Monell v. New York City Dept. of Social Servs.

Me. Justice Powell,

concurring.

I join the opinion of the Court, and express these additional views.

New cases in the history of the Court have been cited more frequently than Monroe v. Pape, 365 U. S. 167 (1961), decided less than two decades ago. Focusing new light on 42 U. S. C. § 1983, that decision widened access to the federal courts and permitted expansive interpretations of the reach of *705the 1871 measure. But Monroe exempted local governments from liability at the same time it opened wide the courthouse door to suits against officers and employees of those entities— even when they act pursuant to express authorization. The oddness of this result, and the weakness of the historical evidence relied on by the Monroe Court in support of it, are well demonstrated by the Court’s opinion today. Yet the gravity of overruling a part of so important a decision prompts me to write.

I

In addressing a complaint alleging unconstitutional police conduct that probably was unauthorized and actionable under state law,1 the Monroe Court treated the 42d Congress’ rejection of the Sherman amendment as conclusive evidence of an intention to immunize local governments from all liability under the statute for constitutional injury. That reading, in light of today’s thorough canvass of the legislative history, clearly “misapprehended the meaning of the controlling provision,” Monroe, supra, at 192 (Harlan, J., concurring). In this case, involving formal, written policies of the Department of Social Services and the Board of Education of the city of New York that are alleged to conflict *706with the command of the Due Process Clause, cf. Cleveland Board of Education v. LaFleur, 414 U. S. 632 (1974), the Court decides “not to reject [wisdom] merely because it comes late,” Henslee v. Union Planters Bank, 335 U. S. 595, 600 (1949) (Frankfurter, J., dissenting).

As the Court demonstrates, the Sherman amendment presented an extreme example of “riot act” legislation that sought to impose vicarious liability on government subdivisions for the consequences of private lawlessness. As such, it implicated concerns that are of marginal pertinence to the operative principle of § 1 of the 1871 legislation — now § 1983 — that “any person” acting “under color of” state law may be held liable for affirmative conduct that “subjects, or causes to be subjected, any person ... to the deprivation of any” federal constitutional or statutory right. Of the many reasons for the defeat of the Sherman proposal, none supports Monroe’s observation that the 42d Congress was fundamentally “antagonistic,” 365 U. S., at 191, to the proposition that government entities and natural persons alike should be held accountable for the consequences of conduct directly working a constitutional violation. Opponents in the Senate appear to have been troubled primarily by the proposal’s unprecedented lien provision, which would have exposed even property held for public purposes to the demands of § 1983 judgment lienors. Ante, at 673-674, n. 30. The opposition in the House of Representatives focused largely on the Sherman amendment’s attempt to impose a peacekeeping obligation on municipalities when the Constitution itself imposed no such affirmative duty and when many municipalities were not even empowered under state law to maintain police forces. Ante, at 673-675, 679-682.2

*707The Court correctly rejects a view of the legislative history that would produce the anomalous result of immunizing local government units from monetary liability for action directly causing a constitutional deprivation, even though such actions may be fully consistent with, and thus not remediable under, state law. No conduct of government comes more clearly within the “under color of” state law language of § 1983. It is most unlikely that Congress intended public officials acting under the command or the specific authorization of the government employer to be exclusively liable for resulting constitutional injury.3

As elaborated in Part II of today’s opinion, the rejection of the Sherman amendment can best be understood not as evidence of Congress’ acceptance of a rule of absolute municipal immunity but as a limitation of the statutory ambit to actual wrongdoers, i. e., a rejection of respondeat superior or any other principle of vicarious liability. Cf. Levin, The Section 1983 Municipal Immunity Doctrine, 65 Geo. L. J. 1483, 1531-1535 (1977). Thus, it has been clear that a public official may be held liable in damages when his actions are found to violate a constitutional right and there is no qualified immunity, see Wood v. Strickland, 420 U. S. 308 (1975); Procunier v. Navarette, 434 U. S. 555 (1978). Today the Court recognizes *708that this principle also applies to a local government when implementation of its official policies or established customs inflicts the constitutional injury.

