Part II: Police
The following case has been heavily edited and abridged. The idea is to make it more readable. As such, it should not be relied upon as binding authority.
Petitioners, a class of female employees of the Department of Social Services and of the Board of Education of the city of New York, commenced this action under 42 U. S. C. § 1983 in July 1971. The gravamen of the complaint was that the Board and the Department had as a matter of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. The suit sought injunctive relief and backpay for periods of unlawful forced leave. Named as defendants in the action were the Department and its Commissioner, the Board and its Chancellor, and the city of New York and its Mayor. In each case, the individual defendants were sued solely in their official capacities.
On cross-motions for summary judgment, the District Court for the Southern District of New York held moot petitioners’ claims for injunctive and declaratory relief since the city of New York and the Board, after the filing of the complaint, had changed their policies relating to maternity leaves so that no pregnant employee would have to take leave unless she was medically unable to continue to perform her job. No one now challenges this conclusion. The court did conclude, however, that the acts complained of were unconstitutional under LaFleur. Nonetheless plaintiffs’ prayers for backpay were denied because any such damages would come ultimately from the city of New York and, therefore, to hold otherwise would be to “[circumvent]” the immunity conferred on municipalities by Monroe v. Pape.
On appeal, petitioners renewed their arguments that the Board of Education was not a “municipality” within the meaning of Monroe v. Pape, and that, in any event, the District Court had erred in barring a damages award against the individual defendants. The Court of Appeals for the Second Circuit rejected both contentions. The court first held that the Board of Education was not a “person” under § 1983 because “it performs a vital governmental function . . . , and, significantly, while it has the right to determine how the funds appropriated to it shall be spent . . . , it has no final say in deciding what its appropriations shall be.” The individual defendants, however, were “persons” under § 1983, even when sued solely in their official capacities. Yet, because a damages award would “have to be paid by a city that was held not to be amenable to such an action in Monroe v. Pape,” a damages action against officials sued in their official capacities could not proceed.
We granted certiorari in this case, to consider
“Whether local governmental officials and/or local independent school boards are ‘persons’ within the meaning of 42 U. S. C. § 1983 when equitable relief in the nature of back pay is sought against them in their official capacities?”
Although, after plenary consideration, we have decided the merits of over a score of cases brought under § 1983 in which the principal defendant was a school board and, indeed, in some of which § 1983 and its jurisdictional counterpart, 28 U. S. C. § 1343, provided the only basis for jurisdiction—we indicated in Mt. Healthy City Board of Education v. Doyle, last Term that the question presented here was open and would be decided “another day.” That other day has come and we now overrule Monroe v. Pape, insofar as it holds that local governments are wholly immune from suit under § 1983.
In Monroe v. Pape, we held that “Congress did not undertake to bring municipal corporations within the ambit of [§ 1983].” The sole basis for this conclusion was an inference drawn from Congress’ rejection of the “Sherman amendment” to the bill which became the Civil Rights Act of 1871, 17 Stat. 13, the precursor of § 1983. The amendment would have held a municipal corporation liable for damage done to the person or property of its inhabitants by private persons “riotously and tumultuously assembled.”
- An Overview
There are three distinct stages in the legislative consideration of the bill which became the Civil Rights Act of 1871. On March 28, 1871, Representative Shellabarger, acting for a House select committee, reported H. R. 320, a bill “to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes.” H. R. 320 contained four sections. Section 1, now codified as 42 U. S. C. § 1983, was the subject of only limited debate and was passed without amendment. Sections 2 through 4 dealt primarily with the “other purpose” of suppressing Ku Klux Klan violence in the Southern States. The wisdom and constitutionality of these sections—not § 1, now § 1983—were the subject of almost all congressional debate and each of these sections was amended. The House finished its initial debates on H. R. 320 on April 7, 1871, and one week later the Senate also voted out a bill. Again, debate on § 1 of the bill was limited and that section was passed as introduced.
Immediately prior to the vote on H. R. 320 in the Senate, Senator Sherman introduced his amendment. This was not an amendment to § 1 of the bill, but was to be added as § 7 at the end of the bill. Under the Senate rules, no discussion of the amendment was allowed and, although attempts were made to amend the amendment, it was passed as introduced. In this form, the amendment did not place liability on municipal corporations, but made any inhabitant of a municipality liable for damage inflicted by persons “riotously and tumultuously assembled.”
The House refused to acquiesce in a number of amendments made by the Senate, including the Sherman amendment, and the respective versions of H. R. 320 were therefore sent to a conference committee. Section 1 of the bill, however, was not a subject of this conference since, as noted, it was passed verbatim as introduced in both Houses of Congress.
