OWEN v. CITY OF INDEPENDENCE, MISSOURI, 445 U.S. 622 (1980)

Mr. Justice Brennan delivered the opinion of the Court.

[1]Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), overruled Monroe v. Pape, 365 U.S. 167 (1961), insofar as Monroe held that local governments were not among the “persons” to whom 42 U.S.C. § 1983 applies and were therefore wholly immune from suit under the statute. Monell reserved decision, however, on the question whether local governments, although not entitled to an absolute immunity, should be afforded some form of official immunity in § 1983 suits. 436 U.S., at 701. In this action brought by petitioner in the District Court for the Western District of Missouri, the Court of Appeals for the Eighth Circuit held that respondent city of Independence, Mo., “is entitled to qualified immunity from liability” based on the good faith of its officials: “We extend the limited immunity the district court applied to the individual defendants to cover the City as well, because its officials acted in good faith and without malice.” 589 F.2d 335, 337-338 (1978). We granted certiorari. 444 U.S. 822 (1979). We reverse.

I

[2]The events giving rise to this suit are detailed in the District Court’s findings of fact, 421 F. Supp. 1110 (1976). On February 20, 1967, Robert L. Broucek, then City Manager of respondent city of Independence, Mo., appointed petitioner George D. Owen to an indefinite term as Chief of Police.^[1] In 1972, Owen and a new City Manager, Lyle W. Alberg, engaged in a dispute over petitioner’s administration of the Police Department’s property room. In March of that year, a handgun, which the records of the Department’s property room stated had been destroyed, turned up in Kansas City in the possession of a felon. This discovery prompted Alberg to initiate an investigation of the management of the property room.

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[3]On the evening of April 17, 1972, the City Council held its regularly scheduled meeting. After completion of the planned agenda, Councilman Roberts read a statement he had prepared on the investigation. Among other allegations, Roberts charged that petitioner had misappropriated Police Department property for his own use, that narcotics and money had “mysteriously disappeared” from his office, that traffic tickets had been manipulated, that high ranking police officials had made “inappropriate” requests affecting the police court, and that “things have occurred causing the unusual release of felons.” At the close of his statement, Roberts moved that the investigative reports be released to the news media and turned over to the prosecutor for presentation to the grand jury, and that the City Manager “take all direct and appropriate action” against those persons “involved in illegal, wrongful, or gross inefficient activities brought out in the investigative reports.” After some discussion, the City Council passed Roberts’ motion with no dissents and one abstention.^[2]

[4]City Manager Alberg discharged petitioner the very next day. Petitioner was not given any reason for his dismissal; he received only a written notice stating that his employment as Chief of Police was “[terminated] under the provisions of Section 3.3(1) of the City Charter.” Petitioner’s earlier demand for a specification of charges and a public hearing was ignored, and a subsequent request by his attorney for an appeal of the discharge decision was denied by the city on the grounds that “there is no appellate procedure or forum provided by the Charter or ordinances of the City of Independence, Missouri, relating to the dismissal of Mr. Owen.” App. 26-27.

[5]The local press gave prominent coverage both to the City Council’s action and petitioner’s dismissal, linking the discharge to the investigation.^[3] As instructed by the City Council, Alberg referred the investigative reports and witness statements to the Prosecuting Attorney of Jackson County, Mo., for consideration by a grand jury. The results of the audit and investigation were never released to the public, however. The grand jury subsequently returned a “no true bill,” and no further action was taken by either the City Council or City Manager Alberg.

II

[6]Petitioner named the city of Independence, City Manager Alberg, and the present members of the City Council in their official capacities as defendants in this suit.^[4]

Alleging that he was discharged without notice of reasons and without a hearing in violation of his constitutional rights to procedural and substantive due process, petitioner sought declaratory and injunctive relief, including a hearing on his discharge, backpay from the date of discharge, and attorney’s fees.

* * * * *

[7]Monell held that “a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” 436 U.S., at 694. The Court of Appeals held in the instant case that the municipality’s official policy was responsible for the deprivation of petitioner’s constitutional rights: “[The] stigma attached to [petitioner] in connection with his discharge was caused by the official conduct of the City’s lawmakers, or by those whose acts may fairly be said to represent official policy. Such conduct amounted to official policy causing the infringement of [petitioner’s] constitutional rights, in violation of section 1983.” 589 F.2d, at 337.^[5]

[8]Nevertheless, the Court of Appeals affirmed the judgment of the District Court denying petitioner any relief against the respondent city, stating:

“The Supreme Court’s decisions in Board of Regents v. Roth, 408 U.S. 564 … (1972), and Perry v. Sindermann, 408 U.S. 593 … (1972), crystallized the rule establishing the right to a name-clearing hearing for a government employee allegedly stigmatized in the course of his discharge. The Court decided those two cases two months after the discharge in the instant case. Thus, officials of the City of Independence could not have been aware of [petitioner’s] right to a name-clearing hearing in connection with the discharge. The City of Independence should not be charged with predicting the future course of constitutional law. We extend the limited immunity the district court applied to the individual defendants to cover the City as well, because its officials acted in good faith and without malice. We hold the City not liable for actions it could not reasonably have known violated [petitioner’s] constitutional rights.” Id., at 338 (footnote and citations omitted).

We turn now to the reasons for our disagreement with this holding.^[6]

III

[9]Because the question of the scope of a municipality’s immunity from liability under § 1983 is essentially one of statutory construction, see Wood v. Strickland, 420 U.S. 308, 314, 316 (1975); Tenney v. Brandhove, 341 U.S. 367, 376 (1951), the starting point in our analysis must be the language of the statute itself. Andrus v. Allard, 444 U.S. 51, 56 (1979); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring). By its terms, § 1983 “creates a species of tort liability that on its face admits of no immunities.” Imbler v. Pachtman, 424 U.S. 409, 417 (1976). Its language is absolute and unqualified; no mention is made of any privileges, immunities, or defenses that may be asserted. Rather, the Act imposes liability upon “every person” who, under color of state law or custom, “subjects, or causes to be subjected, any citizen of the United States… to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” And Monell held that these words were intended to encompass municipal corporations as well as natural “persons.”

[10]Moreover, the congressional debates surrounding the passage of § 1 of the Civil Rights Act of 1871, 17 Stat. 13—the forerunner of § 1983—confirm the expansive sweep of the statutory language. Representative Shellabarger, the author and manager of the bill in the House, explained in his introductory remarks the breadth of construction that the Act was to receive:

“I have a single remark to make in regard to the rule of interpretation of those provisions of the Constitution under which all the sections of the bill are framed. This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional 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.” Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871) (hereinafter Globe App.).

Similar views of the Act’s broad remedy for violations of federally protected rights were voiced by its supporters in both Houses of Congress. See Monell v. New York City Dept. of Social Services, 436 U.S., at 683-687.^[7]

[11]However, notwithstanding § 1983’s expansive language and the absence of any express incorporation of common-law immunities, we have, on several occasions, found that a tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that “Congress would have specifically so provided had it wished to abolish the doctrine.” Pierson v. Ray, 386 U.S. 547, 555 (1967).

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[12]In each of these cases, our finding of § 1983 immunity “was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” Imbler v. Pachtman, supra, at 421. Where the immunity claimed by the defendant was well established at common law at the time § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act, we have construed the statute to incorporate that immunity. But there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify the qualified immunity accorded the city of Independence by the Court of Appeals. We hold, therefore, that the municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983.^[8]

A

[13]Since colonial times, a distinct feature of our Nation’s system of governance has been the conferral of political power upon public and municipal corporations for the management of matters of local concern. As Monell recounted, by 1871, municipalities—like private corporations—were treated as natural persons for virtually all purposes of constitutional and statutory analysis. In particular, they were routinely sued in both federal and state courts. See 436 U.S., at 687-688. Cf. Cowles v. Mercer County, 7 Wall. 118 (1869). Local governmental units were regularly held to answer in damages for a wide range of statutory and constitutional violations, as well as for common-law actions for breach of contract.^[9] And although, as we discuss below, a municipality was not subject to suit for all manner of tortious conduct, it is clear that at the time § 1983 was enacted, local governmental bodies did not enjoy the sort of “good-faith” qualified immunity extended to them by the Court of Appeals.

