OCTOBER TERM, 1996
Syllabus
BOARD OF THE COUNTY COMMISSIONERS OF BRYAN COUNTY, OKLAHOMA
v. BROWN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 95-1100. Argued November 5, 1996-Decided April 28, 1997
Jill Brown (hereinafter respondent) brought this 42 U. S. C. §
1983 damages action against petitioner county, alleging, among
other things, that its Deputy Burns had arrested her with excessive
force, and that it was liable for her injuries because its Sheriff
Moore had hired Burns without adequately reviewing his background.
Burns had pleaded guilty to various driving infractions and other
misdemeanors, including assault and battery. Moore, whom the county
stipulated was its Sheriff's Department policymaker, testified that
he had obtained Burns' driving and criminal records, but had not
closely reviewed either before hiring Burns. The District Court
denied the county's motions for judgment as a matter of law, which
asserted that a policymaker's single hiring decision could not give
rise to § 1983 municipal liability. Respondent prevailed following
a jury trial, and the Fifth Circuit affirmed, holding that the
county was properly found liable based on Moore's decision to hire
Burns.
Held: The county is not liable for Sheriff Moore's
isolated decision to hire Burns without adequate screening, because
respondent has not demonstrated that the decision reflected a
conscious disregard for a high risk that Burns would use excessive
force in violation of respondent's federally protected right. Pp.
402-416.
(a) A municipality may not be held liable under § 1983 solely
because it employs a tortfeasor, see,
e. g., Monell v.
New York City Dept. of Social Servs., 436 U. S. 658, 692.
Instead, the plaintiff must identify a municipal "policy" or
"custom" that caused the injury. See,
e. g., Pem
baur
v.
Cincinnati, 475 U. S. 469, 480-481.
Contrary to respondent's contention, a "policy" giving rise to
liability cannot be established merely by identifying a
policymaker's conduct that is properly attributable to the
municipality. The plaintiff must also demonstrate that, through its
deliberate conduct, the municipality was the "moving force"
behind the injury alleged. See
Monell, supra, at 694. That
is, a plaintiff must show that the municipal action was taken with
the requisite degree of culpability and must demonstrate a direct
causal link between the municipal action and the deprivation of
federal rights. pp. 402-404.
398
(b) Respondent's claim that a policymaker's single facially
lawful hiring decision can trigger municipal liability presents
difficult problems of proof. This Court has recognized a § 1983
cause of action based on a single decision attributable to a
municipality only where the evidence that the municipality had
acted and that the plaintiff had suffered a deprivation of federal
rights also proved fault and causation. See,
e. g.,
Pembaur, supra, at 481. In relying heavily on
Pembaur, respondent blurs the distinction between § 1983
cases that present no difficult fault and causation questions and
those that do. Claims such as the present, which do not involve an
allegation that the municipal action itself violated federal law or
directed or authorized the deprivation of federal rights, require
application of rigorous culpability and causation standards in
order to ensure that the municipality is not held liable solely for
its employees' actions. In
Canton v.
Harris, 489 U. S. 378, for
example, the Court held that a plaintiff seeking to establish
municipal liability on the theory that a facially lawful municipal
action-there, an allegedly inadequate training
program-has
led an employee to violate a plaintiff's rights must demonstrate
that the municipal action was not simply negligent, but was taken
with "deliberate indifference" as to its known or obvious
consequences.
Id., at 388. Respondent's reliance on
Canton for an analogy between failure-to-train cases and
inadequate screening cases is not persuasive. In leaving open the
possibility that municipal liability could be triggered by evidence
of a single violation of federal rights, accompanied by a showing
that the municipality has failed to train its employees to handle
recurring situations presenting an obvious potential for such a
violation,
id., at 390, and n. 10, the
Canton Court
simply hypothesized that, in this narrow range of circumstances,
the violation may be a highly predictable consequence of the
failure to train and thereby justify a finding of "deliberate
indifference" by policymakers. Predicting the consequence of a
single hiring decision, even one based on an inadequate assessment
of a record, is far more difficult. Only where adequate scrutiny of
the applicant's background would lead a reasonable policymaker to
conclude that the plainly obvious consequence of the decision to
hire the applicant would be the deprivation of a third party's
federally protected right can the official's failure to adequately
scrutinize the applicant's background constitute "deliberate
indifference." Neither the District Court nor the Court of Appeals
directly tested whether Burns' background made his use of excessive
force in making an arrest a plainly obvious consequence of the
hiring decision. Pp. 404-412.
(c) Even assuming without deciding that proof of a single
instance of inadequate screening could ever trigger municipal
liability, Moore's failure to scrutinize Burns' record cannot
constitute "deliberate indiffer-
399
ence" to respondent's federally protected right to be free from
the use of excessive force. To test the link between Moore's action
and respondent's injury, it must be asked whether a full review of
Burns' record reveals that Moore should have concluded that Burns'
use of excessive force would be a plainly obvious consequence of
his decision to hire Burns. Respondent's showing on this point was
inadequate because the primary infractions on which she relies to
prove Burns' propensity for violence arose from a single college
fight. A full review of Burns' record might well have led Moore to
conclude that Burns was an extremely poor deputy candidate, but he
would not necessarily have reached that decision
because
Burns' use of excessive force would have been a plainly obvious
consequence of the decision to hire him. The District Court
therefore erred in submitting the inadequate screening theory to
the jury. pp. 412-415.
67 F.3d
1174, vacated and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
SOUTER, J., filed a dissenting opinion, in which STEVENS and
BREYER, JJ., joined,
post, p. 416. BREYER, J., filed a
dissenting opinion, in which STEVENS and GINSBURG, JJ., joined,
post, p. 430.
Wallace B. Jefferson argued the cause for petitioner.
With him on the briefs was
Sharon E. Callaway.
Bryan J. Serr argued the cause for
respondent Brown.
With him on the brief were
J. Kermit Hill and
Duke Walker. *
JUSTICE O'CONNOR delivered the opinion of the Court. Respondent
Jill Brown brought a claim for damages against petitioner Bryan
County under Rev. Stat. § 1979, 42 U. S. C. § 1983. She alleged
that a county police officer used
*Briefs of
amici curiae urging reversal were filed for
the City of New York by
Paul A. Crotty, Leonard J.
Koerner, and
John Hogrogian; for the National
Association of Counties et al. by
Richard Ruda, James I.
Crowley, and
Donald B. Ayer; and for the Washington
Legal Foundation et al. by
Daniel J. Popeo and
Richard A. Samp.
Ogden N. Lewis, James D. Liss, Vincent T. Chang, Michele
S.
Warman, and
Martha Davis filed a brief for the NOW
Legal Defense and Education Fund et al. as
amici curiae
urging affirmance.
400
excessive force in arresting her, and that the county itself was
liable for her injuries based on its sheriff's hiring and training
decisions. She prevailed on her claims against the county following
a jury trial, and the Court of Appeals for the Fifth Circuit
affirmed the judgment against the county on the basis of the hiring
claim alone.
67 F.3d
1174 (1995). We granted certiorari. We conclude that the Court
of Appeals' decision cannot be squared with our recognition that,
in enacting § 1983, Congress did not intend to impose liability on
a municipality unless
deliberate action attributable to the
municipality itself is the "moving force" behind the plaintiff's
deprivation of federal rights.
Monell v.
New York City
Dept. of Social Servs., 436 U. S. 658, 694
(1978).
I
In the early morning hours of May 12, 1991, Jill Brown
(hereinafter respondent) and her husband were driving from Grayson
County, Texas, to their home in Bryan County, Oklahoma. After
crossing into Oklahoma, they approached a police checkpoint. Mr.
Brown, who was driving, decided to avoid the checkpoint and return
to Texas. After seeing the Browns' truck turn away from the
checkpoint, Bryan County Deputy Sheriff Robert Morrison and Reserve
Deputy Stacy Burns pursued the vehicle. Although the parties'
versions of events differ, at trial both deputies claimed that
their patrol car reached speeds in excess of 100 miles per hour.
Mr. Brown testified that he was unaware of the deputies' attempts
to overtake him. The chase finally ended four miles south of the
police checkpoint.
After he got out of the squad car, Deputy Sheriff Morrison
pointed his gun toward the Browns' vehicle and ordered the Browns
to raise their hands. Reserve Deputy Burns, who was unarmed,
rounded the corner of the vehicle on the passenger's side. Burns
twice ordered respondent from the vehicle. When she did not exit,
he used an "arm bar" technique, grabbing respondent's arm at the
wrist and elbow,
401
pulling her from the vehicle, and spinning her to the ground.
Respondent's knees were severely injured, and she later underwent
corrective surgery. Ultimately, she may need knee replacements.
Respondent sought compensation for her injuries under 42 U. S.
C. § 1983 and state law from Burns, Bryan County Sheriff B. J.
Moore, and the county itself. Respondent claimed, among other
things, that Bryan County was liable for Burns' alleged use of
excessive force based on Sheriff Moore's decision to hire Burns,
the son of his nephew. Specifically, respondent claimed that
Sheriff Moore had failed to adequately review Burns' background.
