Will v. Michigan Department of State Police


Justice White delivered the opinion of the Court.

[1]This case presents the question whether a State, or an official of the State while acting in his or her official capacity, is a “person” within the meaning of Rev. Stat. § 1979, 42 U.S.C. § 1983.

[2]Petitioner Ray Will filed suit in Michigan Circuit Court alleging various violations of the United States and Michigan Constitutions as grounds for a claim under § 1983. He alleged that he had been denied a promotion to a data systems analyst position with the Department of State Police for an improper reason, that is, because his brother had been a student activist and the subject of a “red squad” file maintained by respondent. Named as defendants were the Department of State Police and the Director of State Police in his official capacity, also a respondent here.

[3]The Circuit Court remanded the case to the Michigan Civil Service Commission for a grievance hearing. While the grievance was pending, petitioner filed suit in the Michigan Court of Claims raising an essentially identical § 1983 claim. The Civil Service Commission ultimately found in petitioner’s favor, ruling that respondents had refused to promote petitioner because of “partisan considerations.” App. 46. On the basis of that finding, the state-court judge, acting in both the Circuit Court and the Court of Claims cases, concluded that petitioner had established a violation of the United States Constitution. The judge held that the Circuit Court action was barred under state law but that the Claims Court action could go forward. The judge also ruled that respondents were persons for purposes of § 1983.

[4]The Michigan Court of Appeals vacated the judgment against the Department of State Police, holding that a State is not a person under § 1983, but remanded the case for determination of the possible immunity of the Director of State Police from liability for damages. The Michigan Supreme Court granted discretionary review and affirmed the Court of Appeals in part and reversed in part. Smith v. Department of Pub. Health, 428 Mich. 540, 410 N.W.2d 749 (1987). The Supreme Court agreed that the State itself is not a person under § 1983, but held that a state official acting in his or her official capacity also is not such a person.

[5]The Michigan Supreme Court’s holding that a State is not a person under § 1983 conflicts with a number of state- and federal-court decisions to the contrary. We granted certiorari to resolve the conflict. 485 U.S. 1005 (1988).

[6]Prior to Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), the question whether a State is a person within the meaning of § 1983 had been answered by this Court in the negative. In Monroe v. Pape, 365 U.S. 167, 187-191 (1961), the Court had held that a municipality was not a person under § 1983. “[T]hat being the case,” we reasoned, § 1983 “could not have been intended to include States as parties defendant.” Fitzpatrick v. Bitzer, 427 U.S. 445, 452 (1976).

[7]But in Monell, the Court overruled Monroe, holding that a municipality was a person under § 1983. 436 U.S. at 690. Since then, various members of the Court have debated whether a State is a person within the meaning of § 1983, see Hutto v. Finney, 437 U.S. 678, 700-704 (1978) (Brennan, J., concurring); id., at 708, n.6 (Powell, J., concurring in part and dissenting in part), but this Court has never expressly dealt with that issue.

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[8]Petitioner filed the present § 1983 actions in Michigan state court, which places the question whether a State is a person under § 1983 squarely before us since the Eleventh Amendment does not apply in state courts. Maine v. Thiboutot, 448 U.S. 1, 9, n.7 (1980). For the reasons that follow, we reaffirm today what we had concluded prior to Monell and what some have considered implicit in Quern: that a State is not a person within the meaning of § 1983.

[9]We observe initially that if a State is a “person” within the meaning of § 1983, the section is to be read as saying that “every person, including a State, who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects ” That would be a decidedly awkward way of expressing an intent to subject the States to liability. At the very least, reading the statute in this way is not so clearly indicated that it provides reason to depart from the often-expressed understanding that “‘in common usage, the term ‘person’ does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.'” [citations omitted].

[10]This approach is particularly applicable where it is claimed that Congress has subjected the States to liability to which they had not been subject before. This common usage of the term “person” provides a strong indication that “person” as used in § 1983 likewise does not include a State.

[11]The language of § 1983 also falls far short of satisfying the ordinary rule of statutory construction that if Congress intends to alter the “usual constitutional balance between the States and the Federal Government,” it must make its intention to do so “unmistakably clear in the language of the statute.” Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99 (1984). Atascadero was an Eleventh Amendment case, but a similar approach is applied in other contexts. Congress should make its intention “clear and manifest” if it intends to pre-empt the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947), or if it intends to impose a condition on the grant of federal moneys, Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 16 (1981); South Dakota v. Dole, 483 U.S. 203, 207 (1987). “In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” United States v. Bass, 404 U.S. 336, 349 (1971).

[12]Our conclusion that a State is not a “person” within the meaning of § 1983 is reinforced by Congress’ purpose in enacting the statute. Congress enacted § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, shortly after the end of the Civil War “in response to the widespread deprivations of civil rights in the Southern States and the inability or unwillingness of authorities in those States to protect those rights or punish wrongdoers.” Felder v. Casey, 487 U.S. 131, 147 (1988). Although Congress did not establish federal courts as the exclusive forum to remedy these deprivations, ibid., it is plain that “Congress assigned to the federal courts a paramount role” in this endeavor, Patsy v. Board of Regents of Florida, 457 U.S. 496, 503 (1982).

[13]Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State has waived its immunity, Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 472-473 (1987) (plurality opinion), or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. That Congress, in passing § 1983, had no intention to disturb the States’ Eleventh Amendment immunity and so to alter the federal-state balance in that respect was made clear in our decision in Quern. Given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims, and that Congress did not provide such a federal forum for civil rights claims against States, we cannot accept petitioner’s argument that Congress intended nevertheless to create a cause of action against States to be brought in state courts, which are precisely the courts Congress sought to allow civil rights claimants to avoid through § 1983.

