A Foreseeablity-Based Standard for the Determination of Municipal Liability Under Section 1983
David Y. Bannard, A Foreseeablity-Based Standard for the Determination of Municipal Liability Under
A Foreseeablity-Based Standard for the Determination of Municipal Liability Under Section 1983
David Y. Bannard 0
0 Thi s Notes is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact
Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr
The Reconstruction Congress enacted the Civil Rights Act of 1871 in order to
enforce the provisions of the fourteenth amendment to the Constitution.' Section 1 of
this Act, currently codified at Title 42 United States Code, Section 1983, 2 provided that
parties deprived of their constitutional rights by a "person" acting under color of state
law or custom could bring suit in federal court for appropriate relief against the person
who caused the constitutional injury. 3 The statute's general language and its lack of clear
legislative history' has left the interpretation of section 1983's scope to the federal
judiciary, and especially the Supreme Court. 5
In 1961, ninety years after section 1983 became law, the United States Supreme
Court directly addressed the statute's application to municipalities for the first time.°
The Court held that local government officials were "persons" as defined by section
1985,7 but that municipalities fell outside the statute's provisions.° Just seventeen years
later, however, the Court reversed this decision and found that municipalities were
indeed "persons" for the purposes of section 1983. 9
The Court limited municipal liability under section 1983, however, to situations
where policy or custom directly attributable to the municipality itself caused a
constitutional violation.'° Under this standard, written rules and enacted ordinances, for
example, are clearly municipal policies." If, by following these policies, a municipal
employee deprives a person of a constitutional right, the aggrieved party may hold the
municipality liable under section 1983.' 2
The Act, 17 Stat. 13 (1871), was entitled, "An Act to enforce the Provisions of the fourteenth
Amendment to the Constitution to the United States, and for other Purposes."
2 42 U.S.C. § 1983 (1982).
Sect ion 1983 provides, in relevant part:
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.
See infra notes 30-70 and accompanying text. See also Monell v. New York City Dept of Social
Servs., 436 U.S. 658, 665-89 (1978); Monroe v. Pape, 365 U.S. 167, 171-87 (1961).
5 See infra notes 71-312 and accompanying text for a discussion of the judicial construction of
"Monroe, 365 U.S. at 187. See also infra note 74.
Monroe, 365 U.S. at 192.
. 8 Id. at 191.
9 Monet!, 436 U.S. at 690.
10 Id. at 694.
11 See, e.g., Owen v. City of Independence, 445 U.S. 622, 632 (1980); Monett, 436 U.S. at 690.
12 Monett, 436 U.S. at 694.
The Court has more difficulty, however, determining when municipalities may
delegate official policymaking authority to municipal officials, 13 thereby giving rise to
potential section 1983 liability for the results of actions taken pursuant to policies
established under such delegated authority. In addition, the Court has not clearly articulated
a standard for determining when municipal liability may attach under section 1983 for
constitutional deprivations resulting from actions taken pursuant to municipal custom
or usage.' 4 The Court's two most recent decisions addressing section 1983 municipal
liability have engendered no less than eight separate opinions, and not one of these
opinions has mustered the support of a majority of the Court. 15
Because of the division of opinion in the Supreme Court, lower courts are unsure
of the elements of an action brought under section 1983. 1 ° The Court should provide a
new approach that, consistent with the language, legislative history, and judicial
interpretation of section 1983, provides a clear means of determining when municipal liability
will attach under section 1983. This note proposes a foreseeability-based standard that
clarifies many of section 1983's unresolved issues concerning municipal liability. 12 This
proposed standard has two parts. The first part applies to actions taken pursuant to
official municipal policies, and holds municipalities liable under section 1983 if an actual
constitutional violation occurs that was a reasonably foreseeable result of the
municipality's policy. The second part of the standard applies to municipal customs and usages,
and finds municipal liability if actions taken pursuant to a grossly negligent municipal
custom deprive a person of a constitutionally protected right. A foreseeability-based
standard will help resolve the conflict and confusion which currently plagues the
determination of municipal liability under section 1983.
Section one of this note traces the Court's inconsistent development of municipal
liability under section 1983. The first part examines section 1983's legislative history.I 8
The second part traces the statute's judicial construction by examining pairs of
contrasting cases. 19 Each pair of cases focuses on one major aspect of the judicial interpretation
of section 1983 municipal liability, and demonstrates both the Court's consistent
applications of section 1983, and its inconsistencies. The final pair of cases discussed
demonstrates the current lower court confusion regarding the applicable standard for
determining municipal liability. 20
Section two of this note presents the proposed foreseeability-based standard. 2 ' The
first section argues for a clear standard for determining municipal liability under section
1983.22 The second section concludes that the proposed standard is consistent with the
statutory language , 23 legislative history, 24 judicial construction" and underlying policy
basis of section 1983."
I. THE DEVELOPMENT OF MUNICIPAL LIABILITY UNDER SECTION 1983
Although all section 1983 decisions are based on the language of the statute," the
statute's age and its repeated judicial construction allow the courts to interpret the statute
in a common law manner." Therefore, while courts look to the language of section
1983, and the intent of its drafters, they also rely on public policy considerations to
resolve section 1983 issues. Because Congress enacted section 1983 to effectuate the
purposes of the fourteenth amendment, varying interpretations of that amendment
influence these policy considerations. 29 Thus, courts interpreting section 1983 must
review both the legislative history and existing case law in order to determine the proper
scope of municipal liability under section 1983.
A. The Legislative History of Section 1983
1. Section 1 of the Civil Rights Act of 1871
The Reconstruction Congress originally enacted section 1983 as section I of the
Civil Rights Act of 1871, commonly known as the Ku Klux Klan Act." Section 1 of the
Act provided that any person who, acting under color of law, subjected, or caused a
person to be subjected, to the deprivation of a right secured by the laws and Constitution
of the United States would be liable to the person so injured in an action brought in a
federal court.'' Congress intended this Act to carry out the provisions of the fourteenth
amendment." Although some sections of the Ku Klux Klan Act were contested hotly by
members of Congress, section 1 aroused very little debate. 33
The Reconstruction Congress passed the Ku Klux Klan Act as a response to what
they perceived as the states' unwillingness, or inability, to enforce their laws equally."
The Ku Klux Klan had practically usurped state law enforcement functions in some
areas, with little or no interference from these states' governments. 33 Thus, it was not so
much the actual state laws, but their unequal enforcement that prompted section 1983's
Unequal enforcement of state law, and illegal activity which state authorities could
not control, became so acute by 1871 that President Grant sent a message to Congress
requesting action empowering the federal government to correct the evils of the Klan. 37
The President's message was not, however, the only indication of the severity and extent
of this problem. The Senate also had received a 600-page report that detailed both Klan
activities and the inability or unwillingness of some state governments to protect their
citizens equally from the Klan's depravities." Many members of Congress referred to
this report in the debates concerning the Ku Klux Klan Act. 39 Widespread agreement
existed among members of Congress that action was needed to counteract the Klan's
outrageous and illegal actions. 4°
The major controversy concerning section 1 of the Act was not its necessity but,
rather, whether Congress could extend a federal remedy and jurisdiction into areas
traditionally reserved to the states." Those opposed to the extension of federal power
argued that the Act represented a thinly-veiled attempt to centralize further power in
the federal government. 42 The Act's proponents, however, argued that the protection of
citizens' constitutional rights is a proper exercise of federal power." The Forty-Second
Congress reached a compromise and, when the Act was passed, the Congress stated that
the Act was meant to effectuate the fourteenth amendment." The importance of
protecting and effectuating the provisions of the fourteenth amendment." outweighed
congressional reluctance to weaken the states' rights," and both houses of Congress
passed section 1 as originally proposed.
upon loyal people through the agency of this Ku Klux organization not one has been
punished. This defect in the administration of the laws does not extend to other cases.
Vigorously enough are the laws enforced against Union people. They only fail in
efficiency when a man of known Union sentiments, white or black, invokes their aid.
Then Justice closes the door of her temples.
Id. at 178 (quoting GLOBE, Supra note 33, at 505).
37 The President was not certain that existing laws gave the executive branch sufficient power
to act, hence the urgent need for such legislation. Id. at 172-73. President Grant's message to
Congress of March 23, 1871, read:
A condition of affairs now exists in some States of the Union rendering life and
property insecure and the carrying of the mails and the collection of the revenue
dangerous. The proof' that such a condition of affairs exists in some localities is now
before the Senate. That the power to correct these evils is beyond the control of State
authorities 1 do not doubt; that the power of the Executive of the United States, acting
within the limits of existing laws, is sufficient tor present emergencies is not clear.
Therefore, l urgently recommend such legislation as in the judgment of Congress
shall effectually secure life, liberty, and property, and the enforcement of law in all
parts of the United States ..
Id, (quoting GLOBE, supra note 33, at '244).
36 1d. at 174.
59 See, e.g., remarks of Senator Pratt, supra note 36.
4° See, e.g., remarks of Representative Beatty, supra note 34.
41 See, e.g., Monroe, 365 U.S. at 174, 178-80.
42 See remarks of Representative Kerr, infra note 54.
See remarks of Representative Carpenter, infra note 47.
" See supra note 1. U.S. CoNs'r. amend. XI V, § 5 provides: "The Congress shall have the power
to enforce, by appropriate legislation, the provisions of this article."
45 See remarks of Senator Carpenter, infra note 47.
46 See remarks of Representative Hoar, infra note 54.
Members of Congress understood section 1983's wide-ranging power," but the
seriousness of the Klan's outrages, coupled with the failure of local governments to deal
with these outrages, had convinced Congress to act." Moreover, the bill's sponsor in the
House stated that courts should construe the Act "liberally and beneficently" in order to
fully effectuate the fourteenth amendment's guarantees. 49 Congress intended section
1983 to deter violations of constitutional rights and, when violations occurred, to provide
a federal remedy to the victim." Congress recognized that if the fourteenth amendment's
broad civil rights guarantees were to be available throughout the United States, neutral
federal courts would have to enforce them."
2. The Sherman Amendment to the Civil Rights Act of 1871
Because Senator Sherman did not believe that the proposed Ku Klux Klan Act
would adequately protect these rights, 52 he proposed an amendment. The Sherman
amendment would have imposed a duty on all inhabitants of a municipality to protect
any person from constitutional injury at the hands of a group "riotously and
tumultuously assembled." 55
While section 1 of the Civil Rights Act of 1871 aroused relatively little
controversy," Senator Sherman's proposed amendment to the Civil Rights Act caused an
" Senator Carpenter stated this view clearly:
1 think there is one of the fundamental, one of the great, the tremendous revolutions
in our Government by [the fourteenth amendment] of the Constitution. It gives
Congress affirmative power to protect the rights of the citizen, whereas before no such
right was given to save the citizen from the violation of any of his rights by State
Legislatures, and the only remedy was a judicial one when the case arose.
Monroe, 365 U.S. at 197-98 (quoting GLOBE, supra note 33, at 577).
4" See remarks of Representative Beatty, supra note 34.
45 Owen v. City of Independence, 445 U.S. 622, 636 (1980) (quoting CONG. GLOBE, 42d Cong.,
1st Sess., app. 68 (1871) [hereinafter GLOBE APP.] at 68 (remarks of Representative Shellabarger)).
514 See Monroe, 365 U.S. at 174. This remedy was to be in addition to any available state law
5 ' Id. at 180.
52 See Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 684 (1978); Monroe, 365
U.S. at 171.
Monell, 436 U.S. at 702-03 (quoting GLOBE, supra note 33, at 663). Senator Sherman hoped
to involve those members of the community who were property owners in the protection of every
person's civil rights by making their property "responsible for the injuries caused by the Ku Klux
Klan." Id. at 667. This amendment was based on similar statutes in force in England and some of
the New England states. There were major differences, however; the proposed amendment lacked
a short statute of limitations, it imposed liability even if the municipalities had no notice of the
impending riot or had no authorized police force, and it made no difference if the municipality
tried to prevent or stop the riot or whether the rioters were caught. Id. at 667-68 & nn.17-18.
54 The major objection to 1 of the Act was that it was an unwarranted extension of federal
power into an area of state sovereignty. Monroe, 365 U.S. at 178-80. For a discussion of the tension
that currently exists within the Supreme Court between nationalism and federalism as they are
applied through section 1983, see Brown, Municipal Liability Under Section 1983 and the Ambiguities
of Burger Court Federalism: A Comment on City of Oklahoma City v. Tuttle and Pembaur v. City of
Cincinnati — the "Official Policy" Cases, 27 B.C.L. REV. 833, 906-08 (1986). Opponents of extending
federal jurisdiction over areas traditionally reserved to the states, rather than questioning the
immediate necessity, argued that it was a thinly veiled attempt to consolidate power in the central
government. Representative Kerr of Indiana stated:
uproar."' As originally passed by the Senate, the Sherman amendment imposed
individual liability and monetary damages upon inhabitants of a municipality where prohibited
injuries occurred.58 The House, however, rejected the proposed amendment." When
the Sherman amendment emerged from the conference committee, it mandated that
courts enforce judgments first against the persons who committed the proscribed acts
and, if not satisfied within two months, then against the municipal corporation itself. 58
It is a covert attempt to transfer another large portion of jurisdiction from the State
tribunals, to which it of right belongs, to those of the United States. It is neither
authorized nor expedient, and is not calculated to bring peace, or order, or domestic
content and prosperity to the disturbed society of the South. The contrary will certainly
be its effect.
Monroe, 365 U.S. at 179 (quoting GLOBE APP.,,supra note 49, at 50). Proponents of the Act, however,
while fully aware of the extension, justified it as being a proper exercise of federal power: protection
of the citizens' federal constitutional rights. See remarks of Senator Carpenter, supra note 47. Thus,
the proponents continued, pursuant to the fourteenth amendment, Congress was justified in
infringing upon what previously was exclusively the states' province. See remarks of Senator Osborn,
supra note 35. To the proponents, the importance of protecting and effectuating the provisions of
that amendment outweighed any concern over weakening the states' rights. Representative Hoar
Members of Congress agreed that the fourteenth amendment protected all
inhabitants of the United States." Opponents of the Sherman amendment argued, however,
that the proposal sought to impose an affirmative obligation that was beyond the power
of the federal government.G° In 1871, the prevailing view of coordinate sovereignty
regarded municipalities as subdivisions of the state governments which existed by the
states' consent and under their dominion." Thus state governments could require
engaged as principal or accessory in such riot in an action in any court of competent
Monett, 436 U.S. at 70'2-03 (quoting GLortErs"7u- pra note 33, at 663).
The relevant portions of the first conference substitute are given below:
That if any house ... with intent to deprive any person of any right conferred upon
him by the Constitution and laws of the United States, or to deter him or punish him
for exercising such right, or by reason of his race, color, or previous condition of
servitude, in every case the county, city, or parish in which any of the said offenses
shall be committed shall be liable to pay full compensation .. and in which action
any of the parties committing such acts may be joined as defendants. And any payment
of any judgment, or part thereof unsatisfied, recovered by the plaintiff in such action,
may, if not satisfied within two months next after the recovery of such judgment upon execution
duly issued against such individual defendant in such judgment, and returned
unsatisfied, in whole or in part, be enforced against such county, city, or parish, by execution,
attachment, mandamus, garnishment, or any other proceeding in aid of execution or
applicable to the enforcement of judgments against municipal corporations; and such
judgment shall be a lien as well upon all moneys in the treasury of such county, city,
or parish, as upon the other property thereof .
