After the City Council of respondent city moved that reports of
an investigation of the city police department be released to the
news media and turned over to the prosecutor for presentation to
the grand jury and that the City Manager take appropriate action
against the persons involved in the wrongful activities brought out
in the investigative reports, the City Manager discharged
petitioner from his position as Chief of Police. No reason was
given for the dismissal, and petitioner received only a written
notice stating that the dismissal was made pursuant to a specified
provision of the city charter. Subsequently, petitioner brought
suit in Federal District Court under 42 U.S.C. § 1983 against the
city, the respondent City Manager, and the respondent members of
the City Council in their official capacities, alleging that he was
discharged without notice of reasons and without a hearing in
violation of his constitutional rights to procedural and
substantive due process, and seeking declaratory and injunctive
relief. The District Court, after a bench trial, entered judgment
for respondents. The Court of Appeals ultimately affirmed, holding
that, although the city had violated petitioner's rights under the
Fourteenth Amendment, nevertheless all the respondents, including
the city, were entitled to qualified immunity from liability based
on the good faith of the city officials involved.
Held: A municipality has no immunity from liability
under § 1983 flowing from its constitutional violations, and may
not assert the good faith of its officers as a defense to such
liability. Pp.
445 U. S.
635-658.
(a) By its terms, § 1983 "creates a species of tort liability
that, on its face, admits of no immunities."
Imbler v.
Pachtman, 424 U. S. 409,
424 U. S. 417.
Its language is absolute and unqualified, and no mention is made of
any privileges, immunities, or defenses that may be asserted.
Rather, the statute imposes liability upon "every person" (held in
Monell v. New York City Dept. of Social Services,
436 U. S. 658, to
encompass municipal corporations) who, under color of state law or
custom,
"subjects, or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws."
And this expansive sweep of § 1983's language is confirmed by
its legislative history. Pp.
445 U. S.
635-636.
Page 445 U. S. 623
(b) Where an immunity was well established at common law and
where its rationale was compatible with the purposes of § 1983, the
statute has been construed to incorporate that immunity. But there
is no tradition of immunity for municipal corporations, and neither
history nor policy supports a construction of § 1983 that would
justify the qualified immunity accorded respondent city by the
Court of Appeals. Pp.
445 U. S.
637-644.
(c) The application and rationale underlying both the doctrine
whereby a municipality was held immune from tort liability with
respect to its "governmental" functions but not for its
"proprietary" functions, and the doctrine whereby a municipality
was immunized for its "discretionary" or "legislative" activities
but not for those which were "ministerial" in nature, demonstrate
that neither of these common law doctrines could have been intended
to limit a municipality's liability under § 1983. The principle of
sovereign immunity from which a municipality's immunity for
"governmental" functions derives cannot serve as the basis for the
qualified privilege respondent city claims under § 1983, since
sovereign immunity insulates a municipality from unconsented suits
altogether, the presence or absence of good faith being irrelevant,
and since the municipality's "governmental" immunity is abrogated
by the sovereign's enactment of a statute such as § 1983 making it
amenable to suit. And the doctrine granting a municipality immunity
for "discretionary" functions, which doctrine merely prevented
courts from substituting their own judgment on matters within the
lawful discretion of the municipality, cannot serve as the
foundation for a good faith immunity under § 1983, since a
municipality has no "discretion" to violate the Federal
Constitution. Pp.
445 U. S.
644-650.
(d) Rejection of a construction of § 1983 that would accord
municipalities a qualified immunity for their good faith
constitutional violations is compelled both by the purpose of §
1983 to provide protection to those persons wronged by the abuse of
governmental authority and to deter future constitutional
violations, and by considerations of public policy. In view of the
qualified immunity enjoyed by most government officials, many
victims of municipal malfeasance would be left remediless if the
city were also allowed to assert a good faith defense. The concerns
that justified decisions conferring qualified immunities on various
government officials -- the injustice, particularly in the absence
of bad faith, of subjecting the official to liability, and the
danger that the threat of such liability would deter the official's
willingness to execute his office effectively -- are less
compelling, if not wholly inapplicable, when the liability of the
municipal entity is at issue. Pp.
445 U. S.
650-656.
589 F.2d 335, reversed.
Page 445 U. S. 624
BRENNAN, J., delivered the opinion of the Court, in which WHITE,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed a
dissenting opinion, in which BURGER, C.J., and STEWART and
REHNQUIST, JJ., joined,
post, p.
445 U. S.
658.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
Monell v. New York City Dept. of Social Services,
436 U. S. 658
(1978), overruled
Monroe v. Pape, 365 U.
S. 167 (1961), insofar as
Monroe held that
local governments were not among the "persons" to whom 42 U.S.C. §
1983 applies, and were therefore wholly immune from suit under the
statute. [
Footnote 1]
Monell reserved decision, however, on the question whether
local governments, although not entitled to an absolute immunity,
should be afforded some form of official immunity in § 1983 suits.
436 U.S. at
436 U. S. 701.
In this action brought by petitioner in the District Court for the
Western District of Missouri, the Court of Appeals for the Eighth
Circuit held that respondent city of Independence, Mo., "is
entitled to qualified immunity from liability" based on the good
faith
Page 445 U. S. 625
of its officials:
"We extend the limited immunity the district court applied to
the individual defendants to cover the City as well, because its
officials acted in good faith and without malice."
589 F.2d 335, 337-338 (1978). We granted certiorari. 444 U.S.
822 (1979). We reverse.
I
The events giving rise to this suit are detailed in the District
Court's findings of fact,
421 F.
Supp. 1110 (1976). On February 20, 1967, Robert L. Broucek,
then City Manager of respondent city of Independence, Mo.,
appointed petitioner George D. Owen to an indefinite term as Chief
of Police. [
Footnote 2] In
1972, Owen and a new City Manager, Lyle W. Alberg, engaged in a
dispute over petitioner's administration of the Police Department's
property room. In March of that year, a handgun, which the records
of the Department's property room stated had been destroyed, turned
up in Kansas City in the possession of a felon. This discovery
prompted Alberg to initiate an investigation of the management of
the property room. Although the probe was initially directed by
petitioner, Alberg soon transferred responsibility for the
investigation to the city's Department of Law, instructing the City
Counselor to supervise its conduct and to inform him directly of
its findings.
Sometime in early April, 1972, Alberg received a written report
on the investigation's progress, along with copies of confidential
witness statements. Although the City Auditor found that the Police
Department's records were insufficient to permit an adequate
accounting of the goods contained in the property room, the City
Counselor concluded that there was no evidence of any criminal acts
or of any violation of
Page 445 U. S. 626
state or municipal law in the administration of the property
room. Alberg discussed the results of the investigation at an
informal meeting with several City Council members and advised them
that he would take action at an appropriate time to correct any
problems in the administration of the Police Department.
On April 10, Alberg asked petitioner to resign as Chief of
Police and to accept another position within the Department, citing
dissatisfaction with the manner in which petitioner had managed the
Department, particularly his inadequate supervision of the property
room. Alberg warned that, if petitioner refused to take another
position in the Department, his employment would be terminated, to
which petitioner responded that he did not intend to resign.
On April 13, Alberg issued a public statement addressed to the
Mayor and the City Council concerning the results of the
investigation. After referring to "discrepancies" found in the
administration, handling, and security of public property, the
release concluded that "[t]here appears to be no evidence to
substantiate any allegations of a criminal nature," and offered
assurances that "[s]teps have been initiated on an administrative
level to correct these discrepancies."
Id. at 1115.
Although Alberg apparently had decided by this time to replace
petitioner as Police Chief, he took no formal action to that end,
and left for a brief vacation without informing the City Council of
his decision. [
Footnote 3]
While Alberg was away on the weekend of April 15 and 16, two
developments occurred. Petitioner, having consulted with counsel,
sent Alberg a letter demanding written notice of the charges
against him and a public hearing with a reasonable
Page 445 U. S. 627
opportunity to respond to those charge. [
Footnote 4] At approximately the same time, City
Councilman Paul L. Roberts asked for a copy of the investigative
report on the Police Department property room. Although
petitioner's appeal received no immediate response, the Acting City
Manager complied with Roberts' request and supplied him with the
audit report and witness statements.
On the evening of April 17, 1972, the City Council held its
regularly scheduled meeting. After completion of the planned
agenda, Councilman Roberts read a statement he had prepared on the
investigation. [
Footnote 5]
Among other allegations,
Page 445 U. S. 628
Roberts charged that petitioner had misappropriated Police
Department property for his own use, that narcotics and money had
"mysteriously disappeared" from his office, that traffic tickets
had been manipulated, that high ranking police officials had made
"inappropriate" requests affecting the police court, and that
"things have occurred causing the unusual release of felons." At
the close of his statement, Roberts moved that the investigative
reports be released to the news media and turned over to the
prosecutor for presentation to the grand jury, and that the City
Manager "take all direct
Page 445 U. S. 629
and appropriate action" against those persons "involved in
illegal, wrongful, or gross inefficient activities brought out in
the investigative reports." After some discussion, the City Council
passed Roberts' motion with no dissents and one abstention.
[
Footnote 6]
City Manager Alberg discharged petitioner the very next day.
Petitioner was not given any reason for his dismissal; he received
only a written notice stating that his employment as Chief of
Police was "[t]erminated under the provisions of Section 3.3(1) of
the City Charter." [
Footnote 7]
Petitioner's earlier demand for a specification of charges and a
public hearing was ignored, and a subsequent request by his
attorney for an appeal of the discharge decision was denied by the
city on the grounds that
"there is no appellate procedure or forum provided by the
Charter or ordinances of the City of Independence, Missouri,
relating to the dismissal of Mr. Owen."
App. 227.
The local press gave prominent coverage both to the City
Council's action and petitioner's dismissal, linking the discharge
to the investigation. [
Footnote
8] As instructed by the City Council, Alberg referred the
investigative reports and witness statements to the Prosecuting
Attorney of Jackson County, Mo.,
Page 445 U. S. 630
for consideration by a grand jury. The results of the audit and
investigation were never released to the public, however. The grand
jury subsequently returned a "no true bill," and no further action
was taken by either the City Council or City Manager Alberg.
II
Petitioner named the city of Independence, City Manager Alberg,
and the present members of the City Council in their official
capacities as defendants in this suit. [
Footnote 9] Alleging that he was discharged without notice
of reasons and without a hearing in violation of his constitutional
rights to procedural and substantive due process, petitioner sought
declaratory and injunctive relief, including a hearing on his
discharge, backpay from the date of discharge, and attorney's fees.
The District Court, after a bench trial, entered judgment for
respondents.
421 F.
Supp. 1110 (1976). [
Footnote
10]
Page 445 U. S. 631
The Court of Appeals initially reversed the District Court. 560
F.2d 925 (1977). [
Footnote
11] Although it agreed with the District Court that, under
Missouri law, petitioner possessed no property interest in
continued employment as Police Chief, the Court of Appeals
concluded that the city's allegedly false public accusations had
blackened petitioner's name and reputation, thus depriving him of
liberty without due process of law. That the stigmatizing charges
did not come from the City Manager and were not included in the
official discharge notice was, in the court's view, immaterial.
What was important,
Page 445 U. S. 632
the Court explained, was that
"the official actions of the city council released charges
against [petitioner] contemporaneous and, in the eyes of the
public, connected with that discharge."
Id. at 937. [
Footnote 12]
Respondents petitioned for review of the Court of Appeals'
decision. Certiorari was granted, and the case was remanded for
further consideration in light of our supervening decision in
Monell v. New York City Dept. of Social Services,
436 U. S. 658
(1978). 438 U.S. 902 (1978). The Court of Appeals,
Page 445 U. S. 633
on the remand, reaffirmed its original determination that the
city had violated petitioner's rights under the Fourteenth
Amendment, but held that all respondents, including the city, were
entitled to qualified immunity from liability. 589 F.2d 335
(1978).
Monell held that
"a local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents. Instead, it is when
execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government
as an entity is responsible under § 1983."
436 U.S. at
436 U. S. 694.
The Court of Appeals held in the instant case that the
municipality's official policy was responsible for the deprivation
of petitioner's constitutional rights:
"[T]he stigma attached to [petitioner] in connection with his
discharge was caused by the official conduct of the City's
lawmakers, or by those whose acts may fairly be said to represent
official policy. Such conduct amounted to official policy causing
the infringement of [petitioner's] constitutional rights, in
violation of section 1983."
589 F.2d at 337. [
Footnote
13]
Page 445 U. S. 634
Nevertheless, the Court of Appeals affirmed the judgment of the
District Court denying petitioner any relief against the respondent
city, stating:
"The Supreme Court's decisions in
Board of Regents v.
Roth, 408 U. S. 564 . . . (1972), and
Perry v. Sindermann, 408 U. S. 593 . . . (1972),
crystallized the rule establishing the right to a name-clearing
hearing for a government employee allegedly stigmatized in the
course of his discharge. The Court decided those two cases two
months after the discharge in the instant case. Thus, officials of
the City of Independence could not have been aware of
[petitioner's] right to a name-clearing hearing in connection with
the discharge. The City of Independence should not be charged with
predicting the future course of constitutional law. We extend the
limited immunity the district court applied to the individual
defendants to cover the City as well, because its officials acted
in good faith and without malice. We hold the City not liable for
actions it could not reasonably have known violated [petitioner's]
constitutional rights."
Id. at 338 (footnote and citations omitted). [
Footnote 14]
Page 445 U. S. 635
We turn now to the reasons for our disagreement with this
holding. [
Footnote 15]
III
Because the question of the scope of a municipality's immunity
from liability under § 1983 is essentially one of statutory
construction,
see Wood v. Strickland, 420 U.
S. 308,
420 U. S. 314,
316 (1975);
Tenney v. Brandhove, 341 U.
S. 367,
341 U. S. 376
(1951), the starting point in our analysis must be the language of
the statute itself.
Andrus v. Allard, 444 U. S.
51,
444 U. S. 56
(1979);
Blue Chip Stamps v. Manor Drug Stores,
421 U. S. 723,
421 U. S. 756
(1975) (POWELL, J., concurring). By its terms, § 1983 "creates a
species of tort liability that, on its face, admits of no
immunities."
Imbler v. Pachtman, 424 U.
S. 409,
424 U. S. 417
(1976). Its language is absolute and unqualified; no mention is
made of any privileges, immunities, or defenses that may be
asserted. Rather, the Act imposes liability upon "every person"
who, under color of state law or custom,
"subjects, or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws. [
Footnote 16]"
And
Monell held that these words were intended to
encompass municipal corporations as well as natural "persons."
Moreover, the congressional debates surrounding the passage of §
1 of the Civil Rights Act of 1871, 17 Stat. 13 -- the forerunner of
§ 1983 -- confirm the expansive sweep of the statutory
Page 445 U. S. 636
language. Representative Shellabarger, the author and manager of
the bill in the House, explained in his introductory remarks the
breadth of construction that the Act was to receive:
"I have a single remark to make in regard to the rule of
interpretation of those provisions of the Constitution under which
all the sections of the bill are framed. This act is remedial, and
in aid of the preservation of human liberty and human rights. All
statutes and constitutional provision authorizing such statutes are
liberally and beneficently construed. It would be most strange and,
in civilized law, monstrous, were this not the rule of
interpretation. As has been again and again decided by your own
Supreme Court of the United States, and everywhere else where there
is wise judicial interpretation, the largest latitude consistent
with the words employed is uniformly given in construing such
statutes and constitutional provisions as are meant to protect and
defend and give remedies for their wrongs to all the people."
Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871) (hereinafter
Globe App) Similar views of the Act's broad remedy for violations
of federally protected rights were voiced by its supporters in both
Houses of Congress.
See Monell v. New York City Dept. of Social
Services, 436 U.S. at
436 U. S. 683-687. [
Footnote 17]
Page 445 U. S. 637
However, notwithstanding § 1983's expansive language and the
absence of any express incorporation of common law immunities, we
have, on several occasions, found that a tradition of immunity was
so firmly rooted in the common law and was supported by such strong
policy reasons that "Congress would have specifically so provided
had it wished to abolish the doctrine."
Pierson v. Ray,
386 U. S. 547,
386 U. S. 555
(1967). Thus in
Tenney v. Brandhove, supra, after tracing
the development of an absolute legislative privilege from its
source in 16th-century England to its inclusion in the Federal and
State Constitutions, we concluded that Congress "would [not]
impinge on a tradition so well grounded in history and reason by
covert inclusion in the general language" of § 1983. 341 U.S. at
341 U. S.
376.
Subsequent cases have required that we consider the personal
liability of various other types of government officials. Noting
that
"[f]ew doctrines were more solidly established at common law
than the immunity of judges from liability for damages for acts
committed within their judicial jurisdiction,"
Pierson v. Ray, supra at
386 U. S.
553-554, held that the absolute immunity traditionally
accorded judges was preserved under § 1983. In that same case,
local police officers were held to enjoy a "good faith and probable
cause" defense to § 1983 suits similar to that which existed in
false arrest actions at common law. 386 U.S. at
386 U. S.
555-557. Several more recent decisions have found
immunities of varying scope appropriate for different state and
local officials sued under § 1983.
See Procunier v.
Navarette, 434 U. S. 555
(1978) (qualified immunity
Page 445 U. S. 638
for prison officials and officers);
Imbler v. Pachtman,
424 U. S. 409
(1976) (absolute immunity for prosecutors in initiating and
presenting the State's case);
O'Connor v. Donaldson,
422 U. S. 563
(1975) (qualified immunity for superintendent of state hospital);
Wood v. Strickland, 420 U. S. 308
(1975) (qualified immunity for local school board members);
Scheuer v. Rhodes, 416 U. S. 232
(1974) (qualified "good faith" immunity for state Governor and
other executive officers for discretionary acts performed in the
course of official conduct).
In each of these cases, our finding of § 1983 immunity "was
predicated upon a considered inquiry into the immunity historically
accorded the relevant official at common law and the interests
behind it."
Imbler v. Pachtman, supra at
424 U. S. 421.
Where the immunity claimed by the defendant was well established at
common law at the time § 1983 was enacted, and where its rationale
was compatible with the purposes of the Civil Rights Act, we have
construed the statute to incorporate that immunity. But there is no
tradition of immunity for municipal corporations, and neither
history nor policy supports a construction of § 1983 that would
justify the qualified immunity accorded the city of Independence by
the Court of Appeals. We hold, therefore, that the municipality may
not assert the good faith of its officers or agents as a defense to
liability under § 1983. [
Footnote 18]
A
Since colonial times, a distinct feature of our Nation's system
of governance has been the conferral of political power upon public
and municipal corporations for the management of matters of local
concern. As
Monell recounted, by 1871,
Page 445 U. S. 639
municipalities -- like private corporations -- were treated as
natural persons for virtually all purposes of constitutional and
statutory analysis. In particular, they were routinely sued in both
federal and state courts.
See 436 U.S. at
436 U. S.
687-688.
Cf. 74 U. S. Mercer
County, 7 Wall. 118 (1869). Local governmental units were
regularly held to answer in damages for a wide range of statutory
and constitutional violations, as well as for common law actions
for breach of contract. [
Footnote 19] And although, as we discuss below, [
Footnote 20] a municipality
Page 445 U. S. 640
was not subject to suit for all manner of tortious conduct, it
is clear that, at the time § 1983 was enacted, local governmental
bodies did not enjoy the sort of "good faith" qualified immunity
extended to them by the Court of Appeals.
As a general rule, it was understood that a municipality's tort
liability in damages was identical to that of private corporations
and individuals:
"There is nothing in the character of a municipal corporation
which entitles it to an immunity from liability for such
malfeasances as private corporations or individuals would be liable
for in a civil action. A municipal corporation is liable to the
same extent as an individual for any act done by the express
authority of the corporation, or of a branch of its government,
empowered to act for it upon the subject to which the particular
act relates, and for any act which, after it has been done, has
been lawfully ratified by the corporation."
T. Shearman & A. Redfield, A Treatise on the Law of
Negligence § 120, p. 139 (1869) (hereinafter Shearman &
Redfield).
Accord, 2 Dillon § 764, at 875 ("But as
respects
municipal corporations proper, . . . it is, we
think, universally considered, even in the absence of statute
giving the action, that they are liable for acts of misfeasance
positively injurious to individuals, done by their authorized
agents or officers, in the course of the performance of corporate
powers constitutionally conferred, or in the execution of corporate
duties") (emphasis in original).
See 18 E. McQuillin,
Municipal Corporations § 53.02 (3d rev. ed.1977) (hereinafter
McQuillin). Under this general theory of liability, a municipality
was deemed responsible for any private losses generated through a
wide variety of its operations and functions, from personal
injuries due to its defective sewers, thoroughfares, and public
utilities, to property damage caused by its trespasses and
uncompensated takings. [
Footnote
21]
Page 445 U. S. 641
Yet in the hundreds of cases from that era awarding damages
against municipal governments for wrongs committed by them, one
searches in vain for much mention of a qualified immunity based on
the good faith of municipal officers. Indeed, where the issue was
discussed at all, the courts had rejected the proposition that a
municipality should be privileged where it reasonably believed its
actions to be lawful. In the leading case of
Thayer v.
Boston, 36 Mass. 511, 515-516 (1837), for example, Chief
Justice Shaw explained:
"There is a large class of cases, in which the rights of both
the public and of individuals may be deeply involved, in which it
cannot be known at the time the act is done whether it is lawful or
not. The event of a legal inquiry, in a court of justice, may show
that it was unlawful. Still, if it was not known and understood to
be unlawful at the time, if it was an act done by the officers
having competent authority, either by express vote of the city
government, or by the nature of the duties and functions with which
they are charged, by their offices, to act upon the general subject
matter, and especially if the act was done with an honest view to
obtain for the public some lawful benefit or advantage, reason and
justice obviously require that the city, in its corporate capacity,
should be liable to make good the damage sustained by an
individual, in consequence of the acts thus done."
The
Thayer principle was later reiterated by courts in
several jurisdictions, and numerous decisions awarded damages
against municipalities for violations expressly found to have been
committed in good faith.
See, e.g., Town Council of Akron v.
McComb, 18 Ohio 229, 230-231 (1849);
Horton v. Inhabitants
of Ipswich, 66 Mass. 488, 489, 492 (1853);
Elliot v.
Concord, 27 N.H. 204 (1853);
Hurley v. Town of Texas,
20 Wis. 634, 637-638 (1866);
Lee v. Village of Sandy Hill,
40 N.Y.
Page 445 U. S. 642
442, 448 451 (1869);
Billings v. Worcester, 102 Mass.
329, 332-333 (1869);
Squiers v. Village of Neenah, 24 Wis.
588, 593 (1869);
Hawks v. Charlemont, 10 Mass. 414,
417-418 (1871). [
Footnote
22]
That municipal corporations were commonly held liable for
damages in tort was also recognized by the 42d Congress.
See
Monell v. New York City Dept. of Social Services, 436 U.S. at
436 U. S. 688.
For example, Senator Stevenson, in opposing the Sherman amendment's
creation of a municipal liability for the riotous acts of its
inhabitants, stated the prevailing law:
"Numberless cases are to be found where a statutory liability
has been created against municipal corporations for injuries
resulting from a neglect of corporate duty."
Cong.Globe,
Page 445 U. S. 643
42d Cong., 1st Sess., 762 (hereinafter Globe). [
Footnote 23] Nowhere in the debates,
however, is there a suggestion that the common law excused a city
from liability on account of the good faith of its authorized
agents, much less an indication of a congressional intent to
incorporate such an immunity into the Civil Rights Act. [
Footnote 24] The absence of any
allusion to a municipal immunity assumes added significance in
light of the objections raised by the opponents of § 1 of the Act
that its unqualified language could be interpreted to abolish the
traditional good faith immunities enjoyed by legislators, judges,
governors, sheriffs, and other public officers. [
Footnote 25] Had
Page 445 U. S. 644
there been a similar common law immunity for municipalities, the
bill's opponents doubtless would have raised the specter of its
destruction, as well.
To be sure, there were two doctrines that afforded municipal
corporations some measure of protection from tort liability. The
first sought to distinguish between a municipality's "governmental"
and "proprietary" functions; as to the former, the city was held
immune, whereas, in its exercise of the latter, the city was held
to the same standards of liability as any private corporation. The
second doctrine immunized a municipality for its "discretionary" or
"legislative" activities, but not for those which were
"ministerial" in nature. A brief examination of the application and
the rationale underlying each of these doctrines demonstrates that
Congress could not have intended them to limit a municipality's
liability under § 1983.
The governmental-proprietary distinction [
Footnote 26] owed its existence to the dual
nature of the municipal corporation. On
Page 445 U. S. 645
the one hand, the municipality was a corporate body, capable of
performing the same "proprietary" functions as any private
corporation, and liable for its torts in the same manner and to the
same extent, as well. On the other hand, the municipality was an
arm of the State, and when acting in that "governmental" or
"public" capacity, it shared the immunity traditionally accorded
the sovereign. [
Footnote 27]
But the principle of sovereign immunity -- itself a somewhat arid
fountainhead for municipal immunity [
Footnote 28] -- is necessarily nullified when the
Page 445 U. S. 646
State expressly or impliedly allows itself, or its creation, to
be sued. Municipalities were therefore liable not only for their
"proprietary" acts, but also for those "governmental" functions as
to which the State had withdrawn their immunity. And, by the end of
the 19th century, courts regularly held that in imposing a specific
duty on the municipality either in its charter or by statute, the
State had impliedly withdrawn the city's immunity from liability
for the nonperformance or misperformance of its obligation.
See, e.g., 66 U. S. The
Corporation of Washington, 1 Black 39,
66 U. S. 50-52
(1862);
Providence v.
Clapp, 17 How. 161,
58 U. S.
167-169 (1855).
See generally Shearman &
Redfield §§ 122-126; Note, Liability of Cities for the Negligence
and Other Misconduct of their Officers and Agents, 30 Am.St.Rep.
376, 385 (1893). Thus, despite the nominal existence of an immunity
for "governmental" functions, municipalities were found
Page 445 U. S. 647
liable in damages in a multitude of cases involving such
activities.
That the municipality's common law immunity for "governmental"
functions derives from the principle of sovereign immunity also
explains why that doctrine could not have served as the basis for
the qualified privilege respondent city claims under § 1983. First,
because sovereign immunity insulates the municipality from
unconsented suits altogether, the presence or absence of good faith
is simply irrelevant. The critical issue is whether injury occurred
while the city was exercising governmental, as opposed to
proprietary, powers or obligations -- not whether its agents
reasonably believed they were acting lawfully in so conducting
themselves. [
Footnote 29]
More fundamentally, however, the municipality's "governmental"
immunity is obviously abrogated by the sovereign's enactment of a
statute making it amenable to suit. Section 1983 was just such a
statute. By including municipalities within the class of "persons"
subject to liability for violations of the Federal Constitution and
laws, Congress -- the supreme sovereign on matters of federal law
[
Footnote 30] -- abolished
whatever vestige
Page 445 U. S. 648
of the State's sovereign immunity the municipality
possessed.
The second common law distinction between municipal functions --
that protecting the city from suits challenging "discretionary"
decisions -- was grounded not on the principle of sovereign
immunity, but on a concern for separation of powers. A large part
of the municipality's responsibilities involved broad discretionary
decisions on issues of public policy -- decisions that affected
large numbers of persons and called for a delicate balancing of
competing considerations. For a court or jury, in the guise of a
tort suit, to review the reasonableness of the city's judgment on
these matters would be an infringement upon the powers properly
vested in a coordinate and coequal branch of government.
See
Johnson v. State, 69 Cal. 2d
782, 794, n. 8, 447 P.2d 352, 361, n. 8 (1968) (en banc)
("Immunity for
discretionary' activities serves no purpose
except to assure that courts refuse to pass judgment on policy
decisions in the province of coordinate branches of government").
In order to ensure against any invasion into the legitimate sphere
of the municipality's policymaking processes, courts therefore
refused to entertain suits against the city "either for the
nonexercise of, or for the manner in which in good faith it
exercises, discretionary powers of a public or legislative
character." 2 Dillon § 753, at 862. [Footnote 31]
Although many, if not all, of a municipality's activities would
seem to involve at least some measure of discretion, the influence
of this doctrine on the city's liability was not as significant as
might be expected. For just as the courts
Page 445 U. S. 649
implied an exception to the municipality's immunity for its
"governmental" functions, here, too, a distinction was made that
had the effect of subjecting the city to liability for much of its
tortious conduct. While the city retained its immunity for
decisions as to whether the public interest required acting in one
manner or another, once any particular decision was made, the city
was fully liable for any injuries incurred in the execution of its
judgment.
See, e.g., Hill v. Boston, 122 Mass. 344,
358-359 (1877) (dicta) (municipality would be immune from liability
for damages resulting from its decision where to construct sewers,
since that involved a discretionary judgment as to the general
public interest; but city would be liable for neglect in the
construction or repair of any particular sewer, as such activity is
ministerial in nature).
See generally C. Rhyne, Municipal
Law § 30.4, pp. 736-737 (1957); Williams § 7. Thus municipalities
remained liable in damages for a broad range of conduct
implementing their discretionary decisions.
Once again, an understanding of the rationale underlying the
common law immunity for "discretionary" functions explains why that
doctrine cannot serve as the foundation for a good faith immunity
under § 1983. That common law doctrine merely prevented courts from
substituting their own judgment on matters within the lawful
discretion of the municipality. But a municipality has no
"discretion" to violate the Federal Constitution; its dictates are
absolute and imperative. And when a court passes judgment on the
municipality's conduct in a § 1983 action, it does not seek to
second-guess the "reasonableness" of the city's decision nor to
interfere with the local government's resolution of competing
policy considerations. Rather, it looks only to whether the
municipality has conformed to the requirements of the Federal
Constitution and statutes. As was stated in
Sterling v.
Constantin, 287 U. S. 378,
287 U. S. 398
(1932):
"When there is a substantial showing that the exertion of state
power has
Page 445 U. S. 650
overridden private rights secured by that Constitution, the
subject is necessarily one for judicial inquiry in an appropriate
proceeding directed against the individuals charged with the
transgression."