[14]This does not mean, as petitioner suggests, that we think that the scope of the Eleventh Amendment and the scope of § 1983 are not separate issues. Certainly they are. But in deciphering congressional intent as to the scope of § 1983, the scope of the Eleventh Amendment is a consideration, and we decline to adopt a reading of § 1983 that disregards it.[1]

[15]Our conclusion is further supported by our holdings that in enacting § 1983, Congress did not intend to override well-established immunities or defenses under the common law. “One important assumption underlying the Court’s decisions in this area is that members of the 42d Congress were familiar with common-law principles, including defenses previously recognized in ordinary tort litigation, and that they likely intended these common-law principles to obtain, absent specific provisions to the contrary.” Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981). Stump v. Sparkman, 435 U.S. 349, 356 (1978); Scheuer v. Rhodes, 416 U.S. 232, 247 (1974); Pierson v. Ray, 386 U.S. 547, 554 (1967); and Tenney v. Brandhove, 341 U.S. 367, 376 (1951), are also to this effect. The doctrine of sovereign immunity was a familiar doctrine at common law…. We cannot conclude that § 1983 was intended to disregard the well-established immunity of a State from being sued without its consent.[2]

[16]The legislative history of § 1983 does not suggest a different conclusion. Petitioner contends that the congressional debates on § 1 of the 1871 Act indicate that § 1983 was intended to extend to the full reach of the Fourteenth Amendment and thereby to provide a remedy “‘against all forms of official violation of federally protected rights.'” Brief for Petitioner 16 (quoting Monell, 436 U.S. at 700-701). He refers us to various parts of the vigorous debates accompanying the passage of § 1983 and revealing that it was the failure of the States to take appropriate action that was undoubtedly the motivating force behind § 1983. The inference must be drawn, it is urged, that Congress must have intended to subject the States themselves to liability. But the intent of Congress to provide a remedy for unconstitutional state action does not without more include the sovereign States among those persons against whom § 1983 actions would lie. Construing § 1983 as a remedy for “official violation of federally protected rights” does no more than confirm that the section is directed against state action—action “under color of” state law. It does not suggest that the State itself was a person that Congress intended to be subject to liability.

[17]Although there were sharp and heated debates, the discussion of § 1 of the bill, which contained the present § 1983, was not extended. And although in other respects the impact on state sovereignty was much talked about, no one suggested that § 1 would subject the States themselves to a damages suit under federal law. Quern, 440 U.S. at 343. There was complaint that § 1 would subject state officers to damages liability, but no suggestion that it would also expose the States themselves. Cong. Globe, 42d Cong., 1st Sess., 366, 385 (1871). We find nothing substantial in the legislative history that leads us to believe that Congress intended that the word “person” in § 1983 included the States of the Union. And surely nothing in the debates rises to the clearly expressed legislative intent necessary to permit that construction.

[18]Likewise, the Act of Feb. 25, 1871, § 2, 16 Stat. 431 (the “Dictionary Act”), on which we relied in Monell, supra, at 688-689, does not counsel a contrary conclusion here. As we noted in Quern, that Act, while adopted prior to § 1 of the Civil Rights Act of 1871, was adopted after § 2 of the Civil Rights Act of 1866, from which § 1 of the 1871 Act was derived. 440 U.S. at 341, n.11. Moreover, we disagree with Justice Brennan that at the time the Dictionary Act was passed “the phrase ‘bodies politic and corporate’ was understood to include the States.” Post, at 78. Rather, an examination of authorities of the era suggests that the phrase was used to mean corporations, both private and public (municipal), and not to include the States.[3] In our view, the Dictionary Act, like § 1983 itself and its legislative history, fails to evidence a clear congressional intent that States be held liable.

[19]Finally, Monell itself is not to the contrary. True, prior to Monell the Court had reasoned that if municipalities were not persons then surely States also were not. Fitzpatrick v. Bitzer, 427 U.S. at 452. And Monell overruled Monroe, undercutting that logic. But it does not follow that if municipalities are persons then so are States. States are protected by the Eleventh Amendment while municipalities are not, Monell, 436 U.S. at 690, n.54, and we consequently limited our holding in Monell “to local government units which are not considered part of the State for Eleventh Amendment purposes,” ibid. Conversely, our holding here does not cast any doubt on Monell, and applies only to States or governmental entities that are considered “arms of the State” for Eleventh Amendment purposes. See, e.g., Mt. Healthy Bd. of Ed. v. Doyle, 429 U.S. 274, 280 (1977).

[20]Petitioner asserts, alternatively, that state officials should be considered “persons” under § 1983 even though acting in their official capacities. In this case, petitioner named as defendant not only the Michigan Department of State Police but also the Director of State Police in his official capacity.

[21]Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. Brandon v. Holt, 469 U.S. 464, 471 (1985). As such, it is no different from a suit against the State itself. See, e. g., Kentucky v. Graham, 473 U.S. 159, 165-166 (1985); Monell, supra, at 690, n.55. We see no reason to adopt a different rule in the present context, particularly when such a rule would allow petitioner to circumvent congressional intent by a mere pleading device.[4]

[22]We hold that neither a State nor its officials acting in their official capacities are “persons” under § 1983. The judgment of the Michigan Supreme Court is affirmed.

It is so ordered.

Justice Brennan, with whom Justice Marshall, Justice Blackmun, and Justice Stevens join, dissenting.

[23]Because this case was brought in state court, the Court concedes, the Eleventh Amendment is inapplicable here. See ante, at 63-64. Like the guest who would not leave, however, the Eleventh Amendment lurks everywhere in today’s decision and, in truth, determines its outcome.


[24]Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, renders certain “persons” liable for deprivations of constitutional rights. The question presented is whether the word “person” in this statute includes the States and state officials acting in their official capacities.

