MONELL v. DEPARTMENT OF SOCIAL SERVICES OF THE CITY OF NEW YORK, 436 U.S. 658 (1978)

Mr. Justice Brennan delivered the opinion of the Court.

[1]Petitioners, a class of female employees of the Department of Social Services and of the Board of Education of the city of New York, commenced this action under 42 U.S.C. § 1983 in July 1971. The gravamen of the complaint was that the Board and the Department had as a matter of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons.^[1] Cf. Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974). The suit sought injunctive relief and backpay for periods of unlawful forced leave. Named as defendants in the action were the Department and its Commissioner, the Board and its Chancellor, and the city of New York and its Mayor. In each case, the individual defendants were sued solely in their official capacities.

[2]On cross-motions for summary judgment, the District Court for the Southern District of New York held moot petitioners’ claims for injunctive and declaratory relief since the city of New York and the Board, after the filing of the complaint, had changed their policies relating to maternity leaves so that no pregnant employee would have to take leave unless she was medically unable to continue to perform her job. 394 F. Supp. 853, 855 (1975). No one now challenges this conclusion. The court did conclude, however, that the acts complained of were unconstitutional under LaFleur, supra. 394 F. Supp., at 855. Nonetheless plaintiffs’ prayers for backpay were denied because any such damages would come ultimately from the city of New York and, therefore, to hold otherwise would be to “[circumvent]” the immunity conferred on municipalities by Monroe v. Pape, 365 U.S. 167 (1961). See 394 F. Supp. at 855.

[3]On appeal, petitioners renewed their arguments that the Board of Education^[2] was not a “municipality” within the meaning of Monroe v. Pape, supra, and that, in any event, the District Court had erred in barring a damages award against the individual defendants. The Court of Appeals for the Second Circuit rejected both contentions. The court first held that the Board of Education was not a “person” under § 1983 because “it performs a vital governmental function .., and, significantly, while it has the right to determine how the funds appropriated to it shall be spent …, it has no final say in deciding what its appropriations shall be.” 532 F.2d 259, 263 (1976). The individual defendants, however, were “persons” under § 1983, even when sued solely in their official capacities. 532 F.2d, at 264. Yet, because a damages award would “have to be paid by a city that was held not to be amenable to such an action in Monroe v. Pape,” a damages action against officials sued in their official capacities could not proceed. Id., at 265.

[4]We granted certiorari in this case, 429 U.S. 1071, to consider

“Whether local governmental officials and/or local independent school boards are ‘persons’ within the meaning of 42 U.S.C. § 1983 when equitable relief in the nature of back pay is sought against them in their official capacities?” Pet. for Cert. 8.

[5]Although, after plenary consideration, we have decided the merits of over a score of cases brought under § 1983 in which the principal defendant was a school board—and, indeed, in some of which § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343, provided the only basis for jurisdiction—we indicated in Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 279 (1977), last Term that the question presented here was open and would be decided “another day.” That other day has come and we now overrule Monroe v. Pape, supra, insofar as it holds that local governments are wholly immune from suit under § 1983.^[3]

I

[6]In Monroe v. Pape, we held that “Congress did not undertake to bring municipal corporations within the ambit of [§ 1983].” 365 U.S., at 187. The sole basis for this conclusion was an inference drawn from Congress’ rejection of the “Sherman amendment” to the bill which became the Civil Rights Act of 1871, 17 Stat. 13, the precursor of § 1983. The amendment would have held a municipal corporation liable for damage done to the person or property of its inhabitants by private persons “riotously and tumultuously assembled.”^[4] Cong. Globe, 42d Cong., 1st Sess., 749 (1871) (hereinafter Globe). Although the Sherman amendment did not seek to amend § 1 of the Act, which is now § 1983, and although the nature of the obligation created by that amendment was vastly different from that created by § 1, the Court nonetheless concluded in Monroe that Congress must have meant to exclude municipal corporations from the coverage of § 1 because “‘the House [in voting against the Sherman amendment] had solemnly decided that in their judgment Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of state law.'” 365 U.S., at 190 (emphasis added), quoting Globe 804 (Rep. Poland). This statement, we thought, showed that Congress doubted its “constitutional power … to impose civil liability on municipalities,” 365 U.S. at 190 (emphasis added), and that such doubt would have extended to any type of civil liability.^[5]
[7]A fresh analysis of the debate on the Civil Rights Act of 1871, and particularly of the case law which each side mustered in its support, shows, however, that Monroe incorrectly equated the “obligation” of which Representative Poland spoke with “civil liability.”

A. An Overview

[8]There are three distinct stages in the legislative consideration of the bill which became the Civil Rights Act of 1871. On March 28, 1871, Representative Shellabarger, acting for a House select committee, reported H.R. 320, a bill “to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes.” H.R. 320 contained four sections. Section 1, now codified as 42 U.S.C. § 1983, was the subject of only limited debate and was passed without amendment. Sections 2 through 4 dealt primarily with the “other purpose” of suppressing Ku Klux Klan violence in the Southern States.^[6] The wisdom and constitutionality of these sections—not § 1, now § 1983—were the subject of almost all congressional debate and each of these sections was amended. The House finished its initial debates on H.R. 320 on April 7, 1871, and one week later the Senate also voted out a bill. Again, debate on § 1 of the bill was limited and that section was passed as introduced.

[9]Immediately prior to the vote on H.R. 320 in the Senate, Senator Sherman introduced his amendment. This was not an amendment to § 1 of the bill, but was to be added as § 7 at the end of the bill. Under the Senate rules, no discussion of the amendment was allowed and, although attempts were made to amend the amendment, it was passed as introduced. In this form, the amendment did not place liability on municipal corporations, but made any inhabitant of a municipality liable for damage inflicted by persons “riotously and tumultuously assembled.”^[7]
[10]The House refused to acquiesce in a number of amendments made by the Senate, including the Sherman amendment, and the respective versions of H.R. 320 were therefore sent to a conference committee. Section 1 of the bill, however, was not a subject of this conference since, as noted, it was passed verbatim as introduced in both Houses of Congress.

[11]On April 18, 1871, the first conference committee completed its work on H.R. 320. The main features of the conference committee draft of the Sherman amendment were these:

[12]First, a cause of action was given to persons injured by

“any persons riotously and tumultuously assembled together … with intent to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude “

[13]Second, the bill provided that the action would be against the county, city, or parish in which the riot had occurred and that it could be maintained by either the person injured or his legal representative. Third, unlike the amendment as proposed, the conference substitute made the government defendant liable on the judgment if it was not satisfied against individual defendants who had committed the violence. If a municipality were liable, the judgment against it could be collected

“by execution, attachment, mandamus, garnishment, or any other proceeding in aid of execution or applicable to the enforcement of judgments against municipal corporations; and such judgment [would become] a lien as well upon all moneys in the treasury of such county, city, or parish, as upon the other property thereof.”