[14]As a general rule, it was understood that a municipality’s tort liability in damages was identical to that of private corporations and individuals.

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[15]Under this general theory of liability, a municipality was deemed responsible for any private losses generated through a wide variety of its operations and functions, from personal injuries due to its defective sewers, thoroughfares, and public utilities, to property damage caused by its trespasses and uncompensated takings.

[16]Yet in the hundreds of cases from that era awarding damages against municipal governments for wrongs committed by them, one searches in vain for much mention of a qualified immunity based on the good faith of municipal officers. Indeed, where the issue was discussed at all, the courts had rejected the proposition that a municipality should be privileged where it reasonably believed its actions to be lawful.

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[17]That municipal corporations were commonly held liable for damages in tort was also recognized by the 42d Congress. See Monell v. New York City Dept. of Social Services, 436 U.S., at 688. For example, Senator Stevenson, in opposing the Sherman amendment’s creation of a municipal liability for the riotous acts of its inhabitants, stated the prevailing law: “Numberless cases are to be found where a statutory liability has been created against municipal corporations for injuries resulting from a neglect of corporate duty.” Cong. Globe, 42d Cong., 1st Sess., 762 (hereinafter Globe).^[10] Nowhere in the debates, however, is there a suggestion that the common law excused a city from liability on account of the good faith of its authorized agents, much less an indication of a congressional intent to incorporate such an immunity into the Civil Rights Act.^[11]

The absence of any allusion to a municipal immunity assumes added significance in light of the objections raised by the opponents of § 1 of the Act that its unqualified language could be interpreted to abolish the traditional good-faith immunities enjoyed by legislators, judges, governors, sheriffs, and other public officers.^[12] Had there been a similar common-law immunity for municipalities, the bill’s opponents doubtless would have raised the specter of its destruction, as well.

[18]To be sure, there were two doctrines that afforded municipal corporations some measure of protection from tort liability. The first sought to distinguish between a municipality’s “governmental” and “proprietary” functions; as to the former, the city was held immune, whereas in its exercise of the latter, the city was held to the same standards of liability as any private corporation. The second doctrine immunized a municipality for its “discretionary” or “legislative” activities, but not for those which were “ministerial” in nature. A brief examination of the application and the rationale underlying each of these doctrines demonstrates that Congress could not have intended them to limit a municipality’s liability under § 1983.

[19]The governmental-proprietary distinction^[13] owed its existence to the dual nature of the municipal corporation. On the one hand, the municipality was a corporate body, capable of performing the same “proprietary” functions as any private corporation, and liable for its torts in the same manner and to the same extent, as well. On the other hand, the municipality was an arm of the State, and when acting in that “governmental” or “public” capacity, it shared the immunity traditionally accorded the sovereign. But the principle of sovereign immunity—itself a somewhat arid fountainhead for municipal immunity^[14]—is necessarily nullified when the State expressly or impliedly allows itself, or its creation, to be sued. Municipalities were therefore liable not only for their “proprietary” acts, but also for those “governmental” functions as to which the State had withdrawn their immunity. And, by the end of the 19th century, courts regularly held that in imposing a specific duty on the municipality either in its charter or by statute, the State had impliedly withdrawn the city’s immunity from liability for the nonperformance or misperformance of its obligation. See, e. g., Weightman v. The Corporation of Washington, 1 Black 39, 50-52 (1862); Providence v. Clapp, 17 How. 161, 167-169 (1855). See generally Shearman & Redfield §§ 122-126; Note, Liability of Cities for the Negligence and Other Misconduct of their Officers and Agents, 30 Am. St. Rep. 376, 385 (1893). Thus, despite the nominal existence of an immunity for “governmental” functions, municipalities were found liable in damages in a multitude of cases involving such activities.

[20]That the municipality’s common-law immunity for “governmental” functions derives from the principle of sovereign immunity also explains why that doctrine could not have served as the basis for the qualified privilege respondent city claims under § 1983. First, because sovereign immunity insulates the municipality from unconsented suits altogether, the presence or absence of good faith is simply irrelevant. The critical issue is whether injury occurred while the city was exercising governmental, as opposed to proprietary, powers or obligations—not whether its agents reasonably believed they were acting lawfully in so conducting themselves.^[15] More fundamentally, however, the municipality’s “governmental” immunity is obviously abrogated by the sovereign’s enactment of a statute making it amenable to suit. Section 1983 was just such a statute. By including municipalities within the class of “persons” subject to liability for violations of the Federal Constitution and laws, Congress—the supreme sovereign on matters of federal law^[16]—abolished whatever vestige of the State’s sovereign immunity the municipality possessed.

[21]The second common-law distinction between municipal functions—that protecting the city from suits challenging “discretionary” decisions—was grounded not on the principle of sovereign immunity, but on a concern for separation of powers. A large part of the municipality’s responsibilities involved broad discretionary decisions on issues of public policy—decisions that affected large numbers of persons and called for a delicate balancing of competing considerations. For a court or jury, in the guise of a tort suit, to review the reasonableness of the city’s judgment on these matters would be an infringement upon the powers properly vested in a coordinate and coequal branch of government. See Johnson v. State, 69 Cal. 2d 782, 794, n.8, 447 P.2d 352, 361, n.8 (1968) (en banc) (“Immunity for ‘discretionary’ activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government”). In order to ensure against any invasion into the legitimate sphere of the municipality’s policymaking processes, courts therefore refused to entertain suits against the city “either for the non-exercise of, or for the manner in which in good faith it exercises, discretionary powers of a public or legislative character.” 2 Dillon § 753, at 862.^[17]

[22]Although many, if not all, of a municipality’s activities would seem to involve at least some measure of discretion, the influence of this doctrine on the city’s liability was not as significant as might be expected. For just as the courts implied an exception to the municipality’s immunity for its “governmental” functions, here, too, a distinction was made that had the effect of subjecting the city to liability for much of its tortious conduct. While the city retained its immunity for decisions as to whether the public interest required acting in one manner or another, once any particular decision was made, the city was fully liable for any injuries incurred in the execution of its judgment. See, e.g., Hill v. Boston, 122 Mass. 344, 358-359 (1877) (dicta) (municipality would be immune from liability for damages resulting from its decision where to construct sewers, since that involved a discretionary judgment as to the general public interest; but city would be liable for neglect in the construction or repair of any particular sewer, as such activity is ministerial in nature). See generally C. RHYNE, MUNICIPAL LAW § 30.4, pp. 736-737 (1957); Williams § 7. Thus municipalities remained liable in damages for a broad range of conduct implementing their discretionary decisions.

[23]Once again, an understanding of the rationale underlying the common-law immunity for “discretionary” functions explains why that doctrine cannot serve as the foundation for a good-faith immunity under § 1983. That common-law doctrine merely prevented courts from substituting their own judgment on matters within the lawful discretion of the municipality. But a municipality has no “discretion” to violate the Federal Constitution; its dictates are absolute and imperative. And when a court passes judgment on the municipality’s conduct in a § 1983 action, it does not seek to second-guess the “reasonableness” of the city’s decision nor to interfere with the local government’s resolution of competing policy considerations. Rather, it looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes. As was stated in Sterling v. Constantin, 287 U.S. 378, 398 (1932): “When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression.”

