MONROE v. PAPE, 365 U.S. 167 (1961).
Parts I & II of the Court’s opinion are set forth in Chapter II(A), supra.
The City of Chicago asserts that it is not liable under 42 U.S.C. § 1983. We do not stop to explore the whole range of questions tendered us on this issue at oral argument and in the briefs. For we are of the opinion that Congress did not undertake to bring municipal corporations within the ambit of § 1979.
When the bill that became the Act of April 20, 1871, was being debated in the Senate, Senator Sherman of Ohio proposed an amendment which would have made “the inhabitants of the county, city, or parish” in which certain acts of violence occurred liable “to pay full compensation” to the person damaged or his widow or legal representative. The amendment was adopted by the Senate. The House, however, rejected it. The Conference Committee reported another version. The House rejected the Conference report. In a second conference the Sherman amendment was dropped and in its place § 6 of the Act of April 20, 1871, was substituted. This new section, which is now R.S. § 1981, 42 U.S.C. § 1986, dropped out all provision for municipal liability and extended liability in damages to “any person or persons, having knowledge that any” of the specified wrongs are being committed. Mr. Poland, speaking for the House Conferees about the Sherman proposal to make municipalities liable, said:
“We informed the conferees on the part of the Senate that the House had taken a stand on that subject and would not recede from it; that that section imposing liability upon towns and counties must go out or we should fail to agree.”
The objection to the Sherman amendment stated by Mr. Poland was that “the House had solemnly decided that in their judgment Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of state law.” The question of constitutional power of Congress to impose civil liability on municipalities was vigorously debated with powerful arguments advanced in the affirmative.
Much reliance is placed on the Act of February 25, 1871, 16 Stat. 431, entitled “An Act prescribing the Form of the enacting and resolving Clauses of Acts and Resolutions of Congress, and Rules for the Construction thereof.” Section 2 of this Act provides that “the word ‘person’ may extend and be applied to bodies politic and corporate.” It should be noted, however, that this definition is merely an allowable, not a mandatory, one. It is said that doubts should be resolved in favor of municipal liability because private remedies against officers for illegal searches and seizures are conspicuously ineffective, and because municipal liability will not only afford plaintiffs responsible defendants but cause those defendants to eradicate abuses that exist at the police level. We do not reach those policy considerations. Nor do we reach the constitutional question whether Congress has the power to make municipalities liable for acts of its officers that violate the civil rights of individuals.
The response of the Congress to the proposal to make municipalities liable for certain actions being brought within 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. Accordingly we hold that the motion to dismiss the complaint against the City of Chicago was properly granted. But since the complaint should not have been dismissed against the officials the judgment must be and is
Notes on Monroe v. Pape – Municipal Liability
- On what basis did the Monroe Court hold that the City of Chicago was not liable for damages under Section 1983?
- What was the Monroe Court’s view of whether as a matter of policy, local governmental entities should be suable under Section 1983?
- What are the policy reasons that support local governmental liability for constitutional violations?
- What are the policy reasons that support the immunity of local governmental entities for constitutional violations?
- Efforts to cabin the scope of the Monroe holding met with failure. In Moor v. County of Alameda, 411 U.S. 693 (1973), the Court rejected the claim that municipalities could be held liable under Section 1983 where the municipality is subject to liability under state law. In City of Kenosha v. Bruno, 412 U.S. 507 (1973), the Court held that its determination that municipalities are not “persons” within the meaning of Section 1983 applies to claims for equitable relief as well as to claims for damages.
- Unable to sue local governmental entities under Section 1983, victims of unconstitutional municipal action attempted to bring actions against municipalities directly under the Constitution, with federal jurisdiction founded upon 28 U.S.C. § 1331. In City of Kenosha v. Bruno, supra, the Court, while rejecting the claim against the municipality under Section 1983, remanded the case to the district court to consider the availability of § 1331 jurisdiction. Justice Brennan, concurring in Bruno, stated:
[S]ince the defendants named in the complaints were the municipalities of Kenosha and Racine, jurisdiction cannot be based on 28 U.S.C. § 1343 … Appellees did assert 28 U.S.C. § 1331 [28 USCS § 1331] as an alternative ground of jurisdiction, but I agree with the Court’s conclusion that existence of the requisite amount in controversy is not, on this record, clearly established. If appellees can prove their allegation that at least $10,000 is in controversy, then § 1331 jurisdiction is available, Bell v. Hood, 327 U.S. 678, 90 L.Ed 939, 66 S. Ct. 773, 13 ALR.2d 383 (1946); cf. Bivens v. Six Fed. Narcotic’s Agents, 403 U.S. 388, 29 L Ed.2d 619, 91 S. Ct. 1999 (1971), and they are clearly entitled to relief.
