JUSTICE REHNQUIST announced the judgment of the Court, and delivered the opinion of the Court with respect to Part II, and an opinion with respect to Part III, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR joined.
In Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), this Court held that municipalities are "persons" subject to damages liability under § 1 of the Ku Klux Act of 1871, 42 U. S. C. § 1983, for violations of that Act visited by municipal officials. The Court noted, however, that municipal liability could not be premised on the mere fact that the municipality employed the offending official. Instead, we held that municipal liability could only be imposed for injuries inflicted pursuant to government "policy or custom." Id., at 694. We noted at that time that we had "no occasion to address . . . the full contours of municipal immunity under § 1983 . . . ," id., at 695, and expressly left such development "to another day." Today we take a small but necessary step toward defining those contours.
On October 4, 1980, Officer Julian Rotramel, a member of the Oklahoma City police force, shot and killed Albert Tuttle outside the We'll Do Club, a bar in Oklahoma City. Officer Rotramel, who had been on the force for 10 months, had
Rotramel was the first officer to reach the bar, and the testimony concerning what happened thereafter is sharply conflicting. Rotramel's version was that when he entered the bar Tuttle walked toward him, and Rotramel grabbed Tuttle's arm and requested that he stay within the bar. Tuttle matched the description contained in the bulletin. Rotramel proceeded to question the barmaid concerning the reported robbery, but while doing so he once again had to restrain Tuttle from leaving, this time by grabbing Tuttle's arm and holding it. The barmaid testified that she told Rotramel that no robbery had occurred. Rotramel testified that while he was questioning the barmaid Tuttle kept bending towards his boots, and attempting to squirm from the officer's grip. Tuttle finally broke away from Rotramel, and, ignoring the officer's commands to "halt," went outside. When Rotramel cleared the threshold to the outside door, he saw Tuttle crouched down on the sidewalk, with his hands in or near his boot. Rotramel again ordered Tuttle to halt, but when Tuttle started to come out of his crouch Rotramel discharged his weapon. Rotramel testified at trial that he believed Tuttle had removed a gun from his boot, and that his life was in danger. Tuttle died from the gunshot wound. When his boot was removed at the hospital prior to surgery, a toy pistol fell out.
Respondent Rose Marie Tuttle is Albert Tuttle's widow, and the administratrix of his estate. She brought suit under § 1983 in the United States District Court, Western District of Oklahoma, against Rotramel and the city, alleging that their actions had deprived Tuttle of certain of his constitutional rights. At trial respondent introduced evidence concerning the facts surrounding the incident, and also adduced
The case was presented to the jury on the theory that Rotramel's act had deprived Tuttle of life without due process of law, or that he had violated Tuttle's rights by using "excessive force in his apprehension." App. 38. With respect to respondent's suit against Rotramel individually, the jury was charged that Rotramel was entitled to qualified immunity to the extent that he had acted in good faith and with a reasonable belief that his actions were lawful.
The jury returned a verdict in favor of Rotramel but against the city, and awarded respondent $1,500,000 in damages. The city appealed to the Court of Appeals for the Tenth Circuit, arguing, inter alia, that the trial court had improperly instructed the jury on the standard for municipal liability. In particular, petitioner claimed it was error to instruct the jury that a municipality could be held liable for a "policy" of "inadequate training" based merely upon evidence of a single incident of unconstitutional activity. The Court of Appeals rejected petitioner's claims. 728 F.2d 456 (1984).
Viewing the instructions "as a whole," that court first determined that the trial court properly had instructed the
Before proceeding to the merits, we must address respondent's procedural argument that petitioner failed to object at trial to the "single incident" instruction with sufficient specificity to satisfy Federal Rule of Civil Procedure 51, and that therefore the question is not preserved for our review. We disagree. Respondent first referred to the requirements of Rule 51 in one sentence of her brief on the merits in this Court, at which time respondent did not even suggest that the "single incident" question was not preserved. The issue was raised again at oral argument, and respondent has filed a supplemental postargument brief on the question. But respondent's present protests cannot obscure her prior failures. In the Court of Appeals petitioner argued that proof of a single incident of the use of unreasonable force was insufficient to justify municipal liability, and specifically referred to the trial court's single-incident instruction highlighted above. The claim was rejected on the merits, and the Court of Appeals' opinion does not even mention the requirements of Rule 51, so it seems clear that respondent did not refer to the Rule below. The petition for certiorari again centered on the single-incident issue, but respondent's brief in opposition did not hint that the "questions presented" might not be properly preserved. Respondent's attempt to avoid the question now comes far too late.
We do not mean to give short shrift to the provisions of Rule 51. Indeed, respondent's argument might have prevailed had it been made to the Court of Appeals.