[14]In the ensuing debate on the first conference report, which was the first debate of any kind on the Sherman amendment, Senator Sherman explained that the purpose of his amendment was to enlist the aid of persons of property in the enforcement of the civil rights laws by making their property “responsible” for Ku Klux Klan damage.^[8] Statutes drafted on a similar theory, he stated, had long been in force in England and were in force in 1871 in a number of States.^[9] Nonetheless there were critical differences between the conference substitute and extant state and English statutes: The conference substitute, unlike most state riot statutes, lacked a short statute of limitations and imposed liability on the government defendant whether or not it had notice of the impending riot, whether or not the municipality was authorized to exercise a police power, whether or not it exerted all reasonable efforts to stop the riot, and whether or not the rioters were caught and punished.^[10]

[15]The first conference substitute passed the Senate but was rejected by the House. House opponents, within whose ranks were some who had supported § 1, thought the Federal Government could not, consistent with the Constitution, obligate municipal corporations to keep the peace if those corporations were neither so obligated nor so authorized by their state charters. And, because of this constitutional objection, opponents of the Sherman amendment were unwilling to impose damages liability for nonperformance of a duty which Congress could not require municipalities to perform. This position is reflected in Representative Poland’s statement that is quoted in Monroe.

[16]Because the House rejected the first conference report a second conference was called and it duly issued its report. The second conference substitute for the Sherman amendment abandoned municipal liability and, instead, made “any person or persons having knowledge [that a conspiracy to violate civil rights was afoot], and having power to prevent or aid in preventing the same,” who did not attempt to stop the same, liable to any person injured by the conspiracy. The amendment in this form was adopted by both Houses of Congress and is now codified as 42 U.S.C. § 1986.

[17]The meaning of the legislative history sketched above can most readily be developed by first considering the debate on the report of the first conference committee. This debate shows conclusively that the constitutional objections raised against the Sherman amendment—on which our holding in Monroe was based, see supra, at 664—would not have prohibited congressional creation of a civil remedy against state municipal corporations that infringed federal rights. Because § 1 of the Civil Rights Act does not state expressly that municipal corporations come within its ambit, it is finally necessary to interpret § 1 to confirm that such corporations were indeed intended to be included within the “persons” to whom that section applies.

B. Debate on the First Conference Report

* * * * *

[18]House opponents of the Sherman amendment—whose views are particularly important since only the House voted down the amendment—did not dispute Shellabarger’s claim that the Fourteenth Amendment created a federal right to protection, but they argued that the local units of government upon which the amendment fastened liability were not obligated to keep the peace at state law and further that the Federal Government could not constitutionally require local governments to create police forces, whether this requirement was levied directly, or indirectly by imposing damages for breach of the peace on municipalities. The most complete statement of this position is that of Representative Blair:

“The proposition known as the Sherman amendment … is entirely new. It is altogether without a precedent in this country…. That amendment claims the power in the General Government to go into the States of this Union and lay such obligations as it may please upon the municipalities, which are the creations of the States alone …

“… [Here] 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 …

“… [There] are certain rights and duties that belong to the States, … there are certain powers that inhere in the State governments. They create these municipalities, they say what their powers shall be and what their obligations shall be. If the Government of the United States can step in and add to those obligations, may it not utterly destroy the municipality? If it can say that it shall be liable for damages occurring from a riot, … where [will] its power … stop and what obligations … might [it] not lay upon a municipality….

* * * * *

[19]Thus, there was ample support for Blair’s view that the Sherman amendment, by putting municipalities to the Hobson’s choice of keeping the peace or paying civil damages, attempted to impose obligations on municipalities by indirection that could not be imposed directly, thereby threatening to “destroy the government of the States.” Globe 795.

[20]If municipal liability under § 1 of the Civil Rights Act of 1871 created a similar Hobson’s choice, we might conclude, as Monroe did, that Congress could not have intended municipalities to be among the “persons” to which that section applied. But this is not the case.

[21]First, opponents expressly distinguished between imposing an obligation to keep the peace and merely imposing civil liability for damages on a municipality that was obligated by state law to keep the peace, but which had not in violation of the Fourteenth Amendment.

* * * * *

[22]Second, the doctrine of dual sovereignty apparently put no limit on the power of federal courts to enforce the Constitution against municipalities that violated it. Under the theory of dual sovereignty set out in Prigg, this is quite understandable. So long as federal courts were vindicating the Federal Constitution, they were providing the “positive” government action required to protect federal constitutional rights and no question was raised of enlisting the States in “positive” action.

* * * * *

C. Debate on § 1 of the Civil Rights Bill

[23]From the foregoing discussion, it is readily apparent that nothing said in debate on the Sherman amendment would have prevented holding a municipality liable under § 1 of the Civil Rights Act for its own violations of the Fourteenth Amendment. The question remains, however, whether the general language describing those to be liable under § 1—”any person”—covers more than natural persons. An examination of the debate on § 1 and application of appropriate rules of construction show unequivocally that

§ 1 was intended to cover legal as well as natural persons.

[24]Representative Shellabarger was the first to explain the function of § 1:

“[Section 1] not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights to which they are entitled under the Constitution by reason and virtue of their national citizenship.” Globe App. 68.

[25]By extending a remedy to all people, including whites, § 1 went beyond the mischief to which the remaining sections of the 1871 Act were addressed. Representative Shellabarger also stated without reservation that the constitutionality of § 2 of the Civil Rights Act of 1866 controlled the constitutionality of § 1 of the 1871 Act, and that the former had been approved by “the supreme courts of at least three States of this Union” and by Mr. Justice Swayne, sitting on circuit, who had concluded: “‘We have no doubt of the constitutionality of every provision of this act.'” Globe App. 68. Representative Shellabarger then went on to describe how the courts would and should interpret § 1:

“This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people. Chief Justice Jay and also Story say:

“‘Where a power is remedial in its nature there is much reason to contend that it ought to be construed liberally, and it is generally adopted in the interpretation of laws.’—1 Story on Constitution, sec. 429.” Globe App., at 68.

[26]The sentiments expressed in Representative Shellabarger’s opening speech were echoed by Senator Edmunds, the manager of H.R. 320 in the Senate:

“The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill [of 1866], which have since become a part of the Constitution.” Globe 568.

“[Section 1 is] so very simple and really [reenacts] the Constitution.” Id. at 569.

And he agreed that the bill “[secured] the rights of white men as much as of colored men.” Id. at 696.