Burns had a record of driving infractions and had pleaded guilty to
various driving-related and other misdemeanors, including assault
and battery, resisting arrest, and public drunkenness. Oklahoma law
does not preclude the hiring of an individual who has committed a
misdemeanor to serve as a peace officer. See Okla. Stat., Tit. 70,
§ 3311(D)(2)(a) (1991) (requiring that the hiring agency certify
that the prospective officer's records do not reflect a felony
conviction). At trial, Sheriff Moore testified that he had obtained
Burns' driving record and a report on Burns from the National Crime
Information Center, but had not closely reviewed either. Sheriff
Moore authorized Burns to make arrests, but not to carry a weapon
or to operate a patrol car.
In a ruling not at issue here, the District Court dismissed
respondent's § 1983 claim against Sheriff Moore prior to trial.
App. 28. Counsel for Bryan County stipulated that Sheriff Moore
"was the policy maker for Bryan County regarding the Sheriff's
Department."
Id., at 30. At the close of respondent's case
and again at the close of all of the evidence, Bryan County moved
for judgment as a matter of law. As to respondent's claim that
Sheriff Moore's decision to hire Burns triggered municipal
liability, the county argued that a single hiring decision by a
municipal policymaker could not give rise to municipal liability
under § 1983.
Id., at 59-60.
402
The District Court denied the county's motions. The court also
overruled the county's objections to jury instructions on the §
1983 claim against the county.
Id., at 125-126, 132.
To resolve respondent's claims, the jury was asked to answer
several interrogatories. The jury concluded that Stacy Burns had
arrested respondent without probable cause and had used excessive
force, and therefore found him liable for respondent's injuries. It
also found that the "hiring policy" and the "training policy" of
Bryan County "in the case of Stacy Burns as instituted by its
policymaker, B. J. Moore," were each "so inadequate as to amount to
deliberate indifference to the constitutional needs of the
Plaintiff."
Id., at 135. The District Court entered judgment
for respondent on the issue of Bryan County's § 1983 liability. The
county appealed on several grounds, and the Court of Appeals for
the Fifth Circuit affirmed.
67 F.3d
1174 (1995). The court held, among other things, that Bryan
County was properly found liable under § 1983 based on Sheriff
Moore's decision to hire Burns.
Id., at 1185. The court
addressed only those points that it thought merited review; it did
not address the jury's determination of county liability based on
inadequate training of Burns,
id., at 1178, nor do we. We
granted certiorari, 517 U. S. 1154 (1996), to decide whether the
county was properly held liable for respondent's injuries based on
Sheriff Moore's single decision to hire Burns. We now
reverse.
II
Title 42 U. S. C. § 1983 provides in relevant part:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party in-
403
jured in an action at law, suit in equity, or other proper
proceeding for redress."
We held in
Monell v.
New York City Dept. of Social
Servs., 436 U. S., at 689, that municipalities and other local
governmental bodies are "persons" within the meaning of § 1983. We
also recognized that a municipality may not be held liable under §
1983 solely because it employs a tortfeasor. Our conclusion rested
partly on the language of § 1983 itself. In light of the statute's
imposition of liability on one who "subjects [a person], or causes
[that person] to be subjected," to a deprivation of federal rights,
we concluded that it "cannot be easily read to impose liability
vicariously on governing bodies solely on the basis of the
existence of an employeremployee relationship with a tortfeasor."
Id., at 692. Our conclusion also rested upon the statute's
legislative history. As stated in
Pembaur v.
Cincinnati, 475 U. S. 469, 479
(1986), "while Congress never questioned its power to impose civil
liability on municipalities for their
own illegal acts,
Congress did doubt its constitutional power to impose such
liability in order to oblige municipalities to control the conduct
of
others" (citing
Monell, supra, at 665-683). We
have consistently refused to hold municipalities liable under a
theory of
respondeat superior. See
Oklahoma City v.
Tuttle, 471 U.
S. 808, 818 (1985) (plurality opinion);
id., at 828
(opinion of Brennan, J.);
Pembaur, supra, at 478-479;
St.
Louis v.
Praprotnik, 485 U. S. 112, 122 (1988)
(plurality opinion);
id., at 137 (opinion of Brennan, J.);
Canton v.
Harris, 489 U. S. 378, 392
(1989).
Instead, in
Monell and subsequent cases, we have required
a plaintiff seeking to impose liability on a municipality under §
1983 to identify a municipal "policy" or "custom" that caused the
plaintiff's injury. See
Monell, supra, at 694;
Pembaur,
supra, at 480-481;
Canton, supra, at 389. Locating a
"policy" ensures that a municipality is held liable only for those
deprivations resulting from the decisions of its duly constituted
legislative body or of those officials whose acts
404
may fairly be said to be those of the municipality.
Monell,
supra, at 694. Similarly, an act performed pursuant to a
"custom" that has not been formally approved by an appropriate
decisionmaker may fairly subject a municipality to liability on the
theory that the relevant practice is so widespread as to have the
force of law. 436 U. S., at 690-691 (citing
Adickes v. S.
H. Kress &
Co., 398 U. S. 144, 167-168
(1970)).
The parties join issue on whether, under
Monell and
subsequent cases, a single hiring decision by a county sheriff can
be a "policy" that triggers municipal liability. Relying on our
decision in
Pembaur, respondent claims that a single act by
a decisionmaker with final authority in the relevant area
constitutes a "policy" attributable to the municipality itself. So
long as a § 1983 plaintiff identifies a decision properly
attributable to the municipality, respondent argues, there is no
risk of imposing
respondeat superior liability. Whether that
decision was intended to govern only the situation at hand or to
serve as a rule to be applied over time is immaterial. Rather,
under respondent's theory, identification of an act of a proper
municipal decisionmaker is all that is required to ensure that the
municipality is held liable only for its own conduct. The Court of
Appeals accepted respondent's approach.
As our § 1983 municipal liability jurisprudence illustrates,
however, it is not enough for a § 1983 plaintiff merely to identify
conduct properly attributable to the municipality. The plaintiff
must also demonstrate that, through its
deliberate conduct,
the municipality was the "moving force" behind the injury alleged.
That is, a plaintiff must show that the municipal action was taken
with the requisite degree of culpability and must demonstrate a
direct causal link between the municipal action and the deprivation
of federal rights.
Where a plaintiff claims that a particular municipal action
itself violates federal law, or directs an employee to do
so, resolving these issues of fault and causation is
straightfor-
405
ward. Section 1983 itself "contains no state-of-mind requirement
independent of that necessary to state a violation" of the
underlying federal right.
Daniels v.
Williams,
474 U. S. 327,
330 (1986). In any § 1983 suit, however, the plaintiff must
establish the state of mind required to prove the underlying
violation. Accordingly, proof that a municipality's legislative
body or authorized decisionmaker has intentionally deprived a
plaintiff of a federally protected right necessarily establishes
that the municipality acted culpably. Similarly, the conclusion
that the action taken or directed by the municipality or its
authorized decisionmaker itself violates federal law will also
determine that the municipal action was the moving force behind the
injury of which the plaintiff complains.
Sheriff Moore's hiring decision was itself legal, and Sheriff
Moore did not authorize Burns to use excessive force. Respondent's
claim, rather, is that a single facially lawful hiring decision can
launch a series of events that ultimately cause a violation of
federal rights. Where a plaintiff claims that the municipality has
not directly inflicted an injury, but nonetheless has caused an
employee to do so, rigorous standards of culpability and causation
must be applied to ensure that the municipality is not held liable
solely for the actions of its employee. See
Canton, supra,
at 391-392;
Tuttle, supra, at 824 (plurality opinion). See
also
Springfield v.
Kibbe, 480 U. S. 257, 270-271
(1987)
(per curiam) (dissent from dismissal of writ as
improvidently granted).
In relying heavily on
Pembaur, respondent blurs the
distinction between § 1983 cases that present no difficult
questions of fault and causation and those that do. To the extent
that we have recognized a cause of action under § 1983 based on a
single decision attributable to a municipality, we have done so
only where the evidence that the municipality had acted and that
the plaintiff had suffered a deprivation of federal rights also
proved fault and causation. For example,
Owen v.
Independence, 445 U. S. 622 (1980), and
Newport v.
406
Fact Concerts, Inc., 453 U. S. 247 (1981),
involved formal decisions of municipal legislative bodies. In
Owen, the city council allegedly censured and discharged an
employee without a hearing. 445 U. S., at 627-629, 633, and n. 13.
In
Fact Concerts, the city council canceled a license
permitting a concert following a dispute over the performance's
content. 453 U. S., at 252. Neither decision reflected
implementation of a generally applicable rule. But we did not
question that each decision, duly promulgated by city lawmakers,
could trigger municipal liability if the decision itself were found
to be unconstitutional. Because fault and causation were obvious in
each case, proof that the municipality's decision was
unconstitutional would suffice to establish that the municipality
itself was liable for the plaintiff's constitutional injury.
Similarly,
Pembaur v.
Cincinnati concerned a
decision by a county prosecutor, acting as the county's final
decisionmaker, 475 U. S., at 485, to direct county deputies to
forcibly enter petitioner's place of business to serve
capiases upon third parties. Relying on
Owen and
Newport, we concluded that a final decisionmaker's adoption
of a course of action "tailored to a particular situation and not
intended to control decisions in later situations" may, in some
circumstances, give rise to municipal liability under § 1983. 475
U. S., at 481. In
Pembaur, it was not disputed that the
prosecutor had specifically directed the action resulting in the
deprivation of petitioner's rights. The conclusion that the
decision was that of a final municipal decisionmaker and was
therefore properly attributable to the municipality established
municipal liability. No questions of fault or causation arose.