[25]One might expect that this statutory question would generate a careful and thorough analysis of the language, legislative history, and general background of § 1983. If this is what one expects, however, one will be disappointed by today’s decision. For this case is not decided on the basis of our ordinary method of statutory construction; instead, the Court disposes of it by means of various rules of statutory interpretation that it summons to its aid each time the question looks close. Specifically, the Court invokes the following interpretative principles: the word “persons” is ordinarily construed to exclude the sovereign; congressional intent to affect the federal-state balance must be “clear and manifest”; and intent to abrogate States’ Eleventh Amendment immunity must appear in the language of the statute itself. The Court apparently believes that each of these rules obviates the need for close analysis of a statute’s language and history. Properly applied, however, only the last of these interpretative principles has this effect, and that principle is not pertinent to the case before us.

[26]The Court invokes, first, the “often-expressed understanding” that “‘in common usage, the term “person” does not include the sovereign, [and] statutes employing the [word] are ordinarily construed to exclude it.'” Ante, at 64, quoting Wilson v. Omaha Tribe, 442 U.S. 653, 667 (1979). This rule is used both to refute the argument that the language of § 1983 demonstrates an intent that States be included as defendants, ante, at 64, and to overcome the argument based on the Dictionary Act’s definition of “person” to include bodies politic and corporate, ante, at 69-70. It is ironic, to say the least, that the Court chooses this interpretive rule in explaining why the Dictionary Act is not decisive, since the rule is relevant only when the word “persons” has no statutory definition. When one considers the origins and content of this interpretive guideline, moreover, one realizes that it is inapplicable here and, even if applied, would defeat rather than support the Court’s approach and result.

[27]The idea that the word “persons” ordinarily excludes the sovereign can be traced to the “familiar principle that the King is not bound by any act of Parliament unless he be named therein by special and particular words.” Dollar Savings Bank v. United States, 19 Wall. 227, 239 (1874). As this passage suggests, however, this interpretive principle applies only to “the enacting sovereign.” United States v. California, 297 U.S. 175, 186 (1936). See also Jefferson County Pharmaceutical Assn., Inc. v. Abbott Laboratories, 460 U.S. 150, 161, n.21 (1983). Furthermore, as explained in United States v. Herron, 20 Wall. 251, 255 (1874), even the principle as applied to the enacting sovereign is not without limitations: “Where an act of Parliament is made for the public good, as for the advancement of religion and justice or to prevent injury and wrong, the king is bound by such act, though not particularly named therein; but where a statute is general, and thereby any prerogative, right, title, or interest is divested or taken from the king, in such case the king is not bound, unless the statute is made to extend to him by express words.” It would be difficult to imagine a statute more clearly designed “for the public good,” and “to prevent injury and wrong,” than § 1983.

[28]Even if this interpretive principle were relevant to this case, the Court’s invocation of it to the exclusion of careful statutory analysis is in error. As we have made clear, this principle is merely “an aid to consistent construction of statutes of the enacting sovereign when their purpose is in doubt, but it does not require that the aim of a statute fairly to be inferred be disregarded because not explicitly stated.” United States v. California, supra, at 186. Indeed, immediately following the passage quoted by the Court today, ante, at 64, to the effect that statutes using the word “person” are “ordinarily construed to exclude” the sovereign, we stated:

“But there is no hard and fast rule of exclusion. The purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law.

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“Decision is not to be reached by a strict construction of the words of the Act, nor by the application of artificial canons of construction. On the contrary, we are to read the statutory language in its ordinary and natural sense, and if doubts remain, resolve them in the light, not only of the policy intended to be served by the enactment, but, as well, by all other available aids to construction.” United States v. Cooper Corp., 312 U.S. 600, 604-605 (1941).

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[29]The second interpretive principle that the Court invokes comes from cases … which require a “clear and manifest” expression of congressional intent to change some aspect of federal-state relations. Ante, at 65. These cases do not, however, permit substitution of an absolutist rule of statutory construction for thorough statutory analysis. Indeed, in each of these decisions the Court undertook a careful and detailed analysis of the statutory language and history under consideration….

[30]The only principle of statutory construction employed by the Court that would justify a perfunctory and inconclusive analysis of a statute’s language and history is one that is irrelevant to this case. This is the notion “that if Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.'” Ante, at 65, quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985). As the Court notes, Atascadero was an Eleventh Amendment case; the “constitutional balance” to which Atascadero refers is that struck by the Eleventh Amendment as this Court has come to interpret it. Although the Court apparently wishes it were otherwise, the principle of interpretation that Atascadero announced is unique to cases involving the Eleventh Amendment.

[31]Where the Eleventh Amendment applies, the Court has devised a clear-statement principle more robust than its requirement of clarity in any other situation…. Since this case was brought in state court, however, this strict drafting requirement has no application here. The Eleventh Amendment can hardly be “a consideration,” ante, at 67, in a suit to which it does not apply.

[32]That this Court has generated a uniquely daunting requirement of clarity in Eleventh Amendment cases explains why Quern v. Jordan, 440 U.S. 332 (1979), did not decide the question before us today. Because only the Eleventh Amendment permits use of this clear-statement principle, the holding of Quern v. Jordan that § 1983 does not abrogate States’ Eleventh Amendment immunity tells us nothing about the meaning of the term “person” in § 1983 as a matter of ordinary statutory construction. Quern’s conclusion thus does not compel, or even suggest, a particular result today.