Id. at 703-04 (quoting GLOBE, supra note 33, at 749, 755) (emphasis added). This substitute also
was defeated however, and the conference committee's final report abandoned municipal liability.
The report instead called for persons with knowledge of and authority to prevent conspiracies to
violate a person's constitutional rights who did not prevent such an occurrence to be liable to the
injured party. This compromise ultimately was enacted as 6 of the Act, now codified at 42 U.S.C.
§ 1986 (1982). Mundt. 436 U.S. at 668-69; Monroe, '365 U.S. at 188-90.
59 Monett, 436 U.S. at 670 & n.21, 673.
6' Id. at 673. Members of Congress noted that municipalities are creations of the states and
exist at their pleasure, and thus may have limitations or obligations imposed by the states.
Municipalities were considered to be, in some ways, subdivisions of the states, formed in order to allow
the states to govern more effectively. Municipalities, unlike states, however, were not found to he
protected by the provisions of the eleventh amendment. Representative Blair stated:
[The Sherman] amendment claims the power in the General Government to go into
the States of this Union and lay such obligations as it may please upon the
municipalities, which are the creation of the States alone .... [Mere it is proposed, not to
carry into effect an obligation which rests upon the municipality, but to create that
obligation, and that is the provision I am unable to assent to.
[T]here are certain rights and duties that belong to the States ... [and] there are
certain powers that inhere in the State governments. They create these municipalities;
they say what their powers shall be and what their obligations shall be. If the
Government of the United States can step in and add to these obligations, may it not utterly
destroy the municipality? If it can say that it shall be liable for damages occurring
from a riot ... when [will] its power , stop and what obligations ... might [it] not
lay upon a municipality ... [?]
Monett, 436 U.S. at 674-75 (quoting GLOBE, supra note 33, at 795). The Sherman amendment,
which would have granted the federal government the power to require municipalities to keep the
peace, was likened to the recently overturned power to tax state officers and thereby destroy the
states. Id, at 675 (quoting the remarks of Rep. Blair, GLOBE, supra note 33, at 795, citing Collector
v. Day, 11 Wall. 113 (1871)).
6 ' Monet!, 436 U.S. at 678-79.
nicipalities to raise a police force in order to protect their citizens, 62 but the federal
government had no sovereign power to do so. 65 Federal power was limited to preventing
the states and their subdivisions from violating the provisions of the federal
Constitution. 64 The distinction was drawn between Congress requiring municipalities to act to
protect a person's constitutional rights, and Congress requiring municipalities themselves
to refrain from violating a person's constitutional rights. 65 In short, members of Congress
believed that the federal government did not have the power to require that
municipalities actively protect their citizens' rights. This was not because they felt that a municipality
could violate its citizens' constitutional rights, but because they viewed federal authority
as limited in this area. 66
The Supreme Court has distinguished section I of the Ku Klux Klan Act from the
Sherman amendment, finding that the latter would have imposed liability regardless of
the municipality's fault, while the former would impose liability on the municipality when
a municipality or municipal officer deprived or caused the deprivation of a person's
constitutional rights.° Under section 1, liability would attach only if the action was taken
under color of state law. 68 The Sherman amendment, however, could have imposed
liability even in the absence of municipal action, so long as a constitutional injury had
occurred within the municipality, 69 Perhaps this distinction moved some of the same
members of Congress who supported section 1 of the Act to reject the Sherman
B. Judicial Construction of Municipal Liability Under Section 1983
The Supreme Court has had numerous occasions to interpret section 1983's
applicability to municipalities since it first addressed the issue in 1961. 7 ' The Court's decisions,
however, have been inconsistent. 72 To illustrate this inconsistency, the following section
examines significant issues which pertain to municipal section 1983 liability in light of
62 Id, at 668.
"Id. at 680. The remarks of Representative Burchard make this clear:
Mhere is no duty imposed by the Constitution of the United States, or usually by
State laws, upon a county to protect the people of that county against the commission
of the offenses herein enumerated, such as the burning of buildings or any other
injury to property or injury to person. Police powers are not conferred upon counties
as corporations; they are conferred upon cities that have qualified legislative power.
And so far as cities are concerned, where the equal protection required to he afforded
by a State is imposed upon a city by State laws, perhaps the United States courts could
enforce its performance. But counties ... do not have any control of the police ,
Id. (quoting GLOBE, supra note 33, at 795).
" Id. at 674-75.
65 Id. at 680.
67 Id. at 681 n.40.
" See supra note 31 for the text of § I of the Act.
'9 See supra note 58 for the text of the Sherman amendment and relevant portions of the first
7" Monett, 436 U.S. at 681 n.40.
71 The number of § 1983 municipal liability cases has increased astronomically since the
Supreme Court decided Monroe v. Pape, 365 U.S. 167 (1961). See Howard, The States and the Supreme
Court, 31 Cyril. U.L. REv, 375, 379 (1982).
" Compare, e.g., Monett, 436 U.S. at 694 (municipalities may be liable under 1983) with Monroe
v. Pape, 365 U.S. 167, 187 (1961) (municipalities not liable under § 1983).
contrasting pairs of cases. Each pair of cases addresses the same underlying issue, yet
the result reached or the analysis applied differs between the cases, demonstrating the
ambiguity and confusion in the current state of the law. These inconsistencies
demonstrate the tension between the Justices of the Court who favor either an expansive or
limited interpretation of municipal liability under section 1983. 73 Often neither
philosophy can summon a majority of the Justices. This note, therefore, submits that an
unarticulated "middle ground," which represents a compromise between expansive and
limited interpretations of section 1983, has emerged that most accurately describes
current Supreme Court doctrine.
1. Determining Municipal Liability Under Section 1983: Monroe and Mandl
Monroe v. Pape was the first case in which the Supreme Court directly addressed the
issue of municipal liability under section 1983. 74 In that 1961 decision, the Court found
that Congress had not intended for section 1983 to apply to municipalities and therefore
rejected such liability. 75 For the first time, however, the Court permitted section 1983
suits against municipal officials. 75 The Court applied tort law principles in determining
the liability of those officials" and stated that the Reconstruction Congress could not
have intended that municipalities be considered "persons" subject to section 1983
Monroe opened the doors of the federal courts to plaintiffs who alleged that
municipal officers, acting under color of law, had deprived them of their constitutional rights. 79
Interpreting section 1983's language and legislative history, including the Sherman
amendment, 30 the Monroe Court concluded that by rejecting the Sherman amendment,
Congress intended that municipalities not be liable under any provision of the Ku Klux
Klan Act.51 The Court held, however, that section 1983's use of the words "under color
of [law]" could reach the actions of municipal officers who deprive a person of a
constitutional right.82 This interpretation gave rise to many suits against municipal
officials in their "official capacity" for actions taken pursuant to municipal policy or custom."
The Monroe Court also employed tort cloctrinem to interpret section I983's language
which attaches liability to a person who indirectly causes another to suffer a constitutional
violation." The Court stated that "[s]ection  should be read against the background
of tort liability that makes a [person] responsible for the natural consequences of his [or
her] actions." 86 While this statement specifically referred to municipal officers who
deprived individuals of their constitutional rights while acting "under color of law," it has
shaped the subsequent development of actions brought under section 1983."
The Monroe Court looked to the legislative history', of section 1983 in order to
elucidate the aims of the Forty-second Congress." The Court stated that section 1983's
federal remedy supplements state remedies and, moreover, that plaintiffs need not
62 Id. at 184-87. To aid in defining when an action is taken "under color of law," and a municipal
officer may thus be liable under § 1983, the Court cited its language in United States v. Classic, 313
U.S. 299, 325-26 (1941). The Classic Court stated that "misuse or power, possessed by virtue of
state law and made possible only because the wrongdoer is clothed with the authority of state law
is action taken 'under color of state law." Monroe, 365 U.S. at 184, citing Classic, 313 U.S. at
63 See Levin, The Section 1983 Municipal Immunity Doctrine, 65 GEO. L.J. 1483 (1977). In his 1977
article, written before the Monett decision extended § 1983 liability to municipalities, Ronald Levin
argued that cases arising under § 1983 fall into two categories, which he designated as "political
cases" and "constitutional tort cases." Simply stated, a "political" § 1983 case is an action brought
against a municipality "alleging that its policies ... are unconstitutional." Id. at 1487-88. A
"constitutional tort" case is a damages action brought against an individual municipal officer for
deprivation of the plaintiff's constitutional rights, whether or not the municipality has "authorized or
encouraged the challenged conduct." Id, at 1488-89.
There are a number of implications attached to each classification. First, the plaintiff must
determine which party may be sued; second, the nature of damages sought will vary; and third,
the extent of relief will depend on who is sued. Generally, under political cases, both equitable and
monetary remedies appropriately may he sought. But see Rizzo v. Goode, 423 U.S. 362, '379 (1976)
(where the Court cites "'principles of equity, comity, and federalism — which must "restrain a federal
court"). Only monetary damages are generally awarded in constitutional tort cases, however. Finally,
a municipality's pockets are generally deeper than an individual's, and municipalities are, unlike
many government officials, not accorded any qualified immunities. Owen v. City of Independence,
445 U.S. 622, 638 (1980). Punitive damages, however, are available only against individuals for
"knowing and malicious acts," City of Newport v. Fact. Concerts, 453 U.S. 247, 271 (1981). Thus, a
determination as to whether an action is a political case or a constitutional tort case will significantly
affect many aspects of litigation.
m Monroe, 365 U.S. at 187.
' 5 42 U.S.C. § 1983 (1982) ("Everyone who ... subjects, or causes to be subjected").
Bb Id. It should be noted, however, that Monroe was essentially a "constitutional tort" action. See
supra note 83 for a discussion of political versus constitutional tort § 1983 actions.
"r a result of this statement, courts have relied on the concepts of causality and fault. See,
e.g., City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985). While this approach provides a
means of organizing actions and, through the use of analogy, extending the scope of § 1983, one
commentator has argued that some courts have "seized upon the 'background of tort liability' catch
phrase with little consideration given to the background of 1983 liability." See, e.g., Nahmod, Section
1983 and the "Background" of Tort Liability 50 IND. L.J. 5, 8-9 (1974). Later cases, however, have
developed the tort principles of duty, causality and fitult within the context of such actions. See,
e.g., Tuttle, 471 U.S. at 822-24; id. at 829-32 (Brennan, J., concurring); Parratt v. Taylor, 451 U.S.
527 (1982); Owen v. City of Independence, 445 U.S. 622, 654 (1980).
" Monroe, 365 U.S. at 172-87.
exhaust state remedies before bringing suit in federal court. 89 The Court found that an
important aspect of section 1983 is the existence of an independent federal remedy,
which assures adequate compensation for persons deprived of constitutional rights. 9"
In summary, the Monroe Court held that municipal officials, acting under color of
law, could be held liable under section 1983. 9 ' The Court also held that Congress could
not have intended section 1983 to apply to municipalities. 92 The Court identified two
aspects of section 1983 that should guide courts in applying the statute. First, when it
stated that courts should apply section 1983 with tort principles in mind, the Court did
more than incorporate a vast body of law by analogy; perhaps more importantly, it
established compensation and deterrence — the fundamental bases of tort law — as the
goals of section 1983." Second, the Court's interpretation of the statute's legislative
history led the Court to hold section 1983 as an independent federal remedy available
to victims deprived of a constitutional right by a municipal officer. 94
The Monroe Court's holding that municipalities were immune from suit under
section 1983 led to odd results when applied to actions officially adopted by
municipalities." Because these bodies were immune from suit, the injured plaintiff's only recourse
was to bring suit against a ranking official in his or her "official capacity." 9" These suits
led the Court, in 1978, to reexamine the Monroe holding. In Monell v. New York City
Department of Social Services, the Supreme Court partially reversed Monroe and held that
municipalities are "persons" within the meaning of section 1983. 97 While the Monell
decision permits municipal liability under section 1983, 98 the Court limited this liability
to situations where a municipality itself caused the constitutional deprivation through
effectuation of an official policy or custom."
The Monett Court's decision turned on a reinterpretation of the Sherman
amendment debates,'"9 and a recognition of the validity of the Dictionary Act of 1871. 1° 1 The
"Id. at 173-74, 183.
" Id. at 174.
Id. at 192.
92 1d. at 191.
93 Id. at 187. See also Nahmocl, supra note 87.
" Id. at 173-74.
95 See supra note 83, In these suits, nominally against the municipal official "responsible" for
the action, the named defendant changed each time the office changed hands.
96 See id,
97 436 U.S. at 690
("Congress did intend municipalities and other local government
units to be included among those persons to whom § 1983 applies")
(emphasis in original). Monell
involved an official policy of a local independent school board that compelled pregnant employees
to take unpaid leaves of absence before such leaves were required for medical reasons. The Court
previously held that such a policy was unconstitutional. Cleveland Bd. of Educ. v. LaFleur, 414 U.S.
632 (1974). Thus, the only question was whether school boards were "persons" within the meaning
of § 1983. Monell, 436 U.S. at 662.
98 436 U.S. at 690.
99 Id. at 694. The Court stated that municipal liability would attach "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 [constitutional deprivation]." Id.
109 Id. at 665-83.
101 Dictionary Act of Feb. 25, 1871, § 2, 16 Stat. 431 (1871). This Act stated 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."
See Monell, 436 U.S. at 688.
Court's fresh analysis of the Sherman amendment debates led it to distinguish between
holding a municipality responsible for its own actions and imposing an affirmative
obligation on inunicipalities. 102 The Court found that Congress rejected the federal
imposition of a new obligation.'" The Court stated that the Sherman amendment would have
imposed liability regardless of whether a municipality was at fault in any way. Section
1983, however, requires government action which results in deprivation of a
constitutional right before courts may grant relief under the statute.'"