II

This Court traditionally has been hesitant to overrule prior constructions of statutes or interpretations of common-law rules. “Stare decisis is usually the wise policy,” Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandéis, J., dissenting), but this cautionary principle must give way to countervailing considerations in appropriate circumstances.4 I concur in the Court’s view that this is not a case where we should “place on the shoulders of Congress the burden of the Court’s own error.” Girouard v. United States, 328 U. S. 61, 70 (1946).

Nor is this the usual case in which the Court is asked to overrule a precedent. Here considerations of stare decisis cut in both directions. On the one hand, we have a series of rulings that municipalities and counties are not “persons” for purposes of § 1983. On the other hand, many decisions of this Court have been premised on the amenability of school boards and similar entities to § 1983 suits.

In Monroe and its progeny, we have answered a question that was never actually briefed or argued in this Court— whether a municipality is liable in damages for injuries that are the direct result of its official policies. “The theory of the complaint [in Monroe was] that under the circumstances [t]here alleged the City [was] liable for the acts of its police officers, by virtue of respondeat superior.” Brief for Petition*709ers, O. T. 1960, No. 39, p. 21.5 Respondents answered that adoption of petitioners’ position would expose “Chicago and every other municipality in the United States ... to Civil Rights Act liability through no action of its own and based on action contrary to its own ordinances and the laws of the state it is a part of.” Brief for Respondents, O. T. 1960, No. 39, p. 26. Thus the ground of decision in Monroe was not advanced by either party and was broader than necessary to resolve the contentions made in that case.6

*710Similarly, in Moor v. County of Alameda, 411 U. S. 693 (1973), petitioners asserted that “the County was vicariously liable for the acts of its deputies and sheriff,” id., at 696, under 42 U. S. C. § 1988. In rejecting this vicarious-liability claim, 411 U. S., at 710, and n. 27, we reaffirmed Monroe’s reading of the statute, but there was no challenge in that case to “the holding in Monroe concerning the status under § 1983 of public entities such as the County,” 411 U. S., at 700; Brief for Petitioners, O. T. 1972, No. 72-10, p. 9.

Only in City of Kenosha v. Bruno, 412 U. S. 607 (1973), did the Court confront a § 1983 claim based on conduct that was both authorized under state law and the direct cause of the claimed constitutional injury. In Kenosha, however, we raised the issue of the city’s amenability to suit under § 1983 on our own initiative.7

This line of cases — from Monroe to Kenosha — is difficult to reconcile on a principled basis with a parallel series of cases *711in which the Court has assumed sub silentio that some local government entities could be sued under § 1983. If now, after full consideration of the question, we continued to adhere to Monroe, grave doubt would be cast upon the Court’s exercise of § 1983 jurisdiction over school boards. See ante, at 663 n. 5. Since “the principle of blanket immunity established in Monroe cannot be cabined short of school boards,” ante, at 696, the conflict is squarely presented. Although there was an independent basis of jurisdiction in many of the school board cases because of the inclusion of individual public officials as nominal parties, the opinions of this Court make explicit reference to the school board party, particularly in discussions of the relief to be awarded, see, e. g., Green v. County School Board, 391 U. S. 430, 437-439, 441-442 (1968); Milliken v. Bradley, 433 U. S. 267, 292-293 (1977) (Powell, J., concurring in judgment). And, as the Court points out, ante, at 696-697, and nn. 62, 63, Congress has focused specifically on this Court’s school board decisions in several statutes. Thus the exercise of § 1983 jurisdiction over school boards, while perhaps not premised on considered holdings, has been longstanding. Indeed, it predated Monroe.

