682-683.
[
Footnote 41]
See, e.g., Globe 334 (Rep. Hoar);
id. at 365
(Rep. Arthur);
id. at 367-368 (Rep. Sheldon);
id.
at 385 (Rep. Lewis); Globe App. 217 (Sen. Thurman). In addition,
officers were included among those who could be sued under the
second conference substitute for the Sherman amendment.
See Globe 805 (exchange between Rep. Willard and Rep.
Shellabarger). There were no constitutional objections to the
second report.
[
Footnote 42]
See id. at 795 (Rep. Blair);
id. at 788 (Rep.
Kerr);
id. at 795 (Rep. Burchard);
id. at 799
(Rep. Farnsworth).
[
Footnote 43]
"[W]e cannot command a State officer to do any duty whatever, as
such; and I ask . . . the difference between that and commanding a
municipality. . . ."
Id. at 795.
[
Footnote 44]
See Globe App. 216-217, quoted in
n 45,
infra. In 1880, moreover, when
the question of the limits of the Prigg principle was squarely
presented in
Ex parte Virginia, 100 U.
S. 339, this Court held that
Dennison and
Day and the principle of federalism for which they stand
did not prohibit federal enforcement of § 5 of the Fourteenth
Amendment through suits directed to state officers.
See
100 U.S. at
100 U. S.
345-348.
[
Footnote 45]
Representative Bingham, the author of § 1 of the Fourteenth
Amendment, for example, declared the bill's purpose to be
"the enforcement . . . of the Constitution on behalf of every
individual citizen of the Republic . . . to the extent of the
rights guarantied to him by the Constitution."
Globe App. 81. He continued:
"The States never had the right, though they had the power, to
inflict wrongs upon free citizens by a denial of the full
protection of the laws. . . . [And] the States did deny to citizens
the equal protection of the laws, they did deny the rights of
citizens under the Constitution, and except to the extent of the
express limitations upon the States, as I have shown, the citizen
had no remedy. . . . They took property without compensation, and
he had no remedy. They restricted the freedom of the press, and he
had no remedy. They restricted the freedom of speech, and he had no
remedy. They restricted the rights of conscience, and he had no
remedy. . . . Who dare say, now that the Constitution has been
amended, that the nation cannot, by law, provide against all such
abuses and denials of right as these in the States and by States,
or combinations of persons?"
Id. at 85. Representative Perry, commenting on
Congress' action in passing the civil rights bill also stated:
"Now, by our action on this bill, we have asserted as fully as
we can assert the mischief intended to be remedied. We have
asserted as clearly as we can assert our belief that it is the duty
of Congress to redress that mischief. We have also asserted as
fully as we can assert the constitutional right of Congress to
legislate."
Globe 800.
See also id. at 376 (Rep. Lowe);
id. at
428-429 (Rep. Beatty);
id. at 448 (Rep. Butler);
id. at 475-477 (Rep. Dawes);
id. at 578-579 (Sen.
Trumbull);
id. at 609 (Sen. Pool); Globe App. 182 (Rep.
Mercur).
"Other supporters were quite clear that § 1 of the Act extended
a remedy not only where a State had passed an unconstitutional
statute, but also where officers of the State were deliberately
indifferent to the rights of black citizens:"
"But the chief complaint is . . . [that], by a systematic
maladministration of [state law], or a neglect or refusal to
enforce their provisions, a portion of the people are denied equal
protection under them. Whenever such a state of facts is clearly
made out, I believe [§ 5 of the Fourteenth Amendment] empowers
Congress to step in and provide for doing justice to those persons
who are thus denied equal protection."
Id. at 153 (Rep. Garfield).
See also Monroe v.
Pape, 365 U.S. at
365 U. S.
171-187. Importantly for our inquiry, even the opponents
of § 1 agreed that it was constitutional and, further, that it
swept very broadly. Thus, Senator Thurman, who gave the most
exhaustive critique of § 1, said:
"This section relates wholly to civil suits. . . . Its whole
effect is to give to the Federal Judiciary that which now does not
belong to it --
a jurisdiction that may be constitutionally
conferred upon it, I grant, but that has never yet been
conferred upon it. It authorizes any person who is deprived of any
right, privilege, or immunity secured to him by the Constitution of
the United States to bring an action against the wrongdoer in the
Federal courts, and that without any limit whatsoever as to the
amount in controversy. . . ."
"
* * * *"
"
[T]here is no limitation whatsoever upon the terms that are
employed [in the bill], and they are as comprehensive as can be
used."
Globe App. 216-217 (emphasis added).
[
Footnote 46]
See 2 J. Story, Commentaries on the Constitution of the
United States § 1956 (T. Cooley ed. 1873).
[
Footnote 47]
Indeed, the federal courts found no obstacle to awards of
damages against municipalities for common law takings.
See
Sumner v. Philadelphia, 23 F. Cas. 392 (No. 13,611) (CC ED Pa.
1873) (awarding damages of $2,273.36 and costs of $346.35 against
the city of Philadelphia).
[
Footnote 48]
Nonetheless, suits could be brought in federal court if the
natural persons who were members of the corporation were of diverse
citizenship from the other parties to the litigation.
See
5 Cranch at
9 U. S. 91.
[
Footnote 49]
See n 28,
supra.
[
Footnote 50]
See, e.g., Globe 777 (Sen. Sherman);
id. at
752 (Rep. Shellabarger) ("[C]ounties, cities, and corporations of
all sorts, after years of judicial conflict, have become thoroughly
established to be an individual or person or entity of the personal
existence, of which, as a citizen, individual, or inhabitant, the
United States Constitution does take note and endow with faculty to
sue and be sued in the courts of the United States").
[
Footnote 51]
See Northwestern Fertilizing Co. v. Hyde Park, 18 F.
Cas. 393, 394 (No. 10,336) (CC ND Ill. 1873); 2 J. Kent,
Commentaries on American Law *278-*279 (12th O. W. Holmes ed.
1873).
See also United States v. Maurice, 2 Brock. 96, 109
(CC Va. 1823) (Marshall, C.J.) ("The United States is a government,
and, consequently, a body politic and corporate"); Apps. D and E to
Brief for Petitioners in
Monroe v. Pape, O.T. 1960, No. 39
(collecting state statutes which, in 1871, defined municipal
corporations as bodies politic and corporate).
[
Footnote 52]
The court also noted that there was no discernible reason why
persons injured by municipal corporations should not be able to
recover.
See 18 F. Cas. at 394.
[
Footnote 53]
In considering the effect of the Act of Feb. 25, 1871, in
Monroe, however, Mr. Justice Douglas, apparently focusing
on the word "may," stated: "[T]his definition [of person] is merely
an allowable, not a mandatory, one." 365 U.S. at
365 U. S. 191.
A review of the legislative history of the Dictionary Act shows
this conclusion to be incorrect.
There is no express reference in the legislative history to the
definition of "person," but Senator Trumbull, the Act's sponsor,
discussed the phrase "words importing the masculine gender
may be applied to females," (emphasis added), which
immediately precedes the definition of "person," and stated:
"The only object [of the Act] is to get rid of a great deal of
verbosity in our statutes by providing that, when the word 'he' is
used it
shall include females as well as males."
Cong.Globe, 41st Cong., 3d Sess., 775 (1871) (emphasis added).
Thus, in Trumbull's view, the word "may" meant "shall." Such a
mandatory use of the extended meanings of the words defined by the
Act is also required for it to perform its intended function -- to
be a guide to "rules of construction" of Acts of Congress.