In sum, we can discern no "tradition so well grounded in history
and reason" that would warrant the conclusion that, in enacting § 1
of the Civil Rights Act, the 42d Congress
sub silentio
extended to municipalities a qualified immunity based on the good
faith of their officers. Absent any clearer indication that
Congress intended so to limit the reach of a statute expressly
designed to provide a "broad remedy for violations of federally
protected civil rights,"
Monell v. New York City Dept. of
Social Services, 436 U.S. at
436 U. S. 685,
we are unwilling to suppose that injuries occasioned by a
municipality's unconstitutional conduct were not also meant to be
fully redressable through its sweep. [
Footnote 32]
B
Our rejection of a construction of § 1983 that would accord
municipalities a qualified immunity for their good faith
constitutional violations is compelled both by the legislative
purpose in enacting the statute and by considerations of public
policy. The central aim of the Civil Rights Act was to provide
protection to those persons wronged by the "
[m]isuse of power,
possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.'" Monroe
v. Pape, 365 U.S. at 365 U. S. 184
(quoting United States v. Classic, 313 U.
S. 299, 313 U. S. 326
(1941)). By creating an express federal remedy, Congress sought
to
"enforce provisions of the Fourteenth Amendment against
those
Page 445 U. S. 651
who carry a badge of authority of a State and represent it in
some capacity, whether they act in accordance with their authority
or misuse it."
Monroe v. Pape, supra at
365 U. S.
172.
How "uniquely amiss" it would be, therefore, if the government
itself --
"the social organ to which all in our society look for the
promotion of liberty, justice, fair and equal treatment, and the
setting of worthy norms and goals for social conduct"
-- were permitted to disavow liability for the injury it has
begotten.
See Adickes v. Kress & Co., 398 U.
S. 144,
398 U. S. 190
(1970) (opinion of BRENNAN, J.). A damages remedy against the
offending party is a vital component of any scheme for vindicating
cherished constitutional guarantees, and the importance of assuring
its efficacy is only accentuated when the wrongdoer is the
institution that has been established to protect the very rights it
has transgressed. Yet owing to the qualified immunity enjoyed by
most government officials,
see Scheuer v. Rhodes,
416 U. S. 232
(1974), many victims of municipal malfeasance would be left
remediless if the city were also allowed to assert a good faith
defense. Unless countervailing considerations counsel otherwise,
the injustice of such a result should not be tolerated. [
Footnote 33]
Moreover, § 1983 was intended not only to provide compensation
to the victims of past abuses, but to serve as a deterrent against
future constitutional deprivations, as well.
See Robertson v.
Wegmann, 436 U. S. 584,
436 U. S.
590-591 (1978);
Carey v. Piphus, 435 U.
S. 247,
435 U. S.
256-257 (1978). The knowledge that a municipality will
be liable for all of its injurious conduct, whether committed in
good faith or not, should create
Page 445 U. S. 652
an incentive for officials who may harbor doubts about the
lawfulness of their intended actions to err on the side of
protecting citizens' constitutional rights. [
Footnote 34] Furthermore, the threat that
damages might be levied against the city may encourage those in a
policymaking position to institute internal rules and programs
designed to minimize the likelihood of unintentional infringements
on constitutional right. [
Footnote 35] Such procedures are particularly beneficial
in preventing those "systemic" injuries that result not so much
from the conduct of any single individual, but from the interactive
behavior of several government officials, each of whom may be
acting in good faith.
Cf. Note, Developments in the Law:
Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1218-1219 (1977).
[
Footnote 36]
Our previous decisions conferring qualified immunities on
various government officials,
see supra at
445 U. S.
637-638, are not to
Page 445 U. S. 653
be read as derogating the significance of the societal interest
in compensating the innocent victims of governmental misconduct.
Rather, in each case, we concluded that overriding considerations
of public policy nonetheless demanded that the official be given a
measure of protection from personal liability. The concerns that
justified those decisions, however, are less compelling, if not
wholly inapplicable, when the liability of the municipal entity is
at issue. [
Footnote 37]
Page 445 U. S. 654
In
Scheuer v. Rhodes, supra at
416 U. S. 240,
THE CHIEF JUSTICE identified the two "mutually dependent
rationales" on which the doctrine of official immunity rested:
"(1) the injustice, particularly in the absence of bad faith, of
subjecting to liability an officer who is required, by the legal
obligations of his position, to exercise discretion; (2) the danger
that the threat of such liability would deter his willingness to
execute his office with the decisiveness and the judgment required
by the public good. [
Footnote
38]"
The first consideration is simply not implicated when the
damages award comes not from the official's pocket, but from the
public treasury. It hardly seems unjust to require a municipal
defendant which has violated a citizen's constitutional rights to
compensate him for the injury suffered thereby. Indeed, Congress
enacted § 1983 precisely to provide a remedy for such abuses of
official power.
See Monroe v. Pape, 365 U.S. at
365 U. S.
171-172. Elemental notions of fairness dictate that one
who causes a loss should bear the loss.
It has been argued, however, that revenue raised by taxation for
public use should not be diverted to the benefit of a single or
discrete group of taxpayers, particularly where the municipality
has at all times acted in good faith. On the contrary, the accepted
view is that stated in
Thayer v. Boston --
"that the city, in its corporate capacity, should be liable to
make good the damage sustained by an [unlucky] individual,
Page 445 U. S. 655
in consequence of the acts thus done."
36 Mass. at 15. After all, it is the public at large which
enjoys the benefits of the government's activities, and it is the
public at large which is ultimately responsible for its
administration. Thus, even where some constitutional development
could not have been foreseen by municipal officials, it is fairer
to allocate any resulting financial loss to the inevitable costs of
government borne by all the taxpayers than to allow its impact to
be felt solely by those whose rights, albeit newly recognized, have
been violated.
See generally 3 K. Davis, Administrative
Law Treatise § 25.17 (1958 and Supp. 1970); Prosser § 131, at 978;
Michelman, Property Utility, and Fairness: Some Thoughts on the
Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165
(1967). [
Footnote 39]
The second rationale mentioned in
Scheuer also loses
its force when it is the municipality, in contrast to the official,
whose liability is at issue. At the heart of this justification for
a qualified immunity for the individual official is the concern
that the threat of personal monetary liability will introduce an
unwarranted and unconscionable consideration into the
decisionmaking process, thus paralyzing the governing official's
decisiveness and distorting his judgment on matters
Page 445 U. S. 656
of public policy. [
Footnote
40] The inhibiting effect is significantly reduced, if not
eliminated, however, when the threat of personal liability is
removed. First, as an empirical matter, it is questionable whether
the hazard of municipal loss will deter a public officer from the
conscientious exercise of his duties; city officials routinely make
decisions that either require a large expenditure of municipal
funds or involve a substantial risk of depleting the public fisc.
See Kostka v. Hogg, 560 F.2d 37, 41 (CA1 1977). More
important, though, is the realization that consideration of the
municipality's liability for constitutional violations is quite
properly the concern of its elected or appointed officials. Indeed,
a decisionmaker would be derelict in his duties if, at some point,
he did not consider whether his decision comports with
constitutional mandates, and did not weigh the risk that a
violation might result in an award of damages from the public
treasury. As one commentator aptly put it:
"Whatever other concerns should shape a particular official's
actions, certainly one of them should be the constitutional rights
of individuals who will be affected by his actions. To criticize
section 1983 liability because it leads decisionmakers to avoid the
infringement of constitutional rights is to criticize one of the
statute's
raisons d'etre. [
Footnote 41] "
Page 445 U. S. 657
IV
In sum, our decision holding that municipalities have no
immunity from damages liability flowing from their constitutional
violations harmonizes well with developments in the common law and
our own pronouncements on official immunities under § 1983.
Doctrines of tort law have changed significantly over the past
century, and our notions of governmental responsibility should
properly reflect that evolution. No longer is individual
"blameworthiness" the acid test of liability; the principle of
equitable loss-spreading has joined fault as a factor in
distributing the costs of official misconduct.
We believe that today's decision, together with prior precedents
in this area, properly allocates these costs among the three
principals in the scenario of the § 1983 cause of action: the
victim of the constitutional deprivation; the officer whose conduct
caused the injury; and the public, as represented by the municipal
entity. The innocent individual who is harmed by an abuse of
governmental authority is assured that he will be compensated for
his injury. The offending official, so long as he conducts himself
in good faith, may go about his business secure in the knowledge
that a qualified immunity will protect him from personal liability
for damages that are more appropriately chargeable to the populace
as a whole. And the public will be forced to bear only the costs of
injury inflicted by the
"execution of a government's policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be said
to represent official policy. "
Page 445 U. S. 658
Monell v. New York City Dept. of Social Services, 436
U.S. at
436 U. S.
694.
Reversed.
[
Footnote 1]
Title 42 U.S.C. § 1983 provides:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."
[
Footnote 2]
Under § 3.3(1) of the city's charter, the City Manager has sole
authority to
"[a]ppoint, and when deemed necessary for the good of the
service lay off, suspend, demote, or remove all directors, or
heads, of administrative departments and all other administrative
officers and employees of the city. . . ."
[
Footnote 3]
Alberg returned from his vacation on the morning of April 17,
and immediately met informally with four members of the City
Council. Although the investigation of the Police Department was
discussed, and although Alberg testified that he had found a
replacement for petitioner by that time, he did not inform the
Council members of his intention to discharge petitioner.
[
Footnote 4]
The letter, dated April 15, 1972, stated in part:
"My counsel . . . have advised me that even though the City
Charter may give you authority to relieve me, they also say you
cannot do so without granting me my constitutional rights of due
process, which includes a written charge and specifications,
together with a right to a public hearing and to be represented by
counsel and to cross-examine those who may appear against me."
"
* * * *"
"In spite of your recent investigation and your public statement
given to the public press, your relief and discharge of me without
a full public hearing upon written charges will leave in the minds
of the public and those who might desire to have my services, a
stigma of personal wrongdoing on my part."
"Such action by you would be in violation of my civil rights as
granted by the Constitution and Congress of the United States, and
you would be liable in damages to me. Further it would be in
violation of the Missouri Administrative Procedure Act."
"May I have an expression from you that you do not intend to
relieve me or in the alternative give me a written charge and
specifications of your basis for your grounds of intention to
relieve me and to grant me a public hearing with a reasonable
opportunity to respond to the charge and a right to be represented
by counsel."
City Manager Alberg stated that he did not receive the letter
until after petitioner's discharge.
[
Footnote 5]
Roberts' statement, which is reproduced in full in
421 F.
Supp. 1110, 1116, n. 2 (1976), in part recited:
"On April 2, 1972, the City Council was notified of the
existence of an investigative report concerning the activities of
the Chief of Police of the City of Independence, certain police
officers and activities of one or more other City officials. On
Saturday, April 15th, for the first time, I was able to see these
27 voluminous reports. The contents of these reports are
astoundingly shocking and virtually unbelievable. They deal with
the disappearance of 2 or more television sets from the police
department and signed statement that they were taken by the Chief
of Police for his own personal use."
"The reports show that numerous firearms properly in the police
department custody found their way into the hands of others,
including undesirables, and were later found by other law
enforcement agencies."
"Reports whow [
sic] that narcotics held by the
Independence Missouri Chief of Police have mysteriously
disappeared. Reports also indicate money has mysteriously
disappeared. Reports show that traffic tickets have been
manipulated. The reports show inappropriate requests affecting the
police court have come from high ranking police officials. Reports
indicate that things have occurred causing the unusual release of
felons. The reports show gross inefficiencies on the part of a few
of the high ranking officers of the police department."
"In view of the contents of these reports, I feel that the
information in the reports backed up by signed statements taken by
investigators is so bad that the council should immediately make
available to the news media access to copies of all of these 27
voluminous investigative reports so the public can be told what has
been going on in Independence. I further believe that copies of
these reports should be turned over and referred to the prosecuting
attorney of Jackson County, Missouri for consideration and
presentation to the next Grand Jury. I further insist that the City
Manager immediately take direct and appropriate action, permitted
under the Charter, against such persons as are shown by the
investigation to have been involved."
[
Footnote 6]
Ironically, the official minutes of the City Council meeting
indicate that concern was expressed by some members about possible
adverse legal consequences that could flow from their release of
the reports to the media. The City Counselor assured the Council
that, although an action might be maintained against any witnesses
who made unfounded accusations,
"the City does have governmental immunity in this area . . . ,
and neither the Council nor the City as a municipal corporation can
be held liable for libelous slander."
App. 20-23.
[
Footnote 7]
See n 2,
supra.
[
Footnote 8]
The investigation and its culmination in petitioner's firing
received front-page attention in the local press.
See,
e.g., "Lid Off Probe, Council Seeks Action," Independence
Examiner, Apr. 18, 1972, Tr. 225; "Independence Accusation. Police
Probe Demanded," Kansas City Times, Apr. 18, 1972, Tr. 25; "Probe
Culminates in Chief's Dismissal," Independence Examiner, Apr.19,
1972, Tr. 26; "Police Probe Continues; Chief Ousted," Community
Observer, Apr. 20, 1972, Tr. 26.
[
Footnote 9]
Petitioner did not join former Councilman Roberts in the instant
litigation. A separate action seeking defamation damages was
brought in state court against Roberts and Alberg in their
individual capacities. Petitioner dismissed the state suit against
Alberg and reached a financial settlement with Roberts.
See 560 F.2d 925, 930 (CA8 1977).
[
Footnote 10]
The District Court, relying on
Monroe v. Pape,
365 U. S. 167
(1961), and
City of Kenosha v. Bruno, 412 U.
S. 507 (1973), held that § 1983 did not create a cause
of action against the city, but that petitioner could base his
claim for relief directly on the Fourteenth Amendment. On the
merits, however, the court determined that petitioner's discharge
did not deprive him of any constitutionally protected property
interest because, as an untenured employee, he possessed neither a
contractual nor a
de facto right to continued employment
as Chief of Police. Similarly, the court found that the
circumstances of petitioner's dismissal did not impose a stigma of
illegal or immoral conduct on his professional reputation, and
hence did not deprive him of any liberty interest.
The District Court offered three reasons to support its
conclusion: first, because the actual discharge notice stated only
that petitioner was "[t]erminated under the provisions of Section
3.3(1) of the City Charter," nothing in his official record imputed
any stigmatizing conduct to him. Second, the court found that the
City Council's actions had no causal connection to petitioner's
discharge, for City Manager Alberg had apparently made his decision
to hire a new Police Chief before the Council's April 17th meeting.
Lastly, the District Court determined that petitioner was
"completely exonerated" from any charges of illegal or immoral
conduct by the City Counselor's investigative report, Alberg's
public statements, and the grand jury's return of a "no true bill."
421 F. Supp. at 1121-1122.
As an alternative ground for denying relief, the District Court
ruled that the city was entitled to assert, and had in fact
established, a qualified immunity against liability based on the
good faith of the individual defendants who acted as its
agents:
"[D]efendants have clearly shown by a preponderance of the
evidence that neither they nor their predecessors were aware in
April, 1972, that, under the circumstances, the Fourteenth
Amendment accorded plaintiff the procedural rights of notice and a
hearing at the time of his discharge. Defendants have further
proven that they cannot reasonably be charged with constructive
notice of such rights, since plaintiff was discharged prior to the
publication of the Supreme Court decisions in
Roth v. Board of
Regents, [
408 U.S.
564 (1972)], and
Perry v. Sindermann,
[
408 U.S.
593 (1972)]."