Even if one attempts to explain away the school board decisions as involving suits which “may be maintained against board members in their official capacities for injunctive relief under either § 1983 or Ex parte Young, 209 U. S. 123 (1908),” post, at 716-717, n. 2, some difficulty remains in rationalizing the relevant body of precedents. At least two of the school board cases involved claims for monetary relief. Cohen v. Chesterfield County School Board, 326 F. Supp. 1159, 1161 (ED Va. 1971), rev’d, 474 F. 2d 395 (CA4 1973), rev’d and remanded, 414 U. S. 632 (1974); Tinker v. Des Moines Independent School Dist., 393 U. S. 503, 504 (1969). See also Vlandis v. Kline, 412 U. S. 441, 445 (1973). Although the point was not squarely presented in this Court, these claims *712for damages could not have been maintained in official-capacity suits if the government entity were not itself suable. Cf. Edelman v. Jordan, 415 U. S. 651 (1974).8 Moreover, the rationale of Kenosha would have to be disturbed to avoid closing all avenues under § 1983 to injunctive relief against constitutional violations by local government. The Court of Appeals in this case suggested that we import, by analogy, the Eleventh Amendment fiction of Ex parte Young into § 1983, 532 F. 2d 259, 264—266 (CA2 1976). That approach, however, would create tension with Kenosha because it would require “a bifurcated application” of “the generic word ‘person’ in § 1983” to public officials “depending on the nature of the relief sought against them.” 412 U. S., at 513. A public official sued in his official capacity for carrying out official policy would be a “person” for purposes of injunctive relief, but a non-“person” in an action for damages. The Court’s holding avoids this difficulty. See ante, at 690 n. 55.

Finally, if we continued to adhere to a rule of absolute municipal immunity under § 1983, we could not long avoid the question whether “we should, by analogy to our decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), imply a cause of action directly from the Fourteenth Amendment which would not be subject to the limitations contained in § 1983 . . . .” Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274, 278 (1977). One aspect of that inquiry would be whether there are any “special factors counselling hesitation in the absence of affirmative action by Congress,” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 396 (1971), such as an “explicit congressional declaration *713that persons injured by a [municipality] may not recover money damages . . . , but must instead be remitted to another remedy, equally effective in the view of Congress,” id., at 397. In light of the Court’s persuasive re-examination in today’s decision of the 1871 debates, I would have difficulty inferring from § 1983 “an explicit congressional declaration” against municipal liability for the implementation of official policies in violation of the Constitution. Rather than consti-tutionalize a cause of action against local government that Congress intended to create in 1871, the better course is to confess error and set the record straight, as the Court does today.9

Ill

Difficult questions nevertheless remain for another day. There are substantial line-drawing problems in determining “when execution of a government’s policy or custom” can be said to inflict constitutional injury such that “government as an entity is responsible under § 1983.” Ante, at 694. This case, however, involves formal, written policies of a municipal department and school board; it is the clear case. The Court also reserves decision on the availability of a qualified municipal immunity. Ante, at 701. Initial resolution of the question whether the protection available at common law for municipal corporations, see post, at 720-721, or other principles support a *714qualified municipal immunity in the context of the § 1983 damages action, is left to the lower federal courts.

The gravamen of the complaint in Monroe was that Chicago police officers acting “under color of” state law had conducted a warrantless, early morning raid and ransacking of a private home. Although at least one of the allegations in the complaint could have been construed to charge a custom or usage of the Police Department of the city of Chicago that did not violate state law, see 365 U. S., at 258-259 (Frankfurter, J., dissenting in part), and there is a hint of such a theory in Brief for Petitioners, O. T. 1960, No. 39, pp. 41-42, that feature of the case was not highlighted in this Court. The dispute that divided the Court was over whether a complaint alleging police misconduct in violation of state law, for which state judicial remedies were available, stated a § 1983 claim in light of the statutory requirement that the conduct working injury be “under color of” state law. Compare 365 U. S., at 172-183 (opinion of the Court), and id., at 193-202 (Harlan, J., concurring), with id., at 202-259 (Frankfurter, J., dissenting in part).