See
ibid. (remarks of Sen. Trumbull). Were the defined words
"allowable, [but] not mandatory" constructions, as
Monroe
suggests, there would be no "rules" at all. Instead, Congress must
have intended the definitions of the Act to apply across the board,
except where the Act, by its terms, called for a deviation from
this practice -- "[where] the context shows that [defined] words
were to be used in a more limited sense." Certainly this is how the
Northwestern Fertilizing court viewed the matter. Since
there is nothing in the "context" of § 1 of the Civil Rights Act
calling for a restricted interpretation of the word "person," the
language of that section should
prima facie be construed
to include "bodies politic" among the entities that could be
sued.
[
Footnote 54]
There is certainly no constitutional impediment to municipal
liability.
"The Tenth Amendment's reservation of nondelegated powers to the
States is not implicated by a federal court judgment enforcing the
express prohibitions of unlawful state conduct,enacted by the
Fourteenth Amendment."
Milliken v. Bradley, 433 U. S. 267,
433 U. S. 291
(1977);
see Ex parte Virginia, 100 U.S. at
100 U. S.
347-348. For this reason,
National League of Cities
v. Usery, 426 U. S. 833
(1976), is irrelevant to our consideration of this case. Nor is
there any basis for concluding that the Eleventh Amendment is a bar
to municipal liability.
See, e.g., Fitzpatrick v. Bitzer,
427 U. S. 445,
427 U. S. 456
(1976);
Lincoln County v. Luning, 133 U.
S. 529,
133 U. S. 530
(1890). Our holding today is, of course, limited to local
government units which are not considered part of the State for
Eleventh Amendment purposes.
[
Footnote 55]
Since official capacity suits generally represent only another
way of pleading an action against an entity of which an officer is
an agent -- at least where Eleventh Amendment considerations do not
control analysis -- our holding today that local governments can be
sued under § 1983 necessarily decides that local government
officials sued in their official capacities are "persons" under §
1983 in those cases in which, as here, a local government would be
suable in its own name.
[
Footnote 56]
See also Mr. Justice Frankfurter's statement for the
Court in
Nashville, C. & St. L. R. Co. v. Browning,
310 U. S. 362,
310 U. S. 369
(1940):
"It would be a narrow conception of jurisprudence to confine the
notion of 'laws' to what is found written on the statute books, and
to disregard the gloss which life has written upon it. Settled
state practice . . . can establish what is state law. The Equal
Protection Clause did not write an empty formalism into the
Constitution. Deeply embedded traditional ways of carrying out
state policy, such as those of which petitioner complains, are
often tougher and truer law than the dead words of the written
text."
[
Footnote 57]
Support for such a conclusion can be found in the legislative
history. As we have indicated, there is virtually no discussion of
§ 1 of the Civil Rights Act. Again, however Congress' treatment of
the Sherman amendment gives a clue to whether it would have desired
to impose
respondeat superior liability.
The primary constitutional justification for the Sherman
amendment was that it was a necessary and proper remedy for the
failure of localities to protect citizens as the Privileges or
Immunities Clause of the Fourteenth Amendment required.
See
supra at
436 U. S.
670-673. And according to Sherman, Shellabarger, and
Edmunds, the amendment came into play only when a locality was at
fault or had knowingly neglected its duty to provide protection.
See Globe 761 (Sen. Sherman);
id. at 756 (Sen.
Edmunds);
id. at 751-752 (Rep. Shellabarger). But other
proponents of the amendment apparently viewed it as a form of
vicarious liability for the unlawful acts of the citizens of the
locality.
See id. at 792 (Rep. Butler). And whether
intended or not, the amendment as drafted did impose a species of
vicarious liability on municipalities, since it could be construed
to impose liability even if a municipality did not know of an
impending or ensuing riot or did not have the wherewithal to do
anything about it. Indeed, the amendment held a municipality liable
even if it had done everything in its power to curb the riot.
See supra at
436 U. S. 668;
Globe 761 (Sen. Stevenson);
id. at 771 (Sen. Thurman);
id. at 788 (Rep. Kerr);
id. at 791 (Rep.
Willard). While the first conference substitute was rejected
principally on constitutional grounds,
see id. at 804
(Rep. Poland), it is plain from the text of the second conference
substitute -- which limited liability to those who, having the
power to intervene against Ku Klux Klan violence, "neglect[ed] or
refuse[d] so to do,"
see Appendix to this opinion,
infra at
436 U. S. 704,
and which was enacted as § 6 of the 1871 Act and is now codified as
42 U.S.C. § 1986 -- that Congress also rejected those elements of
vicarious liability contained in the first conference substitute
even while accepting the basic principle that the inhabitants of a
community were bound to provide protection against the Ku Klux
Klan. Strictly speaking, of course, the fact that Congress refused
to impose vicarious liability for the wrongs of a few private
citizens does not conclusively establish that it would similarly
have refused to impose vicarious liability for the torts of a
municipality's employees. Nonetheless, when Congress' rejection of
the only form of vicarious liability presented to it is combined
with the absence of any language in § 1983 which can easily be
construed t.o create
respondeat superior liability, the
inference that Congress did not intend to impose such liability is
quite strong.
[
Footnote 58]
A third justification, often cited but which, on examination, is
apparently insufficient to justify the doctrine of
respondeat
superior, see, e.g., 2 F. Harper & F. James, § 26.3, is
that liability follows the right to control the actions of a
tortfeasor. By our decision in
Rizzo v. Goode,
423 U. S. 362
(1976), we would appear to have decided that the mere right to
control, without any control or direction having been exercised and
without any failure to supervise, is not enough to support § 1983
liability.
See 423 U.S. at
423 U. S.
370-371.
[
Footnote 59]
Each case cited by
Monroe, see 365 U.S. at
365 U. S. 191
n. 50, as consistent with the position that local governments were
not § 1983 "persons" reached its conclusion by assuming that state
law immunities overrode the § 1983 cause of action. This has never
been the law.
[
Footnote 60]
Although many suits against school boards also include private
individuals as parties, the "principal defendant is usually the
local board of education or school board."
Milliken v.
Bradley, 433 U.S. at
433 U. S.
292-293 (POWELL, J., concurring in judgment).
[
Footnote 61]
Moor v. County of Alameda, 411 U.
S. 693 (1973);
City of Kenosha v. Bruno,
412 U. S. 507
(1973);
Aldinger v. Howard, 427 U. S.
1 (1976).
[
Footnote 62]
During the heyday of the furor over busing, both the House and
the Senate refused to adopt bills that would have removed from the
federal courts jurisdiction
"to make any decision, enter any judgment, or issue any order
requiring any
school board to make any change in the
racial composition of the student body at any public school or in
any class at any public school to which students are assigned in
conformity with a freedom of choice system, or requiring any
school board to transport any students from one public
school to another public school or from one place to another place
or from one school district to another school district in order to
effect a change in the racial composition of the student body at
any school or place or in any school district, or denying to any
student the right or privilege of attending any public school or
class at any public school chosen by the parent of such student in
conformity with a freedom of choice system, or requiring any
school board to close any school and transfer the students
from the closed school to any other school for the purpose of
altering the racial composition of the student body at any public
school, or precluding any
school board from carrying into
effect any provision of any contract between it and any member of
the faculty of any public school it operates specifying the public
school where the member of the faculty is to perform his or her
duties under the contract."
S. 1737, 93d Cong., 1st Sess., § 1207 (1973) (emphasis added).
Other bills designed either completely to remove the federal courts
from the school desegregation controversy, S. 287, 93d Cong., 1st
Sess. (1973), or to limit the ability of federal courts to subject
school boards to remedial orders in desegregation cases, S. 619,
93d Cong., 1st Sess. (1973); S. 179, 93d Cong., 1st Sess., § 2(a)
(1973); H.R. 13534, 92d Cong., 2d Sess., § 1 (1972), have similarly
failed.