[33]The singularity of this Court’s approach to statutory interpretation in Eleventh Amendment cases also refutes the Court’s argument that, given Quern’s holding, it would make no sense to construe § 1983 to include States as “persons.” See ante, at 66. This is so, the Court suggests, because such a construction would permit suits against States in state but not federal court, even though a major purpose of Congress in enacting § 1983 was to provide a federal forum for litigants who had been deprived of their constitutional rights. See, e.g., Monroe v. Pape, 365 U.S. 167 (1961). In answering the question whether § 1983 provides a federal forum for suits against the States themselves, however, one must apply the clear-statement principle reserved for Eleventh Amendment cases. Since this principle is inapplicable to suits brought in state court, and inapplicable to the question whether States are among those subject to a statute, see Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 287 (1973); Atascadero, supra, at 240, n.2, the answer to the question whether § 1983 provides a federal forum for suits against the States may be, and most often will be, different from the answer to the kind of question before us today. Since the question whether Congress has provided a federal forum for damages suits against the States is answered by applying a uniquely strict interpretive principle, see supra, at 75, the Court should not pretend that we have, in Quern, answered the question whether Congress intended to provide a federal forum for such suits, and then reason backwards from that “intent” to the conclusion that Congress must not have intended to allow such suits to proceed in state court.

[34]In short, the only principle of statutory interpretation that permits the Court to avoid a careful and thorough analysis of § 1983’s language and history is the clear-statement principle that this Court has come to apply in Eleventh Amendment cases—a principle that is irrelevant to this state-court action. In my view, a careful and detailed analysis of § 1983 leads to the conclusion that States are “persons” within the meaning of that statute.


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[35]Although § 1983 itself does not define the term “person,” we are not without a statutory definition of this word. “Any analysis of the meaning of the word ‘person’ in § 1983 … must begin … with the Dictionary Act.” Monell v. New York City Dept. of SocialServices, 436 U.S. 658, 719 (1978) (Rehnquist, J., dissenting). Passed just two months before § 1983, and designed to “suppl[y] rules of construction for all legislation,” ibid., the Dictionary 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.

In Monell, we held this definition to be not merely allowable but mandatory, requiring that the word “person” be construed to include “bodies politic and corporate” unless the statute under consideration “by its terms called for a deviation from this practice.” 436 U.S., at 689-690, n.53. Thus, we concluded, where nothing in the “context” of a particular statute “call[s] for a restricted interpretation of the word ‘person,’ the language of that [statute] should prima facie be construed to include ‘bodies politic’ among the entities that could be sued.” Ibid.

[36]Both before and after the time when the Dictionary Act and § 1983 were passed, the phrase “bodies politic and corporate” was understood to include the States…. Indeed, the very legislators who passed § 1 referred to States in these terms. See, e.g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (Sen. Vickers) (“What is a State? Is it not a body politic and corporate?”); id. at 696 (Sen. Edmunds) (“A State is a corporation”).

[37]The reason why States are “bodies politic and corporate” is simple: just as a corporation is an entity that can act only through its agents, “[t]he State is a political corporate body, can act only through agents, and can command only by laws.” As a “body politic and corporate,” a State falls squarely within the Dictionary Act’s definition of a “person.”

[38]While it is certainly true that the phrase “bodies politic and corporate” referred to private and public corporations, see ante, at 69, and n.9, this fact does not draw into question the conclusion that this phrase also applied to the States. Phrases may, of course, have multiple referents. Indeed, each and every dictionary cited by the Court accords a broader realm—one that comfortably, and in most cases explicitly, includes the sovereign—to this phrase than the Court gives it today… .

[39]Because I recognize that both uses of this phrase were deemed valid when § 1983 and the Dictionary Act were passed, the Court accuses me of “confus[ing] [the] precise definition of [this] phrase with its use ‘in a rather loose way,'” “to refer to the state (as opposed to a State).” Ante, at 70, n.9, quoting BLACK, supra, at 143. It had never occurred to me, however, that only “precise” definitions counted as valid ones. Where the question we face is what meaning Congress attached to a particular word or phrase, we usually—and properly—are loath to conclude that Congress meant to use the word or phrase in a hypertechnical sense unless it said so. Nor does the Court’s distinction between “the state” and “a State” have any force. The suggestion, I take it, is that the phrase “bodies politic and corporate” refers only to nations rather than to the states within a nation; but then the Court must explain why so many of the sources I have quoted refer to states in addition to nations. In an opinion so utterly devoted to the rights of the States as sovereigns, moreover, it is surprising indeed to find the Court distinguishing between our sovereign States and our sovereign Nation.

[40]In deciding what the phrase “bodies politic and corporate” means, furthermore, I do not see the relevance of the meaning of the term “public corporation.” See ante, at 69-70, n.9. That is not the phrase chosen by Congress in the Dictionary Act, and the Court’s suggestion that this phrase is coterminous with the phrase “bodies politic and corporate” begs the question whether the latter one includes the States.

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[41]Thus, the question before us is whether the presumption that the word “person” in § 1 of the Civil Rights Act of 1871 included bodies politic and corporate—and hence the States—is overcome by anything in the statute’s language and history. Certainly nothing in the statutory language overrides this presumption. The statute is explicitly directed at action taken “under color of” state law, and thus supports rather than refutes the idea that the “persons” mentioned in the statute include the States. Indeed, for almost a century—until Monroe v. Pape, 365 U.S. 167 (1961)—it was unclear whether the statute applied at all to action not authorized by the State, and the enduring significance of the first cases construing the Fourteenth Amendment, pursuant to which § 1 was passed, lies in their conclusion that the prohibitions of this Amendment do not reach private action. See Civil Rights Cases, 109 U.S. 3 (1883). In such a setting, one cannot reasonably deny the significance of § 1983’s explicit focus on state action.