Id. at 1123.
[
Footnote 11]
Both parties had appealed from the District Court's decision. On
respondents' challenge to the court's assumption of subject matter
jurisdiction under 28 U.S.C. § 1331, the Court of Appeals held that
the city was subject to suit for reinstatement and backpay under an
implied right of action arising directly from the Fourteenth
Amendment. 560 F.2d at 932-934.
See Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388
(1971). Because the Court of Appeals concluded that petitioner's
claim could rest directly on the Fourteenth Amendment, it saw no
need to decide whether he could recover backpay under § 1983 from
the individual defendants in their official capacities as part of
general equitable relief, even though the award would be paid by
the city. 560 F.2d at 932.
[
Footnote 12]
As compensation for the denial of his constitutional rights, the
Court of Appeals awarded petitioner damages in lieu of backpay. The
court explained that petitioner's termination without a hearing
must be considered a nullity, and that, ordinarily, he ought to
remain on the payroll and receive wages until a hearing is held and
a proper determination on his retention is made. But, because
petitioner had reached the mandatory retirement age during the
course of the litigation, he could not be reinstated to his former
position. Thus, the compensatory award was to be measured by the
amount of money petitioner would likely have earned to retirement
had he not been deprived of his good name by the city's actions,
subject to mitigation by the amounts actually earned, as well as by
the recovery from Councilman Roberts in the state defamation
suit.
The Court of Appeals rejected the municipality's assertion of a
good faith defense, relying upon a footnote in
Wood v.
Strickland, 420 U. S. 308,
420 U. S.
314-315, n. 6 (1975) ("immunity from damages does not
ordinarily bar equitable relief as well"), and two of its own
precedents awarding backpay in § 1983 actions against school
boards.
See Wellner v. Minnesota State Jr. College Bd.,
487 F.2d 153 (CA8 1973);
Cooley v. Board of Educ. of Forrest
City School Dist., 453 F.2d 282 (CA8 1972). The court
concluded that the primary justification for a qualified immunity
-- the fear that public officials might hesitate to discharge their
duties if faced with the prospect of personal monetary liability --
simply did not exist where the relief would be borne by a
governmental unit, rather than the individual officeholder. In
addition, the Court of Appeals seemed to take issue with the
District Court's finding of good faith on the part of the City
Council:
"The city officials may have acted in good faith in refusing the
hearing, but lack of good faith is evidenced by the nature of the
unfair attack made upon the appellant by Roberts in the official
conduct of the City's business. The District Court did not address
the good faith defense in light of Roberts' defamatory
remarks."
560 F.2d at 941.
[
Footnote 13]
Although respondents did not cross-petition on this issue, they
have raised a belated challenge to the Court of Appeals' ruling
that petitioner was deprived of a protected "liberty" interest.
See Brief for Respondents 45-46. We find no merit in their
contention, however, and decline to disturb the determination of
the court below.
Wisconsin v. Constantineau, 400 U.
S. 433,
400 U. S. 437
(1971), held that,
"[w]here a person's good name, reputation, honor, or integrity
is at stake because of what the government is doing to him, notice
and an opportunity to be heard are essential."
In
Board of Regents v. Roth, 408 U.
S. 564,
408 U. S. 573
(1972), we explained that the dismissal of a government employee
accompanied by a "charge against him that might seriously damage
his standing and associations in his community" would qualify as
something "the government is doing to him," so as to trigger the
due process right to a hearing at which the employee could refute
the charges and publicly clear his name. In the present case, the
city -- through the unanimous resolution of the City Council --
released to the public an allegedly false statement impugning
petitioner's honesty and integrity. Petitioner was discharged the
next day. The Council's accusations received extensive coverage in
the press, and even if they did not in point of fact "cause"
petitioner's discharge, the defamatory and stigmatizing charges
certainly "occur[red] in the course of the termination of
employment."
Cf. Paul v. Davis, 424 U.
S. 693,
424 U. S. 710
(1976). Yet the city twice refused petitioner's request that he be
given written specification of the charges against him and an
opportunity to clear his name. Under the circumstances, we have no
doubt that the Court of Appeals correctly concluded that the city's
actions deprived petitioner of liberty without due process of
law.
[
Footnote 14]
Cf. Wood v. Strickland, 420 U.
S. 308,
420 U. S. 322
(1975) ("Therefore, in the specific context of school discipline,
we hold that a school board member is not immune from liability for
damages under § 1983 if he knew or reasonably should have known
that the action he took within his sphere of official
responsibility would violate the constitutional rights of the
student affected, or if he took the action with the malicious
intention to cause a deprivation of constitutional rights or other
injury to the student").
[
Footnote 15]
The Courts of Appeals are divided on the question whether local
governmental units are entitled to a qualified immunity based on
the good faith of their officials.
Compare Bertot v. School
Dist. No. 1, 613 F.2d 245 (CA10 1979) (en banc),
Hostrop
v. Board of Junior College Dist. No. 515, 523 F.2d 560 (CA7
1975), and
Hander v. San Jacinto Jr. College, 519 F.2d 273
(CA5),
rehearing denied, 522 F.2d 204 (1975), all refusing
to extend a qualified immunity to the governmental entity,
with
Paxman v. Campbell, 612 F.2d 848 (CA4 1980) (en banc),
and
Sala v. County of Suffolk, 604 F.2d 207 (CA2 1979), granting
defendants a "good faith" immunity.
[
Footnote 16]
See n 1,
supra.
[
Footnote 17]
As we noted in
Monell v. New York City Dept. of Social
Services, see 436 U.S. at
436 U. S.
685-686, n. 45, even the opponents of § 1 acknowledged
that its language conferred upon the federal courts the entire
power that Congress possessed to remedy constitutional violations.
The remarks of Senator Thurman are illustrative:
"[This section's] 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. . . ."
"
* * * *"
". . . That is the language of this bill. Whether it is the
intent or not, I know not, but it is the language of the bill; for
there is no limitation whatsoever upon the terms that are employed,
and they are as comprehensive as can be used."
Globe App. 216-217.
[
Footnote 18]
The governmental immunity at issue in the present case differs
significantly from the official immunities involved in our previous
decisions. In those cases, various government officers had been
sued in their individual capacities, and the immunity served to
insulate them from personal liability for damages. Here, in
contrast, only the liability of the municipality itself is at
issue, not that of its officers, and in the absence of an immunity,
any recovery would come from public funds.
[
Footnote 19]
Primary among the constitutional suits heard in federal court
were those based on a municipality's violation of the Contract
Clause, and the courts' enforcement efforts often 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."
Monell v. New York City Dept. of Social Services, 436
U.S. at
436 U. S. 681.
Damages actions against municipalities for federal statutory
violations were also entertained.
See, e.g., 69 U.
S. Coroner, 2 Wall. 501 (1865);
Corporation of New York v.
Ransom, 23 How. 487 (1860);
Bliss v.
Brooklyn, 3 F. Cas. 706 (No. 1,544) (CC EDNY 1871). In
addition, state constitutions and statutes, as well as municipal
charters, imposed many obligations upon the local governments, the
violation of which typically gave rise to damages actions against
the city.
See generally Note, Streets, Change of Grade,
Liability of Cities for, 30 Am.St.Rep. 835 (1893), and cases cited
therein. With respect to authorized contracts -- and even
unauthorized contracts that are later ratified by the corporation
-- municipalities were liable in the same manner as individuals for
their breaches.
See generally 1 J. Dillon, Law of
Municipal Corporations §§ 385, 394 (2d ed. 1873) (hereinafter
Dillon). Of particular relevance to the instant case, included
within the class of contract actions brought against a city were
those for the wrongful discharge of a municipal employee, and where
the claim was adjudged meritorious, damages in the nature of
backpay were regularly awarded.
See, e.g., Richardson v. School
Dist. No. 10, 38 Vt. 602 (1866);
Paul v. School Dist. No.
2, 28 Vt. 575 (1856);
Inhabitants of Searsmont v.
Farwell, 3 Me. *450 (1825);
see generally F. Burke, A
Treatise on the Law of Public Schools 815 (1880). The most
frequently litigated "breach of contract" suits, however, at least
in federal court, were those for failure to pay interest on
municipal bonds.
See, e.g, 76 U. S.
Durant, 9 Wall. 415 (1870);
Commissioners of Knox County
v. Aspinwall, 21 How. 539 (1869).
[
Footnote 20]
See infra at
445 U. S.
644-650.
[
Footnote 21]
See generally C. Rhyne, Municipal Law 729-789 (1957);
Shearman & Redfield §§ 143-152; W. Williams, Liability of
Municipal Corporations for Tort (1901) (hereinafter Williams).
[
Footnote 22]
Accord, Bunker v. City of Hudson, 122 Wis. 43, 54, 99
N.W. 448, 452 (1904);
Oklahoma City v. Hill
Bros., 6 Okla. 114,
137-139, 50 P. 242, 249-250 (1897);
Schussler v. Board of
Comm'rs of Hennepin County, 67 Minn. 412, 417, 70 N.W. 6, 7
(1897);
McGraw v. Town of Marion, 98 Ky. 673, 680-683, 34
S.W. 18, 20-21 (1896).
See generally Note, Liability of
Cities for the Negligence and Other Misconduct of their Officers
and Agents, 30 Am.St.Rep. 376, 405-411 (1893).
Even in England, where the doctrine of official immunity
followed by the American courts was first established, no immunity
was granted where the damages award was to come from the public
treasury. As Baron Bramwell stated in
Ruck v. Williams, 3
H. & N. 308, 320, 157 Eng.Rep. 488, 493 (Exch. 1858):
"I can well understand if a person undertakes the office or duty
of a Commissioner, and there are no means of indemnifying him
against the consequences of a slip, it is reasonable to hold that
he should not be responsible for it. I can also understand that, if
one of several Commissioners does something not within the scope of
his authority, the Commissioners as a body are not liable. But
where Commissioners, who are a quasi corporate body, are not
affected [
i.e., personally] by the result of an action,
inasmuch as they are authorized by act of parliament to raise a
fund for payment of the damages, on what principle is it that, if
an individual member of the public suffers from an act bona fide
but erroneously done, he is not to be compensated? It seems to me
inconsistent with actual justice, and not warranted by any
principle of law."
See generally Shearman & Redfield §§ 133, 178.
[
Footnote 23]
Senator Stevenson proceeded to read from the decision in
Prather v. Lexington, 52 Ky. 559, 56562 (1852):
"Where a particular act, operating injuriously to an individual,
is authorized by a municipal corporation, by a delegation of power
either general or special, it will be liable for the injury in its
corporate capacity, where the acts done would warrant a like action
against an individual. But, as a general rule, a corporation is not
responsible for the unauthorized and unlawful acts of its officers,
although done under the color of their office; to render it liable
it must appear that it expressly authorized the acts to be done by
them, or that they were done in pursuance of a general authority to
act for the corporation, on the subject to which they relate.
(
Thayer v. Boston, 19 Pick., 511.) It has also been held
that cities are responsible to the same extent, and in the same
manner, as natural persons for injuries occasioned by the
negligence or unskillfulness of their agents in the construction of
works for their benefit."
Globe 762.
[
Footnote 24]
At one point in the debates, Senator Stevenson did protest that
the Sherman amendment would, for the first time, "create a
corporate liability for personal injury which no prudence or
foresight could have prevented."
Ibid. As his later
remarks made clear, however, Stevenson's objection went only to the
novelty of the amendment's creation of vicarious municipal
liability for the unlawful acts of private individuals, "even if a
municipality did not know of an impending or ensuing riot or did
not have the wherewithal to do anything about it."
Monell v.
New York City Dept. of Social Services, 436 U.S. at
436 U. S.
692-693, n. 57.
[
Footnote 25]
See, e.g., Globe 365 (remarks of Rep. Arthur) ("But if
the Legislature enacts a law, if the Governor enforces it, if the
judge upon the bench renders a judgment, if the sheriff levy an
execution, execute a writ, serve a summons, or make an arrest, all
acting under a solemn, official oath, though as pure in duty as a
saint and as immaculate as a seraph, for a mere error in judgment,
they are liable. . .");
id. at 385 (remarks of Rep.
Lewis); Globe App. 217 (remarks of Sen. Thurman).
[
Footnote 26]
In actuality, the distinction between a municipality's
governmental and proprietary functions is better characterized not
as a line, but as a succession of points. In efforts to avoid the
often-harsh results occasioned by a literal application of the
test, courts frequently created highly artificial and elusive
distinctions of their own. The result was that the very same
activity might be considered "governmental" in one jurisdiction and
"proprietary" in another.
See 18 McQuillin § 53.02, at
105.
See also W. Prosser, Law of Torts § 131, p. 979 (4th
ed.1971) (hereinafter Prosser). As this Court stated, in reference
to the "
nongovernmental'-`governmental' quagmire that has long
plagued the law of municipal corporations":
"A comparative study of the cases in the forty-eight States will
disclose an irreconcilable conflict. More than that, the decisions
in each of the States are disharmonious, and disclose the
inevitable chaos when courts try to apply a rule of law that is
inherently unsound."
Indian Towing Co. v. United States, 350 U. S.
61,
350 U. S. 65
(1955) (on rehearing).
[
Footnote 27]
"While acting in their governmental capacity, municipal
corporations proper are given the benefit of that same rule which
is applied to the sovereign power itself, and are afforded complete
immunity from civil responsibility for acts done or omitted, unless
such responsibility is expressly created by statute. When, however,
they are not acting in the exercise of their purely governmental
functions, but are performing duties that pertain to the exercise
of those private franchises, powers, and privileges which belong to
them for their own corporate benefit, or are dealing with property
held by them for their own corporate gain or emolument, then a
different rule of liability is applied, and they are generally held
responsible for injuries arising from their negligent acts or their
omissions to the same extent as a private corporation under like
circumstances."
Williams § 4, at 9.
See generally 18 McQuillin §§
53.02, 53.04, 53.24; Prosser § 131, at 977-983; James, Tort
Liability of Governmental Units and Their Officers, 22 U.Chi.L.Rev.
610, 611-612, 622-629 (1955).
[
Footnote 28]
Although it has never been understood how the doctrine of
sovereign immunity came to be adopted in the American democracy, it
apparently stems from the personal immunity of the English Monarch
as expressed in the maxim, "The King can do no wrong." It has been
suggested, however, that the meaning traditionally ascribed to this
phrase is an ironic perversion of its original intent:
"The maxim merely meant that the King was not privileged to do
wrong. If his acts were against the law, they were
injuriae (wrongs). Bracton, while ambiguous in his several
statements as to the relation between the King and the law, did not
intend to convey the idea that he was incapable of committing a
legal wrong."
Borchard, Government Liability in Tort, 34 Yale L.J. 1, 2, n. 2
(1924).
See also Kates & Kouba, Liability of Public
Entities Under Section 1983 of the Civil Rights Act, 45
S.Cal.L.Rev. 131, 142 (1972).