[
Footnote 63]
In 1972, spurred by a finding
"that the process of eliminating or preventing minority group
isolation and improving the quality of education for all children
often involves the expenditure of additional funds to which local
educational agencies do not have access,"
86 Stat. 354, 20 U.S.C. § 1601(a) (1976 ed.), Congress passed
the Emergency School Aid Act. Section 706(a)(1)(A)(i) of that Act,
20 U.S.C. § 1605(a)(1)(A)(i) (1976 ed.), authorizes the Assistant
Secretary
"to make a grant to, or a contract with,
a local educational
agency [w]hich is implementing a plan . . . which has been
undertaken pursuant to a final order issued by a court of the
United States . . . which requires the desegregation of
minority group segregated children or faculty in the elementary and
secondary schools of such agency, or otherwise requires the
elimination or reduction of minority group isolation in such
schools."
(Emphasis added.)
A "local educational agency" is defined by 20 U.S.C. § 1619(8)
(1976 ed.) as
"a public board of education or other public authority legally
constituted within a State for either administrative control or
direction of, public elementary or secondary schools in a city,
county, township, school district, or other political subdivision
of a State, or a federally recognized Indian reservation, or such
combination of school districts, or counties as are recognized in a
State as an administrative agency for its public elementary or
secondary schools, or a combination of local educational agencies.
. . ."
Congress thus clearly recognized that school boards were often
parties to federal school desegregation suits. In § 718 of the Act,
86 Stat. 369, 20 U.S.C. § 1617 (1976 ed.), Congress gave its
explicit approval to the institution of federal desegregation suits
against school boards -- presumably under § 1983. Section 718
provides:
"Upon the entry of a final order
by a court of the United
States against a local educational agency . . . for
discrimination on the basis of race, color, or national origin in
violation of . . . the fourteenth amendment to the Constitution of
the United States . . . , the court . . . may allow the prevailing
party, other than the United States, a reasonable attorney's fee as
part of the costs."
(Emphasis added.)
Two years later, in the Equal Educational Opportunities Act of
1974, Congress found that
"the implementation of desegregation plans that require
extensive student transportation has, in many cases, required
local educational agencies to expend large amounts of
funds, thereby depleting their financial resources. . . ."
20 U.S.C. § 1702(a)(3) (1976 ed.). (Emphasis added.) Congress
did not respond by declaring that school boards were not subject to
suit under § 1983 or any other federal statute, "but simply
[legislated] revised evidentiary standards and remedial priorities
to be employed by the courts in deciding such cases." Brief for
National Education Assn.
et al. as
Amici Curiae
15-16. Indeed, Congress expressly reiterated that a cause of
action, cognizable in the federal courts, exists for discrimination
in the public school context. 20 U.S.C. §§ 1703, 1706, 1708, 1710,
1718 (1976 ed.). The Act assumes that school boards will usually be
the defendants in such suits. For example, § 211 of the Act, 88
Stat. 516, as set forth in 20 U.S.C. § 1710 (1976 ed.),
provides:
"The Attorney General shall not institute a civil action under
section 1706 of this title [which allows for suit by both private
parties and the Attorney General to redress discrimination in
public education] before he -- "
"(a) gives to the appropriate educational agency notice of the
condition or conditions which, in his judgment, constitute a
violation of part 2 [the prohibitions against discrimination in
public education]."
Section 219 of the Act, 20 U.S.C. § 1718 (1976 ed.), provides
for the termination of court-ordered busing
"if the court finds the defendant educational agency has
satisfied the requirements of the fifth or fourteenth amendments to
the Constitution, whichever is applicable, and will continue to be
in compliance with the requirements thereof."
[
Footnote 64]
Whether Congress' attempt is, in fact, effective is the subject
of
Hutto v. Finney, O.T. 1977, No. 76-1660,
cert.
granted, 434 U.S. 901, and therefore we express no view on it
here.
[
Footnote 65]
We note, however, that Mr. Justice Harlan's test has not been
expressly adopted by this Court. Moreover, that test is based on
two factors:
stare decisis and "indications of
congressional acceptance of this Court's earlier interpretation [of
the statute in question]." 365 U.S. at
365 U. S. 192.
As we have explained, the second consideration is not present in
this case.
[
Footnote 66]
No useful purpose would be served by an attempt. at this late
date to determine whether
Monroe was correct on its facts.
Similarly, since this case clearly involves official policy, and
does not involve
respondeat superior, we do not assay a
view on how our cases which have relied on that aspect of
Monroe that is overruled today --
Moor v. County of
Alameda, 411 U. S. 693
(1973);
City of Kenosha v. Bruno, 412 U.
S. 507 (1973); and
Aldinger v. Howard,
427 U. S. 1 (1976)
-- should have been decided on a correct view of § 1983. Nothing we
say today affects the conclusion reached in
Moor, see 411
U.S. at
411 U. S.
703-704, that 42 U.S.C. § 1988 cannot be used to create
a federal cause of action where § 1983 does not otherwise provide
one, or the conclusion reached in
City of Kenosha, see 412
U.S. at
412 U. S. 513,
that
"nothing . . . suggest[s] that the generic word 'person' in §
1983 was intended to have a bifurcated application to municipal
corporations depending on the nature of the relief sought against
them."
MR. JUSTICE POWELL, concurring.
I join the opinion of the Court, and express these additional
views.
Few cases in the history of the Court have been cited more
frequently than
Monroe v. Pape, 365 U.
S. 167 (1961), decided less than two decades ago.
Focusing new light on 42 U.S.C. § 1983, that decision widened
access to the federal courts and permitted expansive
interpretations of the reach of
Page 436 U. S. 705
the 1871 measure. But
Monroe exempted local governments
from liability at the same time it opened wide the courthouse door
to suits against officers and employees of those entities -- even
when they act pursuant to express authorization. The oddness of
this result, and the weakness of the historical evidence relied on
by the
Monroe Court in support of it, are well
demonstrated by the Court's opinion today. Yet the gravity of
overruling a part of so important a decision prompts me to
write.
I
In addressing a complaint alleging unconstitutional police
conduct that probably was unauthorized and actionable under state
law, [
Footnote 2/1] the
Monroe Court treated the 42d Congress' rejection of the
Sherman amendment as conclusive evidence of an intention to
immunize local governments from all liability under the statute for
constitutional injury. That reading, in light of today's thorough
canvass of the legislative history, clearly "misapprehended the
meaning of the controlling provision,"
Monroe, supra at
365 U. S. 192
(Harlan, J., concurring). In this case, involving formal, written
policies of the Department of Social Services and the Board of
Education of the city of New York that are alleged to conflict
Page 436 U. S. 706
with the command of the Due Process Clause,
cf. Cleveland
Board of Education v. LaFleur, 414 U.
S. 632 (1974), the Court decides "not to reject [wisdom]
merely because it comes late,"
Henslee v. Union Planters
Bank, 335 U. S. 595,
335 U. S. 600
(1949) (Frankfurter, J., dissenting).