Respondent's lawsuit is brought pursuant to 42 U. S. C. § 1983. Although this Court has decided a host of cases under this statute in recent years, it can never hurt to embark on statutory construction with the Act's precise language in mind. The statute states:
By its terms, of course, the statute creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere. See Baker v. McCollan, 443 U.S. 137, 140, 144, n. 3 (1979). Here respondent's claim is that her husband was deprived of his life "without due process of law," in violation of the Fourteenth Amendment, or that he was deprived of his right to be free from the use of "excessive force in his apprehension" — presumably a right secured by
In Monell, the plaintiffs challenged the defendant's policy of compelling pregnant employees to take unpaid sick leave before such leave was necessary for medical reasons, on the ground that the policy violated the Due Process or Equal Protection Clauses of the Fourteenth Amendment. Since the defendant was a municipal entity, this Court first addressed whether such an entity was a suable "person" as that term is used in § 1983. The Court's analysis focused on § 1983's legislative history, and in particular on the debate surrounding the proposed "Sherman amendment" to the 1871 Ku Klux Act, from which § 1983 is derived. The Sherman amendment would have held municipalities responsible for damage to person or property caused by private persons "riotously and tumultuously assembled." Cong. Globe, 42d Cong., 1st Sess., 749 (1871). Congress' refusal to adopt this
Having determined that municipalities were suable "persons," the Monell Court went on to discuss the circumstances under which municipal liability could be imposed. The Court's holding that a city could not be held liable under § 1983 based upon theories akin to respondeat superior was based in part upon the language of the statute, and in part upon the rejection of the proposed Sherman amendment mentioned above. The Court noted that § 1983 only imposes liability for deprivations "cause[d]" by a particular defendant, and that it was hard to find such causation where liability is imposed merely because of an employment relationship. It also considered Congress' rejection of the Sherman amendment to be telling evidence that municipal liability should not be imposed when the municipality was not itself at fault. Given this legislative history, the Monell Court held that only deprivations visited pursuant to municipal "custom" or "policy" could lead to municipal liability. This language tracks the language of the statute; it also provides a fault-based analysis for imposing municipal liability.
With the development of municipal liability under § 1983 in this somewhat sketchy state, we turn to examine the basis upon which respondent seeks to have liability imposed upon the city. Respondent did not claim in the District Court that Oklahoma City had a "custom" or "policy" of authorizing its police force to use excessive force in the apprehension of suspected criminals, and the jury was not instructed on that theory of municipal liability. Rather, respondent's theory of liability was that the "policy" in question was the city's policy of training and supervising police officers, and that this "policy" resulted in inadequate training, and the constitutional violations alleged. Respondent in her brief says:
The District Court apparently accepted this theory of liability, though it charged the jury that the city's "policymakers" could not merely have been "negligent" in establishing training policies, but that they must have been guilty of
Respondent then proceeds to argue that the question presented by petitioner — whether a single isolated incident of the use of excessive force by a police officer establishes an official custom or policy of a municipality — is in truth not presented by this record because there was more evidence of an official "policy" of "inadequate training" than might be inferred from the incident giving rise to Tuttle's death. But unfortunately for respondent, the instruction given by the District Court allowed the jury to impose liability on the basis of such a single incident without the benefit of the additional evidence. The trial court stated that the jury could "infer," from "a single, unusually excessive use of force . . . that it was attributable to inadequate training or supervision amounting to `deliberate indifference' or `gross negligence' on the part of the officials in charge." App. 44.
We think this inference unwarranted; first, in its assumption that the act at issue arose from inadequate training, and second, in its further assumption concerning the state of mind of the municipal policymakers. But more importantly, the inference allows a § 1983 plaintiff to establish municipal liability without submitting proof of a single action taken by a municipal policymaker. The foregoing discussion of the origins of Monell's "policy or custom" requirement should make clear that, at the least, that requirement was intended to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers. Presumably, here the jury could draw the stated inference even in the face of uncontradicted evidence that the municipality scrutinized each police applicant and met the highest training standards imaginable. To impose liability under those circumstances would be to impose it simply because the municipality hired one "bad apple."
The fact that in this case respondent introduced independent evidence of inadequate training makes no difference, because
Respondent contends that Monell suggests the contrary result, because it "expressly provided that an official `decision' would suffice to establish liability, although a single decision will often have only a single victim." App. 14. But this very contention illustrates the wide difference between the municipal "policy" at issue in Monell and the "policy" alleged here. The "policy" of the New York City Department of Social Services that was challenged in Monell was a policy that by its terms compelled pregnant employees to take mandatory leaves of absence before such leaves were required for medical reasons; this policy in and of itself violated the constitutional rights of pregnant employees by reason of our decision in Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974). Obviously, it requires only one application of a policy such as this to satisfy fully Monell's requirement that a municipal corporation be held liable only for constitutional violations resulting from the municipality's official policy.