Claims not involving an allegation that the municipal action
itself violated federal law, or directed or authorized the
deprivation of federal rights, present much more difficult problems
of proof. That a plaintiff has suffered a deprivation of federal
rights at the hands of a municipal employee will not alone permit
an inference of municipal culpability and causation; the plaintiff
will simply have shown that the
407
employee acted culpably. We recognized these difficulties
in
Canton v.
Harris, where we considered a claim that
inadequate training of shift supervisors at a city jail led to a
deprivation of a detainee's constitutional rights. We held that,
quite apart from the state of mind required to establish the
underlying constitutional violation-in that case, a violation of
due process, 489 U. S., at 388-389, n. 8-a plaintiff seeking to
establish municipal liability on the theory that a facially lawful
municipal action has led an employee to violate a plaintiff's
rights must demonstrate that the municipal action was taken with
"deliberate indifference" as to its known or obvious consequences.
Id., at 388. A showing of simple or even heightened
negligence will not suffice.
We concluded in
Canton that an "inadequate training"
claim could be the basis for § 1983 liability in "limited
circumstances."
Id., at 387. We spoke, however, of a
deficient training "program," necessarily intended to apply over
time to multiple employees.
Id., at 390. Existence of a
"program" makes proof of fault and causation at least possible in
an inadequate training case. If a program does not prevent
constitutional violations, municipal decisionmakers may eventually
be put on notice that a new program is called for. Their continued
adherence to an approach that they know or should know has failed
to prevent tortious conduct by employees may establish the
conscious disregard for the consequences of their action-the
"deliberate indifference"-necessary to trigger municipal liability.
Id., at 390, n. 10 ("It could ... be that the police, in
exercising their discretion, so often violate constitutional rights
that the need for further training must have been plainly obvious
to the city policymakers, who, nevertheless, are 'deliberately
indifferent' to the need");
id., at 397 (O'CONNOR, J.,
concurring in part and dissenting in part) ("[MJunicipalliability
for failure to train may be proper where it can be shown that
policymakers were aware of, and acquiesced in, a pattern of
constitutional violations ... "). In addition, the existence of a
pattern of
408
tortious conduct by inadequately trained employees may tend to
show that the lack of proper training, rather than a one-time
negligent administration of the program or factors peculiar to the
officer involved in a particular incident, is the "moving force"
behind the plaintiff's injury. See
id., at 390-391.
Before trial, counsel for Bryan County stipulated that Sheriff
Moore "was the policy maker for Bryan County regarding the
Sheriff's Department." App. 30. Indeed, the county sought to avoid
liability by claiming that its Board of Commissioners participated
in no policy decisions regarding the conduct and operation of the
office of the Bryan County Sheriff.
Id., at 32. Accepting
the county's representations below, then, this case presents no
difficult questions concerning whether Sheriff Moore has final
authority to act for the municipality in hiring matters. Cf.
Jett v.
Dallas Independent School Dist., 491 U. S. 701 (1989);
St. Louis v.
Praprotnik, 485 U. S. 112 (1988).
Respondent does not claim that she can identify any pattern of
injuries linked to Sheriff Moore's hiring practices. Indeed,
respondent does not contend that Sheriff Moore's hiring practices
are generally defective. The only evidence on this point at trial
suggested that Sheriff Moore had adequately screened the
backgrounds of all prior deputies he hired. App. 106-110.
Respondent instead seeks to trace liability to what can only be
described as a deviation from Sheriff Moore's ordinary hiring
practices. Where a claim of municipal liability rests on a single
decision, not itself representing a violation of federal law and
not directing such a violation, the danger that a municipality will
be held liable without fault is high. Because the decision
necessarily governs a single case, there can be no notice to the
municipal decisionmaker, based on previous violations of federally
protected rights, that his approach is inadequate. Nor will it be
readily apparent that the municipality's action caused the injury
in question, because the plaintiff can point to no other incident
tending to make it more likely that the
409
plaintiff's own injury flows from the municipality's action,
rather than from some other intervening cause.
In
Canton, we did not foreclose the possibility that
evidence of a single violation of federal rights, accompanied by a
showing that a municipality has failed to train its employees to
handle recurring situations presenting an obvious potential for
such a violation, could trigger municipal liability. 489 U. S., at
390, and n. 10 ("[I]t may happen that in light of the duties
assigned to specific officers or employees the need for more or
different training is so obvious ... that the policymakers of the
city can reasonably be said to have been deliberately indifferent
to the need"). Respondent purports to rely on
Canton,
arguing that Burns' use of excessive force was the plainly obvious
consequence of Sheriff Moore's failure to screen Burns' record. In
essence, respondent claims that this showing of "obviousness" would
demonstrate both that Sheriff Moore acted with conscious disregard
for the consequences of his action and that the Sheriff's action
directly caused her injuries, and would thus substitute for the
pattern of injuries ordinarily necessary to establish municipal
culpability and causation.
The proffered analogy between failure-to-train cases and
inadequate screening cases is not persuasive. In leaving open in
Canton the possibility that a plaintiff might succeed in
carrying a failure-to-train claim without showing a pattern of
constitutional violations, we simply hypothesized that, in a narrow
range of circumstances, a violation of federal rights may be a
highly predictable consequence of a failure to equip law
enforcement officers with specific tools to handle recurring
situations. The likelihood that the situation will recur and the
predictability that an officer lacking specific tools to handle
that situation will violate citizens' rights could justify a
finding that policymakers' decision not to train the officer
reflected "deliberate indifference" to the obvious consequence of
the policymakers' choice-namely, a violation of a specific
constitutional or statutory right. The high degree
410
of predictability may also support an inference of causationthat
the municipality's indifference led directly to the very
consequence that was so predictable.
Where a plaintiff presents a § 1983 claim premised upon the
inadequacy of an official's review of a prospective applicant's
record, however, there is a particular danger that a municipality
will be held liable for an injury not directly caused by a
deliberate action attributable to the municipality itself. Every
injury suffered at the hands of a municipal employee can be traced
to a hiring decision in a "but-for" sense:
But for the municipality's decision to hire the employee, the
plaintiff would not have suffered the injury. To prevent
municipalliability for a hiring decision from collapsing into
respondeat superior liability, a court must carefully test
the link between the policymaker's inadequate decision and the
particular injury alleged.
In attempting to import the reasoning of
Canton into the
hiring context, respondent ignores the fact that predicting the
consequence of a single hiring decision, even one based on an
inadequate assessment of a record, is far more difficult than
predicting what might flow from the failure to train a single law
enforcement officer as to a specific skill necessary to the
discharge of his duties. As our decision in
Canton makes
clear, "deliberate indifference" is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or
obvious consequence of his action. Unlike the risk from a
particular glaring omission in a training regimen, the risk from a
single instance of inadequate screening of an applicant's
background is not "obvious" in the abstract; rather, it depends
upon the background of the applicant. A lack of scrutiny may
increase the likelihood that an unfit officer will be hired, and
that the unfit officer will, when placed in a particular position
to affect the rights of citizens, act improperly. But that is only
a generalized showing of risk. The fact that inadequate scrutiny of
an applicant's background would make a violation of rights more
likely cannot alone
411
give rise to an inference that a policymaker's failure to
scrutinize the record of a particular applicant produced a specific
constitutional violation. After all, a full screening of an
applicant's background might reveal no cause for concern at all; if
so, a hiring official who failed to scrutinize the applicant's
background cannot be said to have consciously disregarded an
obvious risk that the officer would subsequently inflict a
particular constitutional injury.
We assume that a jury could properly find in this case that
Sheriff Moore's assessment of Burns' background was inadequate.
Sheriff Moore's own testimony indicated that he did not inquire
into the underlying conduct or the disposition of any of the
misdemeanor charges reflected on Burns' record before hiring him.
But this showing of an instance of inadequate screening is not
enough to establish "deliberate indifference." In layman's terms,
inadequate screening of an applicant's record may reflect
"indifference" to the applicant's background. For purposes of a
legal inquiry into municipal liability under § 1983, however, that
is not the
relevant "indifference." A plaintiff must
demonstrate that a municipal decision reflects deliberate
indifference to the risk that a violation of a particular
constitutional or statutory right will follow the decision. Only
where adequate scrutiny of an applicant's background would lead a
reasonable policymaker to conclude that the plainly obvious
consequence of the decision to hire the applicant would be the
deprivation of a third party's federally protected right can the
official's failure to adequately scrutinize the applicant's
background constitute "deliberate indifference."
Neither the District Court nor the Court of Appeals directly
tested the link between Burns' actual background and the risk that,
if hired, he would use excessive force. The District Court
instructed the jury on a theory analogous to that reserved in
Canton. The court required respondent to prove that Sheriff
Moore's inadequate screening of Burns' background was "so likely to
result in
violations of constitu-
412
tional rights" that the Sheriff could "reasonably [be]
said to have been deliberately indifferent to the
constitutional
needs of the Plaintiff." App. 123 (emphasis added). The court
also instructed the jury, without elaboration, that respondent was
required to prove that the "inadequate hiring ... policy directly
caused the Plaintiff's injury."
Ibid.