Similar to the Monroe decision, tort-based policies such as fault, as well as the maxim
that one must be responsible for one's own actions, were factors in the Monell Court's
decision.'" Monell's fault-based theory led the Court to decide that municipal liability
under section 1983 would Lie only when actions directed by an officially adopted
municipal policy or a municipal custom caused a constitutional violation." Thus the Monell
Court found that a municipality may be liable under section 1983 only for its own
violations of the Constitution.'"? The Monell Court based this "official policy" standard
on section 1983's language which attaches liability when a person causes another to be
subjected to a constitutional injury. 108 The official policy standard recognizes municipal
liability in two distinct situations: when either an official municipal policr 9 or customuo
causes a constitutional deprivation. The opinion noted the difference between official
municipal policies, which municipal officers adopt and promulgate," and customs,
which are so persistent and widespread that, even though not officially adopted, have
the force of law. 112 The Monell Court further relied on section 1983's causation language
to distinguish between liability f'or constitutional deprivations resulting from activity
authorized by the municipality, either explicitly by policy or implicitly by custom, and
constitutional deprivation resulting from unauthorized acts.u 5 Thus, the Monell Court
expressly rejected a respondeat superior"' basis for municipal liability. "5 In summary,
Monell established that courts may hold a municipality liable under section 1983 when
an officially adopted policy, or a custom not formally approved but "permanent and well
settled," causes the deprivation of a person's constitutional rights." 6 Although Monell
extended section 1983 liability to municipalities, the decision did not resolve many issues,
including the scope of municipal liability.'"
a. Policy and historical background in judicial interpretation: Owen and Fact Concerts
Owen v. City of Independence" 8 and City of Newport v. Fact Concerts, Inc. 118 were two of
the first cases that attempted to resolve some of the issues the Monell Court left for
another day. In Owen, the Court held that a municipality could not avail itself of a good
faith immunity,' 2° while in Fact Concerts the Court held that section 1983 precluded
punitive damage awards in actions against municipalities. 121 The two cases relied on the
Court's interpretation of congressional silence, the congressional policies behind section
1983, and the state of the common law at the time of section 1983's passage,' 22 knowledge
of which 'was imputed to the Reconstruction Congress.' 25 While each opinion claimed it
was based on Congress's policies, two very different philosophies emerge in the
The 1980 case of Owen v. City of Independence arose out of the official actions of the
Independence, Missouri, city council.' 25 The city council released information which
"4 See W. KEETON, PROSSER AND KEETON ON TORTS § 69 at 499 (5th ed. 1984) ("by reason of
some relationship between A and B, the negligence of A is to be charged against B, although B has
played no part in it"). Respondeat superior developed from early English law which considered that
the master should be liable for his servants' torts. Id. § 69 at 500. This concept has gradually fallen
from favor and the modern justification for respondeat superior liability is that, as a matter of policy,
risk is allocated as a cost of doing business. Id. See also id. § 70 at 501-08 for a more thorough
discussion of the master's liability for his servants' torts.
" 5 Monell, 436 U.S. at 691.
" 6 Id. at 694.
" 7 Id. at 713 (Powell, J., concurring).
"" 445 U.S. 6
1 m 453 U.S. 247 (1981).
I " Owen, 445 U.S. at 638.
' 21 Fact Concerts, 453 U.S. at 267.
122 /d. at 758-71; Owen, 445 U.S. at 635-56.
L25 Owen, 445 U.S. at 642 (42d Congress recognized that municipal corporations commonly
were held liable for damages in tort).
124 The Fact Concerts Court sought to restrict municipal liability under § 1983, pointing to factors
of municipal finances. 453 U.S. at 271. The Court noted that, while the purpose of punitive damages
is to deter future misconduct, it would be inequitable to visit "retribution ... upon the shoulders
of blameless or unknowing taxpayers." Id. at 267, 268. The Owen majority stated that a damages
remedy is a 'vital component of any scheme for vindicating cherished constitutional guarantees,"
finding that leilemental notions of fairness dictate that one who causes a loss should bear the loss."
Owen, 445 U.S. at 651, 654. The Owen Court noted that because the public enjoys the benefits of
government, the public, rather than an injured party, should bear the burden when that government
causes a constitutional injury. Id. at 655. For a discussion of the tensions that underlie these decisions,
see Brown, supra note 54, at 906-08.
In Owen, 445 U.S. at 628-29.
alleged, among other things, that Police Chief Owen had misappropriated police
department property for his own use, that drugs and money had disappeared from his
office, and that traffic tickets had been "fixed." 126 After receiving the city council's
authorization, the city manager discharged Owen without explanation.'" Owen brought
suit against the City of Independence, the City Manager, and the members of the city
council in their official capacities, alleging that he had been discharged without due
process of law.'" Although the city counselor had assured the members of the city
council that their actions would not result in liability for either the city or the council,'"
the Supreme Court held otherwise.'"
The Owen majority relied on its examination of the Ku Klux Klan Act's legislative
history,''' the state of the common law in 1871, 152 and public policy'" to conclude that
Congress, in its silence, did not intend to provide a good faith immunity exception to
municipal liability under section I983.'" The Court first noted that section 1983's
expansive languagel" and absence of express limitations on liability do not evidence
congressional intent to immunize municipalities for their officers' good faith actions.'"
The Court stated, however, that a tradition of immunity was so firmly established in
1871 case law that courts have imputed congressional acceptance of these immunities) ,"
The Court examined the background of municipal tort liability and found that, in 1871,
municipalities were not immune from suits arising from conduct that implemented
discretionary clecisions. 138
Finally, after examining the policy basis for section 1983, the Court declined to
grant a good faith immunity.'" The Court isolated two important public policy purposes
underlying the statute: compensation for the past abuse of constitutional rights, and
deterring future constitutional deprivations.m In addition, the Court found that the
principle of "equitable loss-spreading"k 1 should join municipal fault in distributing the
costs of official misconduct.'" The Court also noted that a good faith immunity may
deprive the victim of a constitutional injury of adequate compensation.'"
Mr. justice Powell wrote a dissenting opinion'"' which stressed the importance of
federalism and limited section 1983 municipal liability.' 45 The Powell dissent stated that
the Owen decision virtually created strict municipal liability under section 1983. 1 " The
opinion also pointed out a number of factors which counsel in favor of extending a good
faith immunity to municipalities: substantial municipal tort immunity under nineteenth
century common law, " 7 "basic fairness," 1 " and concern for the public fisc.'"
Less than one year later,
in the 1981
decision of City of Newport v. Fact Concerts, Inc.,
the Court concluded that Congress, in its silence, did not intend that municipalities
would be liable for punitive damage awards under section 1983. 1 " The Court's opinion
relied on many of the same factors cited by the Owen majority,"' such as congressional
silence, 162 historical background, and public policy.'" The majority in Fact Cancer/5, 154
however, also relied on many factors cited by the Owen dissent,'" namely the background
of municipal tort "immunity" in 1871, 166 concepts of blameworthiness, 167 and concern
for the municipal fisc. 166 The Fact Concerts Court did, however, reiterate that section
1983's main goals are deterrence of and compensation for constitutional deprivations. 159
We believe that today's decision ... properly allocates these costs among the three principals in ...
the § 1983 cause of action: the victim of the constitutional deprivation; the officer whose conduct
caused the injury; and the public."). The Owen Court based this statement on the evolution of tort
law over the past century. Id. The preceding statement is quite similar to Professor Keeton's rationale
for respondeat superior liability. See W. KF,ETON, supra note 114, § 69 at 500.
'" Owen 445 U.S. at 657.
t" Id. The Court stated that a damages remedy is a "vital component" of the Act because other
immunities would leave victims of municipal malfeasance remediless. Id. at 651. See supra note 137.
14' Justice Powell wrote the dissenting opinion in Owen, joined by Chief Justice Burger, and
Justices Stewart and Rehnquist. See supra notes 145.-49 and accompanying text for a discussion of
the Owen dissent.
1" Owen, 445 U.S. at 665 (Powell, J., dissenting).
146 Id. (Powell, J., dissenting).
1" Id. at 676 (Powell, J., dissenting).
' 46 Id. at 669 (Powell, J., dissenting).
149 Id. at 670 (Powell, J., dissenting).
Is" 453 U.S. 247 (1981).
IsI See supra notes 131-34 and accompanying text; Fact Concerts, 453 U.S. at 258-71.
162 Fact Concerts, 453 U.S. at 258. The Court found that "members of Congress were familiar
with common-law principles, including defenses previously recognized in ordinary tort litigation,
and they likely intended these common-law principles to obtain, absent specific provisions to the
contrary . ." Id.
166 Id. at 259. The Court stated that it must consider "both the policies that [an immunity]
serves and its compatibility with the purposes of § 1983 ..." before recognizing an immunity under
the statute. Id.
I" Justice Blackmun wrote the majority opinion, joined by Chief Justice Burger, and Justices
Stewart, White and Powell.
'" See supra notes 145-49 and accompanying text for a discussion of the Owen dissent.
166 Fact Concerts, 453 U.S. at 259; Owen, 445 U.S. at 676 (Powell, J., dissenting).
167 Fact Concerts, 453 U.S. at 267 ("an award of punitive damages against a municipality
'punishes' only the taxpayers, who took no part in the commission of the tort"); Owen, 445 U.S. at 669
(Powell, J., dissenting).
168 Fact Concerts, 453 U.S. at 271; Owen, 445 U.S. at 670 (Powell, J., dissenting).
159 Fact Concerts, 453 U.S. at 268.
The crux of the Fact Concerts opinion, however, was the Court's reasoning that a
municipality could not have the malicious intent required for punitive damages to
attach. 111° The Court distinguished between holding a municipality liable for
constitutional deprivations that result from the effectuation of its official policies, and holding
a municipality liable for the "knowing and malicious" acts of a municipal official.' The
Fact Concerts Court noted that when an official acts pursuant to an officially adopted
municipal policy, he or she often will be accorded a good faith immunity; 162 the
municipality, however, may be held liable under section 1983. 1 " If an official acts unilaterally,
and maliciously deprives an individual of his or her constitutional rights, in contrast,
that official will not be accorded a good faith immunity and may be held personally
liable under section 1983. 1 " Thus the Court found that only the actual wrongdoer
should be punished, and the victim of a constitutional injury accorded an avenue of
redress in either instance.'"'
In summary, the Court in both Owen and Fact Concerts relied on common law
principles to give meaning to the language of section 1983. 1 " Both opinions relied on
section 1983's legislative history and language, the state of the common law in 1871, and
public policy grounds to give meaning to Congress's silence on the issues of a good faith
municipal immunity and the award of punitive damages against municipalities under
section 1983. 67 The philosophies underlying the two opinions, however, appear to have
been quite different.'" The Owen opinion stated that "equitable loss-spreading" should
join fault in determining liability, thus potentially opening municipalities to broad section
1983 liability. 169 The Fact Concerts opinion took the opposite approach and limited the
permissive scope of damage awards by finding municipal malice impossible thus
precluding the award of punitive damages. 17" One opinion sought to broaden municipal
liability, while the other limited it. 01 Both opinions, however, stressed that compensation
for past constitutional violations and the deterrence of future deprivations of
constitutional rights are the twin goals of section 1983. 12
1611 Id. at 267.
16 ' Id. at 263, 267. The Court called liability for punitive damages the inequity of visiting
retribution "upon the shoulders of blameless or unknowing taxpayers . " for acts of a "knowing
and malicious" government official, Id. at 267. The dissent, however, took exception with the
majority's exculpation of "blameless or unknowing taxpayers" stating, "when the elected
representatives of the people adopt a municipal policy that violates the Constitution, it seems perfectly
reasonable to impose punitive damages on those ultimately responsible for the policy— the citizens."
Id, at 274 (Brennan, J., dissenting).
162 See supra nate 137 and accompanying text for a discussion of § 1983 immunities.
163 See Monell v. New York City Dept. of Social Servs., 436 U.S. 660, 694 (1978).
164 Fact Concerts, 453 U.S. at 267.
166 1d. at 263.
166 See supra notes 132-38 and accompanying text and notes 150-59 and accompanying text
concerning common law principles and § 1983 municipal liability.
167 See supra notes 131-34 and accompanying text and note 150 and accompanying text
concerning congressional silence.
168 See supra note 124 and accompanying text contrasting the philosophies of the Owen and
Fact Concerts opinions.
I" See supra notes 141-43 and accompanying text for a discussion of "equitable loss-spreading."
17° See supra notes 160-61 and accompanying text for a discussion "municipal malice."
171 See supra note 124 and accompanying text.
172 Sec supra notes 140 and 159 and accompanying text for a discussion of the Court's assessment
of the purposes behind § 1983.
b. The "affirmative link" or "causal connection" requirement: Rizzo and Polk County
Both Owen and Fact Concerts concerned constitutional deprivations clearly caused by
official municipal policies.'" In many other cases, however, plaintiffs allege that action
less directly attributable to the municipality or its officials has "caused" a constitutional
deprivation. 174 As a result, the Supreme Court requires proof of an "affirmative link"
between the alleged constitutional injury and an official municipal policy or custom in
order to trigger municipal liability under section 1983.' 75
The requirement of an affirmative link between the alleged constitutional
deprivation and an official municipal policy derives from the Supreme Court's 1976 decision in
Rizzo v. Goode." The Rizzo plaintiffs alleged a pattern of frequent constitutional rights
violations by the Philadelphia police.'" The plaintiffs also alleged that departmental
procedure tended to discourage civilians from filing complaints and minimized the
consequences of police misconduct.'" The district court found no departmental policy
concerning the alleged police misconduct, although it agreed that the plaintiffs had
proved numerous instances of police misconduct.'" The Supreme Court stated that the
absence of such a policy, or so-called "affirmative link," between the demonstrated police
misconduct and the decisionmaking officials relieved the defendants of liability under
section 1983.' 8°
Some lower courts have read Rizzo's "affirmative link" or "causal connection"
requirement to require a clearly stated or officially adopted policy before liability under
section 1983 attaches. 15 ' Other courts simply require proof of gross negligence before
municipal liability may attach under section 1983. 188 Finally, still other courts have read
Rizzo for the principle that, under section 1983, supervisors do not have a duty to
supervise municipal employees.'" At a minimum, however, Rizzo requires (I) an official
policy or unofficial but widespread custom, (2) attributable to the municipality, either
explicitly or implicitly, (3) that is a sufficient "affirmative link" to the alleged constitutional
deprivation, before municipal liability will attach.'"