[27]In both Houses, statements of the supporters of § 1 corroborated that Congress, in enacting § 1, intended to give a broad remedy for violations of federally protected civil rights.^[11] Moreover, since municipalities through their official acts could, equally with natural persons, create the harms intended to be remedied by § 1, and, further, since Congress intended § 1 to be broadly construed, there is no reason to suppose that municipal corporations would have been excluded from the sweep of § 1. Cf., e. g., Ex parte Virginia, 100 U.S. 339, 346-347 (1880); Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 286-287, 294-296 (1913). One need not rely on this inference alone, however, for the debates show that Members of Congress understood “persons” to include municipal corporations.

[28]Representative Bingham, for example, in discussing § 1 of the bill, explained that he had drafted § 1 of the Fourteenth Amendment with the case of Barron v. Mayor of Baltimore, 7 Pet. 243 (1833), especially in mind. “In [that] case the city had taken private property for public use, without compensation …, and there was no redress for the wrong….” Globe App. 84 (emphasis added). Bingham’s further remarks clearly indicate his view that such takings by cities, as had occurred in Barron, would be redressable under § 1 of the bill. See Globe App. 85. More generally, and as Bingham’s remarks confirm, § 1 of the bill would logically be the vehicle by which Congress provided redress for takings, since that section provided the only civil remedy for Fourteenth Amendment violations and that Amendment unequivocally prohibited uncompensated takings.^[12]

Given this purpose, it beggars reason to suppose that Congress would have exempted municipalities from suit, insisting instead that compensation for a taking come from an officer in his individual capacity rather than from the government unit that had the benefit of the property taken.^[13]

[29]In addition, by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis. This had not always been so. When this Court first considered the question of the status of corporations, Mr. Chief Justice Marshall, writing for the Court, denied that corporations “as such” were persons as that term was used in Art. III and the Judiciary Act of 1789. See Bank of the United States v. Deveaux, 5 Cranch 61, 86 (1809).^[14] By 1844, however the Deveaux doctrine was unhesitatingly abandoned:

“[A] corporation created by and doing business in a particular state, is to be deemed to all intents and purposes as a person, although an artificial person, … capable of being treated as a citizen of that state, as much as a natural person.”

Louisville R. Co. v. Letson, 2 How. 497, 558 (1844) (emphasis added), discussed in Globe 752. And only two years before the debates on the Civil Rights Act, in Cowles v. Mercer County, 7 Wall. 118, 121 (1869), the Letson principle was automatically and without discussion extended to municipal corporations. Under this doctrine, municipal corporations were routinely sued in the federal courts and this fact was well known to Members of Congress.

[30]That the “usual” meaning of the word “person” would extend to municipal corporations is also evidenced by an Act of Congress which had been passed only months before the Civil Rights Act was passed. This Act provided that

“in all acts hereafter passed … the word ‘person’ may extend and be applied to bodies politic and corporate … unless the context shows that such words were intended to be used in a more limited sense.” Act of Feb. 25, 1871, § 2, 16 Stat. 431.

Municipal corporations in 1871 were included within the phrase “bodies politic and corporate” and, accordingly, the “plain meaning” of § 1 is that local government bodies were to be included within the ambit of the persons who could be sued under § 1 of the Civil Rights Act. Indeed, a Circuit Judge, writing in 1873 in what is apparently the first reported case under § 1, read the Dictionary Act in precisely this way in a case involving a corporate plaintiff and a municipal defendant.^[15]
See Northwestern Fertilizing Co. v. Hyde Park, 18 F. Cas. 393, 394 (No. 10,336) (CC ND Ill. 1873).
^[16]

II

[31]Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies.^[17]

Local governing bodies,^[18] therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 “person,” by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168 (1970): “Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.”

[32]On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.

[33]We begin with the language of § 1983 as originally passed:

“[Any] person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person … to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.” 17 Stat. 13 (emphasis added).

The italicized language plainly imposes liability on a government that, under color of some official policy, “causes” an employee to violate another’s constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A’s tort became B’s liability if B “caused” A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent.^[19] See Rizzo v. Goode, 423 U.S. 362, 370-371 (1976).

[34]Equally important, creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional. To this day, there is disagreement about the basis for imposing liability on an employer for the torts of an employee when the sole nexus between the employer and the tort is the fact of the employer-employee relationship. See W. PROSSER, LAW OF TORTS § 69, p. 459 (4th ed. 1971). Nonetheless, two justifications tend to stand out. First is the common-sense notion that no matter how blameless an employer appears to be in an individual case, accidents might nonetheless be reduced if employers had to bear the cost of accidents. See, e.g., ibid.; 2 F. HARPER & F. JAMES, LAW OF TORTS, § 26.3, pp. 1368-1369 (1956). Second is the argument that the cost of accidents should be spread to the community as a whole on an insurance theory. See, e.g., id. § 26.5; PROSSER, supra, at 459.^[20]

[35]The first justification is of the same sort that was offered for statutes like the Sherman amendment: “The obligation to make compensation for injury resulting from riot is, by arbitrary enactment of statutes, affirmatory law, and the reason of passing the statute is to secure a more perfect police regulation.” Globe 777 (Sen. Frelinghuysen). This justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable. The second justification was similarly put forward as a justification for the Sherman amendment: “we do not look upon [the Sherman amendment] as a punishment It is a mutual insurance.” Id., at 792 (Rep. Butler). Again, this justification was insufficient to sustain the amendment.

[36]We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, see supra, at 660-662, and n.2, we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.

III

[37]Although we have stated that stare decisis has more force in statutory analysis than in constitutional adjudication because, in the former situation, Congress can correct our mistakes through legislation, see, e.g., Edelman v. Jordan, 415 U.S. 651, 671, and n.14 (1974), we have never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes. See, e.g., Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 47-49 (1977); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 n.1 (1932) (Brandeis, J., dissenting) (collecting cases). Nor is this a case where we should “place on the shoulders of Congress the burden of the Court’s own error.” Girouard v. United States, 328 U.S. 61, 70 (1946).

* * * * *

IV

[38]Since the question whether local government bodies should be afforded some form of official immunity was not presented as a question to be decided on this petition and was not briefed by the parties or addressed by the courts below, we express no views on the scope of any municipal immunity beyond holding that municipal bodies sued under § 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under § 1983 “be drained of meaning,” Scheuer v. Rhodes, 416 U.S. 232, 248 (1974). Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397-398 (1971).

V

[39]For the reasons stated above, the judgment of the Court of Appeals is

Reversed.

Mr. Justice Powell, concurring.

[40]I join the opinion of the Court and express these additional views.