If in the view of House opponents, such as Representatives Poland, Burchard, and Willard, see ante, at 679-680, a municipality obligated by state law to keep the peace could be held liable for a failure to provide equal protection against private violence, it seems improbable that they would have opposed imposition of liability on a municipality for the *707affirmative implementation of policies promulgated within its proper sphere of operation under state law. Such liability is premised not on a failure to take affirmative action in an area outside the contemplation of the state-law charter — the sort of liability that would have been imposed by the Sherman amendment — but on the consequences of activities actually undertaken within the scope of the powers conferred by state law.

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

See, e. g., Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36 (1977); Machinists v. Wisconsin Emp. Rel. Comm’n, 427 U. S. 132 (1976); Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973); Griffin v. Breckenridge, 403 U. S. 88 (1971); Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235 (1970); Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406-407, n. 1 (1932) (Brandéis, J., dissenting).

The District Court in Monroe ruled in the municipality’s favor, stating: “[S]inee the liability of the City of Chicago is based on the doctrine of res-pondeat superior, and since I have already held that the complaint fails to state a claim for relief against the agents of the city, there is no claim for relief against the city itself.” Record, O. T. 1960, No. 39, p. 30. The Court of Appeals affirmed for the same reason. 272 F. 2d 365-366 (CA7 1959).

Petitioners in this Court also offered an alternative argument that the city of Chicago was a “person” for purposes of § 1983, Brief for Petitioners, O. T. 1960, No. 39, p. 25, but the underlying theory of municipal liability remained one of respondeat superior.

The doctrine of stare decisis advances two important values of a rational system of law: (i) the certainty of legal principles and (ii) the wisdom of the conservative vision that existing rules should be presumed rational and not subject to modification “at any time a new thought seems appealing,” dissenting opinion of Mr. Justice RehNquist, post, at 718; of. O. Holmes, The Common Law 36 (1881). But, at the same time, the law has recognized the necessity of change, lest rules “simply persis[t] from blind imitation of the past.” Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). Any overruling of prior precedent, whether of a constitutional decision or otherwise, disserves to some extent the value of certainty. But I think we owe somewhat less deference to a decision that was rendered without benefit of a full airing of all the relevant considerations. That is the premise of the canon of interpretation that language in a decision not necessary to the holding may be accorded less weight in subsequent cases. I also would recognize - the fact that until this case the Court has not had to confront squarely the consequences of holding § 1983 inapplicable to official municipal policies.

Of course, the mere fact that an issue was not argued or briefed does not undermine the precedential force of a considered holding. Marbury *710v. Madison, 1 Cranch 137 (1803), cited by the dissent, post, at 718, is a case in point. But the Court’s recognition of its power to invalidate legislation not in conformity with constitutional command was essential to its judgment in Marbury. And on numerous subsequent occasions, the Court has been required to apply the full breadth of the Marbury holding. In Monroe, on the other hand, the Court’s rationale was broader than necessary to meet the contentions of the parties and to decide the case in a principled manner. The language in Monroe cannot be dismissed as dicta, but we may take account of the fact that the Court simply was not confronted with the implications of holding § 1983 inapplicable to official municipal policies. It is an appreciation of those implications that has prompted today’s re-examination of the legislative history of the 1871 measure.

In Aldinger v. Howard, 427 U. S. 1, 16 (1976), we reaffirmed Monroe, but petitioner did not contest the proposition that counties were excluded from the reach of § 1983 under Monroe, and the question before us concerned the scope of pendent-party jurisdiction with respect to a state-law claim. Similarly, the parties in Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274 (1977), did not seek a re-examination of our ruling in Monroe.

To the extent that the complaints in those cases asserted claims against the individual defendants in their personal capacity, as well as official capacity, the court would have had authority to award the relief requested. There is no suggestion in the opinions, however, that the practices at issue were anything other than official, duly authorized policies.

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