[42]Unimpressed by such arguments, the Court simply asserts that reading “States” where the statute mentions “person” would be “decidedly awkward.” Ante, at 64. The Court does not describe the awkwardness that it perceives, but I take it that its objection is that the under-color-of-law requirement would be redundant if States were included in the statute because States necessarily act under color of state law. But § 1983 extends as well to natural persons, who do not necessarily so act; in order to ensure that they would be liable only when they did so, the statute needed the under-color-of-law requirement. The only way to remove the redundancy that the Court sees would have been to eliminate the catchall phrase “person” altogether, and separately describe each category of possible defendants and the circumstances under which they might be liable. I cannot think of a situation not involving the Eleventh Amendment, however, in which we have imposed such an unforgiving drafting requirement on Congress.

[43]Taking the example closest to this case, we might have observed in Monell that §1983 was clumsily written if it included municipalities, since these, too, may act only under color of state authority. Nevertheless, we held there that the statute does apply to municipalities….

[44]The legislative history and background of the statute confirm that the presumption created by the Dictionary Act was not overridden in § 1 of the 1871 Act, and that, even without such a presumption, it is plain that “person” in the 1871 Act must include the States. I discussed in detail the legislative history of this statute in my opinion concurring in the judgment in Quern v. Jordan, 440 U.S., at 357-365, and I shall not cover that ground again here. Suffice it to say that, in my view, the legislative history of this provision, though spare, demonstrates that Congress recognized and accepted the fact that the statute was directed at the States themselves. One need not believe that the statute satisfies this Court’s heightened clear-statement principle, reserved for Eleventh Amendment cases, in order to conclude that the language and legislative history of § 1983 show that the word “person” must include the States.

[45]As to the more general historical background of § 1, we too easily forget, I think, the circumstances existing in this country when the early civil rights statutes were passed. “[V]iewed against the events and passions of the time,” United States v. Price, 383 U.S. 787, 803 (1966), I have little doubt that § 1 of the Civil Rights Act of 1871 included States as “persons.” The following brief description of the Reconstruction period is illuminating:

“The Civil War had ended in April 1865. Relations between Negroes and whites were increasingly turbulent. Congress had taken control of the entire governmental process in former Confederate States. It had declared the governments in 10 ‘unreconstructed’ States to be illegal and had set up federal military administrations in their place. Congress refused to seat representatives from these States until they had adopted constitutions guaranteeing Negro suffrage, and had ratified the Fourteenth Amendment. Constitutional conventions were called in 1868. Six of the 10 States fulfilled Congress’ requirements in 1868, the other four by 1870.

“For a few years ‘radical’ Republicans dominated the governments of the Southern States and Negroes played a substantial political role. But countermeasures were swift and violent. The Ku Klux Klan was organized by southern whites in 1866 and a similar organization appeared with the romantic title of the Knights of the White Camellia. In 1868 a wave of murders and assaults was launched including assassinations designed to keep Negroes from the polls. The States themselves were helpless, despite the resort by some of them to extreme measures such as making it legal to hunt down and shoot any disguised man.

“Within the Congress pressures mounted in the period between the end of the war and 1870 for drastic measures. A few months after the ratification of the Thirteenth Amendment on December 6, 1865, Congress, on April 9, 1866, enacted the Civil Rights Act of 1866…. On June 13, 1866, the Fourteenth Amendment was proposed, and it was ratified in July 1868. In February 1869 the Fifteenth Amendment was proposed, and it was ratified in February 1870. On May 31, 1870, the Enforcement Act of 1870 was enacted.” Id. at 803-805 (footnotes omitted).

This was a Congress in the midst of altering the “‘balance between the States and the Federal Government.'” Ante, at 65, quoting Atascadero State Hospital v. Scanlon, 473 U.S. at 242. It was fighting to save the Union, and in doing so, it transformed our federal system. It is difficult, therefore, to believe that this same Congress did not intend to include States among those who might be liable under § 1983 for the very deprivations that were threatening this Nation at that time.


[46]To describe the breadth of the Court’s holding is to demonstrate its unwisdom. If States are not “persons” within the meaning of § 1983, then they may not be sued under that statute regardless of whether they have consented to suit. Even if, in other words, a State formally and explicitly consented to suits against it in federal or state court, no § 1983 plaintiff could proceed against it because States are not within the statute’s category of possible defendants.

[47]This is indeed an exceptional holding. Not only does it depart from our suggestion in Alabama v. Pugh, 438 U.S. 781, 782 (1978), that a State could be a defendant under § 1983 if it consented to suit, see also Quern v. Jordan, supra, at 340, but it also renders ineffective the choices some States have made to permit such suits against them. See, e.g., Della Grotta v. Rhode Island, 781 F.2d 343 (CA1 1986). I do not understand what purpose is served, what principle of federalism or comity is promoted, by refusing to give force to a State’s explicit consent to suit.

[48]The Court appears to be driven to this peculiar result in part by its view that “in enacting § 1983, Congress did not intend to override well-established immunities or defenses under the common law.” Ante, at 67. But the question whether States are “persons” under § 1983 is separate and distinct from the question whether they may assert a defense of common-law sovereign immunity. In our prior decisions involving common-law immunities, we have not held that the existence of an immunity defense excluded the relevant state actor from the category of “persons” liable under § 1983, see, e.g., Forrester v. White, 484 U.S. 219 (1988), and it is a mistake to do so today. Such an approach entrenches the effect of common-law immunity even where the immunity itself has been waived.

[49]For my part, I would reverse the judgment below and remand for resolution of the question whether Michigan would assert common-law sovereign immunity in defense to this suit and, if so, whether that assertion of immunity would preclude the suit.