As discussed above, a finding of culpability simply cannot
depend on the mere probability that any officer inadequately
screened will inflict any constitutional injury. Rather, it must
depend on a finding that
this officer was highly likely to
inflict the
particular injury suffered by the plaintiff. The
connection between the background of the particular applicant and
the specific constitutional violation alleged must be strong. What
the District Court's instructions on culpability, and therefore the
jury's finding of municipal liability, failed to capture is whether
Burns' background made his use of excessive force in making an
arrest a plainly obvious consequence of the hiring decision. The
Court of Appeals' affirmance of the jury's finding of municipal
liability depended on its view that the jury could have found that
"inadequate screening of
a deputy could likely result in the
violation of
citizens' constitutional rights." 67 F. 3d, at
1185 (emphasis added). Beyond relying on a risk of violations of
unspecified constitutional rights, the Court of Appeals also
posited that Sheriff Moore's decision reflected indifference to
"the public's welfare."
Id., at 1184.
Even assuming without deciding that proof of a single instance
of inadequate screening could ever trigger municipal liability, the
evidence in this case was insufficient to support a finding that,
in hiring Burns, Sheriff Moore disregarded a known or obvious risk
of injury. To test the link between Sheriff Moore's hiring decision
and respondent's injury, we must ask whether a full review of
Burns' record reveals that Sheriff Moore should have concluded that
Burns' use of excessive force would be a plainly obvious
consequence of the
413
hiring decision.1 On this point, respondent's showing was
inadequate. To be sure, Burns' record reflected various misdemeanor
infractions. Respondent claims that the record demonstrated such a
strong propensity for violence that Burns' application of excessive
force was highly likely. The primary charges on which respondent
relies, however, are those arising from a fight on a college campus
where Burns was a student. In connection with this single incident,
Burns was charged with assault and battery, resisting arrest, and
public drunkenness.2 In January 1990, when he pleaded
1 In suggesting that our decision complicates this Court's §
1983 municipal liability jurisprudence by altering the
understanding of culpability, JUSTICE SOUTER and JUSTICE BREYER
misunderstand our approach.
Post, at 422;
post, at
430, 433-434. We do not suggest that a plaintiff in an inadequate
screening case must show a higher degree of culpability than the
"deliberate indifference" required in
Canton v.
Harris, 489 U.
S. 378 (1989); we need not do so, because, as discussed below,
respondent has not made a showing of deliberate indifference here.
See
infra this page and 414. Furthermore, in assessing the
risks of a decision to hire a particular individual, we draw no
distinction between what is "so obvious" or "so likely to occur"
and what is "plainly obvious." The difficulty with the lower
courts' approach is that it fails to connect the background of the
particular officer hired in this case to the particular
constitutional violation the respondent suffered.
Supra, at
412. Ensuring that lower courts link the background of the officer
to the constitutional violation alleged does not complicate our
municipal liability jurisprudence with degrees of "obviousness,"
but seeks to ensure that a plaintiff in an inadequate screening
case establishes a policymaker's deliberate indifference-that is,
conscious disregard for the known and obvious consequences of his
actions.
2JUSTICE SOUTER implies that Burns' record reflected assault and
battery charges arising from more than one incident.
Post,
at 428. There has never been a serious dispute that a single
misdemeanor assault and battery conviction arose out of a single
campus fight. Nor did petitioner's expert testify that the record
reflected any assault charge without a disposition, see 9 Record
535-536, although JUSTICE SOUTER appears to suggest otherwise,
post, at 428-429, n. 6.
In fact, respondent's own expert witness testified that Burns'
record reflected a single assault conviction. 7 Record 318; see
also
id., at 320. Petitioner has repeatedly so claimed. See,
e. g., Suggestion for Rehearing En Banc in No.
93-5376
(CA5), p. 12 ("Burns had one misdemeanor assault
414
guilty to those charges, Burns also pleaded guilty to various
driving-related offenses, including nine moving violations and a
charge of driving with a suspended license. In addition, Burns had
previously pleaded guilty to being in actual physical control of a
vehicle while intoxicated.
The fact that Burns had pleaded guilty to traffic offenses and
other misdemeanors may well have made him an extremely poor
candidate for reserve deputy. Had Sheriff Moore fully reviewed
Burns' record, he might have come to precisely that conclusion. But
unless he would necessarily have reached that decision
because Burns' use of excessive force would have been a
plainly obvious consequence of the hiring decision, Sheriff Moore's
inadequate scrutiny of Burns' record cannot constitute "deliberate
indifference" to respondent's federally protected right to be free
from a use of excessive force.
JUSTICE SOUTER'S reading of the case is that the jury believed
that Sheriff Moore in fact read Burns' entire record.
Post,
at 426-427. That is plausible, but it is also irrelevant. It is not
sufficient for respondent to show that Sheriff Moore read Burns'
record and therefore hired Burns with knowledge of his background.
Such a decision may reflect indif-
conviction stemming from a campus fight"); Pet. for Rehearing of
Substituted Opinion in No. 93-5376
(CA5), p. 11 (same); 3
Record 927 (Brief in Support of Defendants' Motion for Judgment
Notwithstanding the Verdict 10); Pet. for Cert. 16 ("Burns pled
guilty to assault and battery" as a result of "one campus
fight").
Respondent has not once contested this characterization. See,
e. g., 3 Record 961 (Brief in Support of
Plaintiff's Response to Defendants' Motion for Judgment
Notwithstanding the Jury Verdict 4); Brief for Appellee/
Cross-Appellant Brown et al. in No. 93-5376
(CA5), pp. 3-4;
Brief in Opposition 1. Indeed, since the characterization is
reflected in the county's petition for certiorari, under this
Court's Rule 15(2) respondent would have had an obligation in her
brief in opposition to correct "any perceived misstatement" in the
petition. She did not. Involvement in a single fraternity fracas
does not demonstrate "a proclivity to violence against the person."
Post, at 429, n. 6.
415
ference to Burns'
record, but what is required is
deliberate indifference to a plaintiff's constitutional right. That
is, whether Sheriff Moore failed to examine Burns' record,
partially examined it, or fully examined it, Sheriff Moore's hiring
decision could not have been "deliberately indifferent" unless in
light of that record Burns' use of excessive force would have been
a plainly obvious consequence of the hiring decision. Because there
was insufficient evidence on which a jury could base a finding that
Sheriff Moore's decision to hire Burns reflected conscious
disregard of an obvious risk that a use of excessive force would
follow, the District Court erred in submitting respondent's
inadequate screening claim to the jury.
III
Cases involving constitutional injuries allegedly traceable to
an ill-considered hiring decision pose the greatest risk that a
municipality will be held liable for an injury that it did not
cause. In the broadest sense, every injury is traceable to a hiring
decision. Where a court fails to adhere to rigorous requirements of
culpability and causation, municipal liability collapses into
respondeat superior liability. As we recognized in
Monell and have repeatedly reaffirmed, Congress did not
intend municipalities to be held liable unless
deliberate
action attributable to the municipality directly caused a
deprivation of federal rights. A failure to apply stringent
culpability and causation requirements raises serious federalism
concerns, in that it risks constitutionalizing particular hiring
requirements that States have themselves elected not to impose. Cf.
Canton v.
Harris, 489 U. S., at 392. Bryan County is
not liable for Sheriff Moore's isolated decision to hire Burns
without adequate screening, because respondent has not demonstrated
that his decision reflected a conscious disregard for a high risk
that Burns would use excessive force in violation of respondent's
federally pro-
416
tected right. We therefore vacate the judgment of the Court of
Appeals and remand this case for further proceedings consistent
with this opinion.
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE BREYER
join, dissenting.
In
Pembaur v.
Cincinnati, 475 U. S. 469, 480
(1986), we held a municipality liable under 42 U. S. C. § 1983 for
harm caused by the single act of a policymaking officer in a matter
within his authority but not covered by a policy previously
identified. The central question presented here is whether that
rule applies to a single act that itself neither violates nor
commands a violation of federal law. The answer is yes if the
single act amounts to deliberate indifference to a substantial risk
that a violation of federal law will result. With significant
qualifications, the Court assumes so, too, in theory, but it raises
such skeptical hurdles to reaching any such conclusion in practice
that it virtually guarantees its disposition of this case: it holds
as a matter of law that the sheriff's act could not be thought to
reflect deliberate indifference to the risk that his subordinate
would violate the Constitution by using excessive force. I
respectfully dissent as much from the level of the Court's
skepticism as from its reversal of the judgment.
I
Monell v.
New York City Dept. of Social Servs.,
436 U. S. 658
(1978), overruled
Monroe v.
Pape, 365 U. S. 167 (1961),
insofar as
Monroe had held § 1983 inapplicable to
governments beneath the state level ("municipal," for short).
Monell, supra, at 663. At the same time that we decided
Congress meant municipalities to be persons subject to § 1983,
however, we also concluded that municipal liability under the
statute could not be based on the traditional theory of
respondeat superior. 436 U. S., at 691. We said that for
417
purposes of § 1983 an act could not be attributed to a
municipality merely because it was an act of a municipal agent
performed in the course of exercising a power delegated to the
municipality by local law, and we reasoned instead that "it is
[only] when execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983."
Id.,
at 694; see
Pembaur, supra, at 480.