Polk County v. Dodson, 185 decided three years after Monell,'" reiterated the Rizzo
Court's requirement of a causal connection between the municipality's official policy and
the plaintiff's constitutional deprivation.'" In Polk County, the plaintiff, a county prisoner,
alleged that a county policy discouraging frivolous lawsuits infringed his due process
rights)" The Court stated that the plaintiff's claim failed to state that an unconstitutional
policy caused his alleged constitutional deprivation. 189 The Court stated that the county
policy was not, in itself, unconstitutional." The Court found, therefore, that the plaintiff
had no cause of action under section 1983 because none of his constitutionally protected
rights had been violated.' 91
In summary, both the Rizzo and Polk County decisions require a causal connection
between a municipality's official policy or custom and a plaintiff's constitutional injury
in order to establish liability under section 1983. 192 The decisions do not, however,
require that the policy itself be unconstitutional for section 1983 liability to attach, 198
although dicta in Polk County suggested that possibility. 194 The Court's affirmative link
requirement derives from tort principles. 195 The application of tort principles to
municipal liability under section 1983 has prompted further questions.
municipal liability, while Tuttle finds the plurality opinion applying an individual liability
In the 1986 case of Pembaur v. City of Cincinnati Y 16 the Supreme Court grappled
with the "official policy" standard it articulated in Mone11. 2 " Pembaur involved a fourth
amendment search and seizure violation claim which arose out of the actions of a number
of municipal police officers attempting to serve a pair of capiases. 215 The case turned on
the question of how "official policy" could be established when authority had been
delegated. 219 The plurality held that the county prosecutor's telephoned instructions to
the police to "go in and get them" constituted official county policy, thus incurring
county liability for the police officers' acts.22°
The plurality opinion, authored by Justice Brennan, found that when a municipal
decisionmaker has the final authority to establish municipal policy and that policy results
in a constitutional deprivation, a court may hold the municipality liable under section
1983.721 The Brennan opinion stated that either a legislative enactment, or a policy
articulated by an authorized official sufficed to meet the official policy standard. 222 The
plurality reasoned that the decision of a policymaker with final authority to choose a
course of conduct from a number of alternatives that ultimately results in a constitutional
deprivation is no different than a policy adopted by a city council. 225 Justice Brennan
stressed that a municipality thus may be liable for a single decision by a policymaker, or
a single action resulting from that policy, if a person is deprived of a protected right. 224
Applying this "final authority" standard to the facts in Pembaur, the plurality found
that under Ohio law, the county prosecutor may establish county policy in legal matters,
such as the manner in which the police may serve capiases. 225 Thus, the plurality reasoned
that the prosecutor's instructions over the telephone to "go in and get them" established
the county's policy.m Because the Court subsequently held that policy unconstitutiona1, 221
Justice Brennan stated, the effectuation of these instructions violated Dr. Pembaur's
constitutional rights. 228
In concurring opinions both justices O'Connor and White stated that the "final
authority" standard was too broad. These Justices reasoned that this standard could
expand the scope of municipal liability beyond that envisioned in the Monell opinion.222
Neither of the Justices, however, articulated a standard consistent with Monell for
determining when a municipal official had established a municipal policy. 2" Justice White
distinguished Pembaur from a situation where the prosecutor's instructions violated the
current controlling law."' In that situation, the violation would give rise only to individual
liability because the controlling law would limit an individual officer's authority. In
Pembaur, however, Ohio law did not establish the illegality of the officers' entry at the
time of the incident and this precluded individual liability. 252 Justice Stevens, in contrast,
argued for expanding section 1983 municipal liability to include respondeat superior
liability in order to effect the "broad remedial purpose of the statute." 2"
Justice Powell's dissent argued that an official policy standard should focus on two
factors: the nature of the decision reached or the action taken, and the process by which
the decision was reached or the action was taken. 234 Furthermore, according to justice
ROSTON COLLEGE LAW REVIEW
Powell, an official policy should be a "rule of general applicability." 235 The dissent
contended that the plurality's reasoning was circular, official policy being made by
"policymakers" and policymakers establishing official policy. 236 By focusing on the nature
of the policymaker's decision and the process by which it was reached, Justice Powell
argued, mere ad hoc decisions would be distinguished from true municipal policies. 237
Applying this reasoning to the facts of the case, the dissent found that the municipality
had adopted no rule of general applicability, suitable to all similar situations. 236 In
addition, Justice Powell's opinion stated that the "off the cuff manner" of the prosecutor's
decision did not indicate an extended deliberation or a formal decisionmaking process
that would evidence the adoption of an official policy. 232 The dissent concluded,
therefore, that the county prosecutor's instructions could not have established an official
county policy. 240
Unlike Pembaur, where the Court attempted to resolve the major issue of who may
establish official policy,24 ' the 1985 case of City of Oklahoma City v. Tuttle presented the
Supreme Court with a narrow question. 242 In Tuttle, the issue was whether a municipal
policy may be inferred from a single isolated incident. 243 The Tuttle plaintiff sued both
the city and an individual police officer under section 1983, alleging that their actions
deprived the decedent of his constitutional right s.244 T he Tulle plaintiff argued that
under Monell the city should be liable for gross negligence in failing to train its police
officers adequately. 245 Furthermore, this inadequate training could be inferred from a
single, unusually excessive use of force by a police officer, as in this case, where a robbery
suspect was shot and killed. 245 A majority of the Court refused to infer official municipal
policy from a single incident involving a municipal officer without policymaking authority
— such as a low-level police officer. 247 Both the plurality 248 and concurring249 opinions
relied on the Monell Court's statement that a municipality may be liable only for its own
actions. 25 " Citing Monell's fault requirement251 and the statute's causation requirentent, 25 2
both opinions concluded that municipal liability under section 1983 requires more than
an employment relationship. 255 Instead, the plaintiff must prove that the municipality
itself, through an official policy or custom, caused the constitutional violation. 254
Justice Brennan identified four elements as essential to recovery under section
1983. 255 Tuttle's concurring opinion stated that a plaintiff must show that (1) a person,
(2) acting under color of state law, (3) subjected the plaintiff, or caused the plaintiff to
be subjected, (4) to the deprivation of a protected right. 256 The plurality and concurring
opinions differed as to which element of the section 1983 cause of action Tuttle
implideath. At trial, the plaintiff' introduced evidence that Springfield police officers were not trained
adequately in proper pursuit procedures. Indeed, one of the pursuing officers testified that "his
training on stopping a car consisted of being told to move up behind it, put on his lights and siren,
and hope the suspect pulls over." Kibbe, 777 F.2d at 807.
244 Tuttle, 471 U.S. at 811-12. Officer Julian Rotramel had been a member of the Oklahoma
City police force for only ten months when he shot and killed Albert Tuttle outside a bar in
Oklahoma City. Rotramel had responded to a call indicating that an armed robbery was in progress
at the bar. A barmaid testified that when Romainel entered the bar she told him that no robbery
had occurred. While Romaine' attempted to ascertain the facts, he tried to stop Tuttle, who fit the
description of the alleged robber, from leaving the bar. Tuttle broke away, however, and ignored
the officer's commands to "halt." Romainel testified that when he followed him outside, Tuttle was
crouching and reaching into or near his boots. The officer again ordered Tuttle to "halt," but when
'I'uttle began to come out his crouch, Rotramel fired, believing that Tuttle had removed a gun from
his boot. When Tuttle's boot was removed later at the hospital, a toy gun fell out of it. Id. at
8141 I. Tuttle later died and his widow brought suit against the City of Oklahoma City. Id. at 811.
245 at 812-13. Plaintiff also argued that the city was grossly negligent in its failure to
supervise, review, or discipline its police officers. Id.
246 at 813. The district court judge instructed the jury, "a single, unusually excessive use of
force may be sufficiently out of the ordinary to warrant an inference that it was attributable to
inadequate training or supervision amounting to 'deliberate indifference' or 'gross negligence' on
the part of the officials in charge." Id.
242 Id. at 823-24; id. at 832-33 (Brennan, J„ concurring).
246 Rehnquist wrote the plurality opinion, joined by justices Burger, White and
O'Connor, Justice Powell did not take part ill the decision.
2" The concurring opinion, authored by Justice Brennan, was joined by Justices Marshall and
471 U.S. at 818; id. at 831 (Brennan, J., concurring).
251 Id. at 818, 824; id. at 83! (Brennan, J., concurring).
252 Id. at 818, 823-24; id. at 829-30 (Brennan, J., concurring).
253 Id. at 818; id. at 831 (Brennan, J., concurring).
254 Id. at 817, 823-24; id. at 829-31 (Brennan, concurring).
255 at 829 (Brennan, J., concurring).
256 Id. (Brennan, J., concurring).
catec1. 297 The opinions also diverged on the question of whether a single incident which
results in a constitutional deprivation could ever give rise to municipal liability under
section l983. 299 justice Rehnquist's plurality opinion emphasized that municipal policies
must be the result of "conscious choice," 299 presumably made by municipal policymakers.
Furthermore, a course of conduct rather than a single incident was required before a
court might infer municipal custom. 260 Justice Brennan's concurring opinion, in contrast,
emphasized the need for proving the municipality's causation of the injury 26 ' and invoked
foreseeability as a relevant standard. 262
Justice Rehnquist addressed the issue of whether Officer Rotramel acted under
color of state law. 269 He observed that a policy is established only by conscious choice, 264
and that it is unlikely that a municipality would consciously choose to inadequately train
police officers.269 Justice Rehnquist did not, however, mention the role custom could
have played in Officer Rotrarnel's actions. He stated only that proof of a single incident
of unconstitutional conduct was not sufficient to trigger municipal liability unless
accompanied by proof that the incident was caused by an unconstitutional policy attributable
to the municipality. 266 The plurality opinion concluded that if proof of an
unconstitutional policy is not shown, more than a single incident of unconstitutional action is
required to establish a municipality's fault and the connection between a municipal policy
and the constitutional injury. 267
Justice Brennan's concurring opinion, in contrast, emphasized the causation element
of a section 1983 cause of action. Justice Brennan stated that a single incident of
unconstitutional behavior could give rise to municipal liability if the plaintiff proved the
municipal policy or custom which caused the injury. 269 Justice Brennan stated that if an
official municipal policy or custom causes a constitutional violation, then the municipality
itself is at fault and should be liable under section 1983. 269 When a constitutional
deprivation is not the result of such an official policy, Justice Brennan found, the city could
not have prevented the incident and is, therefore, not at fault. 279 justice Brennan divided
252 For a discussion of the causation element of a 1983 claim, see supra notes 278-79 and
256 See Tuttle, 471 U.S. at 823-24, id. at 831 (Brennan, J., concurring).
2" Id. at 823. See also infra note 278.
260 Tuttle, 471 U.S. at 823-24.
261 Id. at 831 (Brennan, J., concurring).
262 Id. (Brennan, J., concurring).
262 at 823-24.
261 at 823.
266 1d. at 823-24.
the at 833 n.8 (Brennan, J., concurring)
("If a municipality takes actions ... that cause the
deprivation of a citizen's constitutional rights, section 1983 is available as a remedy.")
269 Id. at 829-31 (Brennan, J., concurring). The concurrence disagreed with the plurality's
implicit requirement of proof of more than one violation of a constitutional right before a
municipality may be liable under 1983. Justice Brennan specifically noted that "[a] § 1983 cause of action
is as available for the first victim of a policy or custom that would foreseeably and avoidably cause
an individual to be subjected to deprivation of a constitutional right as it is for the second and
subsequent victims ... ." Id. at 832 (Brennan, J., concurring).
226 Tuttle, 471 U.S. at 831 (Brennan, J., concurring) ("In such a case, [when the misbehavior
was attributable to other factors for which the city is not responsible], the city itself may well not
bear any part of the fault for the incident; there may have been nothing that the city could have
done to avoid it.").
the causation element of section 1983 into two parts: an action taken by a municipality
as opposed to a municipUl employee's unilateral action, and proof that this municipal
action caused the deprivation of a protected right. 271 Under this analysis, the concurrence
found that a municipality's procedures for training its police officers were bona fide
policies for the purposes of the first part of the test. 272 Justice Brennan concluded,
however, that the lower court's instructions had made it possible for the jury to disregard
the second element of the test. 273 Justice Brennan's concurrence stated, therefore, that
liability could not attach because the lower court had not required proof of' a causal
connection between the municipality's policy of training and the constitutional
deprivation. 274 Inferring such a policy or custom from a single incident would be tantamount
to respondeat superior liability, stated Justice Brennan.279 But, he stated, section 1983 is as
available to the first victim of a policy or custom which causes a constitutional violation
as it is for subsequent victims. 276 In addition, Justice Brennan's opinion noted that the
foreseeability, and thus ayoidability, of a victim's injury as a result. of a municipal policy
or custom was a sound basis for imposing section 1983 liability. 277
The two opinions' different emphases may explain their division over two issues
raised in dicta by the plurality: whether a municipality's training program for its police
officers constitutes an "official policy" as envisioned by Mone11, 278 and whether an
otherwise constitutional policy could give rise to municipal liability under section 1983. 279
Justice Rehnquist's plurality found that, generally, it was doubtful that a constitutional
policy such as police training procedures, could ever give rise to municipal liability under
section 1983.29" Justice Rehnquist contrasted Monell's clearly unconstitutional policy of
requiring maternity leaves regardless of physical condition 291 with the more "nebulous"
police training procedures alleged in Tuitle. 282 justice Brennan's concurring opinion,
however, stated that it is irrelevant whether a policy is constitutional or
unconstitutional. 299 Instead he looked to the question of causation. 284 Finally, Justice Stevens, in his
27 ' Id. at 829-30 (Brennan, J., concurring).
272 Jr/. (Brennan, J., concurring).
272 Id. at 832-33 (Brennan, J., concurring).
27" Id. (Brennan, J., concurring).
272 Id. at 831 (Brennan, J., concurring).
276 Id. at 832 (Brennan, J., concurring).
277 Id, at 831-32 (Brennan, J., concurring).
27" Tuttle, 471 U.S. at 823. The Court stated that the term "policy generally implies a course of
action consciously chosen from among various alternatives, it is therefore difficult , to accept the
submission that someone pursues a 'policy' of 'inadequate training' unless evidence ... proves . ,
that the policyrnakers deliberately chose a training program which would prove inadequate." Id.
See also id. at 829 (Brennan, J., concurring) ("In this case, the municipal policies involved were the
set of procedures for training and supervising police officers.").
279 Id. at 824 n.7 ("We express no opinion on whether a policy that itself is not unconstitutional,
such as the general 'inadequate training' alleged here, can ever meet the policy requirement of
Modell."); id. at 833, ti.8 (Brennan, J., concurring) ("I do not understand, nor do I see the necessity
for, the metaphysical distinction between policies that are themselves unconstitutional and those
that cause constitutional violations.").
2tio l'utt/e, 471 U.S. at 823.
291 For a discussion of Mandl, see supra notes 97-117 and accompanying text.
222 Tuttle, 471 U.S. at 822-23.
222 Id. at 833 n.8 (Brennan, J., concurring). See also supra note 279.
`04 Id. at 833 n.8 (Brennan, J., concurring)
("If a municipality takes actions ...that cause the
deprivation of a citizen's constitutional rights, section 1983 is available as a remedy.")
dissenting opinion, argued that respondeat superior, rather than the Court's "official policy"
standard, should be applied to municipal liability under section 1983. 295
In summary, a majority of the Tuttle Court agreed that an official municipal policy
or custom cannot be inferred from a single isolated incident involving a single low-level
police officer. 296 Furthermore, a majority agreed that section 1983 liability attaches only
when a municipality itself is at fault by causing a constitutional deprivation through its
own policy or custom. 297 The Tuttle Court divided, however, over defining official policy
and sufficient cause under section 1983. 288 justice Rehnquist viewed conscious choice as
an essential element of policy289 and stated that when the policy is not in itself
unconstitutional, it may not provide a sufficient basis for municipal liability. 29° The concurring
opinion of Justice Brennan, however, relied on causation as the accurate measure of
fault. 29 ' If a municipality's official policy or custom causes a constitutional violation,
argued Justice Brennan, the municipality ought to be liable under section 1983 regardless
of whether the policy itself is unconstitutional. 292
The Court's disagreement over the definition of official policy and causation under
section 1983 has led to confusion in the lower courts, 293 The two contrasting cases of
Kibbe v, City of springfield29m and Grandstaff v. City of Borger 29 ' are excellent illustrations of
the lower courts' division concerning municipal liability under section 1983. In Kibbe,
the Court of Appeals for the First Circuit found inadequate police training a valid
"affirmative link" to the plaintiff's constitutional injury. 296 In Grandstaff, however, the
Fifth Circuit stated that such inadequate training was ordinarily not the moving force
behind a constitutional violation. 297 Both circuits agreed that Tuttle's single incident rule
was not implicated when many police officers were involved in the incident at issue"
and both courts inferred municipal liability under section 1983. 29 The Grandstaff court
found a police department policy or custom of dangerous recklessness," while the Kibbe
court identified inadequate training as the basis for municipal liability)"
Because of the Fifth Circuit's uncertainty over the recent Tuttle decision, the
Grandstaff court declined to rely on inadequate training as the basis for section 1983 liability."