On April 18, 1871, the first conference committee completed its work on H. R. 320. The main features of the conference committee draft of the Sherman amendment were these:
“First, a cause of action was given to persons injured by any persons riotously and tumultuously assembled together . . . with intent to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude . . . .”
Second, the bill provided that the action would be against the county, city, or parish in which the riot had occurred and that it could be maintained by either the person injured or his legal representative.
Third, unlike the amendment as proposed, the conference substitute made the government defendant liable on the judgment if it was not satisfied against individual defendants who had committed the violence. If a municipality were liable, the judgment against it could be collected
“by execution, attachment, mandamus, garnishment, or any other proceeding in aid of execution or applicable to the enforcement of judgments against municipal corporations; and such judgment [would become] a lien as well upon all moneys in the treasury of such county, city, or parish, as upon the other property thereof.”
In the ensuing debate on the first conference report, which was the first debate of any kind on the Sherman amendment, Senator Sherman explained that the purpose of his amendment was to enlist the aid of persons of property in the enforcement of the civil rights laws by making their property “responsible” for Ku Klux Klan damage. Statutes drafted on a similar theory, he stated, had long been in force in England and were in force in 1871 in a number of States. ….
Because the House rejected the first conference report a second conference was called and it duly issued its report. The second conference substitute for the Sherman amendment abandoned municipal liability and, instead, made “any person or persons having knowledge [that a conspiracy to violate civil rights was afoot], and having power to prevent or aid in preventing the same,” who did not attempt to stop the same, liable to any person injured by the conspiracy. The amendment in this form was adopted by both Houses of Congress and is now codified as 42 U. S. C. § 1986.
The meaning of the legislative history sketched above can most readily be developed by first considering the debate on the report of the first conference committee. This debate shows conclusively that the constitutional objections raised against the Sherman amendment—on which our holding in Monroe was based—would not have prohibited congressional creation of a civil remedy against state municipal corporations that infringed federal rights. Because § 1 of the Civil Rights Act does not state expressly that municipal corporations come within its ambit, it is finally necessary to interpret § 1 to confirm that such corporations were indeed intended to be included within the “persons” to whom that section applies.
- Debate on the First Conference Report
The style of argument adopted by both proponents and opponents of the Sherman amendment in both Houses of Congress was largely legal, with frequent references to cases decided by this Court and the Supreme Courts of the several States. Proponents of the Sherman amendment did not, however, discuss in detail the argument in favor of its constitutionality. ….
Finally, the very votes of those Members of Congress, who opposed the Sherman amendment but who had voted for § 1, confirm that the liability imposed by § 1 was something very different from that imposed by the amendment. Section 1 without question could be used to obtain a damages judgment against state or municipal officials who violated federal constitutional rights while acting under color of law. However, for Prigg-Dennison-Day purposes, as Blair and others recognized, there was no distinction of constitutional magnitude between officers and agents—including corporate agents—of the State: Both were state instrumentalities and the State could be impeded no matter over which sort of instrumentality the Federal Government sought to assert its power. Dennison and Day, after all, were not suits against municipalities but against officers, and Blair was quite conscious that he was extending these cases by applying them to municipal corporations. …
- Debate on § 1 of the Civil Rights Bill
From the foregoing discussion, it is readily apparent that nothing said in debate on the Sherman amendment would have prevented holding a municipality liable under § 1 of the Civil Rights Act for its own violations of the Fourteenth Amendment. The question remains, however, whether the general language describing those to be liable under § 1—”any person”—covers more than natural persons. An examination of the debate on § 1 and application of appropriate rules of construction show unequivocally that § 1 was intended to cover legal as well as natural persons.
That the “usual” meaning of the word “person” would extend to municipal corporations is also evidenced by an Act of Congress which had been passed only months before the Civil Rights Act was passed. This Act provided that
“in all acts hereafter passed . . . the word ‘person’ may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense.”
Municipal corporations in 1871 were included within the phrase “bodies politic and corporate” and, accordingly, the “plain meaning” of § 1 is that local government bodies were to be included within the ambit of the persons who could be sued under § 1 of the Civil Rights Act. Indeed, a Circuit Judge, writing in 1873 in what is apparently the first reported case under § 1, read the Dictionary Act in precisely this way in a case involving a corporate plaintiff and a municipal defendant.
Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.
Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 “person,” by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress & Co.: “Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”
On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.
We begin with the language of § 1983 as originally passed:
“Any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . . .”
