dissenting.
I would deny the petition for review. The majority decides issues that are not presented for review and does so on a record that will not support its argument. More important, its analysis of the County’s liability under 42 U.S.C. § 1983 reduces policy liability to vicarious liability. I therefore respectfully dissent.
1. The majority voted to grant review of issues B, C, and D of the petition for review. They are as follows:
B. Did the Court of Appeals err in finding the defendant City and County entitled *323to qualified immunity as to plaintiffs § 1983 claim?
C. Do conflicts in the evidence preclude summary judgment as to qualified immunity in this case?
D. Did the conduct of the City of Phoenix, its police officers and/or the County violate a clearly established constitutional right, and if so, would such conduct be uniformly rejected by reasonably competent officials?
Petition for Review at 3-4.
But the majority decides none of these issues. It first affirms the court of appeals’ resolution of the issues in favor of the City of Phoenix and its detectives because there was no constitutional deprivation for which they could be liable. I agree. But the majority’s opinion chiefly discusses Maricopa County’s liability on the basis of policy or custom. Yet that issue is not presented for review. The single sentence referenced in footnote 17 of the majority opinion, ante, at 319, 909 P.2d at 386, is a passing reference in a single paragraph in a 19-page petition which nowhere else alludes to the issue the majority chooses to decide. It is thus not surprising that the County chose not to file a response to the petition for review, because Smith did not raise the issue that was unique to Maricopa County. Maricopa County thus relied upon the response filed'by the City of Phoenix, which included the County’s response that plaintiffs § 1983 claim was properly dismissed because of the “absence of policy of custom of Maricopa County under Monell.” Response to Petition for Review at 14 n. 7.
2. After having chosen to decide the case on an issue not squarely presented, the majority then makes assumptions about the procedural history of the case. It does this, in part, because of the incompleteness of a record on special action. The majority argues that the County did not move for summary judgment on the policy question and that the motion it did make was irrelevant “to the direct liability claim against the County.” Ante, at 318, 909 P.2d at 385. But Smith never pleaded a “direct liability claim against the County.” The complaint is not part of the record in this case.1 (A good reason to deny review.) Had it been, it would show that there was never any direct liability claim alleged against the County. Thus there was never any need for the County to move for summary judgment on a claim that had never been pleaded. What the court characterizes as the County’s failure turns out to be completely explained by the complaint in this case. It provides in relevant part:
(Violation of Civil Rights)
IX
Plaintiff realleges each and every allegation set forth in paragraphs I through VIII, and in addition alleges:
That in the course of participating in the conduct set forth above, one or more or all defendants, specifically including Gregory Edgcombe and/or Michael Sechez and/or John Does I through X, acting under color of law subjected plaintiff to the deprivation of rights, privileges or immunities secured by the Constitution and laws of the United States of America. Defendants knew or should have known that such deprivation would result from the conduct complained of. Such extreme and outrageous conduct constitutes a violation of 42 U.S.C. § 1983 and directly and proximately resulted in injury and damage to the plaintiff as set forth above.
Complaint in CV92-01578 at 8. The “conduct set forth above” referred to state law counts of malicious prosecution, false arrest, false imprisonment, intentional infliction of emotional distress, and breach of contract.
Among the paragraphs incorporated by reference was the following:
*324II
Defendants and each of them are liable for the acts and omissions of their agents and employees acting within the course and scope of their employment and agency under the doctrine of respondeat superior.
Id. at 2.
It is thus plain that Smith’s § 1983 claim against Maricopa County failed to allege the violation of a policy, and in fact alleged vicarious liability under the doctrine of respondeat superior.2
The majority argues that “the County should have focused its summary judgment motion on direct municipal liability, the only theory on which it could be held hable.” Ante, at 318, 909 P.2d at 385. But that is not a theory that the plaintiff alleged. It is thus no surprise that Maricopa County’s motion for partial summary judgment against Smith argued that it could not “be held liable since there is simply no vicarious liability under a § 1983 claim. Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).” Defendant Maricopa County’s Motion for Partial Summary Judgment dated September 17,1993 at 8.
Smith’s response to that motion is not part of the record before us. (Another good reason to deny review.) But in light of the complaint, it was no surprise that the County’s reply addressed vicarious liability and not policy liability. The County moved for summary judgment on the only § 1983 claim made against it. That also explains why the judge did not decide the issue. This is why the County did not raise the policy issue in its special action in the court of appeals. The issue was raised by Smith in his response to the petition for special action in the court of appeals. Smith said:
Despite the assertion to the contrary, no § 1983 claim is made against the petitioner County based on vicarious liability. The actions at issue in this ease were actions taken in accordance with the petitioner County’s customs, practices and policies and were sanctioned by supervisors in the County Attorney’s Office. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and its prohibition against vicarious liability has no applicability to respondent’s claims where the governmental entity’s customs, practices and policies are at issue.
Smith’s Response to Petition for Special Action at 23.
Contrary to the majority’s assertion, so far as we can know from the record, this is the first time in the context of Maricopa County’s 1993 motion for partial summary judgment 3 that Smith claimed not to be making a vicarious liability case against the County. But as we have seen, that is exactly what Smith alleged in his complaint. Faced with this new theory raised in the court of appeals, the County’s reply to the response to the petition for special action briefed the issue at length. Reply in Support of Petition for Special Action at 14-19.