The court found that it could not determine what conscious choices on the part of the
city policymaker would be sufficient to satisfy the Tuttle Court's causal requirement)"
In addition, the court stated, "[w]e doubt that a finding of 'gross' negligence in [police]
training will always be the ticket to municipal liability."" Significantly, the Fifth Circuit
sought to balance its new, more restrictive official policy standard, articulated in Bennett
v. City of Slide11,505 and the Supreme Court's somewhat contradictory and confusing
opinion in Tuttle. The Grandstaff court established its balance by requiring that the moving
force behind the deprivation be a demonstrated policy of dangerous recklessness."
In contrast to the Fifth Circuit, the Kibbe court found an "affirmative link" between
a policy of inadequate training and resort to harmful police methods." The First Circuit
distinguished Kibbe from Tuttle on three grounds)" First, the court argued that when
many police officers are involved, as in Kibbe, the court can draw inferences regarding
municipal policies — unlike Tuttle, where a single inexperienced officer Fired a single
round." The Kibbe court found that the chain of events in the instant case was not the
sort of "single incident" the Tuttle Court addressed."' Second, the Kibbe court found that
the jury had sufficient evidence to find that the police department's gross negligence in
training caused the premature use of deadly force against the decedent)" 1 Finally, the
Kibbe court concluded that inadequate training can be an "affirmative link" between the
alleged constitutional deprivation and the municipality." 2
II. A FORESEEABILITY-BASED STANDARD WILL CLARIFY THE SCOPE OF MUNICIPAL
LIABILITY UNDER SECTION 1983
Lower courts urgently need a clear standard for determining municipal liability
under section 1983. The Supreme Court's attempts to fashion a compromise between
municipal immunity and respondeat superior liability313 clearly has created a great deal of
confusion and uncertainty in this area.'" Although the Supreme Court requires a causal
link between a municipality's official policy or customs'' and a plaintiff's constitutional
injury," 6 the Court's opinions provide relatively little guidance on how lower courts may
correctly construe this causal connection requirement. Hence, the lower courts have
established differing standards for imposing section 1983 municipal liability."'
This note proposes a standard based on whether a municipality's policies or customs
could foreseeably deprive a person of a constitutional right. 9 k 8 This standard clarifies
Monell, 436 U.S. at 683) (emphasis in Tuttle). Montll's "official policy or custom" standard was also
a compromise between continuing the municipal immunity of Monroe, with its inconsistent result
of many "official capacity" suits and respondent superior liability. Official capacity suit judgments
rendered against municipal officials, interestingly, were usually paid out of municipal treasuries or
by municipal insurance policies when such judgments resulted from actions taken pursuant to a
municipal policy which caused a constitutional deprivation. Respondent superior liability, however,
would have resulted in municipal liablity solely on the basis of the employment relationship existing
between the municipality and its employees. See W. KEETON, supra note 114, § 70 at 501. Thus a
municipality would be liable for any constitutional violations visited by any municipal employee
white acting under color of law, whether furthering municipal policy, acting pursuant to municipal
custom, or acting on the vagaries of a whim.
514 E.g., compare Kibbe, 777 F.2d at 805-06 (inadequate police officer training a valid affirmative
link to establish municipal liability) with Grandstaff, 767 F.2d at 169 (inadequate police officer training
not the "ticket to municipal liability"). Even proponents of the official policy standard realized that
it would be difficult to define and apply. See Levin, supra note 83, at 1540. The Supreme Court, as
reflected in Pembaur's disparate opinions, itself is divided deeply as to the proper parameters of its
requirement. Currently, the most widespread standard applied by the lower courts is the "final
authority" standard, first articulated by the Fifth Circuit in Briscoe v. Familias Unidas, 619 F.2d
391 (5th Cir. 1980). See supra note 221. This standard, similar to the one proposed by Justice
Brennan in the plurality opinion in Pembaur, states that "in those areas where a city officer is the
final authority or ultimate repository of [city] power his official conduct and decisions must
necessarily be considered those of one 'whose edicts or acts may fairly be said to represent official policy'
for which the [city] may be held responsible under section 1983." Schneider v. City of Atlanta, 628
F.2d 915, 920 (5th Cir. 1980) (quoting Martell, 436 U.S. at 690). Although this standard has been
adopted by many of the circuits, see supra note 221, the Fifth Circuit recently overturned the "final
authority" standard and articulated a new one. See Bennett v. City of Slidell, 728 F.2d 765 (5th Cir.
1984) (en bane). The new Fifth Circuit definition of "official policy" has two parts. Webster v. City
of Houston, 735 F.2d 838, 841 (5th Cir. 1984), aff'd in part, reild in part, remanded, 739 F.2d 993
(5th Cir. 1984) (en banc) (per curiam). In the Webster decision the court stated:
Official policy is:
1. A policy statement, ordinance, regulation, or decision that is officially adopted
and promulgated by the municipality's lawmaking officers or by an official to whom
the lawmakers have delegated policymaking authority; or
2. A persistent, widespread practice of city officials or employees, which, although.
not authorized by officially adopted or promulgated policy, is so common and well
settled as to constitute a custom that fairly represents municipal policy. Actual or
constructive knowledge must be attributable to the governing body of the municipality
or to an official to whom that body had delegated policymaking authority. Actions of
officers or employees of a municipality do not render the municipality liable under
§ 1983 unless they execute official policy as above defined.
515 Monell, 436 U.S. at 694.
316 Polk County v. Dodson, 454 U.S. 312, 326 (1981); Monell, 436 U.S. at 694; Rizzo v. Goode,
423 U.S. 362, 377 (1976).
517 See supra notes 221 and 314 for a discussion of the two different official policy standards
adopted by the courts of appeals.
518 Professor Eric Schnapper first identified foreseeability as the crucial factor in municipal
both the Rizzo Court's causal connection requirement and the Monell Court's official
policy or custom standard by providing a means to determine whether an officially
adopted municipal policy, or an implicit municipal custom caused the plaintiff's
constitutional deprivation. The essential element of this standard is municipal awareness of
official policies and pervasive custom.
The proposed foreseeability standard equates responsibility for the results of actions
taken pursuant to municipal policies or customs with municipal policymakers' knowledge
of, and thus ability to control, these policies and customs. The proposed standard has
two prongs: the standard would find municipal liability under section 1983 when either
an official municipal policy is the reasonably foreseeable cause of a deprivation of
constitutional right, or when a municipality through gross negligence allows action taken
pursuant to a pervasive, but unadopted, Municipal custom to cause a constitutional
deprivation. Thus, a municipality will be held liable under section 1983 only for its own
violations of constitutional right, 31 " violations which the municipality should have
foreseen and prevented. The proposed foreseeability standard has two prongs. Because
official municipal policy is by definition established by municipal policymakers, 32"
knowledge of municipal policies is a certainty. Customs, however, emerge through usage 321
and are not necessarily established by policymaking officials. Under the proposed
standard, a court will hold a municipality liable for actions taken pursuant to municipal
custom only when municipal policymaking officials have either actual or constructive
knowledge of that custom. By finding section 1983 liability for customs only when the
plaintiff shows gross negligence, municipalities can avoid liability by exercising reasonable
care to keep abreast of municipal customs. Injured persons are, therefore, provided an
avenue of redress when municipal officials fail to exercise even slight care and neglect
to oversee and control harmful municipal customs.
A. The. Need for a Clear Standard
A majority of the Supreme Court Justices have agreed that municipalities may be
held liable under section 1983 when an official municipal policy or custom subjects a
person, or causes a person to be subjected, to the deprivation of a constitutional right. 322
The Court, however, has had a great deal of difficulty achieving a consensus concerning
the parameters of the Monell "official policy" standard. 323 As a result, the lower courts
have been unsure when municipal liability should attach under section 1983. 324
Conseliability. See Schnapper, supra note 17, at 235 ("The most plausible construction of the cause clause
is that it includes official policies which entail an unreasonable foreseeable risk of causing a
319 See Tank 471 U.S. at 818.
32° But see the multiple decisions in Pembaur, 106 S. CL at 1293, 1301 (White, J., concurring),
1302 (Stevens, 1, concurring), 1304 (O'Connor, J., concurring), and 1305 (Powell, J., dissenting)
(Supreme Court Justices' debate concerning the definition of official policy). See also supra notes
216-40 and accompanying text for a discussion of Pembaur.
32 ' WEBSTER'S NEW UNABRIDGED DicTioNteiuv 449 (1983 2d ed.). See also Monet', 436 U.S. at 691
& n.56 (citing Adickes v. S.11. Kress & Co., 398 U.S. 144, 167-68 (1970); Nashville, C. & St. L. R.
Co, v. Browning, 310 U.S. 362, 369 (1940) for their discussions of the role of custom in state law),
and BLACK'S Law DICTIONARY 347 (1979, 5th ed.).
392 Mandl, 436 U.S. at 690. See supra notes 97-117 and accompanying text.
'.3 See generally Petnbaur v. City of Cincinnati, 106 S. Ct. 1292 (1986); City of Oklahoma City
v. Tuttle, 471 U.S. 808 (1985).
924 See supra notes 293-312 and accompanying text.
quently, the circuits follow different standards regarding what constitutes Monell's official
policy and who may establish this policy." 5 Three separate issues, central to the
application of the Monell Court's standard, remain to be clarified. The first is the definition
of "official policy," second the role of municipal custom, and third the role of the Court's
"affirmative link" or "causal connection" requirement in section 1983 municipal liability.
1. What Is "Official Policy" and Who Establishes It?
The Supreme Court's lack of consensus in Pembaur526 clearly indicates how difficult
it has been to apply the "official policy" standard articulated by the Monell Court. 327 A
policy officially adopted by a municipality's governing board, such as the policies at issue
in Owen v. City of Independence and City of Newport v. Fact Concerts, certainly fits the Court's
standard." The difficulty lies in determining liability when an official policy has been
established in a less clear-cut fashion, such as when an official with delegated authority
established a municipal policy. Although six Justices of the Pembaur Court agreed that
the county prosecutor's telephoned instructions to police officers constituted official
county policy consistent with Mone11, 325 four separate opinions differed as to the proper
means for determining how courts should recognize official policy in future cases, with
none of the opinions achieving a majority." 0
The lower courts have also had a great deal of difficulty in applying the official
policy standard to situations where a municipal officer promulgated the policy in
question. For example, the Fifth Circuit recently abandoned the "final authority" standard
which it had itself articulated — and which other circuits had adopted"' — only to
articulate a stricter standard.'" In the 1984 case of Bennett v. City of Slidell, the Fifth
Circuit replaced its "final authority" standard with a two-part test that requires either
formal municipal action which expressly delegates policymaking authority to a municipal
officer, or municipal conduct or practice which encourages or acknowledges the officer's
policymaking role,'" Other appellate courts, however, continue to adhere to the final
authority standard."' This standard holds that the conduct and decisions of a municipal
officer who is the "final authority or ultimate repository of [municipal] power" represents
official policy for which the municipality may be held liable under section 1983. 3" It is
clear, therefore, that conflict exists both within the Supreme Court and among the circuit
courts concerning who may establish official municipal policy.
3" See supra notes 221 & 314 and accompanying text.
'2" See Pembaur v. City of Cincinatti, 106 S. Ct. 1292 (1986) (five opinions, none achieving a
majority, disputed the proper application of the official policy standard).
527 Muriel!, 365 U.S. at 694. See also supra note 99.
"'See supra note 173.
"9 Pembaur, 106 S. Ct. at 1293; id. at 1301 (White, J., concurring); id. at 1302 (Stevens, J.,
concurring); id. 1304 (O'Connor, J„ concurring).
320 See supra notes 221-33 and accompanying text.
331 See supra note 221,
3" See supra note 3I4.
3" Slidell, 728 F.2d at 769.
334 See supra note 221.
733 Familias Unidas v. Briscoe, 619 F.2d 391,404 (5th Cir. 1980).
2. The Role of Custom
The Monell Court expressly stated that a municipality 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." "q 0
The plurality opinion in Tuttle, however, mistakenly appeared to equate "custom" with
"policy.""" By equating policy and custom and then stating that policy "generally implies
a course of action consciously chosen from among various alternatives,""" the plurality
opinion in Tuttle ignored the force of custom. Custom generally implies a course of
action mandated by past practice, not chosen from alternatives. Custom can be likened
to tradition and may include practices which, although not officially adopted, constitute
the norm in a given situation. In order to effectuate fully the language of section 1983
and the Monell decision, the Supreme Court must articulate a standard that recognizes
the inherent differences between an official municipal policy and a municipal custom.
This standard would make it possible to determine when a municipality should be held
liable under section 1983 for actions taken pursuant to controlling municipal custom.
3. The Role of Causation and Fault
In Monroe v. Pape, the Supreme Court stated that section 1983 should be applied in
light of tort principles that hold a person responsible for his or her own actions." This
statement has helped both define the cause of action under section 1983 and obscure its
application. At least one commentator has noted that because the purposes and principles
that motivated section 1983's enactment are quite different from those underlying tort
law, courts should not blindly rely on tort law analogies to find liability under section
1983.54° In addition, the Supreme Court itself further muddied the waters by requiring
an 'affirmative link" or "causal connection" between the alleged constitutional injury
and a municipal policy or custom before section 1983 liability may attach. 5c The Court
created further complication by hinting that "fault" may be the basis for this liability. 542
Thus, the Court has not yet articulated a coherent standard which courts can apply
consistently and clearly to determine when liability will attach.
Because of the Supreme Court's lack of clarity, the lower courts have developed
different approaches to the causation requirement. 593 The inadequate police officer
training cases demonstrate the division of the circuit courts. 344 The First Circuit, for
example, recognized an affirmative link between a policy or custom of inadequate
training of police officers and the use of harmful police practices. 345 In contrast, the
Fifth Circuit, holds that inadequate police training is ordinarily not the moving force
Monell, 436 U.S. 690-91.
"7 Tuttle, 471 U.S. at 819-24.
"B Tuttle, 471 U.S. al 823.
"1" Monroe v. Pape, 365 U.S. 167, 187 (1961).
34(1 Nahmod, supra note 87, at 10.
" 1 See supra notes 173-95 and accompanying text.
542 See Tuttle, 471 U,S. at 824; id,,at 831 (Brennan, 3., concurring).
'' See supra notes 293-312 and accompanying text.
344 See supra note 16. See also supra notes 293-312 and accompanying text.
34' Kibbe, 777 17.2d at 814.
behind a constitutional deprivation. 346 Although the Supreme Court could resolve this
issue by deciding whether inadequate training of police officers may serve as an
affirmative link between a municipality and a plaintiff's constitutional deprivation, 341 the
more fundamental issue of determining what municipal action will constitute an
"affirmative link" sufficient to trigger section 1983 liability would still remain. The Supreme
Court must announce a standard which clarifies the Court's causation requirement, as
well as effectuates the Monell "official policy or custom" standard.
B. The Basis for a Foreseeability-Based Standard for Determining Municipal Liability Under
Any standard for determining municipal liability under section 1983 must address
three factors: the statute's language and legislative history, 348 the Supreme Court's
decisions regarding municipal liability under section 1983,319 and public policy
considerations. 35° The Supreme Court relied on these three factors in Monell, when it first
recognized municipal liability under section 1983,35 ' and also in the later decisions of Owen3"
and Fact Concerts. 353 The proposed foreseeability standard effectuates the dictates of
section 1983 and is consistent with both the legislative history and the judicial
construction of the statute.