In this country,
"[t]he sovereign or governmental immunity doctrine, holding that
the state, its subdivisions and municipal entities, may not be held
liable for tortious acts, was never completely accepted by the
courts, its underlying principle being deemed contrary to the basic
concept of the law of torts that liability follows negligence, as
well as foreign to the spirit of the constitutional guarantee that
every person is entitled to a legal remedy for injuries he may
receive in his person or property. As a result, the trend of
judicial decisions was always to restrict, rather than to expand,
the doctrine of municipal immunity."
18 McQuillin § 53.02, at 104 (footnotes omitted).
See
also Prosser § 131, at 984 ("For well over a century, the
immunity of both the state and the local governments for their
torts has been subjected to vigorous criticism, which, at length,
has begun to have its effect"). The seminal opinion of the Florida
Supreme Court in
Hargrove v. Town of Cocoa
Beach, 96 So. 2d
130 (1957), has spawned "a minor avalanche of decisions
repudiating municipal immunity," Prosser § 131, at 985, which, in
conjunction with legislative abrogation of sovereign immunity, has
resulted in the consequence that only a handful of States still
cling to the old common law rule of immunity for governmental
functions.
See K. Davis, Administrative Law of the
Seventies § 25.00 (1976 and Supp. 1977) (only two States adhere to
the traditional common law immunity from torts in the exercise of
governmental functions); Harley & Wasinger, Government
Immunity: Despotic Mantle or Creature of Necessity, 16 Washburn
L.J. 12, 34-53 (1976).
[
Footnote 29]
The common law immunity for governmental functions is thus more
comparable to an absolute immunity from liability for conduct of a
certain character, which defeats a suit at the outset, than to a
qualified immunity, which "depends upon the circumstances and
motivations of [the official's] actions, as established by the
evidence at trial."
Imbler v. Pachtman, 424 U.
S. 409,
424 U. S. 419,
n. 13 (1976).
[
Footnote 30]
Municipal defenses -- including an assertion of sovereign
immunity -- to a federal right of action are, of course, controlled
by federal law.
See Fitzpatrick v. Bitzer, 427 U.
S. 445,
427 U. S.
455-456 (1976);
Hampton v. Chicago, 484 F.2d
602, 607 (CA7 1973) (Stevens, J.) ("Conduct by persons acting under
color of state law which is wrongful under 42 U.S.C. § 1983 or §
1985(3) cannot be immunized by state law. A construction of the
federal statute which permitted a state immunity defense to have
controlling effect would transmute a basic guarantee into an
illusory promise; and the supremacy clause of the Constitution
insures that the proper construction may be enforced").
[
Footnote 31]
See generally 18 McQuillin § 53.04a; Shearman &
Redfield §§ 127-130; Williams § 6, at 15-16. Like the
governmental/proprietary distinction, a clear line between the
municipality's "discretionary" and "ministerial" functions was
often hard to discern, a difficulty which has been mirrored in the
federal courts' attempts to draw a similar distinction under the
Federal Tort Claims Act, 28 U.S.C. § 2680(a).
See
generally 3 K. Davis, Administrative Law Treatise § 25.08
(1958 and Supp. 1970).
[
Footnote 32]
Cf. P. Bator, P. Mishkin, D. Shapiro, & H.
Wechsler, Hart and Wechsler's The Federal Courts and the Federal
System 336 (2d ed.1973) ("[W]here constitutional rights are at
stake the courts are properly astute, in construing statutes, to
avoid the conclusion that Congress intended to use the privilege of
immunity . . . in order to defeat them").
[
Footnote 33]
The absence of any damages remedy for violations of all but the
most "clearly established" constitutional rights,
see Wood v.
Strickland, 420 U.S. at
420 U. S. 322,
could also have the deleterious effect of freezing constitutional
law in its current state of development, for without a meaningful
remedy, aggrieved individuals will have little incentive to seek
vindication of those constitutional deprivations that have not
previously been clearly defined.
[
Footnote 34]
For example, given the discussion that preceded the Independence
City Council's adoption of the allegedly slanderous resolution
impugning petitioner's integrity,
see n 6,
supra, one must wonder whether this
entire litigation would have been necessary had the Council members
thought that the city might be liable for their misconduct.
[
Footnote 35]
Cf. Albemarle Paper Co. v. Moody, 422 U.
S. 405,
422 U. S.
417-418 (1975):
"If employers faced only the prospect of an injunctive order,
they would have little incentive to shun practices of dubious
legality. It is the reasonably certain prospect of a backpay award
that"
"provide[s] the spur or catalyst which causes employers and
unions to self-examine and to self-evaluate their employment
practices and to endeavor to eliminate, so far as possible, the
last vestiges of an unfortunate and ignominious page in this
country's history."
"
United States v. N. L. Industries, Inc., 479 F.2d 354,
379 (CA8 1973)."
[
Footnote 36]
In addition, the threat of liability against the city ought to
increase the attentiveness with which officials at the higher
levels of government supervise the conduct of their subordinates.
The need to institute systemwide measures in order to increase the
vigilance with which otherwise indifferent municipal officials
protect citizens' constitutional rights is, of course, particularly
acute where the frontline officers are judgment-proof in their
individual capacities.
[
Footnote 37]
On at least two previous occasions, this Court has expressly
recognized that different considerations come into play when
governmental, rather than personal, liability is threatened.
Hutto v. Finney, 437 U. S. 678
(1978), affirmed an award of attorney's fees out of state funds for
a deprivation of constitutional rights, holding that such an
assessment would not contravene the Eleventh Amendment. In response
to the suggestion, adopted by the dissent, that any award should be
borne by the government officials personally, the Court noted that
such an allocation would not only be "manifestly unfair," but
would
"def[y] this Court's insistence in a related context that
imposing personal liability in the absence of bad faith may cause
state officers to 'exercise their discretion with undue timidity.'
Wood v. Strickland, 420 U. S. 308,
420 U. S.
321."
Id. at
437 U. S. 699,
n. 32. The Court thus acknowledged that imposing personal liability
on public officials could have an undue chilling effect on the
exercise of their decisionmaking responsibilities, but that no such
pernicious consequences were likely to flow from the possibility of
a recovery from public funds.
Our decision in
Lake Country Estates, Inc. v. Tahoe Regional
Planning Agency, 440 U. S. 391
(1979), also recognized that the justifications for immunizing
officials from personal liability have little force when suit is
brought against the governmental entity itself. Petitioners in that
case had sought damages under § 1983 from a regional planning
agency and the individual members of its governing agency. Relying
on
Tenney v. Brandhove, 341 U. S. 367
(1951), the Court concluded that,
"to the extent the evidence discloses that these individuals
were acting in a capacity comparable to that of members of a state
legislature, they are entitled to absolute immunity from federal
damages liability."
440 U.S. at
440 U. S. 406.
At the same time, however, we cautioned:
"If the respondents have enacted unconstitutional legislation,
there is no reason why relief against TRPA itself should not
adequately vindicate petitioners' interests.
See Monell v. New
York City Dept. of Social Services, 436 U. S.
658."
Id. at
440 U. S. 405,
n. 29.
[
Footnote 38]
Wood v. Strickland, 420 U. S. 308
(1975), mentioned a third justification for extending a qualified
immunity to public officials: the fear that the threat of personal
liability might deter citizens from holding public office.
See
id. at
420 U. S. 320
("The most capable candidates for school board positions might be
deterred from seeking office if heavy burdens upon their private
resources from monetary liability were a likely prospect during
their tenure"). Such fears are totally unwarranted, of course, once
the threat of personal liability is eliminated.
[
Footnote 39]
Monell v. New York City Dept. of Social Services
indicated that the principle of loss-spreading was an insufficient
justification for holding the municipality liable under § 1983 on a
respondeat superior theory. 436 U.S. at
436 U. S.
693-694. Here, of course, quite a different situation is
presented. Petitioner does not seek to hold the city responsible
for the unconstitutional actions of an individual official
"
solely because it employs a tortfeasor."
Id. at
436 U. S. 691.
Rather, liability is predicated on a determination that
"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."
Id. at
436 U. S. 690.
In this circumstance -- when it is the local government itself that
is responsible for the constitutional deprivation -- it is
perfectly reasonable to distribute the loss to the public as a cost
of the administration of government, rather than to let the entire
burden fall on the injured individual.
[
Footnote 40]
"The imposition of monetary costs for mistakes which were not
unreasonable in the light of all the circumstances would
undoubtedly deter even the most conscientious school decisionmaker
from exercising his judgment independently, forcefully, and in a
manner best serving the long-term interest of the school and the
students."
Wood v. Strickland, supra at
420 U. S.
319-320.
[
Footnote 41]
Note, Developments in the Law: Section 1983 and Federalism, 90
Harv.L.Rev. 1133, 1224 (1977).
See also Johnson v.
State, 69 Cal. 2d
782, 792-793, 447 P.2d 352, 359-360 (1968):
"Nor do we deem an employee's concern over the potential
liability of his employer, the governmental unit, a justification
for an expansive definition of 'discretionary,' and hence immune,
acts. As a threshold matter, we consider it unlikely that the
possibility of government liability will be a serious deterrent to
the fearless exercise of judgment by the employee. In any event,
however, to the extent that such deterrent effect takes hold, it
may be wholesome. An employee in a private enterprise naturally
gives some consideration to the potential liability of his
employer, and this attention unquestionably promotes careful work;
the potential liability of a governmental entity, to the extent
that it affects primary conduct at all, will similarly influence
public employees."
(Citation and footnote omitted.)
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE REHNQUIST join, dissenting.
The Court today holds that the city of Independence may be
liable in damages for violating a constitutional right that was
unknown when the events in this case occurred. It finds a denial of
due process in the city's failure to grant petitioner a hearing to
clear his name after he was discharged. But his dismissal involved
only the proper exercise of discretionary powers according to
prevailing constitutional doctrine. The city imposed no stigma on
petitioner that would require a "name clearing" hearing under the
Due Process Clause.
On the basis of this alleged deprivation of rights, the Court
interprets 42 U.S.C. § 1983 to impose strict liability on
municipalities for constitutional violations. This strict liability
approach inexplicably departs from this Court's prior decisions
under § 1983 to impose strict liability on municipalities for
constitutional violations. This strict liability approach
inexplicably departs from this Court's prior decisions under §
1983, and runs counter to the concerns of the 42d Congress when it
enacted the statute. The Court's ruling also ignores the vast
weight of common law precedent, as well as the current state law of
municipal immunity. For these reasons, and because this decision
will hamper local governments unnecessarily, I dissent.
I
The Court does not question the District Court's statement of
the facts surrounding Owen's dismissal.
Ante at
445 U. S. 625.
It nevertheless rejects the District Court's conclusion that no due
process hearing was necessary because "the circumstances of
[Owen's] discharge did not impose a stigma of illegal or immoral
conduct on his professional reputation."
421
F. Supp. 1110, 1112 (WD Mo. 1976);
see ante at
445 U. S.
633-634, n. 13.
Page 445 U. S. 659
Careful analysis of the record supports the District Court's
view that Owen suffered no constitutional deprivation.
A
From 1967 to 1972, petitioner Owen served as Chief of the
Independence Police Department at the pleasure of the City Manager.
[
Footnote 2/1] Friction between
Owen and City Manager Alberg flared openly in early 1972, when
charges surfaced that the Police Department's property room was
mismanaged. The City Manager initiated a full internal
investigation.
In early April, the City Auditor reported that the records in
the property room were so sparse that he could not conduct an
audit. The City Counselor reported that "there was no evidence of
any criminal acts, or violation of any state law or municipal
ordinances, in the administration of the property room." 560 F.2d
925, 928 (CA8 1977). In a telephone call on April 10, the City
Manager asked Owen to resign and offered him another position in
the Department. The two met on the following day. Alberg expressed
his unhappiness over the property room situation and again
requested that Owen step down. When Owen refused, the City Manager
responded that he would be fired. 421 F. Supp. at 1114-1115.
On April 13, the City Manager asked Lieutenant Cook of the
Police Department if he would be willing to take over as Chief.
Alberg also released the following statement to the public:
"At my direction, the City Counselor's office, [i]n conjunction
with the City Auditor ha[s] completed a routine audit of the police
property room. "
Page 445 U. S. 660
"Discrepancies were found in the administration, handling and
security of recovered property. There appears to be no evidence to
substantiate any allegations of a criminal nature. . . ."
560 F.2d at 928-929.
The District Court found that the City Manager decided on
Saturday, April 15, to replace Owen with Lieutenant Cook as Chief
of Police. 421 F. Supp. at 1115. Before the decision was announced,
however, City Council Member Paul Roberts obtained the internal
reports on the property room. At the April 17 Council meeting,
Roberts read a prepared statement that accused police officials of
"gross inefficiencies" and various "inappropriate" actions.
Id. at 1116, n. 2. He then moved that the Council release
the reports to the public, refer them to the Prosecuting Attorney
of Jackson County for presentation to a grand jury, and recommend
to the City Manager that he "take all direct and appropriate action
permitted under the Charter. . . ."
Ibid. The Council
unanimously approved the resolution.
On April 18, Alberg "implemented his prior decision to discharge
[Owen] as Chief of Police." 560 F.2d at 929. The notice of
termination stated simply that Owen's employment was "[t]erminated
under the provisions of Section 3.3(1) of the City Charter." App.
17. That charter provision grants the City Manager complete
authority to remove "directors" of administrative departments "when
deemed necessary for the good of the service." Owen's lawyer
requested a hearing on his client's termination. The Assistant City
Counselor responded that "there is no appellate procedure or forum
provided by the Charter or ordinances of the City of Independence,
Missouri, relating to the dismissal of Mr. Owen."
Id. at
27.
The City Manager referred to the Prosecuting Attorney all
reports on the property room. The grand jury returned a "no true
bill," and there has been no further official action on the matter.
Owen filed a state lawsuit against Councilman
Page 445 U. S. 661
Roberts and City Manager Alberg, asking for damages for libel,
slander, and malicious prosecution. Alberg won a dismissal of the
state law claims against him, and Councilman Roberts reached a
settlement with Owen. [
Footnote
2/2]
This federal action was filed in 1976. Owen alleged that he was
denied his liberty interest in his professional reputation when he
was dismissed without formal charges or a hearing.
Id. at
8, 10. [
Footnote 2/3]
B
Due process requires a hearing on the discharge of a government
employee "if the employer creates and disseminates a false and
defamatory impression about the employee in connection with his
termination. . . ."
Codd v. Velger, 429 U.
S. 624,
429 U. S. 628
(1977) (per curiam). This principle was first announced in
Board of Regents v. Roth, 408 U.
S. 564 (1972), which was decided in June, 1972, 10 weeks
after Owen was discharged. The pivotal question after
Roth
is whether the circumstances of the discharge so blackened the
employee's
Page 445 U. S. 662
name as to impair his liberty interest in his professional
reputation.
Id. at
408 U. S.
572-575.
The events surrounding Owen's dismissal "were prominently
reported in local newspapers." 560 F.2d at 930. Doubtless, the
public received a negative impression of Owen's abilities and
performance. But a "name clearing" hearing is not necessary unless
the employer makes a public statement that "might seriously damage
[the employee's] standing and associations in his community."
Board of Regents v. Roth, supra at
408 U. S. 573.
No hearing is required after the
"discharge of a public employee whose position is terminable at
the will of the employer when there is no public disclosure of the
reasons for the discharge."