[41]Few cases in the history of the Court have been cited more frequently than Monroe v. Pape, 365 U.S. 167 (1961), decided less than two decades ago. Focusing new light on 42 U.S.C. § 1983, that decision widened access to the federal courts and permitted expansive interpretations of the reach of the 1871 measure. But Monroe exempted local governments from liability at the same time it opened wide the courthouse door to suits against officers and employees of those entities—even when they act pursuant to express authorization. The oddness of this result, and the weakness of the historical evidence relied on by the Monroe Court in support of it, are well demonstrated by the Court’s opinion today. Yet the gravity of overruling a part of so important a decision prompts me to write.

I

[42]In addressing a complaint alleging unconstitutional police conduct that probably was unauthorized and actionable under state law, the Monroe Court treated the 42d Congress’ rejection of the Sherman amendment as conclusive evidence of an intention to immunize local governments from all liability under the statute for constitutional injury. That reading, in light of today’s thorough canvass of the legislative history, clearly “misapprehended the meaning of the controlling provision,” Monroe, supra, at 192 (Harlan, J., concurring). In this case, involving formal, written policies of the Department of Social Services and the Board of Education of the city of New York that are alleged to conflict with the command of the Due Process Clause, cf. Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974), the Court decides “not to reject [wisdom] merely because it comes late,” Henslee v. Union Planters Bank, 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting).

[43]As the Court demonstrates, the Sherman amendment presented an extreme example of “riot act” legislation that sought to impose vicarious liability on government subdivisions for the consequences of private lawlessness. As such, it implicated concerns that are of marginal pertinence to the operative principle of § 1 of the 1871 legislation—now § 1983—that “any person” acting “under color of” state law may be held liable for affirmative conduct that “subjects, or causes to be subjected, any person … to the deprivation of any” federal constitutional or statutory right. Of the many reasons for the defeat of the Sherman proposal, none supports Monroe’s observation that the 42d Congress was fundamentally “antagonistic,” 365 U.S. at 191, to the proposition that government entities and natural persons alike should be held accountable for the consequences of conduct directly working a constitutional violation. Opponents in the Senate appear to have been troubled primarily by the proposal’s unprecedented lien provision, which would have exposed even property held for public purposes to the demands of § 1983 judgment lienors. Ante, at 673-674, n.30. The opposition in the House of Representatives focused largely on the Sherman amendment’s attempt to impose a peacekeeping obligation on municipalities when the Constitution itself imposed no such affirmative duty and when many municipalities were not even empowered under state law to maintain police forces. Ante, at 673-675, 679-682.^[21]

[44]The Court correctly rejects a view of the legislative history that would produce the anomalous result of immunizing local government units from monetary liability for action directly causing a constitutional deprivation, even though such actions may be fully consistent with, and thus not remediable under, state law. No conduct of government comes more clearly within the “under color of” state law language of § 1983. It is most unlikely that Congress intended public officials acting under the command or the specific authorization of the government employer to be exclusively liable for resulting constitutional injury.^[22]
[45]As elaborated in Part II of today’s opinion, the rejection of the Sherman amendment can best be understood not as evidence of Congress’ acceptance of a rule of absolute municipal immunity but as a limitation of the statutory ambit to actual wrongdoers, i.e., a rejection of respondeat superior or any other principle of vicarious liability. Cf. Levin, The Section 1983 Municipal Immunity Doctrine, 65 GEO. L.J. 1483, 1531-1535 (1977). Thus, it has been clear that a public official may be held liable in damages when his actions are found to violate a constitutional right and there is no qualified immunity, see Wood v. Strickland, 420 U.S. 308 (1975); Procunier v. Navarette, 434 U.S. 555 (1978). Today the Court recognizes that this principle also applies to a local government when implementation of its official policies or established customs inflicts the constitutional injury.

II

[46]This Court traditionally has been hesitant to overrule prior constructions of statutes or interpretations of common-law rules. “Stare decisis is usually the wise policy,” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting), but this cautionary principle must give way to countervailing considerations in appropriate circumstances. I concur in the Court’s view that this is not a case where we should “place on the shoulders of Congress the burden of the Court’s own error.” Girouard v. United States, 328 U.S. 61, 70 (1946).

* * * * *

[47]Finally, if we continued to adhere to a rule of absolute municipal immunity under § 1983, we could not long avoid the question whether “we should, by analogy to our decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), imply a cause of action directly from the Fourteenth Amendment which would not be subject to the limitations contained in § 1983….” Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 278 (1977). One aspect of that inquiry would be whether there are any “special factors counselling hesitation in the absence of affirmative action by Congress,” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396 (1971), such as an “explicit congressional declaration that persons injured by a [municipality] may not recover money damages …, but must instead be remitted to another remedy, equally effective in the view of Congress,” id., at 397. In light of the Court’s persuasive re-examination in today’s decision of the 1871 debates, I would have difficulty inferring from § 1983 “an explicit congressional declaration” against municipal liability for the implementation of official policies in violation of the Constitution. Rather than constitutionalize a cause of action against local government that Congress intended to create in 1871, the better course is to confess error and set the record straight, as the Court does today.^[23]
* * * * *

Mr. Justice Stevens, concurring in part.

[48]Since Parts II and IV of the opinion of the Court are merely advisory and are not necessary to explain the Court’s decision, I join only Parts I, III, and V.

Mr. Justice Rehnquist, with whom the Chief Justice joins, dissenting.

[49]Seventeen years ago, in Monroe v. Pape, 365 U.S. 167 (1961), this Court held that the 42d Congress did not intend to subject a municipal corporation to liability as a “person” within the meaning of 42 U.S.C. § 1983. Since then, the Congress has remained silent, but this Court has reaffirmed that holding on at least three separate occasions. Aldinger v. Howard, 427 U.S. 1 (1976); City of Kenosha v. Bruno, 412 U.S. 507 (1973); Moor v. County of Alameda, 411 U.S. 693 (1973). See also Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 277-279 (1977). Today, the Court abandons this long and consistent line of precedents, offering in justification only an elaborate canvass of the same legislative history which was before the Court in 1961. Because I cannot agree that this Court is “free to disregard these precedents,” which have been “considered maturely and recently” by this Court, Runyon v. McCrary, 427 U.S. 160, 186 (1976) (Powell, J., concurring), I am compelled to dissent.

I

[50]As this Court has repeatedly recognized, id., at 175 n.12; Edelman v. Jordan, 415 U.S. 651, 671 n.14 (1974), considerations of stare decisis are at their strongest when this Court confronts its previous constructions of legislation. In all cases, private parties shape their conduct according to this Court’s settled construction of the law, but the Congress is at liberty to correct our mistakes of statutory construction, unlike our constitutional interpretations, whenever it sees fit. The controlling principles were best stated by Mr. Justice Brandeis:

“Stare decisis is usually wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right…. This is commonly true even when the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-407 (1932) (dissenting opinion) (footnotes omitted).