*325It is thus erroneous to complain that the County first addressed municipal liability in its reply brief in the court of appeals, and that it avoided the issue in the trial court and in its initial argument to the court of appeals. Ante, at 319, 909 P.2d at 386. As we have seen, Smith never properly raised the issue in the trial court, the trial judge never decided the issue, and thus there was no occasion for the County to raise the issue in the court of appeals until Smith first raised it. While the County could have moved to dismiss the complaint for failure to state a claim under Rule 12(b)(6), Ariz.R.Civ.P., or even moved for summary judgment because of the absence of a policy driven decision, it surely did not have to. It was reasonable for it to move for summary judgment on the responded superior claim alleged against it.
3. But suppose Smith’s occasional and oblique references properly raised the “policy” issue in the trial court. As the pleading party, he had the obligation to come forward with evidence that there would have been a genuine issue of material fact for trial. There is no such evidence within the meaning of Rule 56(e), Ariz.R.Civ.P., that connects any act by the County with a “policy” as the term is understood for the purposes of § 1983 liability.
The majority’s summary of the law of policy liability reduces it to vicarious liability. At the outset, I acknowledge that this is a difficult area that by its own admission “has left [the Supreme] Court deeply divided.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989). The difficulty is created by trying to reconcile two seemingly contradictory edicts. A municipality, like a corporation, can only act through its agents. But under Monell, a municipality is not liable under § 1983 under the doctrine of respondeat superior. Then when is it liable? Monell instructs us to look at the specific language of § 1983. The statutory limitation is “under color of any statute, ordinance, regulation, custom, or usage.” 42 U.S.C. § 1983. We must therefore look to a statute, ordinance, regulation, custom, or usage. Monell itself characterized these limitations as “official policy.” Id. 436 U.S. at 692, 98 S.Ct. at 2036. Monell involved an official maternity leave policy. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) involved the vote of the City council. St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), involved only the discharge of an employee, not driven by any policy, and thus no claim existed. See id., on remand, 879 F.2d 1573 (8th Cir.1989).
The majority appears to base its understanding of municipal liability upon Jett v. Dallas Indep. Sch. Disk, 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), but stops short of following the opinion. The majority focuses on the identification of a policymaker without acknowledging the need to connect up that policymaker with a decision that itself implements policy and is not ad hoc. The majority concludes that once a trial court determines under state law whether an official is a policymaker, the jury gets to decide whether the decision causes a deprivation of constitutional rights. Ante, at 321, n. 20, 909 P.2d at 388, n. 20. But the majority omits the last part of the quotation it uses from Jett that connects up the identification of the policymaker with policy itself. What follows is the complete statement of the rule, underlining the portions the majority omits.
[I]t is for the jury to determine whether their decisions have caused the deprivation of rights at issue by policies which affirmatively command that it occur, see Monell, m U.S. at 661, n. 2, 98 S.Ct. at 2020, n. 2, or by acquiescence in a long standing practice or custom which constitutes the ‘standard operating procedure’ of the local governmental entity.
491 U.S. at 737, 109 S.Ct. at 2724. (Emphasis added).
Believing that it need not tie the identification of a policymaker to a policy, the majority concludes that the record in this case might create an issue of fact with respect to municipal liability. But it does not. Neither the excerpt from the prosecutor’s log nor anything else of record ties what happened here to a policy, custom, or usage of the County. Thus the majority’s discussion of identification of a policymaker is irrelevant unless there is some connection to a policy driven decision. There is none on this record. As *326the United States Court of Appeals for the Seventh Circuit has said:
If it were enough to point to the agent whose act was the final one in a particular ease, we would have vicarious liability. Action in the course of one’s duty is the basis of vicarious liability. That a particular agent is the apex of a bureaucracy makes the decision ‘final’ but does not forge a link between ‘finality’ and ‘policy.’
Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir.1992).
4. By this point, the problems associated with this record and this ease are manifest. It is for this reason that I voted to deny review. It is for this reason that I continue to believe that we should dismiss this petition as having been improvidently granted. Because the majority decides an important federal question incorrectly, on a petition for review in which the issue is not presented, in a case in which the record is critically incomplete, I respectfully dissent.
. The County and the City moved to supplement their appendix to include the complaint on the day of oral argument in the court of appeals. On that same day, the court denied the motion to supplement and ordered the County and City to pick up their proposed supplements, absent which they would be destroyed. Orders of Jan. 18 and 19, 1994.
We ordinarily would not refer to a filing that is not part of the record. But the majority's assumption about what that filing alleges makes it essential to an understanding of this case.
. While there is no heightened pleading standard for § 1983 complaints against municipalities, Leatherman v. Tarrant County, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the complainant must at least allege injury resulting from official policy, custom or practice. Baxter v. Vigo County School Corp., 26 F.3d 728, 736 (7th Cir. 1994) (upholding the dismissal of a § 1983 claim against a school district because the claim did not contain a "sufficiently specific allegation of a policy or custom.”)
The Ninth Circuit has held that "a claim of municipal liability under section 1983 is sufficient to withstand a motion to dismiss 'even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice.’ ” Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (1988) (quoting Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986). The complaint here did not contain such an allegation.
Even if it were otherwise, once a party pleads more specifically than required, as here by respondeat superior, the opposing party is entitled to rely upon the claim pleaded. Molina v. Richardson, 578 F.2d 846, 848 (9th Cir. 1978) (upholding the dismissal of plaintiff’s § 1983 claim that sought recovery "solely 'by virtue of [the employment] relationship’ between the city and the police officers”) (alteration in original).
. On this record, it is impossible to understand the context within which Smith’s passing reference to "policy” in his 1992 Response and Statement of Facts was made.