[50]Given the suggestion in the court below that Michigan enjoys no common-law immunity for violations of its own Constitution, Smith v. Department of Public Health, 428 Mich. 540, 641-642, 410 N.W.2d 749, 793-794 (1987) (Boyle, J., concurring), there is certainly a possibility that that court would hold that the State also lacks immunity against § 1983 suits for violations of the Federal Constitution. Moreover, even if that court decided that the State’s waiver of immunity did not apply to § 1983 suits, there is a substantial question whether Michigan could so discriminate between virtually identical causes of action only on the ground that one was a state suit and the other a federal one. Cf. Testa v. Katt, 330 U.S. 386 (1947); Martinez v. California, 444 U.S. 277, 283, n.7 (1980). Finally, even if both of these questions were resolved in favor of an immunity defense, there would remain the question whether it would be reasonable to attribute to Congress an intent to allow States to decide for themselves whether to take cognizance of § 1983 suits brought against them. Cf. Martinez, supra, at 284, and n.8; Owen v. City of Independence, 445 U.S. 622, 647-648 (1980).

[51]Because the court below disposed of the case on the ground that States were not “persons” within the meaning of § 1983, it did not pass upon these difficult and important questions. I therefore would remand this case to the state court to resolve these questions in the first instance.

Justice Stevens, dissenting.

[52]Legal doctrines often flourish long after their raison d’etre has perished. The doctrine of sovereign immunity rests on the fictional premise that the “King can do no wrong.” Even though the plot to assassinate James I in 1605, the execution of Charles I in 1649, and the Colonists’ reaction to George III’s stamp tax made rather clear the fictional character of the doctrine’s underpinnings, British subjects found a gracious means of compelling the King to obey the law rather than simply repudiating the doctrine itself. They held his advisers and his agents responsible.[5]

[53]In our administration of § 1983, we have also relied on fictions to protect the illusion that a sovereign State, absent consent, may not be held accountable for its delicts in federal court. Under a settled course of decision, in contexts ranging from school desegregation to the provision of public assistance benefits to the administration of prison systems and other state facilities, we have held the States liable under § 1983 for their constitutional violations through the artifice of naming a public officer as a nominal party. Once one strips away the Eleventh Amendment overlay applied to actions in federal court, it is apparent that the Court in these cases has treated the State as the real party in interest both for the purposes of granting prospective and ancillary relief and of denying retroactive relief. When suit is brought in state court, where the Eleventh Amendment is inapplicable, it follows that the State can be named directly as a party under § 1983.

* * * * *

[54]The Civil Rights Act of 1871 was “intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights.” Monell v. New York City Dept. of Social Services, 436 U.S. at 700-701. Our holdings that a § 1983 action can be brought against state officials in their official capacity for constitutional violations properly recognize and are faithful to that profound mandate. If prospective relief can be awarded against state officials under § 1983 and the State is the real party in interest in such suits, the State must be a “person” which can be held liable under § 1983. No other conclusion is available. Eleventh Amendment principles may limit the State’s capacity to be sued as such in federal court. See Alabama v. Pugh, 438 U.S. 781 (1978). But since those principles are not applicable to suits in state court, see Thiboutot, supra, at 9, n.7; Nevada v. Hall, 440 U.S. 410 (1979), there is no need to resort to the fiction of an official-capacity suit and the State may and should be named directly as a defendant in a § 1983 action.

* * * * *

[55]The Court having constructed an edifice for the purposes of the Eleventh Amendment on the theory that the State is always the real party in interest in a § 1983 official-capacity action against a state officer, I would think the majority would be impelled to conclude that the State is a “person” under § 1983. As Justice Brennan has demonstrated, there is also a compelling textual argument that States are persons under § 1983. In addition, the Court’s construction draws an illogical distinction between wrongs committed by county or municipal officials on the one hand, and those committed by state officials on the other. Finally, there is no necessity to import into this question of statutory construction doctrine created to protect the fiction that one sovereign cannot be sued in the courts of another sovereign. Aside from all of these reasons, the Court’s holding that a State is not a person under § 1983 departs from a long line of judicial authority based on exactly that premise.

I respectfully dissent.

download arrowWill v. Michigan Department of State Police – Audio and Transcript of Oral Argument


  1. Petitioner argues that Congress would not have considered the Eleventh Amendment in enacting § 1983 because in 1871 this Court had not yet held that the Eleventh Amendment barred federal-question cases against States in federal court. This argument is no more than an attempt to have this Court reconsider Quern v. Jordan, 440 U.S. 332 (1979), which we decline to do.


  2. Our recognition in Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), that a municipality is a person under § 1983, is fully consistent with this reasoning. In Owen v. City of Independence, 445 U.S. 622 (1980), we noted that by the time of the enactment of § 1983, municipalities no longer retained the sovereign immunity they had previously shared with the States. “[B]y 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,” id., at 646, and, as a result, municipalities had been held liable for damages “in a multitude of cases” involving previously immune activities, id., at 646-647.


  3. See United States v. Fox, 94 U.S. 315, 321 (1877); 1 B. ABBOTT, DICTIONARY OF TERMS AND PHRASES USED IN AMERICAN OR ENGLISH JURISPRUDENCE 155 (1879) (“most exact expression” for “public corporation”); W. ANDERSON, A DICTIONARY OF LAW 127 (1893) (“most exact expression for a public corporation or corporation having powers of government”); BLACK’S LAW DICTIONARY 143 (1891) (“body politic” is “term applied to a corporation, which is usually designated as a ‘body corporate and politic'” and “is particularly appropriate to a public corporation invested with powers and duties of government”); 1 A. BURRILL, A LAW DICTIONARY AND GLOSSARY 212 (2d ed. 1871) (“body politic” is “term applied to a corporation, which is usually designated as a body corporate and politic”). A public corporation, in ordinary usage, was another term for a municipal corporation, and included towns, cities, and counties, but not States. See 2 ABBOTT, supra, at 347; ANDERSON, supra, at 264-265; BLACK, supra, at 278; 2 BURRILL, supra, at 352.
    Justice Brennan appears to confuse this precise definition of the phrase with its use “in a rather loose way,” see BLACK, supra, at 143, to refer to the state (as opposed to a State). This confusion is revealed most clearly in Justice Brennan’s reliance on the 1979 edition of BLACK’S LAW DICTIONARY, which defines “body politic or corporate” as “[a] social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.” Post, at 79. To the extent Justice Brennan’s citation of other authorities does not suffer from the same confusion, those authorities at best suggest that the phrase is ambiguous, which still renders the Dictionary Act incapable of supplying the necessary clear intent.