As the Court demonstrates, the Sherman amendment presented an
extreme example of "riot act" legislation that sought to impose
vicarious liability on government subdivisions for the consequences
of private lawlessness. As such, it implicated concerns that are of
marginal pertinence to the operative principle of § 1 of the 1871
legislation -- now § 1983 -- that "any person" acting "under color
of" state law may be held liable for affirmative conduct that
"subjects, or causes to be subjected, any person . . . to the
deprivation of any" federal constitutional or statutory right. Of
the many reasons for the defeat of the Sherman proposal, none
supports
Monroe's observation that the 42d Congress was
fundamentally "antagonistic," 365 U.S. at
365 U. S. 191,
to the proposition that government entities and natural persons
alike should be held accountable for the consequences of conduct
directly working a constitutional violation. Opponents in the
Senate appear to have been troubled primarily by the proposal's
unprecedented lien provision, which would have exposed even
property held for public purposes to the demands of § 1983 judgment
lienors.
Ante at
436 U. S.
673-674, n. 30. The opposition in the House of
Representatives focused largely on the Sherman amendment's attempt
to impose a peacekeeping obligation on municipalities when the
Constitution itself imposed no such affirmative duty and when many
municipalities were not even empowered under state law to maintain
police forces.
Ante at
436 U. S.
673-675,
436 U. S.
679-682. [
Footnote
2/2]
Page 436 U. S. 707
The Court correctly rejects a view of the legislative history
that would produce the anomalous result of immunizing local
government units from monetary liability for action directly
causing a constitutional deprivation, even though such actions may
be fully consistent with, and thus not remediable under, state law.
No conduct of government comes more clearly within the "under color
of" state law language of § 1983. It is most unlikely that Congress
intended public officials acting under the command or the specific
authorization of the government employer to be exclusively liable
for resulting constitutional injury. [
Footnote 2/3]
As elaborated in
436 U. S. the
rejection of the Sherman amendment can best be understood not as
evidence of Congress' acceptance of a rule of absolute municipal
immunity, but as a limitation of the statutory ambit to actual
wrongdoers,
i.e., a rejection of
respondeat
superior or any other principle of vicarious liability.
Cf. Levin, The Section 1983 Municipal Immunity Doctrine,
65 Geo.L.J. 1483, 1531-1535 (1977). Thus, it has been clear that a
public official may be held liable in damages when his actions are
found to violate a constitutional right and there is no qualified
immunity,
see Wood v. Strickland, 420 U.
S. 308 (1975);
Procunier v. Navarette,
434 U. S. 555
(1978). Today the Court recognizes
Page 436 U. S. 708
that this principle also applies to a local government when
implementation of its official policies or established customs
inflicts the constitutional injury.
II
This Court traditionally has been hesitant to overrule prior
constructions of statutes or interpretations of common law rules.
"
Stare decisis is usually the wise policy,"
Burnet v.
Coronado Oil & Gas Co., 285 U. S. 393,
285 U. S. 406
(1932) (Brandeis, J., dissenting), but this cautionary principle
must give way to countervailing considerations in appropriate
circumstances. [
Footnote 2/4] I
concur in the Court's view that this is not a case where we should
"place on the shoulders of Congress the burden of the Court's own
error."
Girouard v. United States, 328 U. S.
61,
328 U. S. 70
(1946).
Nor is this the usual case in which the Court is asked to
overrule a precedent. Here, considerations of
stare
decisis cut in both directions. On the one hand, we have a
series of rulings that municipalities and counties are not
"persons" for purposes of § 1983. On the other hand, many decisions
of this Court have been premised on the amenability of school
boards and similar entities to § 1983 suits.
In
Monroe and its progeny, we have answered a question
that was never actually briefed or argued in this Court -- whether
a municipality is liable in damages for injuries that are the
direct result of its official policies.
"The theory of the complaint [in
Monroe was] that,
under the circumstances [t]here alleged, the City [was] liable for
the acts of its police officers by virtue of
respondeat
superior."
Brief for Petitioners,
Page 436 U. S. 709
O.T. 1960, No. 39, p. 21. [
Footnote
2/5] Respondents answered that adoption of petitioners'
position would expose
"Chicago and every other municipality in the United States . . .
to Civil Rights Act liability through no action of its own and
based on action contrary to its own ordinances and the laws of the
state it is a part of."
Brief for Respondents, O.T. 1960, No. 39, p. 26. Thus, the
ground of decision in
Monroe was not advanced by either
party, and was broader than necessary to resolve the contentions
made in that case. [
Footnote
2/6]
Page 436 U. S. 710
Similarly, in
Moor v. County of Alameda, 411 U.
S. 693 (1973), petitioners asserted that "the County was
vicariously liable for the acts of its deputies and sheriff,"
id. at
411 U. S. 696,
under 42 U.S.C. § 1988. In rejecting this vicarious liability
claim, 411 U.S. at
411 U. S. 710,
and n. 27, we reaffirmed
Monroe's reading of the statute,
but there was no challenge in that case to "the holding in
Monroe concerning the status under § 1983 of public
entities such as the County," 411 U.S. at
411 U. S. 700;
Brief for Petitioners, O.T. 1972, No. 710, p. 9.
Only in
City of Kenosha v. Bruno, 412 U.
S. 507 (1973), did the Court confront a § 1983 claim
based on conduct that was both authorized under state law and the
direct cause of the claimed constitutional injury. In
Kenosha, however, we raised the issue of the city's
amenability to suit under § 1983 on our own initiative. [
Footnote 2/7]
This line of cases -- from
Monroe to
Kenosha
-- is difficult to reconcile on a principled basis with a parallel
series of cases
Page 436 U. S. 711
in which the Court has assumed
sub silentio that some
local government entities could be sued under § 1983. If now, after
full consideration of the question, we continued to adhere to
Monroe, grave doubt would be cast upon the Court's
exercise of § 1983 jurisdiction over school boards.
See
ante at
436 U. S. 663
n. 5. Since "the principle of blanket immunity established in
Monroe cannot be cabined short of school boards,"
ante at
436 U. S. 696,
the conflict is squarely presented. Although there was an
independent basis of jurisdiction in many of the school board cases
because of the inclusion of individual public officials as nominal
parties, the opinions of this Court make explicit reference to the
school board party, particularly in discussions of the relief to be
awarded,
see, e.g., Green v. County School Board,
391 U. S. 430,
391 U. S.
437-439, 441-442 (1968);
Milliken v. Bradley,
433 U. S. 267,
433 U. S.
292-293 (1977) (POWELL, J., concurring in judgment).
And, as the Court points out,
ante at
436 U. S.
696-697, and nn. 62, 63, Congress has focused
specifically oh this Court's school board decisions in several
statutes. Thus, the exercise of § 1983 jurisdiction over school
boards, while perhaps not premised on considered holdings, has been
longstanding. Indeed, it predated
Monroe.
Even if one attempts to explain away the school board decisions
as involving suits which "may be maintained against board members
in their official capacities for injunctive relief under either §
1983 or
Ex parte Young, 209 U. S. 123
(1908),"
post at
436 U. S.
716-717, n. 2, some difficulty remains in rationalizing
the relevant body of precedents. At least two of the school board
cases involved claims for monetary relief.
Cohen v.
Chesterfield County School Board, 326
F. Supp. 1159, 1161 (ED Va.1971),
rev'd, 474 F.2d 395
(CA4 1973),
rev'd and remanded, 414 U. S. 414 U.S.
632 (1974);
Tinker v. Des Moines Independent School Dist.,
393 U. S. 503,
393 U. S. 504
(1969).
See also Vlandis v. Kline, 412 U.
S. 441,
412 U. S. 445
(1973). Although the point was not squarely presented in this
Court, these claims
Page 436 U. S. 712
for damages could not have been maintained in official capacity
suits if the government entity were not itself suable.
Cf.