In assigning municipal liability under
Monell, we
accordingly distinguish an act of a municipal agent without
independent authority to establish policy from the act of one
authorized to set policy under local law, and we likewise
distinguish the acts of lower level employees depending on whether
they do or do not implement or manifest a policy set by those with
the authority to set it. The act of the municipality is the act
only of an authorized policymaker or of an employee following the
policymaker's lead. "The 'official policy' requirement was intended
to distinguish acts of the
municipality from acts of
employees of the municipality, and thereby make clear that
municipal liability is limited to action for which the municipality
is actually responsible."
Pembaur, supra, at 479-480.
While this overview indicates that the policy requirement may be
satisfied in more than one way, there are in fact three
alternatives discernible in our prior cases. It is certainly met
when the appropriate officer or entity promulgates a generally
applicable statement of policy and the subsequent act complained of
is simply an implementation of that policy.
Monell
exemplified these circumstances, where city agencies had issued a
rule requiring pregnant employees to take unpaid leaves of absence
before any medical need arose.
Monell, supra, at
660-661.
We have also held the policy requirement satisfied where no rule
has been announced as "policy" but federal law has
418
been violated by an act of the policymaker itself. In this
situation, the choice of policy and its implementation are one, and
the first or only action will suffice to ground municipal liability
simply because it is the very policymaker who is acting. See
Pembaur, supra, at 480-481; cf.
Newport v.
Fact
Concerts, Inc., 453 U. S. 247, 250-252
(1981) (implicitly assuming that a policymaker's single act can
sustain § 1983 action);
Owen v.
Independence,
445 U. S. 622,
625-630 (1980) (same). It does not matter that the policymaker may
have chosen "a course of action tailored [only] to a particular
situation and not intended to control decisions in later
situations,"
Pembaur, 475 U. S., at 481; if the decision to
adopt that particular course of action is intentionally made by the
authorized policymaker, "it surely represents an act of official
government 'policy'" and "the municipality is equally responsible
whether that action is to be taken only once or to be taken
repeatedly,"
ibid.
We have, finally, identified a municipal policy in a third
situation, even where the policymaker has failed to act
affirmatively at all, so long as the need to take some action to
control the agents of the government "is so obvious, and the
inadequacy [of existing practice] so likely to result in the
violation of constitutional rights, that the policymake[r] ... can
reasonably be said to have been deliberately indifferent to the
need."
Canton v.
Harris, 489 U. S. 378, 390
(1989). Where, in the most obvious example, the policymaker sits on
his hands after repeated, unlawful acts of subordinate officers and
that failure "evidences a 'deliberate indifference' to the rights
of [the municipality's] inhabitants,"
id., at 389, the
policymaker's toleration of the subordinates' behavior establishes
a policy-in-practice just as readily attributable to the
municipality as the one-act policy-in-practice described above.
Such a policy choice may be inferred even without a pattern of acts
by subordinate officers, so long as the need for action by the
policymaker is so obvious that the failure to act rises to
deliberate indifference.
Id., at 390, n. 10.
419
Deliberate indifference is thus treated, as it is elsewhere in
the law,l as tantamount to intent, so that inaction by a
policymaker deliberately indifferent to a substantial risk of harm
is equivalent to the intentional action that setting policy
presupposes. Compare
Pembaur, supra, at 483 (plurality
opinion of Brennan, J.) ("deliberate choice" by policymaker), and
Oklahoma City v.
Tuttle, 471 U. S. 808, 823 (1985)
(plurality opinion of REHNQUIST, J.) (" 'policy' generally implies
a course of action consciously chosen"), with
Canton, supra,
at 389 ("Only where a municipality's failure to train its employees
... evidences a 'deliberate indifference' to the rights of its
inhabitants can ... a shortcoming be ... city 'policy or custom'
... actionable under § 1983").
Under this prior law, Sheriff Moore's failure to screen out his
21-year-old great-nephew Burns on the basis of his criminal record,
and the decision instead to authorize Burns to act as a deputy
sheriff, constitutes a policy choice attributable to Bryan County
under § 1983. There is no serious dispute that Sheriff Moore is the
designated policymaker for implementing the sheriff's law
enforcement powers and recruiting officers to exercise them, or
that he "has final authority to act for the municipality in hiring
matters."
Ante, at 408. As the authorized policymaker,
Sheriff Moore is the county
1 See,
e. g., American Law Institute, Model Penal
Code § 2.02(2)(c) (1985) ("A person acts recklessly with respect to
a material element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element exists
or will result from his conduct");
J. I. Case Credit
Corp. v.
First Nat. Bank of Madison Cty., 991 F.2d
1272, 1278
(CA7 1993) ("To consciously ignore or to
deliberately close one's eyes to a manifest danger is recklessness,
a mental state that the law commonly substitutes for intent or
actual knowledge"). Cf.
Estelle v.
Gamble, 429 U. S.
97, 105-106 (1976) (deliberate indifference to a prisoner's serious
medical needs violates the Eighth Amendment);
United States
v.
Giovannetti, 919 F.2d
1223, 1228
(CA7 1990) (a "deliberate effort to avoid
guilty knowledge is all the guilty knowledge the law requires");
United States v.
Jewell, 532 F.2d
697, 700
(CA9), cert. denied, 426 U. S. 951 (1976)
("[D]eliberate ignorance and positive knowledge are equally
culpable").
420
for purposes of § 1983 municipal liability arising from the
sheriff's department's exercise of law enforcement authority. As I
explain in greater detail below, it was open to the jury to find
that the sheriff knew of the record of his nephew's violent
propensity, but hired him in deliberate indifference to the risk
that he would use excessive force on the job, as in fact he later
did. That the sheriff's act did not itself command or require
commission of a constitutional violation (like the order to perform
an unlawful entry and search in
Pembaur) is not dispositive
under § 1983, for we have expressly rejected the contention that
"only unconstitutional policies are actionable" under § 1983,
Canton, supra, at 387, and have never suggested that
liability under the statute is otherwise limited to policies that
facially violate other federal law. The sheriff's policy choice
creating a substantial risk of a constitutional violation therefore
could subject the county to liability under existing
precedent.2
II
At the level of theory, at least, the Court does not disagree,
and it assumes for the sake of deciding the case that a single,
facially neutral act of deliberate indifference by a policymaker
could be a predicate to municipal liability if it led to an
unconstitutional injury inflicted by subordinate officers. See
ante, at 412. At the level of practice, however, the tenor
of the Court's opinion is decidedly different: it suggests that
2 Given the sheriff's position as law enforcement policymaker,
it is simply off the point to suggest, as the Court does, that
there is some significance in either the fact that Sheriff Moore's
failure to screen may have been a "deviation" from his ordinary
hiring practices or that a pattern of injuries resulting from his
past practices is absent. See
ante, at 408.
Pembaur
made clear that a single act by a designated policymaker is
sufficient to establish a municipal policy, see
Pembaur v.
Cincinnati, 475 U. S. 469, 480-481
(1986), and
Canton explained, as the Court recognizes, see
ante, at 409, that evidence of a single violation of federal
rights can trigger municipal liability under § 1983, see
Canton v.
Harris, 489 U. S. 378, 390, n. 10
(1989). See Part II-B,
infra.
421
the trial court insufficiently appreciated the specificity of
the risk to which such indifference must be deliberate in order to
be actionable; it expresses deep skepticism that such appreciation
of risk could ever reasonably be attributed to the policymaker who
has performed only a single unsatisfactory, but not facially
unconstitutional, act; and it finds the record insufficient to make
any such showing in this case. The Court is serially mistaken. This
case presents no occasion to correct or refine the District Court's
jury instructions on the degree of risk required for deliberate
indifference; the Court's skepticism converts a newly demanding
formulation of the standard of fault into a virtually categorical
impossibility of showing it in a case like this; and the record in
this case is perfectly sufficient to support the jury's verdict
even on the Court's formulation of the high degree of risk that
must be shown.
A
The Court is certainly correct in emphasizing the need to show
more than mere negligence on the part of the policymaker, for at
the least the element of deliberateness requires both subjective
appreciation of a risk of unconstitutional harm, and a risk
substantial enough to justify the heightened responsibility that
deliberate indifference generally entails. The Court goes a step
further, however, in requiring that the "particular" harmful
consequence be "plainly obvious" to the policymaker,
ante,
at 411, a characterization of deliberate indifference adapted from
dicta set forth in a footnote in
Canton, see 489 U. S., at
390, n. 10.
Canton, as mentioned above, held that a
municipal policy giving rise to liability under § 1983 may be
inferred even when the policymaker has failed to act affirmatively
at all, so long as a need to control the agents of the government
"is so obvious, and the inadequacy [of existing practice] so likely
to result in the violation of constitutional rights, that the
policymake[r] ... can reasonably be said to have been deliberately
indifferent to the need."
Id., at 390. While we speculated
in
Canton that
422
"[i]t could ... be that the police, in exercising their
discretion, so often violate constitutional rights that the need
for further training must have been plainly obvious to the city
policymakers, who, nevertheless, are 'deliberately indifferent' to
the need," see
id., at 390, n. 10, we did not purport to be
defining the fault of deliberate indifference universally as the
failure to act in relation to a "plainly obvious consequence" of
harm. Nor did we, in addressing the requisite risk that
constitutional violations will occur, suggest that the deliberate
indifference necessary to establish municipal liability must be, as
the Court says today, indifference to the particular constitutional
violation that in fact occurred.