  4. Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because “official-capacity actions for prospective relief are not treated as actions against the State.” Kentucky v. Graham, 473 U.S. at 167, n.14; Ex parte Young, 209 U.S. 123, 159-160 (1908). This distinction is “commonplace in sovereign immunity doctrine,” L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 3-27, p. 190, n.3 (2d ed. 1988), and would not have been foreign to the 19th-century Congress that enacted § 1983, see, e.g., In re Ayers, 123 U.S. 443, 506-507 (1887); United States v. Lee, 106 U.S. 196, 219-222 (1882); Board of Liquidation v. McComb, 92 U.S. 531, 541 (1876); Osborn v. Bank of United States, 9 Wheat. 738 (1824). City of Kenosha v. Bruno, 412 U.S. 507, 513 (1973), on which Justice Stevens relies, see post, at 93, n.8, is not to the contrary. That case involved municipal liability under § 1983, and the fact that nothing in § 1983 suggests its “bifurcated application to municipal corporations depending on the nature of the relief sought against them,” 412 U.S. at 513, is not surprising, since by the time of the enactment of § 1983 municipalities were no longer protected by sovereign immunity. Supra at 67-68, n.7.


  5. In the first chapter of his classic History of England, published in 1849, Thomas Macaulay wrote:

    “Of these kindred constitutions the English was, from an early period, justly reputed the best. The prerogatives of the sovereign were undoubtedly extensive….

    “But his power, though ample, was limited by three great constitutional principles, so ancient that none can say when they began to exist, so potent that their natural development, continued through many generations, has produced the order of things under which we now live.

    First, the King could not legislate without the consent of his Parliament. Secondly, he could impose no tax without the consent of his Parliament. Thirdly, he was bound to conduct the executive administration according to the laws of the land, and, if he broke those laws, his advisers and his agents were responsible.” 1 T. MACAULAY, HISTORY OF ENGLAND 28-29. In the United States as well, at the time of the passage of the Civil Rights Act of 1871, actions against agents of the sovereign were the means by which the State, despite its own immunity, was required to obey the law. See, e.g., Poindexter v. Greenhow, 114 U.S. 270, 297 (1885) (“The fancied inconvenience of an interference with the collection of its taxes by the govenment of Virginia, by suits against its tax collectors, vanishes at once upon the suggestion that such interference is not possible, except when that government seeks to enforce the collection of its taxes contrary to the law and contract of the State, and in violation of the Constitution of the United States”); Davis v. Gray, 16 Wall. 203, 220 (1873) (“Where the State is concerned, the State should be made a party, if it could be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the State in all respects as if the State were a party to the record”).

Notes on Will v. Michigan Department of State Police

  1. Should the analysis of the issue whether a State is a “person” within the meaning of Section 1983 be different from the analysis of the issue of whether Congress intended to abrogate the State’s Eleventh Amendment immunity? Did the majority’s reasoning in Will differ from the majority’s reasoning in Quern v. Jordan?
  2. After Will, may a State be sued in state court under Section 1983 if it consents to suit? If the State waives sovereign immunity for constitutional violations? If the State fails to move to dismiss for failure to state a claim upon which relief may be granted?
  3. Under Ex Parte Young and Edelman v. Jordan, a state official sued in his official capacity for prospective relief is a “person” under Section 1983. After Will, may plaintiff bring a Section 1983 action in state court for damages against a state official in his official capacity? Does Will overrule Ex Parte Young and Edelman?
  4. In Hafer v. Melo, 502 U.S. 21 (1991), employees of the Auditor General’s Office of the Commonwealth of Pennsylvania sued Auditor General Hafer for damages in federal court under Section 1983. The suit alleged that Hafer had dismissed the employees because of their Democratic political affiliation and because they had supported her opponent during the election for office. The district court dismissed the claims on the ground that under Will, Hafer could not be held liable for damages for employment decisions that she made in her official capacity as Auditor General. The United States Court of Appeals for the Third Circuit reversed the dismissal, finding that plaintiffs sought damages from Hafer in her personal, as opposed to official capacity.Before the Supreme Court, Hafer argued that the distinction between official and personal capacity suits turns not on the capacity in which the state official is sued, but rather rests on the capacity in which the officer acted when injuring the plaintiff. Hafer interpreted Will as holding that state officials may not be held accountable for damages in their personal capacity for actions taken in their official capacity. The Supreme Court, however, rejected Hafer’s construction of Will:

    Will itself makes clear that the distinction between official-capacity suits and personal-capacity suits is more than “a mere pleading device.” [Will, 491 U.S. at 71]. State officers sued for damages in their official capacity are not “persons” for purposes of the suit because they assume the identity of the government that employs them. Ibid. By contrast, officers sued in their personal capacity come to court as individuals. A government official in the role of personal-capacity defendant thus fits comfortably within the statutory term “person.” Cf. Id. at 71 n.10 (“A state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official capacity actions for prospective relief are not treated as actions against the State.’”) (quoting Graham, 473 U.S. at 167, n.14).