Edelman v. Jordan, 415 U. S. 651
(1974). [
Footnote 2/8] Moreover,
the rationale of
Kenosha would have to be disturbed to
avoid closing all avenues under § 1983 to injunctive relief against
constitutional violations by local government. The Court of Appeals
in this case suggested that we import, by analogy, the Eleventh
Amendment fiction of
Ex parte Young into § 1983, 532 F.2d
259, 264-266 (CA2 1976). That approach, however, would create
tension with
Kenosha, because it would require "a
bifurcated application" of "the generic word
person' in § 1983"
to public officials "depending on the nature of the relief sought
against them." 412 U.S. at
412 U. S. 513. A public official sued in his official
capacity for carrying out official policy would be a "person" for
purposes of injunctive relief, but a non-"person" in an action for
damages. The Court's holding avoids this difficulty. See
ante at 436 U. S. 690
n. 55.
Finally, if we continued to adhere to a rule of absolute
municipal immunity under § 1983, we could not long avoid the
question whether "we should, by analogy to our decision in
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.
S. 388 (1971), imply a cause of action directly from the
Fourteenth Amendment which would not be subject to the limitations
contained in § 1983. . . "
Mt. Healthy City Board of Ed. v.
Doyle, 429 U. S. 274,
429 U. S. 278
(1977). One aspect of that inquiry would be whether there are any
"special factors counseling hesitation in the absence of
affirmative action by Congress,"
Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388,
403 U. S. 396
(1971), such as an
"explicit congressional declaration
Page 436 U. S. 713
that persons injured by a [municipality] may not recover money
damages . . . but must instead be remitted to another remedy,
equally effective in the view of Congress,"
id. at
403 U. S. 397.
In light of the Court's persuasive reexamination in today's
decision of the 1871 debates, I would have difficulty inferring
from § 1983 "an explicit congressional declaration" against
municipal liability for the implementation of official policies in
violation of the Constitution. Rather than constitutionalize a
cause of action against local government that Congress intended to
create in 1871, the better course is to confess error and set the
record straight, as the Court does today. [
Footnote 2/9]
III
Difficult questions nevertheless remain for another day. There
are substantial line-drawing problems in determining "when
execution of a government's policy or custom" can be said to
inflict constitutional injury such that "government as an entity is
responsible under § 1983."
Ante at
436 U. S. 694.
This case, however, involves formal, written policies of a
municipal department and school board; it is the clear case. The
Court also reserves decision on the availability of a qualified
municipal immunity.
Ante at
436 U. S. 701.
Initial resolution of the question whether the protection available
at common law for municipal corporations,
see post at
436 U. S.
720-721, or other principles support a
Page 436 U. S. 714
qualified municipal immunity in the context of the § 1983
damages action, is left to the lower federal courts.
[
Footnote 2/1]
The gravamen of the complaint in
Monroe was that
Chicago police officers, acting "under color of" state law, had
conducted a warrantless, early morning raid and ransacking of a
private home. Although at least one of the allegations in the
complaint could have been construed to charge a custom or usage of
the Police Department of the city of Chicago that did not violate
state law,
see 365 U.S. at
365 U. S.
258-259 (Frankfurter, J., dissenting in part), and there
is a hint of such a theory in Brief for Petitioners, O.T. 1960, No.
39, pp. 41-42, that feature of the case was not highlighted in this
Court. The dispute that divided the Court was over whether a
complaint alleging police misconduct in violation of state law, for
which state judicial remedies were available, stated a § 1983 claim
in light of the statutory requirement that the conduct working
injury be "under color of" state law.
Compare 365 U.S. at
365 U. S.
172-183 (opinion of the Court),
and id. at
365 U. S.
193-202 (Harlan, J., concurring),
with id. at
365 U. S.
202-259 (Frankfurter, J., dissenting in part).
[
Footnote 2/2]
If in the view of House opponents, such as Representatives
Poland, Burchard, and Willard,
see ante at
436 U. S.
679-680, a municipality obligated by state law to keep
the peace could be held liable for a failure to provide equal
protection against private violence, it seems improbable that they
would have opposed imposition of liability on a municipality for
the affirmative implementation of policies promulgated within its
proper sphere of operation under state law. Such liability is
premised not on a failure to take affirmative action in an area
outside the contemplation of the state law charter -- the sort of
liability that would have been imposed by the Sherman amendment --
but on the consequences of activities actually undertaken within
the scope of the powers conferred by state law.
[
Footnote 2/3]
The view taken today is consistent with the understanding of the
42d Congress that, unless the context revealed a more limited
definition, "the word
person' may extend and be applied to
bodies politic and corporate. . . " Act of Feb. 25, 1871, § 2, 16
Stat. 431. It also accords with the interpretation given the same
word when it was used by Senator Sherman in the antitrust
legislation of 1890 bearing his name. See Lafayette v.
Louisiana Power & Light Co., 435 U.
S. 389 (1978) (plurality opinion); Chattanooga
Foundry v. Atlanta, 203 U. S. 390,
203 U. S. 396
(1906); cf. Pfizer Inc. v. Government of India,
434 U. S. 308
(1978).
[
Footnote 2/4]
See, e.g., Continental T.V., Inc. v. GTE Sylvania Inc.,
433 U. S. 36
(1977);
Machinists v. Wisconsin Emp. Rel. Comm'n,
427 U. S. 132
(1976);
Braden v. 30th Judicial Circuit Court of Ky.,
410 U. S. 484
(1973);
Griffin v. Breckenridge, 403 U. S.
88 (1971);
Boys Markets, Inc. v. Retail Clerks,
398 U. S. 235
(1970);
Burnet v. Coronado Oil & Gas Co., 285 U.
S. 393,
285 U. S.
406-407, n. 1 (1932) (Brandeis, J., dissenting).
[
Footnote 2/5]
The District Court in
Monroe ruled in the
municipality's favor, stating:
"[S]ince the liability of the City of Chicago is based on the
doctrine of
respondeat superior, and since I have already
held that the complaint fails to state a claim for relief against
the agents of the city, there is no claim for relief against the
city itself."
Record, O.T. 1960, No. 39, p. 30. The Court of Appeals affirmed
for the same reason. 272 F.2d 365-366 (CA7 1959).
Petitioners in this Court also offered an alternative argument
that the city of Chicago was a "person" for purposes of § 1983,
Brief for Petitioners, O.T. 1960, No. 39, p. 25, but the underlying
theory of municipal liability remained one of
respondeat
superior.
[
Footnote 2/6]
The doctrine of
stare decisis advances two important
values of a rational system of law: (i) the certainty of legal
principles and (ii) the wisdom of the conservative vision that
existing rules should be presumed rational and not subject to
modification "at any time a new thought seems appealing,"
dissenting opinion of MR. JUSTICE REHNQUIST,
post at
436 U. S. 718;
cf. O. Holmes, The Common Law 36 (1881). But, at the same
time, the law has recognized the necessity of change, lest rules
"simply persis[t] from blind imitation of the past." Holmes, The
Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). Any overruling of
prior precedent, whether of a constitutional decision or otherwise,
disserves to some extent the value of certainty. But I think we owe
somewhat less deference to a decision that was rendered without
benefit of a full airing of all the relevant considerations. That
is the premise of the canon of interpretation that language in a
decision not necessary to the holding may be accorded less weight
in subsequent cases. I also would recognize the fact that, until
this case, the Court has not had to confront squarely the
consequences of holding § 1983 inapplicable to official municipal
policies.
Of course, the mere fact that an issue was not argued or briefed
does not undermine the precedential force of a considered holding.
Marbury v.