[24]In sum, we can discern no “tradition so well grounded in history and reason” that would warrant the conclusion that in enacting § 1 of the Civil Rights Act, the 42d Congress sub silentio extended to municipalities a qualified immunity based on the good faith of their officers. Absent any clearer indication that Congress intended so to limit the reach of a statute expressly designed to provide a “broad remedy for violations of federally protected civil rights,” Monell v. New York City Dept. of Social Services, 436 U.S. at 685, we are unwilling to suppose that injuries occasioned by a municipality’s unconstitutional conduct were not also meant to be fully redressable through its sweep.^[18]

B

[25]Our rejection of a construction of § 1983 that would accord municipalities a qualified immunity for their good-faith constitutional violations is compelled both by the legislative purpose in enacting the statute and by considerations of public policy. The central aim of the Civil Rights Act was to provide protection to those persons wronged by the “‘[misuse] of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Monroe v. Pape, 365 U.S. at 184 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). By creating an express federal remedy, Congress sought to “enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” Monroe v. Pape, supra, at 172.

[26]How “uniquely amiss” it would be, therefore, if the government itself—”the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct”—were permitted to disavow liability for the injury it has begotten. See Adickes v. Kress & Co., 398 U.S. 144, 190 (1970) (opinion of Brennan, J.). A damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees, and the importance of assuring its efficacy is only accentuated when the wrongdoer is the institution that has been established to protect the very rights it has transgressed. Yet owing to the qualified immunity enjoyed by most government officials, see Scheuer v. Rhodes, 416 U.S. 232 (1974), many victims of municipal malfeasance would be left remediless if the city were also allowed to assert a good-faith defense. Unless countervailing considerations counsel otherwise, the injustice of such a result should not be tolerated.^[19]

[27]Moreover, § 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well. See Robertson v. Wegmann, 436 U.S. 584, 590-591 (1978); Carey v. Piphus, 435 U.S. 247, 256-257 (1978). The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights.^[20] Furthermore, the threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights.^[21]Such procedures are particularly beneficial in preventing those “systemic” injuries that result not so much from the conduct of any single individual, but from the interactive behavior of several government officials, each of whom may be acting in good faith. Cf. Note, Developments in the Law: Section 1983 and Federalism, 90 HARV. L. REV. 1133, 1218-1219 (1977).^[22]

[28]Our previous decisions conferring qualified immunities on various government officials, see supra, at 637-638, are not to be read as derogating the significance of the societal interest in compensating the innocent victims of governmental misconduct. Rather, in each case we concluded that overriding considerations of public policy nonetheless demanded that the official be given a measure of protection from personal liability. The concerns that justified those decisions, however, are less compelling, if not wholly inapplicable, when the liability of the municipal entity is at issue.^[23]

[29]In Scheuer v. Rhodes, supra, at 240, the Chief Justice identified the two “mutually dependent rationales” on which the doctrine of official immunity rested:

“(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion;

(2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.”^[24]

[30]The first consideration is simply not implicated when the damages award comes not from the official’s pocket, but from the public treasury. It hardly seems unjust to require a municipal defendant which has violated a citizen’s constitutional rights to compensate him for the injury suffered thereby. Indeed, Congress enacted § 1983 precisely to provide a remedy for such abuses of official power. See Monroe v. Pape, 365 U.S. at 171-172. Elemental notions of fairness dictate that one who causes a loss should bear the loss.

[31]It has been argued, however, that revenue raised by taxation for public use should not be diverted to the benefit of a single or discrete group of taxpayers, particularly where the municipality has at all times acted in good faith. On the contrary, the accepted view is that stated in Thayer v. Boston—“that the city, in its corporate capacity, should be liable to make good the damage sustained by an [unlucky] individual, in consequence of the acts thus done.” 36 Mass. at 515. After all, it is the public at large which enjoys the benefits of the government’s activities, and it is the public at large which is ultimately responsible for its administration. Thus, even where some constitutional development could not have been foreseen by municipal officials, it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights, albeit newly recognized, have been violated. See generally 3 K. Davis, Administrative Law Treatise § 25.17 (1958 and Supp. 1970); Prosser § 131, at 978; Michelman, Property, Utility, and Fairness: Some Thoughts on the Ethical Foundations of “Just Compensation” Law, 80 HARV. L. REV. 1165 (1967).^[25]

[32]The second rationale mentioned in Scheuer also loses its force when it is the municipality, in contrast to the official, whose liability is at issue. At the heart of this justification for a qualified immunity for the individual official is the concern that the threat of personal monetary liability will introduce an unwarranted and unconscionable consideration into the decision making process, thus paralyzing the governing official’s decisiveness and distorting his judgment on matters of public policy.^[26] The inhibiting effect is significantly reduced, if not eliminated, however, when the threat of personal liability is removed. First, as an empirical matter, it is questionable whether the hazard of municipal loss will deter a public officer from the conscientious exercise of his duties; city officials routinely make decisions that either require a large expenditure of municipal funds or involve a substantial risk of depleting the public fisc. See Kostka v. Hogg, 560 F.2d 37, 41 (CA1 1977). More important, though, is the realization that consideration of the municipality’s liability for constitutional violations is quite properly the concern of its elected or appointed officials. Indeed, a decisionmaker would be derelict in his duties if, at some point, he did not consider whether his decision comports with constitutional mandates and did not weigh the risk that a violation might result in an award of damages from the public treasury. As one commentator aptly put it: “Whatever other concerns should shape a particular official’s actions, certainly one of them should be the constitutional rights of individuals who will be affected by his actions. To criticize section 1983 liability because it leads decisionmakers to avoid the infringement of constitutional rights is to criticize one of the statute’s raisons d’etre.”^[27]

IV

[33]In sum, our decision holding that municipalities have no immunity from damages liability flowing from their constitutional violations harmonizes well with developments in the common law and our own pronouncements on official immunities under § 1983. Doctrines of tort law have changed significantly over the past century, and our notions of governmental responsibility should properly reflect that evolution. No longer is individual “blameworthiness” the acid test of liability; the principle of equitable loss-spreading has joined fault as a factor in distributing the costs of official misconduct.

[34]We believe that today’s decision, together with prior precedents in this area, properly allocates these costs among the three principals in the scenario of the § 1983 cause of action: the victim of the constitutional deprivation; the officer whose conduct caused the injury; and the public, as represented by the municipal entity. The innocent individual who is harmed by an abuse of governmental authority is assured that he will be compensated for his injury. The offending official, so long as he conducts himself in good faith, may go about his business secure in the knowledge that a qualified immunity will protect him from personal liability for damages that are more appropriately chargeable to the populace as a whole. And the public will be forced to bear only the costs of injury inflicted by the “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell v. New York City Dept. of Social Services, 436 U.S. at 694.

Reversed.

Mr. Justice Powell, with whom the Chief Justice, Mr. Justice Stewart, and Mr. Justice Rehnquist join, dissenting.

[35]The Court today holds that the city of Independence may be liable in damages for violating a constitutional right that was unknown when the events in this case occurred. It finds a denial of due process in the city’s failure to grant petitioner a hearing to clear his name after he was discharged. But his dismissal involved only the proper exercise of discretionary powers according to prevailing constitutional doctrine. The city imposed no stigma on petitioner that would require a “name clearing” hearing under the Due Process Clause.

[36]On the basis of this alleged deprivation of rights, the Court interprets 42 U.S.C. § 1983 to impose strict liability on municipalities for constitutional violations. This strict liability approach inexplicably departs from this Court’s prior decisions under § 1983 and runs counter to the concerns of the 42d Congress when it enacted the statute. The Court’s ruling also ignores the vast weight of common-law precedent as well as the current state law of municipal immunity. For these reasons, and because this decision will hamper local governments unnecessarily, I dissent.

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[37]Having constructed a constitutional deprivation from the valid exercise of governmental authority, the Court holds that municipalities are strictly liable for their constitutional torts.

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[38]After today’s decision, municipalities will have gone in two short years from absolute immunity under § 1983 to strict liability. As a policy matter, I believe that strict municipal liability unreasonably subjects local governments to damages judgments for actions that were reasonable when performed. It converts municipal governance into a hazardous slalom through constitutional obstacles that often are unknown and unknowable.