The Court's formulation that deliberate indifference exists only
when the risk of the subsequent, particular constitutional
violation is a plainly obvious consequence of the hiring decision,
see
ante, at 411, while derived from
Canton, is thus
without doubt a new standard. See
post, at 433-434 (BREYER,
J., dissenting). As to the "particular" violation, the Court alters
the understanding of deliberate indifference as set forth in
Canton, where we spoke of constitutional violations
generally.3 As to "plainly obvious consequence," the Court's
standard appears to be somewhat higher, for example, than the
standard for "reckless" fault in the criminal law, where the
requisite indifference to risk is defined as that which
"consciously disregards a substantial and unjustifiable risk that
the material element exists or will result ... [and] involves a
gross deviation from the standard of conduct that a law-abiding
person would observe in the actor's situation." See American Law
Institute, Model Penal Code § 2.02(2)(c) (1985).
3 The Court's embellishment on the deliberate indifference
standard is, in any case, no help in resolving this case because
there has never been any suggestion that Deputy Burns's criminal
background, including charges of assault and battery, indicated
that he would commit a constitutional violation different from the
one he in fact committed.
423
That said, it is just possible that our prior understanding of
the requisite degree of fault and the standard as the Court now
states it may in practice turn out to amount to much the same
thing, but I would have preferred an argument addressing the point
before ruling on it. There was, however, no such argument here for
the simple reason that petitioner never asked that deliberate
indifference be defined to occur only when the particular
constitutional injury was the plainly obvious consequence of the
policymaker's act. Petitioner merely asked the District Court to
instruct the jury to determine whether Sheriff Moore acted with
"conscious indifference," see 2 Record 342, and made no objection
to the District Court's charge that "Sheriff B. J. Moore would have
acted with deliberate indifference in adopting an otherwise
constitutional hiring policy for a deputy sheriff if the need for
closer scrutiny of Stacy Burns' background was so obvious and the
inadequacy of the scrutiny given so likely to result in violations
of constitutional rights, that Sheriff B. J. Moore can be
reasonably said to have been deliberately indifferent to the
constitutional needs of the Plaintiff." 10 Record 800-801. If, as
it appears, today's standard does raise the threshold of municipal
liability, it does so quite independently of any issue posed or
decided in the trial court.
B
The Court's skepticism that the modified standard of fault can
ever be met in a single-act case of inadequate screening without a
patently unconstitutional policy,
ante, at 412-414, both
reveals the true value of the assumption that in theory there might
be municipal liability in such a case, and dictates the result of
the Court's review of the record in the case before us. It is
skepticism gone too far.
It is plain enough that a facially unconstitutional policy is
likely to produce unconstitutional injury, see,
e.
g., Pembaur, 475 U. S., at 480-481;
Monell,
436 U. S., at 660-661, and obvious, too, that many facially neutral
policy decisions evince
424
no such clear portents. Written standards for hiring law
enforcement personnel might be silent on the significance of a
prior criminal record without justifying much worry about employing
axe murderers (who are unlikely to apply) or subjecting the public
to attacks by someone with a 30-year-old assault conviction (who
has probably grown up). But a policymaker need not mandate injury
to be indifferent to its risk when obvious, and, because a
particular hiring decision may raise a very high probability of
harm down the line, it simply ignores the issue before us to lump
together in one presumptively benign category every singular
administrative act of a policymaker that does not expressly command
or constitute unconstitutional behavior. Thus, a decision to give
law enforcement authority to a scofflaw who had recently engaged in
criminal violence presents a very different risk from hiring
someone who once drove an overweight truck. While the decision to
hire the violent scofflaw may not entail harm to others as
unquestionably as an order to "go out and rough-up some suspects,"
it is a long way from neutral in the risk it creates.
While the Court should rightly be skeptical about predicating
municipal or individual liability merely on a failure to adopt a
crime-free personnel policy or on a particular decision to hire a
guilty trucker, why does it extend that valid skepticism to the
quite unsound point of doubting liability for hiring the violent
scofflaw? The Court says it fears that the latter sort of case
raises a danger of liability without fault,
ante, at 408.
But if the Court means fault generally (as distinct from the blame
imputed on classic
respondeat superior doctrine), it need
only recall that whether a particular violent scofflaw is violent
enough or scoffing enough to implicate deliberate indifference will
depend on applying the highly demanding standard the Court
announces: plainly obvious consequence of particular injury. It is
the high threshold of deliberate indifference that will ensure that
municipalities be held liable only for considered acts with
425
substantial risks. That standard will distinguish single-act
cases with only a mild portent of injury from single-act cases with
a plainly obvious portent, and from cases in which the harm is only
the latest in a series of injuries known to have followed from the
policymaker's action. The Court has fenced off the slippery
slope.
A second stated reason of the skeptical majority is that,
because municipal liability under
Monell cannot rest on
respondeat superior, ante, at 410, 415, "a court must
carefully test the link between the policymaker's inadequate
decision and the particular injury alleged,"
ante, at 410.
But that is simply to say that the tortious act must be proximately
caused by the policymaker. The policy requirement is the
restriction that bars straightforward
respondeat superior
liability, and the need to "test the link" is merely the need to
apply the law that defines what a cognizable link is. The
restriction on imputed fault that saves municipalities from
liability has no need of categorical immunization in singleact
cases.
In short, the Court's skepticism is excessive in ignoring the
fact that some acts of a policymaker present substantial risks of
unconstitutional harm even though the acts are not unconstitutional
per se. And the Court's purported justifications for its
extreme skepticism are washed out by the very standards employed to
limit liability.
C
For demonstrating the extreme degree of the Court's
inhospitality to single-act municipal liability, this is a case on
point, for even under the "plainly obvious consequence" rule the
evidence here would support the verdict. There is no dispute that
before the incident in question the sheriff ordered a copy of his
nephew's criminal record. While the sheriff spoke euphemistically
on the witness stand of a "driving record," the scope of the
requested documentation included crimes beyond motor vehicle
violations and the sher-
426
iff never denied that he knew this. He admitted that he read
some of that record; he said he knew it was "long"; he said he was
sure he had noticed charges of driving with a suspended license;
and he said that he had taken the trouble to make an independent
search for any outstanding warrant for Burns's arrest. As he put
it, however, he somehow failed to "notice" charges of assault and
battery or the list of offenses so long as to point either to
contempt for law or to incapacity to obey it. Although the jury
might have accepted the sheriff's disclaimer, no one who has read
the transcript would assume that the jurors gave any credit to that
testimony,4 and it was open to them to find that the sheriff
4 After Sheriff Moore testified that he knew Burns had been
charged with driving while intoxicated, the following exchange with
respondent's counsel took place:
"Q. And how did you obtain that information? "A. I don't
remember now how I got it.
"Q. Did you make an inquiry with the proper authorities in
Oklahoma to get a copy of Mr. Burns' rap sheet?
"A. I run his driving record, yes.
"Q. All right. And you can get that rap sheet immediately, can't
you? "A. It don't take long.
"Q. All right. And did you not see on there where Mr. Burns had
been arrested for assault and battery. Did you see that one on
there?
"A. I never noticed it, no.
"Q. Did you notice on there he'd been arrested or charged with
[Driving While License Suspended] on several occasions?
"A. I'm sure I did.
"Q. All right. Did you notice on there that he'd been arrested
and convicted for possession of false identification?
"A. No, I never noticed that.
"Q. Did you notice on there where he had been arrested for
public drunk? "A. He had a long record.
"Q. Did you notice on there where he had been arrested for
resisting arrest?
"A. No, I didn't.
427
was simply lying under oath about his limited perusal. The Court
of Appeals noted this possibility, see
67 F.3d
1174, 1184 (CA5 1995), which is more likely than any other
reading of the evidence. Law enforcement officers, after all, are
not characteristically so devoid of curiosity as to lose interest
part way through the criminal record of a subject of personal
investigation.
If, as is likely, the jurors did disbelieve the sheriff and
concluded he had read the whole record, they certainly could have
eliminated any possibility that the sheriff's decision to
"Q. Did you make any inquiries after you got that information to
determine exactly what the disposition of those charges were?
"A. No, I didn't.
"Q. Did you not make any attempt to find out the status of Mr.
Burns' criminal record at that time?
"A. As far as him having a criminal record, I don't believe he
had a criminal record. It was just all driving and-most of it was,
misdemeanors.
"Q. Well, did you make any attempts to determine whether or not
Mr. Burns was on probation at the time you placed him out
there?
"A. I didn't know he was on probation, no.
"Q. Did you make any effort to find out?
"A. I didn't have no idea he was on probation, no.
"Q. Well, you saw on his rap sheet where he had been charged
with [Driving Under the Influence], didn't you?
"A. I had heard about that. I don't remember whether I had seen
it on the rap sheet or not.
"Q. SO you'd heard about it?
"A. I don't know remember whether I seen it on the rap sheet or
heard about it.
"Q. All right. Well, whichever way you, it came to your
attention, you didn't check to find out with the proper authorities
as to what the disposition of that charge was, did you?
"A. I don't really know. I can't say.
"Q. Did you check to see if Mr. Burns had an arrest warrant out
for him? "A. We-I run him through [the National Crime Information
Center] and there wasn't-didn't show no warrant, no." 9 Record
672-675.