Bishop v. Wood, 426 U. S. 341,
426 U. S. 348
(1976).
The City Manager gave no specific reason for dismissing Owen.
Instead, he relied on his discretionary authority to discharge top
administrators "for the good of the service." Alberg did not
suggest that Owen "had been guilty of dishonesty, or immorality."
Board of Regents v. Roth, supra at
408 U. S. 573.
Indeed, in his "property room" statement of April 13, Alberg said
that there was "no evidence to substantiate any allegations of a
criminal nature." This exoneration was reinforced by the grand
jury's refusal to initiate a prosecution in the matter. Thus,
nothing in the actual firing cast such a stigma on Owen's
professional reputation that his liberty was infringed.
The Court does not address directly the question whether any
stigma was imposed by the discharge. Rather, it relies on the Court
of Appeals' finding that stigma derived from events "connected
with" the firing.
Ante at
445 U. S. 633;
589 F.2d at 337. That court attached great significance to the
resolution adopted by the City Council at its April 17 meeting. But
the resolution merely recommended that Alberg take "appropriate
action," and the District Court found no "causal connection"
between events in the City Council and the firing of Owen. 421 F.
Supp. at 1121. Two days
Page 445 U. S. 663
before the Council met, Alberg already had decided to dismiss
Owen. Indeed, Councilman Roberts stated at the meeting that the
City Manager had asked for Owen's resignation.
Id. at
1116, n. 2. [
Footnote 2/4]
Even if the Council resolution is viewed as part of the
discharge process, Owen has demonstrated no denial of his liberty.
Neither the City Manager nor the Council cast any aspersions on
Owen's character. Alberg absolved all connected with the property
room of any illegal activity, while the Council resolution alleged
no wrongdoing. That events focused public attention upon Owen's
dismissal is undeniable; such attention is a condition of
employment -- and of discharge -- for high government officials.
Nevertheless, nothing in the actions of the City Manager or the
City Council triggered a constitutional right to a name-clearing
hearing. [
Footnote 2/5]
The statements by Councilman Roberts were neither measured nor
benign, but they provide no basis for this action against the city
of Independence. Under
Monell v. New York City Dept. of Social
Services, 436 U. S. 658,
44 U. S. 691
(1978), the city cannot be held liable for Roberts' statements on a
theory of
respondeat superior. That case held that §
1983
Page 445 U. S. 664
makes municipalities liable for constitutional deprivations only
if the challenged action was taken "pursuant to official municipal
policy of some nature. . . ." As the Court noted, "a municipality
cannot be held liable
solely because it employs a
tortfeasor. . . ." 436 U.S. at
436 U. S. 691
(emphasis in original). The statements of a single councilman
scarcely rise to the level of municipal policy. [
Footnote 2/6]
As the District Court concluded, "[a]t most, the circumstances .
. . suggested that, as Chief of Police, [Owen] had been an
inefficient administrator." 421 F. Supp. at 1122. This Court now
finds unconstitutional stigma in the interaction of unobjectionable
official acts with the unauthorized statements of a lone councilman
who had no direct role in the discharge process. The notoriety that
attended Owen's firing resulted not from any city policy, but
solely from public misapprehension of the reasons for a purely
discretionary dismissal. There was no constitutional injury; there
should be no liability. [
Footnote
2/7]
II
Having constructed a constitutional deprivation from the valid
exercise of governmental authority, the Court holds that
municipalities are strictly liable for their constitutional torts.
Until two years ago, municipal corporations enjoyed absolute
immunity from § 1983 claims.
Monroe v.
Pape, 365 U.S.
Page 445 U. S. 665
167 (1961). But
Monell v. New York City Dept. of Social
Services, supra, held that local governments are "persons"
within the meaning of the statute, and thus are liable in damages
for constitutional violations inflicted by municipal policies. 436
U.S. at
436 U. S. 690.
Monell did not address the question whether municipalities
might enjoy a qualified immunity or good faith defense against §
1983 actions. 436 U.S. at
436 U. S. 695,
436 U. S. 701;
id. at
436 U. S.
713-714 (POWELL, J., concurring).
After today's decision, municipalities will have gone in two
short years from absolute immunity under § 1983 to strict
liability. As a policy matter, I believe that strict municipal
liability unreasonably subjects local governments to damages
judgments for actions that were reasonable when performed. It
converts municipal governance into a hazardous slalom through
constitutional obstacles that often are unknown and unknowable.
The Court's decision also impinges seriously on the prerogatives
of municipal entities created and regulated primarily by the
States. At the very least, this Court should not initiate a federal
intrusion of this magnitude in the absence of explicit
congressional action. Yet today's decision is supported by nothing
in the text of § 1983. Indeed, it conflicts with the apparent
intent of the drafters of the statute, with the common law of
municipal tort liability, and with the current state law of
municipal immunities.
A\
1
Section 1983 provides a private right of action against "[e]very
person" acting under color of state law who imposes or causes to be
imposed a deprivation of constitutional rights. [
Footnote 2/8]
Page 445 U. S. 666
Although the statute does not refer to immunities, this Court
has held that the law "is to be read in harmony with general
principles of tort immunities and defenses, rather than in
derogation of them."
Imbler v. Pachtman, 424 U.
S. 409,
424 U. S. 418
(1976);
see Tenney v. Brandhove, 341 U.
S. 367,
341 U. S. 376
(1951)
This approach reflects several concerns. First, the common law
traditions of immunity for public officials could not have been
repealed by the "general language" of § 1983.
Tenney v.
Brandhove, supra at
341 U. S. 376;
see Imbler v. Pachtman, supra at
424 U. S.
421-424;
Pierson v. Ray, 386 U.
S. 547,
386 U. S.
554-555 (1967). In addition, "the public interest
requires decisions and action to enforce laws for the protection of
the public."
Scheuer v. Rhodes, 416 U.
S. 232,
416 U. S. 241
(1974). Because public officials will err at times, "[t]he concept
of immunity assumes . . . that it is better to risk some error and
possibly injury from such error than not to decide or act at all."
Id. at
416 U. S. 242;
see Wood v. Strickland, 420 U. S. 308,
420 U. S.
319-320 (1975). By granting some immunity to
governmental actors, the Court has attempted to ensure that public
decisions will not be dominated by fears of liability for actions
that may turn out to be unconstitutional. Public officials "cannot
be expected to predict the future course of constitutional law. . .
."
Procunier v. Navarette, 434 U.
S. 555,
434 U. S. 562
(1978).
In response to these considerations, the Court has found
absolute immunity from § 1983 suits for state legislators,
Tenney v. Brandhove, supra, judges,
Pierson v. Ray,
supra at
386 U. S.
553-555, and prosecutors in their role as advocates for
the State,
Imbler v. Pachtman, supra. Other officials have
been granted a qualified immunity that protects them when in good
faith they have implemented policies that reasonably were thought
to be constitutional. This limited immunity extends to police
officers,
Pierson v. Ray, supra at
386 U. S.
555-558, state executive officers,
Scheuer v.
Rhodes, supra, local school board members,
Wood v.
Strickland, supra, the superintendent
Page 445 U. S. 667
of a state hospital,
O'Connor v. Donaldson,
422 U. S. 563,
422 U. S.
576-577 (1975), and prison officials,
Procunier v.
Navarette, supra.
The Court today abandons any attempt to harmonize § 1983 with
traditional tort law. It points out that municipal immunity may be
abrogated by legislation. Thus, according to the Court, Congress
"abolished" municipal immunity when it included municipalities
"within the class of
persons' subject to liability" under §
1983. Ante at 445 U. S.
647.
This reasoning flies in the face of our prior decisions under
this statute. We have held repeatedly that "immunities
well
grounded in history and reason' [were not] abrogated `by covert
inclusion in the general language' of § 1983." Imbler v.
Pachtman, supra at 424 U. S. 418,
quoting Tenney v. Brandhove, supra at 341 U. S. 376.
See Scheuer v. Rhodes, supra at 416 U. S.
243-244; Pierson v. Ray, supra at 386 U. S. 554.
The peculiar nature of the Court's position emerges when the status
of executive officers under § 1983 is compared with that of local
governments. State and local executives are personally liable for
bad faith or unreasonable constitutional torts. Although Congress
had the power to make those individuals liable for all such torts,
this Court has refused to find an abrogation of traditional
immunity in a statute that does not mention immunities. Yet the
Court now views the enactment of § 1983 as a direct abolition of
traditional municipal immunities. Unless the Court is overruling
its previous immunity decisions, the silence in § 1983 must mean
that the 42d Congress mutely accepted the immunity of executive
officers, but silently rejected common law municipal immunity. I
find this interpretation of the statute singularly
implausible.
2
Important public policies support the extension of qualified
immunity to local governments. First, as recognized by the doctrine
of separation of powers, some governmental decisions should be at
least presumptively insulated from judicial review.
Page 445 U. S. 668
Mr. Chief Justice Marshall wrote in
Marbury v.
Madison, 1 Cranch 137,
5 U. S. 170
(1803), that "[t]he province of the court is . . . not to inquire
how the executive, or executive officers, perform duties in which
they have a discretion." Marshall stressed the caution with which
courts must approach "[q]uestions, in their nature political, or
which are, by the constitution and laws, submitted to the
executive." The allocation of public resources and the operational
policies of the government itself are activities that lie
peculiarly within the competence of executive and legislative
bodies. When charting those policies, a local official should not
have to gauge his employer's possible liability under § 1983 if he
incorrectly -- though reasonably and in good faith -- forecasts the
course of constitutional law. Excessive judicial intrusion into
such decisions can only distort municipal decisionmaking and
discredit the courts. Qualified immunity would provide presumptive
protection for discretionary acts, while still leaving the
municipality liable for bad faith or unreasonable constitutional
deprivations.
Because today's decision will inject constant consideration of §
1983 liability into local decisionmaking, it may restrict the
independence of local governments and their ability to respond to
the needs of their communities. Only this Term, we noted that the
"point" of immunity under § 1983
"is to forestall an atmosphere of intimidation that would
conflict with [officials'] resolve to perform their designated
functions in a principled fashion."
Ferri v. Ackerman, 444 U. S. 193,
444 U. S.
203-204 (1979).
The Court now argues that local officials might modify their
actions unduly if they face personal liability under § 1983, but
that they are unlikely to do so when the locality itself will be
held liable.
Ante at
445 U. S.
655-656. This contention denigrates the sense of
responsibility of municipal officers, and misunderstands the
political process. Responsible local officials will be concerned
about potential judgments against
Page 445 U. S. 669
their municipalities for alleged constitutional torts. Moreover,
they will be accountable within the political system for subjecting
the municipality to adverse judgments. If officials must look over
their shoulders at strict municipal liability for unknowable
constitutional deprivations, the resulting degree of governmental
paralysis will be little different from that caused by fear of
personal liability.
Cf. Wood v. Strickland, 420 U.S. at
420 U. S.
319-320;
Scheuer v. Rhodes, 416 U.S. at
416 U. S. 242.
[
Footnote 2/9]
In addition, basic fairness requires a qualified immunity for
municipalities. The good faith defense recognized under § 1983
authorizes liability only when officials acted with malicious
intent or when they "knew or should have known that their conduct
violated the constitutional norm."
Procunier v. Navarette,
434 U.S. at
434 U. S. 562.
The standard incorporates the idea that liability should not attach
unless there was notice that a constitutional right was at risk.
This idea applies to governmental entities and individual officials
alike. Constitutional law is what the courts say it is, and -- as
demonstrated by today's decision and its precursor,
Monell
-- even the most prescient lawyer would hesitate to give a firm
opinion on matters not plainly settled. Municipalities, often
acting in the utmost good faith, may not know or anticipate when
their action or inaction will be deemed a constitutional violation.
[
Footnote 2/10]
Page 445 U. S. 670
The Court nevertheless suggests that, as a matter of social
justice, municipal corporations should be strictly liable even if
they could not have known that a particular action would violate
the Constitution. After all, the Court urges, local governments can
"spread" the costs of any judgment across the local population.
Ante at
445 U. S. 655.
The Court neglects, however, the fact that many local governments
lack the resources to withstand substantial unanticipated liability
under § 1983. Even enthusiastic proponents of municipal liability
have conceded that ruinous judgments under the statute could
imperil local governments.
E.g., Note, Damage Remedies
Against Municipalities for Constitutional Violations, 89
Harv.L.Rev. 922, 958 (1976). [
Footnote 2/11] By simplistically applying the theorems
of welfare economics and ignoring the reality of municipal finance,
the Court imposes strict liability on the level of government least
able to bear it. [
Footnote 2/12]
For some municipalities, the result could be a severe limitation on
their ability to serve the public.
B
The Court searches at length -- and in vain -- for legal
authority to buttress its policy judgment. Despite its general
statements to the contrary, the Court can find no support for its
position in the debates on the civil rights legislation that
included § 1983. Indeed, the legislative record suggests that
Page 445 U. S. 671
the Members of the 42d Congress would have been dismayed by this
ruling. Nor, despite its frequent citation of authorities that are
only marginally relevant, can the Court rely on the traditional or
current law of municipal tort liability. Both in the 19th century
and now, courts and legislatures have recognized the importance of
limiting the liability of local governments for official torts.
Each of these conventional sources of law points to the need for
qualified immunity for local governments.
1
The modern dispute over municipal liability under § 1983 has
focused on the defeat of the Sherman amendment during the
deliberations on the Civil Rights Act of 1871.
E.g., Monroe v.
Pape, 365 U.S. at
365 U. S.
187-191;
Monell v. New York City Dept. of Social
Services, 436 U.S. at
436 U. S. 664-683. Senator Sherman proposed that local
governments be held vicariously liable for constitutional
deprivations caused by riots within their boundaries. As originally
drafted, the measure imposed liability even if municipal officials
had no actual knowledge of the impending disturbance. [
Footnote 2/13] The amendment, which did
not affect the part of the Civil Rights Act that we know as § 1983,
was approved by the Senate but rejected by the House of
Representatives. 436 U.S. at
436 U. S. 666.
After two revisions by Conference Committees, both Houses passed
what is now codified as 42 U.S.C. § 1986. The final version applied
not just to local governments, but to all "persons," and it imposed
no
Page 445 U. S. 672
liability unless the defendant knew that a wrong was "about to
be committed." [
Footnote
2/14]
Because Senator Sherman initially proposed strict municipal
liability for constitutional torts, the discussion of his amendment
offers an invaluable insight into the attitudes of his colleagues
on the question now before the Court. Much of the resistance to the
measure flowed from doubts as to Congress' power to impose
vicarious liability on local governments.
Monell v. New York
City Dept. of Social Services, 436 U.S. at
436 U. S.
673-683;
id. at
436 U. S. 706
(POWELL, J., concurring). But opponents of the amendment made
additional arguments that strongly support recognition of qualified
municipal immunity under § 1983.
First, several legislators expressed trepidation that the
proposal's strict liability approach could bankrupt local
governments. They warned that liability under the proposal could
bring municipalities "to a dead stop." Cong.Globe, 42d Cong., 1st
Sess., 763 (1871) (Sen. Casserly).
See id. at 762 (Sen.
Stevenson);
id. at 772 (Sen. Thurman). Representative
Bingham argued that municipal liability might be so great under the
measure as to deprive a community "of the means of administering
justice."