[39]The Court’s decision also impinges seriously on the prerogatives of municipal entities created and regulated primarily by the States. At the very least, this Court should not initiate a federal intrusion of this magnitude in the absence of explicit congressional action. Yet today’s decision is supported by nothing in the text of § 1983. Indeed, it conflicts with the apparent intent of the drafters of the statute, with the common law of municipal tort liability, and with the current state law of municipal immunities.

* * * * *

[40]Important public policies support the extension of qualified immunity to local governments. First, as recognized by the doctrine of separation of powers, some governmental decisions should be at least presumptively insulated from judicial review. Mr. Chief Justice Marshall wrote in Marbury v. Madison, 1 Cranch 137, 170 (1803), that “[the] province of the court is … not to inquire how the executive, or executive officers, perform duties in which they have a discretion.” Marshall stressed the caution with which courts must approach “[questions], in their nature political, or which are, by the constitution and laws, submitted to the executive.” The allocation of public resources and the operational policies of the government itself are activities that lie peculiarly within the competence of executive and legislative bodies. When charting those policies, a local official should not have to gauge his employer’s possible liability under § 1983 if he incorrectly—though reasonably and in good faith—forecasts the course of constitutional law. Excessive judicial intrusion into such decisions can only distort municipal decisionmaking and discredit the courts. Qualified immunity would provide presumptive protection for discretionary acts, while still leaving the municipality liable for bad faith or unreasonable constitutional deprivations.

[41]Because today’s decision will inject constant consideration of § 1983 liability into local decisionmaking, it may restrict the independence of local governments and their ability to respond to the needs of their communities. Only this Term, we noted that the “point” of immunity under § 1983 “is to forestall an atmosphere of intimidation that would conflict with [officials’] resolve to perform their designated functions in a principled fashion.” Ferri v. Ackerman, 444 U.S. 193, 203-204 (1979).

[42]The Court now argues that local officials might modify their actions unduly if they face personal liability under § 1983, but that they are unlikely to do so when the locality itself will be held liable. Ante, at 655-656. This contention denigrates the sense of responsibility of municipal officers, and misunderstands the political process. Responsible local officials will be concerned about potential judgments against their municipalities for alleged constitutional torts. Moreover, they will be accountable within the political system for subjecting the municipality to adverse judgments. If officials must look over their shoulders at strict municipal liability for unknowable constitutional deprivations, the resulting degree of governmental paralysis will be little different from that caused by fear of personal liability. Cf. Wood v. Strickland, 420 U.S. at 319-320; Scheuer v. Rhodes, 416 U.S. at 242.^[28]

[43]In addition, basic fairness requires a qualified immunity for municipalities. The good-faith defense recognized under § 1983 authorizes liability only when officials acted with malicious intent or when they “knew or should have known that their conduct violated the constitutional norm.” Procunier v. Navarette, 434 U.S. at 562. The standard incorporates the idea that liability should not attach unless there was notice that a constitutional right was at risk. This idea applies to governmental entities and individual officials alike. Constitutional law is what the courts say it is, and—as demonstrated by today’s decision and its precursor, Monell—even the most prescient lawyer would hesitate to give a firm opinion on matters not plainly settled. Municipalities, often acting in the utmost good faith, may not know or anticipate when their action or inaction will be deemed a constitutional violation.^[29]

[44]The Court nevertheless suggests that, as a matter of social justice, municipal corporations should be strictly liable even if they could not have known that a particular action would violate the Constitution. After all, the Court urges, local governments can “spread” the costs of any judgment across the local population. Ante, at 655. The Court neglects, however, the fact that many local governments lack the resources to withstand substantial unanticipated liability under § 1983. Even enthusiastic proponents of municipal liability have conceded that ruinous judgments under the statute could imperil local governments. E.g., Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 HARV L. REV. 922, 958 (1976).^[30]By simplistically applying the theorems of welfare economics and ignoring the reality of municipal finance, the Court imposes strict liability on the level of government least able to bear it.^[31] For some municipalities, the result could be a severe limitation on their ability to serve the public.

B

[45]The Court searches at length—and in vain—for legal authority to buttress its policy judgment. Despite its general statements to the contrary, the Court can find no support for its position in the debates on the civil rights legislation that included § 1983. Indeed, the legislative record suggests that the Members of the 42d Congress would have been dismayed by this ruling. Nor, despite its frequent citation of authorities that are only marginally relevant, can the Court rely on the traditional or current law of municipal tort liability. Both in the 19th century and now, courts and legislatures have recognized the importance of limiting the liability of local governments for official torts. Each of these conventional sources of law points to the need for qualified immunity for local governments.

1

[46]The modern dispute over municipal liability under § 1983 has focused on the defeat of the Sherman amendment during the deliberations on the Civil Rights Act of 1871.

* * * * *

[47]Because Senator Sherman initially proposed strict municipal liability for constitutional torts, the discussion of his amendment offers an invaluable insight into the attitudes of his colleagues on the question now before the Court. Much of the resistance to the measure flowed from doubts as to Congress’ power to impose vicarious liability on local governments. Monell v. New York City Dept. of Social Services, 436 U.S. at 673-683; id. at 706 (Powell, J., concurring). But opponents of the amendment made additional arguments that strongly support recognition of qualified municipal immunity under § 1983.

[48]First, several legislators expressed trepidation that the proposal’s strict liability approach could bankrupt local governments.

* * * * *

[49]Most significant, the opponents objected to liability imposed without any showing that a municipality knew of an impending constitutional deprivation.

* * * * *

[50]These objections to the Sherman amendment apply with equal force to strict municipal liability under § 1983. Just as the 42d Congress refused to hold municipalities vicariously liable for deprivations that could not be known beforehand, this Court should not hold those entities strictly liable for deprivations caused by actions that reasonably and in good faith were thought to be legal. The Court’s approach today, like the Sherman amendment, could spawn onerous judgments against local governments and distort the decisions of officers who fear municipal liability for their actions. Congress’ refusal to impose those burdens in 1871 surely undercuts any historical argument that federal judges should do so now.

* * * * *

[51]The Court’s decision also runs counter to the common law in the 19th century, which recognized substantial tort immunity for municipal actions. E. g., 2 J. DILLON, LAW OF MUNICIPAL CORPORATIONS §§ 753, 764, pp. 862-863, 875-876 (2d ed. 1873); W. WILLIAMS, LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT 9, 16 (1901). Nineteenth-century courts generally held that municipal corporations were not liable for acts undertaken in their “governmental,” as opposed to their “proprietary,” capacity. Most States now use other criteria for determining when a local government should be liable for damages. See infra, at 681-683. Still, the governmental/proprietary distinction retains significance because it was so widely accepted when § 1983 was enacted. It is inconceivable that a Congress thoroughly versed in current legal doctrines, see Monell v. New York City Dept. of Social Services, 436 U.S. at 669, would have intended through silence to create the strict liability regime now imagined by this Court.

[52]More directly relevant to this case is the common-law distinction between the “discretionary” and “ministerial” duties of local governments.

* * * * *

[53]This Court has recognized the importance of preserving the autonomy of executive bodies entrusted with discretionary powers. Scheuer v. Rhodes held that executive officials who have broad responsibilities must enjoy a “range of discretion [that is] comparably broad.” 416 U.S. at 247. Consequently, the immunity available under § 1983 varies directly with “the scope of discretion and responsibilities of the office.” 416 U.S. at 247. Strict municipal liability can only undermine that discretion.

* * * * *

[54]Today’s decision also conflicts with the current law in 44 States and the District of Columbia. All of those jurisdictions provide municipal immunity at least analogous to a “good faith” defense against liability for constitutional torts. Thus, for municipalities in almost 90% of our jurisdictions, the Court creates broader liability for constitutional deprivations than for state-law torts.