428
employ his relative was an act of mere negligence or poor
judgment. He did not even claim, for example, that he thought any
assault must have been just a youthful peccadillo magnified out of
proportion by the criminal charge, or that he had evaluated the
assault as merely eccentric behavior in a young man of sound
character, or that he was convinced that wild youth had given way
to discretion. There being no such evidence of reasonable but
mistaken judgment, the jury could readily have found that the
sheriff knew his nephew's proven propensities, that he thought the
thrust of the evidence was so damaging that he would lie to protect
his reputation and the county treasury, and that he simply chose to
put a family member on the payroll (the third relative, in fact 5)
disregarding the risk to the public.
At trial, petitioner's expert witness stated during
crossexamination that Burns's rap sheet listed repeated traffic
violations, including driving while intoxicated and driving with a
suspended license, resisting arrest, and more than one charge of
assault and battery. The witness further testified that Burns
pleaded guilty to assault and battery and other charges 16 months
before he was hired by Sheriff Moore.6
5 Burns is the son of Sheriff Moore's nephew and Burns's
grandfather had been involved with the sheriff's department for 16
years. See 67
6 The Court points out that Burns had only one conviction for
assault and battery, that respondent has never claimed otherwise,
and that her expert witness so testified. See
ante, at
413-414, n. 2. This is entirely correct. But the issue here is not
what might have been learned by thoroughly investigating Burns's
behavior; the issue is the sufficiency of the evidence to support
the jury's finding that the sheriff acted with deliberate
indifference when he hired Burns. Specifically, assuming the jury
found that the sheriff looked at Burns's criminal record, an
assumption the Court acknowledges is "plausible," see
ante,
at 414, what does the evidence show that the sheriff learned from
this examination? The criminal record was not itself introduced
into evidence in written form, but it was, in relevant part, read
to the jury by petitioner's expert witness Ken Barnes. According to
Barnes's testimony, this criminal record's list of numerous charges
included four references to assault and battery, two of which the
witness
429
Respondent's expert witness testified that Burns's arrest record
showed a "blatant disregard for the law and problems that may show
themselves in abusing the public or using excessive force," 7
Record 316, and petitioner's own expert agreed that Burns's
criminal history should have caused concern. When asked if he would
have hired Burns, he replied that it was "doubtful." 9 Record 537.
On this evidence, the jury could have found that the string of
arrests and convictions revealed "that Burns had [such] a
propensity for violence and a disregard for the law," see 67 F. 3d,
at 1184, n. 20, that his subsequent resort to excessive force was
the plainly obvious consequence of hiring him as a law enforcement
officer authorized to employ force in performing his duties.
III
The county escapes from liability through the Court's untoward
application of an enhanced fault standard to a record of
inculpatory evidence showing a contempt for constitutional
obligations as blatant as the nepotism that apparently occasioned
it. The novelty of this escape shows something
said were duplicative, though he conceded this was not
necessarily so. See 9 Record 532-533. The upshot was that if the
jury found that the sheriff looked at the written record, it could
have found that he read four separate references to assault and
battery charges. That is not to say that four assaults necessarily
occurred, but only that the record refers four times to such
charges before listing one conviction for assault and battery.
Barnes also testified that the record does not contain a
disposition for all the charges listed, and that a sheriff
reviewing such a record should have investigated further to
determine the disposition of such charges. See
id., at
536.
In my judgment, the evidence would have been sufficient (under
the majority's test) if it had shown no more than one complaint and
conviction for assault and battery, given the mixture of charges of
resisting an officer, public drunkenness, and multiple traffic
offenses over a 4-month period ending only 16 months before Burns
was hired. The inference to be drawn would have been that a
repeatedly lawless young man had shown a proclivity to violence
against the person. But, as it turns out, the evidentiary record is
ostensibly more damaging than that.
430
unsuspected (by me, at least) until today. Despite arguments
that
Monell's policy requirement was an erroneous reading of
§ 1983, see
Oklahoma City v.
Tuttle, 471 U. S., at
834 (STEVENS, J., dissenting), I had not previously thought that
there was sufficient reason to unsettle the precedent of
Monell. Now it turns out, however, that
Monell is
hardly settled. That being so, JUSTICE BREYER'S powerful call to
reexamine § 1983 municipal liability afresh finds support in the
Court's own readiness to rethink the matter.
I respectfully dissent.
JUSTICE BREYER, with whom JUSTICE STEVENS and JUSTICE GINSBURG
join, dissenting.
In
Monell v.
New York City Dept. of Social Servs.,
436 U. S. 658 (1978), this Court said that municipalities
cannot be held liable for constitutional torts under 42 U. S. C. §
1983 "on a
respondeat superior theory," but they can be held
liable "when execution of" a municipality's "policy or custom ...
inflicts the injury." 436 U. S., at 691, 694. That statement has
produced a highly complex body of interpretive law. Today's
decision exemplifies the law's complexity, for it distinguishes
among a municipal action that
"itself violates federal law,"
ante, at 404, an action that "intentionally deprive[s] a
plaintiff of a federally protected right,"
ante, at 405, and
one that "has caused an employee to do so,"
ibid. It then
elaborates this Court's requirement that a consequence be
"so
likely" to occur that a policymaker could
"reasonably be
said to have been deliberately indifferent" with respect to it,
Canton v.
Harris, 489 U. S. 378, 390 (1989)
(emphasis added), with an admonition that the unconstitutional
consequence must be "plainly obvious,"
ante, at 411. The
majority fears that a contrary view of prior precedent would
undermine
Monell's basic distinction. That concern, however,
rather than leading us to spin ever finer distinctions as we try to
apply
Monell's basic distinction between liability that
rests upon policy and liability that is vicarious, suggests
431
that we should reexamine the legal soundness of that basic
distinction itself.
I believe that the legal prerequisites for reexamination of an
interpretation of an important statute are present here. The
soundness of the original principle is doubtful. The original
principle has generated a body of interpretive law that is so
complex that the law has become difficult to apply. Factual and
legal changes have divorced the law from the distinction's apparent
original purposes. And there may be only a handful of individuals
or groups that have significantly relied upon perpetuation of the
original distinction. If all this is so, later law has made the
original distinction, not simply wrong, but obsolete and a
potential source of confusion. Cf.,
e. g., Continental T.
V:,
Inc. v.
GTE Sylvania Inc., 433 U. S. 36, 47-49 (1977)
(reexamining Sherman Act's interpretation set forth in
United
States v.
Arnold, Schwinn & Co.,
388 U. S. 365
(1967));
Hubbard v.
United States, 514 U. S. 695,697-715
(1995) (reexamining interpretation of 18 U. S. C. § 1001 set forth
in
United States v.
Bramblett, 348 U. S. 503 (1955));
Monell, supra, at 664-690, 695-701 (reexamining interpretation
of 42 U. S. C. § 1983 set forth in
Monroe v.
Pape,
365 U. S. 167
(1961)). See also
United States v.
Gaudin, 515 U. S. 506, 521-522
(1995).
First, consider
Monell's original reasoning. The
Monell "no vicarious liability" principle rested upon a
historical analysis of § 1983 and upon § 1983's literal
language-language that imposes liability upon (but only upon) any
"person." JUSTICE STEVENS has clearly explained why neither of
these rationales is sound.
Oklahoma City v.
Tuttle,
471 U. S. 808,
834-844 (1985) (dissenting opinion);
Pembaur v.
Cincinnati, 475 U. S. 469, 489-491
(1986) (opinion concurring in part and concurring in judgment).
Essentially, the history on which
Monell relied consists
almost exclusively of the fact that the Congress that enacted §
1983 rejected an amendment (called the Sherman amendment) that
would have made municipalities vicariously liable for the
maraud-
432
ing acts of
private citizens. Monell, supra, at 666-667,
694. Cf.
Jett v.
Dallas Independent School Dist.,
491 U. S. 701,
726-729 (1989) (plurality opinion). That fact, as JUSTICE STEVENS
and others have pointed out, does not argue against vicarious
liability for the act of municipal
employees-particularly
since municipalities, at the time, were vicariously liable for many
of the acts of their employees. See
Tuttle, supra, at 836,
n. 8 (STEVENS, J., dissenting) (citing cases);
Pembaur,
supra, at 489-490 (STEVENS, J., concurring in part and
concurring in judgment). See also,
e. g., Kramer
& Sykes, Municipal Liability Under § 1983: A Legal and Economic
Analysis, 1987 S. Ct. Rev. 249, 256-265; Mead, 42 U. S. C. § 1983
Municipal Liability: The
Monell Sketch Becomes a Distorted
Picture, 65 N. C. L. Rev. 517, 535-537 (1987). But see Welch &
Hofmeister,
Praprotnik, Municipal Policy and Policymakers:
The Supreme Court's Constriction of Municipal Liability, 13 S. Ill.
U. L. J. 857, 881 (1989) (adopting
Monell's reading of the
legislative history).
Without supporting history, it is difficult to find § 1983's
words "[e]very person" inconsistent with
respondeat superior
liability. In 1871 "bodies politic and corporate," such as
municipalities, were "person[s]." See Act of Feb. 25, ch. 71, § 2,
16 Stat. 431 (repealed 1939);
Monell, supra, at 688-689.