[51]Only the most compelling circumstances can justify this Court’s abandonment of such firmly established statutory precedents. The best exposition of the proper burden of persuasion was delivered by Mr. Justice Harlan in Monroe itself:

“From my point of view, the policy of stare decisis, as it should be applied in matters of statutory construction, and, to a lesser extent, the indications of congressional acceptance of this Court’s earlier interpretation, require that it appear beyond doubt from the legislative history of the 1871 statute that [United States v.] Classic, [313 U.S. 299 (1941)] and Screws [v. United States, 325 U.S. 91 (1945)] misapprehended the meaning of the controlling provision, before a departure from what was decided in those cases would be justified.” 365 U.S., at 192 (concurring opinion) (footnote omitted; emphasis added).

[52]The Court does not demonstrate that any exception to this general rule is properly applicable here.

* * * * *

[53]Thus, our only task is to discern the intent of the 42^nd Congress. That intent was first expounded in Monroe, and it has been followed consistently ever since. This is not some esoteric branch of the law in which congressional silence might reasonably be equated with congressional indifference. Indeed, this very year, the Senate has been holding hearings on a bill, S. 35, 95^th Cong., 1^st Sess. (1977), which would remove the municipal immunity recognized by Monroe. 124 Cong. Rec. D117 (daily ed. Feb. 8, 1978). In these circumstances, it cannot be disputed that established principles of stare decisis require this Court to pay the highest degree of deference to its prior holdings. Monroe may not be overruled unless it has been demonstrated “beyond doubt from the legislative history of the 1871 statute that [Monroe] misapprehended the meaning of the controlling provision.” Monroe, 365 U.S. at 192 (Harlan, J., concurring). The Court must show not only that Congress, in rejecting the Sherman amendment, concluded that municipal liability was not unconstitutional, but also that, in enacting § 1, it intended to impose that liability. I am satisfied that no such showing has been made.

* * * * *

[54]Whatever the merits of the constitutional arguments raised against it, the fact remains that Congress rejected the concept of municipal tort liability on the only occasion in which the question was explicitly presented. Admittedly this fact is not conclusive as to whether Congress intended § 1 to embrace a municipal corporation within the meaning of “person,” and thus the reasoning of Monroe on this point is subject to challenge. The meaning of § 1 of the Act of 1871 has been subjected in this case to a more searching and careful analysis than it was in Monroe, and it may well be that on the basis of this closer analysis of the legislative debates a conclusion contrary to the Monroe holding could have been reached when that case was decided 17 years ago. But the rejection of the Sherman amendment remains instructive in that here alone did the legislative debates squarely focus on the liability of municipal corporations, and that liability was rejected.Any inference which might be drawn from the Dictionary Act or from general expressions of benevolence in the debate on § 1 that the word “person” was intended to include municipal corporations falls far short of showing “beyond doubt” that this Court in Monroe “misapprehended the meaning of the controlling provision.” Errors such as the Court may have fallen into in Monroe do not end the inquiry as to stare decisis; they merely begin it. I would adhere to the holding of Monroe as to the liability of a municipal corporation under § 1983.

III

[55]The decision in Monroe v. Pape was the fountainhead of the torrent of civil rights litigation of the last 17 years. Using § 1983 as a vehicle, the courts have articulated new and previously unforeseeable interpretations of the Fourteenth Amendment. At the same time, the doctrine of municipal immunity enunciated in Monroe has protected municipalities and their limited treasuries from the consequences of their officials’ failure to predict the course of this Court’s constitutional jurisprudence. None of the Members of this Court can foresee the practical consequences of today’s removal of that protection. Only the Congress, which has the benefit of the advice of every segment of this diverse Nation, is equipped to consider the results of such a drastic change in the law. It seems all but inevitable that it will find it necessary to do so after today’s decision.

I would affirm the judgment of the Court of Appeals.

Monell v. Department of Social Services of the City of New York – Audio and Transcript of Oral Argument

Footnotes

1. The plaintiffs alleged that New York had a citywide policy of forcing women to take maternity leave after the fifth month of pregnancy unless a city physician and the head of an employee’s agency allowed up to an additional two months of work. Amended Complaint para. 28, App. 13-14. The defendants did not deny this, but stated that this policy had been changed after suit was instituted. Answer para. 13, App. 32-33. The plaintiffs further alleged that the Board had a policy of requiring women to take maternity leave after the seventh month of pregnancy unless that month fell in the last month of the school year, in which case the teacher could remain through the end of the school term. Amended Complaint paras. 39, 42, 45, App. 18-19, 21. This allegation was denied. Answer paras. 18, 22, App. 35, 37. ↵

    

2. Petitioners conceded that the Department of Social Services enjoys the same status as New York City for Monroe purposes. See 532 F.2d, at 263. ↵

    

3. However, we do uphold Monroe v. Pape insofar as it holds that the doctrine of respondeat superior is not a basis for rendering municipalities liable under § 1983 for the constitutional torts of their employees. See Part II, infra. ↵

    

4. We expressly declined to consider “policy considerations” for or against municipal liability. See 365 U.S., at 191. ↵

    

5. Mr. Justice Douglas, the author of Monroe, has suggested that the municipal exclusion might more properly rest on a theory that Congress sought to prevent the financial ruin that civil rights liability might impose on municipalities. See City of Kenosha v. Bruno, 412 U.S. 507, 517-520 (1973). However, this view has never been shared by the Court, see Monroe v. Pape, 365 U.S. at 190; Moor v. County of Alameda, 411 U.S. 693, 708 (1973), and the debates do not support this position. ↵

    

6. Briefly, § 2 created certain federal crimes in addition to those defined in § 2 of the 1866 Civil Rights Act, 14 Stat. 27, each aimed primarily at the Ku Klux Klan. Section 3 provided that the President could send the militia into any State wracked with Klan violence. Finally, § 4 provided for suspension of the writ of habeas corpus in enumerated circumstances, again primarily those thought to obtain where Klan violence was rampant. See Cong. Globe, 42d Cong., 1st Sess., App. 335-336 (1871) (hereinafter Globe App.). ↵

    

7. Ibid. An action for recovery of damages was to be in the federal courts and denominated as a suit against the county, city, or parish in which the damage had occurred. Ibid. Execution of the judgment was not to run against the property of the government unit, however, but against the private property of any inhabitant. Ibid. ↵

    

8. “Let the people of property in the southern States understand that if they will not make the hue and cry and take the necessary steps to put down lawless violence in those States their property will be holden responsible, and the effect will be most wholesome.” Globe 761. Senator Sherman was apparently unconcerned that the conference committee substitute, unlike the original amendment, did not place liability for riot damage directly on the property of the well-to-do, but instead placed it on the local government. Presumably he assumed that taxes would be levied against the property of the inhabitants to make the locality whole. ↵

    