Id. at 798. Some Congressmen argued that strict
liability would inhibit the effective operation of municipal
corporations. The possibility of liability, Representative Kerr
insisted, could prevent local officials from exercising "necessary
and customary functions."
Id. at 789.
See id. at
763 (Sen. Casserly);
id. at 808 (Rep. Garfield).
Page 445 U. S. 673
Most significant, the opponents objected to liability imposed
without any showing that a municipality knew of an impending
constitutional deprivation. Senator Sherman defended this feature
of the amendment as a characteristic of riot Acts long in force in
England and this country.
Id. at 760. But Senator
Stevenson argued against creating "a corporate liability for
personal injury which no prudence or foresight could have
prevented."
Id. at 762. In the most thorough critique of
the amendment, Senator Thurman carefully reviewed the riot Acts of
Maryland and New York. He emphasized that those laws imposed
liability only when a plaintiff proved that the local government
had both notice of the impending injury and the power to prevent
it.
Id. at 771.
"Is not that right? Why make the county, or town, or parish
liable when it had no reason whatsoever to anticipate that any such
crime was about to be committed, and when it had no knowledge of
the commission of the crime until after it was committed? What
justice is there in that?"
Ibid.
These concerns were echoed in the House of Representatives.
Representative Kerr complained that
"it is not required, before liability shall attach, that it
shall be known that there was any intention to commit these crimes,
so as to fasten liability justly upon the municipality."
Id. at 78. He denounced the "total and absolute absence
of notice, constructive or implied, within any decent limits of law
or reason," adding that the proposal
"takes the property of one and gives it to another by mere
force, without right, in the absence of guilt or knowledge, or the
possibility of either."
Ibid. Similarly, Representative Willard argued that
liability "is only warranted when the community . . . has proved
faithless to its duties. . . ."
Id. at 791. He criticized
the absence of a requirement that it be
"prov[ed] in court that there has been any default, any denial,
any neglect on the part of
Page 445 U. S. 674
the county, city, town, or parish to give citizens the full
protection of the laws."
Ibid.
Partly in response to these objections, the amendment as finally
enacted conditioned liability on a demonstration that the defendant
knew that constitutional rights were about to be denied.
Representative Poland introduced the new measure, noting that
"any person
who has knowledge of any of the offenses
named . . . shall [have a] duty to use all reasonable diligence
within his power to prevent it."
Id. at 804 (emphasis supplied). The same point was made
by Representative Shellabarger, the sponsor of the entire Act and,
with Representative Poland, a member of the Conference Committee
that produced the final draft.
Id. at 804-805;
see
id. at 807 (Rep. Garfield).
On the Senate side, one conferee stated that, under the final
version,
"in order to make the [municipal] corporation liable as a body,
it must appear in some way to the satisfaction of the jury that the
officers of the corporation, those persons whose duty it was to
repress tumult, if they could, had reasonable notice of the fact
that there was a tumult, or was likely to be one, and neglected to
take the necessary means to prevent it."
Id. at 821 (Sen. Edmunds). Senator Sherman disliked the
revised provision. He complained that,
"before you can make [a person] responsible, you have got to
show that they had knowledge that the specific wrongs upon the
particular person were about to be wrought."
Ibid. [
Footnote
2/15]
These objections to the Sherman amendment apply with equal force
to strict municipal liability under § 1983. Just
Page 445 U. S. 675
as the 42d Congress refused to hold municipalities vicariously
liable for deprivations that could not be known beforehand, this
Court should not hold those entities strictly liable for
deprivations caused by actions that reasonably and in good faith
were thought to be legal. The Court's approach today, like the
Sherman amendment, could spawn onerous judgments against local
governments and distort the decisions of officers who fear
municipal liability for their actions. Congress' refusal to impose
those burdens in 1871 surely undercuts any historical argument that
federal judges should do so now.
The Court declares that its rejection of qualified immunity is
"compelled" by the "legislative purpose" in enacting 1983.
Ante at
445 U. S. 650.
One would expect powerful documentation to back up such a strong
statement. Yet the Court notes only three features of the
legislative history of the Civil Rights Act. Far from "compelling"
the Court's strict liability approach, those features of the
congressional record provide scant support for its position.
First, the Court reproduces statements by Congressmen attesting
to the broad remedial scope of the law.
Ante at
445 U. S. 636,
and n. 17. In view of our many decisions recognizing the immunity
of officers under § 1983,
supra at
445 U. S.
666-667, those statements plainly shed no light on
congressional intent with respect to immunity under the statute.
Second, the Court cites Senator Stevenson's remark that frequently
"a statutory liability has been created against municipal
corporations for in juries resulting from a neglect of corporate
duty."
Ante at
445 U. S.
642-643, citing Cong.Globe, 42d Cong., 1st Sess., 872
(1871). The Senator merely stated the unobjectionable proposition
that municipal immunity could be qualified or abolished by statute.
This fragmentary observation provides no basis for the Court's
version of the legislative history.
Finally, the Court emphasizes the lack of comment on municipal
immunity when opponents of the bill did discuss the immunities of
government officers.
"Had there been a
Page 445 U. S. 676
similar common law immunity for municipalities, the bill's
opponents doubtless would have raised the spectre of its
destruction, as well."
Ante at
445 U. S.
643-644. This is but another example of the Court's
continuing willingness to find meaning in silence. This example is
particularly noteworthy because the very next sentence in the
Court's opinion concedes: "To be sure, there were two doctrines
that afforded municipal corporations some measure of protection
from tort liability."
Ante at
445 U. S. 644.
Since the opponents of the Sherman amendment repeatedly expressed
their conviction that strict municipal liability was unprecedented
and unwise, the failure to recite the theories of municipal
immunity is of no relevance here. In any event, that silence cannot
contradict the many contemporary judicial decisions applying that
immunity.
See infra at
445 U. S.
677-678, and nn. 16, 17.
2
The Court's decision also runs counter to the common law in the
19th century, which recognized substantial tort immunity for
municipal actions.
E.g., 2 J. Dillon, Law of Municipal
Corporations §§ 753, 764, pp. 862-863, 875-876 (2d ed. 1873); W.
Williams, Liability of Municipal Corporations for Tort 9, 16
(1901). Nineteenth-century courts generally held that municipal
corporations were not liable for acts undertaken in their
"governmental," as opposed to their "proprietary," capacity.
[
Footnote 2/16] Most States now
use other criteria
Page 445 U. S. 677
for determining when a local government should be liable for
damages.
See infra at
445 U. S.
681-683. Still, the governmental/proprietary distinction
retains significance because it was so widely accepted when § 1983
was enacted. It is inconceivable that a Congress thoroughly versed
in current legal doctrines,
see Monell v. New York City Dept.
of Social Services, 436 U.S. at
436 U. S. 669,
would have intended through silence to create the strict liability
regime now imagined by this Court.
More directly relevant to this case is the common law
distinction between the "discretionary" and "ministerial" duties of
local governments. This Court wrote in
Harris v. District of
Columbia, 256 U. S. 650,
256 U. S. 652
(1921):
"[W]hen acting in good faith, municipal corporations are not
liable for the manner in which they exercise discretionary powers
of a public or legislative character."
See Weightman v. The Corporation of
Washington, 1 Black 39,
66 U. S. 49-50
(1862). The rationale for this immunity derives from the theory of
separation of powers. In
Carr v. The Northern Liberties,
35 Pa. 324, 329 (1860), the Pennsylvania Supreme Court explained
why a local government was immune from recovery for damage caused
by an inadequate town drainage plan.
"[H]ow careful we must be that courts and juries do not encroach
upon the functions committed to other public officers. It belongs
to the province of town councils to direct the drainage of our
towns, according to the best of their means and discretion, and we
cannot directly or indirectly control them in either. No law allows
us to substitute the judgment of a jury . . . for that of the
representatives of the town itself, to whom the business is
especially committed by law. "
Page 445 U. S. 678
That reasoning, frequently applied in the 19th century,
[
Footnote 2/17] parallels the
theory behind qualified immunity under § 1983. This Court has
recognized the importance of preserving the autonomy of executive
bodies entrusted with discretionary powers.
Scheuer v.
Rhodes held that executive officials who have broad
responsibilities must enjoy a "range of discretion [that is]
comparably broad." 416 U.S. at
416 U. S. 247.
Consequently, the immunity available under § 1983 varies directly
with "the scope of discretion and responsibilities of the office. .
. ." 416 U.S. at
416 U. S. 247.
Strict municipal liability can only undermine that discretion.
[
Footnote 2/18]
Page 445 U. S. 679
The lack of support for the Court's view of the common law is
evident in is reliance on
Thayer v. Boston, 3 Mass. 511
(1837), as its principal authority.
Ante at
445 U. S.
641-642.
Thayer did hold broadly that a city
could be liable for the authorized acts of its officers. 36 Mass.,
at 51. But
Thayer was limited severely by later
Massachusetts decisions.
Bigelow v. Inhabitants of
Randolph, 80 Mas. 541, 54545 (1860), ruled that
Thayer applied only to situations involving official
malfeasance -- or wrongful, bad-faith actions -- not to actions
based on neglect or nonfeasance.
See Child v. Boston, 6
Mass. 41 (1862);
Buttrick v. Lowell, 83 Mass. 172 (1861).
Finally,
Hill v. Boston, 122 Mass. 344, 359 (1877),
squarely repudiated the broad holding of
Thayer and
limited municipal liability to acts performed in the proprietary
interest of the municipality. [
Footnote 2/19]
Page 445 U. S. 680
3
Today's decision also conflicts with the current law in 44
States and the District of Columbia. All of those jurisdictions
provide municipal immunity at least analogous to a "good faith"
defense against liability for constitutional torts. Thus, for
municipalities in almost 900 of our jurisdictions, the Court
creates broader liability for constitutional deprivations than for
state law torts.
Page 445 U. S. 681
Twelve States have laws creating municipal tort liability but
barring damages for injuries caused by discretionary decisions or
by the good faith execution of a validly enacted, though
unconstitutional, regulation. [
Footnote 2/20] Municipalities in those States have
precisely the form of qualified immunity that this Court has
granted to executive officials under § 1983. Another 11 States
provide even broader immunity for local governments. Five of those
have retained the governmental/proprietary distinction, [
Footnote 2/21] while Arkansas and South
Dakota grant even broader protection for municipal corporations.
[
Footnote 2/22] Statutes in four
more States protect local governments from tort liability except
for particular injuries not relevant to this case, such as those
due to motor vehicle accidents or negligent maintenance of public
facilities. [
Footnote 2/23]
In
Page 445 U. S. 682
Iowa, local governments are not liable for injuries caused by
the execution with due care of any "officially enacted" statute or
regulation. [
Footnote 2/24]
Sixteen States and the District of Columbia follow the
traditional rule against recovery for damages imposed by
discretionary decisions that are confided to particular officers or
organs of government. [
Footnote
2/25] Indeed, the leading commentators on governmental tort
liability have noted both the appropriateness and general
acceptance of municipal immunity for discretionary acts.
See Restatement (Second) of Torts § 895C(2) and Comment
c (1979); K. Davis, Administrative Law of the Seventies §
25.13 (1976); W. Prosser, Law of Torts 986-987 (4th ed.1971). In
four States, local governments enjoy complete immunity from tort
actions unless they have taken out liability insurance. [
Footnote 2/26] Only five States
Page 445 U. S. 683
impose the kind of blanket liability constructed by the Court
today. [
Footnote 2/27]
C
The Court turns a blind eye to this overwhelming evidence that
municipalities have enjoyed a qualified immunity and to the policy
considerations that, for the life of this Republic, have justified
its retention. This disregard of precedent and policy is especially
unfortunate because suits under § 1983 typically implicate evolving
constitutional standards. A good faith defense is much more
important for those actions than in those involving ordinary tort
liability. The duty not to run over a pedestrian with a municipal
bus is far less likely to change than is the rule as to what
process, if any, is due the bus driver if he claims the right to a
hearing after discharge.
The right of a discharged government employee to a "name
clearing" hearing was not recognized until our decision in
Board of Regents v. Roth, 408 U.
S. 564 (1972). That ruling was handed down 10 weeks
after Owen was discharged and 8 weeks after the city denied his
request for a hearing. By stripping the city of any immunity, the
Court punishes it for failing to predict our decision in
Roth. As a result, local governments and their officials
will face the unnerving prospect of crushing damages judgments
whenever a policy valid under current law is later found to be
unconstitutional. I can see no justice or wisdom in that
outcome.
[
Footnote 2/1]
Under § 3.3(1) of the Independence City Charter in effect in
1972, the City Manager had the power to
"[a]ppoint, and when deemed necessary for the good of the
service, lay off, suspend, demote, or remove all directors, or
heads, of administrative departments. . . ."
Section 3.8 of that Charter stated that the Chief of Police is
the "director" of the Police Department. Charter of the City of
Independence, Mo. (Dec. 5, 1961) (hereinafter cited as
Charter).
[
Footnote 2/2]
In its answer to Owen's complaint in this action, the city cited
the state court action as
Owen v. Roberts and Alberg, Case
No. 778,640 (Jackson County, Mo., Circuit Ct.). App. 15.
[
Footnote 2/3]
Owen initially claimed that his property interests in the job
also were violated. The Court of Appeals affirmed the District
Court's rejection of that contention, 560 F.2d 925, 937 (CA8 1977),
and petitioner has not challenged that ruling in this Court.
The Court suggests that the city should have presented a
cross-petition for certiorari in order to argue that Owen has no
cause of action.
Ante at
445 U. S. 633,
n. 13. It is well settled that a respondent "may make any argument
presented below that supports the judgment of the lower court."
Hankerson v. North Carolina, 432 U.
S. 233,
432 U. S. 240,
n. 6 (1977);
see Massachusetts Mutual Life Ins. Co. v.
Ludwig, 426 U. S. 479,
426 U. S.
480-481 (1976), citing
United States v. American
Railway Express Co., 265 U. S. 425,
265 U. S. 435
(1924). The judgment of the Court of Appeals in the instant case
was to "den[y] Owen any relief . . ." by finding that the
defendants were immune from suit. 589 F.2d 335, 338 (1979). Since
the same judgment would result from a finding that Owen has no
cause of action under the statute, respondents' failure to present
a cross-petition does not prevent them from pressing the issue
before this Court.
[
Footnote 2/4]
The City Charter prohibits any involvement of Council members in
the City Manager's personnel decisions. Section 2.11 of the Charter
states that Council members may not "participate in any manner in
the appointment or removal of officers and employees of the city."
Violation of § 2.11 is a misdemeanor that may be punished by
ejection from office.
[
Footnote 2/5]
The Court suggests somewhat cryptically that stigma was imposed
on Owen when
"the city -- through the unanimous resolution of the City
Council -- released to the public an allegedly false statement
impugning petitioner's honesty and integrity."
Ante at
445 U. S. 633,
n. 13. The Court fails, however, to identify any "allegedly false
statement." The resolution did call for public disclosure of the
reports on the property room situation, but those reports were
never released.
Ante at
445 U. S. 630.
Indeed, petitioner's complaint alleged that the failure to release
those reports left "a cloud or suspicion of misconduct" over him.