Madison, 1 Cranch 137 (1803), cited by the dissent,
post at
436 U. S. 718,
is a case in point. But the Court's recognition of its power to
invalidate legislation not in conformity with constitutional
command was essential to its judgment in
Marbury. And on
numerous subsequent occasions, the Court has been required to apply
the full breadth of the
Marbury holding. In
Monroe, on the other hand, the Court's rationale was
broader than necessary to meet the contentions of the parties and
to decide the case in a principled manner. The language in
Monroe cannot be dismissed as dicta, but we may take
account of the fact that the Court simply was not confronted with
the implications of holding § 1983 inapplicable to official
municipal policies. It is an appreciation of those implications
that has prompted today's reexamination of the legislative history
of the 1871 measure.
[
Footnote 2/7]
In
Aldinger v. Howard, 427 U. S.
1,
427 U. S. 16
(1976), we reaffirmed
Monroe, but petitioner did not
contest the proposition that counties were excluded from the reach
of § 1983 under
Monroe, and the question before us
concerned the scope of pendent party jurisdiction with respect to a
state law claim. Similarly, the parties in
Mt. Healthy City
Board of Ed. v. Doyle, 429 U. S. 274
(1977), did not seek a reexamination of our ruling in
Monroe.
[
Footnote 2/8]
To the extent that the complaints in those cases asserted claims
against the individual defendants in their personal capacity, as
well as official capacity, the court would have had authority to
award the relief requested. There is no suggestion in the opinions,
however, that the practices at issue were anything other than
official, duly authorized policies.
[
Footnote 2/9]
MR. JUSTICE REHNQUIST's dissent makes a strong argument
that,
"[s]ince
Monroe, municipalities have had the right to
expect that they would not be held liable retroactively for their
officers' failure to predict this Court's recognition of new
constitutional rights."
Post at
436 U. S. 717.
But it reasonably may be assumed that most municipalities already
indemnify officials sued for conduct within the scope of their
authority, a policy that furthers the important interest of
attracting and retaining competent officers, board members, and
employees. In any event, the possibility of a qualified immunity,
as to which the Court reserves decision, may remove some of the
harshness of liability for good faith failure to predict the often
uncertain course of constitutional adjudication.
MR. JUSTICE STEVENS, concurring in part.
Since Parts II and IV of the opinion of the Court are merely
advisory and are not necessary to explain the Court's decision, I
join only Parts I, III, and V.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins,
dissenting.
Seventeen years ago, in
Monroe v. Pape, 365 U.
S. 167 (1961), this Court held that the 42d Congress did
not intend to subject a municipal corporation to liability as a
"person" within the meaning of 42 U.S.C. § 1983. Since then, the
Congress has remained silent, but this Court has reaffirmed that
holding on at least three separate occasions.
Aldinger v.
Howard, 427 U. S. 1 (1976);
City of Kenosha v. Bruno, 412 U.
S. 507 (1973);
Moor v. County of Alameda,
411 U. S. 693
(1973).
See also Mt. Healthy City Board of Ed. v. Doyle,
429 U. S. 274,
429 U. S.
277-279 (1977). Today, the Court abandons this long and
consistent line of precedents, offering in justification only an
elaborate canvass of the same legislative history which was before
the Court in 1961. Because I cannot agree that this Court is "free
to disregard these precedents," which have been "considered
maturely and recently" by this Court,
Runyon v. McCrary,
427 U. S. 160,
427 U. S. 186
(1976) (POWELL, J., concurring), I am compelled to dissent.
I
As this Court has repeatedly recognized,
id. at
427 U. S. 175
n. 12;
Edelman v. Jordan, 415 U.
S. 651,
415 U. S. 671
n. 14 (1974), considerations of
stare decisis are at their
strongest when this Court confronts its previous constructions of
legislation. In all cases, private parties shape their conduct
according to this Court's settled construction of the law, but the
Congress is at
Page 436 U. S. 715
liberty to correct our mistakes of statutory construction,
unlike our constitutional interpretations, whenever it sees fit.
The controlling principles were best stated by Mr. Justice
Brandeis:
"
Stare decisis is usually the wise policy, because, in
most matters, it is more important that the applicable rule of law
be settled than that it be settled right. . . . This is commonly
true even where the error is a matter of serious concern, provided
correction can be had by legislation. But in cases involving the
Federal Constitution, where correction through legislative action
is practically impossible, this Court has often overruled its
earlier decisions."
Burnet v. Coronado Oil & Gas Co., 285 U.
S. 393,
285 U. S.
406-407 (1932) (dissenting opinion) (footnotes omitted).
Only the most compelling circumstances can justify this Court's
abandonment of such firmly established statutory precedents. The
best exposition of the proper burden of persuasion was delivered by
Mr. Justice Harlan in
Monroe itself:
"From my point of view, the policy of
stare decisis, as
it should be applied in matters of statutory construction, and, to
a lesser extent, the indications of congressional acceptance of
this Court's earlier interpretation, require that it appear
beyond doubt from the legislative history of the 1871
statute that [
United States v.\] Classic,
[
313 U.S.
299 (1941)] and
Screws \[v. United States,
325 U. S.
91 (1945)] misapprehended the meaning of the controlling
provision, before a departure from what was decided in those cases
would be justified."
365 U.S. at
365 U. S. 192
(concurring opinion) (footnote omitted; emphasis added).
The Court does not demonstrate that any exception to this
general rule is properly applicable here. The Court's first
assertion, that
Monroe "was a departure from prior
practice,"
ante at
436 U. S. 695,
is patently erroneous. Neither in
Douglas v. City of
Jeannette, 319 U. S. 157
(1943), nor in
Holmes v. Atlanta,
Page 436 U. S. 716
350 U.S. 879 (1955), nor in any of the school board cases cited
by the Court,
ante at
436 U. S. 663
n. 5, was the question now before us raised by any of the litigants
or addressed by this Court. As recently as four Terms ago, we said
in
Hagans v. Lavine, 415 U. S. 528,
415 U. S. 535
n. 5 (1974):
"Moreover, when questions of jurisdiction have been passed on in
prior decisions
sub silentio, this Court has never
considered itself bound when a subsequent case finally brings the
jurisdictional issue before us."
The source of this doctrine that jurisdictional issues decided
sub silentio are not binding in other cases seems to be
Mr. Chief Justice Marshall's remark in
United
States v. More, 3 Cranch 159,
7 U. S. 172
(1805). [
Footnote 3/1] While the
Chief Justice also said that such decisions may "have much weight,
as they show that this point neither occurred to the bar or the
bench,"
Bank of the United States v.
Deveaux, 5 Cranch 61,
9 U. S. 88 (1809),
unconsidered assumptions of jurisdiction simply cannot outweigh
four consistent decisions of this Court, explicitly considering and
rejecting that jurisdiction.
Nor is there any indication that any later Congress has ever
approved suit against any municipal corporation under § 1983. Of
all its recent enactments, only the Civil Rights Attorney's Fees
Awards Act of 1976, § 2, 90 Stat. 2641, 42 U.S.C. § 1988 (1976
ed.), explicitly deals with the Civil Rights Act of 1871. [
Footnote 3/2] The 1976 Act provides that
attorney's fees may be awarded
Page 436 U. S. 717
to the prevailing party "[i]n any action or proceeding to
enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of
this title." There is plainly no language in the 1976 Act which
would enlarge the parties suable under those substantive sections;
it simply provides that parties who are already suable may be made
liable for attorney's fees. As the Court admits,
ante at
436 U. S. 699,
the language in the Senate Report stating that liability may be
imposed "whether or not the agency or government is a named party,"
S.Rep. No. 94-1011, p. 5 (1976), suggests that Congress did not
view its purpose as being in any way inconsistent with the well
known holding of
Monroe.