* * * * *

Owen v. City of Independence, Missouri – Audio and Transcript of Oral Argument

Footnotes

1. Under § 3.3(1) of the city’s charter, the City Manager has sole authority to “[appoint,] and when deemed necessary for the good of the service, lay off, suspend, demote, or remove all directors, or heads, of administrative departments and all other administrative officers and employees of the city.” ↵

    

2. Ironically, the official minutes of the City Council meeting indicate that concern was expressed by some members about possible adverse legal consequences that could flow from their release of the reports to the media. The City Counselor assured the Council that although an action might be maintained against any witnesses who made unfounded accusations, “the City does have governmental immunity in this area … and neither the Council nor the City as a municipal corporation can be held liable for libelous slander.” App. 20-23. ↵

    

3. The investigation and its culmination in petitioner’s firing received front-page attention in the local press. See, e. g., “Lid Off Probe, Council Seeks Action,” Independence Examiner, Apr. 18, 1972, Tr. 24-25; “Independence Accusation. Police Probe Demanded,” Kansas City Times, Apr. 18, 1972, Tr. 25; “Probe Culminates in Chief’s Dismissal,” Independence Examiner, Apr. 19, 1972, Tr. 26; “Police Probe Continues; Chief Ousted,” Community Observer, Apr. 20, 1972, Tr. 26. ↵

    

4. Petitioner did not join former Councilman Roberts in the instant litigation. A separate action seeking defamation damages was brought in state court against Roberts and Alberg in their individual capacities. Petitioner dismissed the state suit against Alberg and reached a financial settlement with Roberts. See 560 F.2d 925, 930 (CA8 1977). ↵

    

5. Although respondents did not cross petition on this issue, they have raised a belated challenge to the Court of Appeals’ ruling that petitioner was deprived of a protected “liberty” interest. See Brief for Respondents 45-46. We find no merit in their contention, however, and decline to disturb the determination of the court below.

   Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971), held that “[where] a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” In Board of Regents v. Roth, 408 U.S. 564, 573 (1972), we explained that the dismissal of a government employee accompanied by a “charge against him that might seriously damage his standing and associations in his community” would qualify as something “the government is doing to him,” so as to trigger the due process right to a hearing at which the employee could refute the charges and publicly clear his name. In the present case, the city—through the unanimous resolution of the City Council—released to the public an allegedly false statement impugning petitioner’s honesty and integrity. Petitioner was discharged the next day. The Council’s accusations received extensive coverage in the press, and even if they did not in point of fact “cause” petitioner’s discharge, the defamatory and stigmatizing charges certainly “[occurred] in the course of the termination of employment.” Cf. Paul v. Davis, 424 U.S. 693, 710 (1976). Yet the city twice refused petitioner’s request that he be given written specification of the charges against him and an opportunity to clear his name. Under the circumstances, we have no doubt that the Court of Appeals correctly concluded that the city’s actions deprived petitioner of liberty without due process of law. ↵

    

6. The Courts of Appeals are divided on the question whether local government units are entitled to a qualified immunity based on the good faith of their officials. Compare Bertot v. School Dist. No. 1, 613 F.2d 245 (CA10 1979) (en banc), Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d 569 (CA7 1975), and Hander v. San Jacinto Jr. College, 519 F.2d 273 (CA5), rehearing denied, 522 F.2d 204 (1975), all refusing to extend a qualified immunity to the governmental entity, with Paxman v. Campbell, 612 F.2d 848 (CA4 1980) (en banc), and Sala v. County of Suffolk, 604 F.2d 207 (CA2 1979), granting defendants a “good-faith” immunity. ↵

    

7. As we noted in Monell v. New York City Dept. of Social Services, see 436 U.S., at 685-686, n.45, even the opponents of § 1 acknowledged that its language conferred upon the federal courts the entire power that Congress possessed to remedy constitutional violations. The remarks of Senator Thurman are illustrative:

   “[This section’s] whole effect is to give to the Federal Judiciary that which now does not belong to it—a jurisdiction that may be constitutionally conferred upon it, I grant, but that has never yet been conferred upon it. It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrong-doer in the Federal courts, and that without any limit whatsoever as to the amount in controversy… .

   “That is the language of this bill. Whether it is the intent or not I know not, but it is the language of the bill; for there is no limitation whatsoever upon the terms that are employed, and they are as comprehensive as can be used.” Globe App. 216-217. ↵

    

8. The governmental immunity at issue in the present case differs significantly from the official immunities involved in our previous decisions. In those cases, various government officers had been sued in their individual capacities, and the immunity served to insulate them from personal liability for damages. Here, in contrast, only the liability of the municipality itself is at issue, not that of its officers, and in the absence of an immunity, any recovery would come from public funds. ↵

    

9. Primary among the constitutional suits heard in federal court were those based on a municipality’s violation of the Contract Clause, and the courts’ enforcement efforts often included “various forms of ‘positive’ relief, such as ordering that taxes be levied and collected to discharge federal-court judgments, once a constitutional infraction was found.” Monell v. New York City Dept. of Social Services, 436 U.S., at 681. Damages actions against municipalities for federal statutory violations were also entertained. See, e. g., Levy Court v. Coroner, 2 Wall. 501 (1865); Corporation of New York v. Ransom, 23 How. 487 (1860); Bliss v. Brooklyn, 3 F. Cas. 706 (No. 1,544) (CC EDNY 1871). In addition, state constitutions and statutes, as well as municipal charters, imposed many obligations upon the local governments, the violation of which typically gave rise to damages actions against the city. See generally Note, Streets, Change of Grade, Liability of Cities for, 30 Am. St. Rep. 835 (1893), and cases cited therein. With respect to authorized contracts—and even unauthorized contracts that are later ratified by the corporation—municipalities were liable in the same manner as individuals for their breaches. See generally 1 J. DILLON, LAW OF MUNICIPAL CORPORATIONS §§ 385, 394 (2d ed. 1873) (hereinafter Dillon). Of particular relevance to the instant case, included within the class of contract actions brought against a city were those for the wrongful discharge of a municipal employee, and where the claim was adjudged meritorious, damages in the nature of backpay were regularly awarded. See, e.g., Richardson v. School Dist. No. 10, 38 Vt. 602 (1866); Paul v. School Dist. No. 2, 28 Vt. 575 (1856); Inhabitants of Searsmont v. Farwell, 3 Me. *450 (1825); see generally F. BURKE, A TREATISE ON THE LAW OF PUBLIC SCHOOLS 81-85 (1880). The most frequently litigated “breach of contract” suits, however, at least in federal court, were those for failure to pay interest on municipal bonds. See, e.g., The Supervisors v. Durant, 9 Wall. 415 (1870); Commissioners of Knox County v. Aspinwall, 21 How. 539 (1859). ↵

    

10. Senator Stevenson proceeded to read from the decision in Prather v. Lexington, 52 Ky. 559, 560-562 (1852): “Where a particular act, operating injuriously to an individual, is authorized by a municipal corporation, by a delegation of power either general or special, it will be liable for the injury in its corporate capacity, where the acts done would warrant a like action against an individual. But as a general rule a corporation is not responsible for the unauthorized and unlawful acts of its officers, although done under the color of their office; to render it liable it must appear that it expressly authorized the acts to be done by them, or that they were done in pursuance of a general authority to act for the corporation, on the subject to which they relate. (Thayer v. Boston, 19 Pick., 511.) It has also been held that cities are responsible to the same extent, and in the same manner, as natural persons for injuries occasioned by the negligence or unskillfulness of their agents in the construction of works for their benefit.” Globe 762. ↵

     

11. At one point in the debates, Senator Stevenson did protest that the Sherman amendment would, for the first time, “create a corporate liability for personal injury which no prudence or foresight could have prevented.” Ibid. As his later remarks made clear, however, Stevenson’s objection went only to the novelty of the amendment’s creation of vicarious municipal liability for the unlawful acts of private individuals, “even if a municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything about it.” Monell v. New York City Dept. of Social Services, 436 U.S. at 692-693, n. 57. ↵

     