App. 8. The resolution also referred the reports to the prosecutor
and called on the City Manager to take appropriate action. Neither
event could constitute the public release of an "allegedly false
statement" mentioned by the Court.
[
Footnote 2/6]
Roberts himself enjoyed absolute immunity from § 1983 suits for
acts taken in his legislative capacity.
Lake Country Estates,
Inc. v. Tahoe Regional Planning Agency, 440 U.
S. 391,
440 U. S. 402
406 (1979). Owen did sue him in state court for libel and slander,
and reached an out-of-court settlement.
See supra at
445 U. S.
660-661.
[
Footnote 2/7]
This case bears some resemblance to
Martinez v.
California, 444 U. S. 277
(1980), which involved a § 1983 suit against state parole officials
for injuries caused by a paroled prisoner. We found that the
plaintiffs had no cause of action because they could not show a
causal relationship between their injuries and the actions of the
defendants. 444 U.S. at
444 U. S. 285.
That relationship also is absent in this case. Any injury to Owen's
reputation was the result of the Roberts statement, not the
policies of the city of Independence.
[
Footnote 2/8]
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects
or causes to be subjected, any citizen of the United States . . .
to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured.
. . ."
42 U.S.C. § 1983.
[
Footnote 2/9]
The Court's argument is not only unpersuasive, but also is
internally inconsistent. The Court contends that strict liability
is necessary to "create an incentive for officials . . . to err on
the side of protecting citizens' constitutional rights."
Ante at
445 U. S.
651-652. Yet the Court later assures us that such
liability will not distort municipal decisionmaking because "[t]he
inhibiting effect is significantly reduced, if not eliminated, . .
. when the threat of personal liability is removed."
Ante
at
445 U. S. 656.
Thus, the Court apparently believes that strict municipal liability
is needed to modify public policies, but will not have any impact
on those policies anyway.
[
Footnote 2/10]
The Court implies that, unless municipalities are strictly
liable under § 1983, constitutional law could be frozen "in its
current state of development."
Ante at
445 U. S. 651,
n. 33. I find this a curious notion. This could be the first time
that the period between 1961, when
Monroe declared local
governments absolutely immune from § 1983 suits, and 1978, when
Monell overruled
Monroe, has been described as
one of static constitutional standards.
[
Footnote 2/11]
For example, in a recent case in Alaska, a jury awarded almost
$500,000 to a policeman who was accused of "racism and brutality"
and removed from duty without notice and an opportunity to be
heard.
Wayson v. City of Fairbanks, 22 ATLA L.Rep. 222
(Alaska Fourth Dist.Super.Ct.1979).
[
Footnote 2/12]
Ironically, the State and Federal Governments cannot be held
liable for constitutional deprivations. The Federal Government has
not waived its sovereign immunity against such claims, and the
States are protected by the Eleventh Amendment.
[
Footnote 2/13]
Cong.Globe, 42d Cong., 1st Sess., 663 (1871). The proposal
applied to any property damage or personal injury caused
"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. .
. ."
As revised by the first Conference Committee on the Civil Rights
Act, the provision still required no showing of notice.
Id. at 749.
[
Footnote 2/14]
The final Conference amendment stated:
"That any person or persons having knowledge that any of the
wrongs . . . 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 to do so, and such wrongful act
shall be committed, such person or persons shall be liable to the
person injured or his legal representatives for all damages caused
by any such wrongful act. . . ."
Id. at 819.
[
Footnote 2/15]
Under 42 U.S.C. § 1986, the current version of the language
approved in place of the Sherman amendment, liability "is dependent
on proof of actual knowledge by a defendant of the wrongful
conduct; . . . ."
Hampton v. Chicago, 484 F.2d 602, 610
(CA7 1973),
cert. denied, 415 U.S. 917 (1974).
[
Footnote 2/16]
In the leading case of
Bailey v. Mayor &c. of the City
of New York, 3 Hill 531, 539 (N.Y. 1842), the court
distinguished between municipal powers "conferred for the benefit
of the public" and those "made as well for the private emolument
and advantage of the city. . . ." Because the injury in
Bailey was caused by a water utility maintained for the
exclusive benefit of the residents of New York City, the court
found the municipality liable "as a private company."
Ibid. This distinction was construed to provide local
governments with immunity in actions alleging inadequate police
protection,
Western College of Homeopathic Medicine v.
Cleveland, 12 Ohio St. 375 (1861), improper sewer
construction,
Child v. Boston, 86 Mass. 41 (1862),
negligent highway maintenance,
Hewison v. New Haven, 37
Conn.475 (1871), and unsafe school buildings,
Hill v.
Boston, 122 Mass. 344 (1877).
[
Footnote 2/17]
E.g., Goodrich v. Chicago, 20 Ill. 445 (1858);
Logansport v. Wright, 25 Ind. 512 (1865);
Mills v.
Brooklyn, 32 N.Y. 489, 498-499 (1865);
Wilson v. Mayor
&c. of City of New York, 1 Denio 595, 600-601 (N.Y. 1845);
Wheeler v. Cincinnati, 19 Ohio St.19 (1869) (per curiam);
Richmond v. Long's Adm'rs, 17 Gratt. 375 (Va. 1867);
Kelley v. Milwaukee, 18 Wis. 83 (1864).
[
Footnote 2/18]
The Court cannot wish away these extensive municipal immunities.
It quotes two 19th-century treatises as referring to municipal
liability for some torts.
Ante at
445 U. S. 640.
Both passages, however, refer to exceptions to the existing
immunity rules. The first treatise cited by the Court concedes,
though deplores, the fact that many jurisdictions embraced the
governmental/proprietary distinction. T. Shearman & A.
Redfield, A Treatise on the Law of Negligence § 120, pp. 140-141
(1869). The same volume notes that local governments could not be
sued for injury caused by discretionary acts,
id. § 127,
at 154, or for officers' acts beyond the powers of the municipal
corporation,
id. § 140, at 169. The Court's quotation from
Dillon on Municipal Corporations stops just before that writer
acknowledges that local governments are liable only for injury
caused by nondiscretionary acts involving "corporate duties." 2 J.
Dillon, Law of Municipal Corporations § 764, p. 875 (2d ed. 1873).
That writer's full statement of municipal tort liability recognizes
immunity for both governmental and discretionary acts. Dillon
observes that municipal corporations may be held liable only
"where a duty is a corporate one, that is, one which rests upon
the municipality in respect of its special or local interests, and
not as a public agency,
and is absolute and perfect, and
not discretionary or judicial in its nature. . . ."
Id. § 778, at 891 (emphasis in original).
The Court takes some solace in the absence in the 19th century
of a qualified immunity for local governments.
Ante at
445 U. S.
644-650. That absence, of course, was due to the
availability of absolute immunity for governmental and
discretionary acts. There is no justification for discovering
strict municipal liability in § 1983 when that statute was enacted
against a background of extensive municipal immunity.
The Court also points out that municipalities were subject to
suit for some statutory violations and neglect of contractual
obligations imposed by State or Federal Constitutions.
Ante at
445 U. S.
639-640. That amenability to suit is simply irrelevant
to the immunity available in tort actions, which controls the
immunity available under § 1983.
[
Footnote 2/19]
The Court cites eight cases decided before 1871 as
"reiterat[ing]" the principle announced in
Thayer while
awarding damages against municipalities for good faith torts. Three
of those cases involved the "special and peculiar" statutory
liability of New England towns for highway maintenance, and are
wholly irrelevant to the Court's argument.
Billings v.
Worcester, 102 Mass. 329, 332-333 (1869);
Horton v.
Inhabitants of Ipswich, 66 Mass. 488, 491 (1853) (trial court
"rend to the jury the provisions of the statutes prescribing the
duties of towns to keep roads safe . . . and giving a remedy for
injuries received from defects in highways");
Elliot v.
Concord, 27 N.H. 204 (1853) (citing similar statute);
see 2 J. Dillon, Law of Municipal Corporations § 1000, pp.
1013-1015, and n. 2 (3d ed. 1881). A fourth case,
Town Council
of Akron v. McComb, 18 Ohio 229 (1849), concerned damages
caused by street grading, and was later expressly restricted to
those facts.
Western College of Homeopathic Medicine v.
Cleveland, 12 Ohio St. at 378-379. Two of the other cases
cited by the Court involved the performance of ministerial acts
that were widely recognized as giving rise to municipal liability.
Lee v. Village of Sandy Hill, 40 N.Y. 442, 451 (1869)
(liability for damage caused by street-opening when city was under
a "duty" to open that street);
Hurley v. Town of Texas, 20
Wis. 634 (1866) (improper tax collection). The seventh case
presented malfeasance, or bad-faith acts, by the municipality's
agents.
Hawks v. Inhabitants of Charlemont, 107 Mass. 414
(1871) (city took material from plaintiff's land to repair bridge).
Thus, despite any discussion of
Thayer in the court
opinions, seven of the eight decisions noted by the Court involved
thoroughly unremarkable exceptions to municipal immunity as
provided by statute or common law. They do not buttress the Court's
theory of strict liability.
The Court also notes that Senator Stevenson mentioned
Thayer during the debates on the Sherman amendment.
Ante at
445 U. S. 642,
and nn. 23, 24. That reference, however, came during a speech
denouncing the Sherman amendment for imposing tort liability on
municipal corporations. To reinforce his contention, Senator
Stevenson rend from the decision in
Prather v. Lexington,
52 Ky. 559, 560 652 (1852), which cited
Thayer for the
general proposition that a municipal corporation is not liable on a
respondeat superior basis for the unauthorized acts of its
officers. Cong.Globe, 42d Cong., 1st Sess., 762 (1871). But the
point of the passage in
Prather read by Senator Stevenson
-- and the holding of that case -- was that "no principle of law .
. . subjects a municipal corporation to a responsibility for the
safety of the property within its territorial limits." Cong.Globe,
supra, quoting
Prather, supra at 561. So
Stevenson cited
Prather to demonstrate that municipalities
should not be held vicariously liable for injuries caused within
their boundaries.
Prather, in turn, cited
Thayer
for a subsidiary point. Nowhere in this sequence is there any
support for the Court's idea that local governments should be
subjected to strict liability under § 1983.
[
Footnote 2/20]
Idaho Code § 6-904(1) (1979); Ill.Rev.Stat., ch. 85, §§ 2-103,
2-109, 2-201, 2-203 (1977); Ind.Code §§ 34-4-16.5-3(6), (8) (1976);
1979 Kan.Sess.Laws, ch. 186, § 4 (including specific exceptions to
immunity); Mass.Gen.Laws Ann., ch. 258, §§ 10(a), (b) (West Supp.
1979); Minn.Stat. §§ 466.03(5), (6) (1978); Mont.Code Ann. §§
2-9103, 2-9-111, 2-9-112 (1979); Neb.Rev.Stat. §§ 23-2409(1), (2)
(1977); Nev.Rev.Stat. § 41.032 (1977); N.D.Cent.Code §
32-12.1-03(3) (Supp. 1979); Okla.Stat., Tit. 51, §§ 155(1)-(5)
(Supp. 1979); Ore.Rev.Stat. §§ 30.265(3)(c), (f) (1979).
The Federal Tort Claims Act provides a similar exemption for
damages suits against the Federal Government. 28 U.S.C. § 2680(a).
The goal of that provision, according to this Court, is to protect
this "discretion of the executive or the administrator to act
according to one's judgment of the best course. . . ."
Dalehite
v. United States, 346 U. S. 15,
346 U. S. 34
(1953).
[
Footnote 2/21]
Mayor and City Council of Baltimore v. Seidel, 44
Md.App. 465,
409 A.2d 747 (1980); Mich.Comp.Laws § 691.1407 (1970);
Parks v. Long Beach, 372 So. 2d
253,
253-254
(Miss.1979);
Haas v. Hayslip, 51 Ohio St.2d 135, 139, 364
N.E.2d 1376, 1379 (1977);
Virginia Electric & Power Co. v.
Hampton Redevelopment & Housing Authority, 217 Va. 30, 34,
225 S.E.2d 364, 368 (1976).
[
Footnote 2/22]
Ark.Stat.Ann. § 12-2901 (1979);
Shaw v. Mission, 88
S.D. 564, 225 N.W.2d 593 (1975).
[
Footnote 2/23]
1977 N.M. Laws, ch. 386, §§ 4-9; Pa.Stat.Ann., Tit. 53, §
5311.202(b) (Purdon Supp. 1979-1980);
Wright v. North
Charleston, 271 S.C. 515, 516-518,
248
S.E.2d 480, 481-482 (1978),
see S.C.Code §§ 5-7-70,
15-77-230 (1976 and Supp. 1979); 1979 Wyo.Sess.Laws, ch. 157, § 1
(to be codified as Wyo.Stat. §§ 1-39-105 to 112).
[
Footnote 2/24]
Iowa Code § 613A.4(3) (1979)
[
Footnote 2/25]
Cal.Gov't Code Ann. §§ 815.2, 820.2 (West 1966);
Tango v.
New Haven, 173 Conn.203, 204-205, 377 A.2d 284, 285 (1977);
Biloon's Electrical Serv., Inc. v.
Wilmington, 401 A.2d
636, 639-640, 643 (Del. Super.1979);
Spencer v. General
Hospital of the District of Columbia, 138 U.S.App.D.C. 48, 53,
425 F.2d 479, 484 (1969) (en banc);
Commercial Carrier Corp. v.
Indian River County, 371 So. 2d
1010, 1020 (Fla.1979); Ga.Code § 69-302 (1978);
Frankfort
Variety, Inc. v. Frankfort, 552
S.W.2d 653 (Ky.1977); Me.Rev.Stat.Ann., Tit. 14, § 8103(2)(C)
(Supp. 1965-1979);
Merrill v. City of Manchester, 114 N.H.
722, 729, 332 A.2d 378, 383 (1974); N.J.Stat.Ann. §§ 59:2-2(b) and
59:2-3 (West Supp. 1979-1980);
Weiss v. Fote, 7 N.Y.2d
579, 585-586, 167 N.E.2d 63, 65-66 (1960);
Calhoun v.
Providence, ___ R.I. ___,
390 A.2d
350, 355-356 (1978); Tenn.Code Ann. § 23-3311(1) (Supp. 1979);
Tex.Rev.Civ.Stat.Ann., Art. 6252-19, § 14 (7) (Vernon 1970); Utah
Code Ann. § 63-30-10(1) (1953);
King v.
Seattle, 84 Wash. 2d
239, 246,
525 P.2d
228, 233 (1974) (en banc); Wis.Stat. § 895.43(3) (1977).
[
Footnote 2/26]
Colo.Rev.Stat. § 24-10-104 (1973); Mo.Rev.Stat. § 71.185 (1978);
N.C.Gen.Stat. § 160A-485 (1976); Vt.Stat.Ann., Tit. 29, § 1403
(1970).
[
Footnote 2/27]
Ala.Code § 11-47-190 (1975);
State v.
Jennings, 555 P.2d 248,
251 (Alaska
1976); Ariz.Rev.Stat.Ann. § 11-981(A)(2) (Supp. 1979-1980);
La.Const., Art. 12, § 10(A);
Long v. Weirton, ___ W.Va.
___, ___,
214 S.E.2d
832, 859 (1975). It is difficult to determine precisely the
tort liability rules for local governments in Hawaii.