1. The Foreseeability-Based Standard Is Consistent With the Language and Legislative
History of Section 1983
The proposed foreseeability standard is consistent with the language of section 1983.
This statutory language mandates, in part, that any person, acting under color of enacted
or customary state law, who subjects any person to the deprivation of a constitutional
right shall be liable to the injured party."' The proposed standard expressly recognizes
liability for actions taken pursuant to both enacted law, in the form of official policy,
and customary law, in the form of municipal custom. Thus the standard fully effectuates
345 Grandstaff, 767 F.2d at 169-70.
347 Interestingly, the Court passed up an opportunity to resolve the question of a municipality's
liability for inadequate training of police officers when it dismissed certiorari in Kibbe v. City of
Springfield as being improvidently granted. 107 S. Ct. 1114 (1987). Justice O'Connor, joined by
Chief justice Rehnquist and Justices White and Powell, wrote a stinging dissent to the per curium
decision and then proceeded to decide the case on the merits. The dissenting opinion concluded
that, absent "reckless disregard for or deliberate indifference to the rights of persons," municipal
liability will not attach under a theory of inadequate training. Id. at 1121 (O'Connor, J., dissenting).
348 Tuttle, 471 U.S. at 816; id. at 828 (Brennan, j., concurring) ("I agree with the plurality that
it is useful to begin with the terms of the statute.").
349 See supra notes 71-292 and accompanying text for a discussion of the major Supreme Court
decisions relating to municipal liability under § 1983.
35° City of Newport v. Fact Concerts, 453 U.S. 247, 259 (1981); Owen v. City of Independence,
445 U.S. 622, 650 (1980).
351 Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978).
552 Owen, 445 U.S. at 650.
855 Fact Concerts, 453 U.S. at 259.
354 See supra note 3 for the text of 1983. In the Monell decision, the Court recognized that
the term "person" encompasses municipalities. Monell, 436 U.S. at 690.
section 1983's language concerning liability for actions taken under color of both "statute,
ordinance, [or] regulation" 3" and "custom, or usage." 386
Furthermore, by mandating a dual standard of care, the proposed foreseeability
standard effectuates the "cause clause" of section 1983,357 which imposes liability only
on those persons who directly subject a person to deprivation of a constitutional right,
or who cause such an injury.'" The proposed standard defines causation in terms of a
standard of care. Only violations of a constitutional right foreseeably resulting from an
official municipal policy, or resulting from the gross negligence of a municipal official
in not correcting a harmful municipal custom, will be held to have been caused by the
municipality and thus result in liability under section 1983.
The legislative history of section 1983 also supports the proposed foreseeability
standard. Section 1983 was intended to put the power of the federal courts at the disposal
of those who could not obtain equal justice in their state or local courts. 3" If a
municipality caused a constitutional deprivation, either through enacted law or through
unwritten custom, Congress intended courts to hold the municipality liable under section
By providing a means to impose liability for both the results of municipal policy
and municipal custom, the proposed standard effectuates the intent of the 42d
Congress.S°' Congress specifically provided that not only would persons who actually acted
be liable under section 1983, 362 but also those who caused those actions.m3 The proposed
standard, consistent with Congress's determination to eliminate the cause of such a
constitutional deprivation, seeks to find section 1983 liability when either a municipal
policy or a municipal custom has caused the deprivation of a person's constitutional
2. The Foreseefibility-Based Standard Is Consistent With the Judicial Construction of
The proposed foreseeability standard also is consistent with the judicial
interpretation of section 1983. 364 In Mandl, the Supreme Court interpreted section 1983's mandate
35, 42 U.S.C. § 1983 (1982).
447 ("subjects, or causes to be subjected"). See also Schnapper, supra note 17, at 235.
355 See supra note 3 for the text of § 1983.
359 See Monroe, 365 U.S. at 183.
3411 Monell, 436 U.S. at 690.
MI See Monroe v. Pape, 365 U.S, 167,176-78 (1961) for a discussion of the legislative history
of § 1983 that demonstrates that the Reconstruction Congress considered inclusion of custom
necessary to eradicate the Klan's evils. Section 1983 was enacted to enforce the provisions of the
fourteenth amendment. The Forty-Second Congress realized that facially equal laws were being
unequally applied. This discriminatory application of the laws was being directed at certain
identifiable groups. Although the fourteenth amendment gave the federal courts power to strike down
discriminatory state law as being unconstitutional, unwritten practices made the bringing of' those
suits extremely difficult.. Other practices denied certain persons the protections of the local laws
because of those persons' political views or race. Consequently, the Forty-Second Congress enacted
a statute that made it a federal offense for anyone acting under color of any written or unwritten
state law to cause the deprivation of a person's constitutional rights. Id.
3"' 42 U.S.C. § 1983 (1982).
344 See infra notes 364-403 and accompanying text for a discussion of how the proposed
standard effectuates § 1983's judicial construction.
to include municipalities. 3"3 The Monell Court also stated that a municipality may be held
liable if effectuation of an Official policy or custom causes a constitutional deprivation. 366
Additionally, the Monell Court made the Rizzo holding — that no section 1983 liability
can be imposed without an affirmative link between the constitutional injury and a policy
or custom — applicable to municipalities. 367 The Court also has held that mere negligence
cannot give rise to section 1983 liability, but the Court has not determined whether a
stricter standard may be appropriate. 368 Filially, the Court rejected respondeat superior
liability,3"9 finding that section 1983 liability may be imposed only for a municipality's
own actions which cause a constitutional deprivation."0
The Supreme Court holds municipalities liable under section 1983 only for the
results of policies or customs directly attributable to the municipality itself."' The Court
will not predicate municipal liability on respondeat superior, however, because that could
lead to liability for employee actions taken without the municipality's knowledge or
consent. 972 This resulted in the Monell Court's official policy standard 575 The Supreme
Court, however, has had a great deal of difficulty in applying the Monell standard. 374
This in turn has resulted in varying applications and inconsistent results in the circuit
The major problem with section 1983 liability is that a municipality cannot act
independently." 6 A municipality can act only through a policymaking official."'
Consequently, the Court will find a municipality liable under section 1983 only when
execution of an official policy or custom inflicts a constitutional deprivation.'"
The Court's official policy standard has two components: liability for officially
enacted policies, 379 and liability for municipal custom."'" Each component of the Monell
965 Monell, 436 U.S. at 690,
' 66 Id. at 694.
365 Daniels v. Williams, 106 S. Ct. 662,665 (1986). See also supra notes 196-210 and
accompanying text for a discussion of negligence and intent in § 1983 actions.
569 Monet', 436 U.S. at 691.
576 Id. See also Tuttle, 471 U.S. at 824.
571 Monell, 436 U.S. at 690-91. See also supra note 314.
572 Respondeat superior liability does not depend on fault to establish liability. It looks only to the
employment relationship and holds the employer liable for the torts of the employee. See W. KEETON,
supra note 114, § 70 at 501-02.
$75 See Brown, supra note 54, at 906-08. See also generally Levin, supra note 83.
374 See supra notes 211-293 and accompanying text for a discussion of Pembaur and Tuttle.
575 See supra note 314.
' 76 Mandl, 436 U.S. at 690.
3" See, e.g., Pembaur, 106 S. Ct. at 1299-1301. See also .supra notes 221 and 314 and
accompanying text for a discussion of how the "final authority" standard has fared in the lower courts.
no Monett, 436 U.S. at 694.
"9 1d. at 690
("Local governments may be sued directly under § 1983 ... where 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.")
580 Id. at 690-91 ("[L]ocal governments ... 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."). See also Adickes v. S.H. Kress & Co., 398
U.S. 144,167-68 (1970); and Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 367,369 (1940).
Eric Schnapper has written, regarding municipal custom: "The frequency and pattern of the
practice alleged to be a custom or usage must be sufficient to give rise to a reasonable inference
standard raises separate issues. By definition, municipal policymakers establish official
policy."' These same policymakers represent the municipality, which makes the
municipality aware of the policies and, presumably, their foreseeable results. Customs, in
contrast, are not established by policymakers but are the result of practice or tradition.'"
It is thus likely that a municipality, through its policymakers, will be less aware of customs
and their foreseeable results. Therefore, courts can attach section 1983 liability for a
constitutional deprivation arising from effectuation of a policy adopted by municipal
Finding the requisite connection between a custom and a municipality in order for
section 1983 liability to attach is more difficult. This may explain why recent Supreme
Court decisions have neglected the role of customary law in section 1983 municipal
liability." The Mandl Court acknowledged that unwritten customs occasionally have the
force of law."' In Tuttle, however, the plurality avoided the possibility that municipal
custom dictated some police officer training and supervisory procedures that could have
controlled the officer's actions at issue in the case."'
The crucial difference between an official municipal policy and a municipal custom
under section 1983 should not be based on the number of occurrences of a given act,""
as the plurality opinion in Tuttle suggests,'" but, rather, on the municipality's knowledge
of the policy or custom at issue. If municipal policymakers have notice of policies or
customs that control employees' actions in given circumstances, then a municipality
should be responsible for those actions. If constitutional deprivations result, the courts
should find the municipality at fault and liable to the person injured under section 1983.
The distinction between official municipal policy and municipal custom provides a
continuum based on the degree of the municipality's awareness of possible liability under
that the public employer and its employees are aware that public employees engage in the practice
and do so with impunity ...." Schnapper, supra note 17, at 229.
• "L But see the multiple decisions in Pembaur, 106 S. Ct. at 1293, 1301 (White, J., concurring),
id. at 1302 (Stevens, J., concurring), id. at 1304 (O'Connor, J., concurring), and id. at 1305 (Powell,
J., dissenting) for the Supreme Court Justices' debate concerning the definition of official policy.
See also notes 204-28 and accompanying text for a discussion of Pembaur.
3" See, e.g., Adickes v. S.H. Kress & Co., 398 U.S, 144, 167-68 (1970)
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.");
Nashville, C. & St. L. R. Co. v. Browning, 310 U.S, 362, 369 (1940) ("It would be a narrow conception
of jurisprudence to confine the notion of 'laws' to what is found on the statute books, and to
disregard the gloss which life has written upon it. Settled state practice . . . can establish what is
state law Deeply embedded traditional ways of carrying out state policy are often tougher
and truer law than the dead words of a written text.").
3" E.g., Pembaur, 106 S. Ct. at 1299; Tuttle, 471 U.S. at 823-24.
"-0 Monett, 436 U.S. at 691.
'8 ' See Tuttle, 471 U.S. at 823 (ignores possibility of "custom" of inadequate training of police
officers; instead opinion referred to "policy" of inadequate training and then discussed probability
that such a policy would not be consciously adopted).
3" E.g., compare id. at 824 ("considerably more proof than the single incident will be necessary
in every case to establish both the requisite fault' ... and the causal connection") with id. at 832
(Brennan, J., concurring)
("A 1983 cause of action is as available for the first victim of a policy
or custom that would foresecably and avoidably cause an individual to be subjected to deprivation
of a constitutional right as it is for the second and subsequent victims.")
3" Id. at 824.
the proposed foreseeability standard. According to this standard, on one end of the
spectrum an officially adopted municipal policy leads to liability under section 1983 when
it is reasonably foreseeable that the policy would violate the plaintiff's constitutional
rights. At the other end of the spectrum, a municipality is not liable under section 1983
for constitutional deprivations resulting from the unilateral actions of a municipal
agent.'" In the center of the spectrum lies municipal custom. Because custom is more
difficult for municipal policymakers to apprehend and oversee, the standard imposes
liability only when such customs are the result of the policymakers' gross negligence,
and evidence a lack of the exercise of even slight care.
The proposed foreseeability standard does not define official municipal policy, but
it clarifies the Court's concept of official policy in two ways. First, this standard
distinguishes between official policies, which are the result of conscious choice,389 and
municipal custom, which generally results from tradition or practice. Second, this standard
clarifies the application of the official policy standard by providing a standard of conduct
to which municipal officers must adhere to protect their municipality from section 1983
liability. Thus, the proposed foreseeability standard puts municipalities on notice that
these policies will cause municipal employees to act as directed by the policy. If these
actions will foreseeably result in a constitutional deprivation, then the municipality is "at
fault" when such an injury occurs, and courts should hold them liable under section
1983. Although the exact dimensions of the Court's official policy standard remain
undefined,39° clearly, the Court must resolve the conflict between the circuits and establish
a standard for determining when a municipality has delegated policymaking authority. 39 '
The proposed standard also clarifies the concept of a municipal custom and
distinguishes it from officially adopted municipal policy by requiring a higher degree of
municipal misconduct to trigger section 1983 liability. In instances where implicit
customary law is at issue, however, knowledge is more difficult to establish. If municipal
policymakers do not have actual knowledge of such a custom, the municipality cannot
act to prevent its application and consequent harm. Section 1983, however, establishes
liability when persons acting under color of state custom or usage cause a constitutional
deprivation. 393 The courts have had the most difficulty distinguishing between those
situations where custom causes an injury, and where the injury results from a person's
unilateral action. An equitable balance mandates municipal liability under section 1983
when actions taken pursuant to municipal customs, so egregious as to rise to the level
of gross negligence, result in constitutional injury. 393 Because such customs evidence a
555 This is consistent with the Monell Court's rejection of respondent superior liability for
municipalities under § 1983. See supra note 114 for a discussion of the theory of respondent superior liability.
559 See Tuttle, 471 U.S. at 823.
39° See generally Pembaur v. City of Cincinnati, 106 S. Ct. 1292 (1986). See supra notes 216-40
and accompanying text for a discussion of Pembaur.
"'See supra notes 221 and 314 and accompanying text for a discussion of the lower courts'
conflict over the proper application of the official policy standard.
592 42 U.S.C. § 1983 (1982) ("acting under color of any ... custom, or usage, of any State").
Congress recognized that unwritten law, or custom, can dictate behavior in a given situation with
the same force as statutory law. The Supreme Court also acknowledged the power of custom in the
Monell decision. See Monell, 436 U.S. at 690-91 & n.56.
595 Many lower courts have adopted a gross negligence standard:
If a municipality completely fails to train its police force, or trains its officers in a
reckless or grossly negligent manner so that future police misconduct is almost
inevitable, the municipality exhibits a "deliberate indifference" to the resulting violations
lack of even slight care by municipal officials, courts may justly impute both knowledge
and responsibility to the municipality. 994 This standard recognizes that it is essential that
municipalities are held liable for constitutional injuries resulting from municipal custom
in order fully to effectuate the language of section 1983.
Finally, the proposed standard clarifies the Court's affirmative link or causal
connection requirement."' The standard attempts to reconcile the congressional directive
that no person, acting under color of state law, shall subject, or cause to be subjected,
another person to the deprivation of a constitutional right' 90 with the difficult problem
of ascertaining the "true" cause of a constitutional injury.'J7 Because fundamental rights
are at stake, deterring constitutional violations is of paramount importance. The standard
encourages municipal policymakers to continually evaluate officially adopted municipal
policies and stimulates inquiry into municipal custom.