The Court's assertion that municipalities have no right to act
"on an assumption that they can violate constitutional rights
indefinitely,"
ante at
436 U. S. 700,
is simply beside the point. Since
Monroe, municipalities
have had the right to expect that they would not be held liable
retroactively for their officers' failure to predict this Court's
recognition of new constitutional rights. No doubt innumerable
municipal insurance policies and indemnity ordinances have been
founded on this assumption, which is wholly justifiable under
established principles of
stare decisis. To obliterate
those legitimate expectations without more compelling
justifications than those advanced by the Court is a significant
departure from our prior practice.
I cannot agree with MR. JUSTICE POWELL's view that "[w]e owe
somewhat less deference to a decision that was rendered without
benefit of a full airing of all the relevant considerations."
Ante at
436 U. S. 709
n. 6. Private parties must be able to rely upon explicitly stated
holdings of this Court without being
Page 436 U. S. 718
obliged to peruse the briefs of the litigants to predict the
likelihood that this Court might change its mind. To cast such
doubt upon each of our cases, from
Marbury v.
Madison, 1 Cranch 137 (1803), forward, in which the
explicit ground of decision "was never actually briefed or argued,"
ante at
436 U. S. 708
(POWELL, J., concurring), would introduce intolerable uncertainty
into the law. Indeed, in
Marbury itself, the argument of
Charles Lee on behalf of the applicants -- which, unlike the
arguments in
Monroe, is reproduced in the Reports of this
Court where anyone can see it -- devotes not a word to the question
of whether this Court has the power to invalidate a statute duly
enacted by the Congress. Neither this ground of decision nor any
other was advanced by Secretary of State Madison, who evidently
made no appearance. 1 Cranch at 153-154. More recent landmark
decisions of this Court would appear to be likewise vulnerable
under my Brother POWELL's analysis. In
Mapp v. Ohio,
367 U. S. 643
(1961), none of the parties requested the Court to overrule
Wolf v. Colorado, 338 U. S. 25 (19);
it did so only at the request of an
amicus curiae. 367
U.S. at
367 U. S. 646
n. 3. That
Marbury, Mapp, and countless other decisions
retain their vitality despite their obvious flaws is a necessary
byproduct of the adversary system, in which both judges and the
general public rely upon litigants to present "all the relevant
considerations."
Ante at
436 U. S. 709
n. 6 (POWELL, J., concurring). While it undoubtedly has more
latitude in the field of constitutional interpretation, this Court
is surely not free to abandon settled statutory interpretation at
any time a new thought seems appealing. [
Footnote 3/3]
Thus, our only task is to discern the intent of the 42d
Congress. That intent was first expounded in
Monroe, and
it
Page 436 U. S. 719
has been followed consistently ever since. This is not some
esoteric branch of the law in which congressional silence might
reasonably be equated with congressional indifference. Indeed, this
very year, the Senate has been holding hearings on a bill, S. 35,
95th Cong., 1st Sess. (1977), which would remove the municipal
immunity recognized by
Monroe. 124 Cong.Rec. D117 (daily
ed. Feb. 8, 1978). In these circumstances, it cannot be disputed
that established principles of
stare decisis require this
Court to pay the highest degree of deference to its prior holdings.
Monroe may not be overruled unless it has been
demonstrated "beyond doubt from the legislative history of the 1871
statute that [
Monroe] misapprehended the meaning of the
controlling provision."
Monroe, 365 U.S. at
365 U. S. 192
(Harlan, J., concurring). The Court must show not only that
Congress, in rejecting the Sherman amendment, concluded that
municipal liability was not unconstitutional, but also that, in
enacting § 1, it intended to impose that liability. I am satisfied
that no such showing has been made.
II
Any analysis of the meaning of the word "person" in § 1983,
which was originally enacted as § 1 of the Ku Klux Klan Act of
April 20, 1871, 17 Stat. 13, must begin, not with the Sherman
amendment, but with the Dictionary Act. The latter Act, which
supplied rules of construction for all legislation, provided:
"That in all acts hereafter passed . . . the word 'person' may
extend and be applied to bodies politic and corporate . . . unless
the context shows that such words were intended to be used in a
more limited sense. . . ."
Act of Feb. 25, 1871, § 2, 16 Stat. 431. The Act expressly
provided that corporations need not be included within the scope of
the word "person" where the context suggests a more limited reach.
Not a word in the legislative history of the Act gives any
indication of the contexts
Page 436 U. S. 720
in which Congress felt it appropriate to include a corporation
as a person. Indeed, the chief cause of concern was that the Act's
provision that "words importing the masculine gender may be applied
to females," might lead to an inadvertent extension of the suffrage
to women. Cong.Globe, 41st Cong., 3d Sess., 777 (1871) (remarks of
Sen. Sawyer).
There are other factors, however, which suggest that the
Congress which enacted § 1983 may well have intended the word
"person" "to be used in a more limited sense," as
Monroe
concluded. It is true that this Court had held that both commercial
corporations,
Louisville R. Co. v.
Letson, 2 How. 497, 558 (1844), and municipal
corporations,
Cowles v. Mercer
County, 7 Wall. 118, 121 (1869), were "citizens" of
a State within the meaning of the jurisdictional provisions of Art.
III. Congress, however, also knew that this label did not apply in
all contexts, since this Court, in
Paul v.
Virginia, 8 Wall. 168 (1869), had held commercial
corporations not to be "citizens" within the meaning of the
Privileges and Immunities Clause, U.S.Const., Art. IV, § 2. Thus,
the Congress surely knew that, for constitutional purposes,
corporations generally enjoyed a different status in different
contexts. Indeed, it may be presumed that Congress intended that a
corporation should enjoy the same status under the Ku Klux Klan Act
as it did under the Fourteenth Amendment, since it had been assured
that § 1 "was so very simple and really reenact[ed] the
Constitution." Cong.Globe, 42d Cong., 1st Sess., 569 (1871)
(remarks of Sen. Edmunds). At the time § 1983 was enacted, the only
federal case to consider the status of corporations under the
Fourteenth Amendment had concluded, with impeccable logic, that a
corporation was neither a "citizen" nor a "person."
Insurance
Co. v. New Orleans, 13 F. Cas. 67 (No. 7,052) (CC La.
1870).
Furthermore, the state courts did not speak with a single voice
with regard to the tort liability of municipal corporations.
Although many Members of Congress represented
Page 436 U. S. 721
States which had retained absolute municipal tort immunity,
see, e.g., Irvine v. Town of Greenwood, 89 S.C. 511, 72
S.E. 228 (1911) (collecting earlier cases), other States had
adopted the currently predominant distinction imposing liability
for proprietary acts,
see generally 2 F. Harper & F.
James, Law of Torts § 29.6 (1956), as early as 1842,
Bailey v.
Mayor of City of New York, 3 Hill 531 (N.Y. 1842).
Nevertheless, no state court had ever held that municipal
corporations were always liable in tort in precisely the same
manner as other persons.
The general remarks from the floor on the liberal purposes of §
1 offer no explicit guidance as to the parties against whom the
remedy could be enforced. As the Court concedes, only
Representative Bingham raised a concern which could be satisfied
only by relief against governmental bodies. Yet he never directly
related this concern to § 1 of the Act. Indeed, Bingham stated at
the outset, "I do not propose now to discuss the provisions of the
bill in detail," Cong.Globe, 42d Cong., 1st Sess., App. 82 (1871),
and, true to his word, he launched into an extended discourse on
the beneficent purposes of the Fourteenth Amendment. While Bingham
clearly stated that Congress could "provide that no citizen in any
State shall be deprived of his property by State law or the
judgment of a State court without just compensation therefor,"
id. at 85, he never suggested that such a power was
exercised in § 1. [
Footnote
3/4]
Page 436 U. S. 722
Finally; while Bingham has often been advanced as the chief
expositor of the Fourteenth Amendment,
Duncan v.