The … language plainly imposes liability on a government that, under color of some official policy, “causes” an employee to violate another’s constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A’s tort became B’s liability if B “caused” A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent.
Equally important, creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional. To this day, there is disagreement about the basis for imposing liability on an employer for the torts of an employee when the sole nexus between the employer and the tort is the fact of the employer-employee relationship. Nonetheless, two justifications tend to stand out. First is the common-sense notion that no matter how blameless an employer appears to be in an individual case, accidents might nonetheless be reduced if employers had to bear the cost of accidents. Second is the argument that the cost of accidents should be spread to the community as a whole on an insurance theory.
The first justification is of the same sort that was offered for statutes like the Sherman amendment: “The obligation to make compensation for injury resulting from riot is, by arbitrary enactment of statutes, affirmatory law, and the reason of passing the statute is to secure a more perfect police regulation.” This justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable. The second justification was similarly put forward as a justification for the Sherman amendment: “we do not look upon the Sherman amendment as a punishment . . . . It is a mutual insurance.” Again, this justification was insufficient to sustain the amendment.
We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, and we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.
Although we have stated that stare decisis has more force in statutory analysis than in constitutional adjudication because, in the former situation, Congress can correct our mistakes through legislation, we have never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes. Nor is this a case where we should “place on the shoulders of Congress the burden of the Court’s own error.”
First, Monroe v. Pape, insofar as it completely immunizes municipalities from suit under § 1983, was a departure from prior practice…in each of which municipalities were defendants in § 1983 suits. Moreover, the constitutional defect that led to the rejection of the Sherman amendment would not have distinguished between municipalities and school boards, each of which is an instrumentality of state administration. For this reason, our cases—decided both before and after Monroe—holding school boards liable in § 1983 actions are inconsistent with Monroe, especially as Monroe’s immunizing principle was extended to suits for injunctive relief in City of Kenosha v. Bruno. And although in many of these cases jurisdiction was not questioned, we ought not “disregard the implications of an exercise of judicial authority assumed to be proper for  years.” Thus, while we have reaffirmed Monroe without further examination on three occasions, it can scarcely be said that Monroe is so consistent with the warp and woof of civil rights law as to be beyond question.
Second, the principle of blanket immunity established in Monroe cannot be cabined short of school boards. Yet such an extension would itself be inconsistent with recent expressions of congressional intent. In the wake of our decisions, Congress not only has shown no hostility to federal-court decisions against school boards, but it has indeed rejected efforts to strip the federal courts of jurisdiction over school boards.
Third, municipalities can assert no reliance claim which can support an absolute immunity. As Mr. Justice Frankfurter said in Monroe, “[this] is not an area of commercial law in which, presumably, individuals may have arranged their affairs in reliance on the expected stability of decision.”
Indeed, municipalities simply cannot “arrange their affairs” on an assumption that they can violate constitutional rights indefinitely since injunctive suits against local officials under § 1983 would prohibit any such arrangement. And it scarcely need be mentioned that nothing in Monroe encourages municipalities to violate constitutional rights or even suggests that such violations are anything other than completely wrong.
Finally, even under the most stringent test for the propriety of overruling a statutory decision proposed by Mr. Justice Harlan in Monroe—”that it appear beyond doubt from the legislative history of the 1871 statute that [Monroe] misapprehended the meaning of the section”—the overruling of Monroe insofar as it holds that local governments are not “persons” who may be defendants in § 1983 suits is clearly proper. It is simply beyond doubt that, under the 1871 Congress’ view of the law, were § 1983 liability unconstitutional as to local governments, it would have been equally unconstitutional as to state officers. Yet everyone—proponents and opponents alike—knew § 1983 would be applied to state officers and nonetheless stated that § 1983 was constitutional. And, moreover, there can be no doubt that § 1 of the Civil Rights Act was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights. Therefore, absent a clear statement in the legislative history supporting the conclusion that § 1 was not to apply to the official acts of a municipal corporation—which simply is not present—there is no justification for excluding municipalities from the “persons” covered by § 1.
For the reasons stated above, therefore, we hold that stare decisis does not bar our overruling of Monroe insofar as it is inconsistent with Parts I and II of this opinion.
Since the question whether local government bodies should be afforded some form of official immunity was not presented as a question to be decided on this petition and was not briefed by the parties or addressed by the courts below, we express no views on the scope of any municipal immunity beyond holding that municipal bodies sued under § 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under § 1983 “be drained of meaning.”
For the reasons stated above, the judgment of the Court of Appeals is Reversed.
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Last Modified: 04/30/2021