12. See, e.g., Globe 365 (remarks of Rep. Arthur) (“But if the Legislature enacts a law, if the Governor enforces it, if the judge upon the bench renders a judgment, if the sheriff levy an execution, execute a writ, serve a summons, or make an arrest, all acting under a solemn, official oath, though as pure in duty as a saint and as immaculate as a seraph, for a mere error in judgment, they are liable …”); id., at 385 (remarks of Rep. Lewis); Globe App. 217 (remarks of Sen. Thurman). ↵

     

13. In actuality, the distinction between a municipality’s governmental and proprietary functions is better characterized not as a line, but as a succession of points. In efforts to avoid the often-harsh results occasioned by a literal application of the test, courts frequently created highly artificial and elusive distinctions of their own. The result was that the very same activity might be considered “governmental” in one jurisdiction, and “proprietary” in another. See 18 McQuillin § 53.02, at 105. See also W . PROSSER, LAW OF TORTS § 131, p. 979 (4th ed. 1971) (hereinafter Prosser). As this Court stated, in reference to the “‘nongovernmental’–’governmental’ quagmire that has long plagued the law of municipal corporations”:

    “A comparative study of the cases in the forty-eight States will disclose an irreconcilable conflict. More than that, the decisions in each of the States are disharmonious and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound.” Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955) (on rehearing). ↵

     

14. Although it has never been understood how the doctrine of sovereign immunity came to be adopted in the American democracy, it apparently stems from the personal immunity of the English Monarch as expressed in the maxim, “The King can do no wrong.” It has been suggested, however, that the meaning traditionally ascribed to this phrase is an ironic perversion of its original intent: “The maxim merely meant that the King was not privileged to do wrong. If his acts were against the law, they were injuriae (wrongs). Bracton, while ambiguous in his several statements as to the relation between the King and the law, did not intend to convey the idea that he was incapable of committing a legal wrong.” Borchard, Government Liability in Tort, 34 YALE L.J. 1, 2, n. 2 (1924). See also Kates & Kouba, Liability of Public Entities Under Section 1983 of the Civil Rights Act, 45 S. CAL. L. REV. 131, 142 (1972). In this country, “[the] sovereign or governmental immunity doctrine, holding that the state, its subdivisions and municipal entities, may not be held liable for tortious acts, was never completely accepted by the courts, its underlying principle being deemed contrary to the basic concept of the law of torts that liability follows negligence, as well as foreign to the spirit of the constitutional guarantee that every person is entitled to a legal remedy for injuries he may receive in his person or property. As a result, the trend of judicial decisions was always to restrict, rather than to expand, the doctrine of municipal immunity.” 18 McQuillin § 53.02, at 104 (footnotes omitted). See also PROSSER § 131, at 984 (“For well over a century the immunity of both the state and the local governments for their torts has been subjected to vigorous criticism, which at length has begun to have its effect”). The seminal opinion of the Florida Supreme Court in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (1957), has spawned “a minor avalanche of decisions repudiating municipal immunity,” PROSSER § 131, at 985, which, in conjunction with legislative abrogation of sovereign immunity, has resulted in the consequence that only a handful of States still cling to the old common-law rule of immunity for governmental functions. See K. Davis, Administrative Law of the Seventies § 25.00 (1976 and Supp. 1977) (only two States adhere to the traditional common-law immunity from torts in the exercise of governmental functions); Harley & Wasinger, Government Immunity: Despotic Mantle or Creature of Necessity, 16 WASHBURN L.J. 12, 34-53 (1976). ↵

     

15. The common-law immunity for governmental functions is thus more comparable to an absolute immunity from liability for conduct of a certain character, which defeats a suit at the outset, than to a qualified immunity, which “depends upon the circumstances and motivations of [the official’s] actions, as established by the evidence at trial.” Imbler v. Pachtman, 424 U.S. 409, 419, n. 13 (1976). ↵

     

16. Municipal defenses—including an assertion of sovereign immunity—to a federal right of action are, of course, controlled by federal law. See Fitzpatrick v. Bitzer, 427 U.S. 445, 455-456 (1976); Hampton v. Chicago, 484 F.2d 602, 607 (CA7 1973) (Stevens, J.) (“Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985 (3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced”). ↵

     

17. See generally 18 McQuillin § 53.04a; Shearman & Redfield §§ 127-130; Williams § 6, at 15-16. Like the governmental/proprietary distinction, a clear line between the municipality’s “discretionary” and “ministerial” functions was often hard to discern, a difficulty which has been mirrored in the federal courts’ attempts to draw a similar distinction under the Federal Tort Claims Act, 28 U. S. C. § 2680(a). See generally 3 K. Davis, Administrative Law Treatise § 25.08 (1958 and Supp. 1970). ↵

     

18. Cf. P. BATOR, P. MISHKIN, D. SHAPIRO, & H. WECHSLER, HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 336 (2d ed. 1973) (“[Where] constitutional rights are at stake the courts are properly astute, in construing statutes, to avoid the conclusion that Congress intended to use the privilege of immunity … in order to defeat them”). ↵

     

19. The absence of any damages remedy for violations of all but the most “clearly established” constitutional rights, see Woods v. Strickland, 420 U.S., at 322, could also have the deleterious effect of freezing constitutional law in its current state of development, for without a meaningful remedy aggrieved individuals will have little incentive to seek vindication of those constitutional deprivations that have not previously been clearly defined. ↵

     

20. For example, given the discussion that preceded the Independence City Council’s adoption of the allegedly slanderous resolution impugning petitioner’s integrity, see n. 6, supra, one must wonder whether this entire litigation would have been necessary had the Council members thought that the city might be liable for their misconduct. ↵

     

21. Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-418 (1975): “If employers faced only the prospect of an injunctive order, they would have little incentive to shun practices of dubious legality. It is the reasonably certain prospect of a backpay award that ‘[provides] the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country’s history.’ United States v. N. L. Industries, Inc., 479 F.2d 354, 379 (CA8 1973).” ↵

     

22. In addition, the threat of liability against the city ought to increase the attentiveness with which officials at the higher levels of government supervise the conduct of their subordinates. The need to institute systemwide measures in order to increase the vigilance with which otherwise indifferent municipal officials protect citizens’ constitutional rights is, of course, particularly acute where the frontline officers are judgment-proof in their individual capacities. ↵

     

23. On at least two previous occasions, this Court has expressly recognized that different considerations come into play when governmental rather than personal liability is threatened. Hutto v. Finney, 437 U.S. 678 (1978), affirmed an award of attorney’s fees out of state funds for a deprivation of constitutional rights, holding that such an assessment would not contravene the Eleventh Amendment. In response to the suggestion, adopted by the dissent, that any award should be borne by the government officials personally, the Court noted that such an allocation would not only be “manifestly unfair,” but would “[defy] this Court’s insistence in a related context that imposing personal liability in the absence of bad faith may cause state officers to ‘exercise their discretion with undue timidity.’ Wood v. Strickland, 420 U.S. 308, 321.” Id., at 699, n.32. The Court thus acknowledged that imposing personal liability on public officials could have an undue chilling effect on the exercise of their decision-making responsibilities, but that no such pernicious consequences were likely to flow from the possibility of a recovery from public funds. Our decision in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979), also recognized that the justifications for immunizing officials from personal liability have little force when suit is brought against the governmental entity itself. Petitioners in that case had sought damages under § 1983 from a regional planning agency and the individual members of its governing agency. Relying on Tenney v. Brandhove, 341 U.S. 367 (1951), the Court concluded that “to the extent the evidence discloses that these individuals were acting in a capacity comparable to that of members of a state legislature, they are entitled to absolute immunity from federal damages liability.” 440 U.S., at 406. At the same time, however, we cautioned: “If the respondents have enacted unconstitutional legislation, there is no reason why relief against TRPA itself should not adequately vindicate petitioners’ interests. See Monell v. New York City Dept. of Social Services, 436 U.S. 658.” Id. at 405, n.29. ↵

     