9. According to Senator Sherman, the law had originally been adopted in England immediately after the Norman Conquest and had most recently been promulgated as the law of 7 & 8 Geo. 4, ch. 31 (1827). See Globe 760. During the course of the debates, it appeared that Kentucky, Maryland, Massachusetts, and New York had similar laws. See id., at 751 (Rep. Shellabarger); id., at 762 (Sen. Stevenson); id., at 771 (Sen. Thurman); id., at 792 (Rep. Butler). Such a municipal liability was apparently common throughout New England. See id., at 761 (Sen. Sherman). ↵

    

10. In the Senate, opponents, including a number of Senators who had voted for § 1 of the bill, criticized the Sherman amendment as an imperfect and impolitic rendering of the state statutes. Moreover, as drafted, the conference substitute could be construed to protect rights that were not protected by the Constitution. A complete critique was given by Senator Thurman. See Globe 770-772. ↵

     

11. Representative Bingham, the author of § 1 of the Fourteenth Amendment, for example, declared the bill’s purpose to be “the enforcement … of the Constitution on behalf of every individual citizen of the Republic … to the extent of the rights guarantied to him by the Constitution.” Globe App. 81. He continued: “The States never had the right, though they had the power, to inflict wrongs upon free citizens by a denial of the full protection of the laws [And] the States did deny to citizens the equal protection of the laws, they did deny the rights of citizens under the Constitution, and except to the extent of the express limitations upon the States, as I have shown, the citizen had no remedy…. They took property without compensation, and he had no remedy. They restricted the freedom of the press, and he had no remedy. They restricted the freedom of speech, and he had no remedy. They restricted the rights of conscience, and he had no remedy Who dare say, now that the Constitution has been amended, that the nation cannot by law provide against all such abuses and denials of right as these in the States and by States, or combinations of persons?” Id. at 85. Representative Perry, commenting on Congress’ action in passing the civil rights bill also stated: “Now, by our action on this bill we have asserted as fully as we can assert the mischief intended to be remedied. We have asserted as clearly as we can assert our belief that it is the duty of Congress to redress that mischief. We have also asserted as fully as we can assert the constitutional right of Congress to legislate.” Globe 800. See also id. at 376 (Rep. Lowe); id. at 428-429 (Rep. Beatty); id. at 448 (Rep. Butler); id. at 475-477 (Rep. Dawes); id. at 578-579 (Sen. Trumbull); id. at 609 (Sen. Pool); Globe App. 182 (Rep. Mercur). Other supporters were quite clear that § 1 of the Act extended a remedy not only where a State had passed an unconstitutional statute, but also where officers of the State were deliberately indifferent to the rights of black citizens: “But the chief complaint is [that] by a systematic maladministration of [state law], or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them. Whenever such a state of facts is clearly made out, I believe [§ 5 of the Fourteenth Amendment] empowers Congress to step in and provide for doing justice to those persons who are thus denied equal protection.” Id. at 153 (Rep. Garfield). See also Monroe v. Pape, 365 U.S. at 171-187. Importantly for our inquiry, even the opponents of § 1 agreed that it was constitutional and, further, that it swept very broadly. Thus, Senator Thurman, who gave the most exhaustive critique of § 1, said: “This section relates wholly to civil suits. Its whole effect is to give to the Federal Judiciary that which now does not belong to it—a jurisdiction that may be constitutionally conferred upon it, I grant, but that has never yet been conferred upon it. It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrong-doer in the Federal courts, and that without any limit whatsoever as to the amount in controversy…. “[There] is no limitation whatsoever upon the terms that are employed [in the bill], and they are as comprehensive as can be used.” Globe App. 216-217 (emphasis added). ↵

     

12. See 2 J. Story, Commentaries on the Constitution of the United States § 1956 (T. Cooley ed. 1873). ↵

     

13. Indeed the federal courts found no obstacle to awards of damages against municipalities for common-law takings. See Sumner v. Philadelphia, 23 F. Cas. 392 (No. 13,611) (CC ED Pa. 1873) (awarding damages of $2,273.36 and costs of $346.35 against the city of Philadelphia). ↵

     

14. Nonetheless, suits could be brought in federal court if the natural persons who were members of the corporation were of diverse citizenship from the other parties to the litigation. See 5 Cranch, at 91. ↵

     

15. The court also noted that there was no discernible reason why persons injured by municipal corporations should not be able to recover. See 18 F. Cas., at 394. ↵

     

16. In considering the effect of the Act of Feb. 25, 1871, in Monroe, however, Mr. Justice Douglas, apparently focusing on the word “may,” stated: “[This] definition [of person] is merely an allowable, not a mandatory, one.” 365 U.S., at 191. A review of the legislative history of the Dictionary Act shows this conclusion to be incorrect.

    There is no express reference in the legislative history to the definition of “person,” but Senator Trumbull, the Act’s sponsor, discussed the phrase “words importing the masculine gender may be applied to females,” (emphasis added), which immediately precedes the definition of “person,” and stated:

    “The only object [of the Act] is to get rid of a great deal of verbosity in our statutes by providing that when the word ‘he’ is used it shall include females as well as males.” Cong. Globe, 41st Cong., 3d Sess., 775 (1871) (emphasis added).

    Thus, in Trumbull’s view the word “may” meant “shall.” Such a mandatory use of the extended meanings of the words defined by the Act is also required for it to perform its intended function—to be a guide to “rules of construction” of Acts of Congress. See ibid. (remarks of Sen. Trumbull). Were the defined words “allowable, [but] not mandatory” constructions, as Monroe suggests, there would be no “rules” at all. Instead, Congress must have intended the definitions of the Act to apply across-the-board except where the Act by its terms called for a deviation from this practice—”[where] the context shows that [defined] words were to be used in a more limited sense.” Certainly this is how the Northwestern Fertilizing court viewed the matter. Since there is nothing in the “context” of § 1 of the Civil Rights Act calling for a restricted interpretation of the word “person,” the language of that section should prima facie be construed to include “bodies politic” among the entities that could be sued. ↵

     

17. There is certainly no constitutional impediment to municipal liability. “The Tenth Amendment’s reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.” Milliken v. Bradley, 433 U.S. 267, 291 (1977); see Ex parte Virginia, 100 U.S. at 347-348. For this reason, National League of Cities v. Usery, 426 U.S. 833 (1976), is irrelevant to our consideration of this case. Nor is there any basis for concluding that the Eleventh Amendment is a bar to municipal liability. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Lincoln County v. Luning, 133 U.S. 529, 530 (1890). Our holding today is, of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes. ↵

     