Louisiana, 391 U. S. 145,
391 U. S. 165
(1968) (Black, J., concurring);
Adamson v. California,
332 U. S. 46,
332 U. S. 73-74
(1947) (Black, J., dissenting), there is nothing to indicate that
his colleagues placed any greater credence in his theories than has
this Court.
See Duncan, supra at
391 U. S.
174-176 (Harlan, J., dissenting);
Adamson,
supra, at
332 U. S. 64
(Frankfurter, J., concurring).
Thus, it ought not lightly to be presumed, as the Court does
today,
ante at
436 U. S. 690
n. 53, that § 1983 "should
prima facie be construed to
include
bodies politic' among the entities that could be sued."
Neither the Dictionary Act, the ambivalent state of judicial
decisions, nor the floor debate � § 1 of the Act gives any
indication that any Member of Congress had any inkling that § 1
could be used to impose liability on municipalities. Although
Senator Thurman, as the Court emphasizes, ante at
436 U. S. 686
n. 45, expressed his belief that the terms of § 1 "are as
comprehensive as can be used," Cong.Globe, 42d Cong., 1st Sess.,
App. 217 (1871), an examination of his lengthy remarks demonstrates
that it never occurred to him that § 1 did impose or could have
imposed any liability upon municipal corporations. In an extended
parade of horribles, this "old Roman," who was one of the Act's
most implacable opponents, suggested that state legislatures,
Members of Congress, and state judges might be held liable under
the Act. Ibid. If, at that point in the debate, he had any
idea that § 1 was designed to impose tort liability upon cities and
counties, he would surely have raised an additional outraged
objection. Only once was that possibility placed squarely before
the Congress -- in its consideration of the Sherman amendment --
and the Congress squarely rejected it.
The Court is probably correct that the rejection of the Sherman
amendment does not lead ineluctably to the conclusion that Congress
intended municipalities to be immune from liability under all
circumstances. Nevertheless, it cannot be
Page 436 U. S. 723
denied that the debate on that amendment, the only explicit
consideration of municipal tort liability, sheds considerable light
on the Congress' understanding of the status of municipal
corporations in that context. Opponents of the amendment were well
aware that municipalities had been subjected to the jurisdiction of
the federal courts in the context of suits to enforce their
contracts, Cong.Globe, 42d Cong., 1st Sess., 789 (1871) (remarks of
Rep. Kerr), but they expressed their skepticism that such
jurisdiction should be exercised in cases sounding in tort:
"Suppose a judgment obtained under this section, and no property
can be found to levy upon except the courthouse, can we levy on the
courthouse and sell it? So this section provides, and that too in
an action of tort, in an action
ex delicto, where the
county has never entered into any contract, where the State has
never authorized the county to assume any liability of the sort or
imposed any liability upon it. It is in my opinion simply
absurd."
Id. at 799 (remarks of Rep. Farnsworth).
Whatever the merits of the constitutional arguments raised
against it, the fact remains that Congress rejected the concept of
municipal tort liability on the only occasion in which the question
was explicitly presented. Admittedly this fact is not conclusive as
to whether Congress intended § 1 to embrace a municipal corporation
within the meaning of "person," and thus the reasoning of
Monroe on this point is subject to challenge. The meaning
of § 1 of the Act of 1871 has been subjected in this case to a more
searching and careful analysis than it was in
Monroe, and
it may well be that, on the basis of this closer analysis of the
legislative debates, a conclusion contrary to the
Monroe
holding could have been reached when that case was decided 17 years
ago. But the rejection of the Sherman amendment remains instructive
in that here alone did the legislative debates squarely focus on
the liability of municipal corporations, and that liability was
rejected.
Page 436 U. S. 724
Any inference which might be drawn from the Dictionary Act or
from general expressions of benevolence in the debate on § 1 that
the word "person" was intended to include municipal corporations
falls far short of showing "beyond doubt" that this Court, in
Monroe, "misapprehended the meaning of the controlling
provision." Errors such as the Court may have fallen into in
Monroe do not end the inquiry as to
stare
decisis; they merely begin it. I would adhere to the holding
of
Monroe as to the liability of a municipal corporation
under § 1983.
III
The decision in
Monroe v. Pape was the fountainhead of
the torrent of civil rights litigation of the last 17 years. Using
§ 1983 as a vehicle, the courts have articulated new and previously
unforeseeable interpretations of the Fourteenth Amendment. At the
same time, the doctrine of municipal immunity enunciated in
Monroe has protected municipalities and their limited
treasuries from the consequences of their officials' failure to
predict the course of this Court's constitutional jurisprudence.
None of the Members of this Court can foresee the practical
consequences of today's removal of that protection. Only the
Congress, which has the benefit of the advice of every segment of
this diverse Nation, is equipped to consider the results of such a
drastic change in the law. It seems all but inevitable that it will
find it necessary to do so after today's decision.
I would affirm the judgment of the Court of Appeals.
[
Footnote 3/1]
As we pointed out in
Mt. Healthy City Board of Ed. v.
Doyle, 429 U. S. 274,
429 U. S.
278-279 (1977), the existence of a claim for relief
under § 1983 is "jurisdictional" for purposes of invoking 28 U.S.C.
§ 1343, even though the existence of a meritorious constitutional
claim is not similarly required in order to invoke jurisdiction
under 28 U.S.C. § 1331.
See Bell v. Hood, 327 U.
S. 678,
327 U. S. 682
(1946).
[
Footnote 3/2]
The other statutes cited by the Court,
ante at
436 U. S.
697-699, n. 63, make no mention of § 1983, but refer
generally to suits against "a local educational agency." As noted
by the Court of Appeals, 532 F.2d 259, 264-266, such suits may be
maintained against board members in their official capacities for
injunctive relief under either § 1983 or
Ex parte Young,
209 U. S. 123
(1908). Congress did not stop to consider the technically proper
avenue of relief, but merely responded to the fact that relief was
being granted. The practical result of choosing the avenue
suggested by petitioners would be the subjection of school
corporations to liability in damages. Nothing in recent
congressional history even remotely supports such a result.
[
Footnote 3/3]
I find it somewhat ironic that, in abandoning the supposedly
ill-considered holding of
Monroe, my Brother POWELL relies
heavily upon cases involving school boards, although he admits that
"the exercise of § 1983 jurisdiction . . . [was] perhaps not
premised on considered holdings."
Ante at
436 U. S.
711.
[
Footnote 3/4]
It has not been generally thought, before today, that § 1983
provided an avenue of relief from unconstitutional takings. Those
federal courts which have granted compensation against state and
local governments have resorted to an implied right of action under
the Fifth and Fourteenth Amendments.
Richmond Elks Hall Assn.
v. Richmond Redevelopment Agency, 561 F.2d 1327 (CA9 1977),
aff'g 389 F. Supp. 486 (ND Cal.1975);
Foster v.
Detroit, 405 F.2d 138, 140 (CA6 1968). Since the Court today
abandons the holding of
Monroe chiefly on the strength of
Bingham's arguments, it is indeed anomalous that § 1983 will
provide relief only when a local government, not the State itself,
seizes private property.
See ante at
436 U. S. 690
n. 54;
Fitzpatrick v. Bitzer, 427 U.
S. 445,
427 U. S. 452
(1976);
Edelman v. Jordan, 415 U.
S. 651,
415 U. S.
674-677 (1974).