    * * * * *

    Through § 1983, Congress sought “to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position.” Monroe v. Pape, 365 U.S. 167 (1961). Accordingly, it authorized suits to redress deprivations of civil rights by persons acting “under color of any [state] statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. The requirement of action under color of state law means that Hafer may be liable for discharging respondents precisely because of her authority as Auditor General. We cannot accept the novel proposition that this same official authority insulates Hafer from suit.

    Hafer, 502 U.S. at 27-28 .

    The Court also spurned Hafer’s proffered distinction between a) actions outside the official’s authority or not essential to the operation of state government, which can subject the official to personal liability under Section 1983, and b) actions both within the official’s authority and necessary to the performance of governmental functions, which should be considered acts of the State and thus cannot give rise to a personal-capacity action:

    The distinction Hafer urges finds no support in the broad language of § 1983. To the contrary, it ignores our holding that Congress enacted § 1983 “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.” Scheuer v. Rhodes, 416 U.S. 232, 243, 40 L. Ed.2d 90 (1974), quoting Monroe v. Pape, supra, at 171-172). Furthermore, Hafer’s distinction cannot be reconciled with our decisions regarding immunity of government officers otherwise personally liable for acts done in the course of their official duties. Her theory would absolutely immunize state officials from personal liability for acts within their authority and necessary to fulfilling governmental responsibilities. Yet our cases do not extend absolute immunity to all officers who engage in necessary official acts. Rather, immunity from suit under § 1983 is “predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it,” Imbler v. Pachtman, 424 U.S. 409, 421 (1976), and officials seeking absolute immunity must show that such immunity is justified for the governmental function at issue, Burns v. Reed, 500 U.S. 478 (1991).

    Hafer, 502 U.S. at 28-29.

    Finally, the Court dismissed Hafer’s argument that under Will, the Eleventh Amendment prohibits personal-capacity suits against state officials in federal court because holding individual officers liable for damages infringes on state sovereignty by rendering government less effective:

    Most certainly, Will’s holding does not rest directly on the Eleventh Amendment…. We considered the Eleventh Amendment in Will only because the fact that Congress did not intend to override state immunity when it enacted § 1983 was relevant to statutory construction….

    * * * * *

    To be sure, imposing liability on state officers may hamper their performance of public duties. But such concerns are properly addressed within the framework of our personal immunity jurisprudence Insofar as respondents seek damages against Hafer personally, the Eleventh Amendment does not restrict their ability to sue in federal court.

    Hafer, 502 U.S. at 30-31.

  5. Given that States are not liable under Section 1983 for retroactive relief, may a plaintiff whose federal constitutional rights are violated by a municipality acting pursuant to the mandate of state law recover damages from that local governmental entity?
    1. In Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991), plaintiff filed a Section 1983 action for damages alleging that the City was liable for the actions of its police officer who, believing rings displayed in the plaintiff’s store had been stolen, seized the rings and returned them to whom the officer believed to be the true owner. Plaintiff asserted that because the officer’s actions were taken pursuant to a state law that authorized the seizure and transfer of the property without a pre-disposition hearing, the City was liable for its policy of enforcing those state statutes.The court of appeals affirmed dismissal of the complaint:

      It is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the “policy” of enforcing state law. If the language and standards from Monell are not to become a dead letter, such a “policy” simply cannot be sufficient to ground liability against a municipality.

      Cf. Tuttle, 476 U.S. at 823:

      Obviously, if one retreats far enough from a constitutional violation some municipal “policy” can be identified behind almost any such harm inflicted by a municipal official… . But Monell must be taken to require proof of a city policy different in kind from [the policy of establishing a police force] before a claim can be sent to a jury on the theory that a particular violation was “caused” by the municipal “policy.” At the very least there must be an affirmative link between the policy and the particular constitutional violation alleged.

      Would plaintiff be able to recover damages from the individual officer? Is injunctive relief available? See Chapter VI(B), infra.

    2. In Davis v. City of Camden, 657 F. Supp. 396 (D. N.J. 1987), the court rejected the City’s contention that it could not be held liable in damages for a strip search of an inmate in a county jail that was mandated by a state regulation:

      [W]e believe that a municipality should be held liable under § 1983 when it officially adopts a policy that subsequently is declared unconstitutional, notwithstanding the fact that the policy was mandated by state law, and we so hold. [A] holding contrary to the one we reach would be palpably inconsistent with the underlying purpose of § 1983, a statute designed to insure that victims of unconstitutional state action are compensated for the violation of their rights, and one that, as such, must be liberally construed. In light of these factors, the Supreme Court held in Owen v. City of Independence that municipalities are not entitled to qualified immunity based on the good faith of their officials, reasoning that “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.” … Faced with a choice between depriving victims of constitutional violations of recovery and imposing liability without any real fault on local governments, the Owen court, in view of the remedial purposes of § 1983, chose the latter course. Our holding today is motivated by similar policy considerations.

      Davis, 657 F. Supp. at 403. In a footnote, the Davis court identified the net result were they to exonerate the City for acting in accordance with state law:

      Were we to immunize municipalities in the circumstances presented in this case, plaintiffs whose constitutional rights are violated through the execution of state mandated municipal policies frequently would be unable to recover damages; municipal officials often may be shielded from liability in their personal capacities under the qualified immunity defense, and the Eleventh Amendment prohibits private actions for damages against the state in federal court….

      Davis, 657 F. Supp. at 403 n.6. See also Evers v. County of Custer, 745 F.2d 1196, 1203-04 (9th Cir. 1984) (County is liable for actions mandated by state law; “The policies discussed by the Supreme Court in Owen fully support the imposition of liability on the County.”).


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