18. There is certainly no constitutional impediment to municipal liability. “The Tenth Amendment’s reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.” Milliken v. Bradley, 433 U.S. 267, 291 (1977); see Ex parte Virginia, 100 U.S. at 347-348. For this reason, National League of Cities v. Usery, 426 U.S. 833 (1976), is irrelevant to our consideration of this case. Nor is there any basis for concluding that the Eleventh Amendment is a bar to municipal liability. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Lincoln County v. Luning, 133 U.S. 529, 530 (1890). Our holding today is, of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes. ↵

     

19. Support for such a conclusion can be found in the legislative history. As we have indicated, there is virtually no discussion of § 1 of the Civil Rights Act. Again, however, Congress’ treatment of the Sherman amendment gives a clue to whether it would have desired to impose respondeat superior liability. The primary constitutional justification for the Sherman amendment was that it was a necessary and proper remedy for the failure of localities to protect citizens as the Privileges or Immunities Clause of the Fourteenth Amendment required. See supra, at 670-673. And according to Sherman, Shellabarger, and Edmunds, the amendment came into play only when a locality was at fault or had knowingly neglected its duty to provide protection. See Globe 761 (Sen. Sherman); id., at 756 (Sen. Edmunds); id. at 751-752 (Rep. Shellabarger). But other proponents of the amendment apparently viewed it as a form of vicarious liability for the unlawful acts of the citizens of the locality. See id., at 792 (Rep. Butler). And whether intended or not, the amendment as drafted did impose a species of vicarious liability on municipalities since it could be construed to impose liability even if a municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything about it. Indeed, the amendment held a municipality liable even if it had done everything in its power to curb the riot. See supra, at 668; Globe 761 (Sen. Stevenson); id. at 771 (Sen. Thurman); id. at 788 (Rep. Kerr); id. at 791 (Rep. Willard). While the first conference substitute was rejected principally on constitutional grounds, see id. at 804 (Rep. Poland), it is plain from the text of the second conference substitute—which limited liability to those who, having the power to intervene against Ku Klux Klan violence, “[neglected] or [refused] so to do,” see Appendix to this opinion, infra, at 704, and which was enacted as § 6 of the 1871 Act and is now codified as 42 U.S.C. § 1986—that Congress also rejected those elements of vicarious liability contained in the first conference substitute even while accepting the basic principle that the inhabitants of a community were bound to provide protection against the Ku Klux Klan. Strictly speaking, of course, the fact that Congress refused to impose vicarious liability for the wrongs of a few private citizens does not conclusively establish that it would similarly have refused to impose vicarious liability for the torts of a municipality’s employees. Nonetheless, when Congress’ rejection of the only form of vicarious liability presented to it is combined with the absence of any language in § 1983 which can easily be construed to create respondeat superior liability, the inference that Congress did not intend to impose such liability is quite strong. ↵

     

20. A third justification, often cited but which on examination is apparently insufficient to justify the doctrine of respondeat superior, see, e.g., 2 F. HARPER & F. JAMES, § 26.3, is that liability follows the right to control the actions of a tortfeasor. By our decision in Rizzo v. Goode, 423 U.S. 362 (1976), we would appear to have decided that the mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support § 1983 liability. See 423 U.S. at 370-371. ↵

     

21. If in the view of House opponents, such as Representatives Poland, Burchard, and Willard, see ante, at 679-680, a municipality obligated by state law to keep the peace could be held liable for a failure to provide equal protection against private violence, it seems improbable that they would have opposed imposition of liability on a municipality for the affirmative implementation of policies promulgated within its proper sphere of operation under state law. Such liability is premised not on a failure to take affirmative action in an area outside the contemplation of the state-law charter—the sort of liability that would have been imposed by the Sherman amendment—but on the consequences of activities actually undertaken within the scope of the powers conferred by state law. ↵

     

22. The view taken today is consistent with the understanding of the 42d Congress that unless the context revealed a more limited definition, “the word ‘person’ may extend and be applied to bodies politic and corporate.” Act of Feb. 25, 1871, § 2, 16 Stat. 431. It also accords with the interpretation given the same word when it was used by Senator Sherman in the antitrust legislation of 1890 bearing his name. See Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978) (plurality opinion); Chattanooga Foundry v. Atlanta, 203 U.S. 390, 396 (1906); cf. Pfizer Inc. v. Government of India, 434 U.S. 308 (1978). ↵

     

23. Mr. Justice Rehnquist’s dissent makes a strong argument that “[since] Monroe, municipalities have had the right to expect that they would not be held liable retroactively for their officers’ failure to predict this Court’s recognition of new constitutional rights.” Post, at 717. But it reasonably may be assumed that most municipalities already indemnify officials sued for conduct within the scope of their authority, a policy that furthers the important interest of attracting and retaining competent officers, board members, and employees. In any event, the possibility of a qualified immunity, as to which the Court reserves decision, may remove some of the harshness of liability for good-faith failure to predict the often uncertain course of constitutional adjudication. ↵

Notes on Monell v. Department of Social Services of the City of New York

1. On what basis does the Court reject the reasoning in Monroe v. Pape? Why did the Court find that the Sherman Amendment was not a blanket rejection of municipal liability?
   1. For what conduct would local government entities be liable under the Sherman Amendment?
   2. What constitutional problems were posed by the Sherman Amendment?
   3. What forms of municipal liability would avoid the constitutional problems posed by the Sherman Amendment?
2. How does the Court find that Congress intended the word “person” in Section 1983 to include local governmental entities? What general rules of construction for Section 1983 does the Court employ?
3. On what basis does the Court find that Congress did not intend to hold municipalities vicariously liable for all constitutional violations caused by its employees in the scope of employment? Is the Court’s analysis of vicarious liability consistent with its analysis of whether municipalities are “persons” under Section 1983? See Note, Section 1983 Municipal Liability and the Doctrine of Respondeat Superior, 46 U. CHIC. L. REV. 935 (1979).
   1. Is the Court’s interpretation of the causation language of Section 1983 consistent with the general rules of construction of Section 1983 utilized in Part I of the Monell opinion?
   2. Is the Court’s interpretation of the causation language of Section 1983 consistent with the common law treatment of vicarious liability? Does the Court find that municipalities were not vicariously liable at common law when Congress enacted Section 1983? See Owen v. City of Independence, Missouri, 445 U.S. 622, 640-42 (1980), infra.
   3. Is the Court’s reliance on the Sherman Amendment consonant with its analysis of the Sherman Amendment of Part I of the opinion? Would imposition of respondeat superior liability create the same constitutional problems which led to rejection of the Sherman Amendment?
   4. Does the Court’s repudiation of vicarious individual liability in Rizzo v. Goode, 423 U.S. 362 (1976) mandate that Congress rejected vicarious municipal liability under Section 1983?
4. In City of Oklahoma v. Tuttle, 471 U.S. 808 (1985), the Court reversed a damage award against the City of Oklahoma in a Section 1983 action arising out of a low-level police officer’s fatal shooting of the plaintiff’s husband. The Court ruled that the trial judge erred by instructing the jury that it could hold the city liable if this single incident of shooting amounted to an extraordinary use of excessive force, without further requiring proof that the shooting was caused by a municipal policy. Justice Stevens dissented, offering that the city should be vicariously liable for the actions of its employee:
   