Section 1983 requires that the "person" either "subjec[t]" or
"caus[e]" a different person "to be subjected" to a "deprivation"
of a right. As a purely linguistic matter, a municipality, which
can act only through its employees, might be said to have
"subject[ed]" a person or to have "cause[d]" that person to have
been "subjected" to a loss of rights when a municipality's employee
acts within the scope of his or her employment. See Restatement
(Second) of Agency § 219 (1957); w. Landes & R. Posner, The
Economic Structure of Tort Law 120-121 (1987). Federal courts on
occasion have interpreted the word "person" or the equivalent in
other statutes as authorizing forms of vicarious liability. See,
e. g., American Telephone and Telegraph Co. v.
Win back
and
433
Conserve Program, Inc., 42 F.3d
1421, 1429-1434 (CA3 1994), cert. denied, 514 U. S. 1103 (1995)
(Lanham Act);
American Soc. of Mechanical Engineers, Inc. v.
Hydrolevel Corp., 456 U. S. 556 (1982)
(Sherman Act);
United States v.
A &
P Trucking
Co., 358 U. S.
121, 124-125 (1958) (criminal statute). See also
Tuttle,
supra, at 835 (STEVENS, J., dissenting).
Second,
Monell's basic effort to distinguish between
vicarious liability and liability derived from "policy or custom"
has produced a body of law that is neither readily understandable
nor easy to apply. Today's case provides a good example. The
District Court in this case told the jury it must find (1) Sheriff
Moore's screening
"so likely to result in violations of
constitutional rights" that he could
"reasonably [be] said to
have been deliberately indifferent to the constitutional needs
of the Plaintiff" and (2) that the "inadequate hiring ... policy
directly caused the Plaintiff's injury." App. 123a (emphasis
added). This instruction comes close to repeating this Court's
language in
Canton v.
Harris. In
Canton, the
Court said (of the city's failure to train officers in the use of
deadly force):
"[I]n light of the duties assigned to specific officers or
employees the need for more or different training is so obvious,
and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to
the need." 489 U. S., at 390 (emphasis added).
The majority says that the District Court and the Court of
Appeals did not look closely enough at the specific facts of this
case. It also adds that the harm must be a
"plainly obvious
consequence" of the "decision to hire" Burns.
Ante, at
411. But why elaborate
Canton's instruction in this way? The
Court's verbal formulation is slightly different; and that being
so, a lawyer or judge will ignore the Court's precise
434
words at his or her peril. Yet those words, while adding
complexity, do not seem to reflect a difference that significantly
helps one understand the difference between "vicarious" liability
and "policy." Cf.
ante, at 421-422 (SOUTER, J., dissenting).
Even if the Court means only that the record evidence does not meet
Canton's standard, it will be difficult for juries, and for
judges, to understand just why that is so. It will be difficult for
them to apply today's elaboration of
Canton-except perhaps
in the limited context of police force hiring decisions that are
followed by a recruit's unconstitutional conduct.
Consider some of the other distinctions that this Court has had
to make as it has sought to distinguish liability based upon
policymaking from liability that is "vicarious." It has proved
necessary, for example, to distinguish further, between an exercise
of
policymaking authority and an exercise of
delegated
discretionary policy-implementing authority. See
St.
Louis v.
Praprotnik, 485 U. S. 112, 126-127
(1988) (plurality opinion). Compare
Tuttle, 471 U. S., at
817 (plurality opinion), with
Canton, supra, at 389-390.
Without some such distinction, "municipal liability [might]
collaps[e] into
respondeat superior," ante, at 410, for the
law would treat similarly (and hold municipalities responsible for)
both a police officer's decision about how much force to use when
making a particular arrest and a police chief's decision about how
much force to use when making a particular
kind of arrest.
But the distinction is not a clear one. It requires federal courts
to explore state and municipal law that distributes different state
powers among different local officials and local entities.
Praprotnik, supra, at 125-126, 127-131 (plurality opinion);
Jett, supra, at 737-738. That law is highly specialized; it
mayor may not say just where policymaking authority lies, and it
can prove particularly difficult to apply in light of the Court's
determination that a decision can be "policymaking" even though it
applies only to a single instance.
Pembaur, 475 U. S., at
481. See also
435
Praprotnik, supra, at 143 (Brennan, J., concurring in
judgment); Schnapper, A
Monell Update: Clarity, Conflict,
and Complications, Practising Law Institute, Litigation and
Administrative Practice Series, No. 381, Vol. 2, p. 36 (1989);
Schuck, Municipal Liability Under Section 1983: Some Lessons From
Tort Law and Organization Theory, 77 Geo. L. J. 1753, 1774-1779
(1989).
It is not surprising that results have sometimes proved
inconsistent. Compare
ante, at 408 (sheriff was final
policymaker in hiring matters), with
Greensboro Professional
Fire Fighters Assn., Local 3157 v.
Greensboro, 64 F.3d
962, 965966 (CA4 1995) (fire chief was not policymaker with
respect to hiring and firing), and
Harris v.
Pagedale, 821 F.2d
499, 505-508 (CA8) (municipality was deliberately indifferent
to charges of sexual assault), cert. denied, 484 U. S. 986 (1987),
with
Wilson v.
Chicago, 6 F.3d
1233, 1240-1241 (CA7 1993) (municipal policymaker was not
deliberately indifferent to charges of abuse of pretrial
detainees), cert. denied, 511 U. S. 1088 (1994). See also
Auriemma v.
Rice, 957 F.2d
397, 400401 (CA7 1992) (describing confusion in courts).
Nor does the location of "policymaking" authority pose the only
conceptually difficult problem. Lower courts must also decide
whether a failure to make policy was "deliberately indifferent,"
rather than "grossly negligent."
Canton, supra, at 388, n.
7. And they must decide, for example, whether it matters that some
such failure occurred in the officer-training, rather than the
officer-hiring, process.
Ante, at 409-410.
Given the basic
Monell principle, these distinctions may
be necessary, for without them, the Court cannot easily avoid a
"municipal liability" that "collaps[es] into
respondeat
superior." Ante, at 410. But a basic legal principle that
requires so many such distinctions to maintain its legal life may
not deserve such longevity. See Mead, 65 N. C. L. Rev., at 542
(describing the "confusion and uncertainty" in the lower courts
"caused by the
Monell Court's choice of the
436
policy or custom causation requirement"); Schuck,
supra,
at 1783 (noting the "extraordinary unpredictability of the
'official policy' test").
Finally, relevant legal and factual circumstances may have
changed in a way that affects likely reliance upon
Monell's
liability limitation. The legal complexity just described makes it
difficult for municipalities to predict just when they will be held
liable based upon "policy or custom." Moreover, their potential
liability is, in a sense, greater than that of individuals, for
they cannot assert the "qualified immunity" defenses that
individuals may raise.
Owen v.
Independence, 445 U. S. 622 (1980).
Further, many States have statutes that appear to, in effect, mimic
respondeat superior by authorizing indemnification of
employees found liable under § 1983 for actions within the scope of
their employment. See,
e. g., Conn. Gen. Stat. §
7-465 (1997); Idaho Code § 6-903 (1990); Ill. Compo Stat., ch. 745,
§ 10/2-302 (1994); Kan. Stat. Ann. § 75-6109 (1989); Minn. Stat. §
466.07 (1994); Mont. Code Ann. § 2-9-305 (1994); Nev. Rev. Stat. §
41.0349 (1989); N. H. Rev. Stat. Ann. §29-A:2 (1988); N. D. Cent.
Code §32-12.104(4) (Supp. 1993); Okla. Stat., Tit. 51, § 162 (Supp.
1995); 42 Pa. Cons. Stat. § 8548 (1982); S. D. Codified Laws §
3-19-1 (1994); Utah Code Ann. § 63-30-36 (1993); W. Va. Code §
29112A-ll (1992); Wis. Stat. § 895.46 (1993-1994). These
statutes-valuable to government employees as well as to civil
rights victims-can provide for payments from the government that
are similar to those that would take place in the absence of
Monell's limitations. To the extent that they do so,
municipal reliance upon the continuation of
Monell's
"policy" limitation loses much of its significance.
Any statement about reliance, of course, must be tentative, as
we have not heard argument on the matter. We do not know the
pattern of indemnification: how often, and to what extent, States
now indemnify their employees, and which of their employees they
indemnify. I also realize that there may be other reasons,
constitutional and otherwise, that I
437
have not discussed that argue strongly for reaffirmation of
Monell's holding. See,
e. g., Gerhardt, The
Monell Legacy:
Balancing Federalism Concerns and Municipal Accountability under
Section 1983, 62 S. Cal. L. Rev. 539 (1989) (discussing
federalism); N ahmod, Constitutional Accountability in Section 1983
Litigation, 68 Iowa L. Rev. 1, 24-25 (1982) (describing
Monell as having the "proper approach to local government
accountability under section 1983" and describing a fault-based
interpretation of § 1983); Welch & Hofmeister, 13 S. Ill. U. L.
J., at 883, n. 176 (discussing disadvantages of an "expansive view
of municipal liability," including lack of insurance coverage).
Nonetheless, for the reasons I have set forth, I believe the
case for reexamination is a strong one. Today's decision
underscores this need. Consequently, I would ask for further
argument that would focus upon the continued viability of
Monell's distinction between vicarious municipal liability
and municipal liability based upon policy and custom.
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