24. Wood v. Strickland, 420 U.S. 308 (1975), mentioned a third justification for extending a qualified immunity to public officials: the fear that the threat of personal liability might deter citizens from holding public office. See id., at 320 (“The most capable candidates for school board positions might be deterred from seeking office if heavy burdens upon their private resources from monetary liability were a likely prospect during their tenure”). Such fears are totally unwarranted, of course, once the threat of personal liability is eliminated. ↵

     

25. Monell v. New York City Dept. of Social Services indicated that the principle of loss-spreading was an insufficient justification for holding the municipality liable under § 1983 on a respondeat superior theory. 436 U.S. at 693-694. Here, of course, quite a different situation is presented. Petitioner does not seek to hold the city responsible for the unconstitutional actions of an individual official “solely because it employs a tortfeasor.” Id. at 691. Rather, liability is predicated on a determination that “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Id. at 690. In this circumstance—when it is the local government itself that is responsible for the constitutional deprivation—it is perfectly reasonable to distribute the loss to the public as a cost of the administration of government, rather than to let the entire burden fall on the injured individual. ↵

     

26. “The imposition of monetary costs for mistakes which were not unreasonable in the light of all the circumstances would undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school and the students.” Wood v. Strickland, supra, at 319-320. ↵

     

27. Note, Developments in the Law: Section 1983 and Federalism, 90 HARV. L. REV. 1133, 1224 (1977). See also Johnson v. State, 69 Cal.2d 782, 792-793, 447 P.2d 352, 359-360 (1968): “Nor do we deem an employee’s concern over the potential liability of his employer, the governmental unit, a justification for an expansive definition of ‘discretionary,’ and hence immune, acts. As a threshold matter, we consider it unlikely that the possibility of government liability will be a serious deterrent to the fearless exercise of judgment by the employee. In any event, however, to the extent that such a deterrent effect takes hold, it may be wholesome. Anemployee in a private enterprise naturally gives some consideration to the potential liability of his employer, and this attention unquestionably promotes careful work; the potential liability of a governmental entity, to the extent that it affects primary conduct at all, will similarly influence public employees.” (Citation and footnote omitted.) ↵

     

28. The Court’s argument is not only unpersuasive, but also is internally inconsistent. The Court contends that strict liability is necessary to “create an incentive for officials … to err on the side of protecting citizens’ constitutional rights.” Ante, at 651-652. Yet the Court later assures us that such liability will not distort municipal decision making because “[the] inhibiting effect is significantly reduced, if not eliminated, … when the threat of personal liability is removed.” Ante, at 656. Thus, the Court apparently believes that strict municipal liability is needed to modify public policies, but will not have any impact on those policies anyway. ↵

     

29. The Court implies that unless municipalities are strictly liable under § 1983, constitutional law could be frozen “in its current state of development.” Ante, at 651, n.33. I find this a curious notion. This could be the first time that the period between 1961, when Monroe declared local governments absolutely immune from § 1983 suits, and 1978, when Monell overruled Monroe, has been described as one of static constitutional standards. ↵

     

30. For example, in a recent case in Alaska, a jury awarded almost $500,000 to a policeman who was accused of “racism and brutality” and removed from duty without notice and an opportunity to be heard. Wayson v. City of Fairbanks, 22 ATLA L. Rep. 222 (Alaska Fourth Dist. Super. Ct. 1979). ↵

     

31. Ironically, the State and Federal Governments cannot be held liable for constitutional deprivations. The Federal Government has not waived its sovereign immunity against such claims, and the States are protected by the Eleventh Amendment. ↵

Notes on Owen v. City of Independence, Missouri

1. The Owen Court noted that the enacting legislature will be deemed to have incorporated a common law immunity as a defense to a Section 1983 action only if the immunity was well established when Section 1983 was enacted and “where its rationale was compatible with the purposes of the Civil Rights Act.” Owen at 638. Is the rationale for absolute immunity for government officials compatible with the purposes of Section 1983? Qualified individual immunity?
2. On what basis does the Court hold that Congress did not intend to afford municipalities a qualified immunity defense to Section 1983 actions?
   1. What general rules of statutory construction for Section 1983 does the Owen Court utilize?
   2. What role does the common law of municipal liability play in the Court’s analysis?
   3. What relevance does the majority attach to Congress’ rejection of the Sherman Amendment?

   Can the Court’s analysis in Owen be reconciled with its analysis of vicarious liability in Monell? Under the analysis employed in Owen, should municipalities be held vicariously liable for all constitutional violations caused by municipal employees acting within the scope of their employment?

3. Why does the Court reject incorporation of the municipalities’ common law “governmental function” immunity into Section 1983?
4. After Owen, may a local governmental entity assert immunity to a Section 1983 action brought in state, as opposed to federal, court if the governing state law confers immunity upon that entity? In Howlett v. Rose, 496 U.S. 356 (1990), a student joined a Section 1983 claim with other state law claims filed in a Florida court against a school board arising out of the search of the student’s car. The Florida Court of Appeals affirmed dismissal of the Section 1983 count. The Florida statutory waiver of sovereign immunity rendered the school board amenable to suit for state law claims; the waiver, however, did not extend to Section 1983 actions.In a unanimous opinion, the United States Supreme Court reversed:
   

   If the District Court of Appeal meant to hold that governmental entities subject to § 1983 liability enjoy an immunity over and above those already provided in § 1983, that holding directly violates federal law. The elements of, and the defenses to, a federal cause of action are defined by federal law.

   * * * * *

   Federal law makes governmental defendants that are not arms of the State, such as municipalities, liable for their constitutional violations…. To the extent that the Florida law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities should be held liable for their constitutional violations, that disagreement cannot override the dictates of federal law. “Congress surely did not intend to assign to state courts and legislatures a conclusive role in the formative function of defining and characterizing the essential elements of a federal cause of action.” Wilson v. Garcia, 471 U.S. 261, 269, 85 L. Ed.2d 254, 105 S. Ct. 1938 (1985).

   If, on the other hand, the District Court of Appeal meant that § 1983 claims are excluded from the category of tort claims that the Circuit Court could hear against a school board, its holding was no less violative of federal law. Cf. Atlantic Coast Line R. Co. v. Burnette, 239 U.S. 199, 201, 60 L.Ed. 226, 36 S. Ct. 75 (1915). This case does not present the questions whether Congress can require the States to create a forum with the capacity to enforce federal statutory rights or to authorize service of process on parties who would not otherwise be subject to the court’s jurisdiction. The State of Florida has constituted the Circuit Court for Pinellas County as a court of general jurisdiction. It exercises jurisdiction over tort claims by private citizens against state entities (including school boards), of the size and type of petitioner’s claim here, and it can enter judgment against them. That court also exercises jurisdiction over § 1983 actions against individual officers and is fully competent to provide the remedies the federal statute requires. Cf. Sullivan v. Little Hunting Park, Inc. 396 U.S. 229, 238, 24 L. Ed.2d 386, 90 S. Ct. 400 (1969). Petitioner has complied with all the state law procedures for invoking the jurisdiction of that court.

   The mere facts, as argued by respondent’s amici, that state common law and statutory law do not make unlawful the precise conduct that § 1983 addresses and that § 1983 actions “are more likely to be frivolous than are other suits,” Brief for Washington Legal Foundation et. al. as Amici Curiae 17, clearly cannot provide sufficient justification for the State’s refusal to entertain such actions. These reasons … are not the kind of neutral policy that could be a “valid excuse” for the state court’s refusal to entertain federal actions. To the extent that the Florida rule is based upon the judgment that parties who are otherwise subject to the jurisdiction of the court should not be held liable for activity that would not subject them to liability under state law, we understand that to be only another way of saying that the court disagrees with the content of federal law.

   * * * * *

   The argument by amici that suits predicated on federal law are more likely to be frivolous and have less of an entitlement to the State’s limited judicial resources warrants little response. A State may adopt neutral procedural rules to discourage frivolous litigation of all kinds, as long as those rules are not pre-empted by a valid federal law. A State may not, however, relieve congestion in its courts by declaring a whole category of federal claims to be frivolous. Until it has been proven that the claim has no merit, that judgment is not up to the States to make.