   [Section] 1983 … was an especially important, remedial measure, drafted in expansive language

   * * * * *

   At the time the statute was enacted the doctrine of respondeat superior was well recognized in the common law of the several states and in England. An employer could be held liable for the wrongful acts of his agents, even when acting contrary to specific instructions, and the rule had been specifically applied to municipal corporations, and to wrongful acts of police officers. Because it “is always appropriate to assume that our elected representatives, like other citizens, know the law,” it is equally appropriate to assume that the authors of the Civil Rights Act recognized that the rule of respondeat superior would apply to “a species of tort liability that on its face admits of no immunities.” Indeed, we have repeatedly held that § 1983 should be construed to incorporate common-law doctrine “absent specific provisions to the contrary.”

   * * * * *

   The legislative history of the Ku Klux Act supports this conclusion for two reasons. First, the fact that “nobody” objected to § 1 is consistent with the view that Congress expected normal rules of tort law to be applied in enforcing it. Second, the debate on the Sherman Amendment—an amendment that would have imposed an extraordinary and novel form of absolute liability on municipalities—indicates that Congress seriously considered imposing additional responsibilities on municipalities without ever mentioning the possibility that they should have any lesser responsibility than any other person. The rejection of the Sherman Amendment sheds no light on the meaning of the statute, but the fact that such an extreme measure was even considered indicates that Congress thought it appropriate to require municipal corporations to share the responsibility for carrying out the commands of the Fourteenth Amendment.

   Of greatest importance, however, is the nature of the wrong for which § 1983 provides a remedy. The Act was primarily designed to provide a remedy for violations of the United States Constitution—wrongs of the most serious kind. As the Court recognizes, the individual officer in this case was engaged in “unconstitutional activity.” But the conduct of an individual can be characterized as “unconstitutional” only if it is attributed to his employer. The Fourteenth Amendment does not have any application to purely private conduct.

   Unless an individual officer acts under the color of official authority, § 1983 does not authorize any recovery against him. But if his relationship with his employer makes it appropriate to treat his conduct as state action for purposes of constitutional analysis, surely that relationship equally justifies the application of normal principles of tort law for the purpose of allocating responsibility for the wrongful state action.

   * * * * *

   In a number of decisions construing § 1983, the Court has considered whether its holding is supported by sound considerations of policy. In this case, all of the policy considerations that support the application of the doctrine of respondeat superior in normal tort litigation against municipal corporations apply with special force because of the special quality of the interests at stake. The interest in providing fair compensation to the victim, the interest in deterring future violations by formulating sound municipal policy, and the interest in fair treatment for individual officers who are performing difficult and dangerous work, all militate in favor of placing primary responsibility on the municipal corporation.

   The Court’s contrary conclusion can only be explained by a concern about the danger of bankrupting municipal corporations. That concern is surely legitimate, but it is one that should be addressed by Congress—perhaps by imposing maximum limitations on the size of any potential recovery or by requiring the purchase of appropriate liability insurance—rather than by this Court. Moreover, it is a concern that is relevant to the law of damages rather than to the rules defining the substantive liability of “every person” covered by § 1983.

   471 U.S. at 834-44.

5. Is the Court’s rejection of respondeat superior liability a holding of Monell?
   1. In their brief before the Supreme Court, plaintiffs made clear that they were not arguing a local government should be liable for every wrong of its employees. Rather, plaintiffs asserted, a court could require municipalities to expend public funds where the official who effected the constitutional violation was “the chief executive or policy making body of the city or county, or some other high ranking official authorized to direct the expenditure of funds.” Brief for the Petitioners at 33, Monell, 436 U.S. 658 (No. 75-1914). During oral argument, plaintiff’s counsel specifically declaimed reliance on respondeat superior liability:
      

      We are not saying that plaintiffs in Monroe could have sued Mayor Daley of Chicago and obtained a judgment because some police officer beat them up. Mayor Daley, in that case, did not wrongfully exercise his official powers Nor could, under our view, the plaintiff in Monroe sue the [City of Chicago] because the police officer … has no authority to dispense pubic funds.

      Transcript of Oral Argument 5 Tr. at 11-12, Monell, 436 U.S. 658 (1977) (No. 75-1914).

      In response to the Court’s questioning, counsel expressly abjured reliance on a theory of vicarious liability.

      Question:       In other words, as I understand it, your argument in this phase of the case is not at all dependent upon a respondeat superior theory?

      Mr. Chase:    No, Your Honor, We believe that –

      Question:       Not a bit?

      Mr. Chase:    Not at all.

      Id. at 12.

   2. The word “policy” does not appear in the text of § 1983 Part II of Monell contains dicta of the least persuasive kind. As Justice Powell noted in his separate concurrence, language that is “not necessary to the holding may be accorded less weight in subsequent cases.” Moreover, as he also pointed out, “we owe somewhat less deference to a decision that was rendered without benefit of a full airing of all the relevant considerations.” The commentary on respondeat superior in Monell was not responsive to any argument advanced by either party and was not even relevant to the Court’s actual holding. Moreover, in the Court’s earlier decision in Monroe v. Pape, although the petitioners had explained why it would be appropriate to apply the doctrine of respondeat superior in § 1983 litigation, no contrary argument had been advanced by the city. Thus, the views expressed in Part II of Monell constitute judicial legislation of the most blatant kind. Having overruled its earlier—and, ironically also volunteered—misconstruction of the word “person” in Monroe v. Pape, in my opinion, the Court in Monell should simply have held that municipalities are liable for the unconstitutional activities of their agents that are performed in the course of their official duties.

      City of Oklahoma v. Tuttle, 471 U.S. 808, 841-42 (1985) (Stevens, J. dissenting).

6. May a city be held liable for constitutional violations on a theory of respondeat superior where, under a state statute, municipalities are vicariously liable for actions of their employees in the scope of their employment? See Medrano v. City of Los Angeles, 973 F.2d 1499, 1505 (9th Cir. 1992).
7. How does the Monell Court’s repudiation of vicarious liability affect the allocation of the risk of loss from constitutional violations? Will the individual government employee always bear the loss from invasions of constitutional rights that are not caused by municipal policy or custom? If not, where does the loss fall?
8. While rejecting absolute municipal immunity, the Monell Court did not address whether local government entities could assert a qualified immunity defense. This issue was presented to the Court two years later in Owen v. City of Independence, Missouri, 445 U.S. 622 (1980).