412 U.S. at 516. See also Mt. Healthy City School District v. Doyle, 429 U.S. 274, 278 (1977) (“The question of whether … we should, by analogy to our decision in Bivens … imply a cause of action directly from the Fourteenth Amendment … is one which has never been decided by this Court.”). The lower federal courts divided over the viability of Bivens actions against municipalities. For a discussion of the arguments for and against recognition of a direct constitutional cause of action against municipalities, see Turpin v. Mailet, 579 F.2d 152 (2d Cir.), vacated and remanded sub nom. City of West Haven v. Turpin, 439 U.S. 974 (1978).
Cong. Globe, 42d Cong., 1st Sess., p. 663. The proposed amendment read: "That if any house, tenement, cabin, shop, building, barn, or granary shall be unlawfully or feloniously demolished, pulled down, burned, or destroyed, wholly or in part, by any persons riotously and tumultuously assembled together; or if any person shall unlawfully and with force and violence be whipped, scourged, wounded, or killed by any persons riotously and tumultuously assembled together; and if such offense was committed to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude, in every such case the inhabitants of the county, city, or parish in which any of the said offenses shall be committed shall be liable to pay full compensation to the person or persons damnified by such offense if living, or to his widow or legal representative if dead; and such compensation may be recovered by such person or his representative by a suit in any court of the United States of competent jurisdiction in the district in which the offense was committed, to be in the name of the person injured, or his legal representative, and against said county, city, or parish. And execution may be issued on a judgment rendered in such suit and may be levied upon any property, real or personal, of any person in said county, city, or parish, and the said county, city, or parish may recover the full amount of such judgment, costs and interest, from any person or persons engaged as principal or accessory in such riot in an action in any court of competent jurisdiction.”↵
"That if any house, tenement, cabin, shop, building, barn, or granary shall be unlawfully or feloniously demolished, pulled down, burned, or destroyed, wholly or in part, by any persons riotously and tumultuously assembled together; or if any person shall unlawfully and with force and violence be whipped, scourged, wounded, or killed by any persons riotously and tumultuously assembled together, with intent to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude, in every such case the county, city, or parish in which any of the said offenses shall be committed shall be liable to pay full compensation to the person or persons damnified by such offense, if living, or to his widow or legal representative if dead; and such compensation may be recovered in an action on the case by such person or his representative in any court of the United States of competent jurisdiction in the district in which the offense was committed, such action to be in the name of the person injured, or his legal representative, and against said county, city, or parish, and in which action any of the parties committing such acts may be joined as defendants. And any payment of any judgment, or part thereof unsatisfied, recovered by the plaintiff in such action, may, if not satisfied by the individual defendant therein within two months next after the recovery of such judgment upon execution duly issued against such individual defendant in such judgment, and returned unsatisfied, in whole or in part, be enforced against such county, city, or parish, by execution, attachment, mandamus, garnishment, or any other proceeding in aid of execution or applicable to the enforcement of judgments against municipal corporations; and such judgment shall be a lien as well upon all moneys in the treasury of such county, city, or parish, as upon the other property thereof. And the court in any such action may on motion cause additional parties to be made therein prior to issue joined, to the end that justice may be done. And the said county, city, or parish may recover the full amount of such judgment, by it paid, with costs and interest, from any person or persons engaged as principal or accessory in such riot, in an action in any court of competent jurisdiction. And such county, city, or parish, so paying, shall also be subrogated to all the plaintiff's rights under such judgment." Id. at 749.↵
This Act has been described as an instance where "Congress supplies its own dictionary." Frankfurter, Some Reflections on the Reading of Statutes, 47 COL. L. REV. 527, 536. The present code provision defining "person" (1 U.S.C. § 1) does not in terms apply to bodies politic. See Reviser's Note, Vol. I, Rev. U.S. Stats. 1872, p. 19.↵