   * * * * *

   Respondent offers two final arguments in support of the judgment of the District Court of Appeal. First…it argued that a federal court has no power to compel a state court to entertain a claim over which the state court has no jurisdiction as a matter of state law. Second, respondent argues that sovereign immunity is not a creature of state law, but of long-established legal principles which have not been set aside by § 1983. We find no merit in these contentions.

   The fact that a rule is denominated jurisdictional does not provide a court an excuse to avoid the obligation to enforce federal law if the rule does not reflect the concerns of power over the person and competence over the subject matter that jurisdictional rules are designed to protect…. A State cannot “escape this constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent.” Hughes, 341 U.S. at 611, 95 L.Ed. 1212, 71 S. Ct. 980. Similarly, a State may not evade the strictures of the Privileges and Immunities Clause by denying jurisdiction to a court otherwise competent…. [T]he same is true with respect to a state court’s obligations under the Supremacy Clause. The force of the Supremacy Clause is not so weak that it can be evaded by mere mention of the word “jurisdiction.”

   * * * * *

   Respondent’s argument that Congress did not intend to abrogate an immunity with an ancient common law heritage is the same argument, in slightly different dress, as the argument that we have already rejected that the States are free to redefine the federal cause of action. Congress did take common law principles into account in providing certain forms of absolute and qualified immunity…. But as to persons that Congress subjected to liability, individual states may not exempt such persons from federal liability by relying on their own common law heritage. If we were to uphold the immunity claim in this case, every State would have the same opportunity to extend the mantle of sovereign immunity to “persons” who would otherwise be subject to § 1983 liability. States would then be free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People.

5. While Owen rejected blanket local governmental immunity, may a municipality assert immunity in a Section 1983 action arising out of its legislative activities? In Carver v. Foerster, 102 F.3d 96 (3rd Cir. 1996), the United States Court of Appeals for the Third Circuit joined its sister circuits in refusing to carve an exception to the Owen Court’s repudiation of immunity:
   

   Local governments, unlike individual legislators, should be held liable for the losses they cause. Moreover, a doctrine of legislative immunity for local governments might have the undesirable effect of encouraging a county council to adopt all of its policies through a series of legislative actions passed by a newly created “Board” or “Council.”

   * * * * *

   [B]ecause a legislator’s own money is not at risk, county liability does not distract the legislator from his job of serving the community’s interests. True, the legislator must contend with lawsuits brought against the county, but that distraction is borne equally by the local populace as a whole (at least in tax dollars) and not by any particular individual. If a county council forgoes enactment of legislation because it fears potential liability for the county under § 1983, its decision reflects a rational calculation that, whatever a given policy’s benefits, its risk of liability outweighs its collective benefit to the community. This is exactly the type of reckoning we want to encourage our legislators to make.

   Defendants argue, however, that legislative immunity for the county is necessary to protect legislators from judicial inquiry into their motives in enacting legislation. This argument lacks weight given the intent-based inquiry of certain doctrines of Constitutional law. “Developments in federal law over the last 30 years have tied the constitutionality of many types of municipal legislation directly to the purpose and motive of the legislation.” Goldberg v. Town of Rocky Hill, 973 F.2d 70, 75 (2d Cir. 1992) (citing cases). For better or worse, lawsuits concerning constitutional matters such as equal protection, the First Amendment, and substantive due process all require judicial inquiry of the legislator’s motive. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S. Ct. 555, 50 L. Ed.2d 450 (1977) (proof of discriminatory motive necessary to show violation of Equal Protection Clause); Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir. 1988), cert. denied, 488 U.S. 851, 109 S. Ct. 134, 102 L. Ed.2d 107 (1988) (deliberate and arbitrary government decision, including one “tainted by improper motive,” violated developer’s substantive due process rights) and Grant v. City of Pittsburgh, 98 F.3d 116, 125 (3d Cir. 1996) (evidence of officer’s intent admissible when intent is integral element of underlying constitutional violation). These cases illustrate that judicial inquiry of legislative motive is not per se forbidden. We therefore will not undercut core doctrines of Constitutional law by applying legislative immunity to municipalities under § 1983.

   102 F.3d at 103-04.

6. Owen includes an extensive exposition of Congress’ purposes in enacting Section 1983, as well as the system of risk allocation necessary to fulfill these purposes. As you examine the Court’s municipal liability decisions, consider whether the current state of the law accomplishes this allocation.
7. Monell held that under Section 1983, a local government entity may be liable only 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” or where the constitutional deprivation is “visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell, 436 U.S. at 690-91. The facts of Monell readily satisfied these requirements because defendants conceded that an express policy commanded the premature medical leaves that were found to be unconstitutional. The Monell Court therefore had “no occasion to address … what the full contours of municipal liability under Section 1983 may be.” Monell, 436 U.S. at 695. Owen similarly presented no dispute over whether the constitutional violation was caused by municipal policy. The City Council formally adopted the resolution that authorized dismissal of Chief of Police Owen. City Manager Alberg discharged Owen the day after the City Council’s action. In addition, the city charter conferred sole authority upon the City Manager to fire the Chief of Police. Difficult questions of local governmental liability are posed where, unlike Monell and Owen, there is no express policy at issue. May actions of the municipality, that are not formally promulgated nonetheless constitute policy? Under what circumstances may constitutional deprivations be said to result from governmental custom? Additional complications arise where the conduct found to contravene constitutional norms is not mandated by the policy or custom. Must the plaintiff prove that the policy authorized the precise actions in issue? Is the municipality liable if the policy increased the likelihood that the violation would occur? Can the municipality be found to have caused the deprivation where it failed to proscribe or prevent the conduct?
   1. The Supreme Court offered no further guidance as to the “contours of municipal liability” until almost seven years after Monell when, in City of Oklahoma v. Tuttle, 471 U.S. 808, 810 (1985) it purported to “take a small but necessary step toward defining those contours. ”In Tuttle, a jury returned a $1,500,000 judgment against the city for the fatal shooting of plaintiff’s husband by an Oklahoma City police officer. The trial court had instructed the jury that it could find the city liable for a deficient policy of training and supervising police officers, and that this policy could be established by proof of a single, unusually excessive use of force. A majority of the Court agreed that the jury instruction was erroneous insofar as it permitted an inference of policy solely from the actions of a low-level police officer on a single occasion. However, no majority view emerged as to when a single instance of misconduct could constitute policy or whether a local governmental entity could be held liable for failure to train.
      1. Justice Rehnquist, writing for the plurality, offered the following analysis of when municipal liability could be premised upon a single instance of misconduct:
         

         Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. Otherwise the existence of the unconstitutional policy, and its origin, must be separately proved. But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the “policy” and the constitutional deprivation. 471 U.S. at 823-24.

         Justice Rehnquist expressly declined to assess a) whether inadequate training ever could constitute policy, or b) assuming failure to train could satisfy Monell’s policy requirement, whether plaintiff would have to prove a conscious decision, beyond gross negligence, to prevail. 471 U.S. at 824, n.7.

      2. Justice Brennan’s concurring opinion rejected the plurality’s “metaphysical distinction between policies that are of themselves unconstitutional and those that cause unconstitutional violations.” 471 U.S. at 833, n.8. Rather, to impose liability upon a municipality, Justice Brennan opined, plaintiff must prove two elements. First, plaintiff must prove action taken by the city, as opposed to unilateral conduct of a nonpolicymaking employee. Second, plaintiff must prove that the city’s policy or custom caused the deprivation of her constitutional rights. 471 U.S. at 829-30.
   2. Having failed to generate a majority opinion in Tuttle, the Court in Pembaur v. City of Cincinnati took another stab at defining when a “policy” may be deemed to exist in the absence of an express proclamation.