The Supreme Court has not clearly addressed the role of causation in section 1983
actions against niunicipalities.398 The Court has stated that lower courts should read
section 1983 in light of tort principles.'" The Supreme Court justices have disagreed
over the requirements of section 1983's causation element, however: 0-H'
The issue of "proximate cause," or more accurately, legal cause, has been framed
as whether the defendant is under any duty to the plaintiff, or whether the duty
encompasses protection against plaintiff's specific injury."' Clearly, the disagreement
concerning causation among the Justices of the Supreme Court, and among the circuits,
of a citizen's constitutional rights. In such a case, the municipality may fitirly be termed
as acquiescing in and implicitly authorizing such violations.
Leite v. City of Providence, 463 F. Stipp. 585, 590 (D.R.1. 1978). See also Voutour v. Vitale, 761
F.2d 812, 820 (
1st Cir. 1985
); Wellington v. Daniels, 717 F.2d 932, 937 (4th Cir. 1983); Hays v.
Jefferson County, 668 F.2d 869, 874 (6th Cir. 1982); Herrera v. Valentine, 653 F.2d 1220, 1224
); Turpin v. Mallet, 619 F.2d 196, 202 (2d Cir. 1980).
"4 Cross negligence is defined as the lack of even slight care. W. KEETON, supra note 114, 34
at 211, When municipal policymakers do not use even slight care in overseeing the implementation
of municipal custom, it is foreseeable that constitutional deprivations will result.
"5 See supra notes 173-84 and accompanying text for a discussion of the Court's affirmative
link or causal connection requirement.
3" See supra note 3 for the text or § 1983.
"7 42 U.S.C. § 1983 (1982).
59" The Court has stated that there must be a "causal connection" or "affirmative link" between
a municipal policy or custom and the resulting constitutional violation before municipal liability will
attach under § 1983. See supra notes 173-84 and accompanying text. The Court has not, however,
defined that connection.
"9 Monroe, 365 U.S. at 187. The Court stated, Islection [19831 should be read against the
background of tort liability that makes [one] responsible for the natural consequences of [one's]
actions." Id. It may well be, however, that the Court meant that § 1983 should be applied in light
of such fundamental tort principles as deterring future misconduct and compensating for past
injury. See, e.g., Nahmod, supra note 87, at 9-11. Professor Nahmod argues that "[h]ecause tort law
and section 1983 might serve different purposes and protect different interests, this federal common
law should be developed with a view to effectuating the purposes of section 1983." Id. at 9. He lists
as § 1983's two major functions; compensation, especially when there is no adequate state remedy;
and deterrence, which, "because constitutional interests are at stake, . . might be more important
under section 1983 than it is under tort law." Id. at 10-11,
400 See 'Futile, 471 U.S. at 823-24; id. at 829-31 (Brennan, J,, concurring).
401 See W. KEETON, supra note 114, § 42 at 275. "Duty" has been described as "a duty, or
obligation recognized by law, requiring the person to conform to a certain standard of conduct, for
the protection of others against unreasonable risk." Id., § 30 at 164.
is less a question of fact than a question of the proper legal policy in each case. Thus,
the standard of conduct." that the Court should impose on municipalities for the
protection of constitutional rights must address the principles and purposes underlying
The proposed foreseeability-based standard for determining section 1983 municipal
liability provides the required causal connection between a municipality and a
constitutional deprivation. Constitutional deprivations foreseeably caused by municipal policies
of which municipal policymakers have actual knowledge should trigger section 1983
liability. So, too, when an egregious municipal custom causes a constitutional deprivation,
courts should hold the municipality liable under section 1983 by imputing knowledge
of the custom to the municipality.
3. Effectuation of the Policies Implicit in Section 1983
Congress enacted section 1983 to protect all persons within the jurisdiction of the
United States from deprivations of their constitutionally protected rights by actions taken
under color of state law.904 Section 1983 establishes a duty on the part of all persons,
including municipalities, to refrain from conduct that subjects a person, or causes a
person to be subjected, to deprivation of a constitutional right." While responsibility
for direct violations of a person's constitutional rights is relatively simple to determine,
indirect causation is much more difficult to ascertain.
The determination of proximate or legal cause is necessarily based on policy
considerations." and commentators have identified two major policies as central to
section 1983: deterring deprivations of constitutional rights and compensating such
deprivations. 107 Section 1983 accomplishes its goals by deterring future deprivations of
constitutional rights and compensating victims of past constitutional violations." Thus
a standard for determining municipal liability under section 1983 should promote
deterrence of and compensation for violations of constitutional rights.
Professor Nahmod states that because of the importance of constitutional rights,
deterrence of constitutional violations is section 1983's most compelling goal In order
to deter constitutional violations caused by municipalities, a standard must permit
municipalities to prevent such policy- or custom-based actions and must provide an incentive
for municipalities to exercise such foresight. In addition, when constitutional
deprivations occur as the result of municipal policies or customs, plaintiffs should be able to
rely on an equitable and consistent standard to demonstrate a municipality's causal
connection to the constitutional injury.
402 W. KEE'roN, supra note 114, § 42 at 273-75.
403 See infra notes 404-20 and accompanying text for a discussion of how the proposed
foreseeability-hased standard effectuates the policies underlying § 1983.
41" See supra note 3 for the text of § 1983. See supra notes 30-70 and accompanying text for a
discussion of § 1983's legislative history.
4" See supra note 3 for the text of § 1983.
416 See W. KEt:TON, supra note 114, § 42 at 274.
407 Nahmod, supra note 87, at 10-11.
4°' City of Newport v. Fact Concerts, 453 U.S. 247, 263, 268 (1981); Owen v. City of
Independence, 445 U.S. 622, 651 (1980)
("[Section] 1983 was intended not only to provide compensation
to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations,
. See also Nahmod, supra note 87, at 10.
409 See Nahmod, supra note 87, at 10-11.
In addition, the standard of conduct applied to municipalities must recognize the
gravity of the harm that section 1983 seeks to prevent. Toil principles hold that the
gravity of harm must be balanced against the utility of the conduct which creates the
risk:1 "0 Because of the gravity of constitutional violations, the Court must articulate strict
standards which balance the potential violation againSt the public utility of a
municipality's policy or custom.
The purposes and policies underlying section 1983's enactment and its judicial
interpretation support a foreseeability-based standard of municipal liability. A
foreseeability-based standard would deter constitutional deprivations by forcing municipalities
to consider the consequences of their policies and customs ; thus making municipalities
responsible for their own actions. This standard ilso furthers the goal of compensation
by opening municipalities to liability, often when the acting municipal officer may rely
on immunity for protection from a judgment for damages. 4 " By setting a more definite
limit on municipal liability under section 1983, the foreseeability Standard removes the
uncertainty that lately has diminished the availability of municipal liability insurance,4 L2
thus allowing municipalities to adequately indemnify themselves.
The proposed foreseeability standard would deter deprivations of constitutional
rights in two ways. First, the standard would deter such injuries by encouraging municipal
officials to examine the foreseeable results of officially promulgated municipal policies.
Second, the standard would accomplish this goal by encouraging municipal officers to
be aware of municipal custOins and, if necessary, take reniedial actions in order to ensure
that such municipal customs will not lead to any deprivations of constitutional rights.
The proposed standard would also clarify three persistent and troubling issues relating
to section 1983 municipal liability: the definition of official policy, the role of municipal
custom, and the requirement of a causal connection or affirmative link between an
official municipal policy or custom and a constitutional deprivation.
Section 1983's twin goals of deterrence and compensation can be achieved through
monetary damages. There is no question that a foreseeability standard may subject
municipalities to substantial monetary judgments. A substantial judgment, however, will
almost certainly deter similar future municipal actions, and also will compensate the
victim of the constitutional deprivation.
In addition, the standard enables municipalities to avoid substantial judgments by
exercising foresight. The prospect of substantial damages should encourage
municipalities to examine all present and future policies closely. Potential damage awards also
would encourage municipal officers to be aware of municipal customs and determine
whether a constitutional deprivation could foreseeably result from these customs. The
proposed standard should also enable municipalities to obtain indemnification. Insurance
410 W. KEETON, supra note 114, § 43 at 298.
411 See, e.g., Imbler v. Pachtman, 424 U.S. 409 (1976) (immunity for prosecutors); Pierson v.
Ray, 386 U.S. 547 (1967) (immunity for judges); Tenney v. Brandhove, 341 U.S. 367 (1951)
(immunity for legislators), h should be noted that the various immunities extended by the Court
have limited drastically the situations in which a damages remedy may be available against an
individual municipal officer under § 1983. In cases where a municipal policy has caused the
deprivation, a municipal officer may rely on a defense of good faith to protect him or her from
liability. Malley v. Briggs, 106 S. Ct. 1092, 1095-96 (1986); Brandon v. Holt, 469 U.S. 464 (1985);
Owen, 445 U.S. at 638 (citing cases). It is only in cases of "knowing and malicious acts" that an
official may be liable individually, Fact Concerti, 453 U.S. at 267,
412 See Blodgett, Premium Hikes Stun Municipalities, 72 A.13.A.J. 48 (1986).
underwriters, currently chilled by the shifting and contradictory judicial determinations
regarding municipal liability under section 1983,4 '3 also may institute their own
evaluations concurrent with indemnifying municipalities against such actions.
Municipal liability for actions of police officers which result in constitutional injury
provides an example of the need to balance policy considerations. Justice Rehnquist
correctly stated that a municipality's "policy" of maintaining a police force may
foreseeably result in the deprivation of constitutional rights"'" in the sense that almost anything
may happen and is thus theoretically "foreseeable." 413 The great public need for police
protection outweighs the slight risk that well-trained and supervised police officers will
deprive a citizen of his or her constitutional rights. 4 ' 6 When a municipality's police force
is inadequately trained or supervised, however, the risk of constitutional deprivation
increases,''' while the public utility of an ill-trained or poorly supervised police force
decreases. Because of its gravity, the courts and citizens should not accept the risk of
foreseeable constitutional injury. Therefore, the standard of conduct that section 1983
imposes on municipalities should require municipal policymakers to monitor continually
the possibility of a constitutional deprivation occurring pursuant to municipal policies.
The proposed standard does exactly this by encouraging careful consideration of any
officially adopted policies and by encouraging policymakers to continually monitor
informal policy or municipal custom.
In addition, recent studies indicate that civil litigation — such as suits brought under
section 1983 has reduced by half the number of citizens killed by police in major
metropolitan areas418 and prompted many municipalities to reexamine their policies
regarding police training and procedures. 419 Clearly, section 1983 has deterred and
prevented violations of constitutional rights.420 A foreseeability-based standard would
have the further salutary effect of making it easier to predict liability under section 1983,
thus further encouraging both municipal officials to evaluate municipal policies and
customs, and plaintiffs to seek their remedy. By holding a municipality liable under
section 1983 when its policies or customs are the reasonably foreseeable cause of a
constitutional deprivation, the victim of that constitutional injury is assured of an avenue
of redress and compensation.
414 Tuttle, 471 U.S. at 822-23.
W. Kiu supra note 114, § 43 at 297.
."" See Amiens Curiae Brief of the American Civil Liberties Union and The Civil Liberties
'Union of Massachusetts, at 28-35, Kibbe v. City of Springfield (Docket number 85-1217) (1987).
418 See id.
"° The A.C.L.U. brief in Kibbe listed five positive effects resulting from suits brought under
§ 1983 against municipal police departments. The first positive effect of these suits is an emphasis
on background investigations to eliminate applicants with violent or other negative propensities
from police department hiring. Second, these suits have led to the use of administrative leave or
seclusion to separate officers accused of misconduct from the public. In addition, § 1983 actions
have encouraged prompt termination of unfit officers from municipal police forces. Furthermore,
these actions have led to the development of specialized training for supervisory personnel which
emphasizes potential liability for negligent failure to adequately supervise subordinates. The final
positive effect of § 1983 suits, according to the A.C.L.U., is the fact that they may have made
municipalities liable under § 1983 for inadequate training of officers, and that no good faith defense
is available. Id. at 31-32 (citing Schmidt, Section 1983 and the Changing Face of Police Management, in
POLICE LEADERSHIP IN AMERICA 235 (W. Geller, ed. 1985)).
A foreseeability-based standard for determining municipal liability under section
1983 will effectuate section 1983's goals. Congress enacted section 1983 to deter future
violations of constitutional rights and compensate for past constitutional injuries. 421 A
foresceability-based standard allows a municipality to examine its officially enacted
policies and its uncodified customs in order to determine whether they may foreseeably
cause a violation of constitutional rights. Such scrutiny should result in fewer
constitutional violations, and thus protect both citizens' constitutional rights and limited
municipal finances. By providing a standard which courts may use to impose a damages remedy,
the proposed standard both encourages scrutiny of municipal policies and customs, and
provides a remedy for persons deprived of their protected rights. The foreseeability
standard removes the uncertainty that currently plagues the lower courts. The standard
facilitates litigants who, for the purposes of section 1983, must ascertain the "person"
who caused the constitutional violation in order to obtain appropriate relief. The
proposed foreseeability-based standard is consistent with the language, legislative history,
and judicial interpretation of section 1983. It effectively achieves the statute's twin goals
of deterring future constitutional injuries and compensating those of the past.
13 See Pembaur v. City of Cincinnati , 106 S. Ct . 1292 , 1298 ( 1986 ) ; id . at 1301 ( White , J., concurring); id. at 1304 ( O'Connor , J. , concurring).
'4 See City of Oklahoma City v . Tuttle , 471 U.S. 808 , 823 - 24 ( 1985 ) ; id . at 829- 30 (Brennan, J., concurring). See infra notes 386-87 , 392 - 94 and accompanying text for a discussion of custom and usage .
See Pembaur , 106 S. Ct . at 1292, id. at 1301 ( White , J., concurring), id. at 1302 (Stevens, J., concurring), id. at 1304 ( O'Connor , J. , concurring), id. at 1304 (Powell, J., concurring); Tuttle, 471 U.S. at 808, id. at 824 (Brennan, J., concurring), id. at 834 (Stevens, J., dissenting).
16 The Supreme Court's official policy standard has given rise to two conflicting interpretations of what constitutes official policy in the lower courts . Compare Kibbe v. City of Springfield , 777 F.2d 801 , 804 ( 1st Cir . 1985 ), cert. denied as improvidently granted, 107 S. Ct . 1114 ( 1987 ) (per curium) (inadequate training valid theory of liability); with Grandstaff v . City of Borger , 767 F.2d 161 , 169 ( 5th Cir . 1985 ) (inadequate training does not ordinarily give rise to liability).
'7 Professor Eric Schnapper first proposed a foreseeability standard for the application of § 1983 to municipal liability in a 1979 article . See Schnapper, Civil Rights Litigation After Monell , 79 Comma. L. Rev. 223 , 235 - 37 ( 1979 ).
18 See infra notes 30-70 and accompanying text.
19 See infra notes 71-312 and accompanying text.
2ll See infra notes 293-312 and accompanying text for a comparison of Kibbe and Grandstaff .
2 ' See infra notes 313-21 and accompanying text.
22 See infra notes 322-47 and accompanying text.
23 See infra notes 354-58 and accompanying text.
24 See infra notes 359-63 and accompanying text.
25 See infra notes 364-403 and accompanying text.
2" See infra notes 404-20 and accompanying text.
27 Owen v. City of Independence , 445 U.S. 622 , 635 ( 1980 ) ("the starting point in our analysis must be the language of the statute itself" ).
23 See Glennon , Constitutional Liberty and Property: Federal Common Law and Section 1983 , 51 S. Cm_ L. REV . 355 ( 1978 ).
" Compare Mona v . New York City Dept of Social Servs., 436 U.S. 658 , 685 ( 1978 ) (interpreting legislative history to allow municipal § 1983 liability), with Monroe v . Pape , 365 U.S. 167 , 171 ( 1961 ) (interpreting legislative history to bar municipal § 1983 liability) .
" Civil Rights Act of April 20 , 1871 , 17 Stat. 13 ( 1871 ) (also known as the "Ku Klux Klan Act" ).
" As originally enacted, § I of the Civil Rights Act of 1871 read as follows:
75 See generally Brown, supra note 54, at 906-08 ( postulating that tensions between Justices of the Court espousing nationalism and federalism has led to "official policy or custom" compromise regarding § 1983 municipal liability ).
74 Monroe v. Pape , 365 U.S. 167 , 191 ( 1961 ). Both before and after Monroe, however, the Supreme Cciiirt decided many cases brought under § 1983 against school boards, including Orleans Parish School .Bd. v. Bush, 365 U.S. 569 . ( 1961 ) and Brown v . Bd. of Educ., 347 U.S. 483 ( 1954 ). See also Monell , 436 U.S. at 663 n.5.
75 Monroe, 365 U.S. at 187.
76 Id. at 192. The Monroe complaint alleged that thirteen Chicago police officers broke into the Plaintiff's home in the early morning hours, with no search or arrest warrant, and forced the entire family to stand naked in the living room while the officers ransacked the house . It further alleged that Mr. Monroe was taken to a police station, held on "open charges," interrogated concerning a murder committed two days before, and finally released without being charged. He was never brought before a magistrate, although the complaint stated that one was available, nor was he permitted a telephone call. In short, these allegations were of tortious actions so serious as to rise to the level of constitutional violations. No nexus between these actions and the City of Chicago was ever alleged, however, beyond the fact of the officers' employment by the city . Id. at 169-70.
" Id. at 187.
78 1d. at 191.
79 1d. at 192.
See id . at 171-87.
st Id. at 191 . Referring to the 42d Congress's debates, the Court stated that by defeating the Sherman amendment, "[t]he response of the Congress to the proposal to make municipalities liable for actions being brought within the federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word 'person' was used in this particular Act to include them." Id. 2. Development of Section 1983 Municipal Liability: Contrasts and Tensions
175 In Owen the city council adopted a resolution to release the information to the press and authorized the city manager to "take all direct and appropriate action . " Owen , 445 U.S. at 628- 29 . The Newport City Council's actions resulted in a substantial loss to a state licensed concert promoter . Fact Concerts , 453 U.S. at 249-52.
1 " See, e .g., Pembaur v . City of Cincinatti , 106 S. Ct . 1292 ( 1986 ) (liability based on County Prosecutor's telephoned remarks establishing municipal policy); City of Oklahoma City v , Tuttle , 471 U.S. 808 ( 1985 ) (liability founded on city's gross negligence in failure to train police officers adequately).
175 Polk County v. Dodson , 454 U.S. 312 , 326 ( 1981 ); Rizzo v . Goode , 423 U.S. 362 , 371 ( 1976 ).
176 Rizzo, 423 U.S. at 371.
' 77 Id. at 366.
08 1d. at 372.
179 1d. at 368. Rizzo involved a number of consolidated actions that alleged a "pattern of frequent police violations" of the constitutional rights of Philadelphia residents and "evidence of departmental procedure [that] indicated a tendency to discourage the filing of civilian complaints and to minimize. the consequences of police misconduct." While nominally against the mayor and high-ranking members of the police department, the suit was actually against the City of Philadelphia, by way of these officials in their "official capacity." The plaintiffs asserted that these conclusions of fact, as found by the district court, were evidence of a policy on the part of the defendants to violate the constitutional rights of the plaintiff classes. The district court disagreed and the Supreme Court held that because of the lack of such a policy, there was "no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners - express or otherwise - showing their authorization or approval of such misconduct . . ." Id. at 366-375 . See generally Levin, supra note 83 (discussing "official capacity" suits). Rizzo was decided two years before the Monett decision extended § 1983 liability to municipalities. Thus, the plaintiffs' only avenue of recovery under the statute as it was then construed was via an "official capacity" suit against municipal officials responsible for supervising and promulgating policy .
166 Rizzo, 423 U,S. at 371.
18 ' See, e.g., Grandstaff v . City of Borger , 767 F.2d 161 , 170 ( 5th Cir . 1985 ); Milligan v . City of Newport News , 743 F.2d 227 , 229 ( 4th Cir . 1984 ); Sanders v . St. Louis County , 724 F.2d 665 , 667 ( 8th Cir . 1983 ); Czurlanis v . Albanese , 721 F.2d 98 , 108 ( 3d Cir . 1983 ) ; McKinley v . City of Eloy , 705 F.2d 1110 , 1116 ( 9th Cir . 1983 ); Powe v . City of Chicago, 669 1 '. 24 ( 139 , 643 ( 7th Cir . 1981 ),
182 See, e.g., Voutour v . Vitale , 76! F.2d 812 , 820 ( 1st Cir . 1985 ); Wellington v . Daniels , 717 F.2d 932 , 937 - 38 ( 4th Cir . 1983 ); Herrera v . Valentine, 653 1 7.24 1220 , 1224 ( 8th Cir . 1981 ); Owens v . Haas , 601 F.2d 1242 , 1246 ( 2d Cir . 1979 ).
185 See, e.g., Dick v . Watonwan County , 738 F.2d 939 , 943 ( 8th Cir . 1984 ) (must be policy for county liability, failure to supervise insufficient to establish such liability); Hays v . Jefferson County , 668 F.2d 869 , 874 ( 6th Cir , 1982 ) (must be at least implicit authorization by municipal policymaker to establish liability).
," Rizzo , 423 U.S. at 371.
I" 454 U .S. 312 ( 1981 ).
186 Monell, 436 U.S. at 690.
182 Polk County , 454 U.S. at 326 (quoting Monell, 436 U.S. at 694).
188 id. at 315.
182 Id. at 326.
191 /d. Some lower courts have seized upon this language to require a "constitutionally forbidden rule or procedure" before a municipality may be liable under § 1983 . See Rizzo, 423 U.S. at 362. Lower courts have stated this principle as a requirement that "[alt a minimum a plaintiff must show that the [policymaking] official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers." Hays v . Jefferson County , 668 F.2d 869 , 874 ( 4th Cir . 1982 ). See also Dick v . Watonwan County , 738 F.2d 939 , 943 ( 8th Cir . 1984 ). The Court has not determined yet whether an official municipal policy or custom must itself be unconstitutional or whether a policy or custom need only anise a constitutional deprivation before § 1983 liability will attach . See Tuttle , 471 U.S. at 824 11. 7; id . at 833 n.8 ( Brennan , J., concurring).
192 Polk County , 454 U.S. at 326; Rizzo, 423 U.S. at 371.
195 See, e.g., Tuttle 471 U.S. at 824 n.7; id. at 833 n.8 ( Brennan , J., concurring).
194 Polk County , 954 U.S. at 326.
195 Id. at 326. See also generally W. KEETON, supra note 114, §§ 41 - 45 (proximate cause).
supra note 83 for a discussion of municipal/political case liability versus individual/ constitutional tort actions .
215 S. Ct . 1292 ( 1986 ).
217 Morrell, 436 U.S. at 694.
2I Pembaur , 106 S. Ct . at 1294. Pembaur involved police officers who attempted to serve two capiases on a doctor's employees and were denied entrance to the doctor's office. The officers made a number of phone calls to successively higher ranking municipal officials, finally contacting the County Prosecutor who instructed them to "go in and get them." When the officers were unable to force the door, they chopped it down with an axe and entered. Although two individuals were detained, they were not the employees named in the capiases . Id. at 1294-97.
219 at 1297. The Supreme Court granted certiorari in order to determine whether the County Prosecutor's telephoned instructions constituted official county policy, thus making the county liable under § 1983. Id. Pembaur resulted in a plurality opinion written by Justice Brennan, joined by Justices Marshall and Blackmun, three separate concurrences by Justices White, Stevens and O'Connor, and a dissent written by Justice Powell, joined by Chief Justice Burger and Justice Rehnquist .
220 Pembaur, 106 S. Ct . at 1301.
221 Id. at 1299. The Fifth Circuit first articulated this "final authority" standard in Familias Unidas v . Briscoe , 619 F.2d 391 ( 5th Cir . 1980 ). Other circuits have also adopted this standard . See, e.g., Voutour v . Vitale , 761 F.2d 812 , 823 ( 1st Cir . 1985 ); Marchese v . Lucas , 758 F.2d 181 , 188 - 89 ( 6th Cir . 1985 ); Sanders v . St. Louis County , 724 F.2d 665 , 668 ( 8th Cir . 1983 ); Wellington v . Daniels , 717 F.2d 932 , 936 ( 4th Cir . 1983 ) ; McKinley v . City of Eloy , 705 F.2d 1110 , 1116 ( 9th Cir . 1983 ); Hays v . Jefferson County , 668 F.2d 869 , 874 - 75 ( 6th Cir . 1982 ); Black v . Stephens , 662 F.2d 181 , 191 ( 3d Cir . 1981 ); Turpin v . Mallet , 619 F.2d 196 , 200 - 01 ( 2d Cir . 1980 ). The Fifth Circuit, however, recently overturned the standard in Bennett v. City of Slidell, a decision that already has attracted a good deal of comment . 728 F.2d 762 ( 5th Cir . 1984 ) (en bane), rev'g in part 697 F .2d 657 ( 5th Cir . 1983 ), cert. denied, 472 U.S. 1016 ( 1985 ). See, e.g., McKinley, Municipal Liability for Police Misconduct , 49 TEX. B.J. 20 ( 1986 ); Linn & Morell, Section 1983 : The Changing Contours of Local Government Liability , 58 FLA. B.J. 557 ( 1984 ); Note, Bennett v. City of Slidell: New Guidelines for Municipal Liability for Civil Rights Violations, 4 DET . C.L. REV. 959 ( 1984 ); Note, Municipal Liability Under 42 U.S.C. § 1983: Bennett v . City of Slidell , 45 LA. L. REV. ( 1985 ).
222 Pembaur, 106 S. Ct . at 1300.
22! The opinion compared the decisions officially adopted by the city councils in Owen v . City of Independence , 445 U.S. 622 , 628 - 29 ( 1980 ) and City of Newport v . Fact Concerts , 453 U.S. 247 , 250 - 52 ( 1981 ) - that resulted in constitutional deprivations - with the facts in Pembaur . See supra notes 118-72 and accompanying text for a discussion of Owen and Fact Concerts. Because Ohio state law gave the County Prosecutor the authority to establish county policy in legal matters, the opinion found that in each of these cases an officially adopted municipal policy caused a deprivation of constitutional right . Pembaur . 106 S. Ct . at 1300-01.
224 Pembaur, 106 S. Ct . at 1298.
222 Id. at 1301.
22 " Id.
221 See Stcagald v. United States , 451 U.S. 204 ( 1981 ).
Pembaur , 106 S. Ct . at 1300.
222 See id . at 1304 ( O'Connor , J. , concurring); id. at 1302 ( White , J., concurring).
23° Id. at 1304 ( O'Connor , J. , concurring): id. at 1301- 02 (White, J., concurring).
"' Id. at 1302 (White , J., concurring) . The Justice further stated that "Hot every act of municipal officers with final authority to effect or authorize arrests and searches represents the policy of the municipality." Id. at 1301 (White , J., concurring).
232 Id. at 1295 ( White , J., concurring).
255 at 1303- 04 (Stevens, J., concurring). Justice Stevens stated that at the time § 1983 was originally enacted, the doctrine of respondeat superior was applied to municipalities . Id. (Stevens, J., concurring). Justice Stevens referred to four articles critical of the Court's "official policy" standard that argue for respondeat superior liability under § 1983. See, Blum, From Monroe to Mona: Defining the Scope of Municipal Liability in Federal Courts, 51 " FEMPLE L.Q. 409 ( 1978 ); Note, Section 1983 Municipal Liability and the Doctrine of Respondeat Superior , 46 U. Cut . L. 935 ( 1979 ) ; Note, Municipal Liability Under Section 1983 for Civil Rights Violations After Mond!, 64 IOWA L . REV. 1032 ( 1979 ); Note, Monell v. Department of Social Services: One Step Forward and a Half Step Back for Municipal Liability Under Section 1983 , 7 HOFSTRA L. Rev . 893 ( 1979 ).
234 Pembaur, 106 S. Ct, at 1308 - 09 (Powell, J., dissenting).
233 Id. at 1309 (Powell, J., dissenting) . The dissent's standard is similar to that recently articulated by the Fifth Circuit in Bennett . See supra note 221.
236 Id. at 1308 (Powell, J., dissenting) ( "policy is what policymakers make, and policymakers are those who have authority to make policy" ).
2" Id . at 1309 (Powell, J., dissenting).
238 Id. (Powell , J., dissenting).
238 id. at 1310 (Powell, J., dissenting).
24D Id. (Powell , J., dissenting). Furthermore, the dissent took exception with a finding of a constitutional deprivation, noting that in Ohio the Sixth Circuit had held that a capias was sufficient authority to enter a building. It was not until four years after the events in Dr. Pembaur's office that the Supreme Court held that a search warrant must be obtained in such situations. Thus, the dissent argued that there had been no violation of the Constitution at the time of the events in question . Id. at 1305 (Powell, J., dissenting).
241 See supra notes 216-40 and accompanying text for a discussion of Pembaur.
242 471 U.S. 808 ( 1985 ).
243 Id. at 814; id. at 827 (Brennan, J., concurring). Lower courts, however, have distinguished Tuttle when numerous police officers are involved in a 'single incident." See, e .g., Kibbe v . City of Springfield , 777 F.2d 801 ( 1st Cir . 1985 ), art, denied as improvidently granted, 107 S. Ct . 1114 ( 1987 ); Grandstaff v . City of Borger , 767 F.2d 161 ( 5th Cir . 1985 ). Both courts agreed that Tuttle's single incident rule was not implicated when many police officers were involved in the incident at issue . See infra notes 267-77 and accompanying text for discussion of the single incident rule . Grandstaff, 767 F.2d at 170; Kibbe , 777 F.2d at 805 - 06 . Each court allowed municipal liability to be inferred under § 1983. The Grandstaff court relied on a police department policy or custom of dangerous recklessness, 767 F.2d at 170. The Kibbe court found inadequate training as a basis for municipal liability . 777 F.2d at 804.
The suit in Grandstaff arose from the actions of the entire night shift of the Borger, Texas, police department. A high-speed automobile chase ultimately led all five units of the Borger police department onto a ranch in pursuit of a driver who allegedly had fired upon officers after refusing to stop. Grandstaff, the foreman of the ranch, attempted to investigate the commotion and he was killed in full view of his family by a barrage of police gunfire as he stepped out of his pickup truck . Grandstaff, 767 F.2d at 165 . The court found that Title City and officers insist, to this day, that they are free of fault and deserve no blame .... There is not a single word in this record about any effort at any time by the City of Borger to avoid police failure or abuse." Id. at 166.