Here, however, the "policy" that respondent seeks to rely upon is far more nebulous, and a good deal further removed from the constitutional violation, than was the policy in Monell. To establish the constitutional violation in Monell no evidence was needed other than a statement of the policy
Here the instructions allowed the jury to infer a thoroughly nebulous "policy" of "inadequate training" on the part of the municipal corporation from the single incident described earlier in this opinion, and at the same time sanctioned the inference that the "policy" was the cause of the incident. Such an approach provides a means for circumventing Monell's limitations altogether. Proof of a single
JUSTICE POWELL took no part in the decision of this case.
I agree that the "single incident" instruction, ante, at 813, is properly before us and therefore join Part II of JUSTICE
Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), held that municipalities, like other state actors, are subject to liability under § 1983 when their policies "subjec[t], or caus[e] to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . ." 42 U. S. C. § 1983. I agree with the plurality that today we must take a "small but necessary step," ante, at 810, toward defining the full contours of municipal liability pursuant to § 1983.
Given the result in this case, in which a jury verdict in favor of the respondent is overturned, it is useful to keep in mind respondent's theory of the case. Respondent introduced two types of evidence at trial. First, respondent elicited testimony concerning the circumstances surrounding Tuttle's killing. This included Rotramel's admission that he never saw a weapon in Tuttle's possession, App. 150, 158, 225, and evidence that there was no reasonable ground to believe that Tuttle had committed a felony. Id., at 155.
Respondent thus attempted in two ways to show the city's responsibility for the killing of Tuttle. First, respondent proposed to prove that Rotramel's killing of Tuttle was so egregiously out of accord with accepted police practice that the jury could infer from the killing alone that the city's policies and customs concerning the training of police were grossly deficient and were to blame for the incident. Second, respondent hoped to prove the policy or custom of inadequate training by means of direct evidence of the scope and nature of that training.
The trial court permitted respondent to submit both theories to the jury. The jury was instructed that "a single, unusually excessive use of force may be sufficiently out of the ordinary to warrant an inference that it was attributable to inadequate training or supervision amounting to `deliberate indifference' or `gross negligence' on the part of the officials in charge." Id., at 44. The court had previously instructed that "deliberate indifference" or "gross negligence" on the part of the city was sufficient to prove the existence of a city policy. Id., at 43. Putting these instructions together, the
Having been thus instructed, the jury returned a verdict against the city. There is no way to determine on which theory the jury relied. The trial court denied petitioner's motion for judgment notwithstanding the verdict, holding that "the plaintiff brought forward sufficient evidence regarding inadequate training and procedures to warrant submission to the jury of the issue of municipal liability." Id., at 58. The court believed that "there was considerably more evidence presented here than the fact that [Rotramel], a young man, shot someone in deprivation of their civil rights." Tr. 704. In discussing petitioner's judgment n.o.v. motion, the court explicitly noted that it was "impressed with the evidence that was presented in this case" concerning "the curriculum methods and the lack of supervision and training." Id., at 704-705. The Court of Appeals affirmed. 728 F.2d 456 (CA10 1984).
The question presented in the petition for certiorari is "[w]hether a single isolated incident of the use of excessive force by a police officer establishes an official policy or practice of a municipality sufficient to render the municipality liable for damages under 42 U. S. C. § 1983." The thrust of petitioner's argument is that it was improper to instruct the jury that it could impose liability on petitioner based solely on evidence regarding Rotramel's actions on the night of Tuttle's killing.
Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), held that "Congress did intend municipalities
Because Congress intended that § 1983 be broadly available to compensate individuals for violations of constitutional rights, see Owen v. City of Independence, 445 U.S. 622, 650-653 (1980); Monell, supra, at 683-687, a municipality could be held liable where a plaintiff could show that it was the city itself that was at fault for the damage suffered. To make this showing, a plaintiff must prove, in the broad causal language of the statute, that a policy or custom of the city "subjected" him, or "caused him to be subjected" to the deprivation of constitutional rights. In a case in which the plaintiff carries this burden, the city's liability would be mandated by the language, the legislative history, and the underlying purposes of § 1983.
I agree with the plurality that it is useful to begin with the terms of the statute:
In the language of the statute, the elements of a § 1983 cause of action might be summarized as follows: The plaintiff must prove that (1) a person (2) acting under color of state law (3) subjected the plaintiff or caused the plaintiff to be subjected (4) to the deprivation of a right secured by the Constitution or laws of the United States. Element (4) involves the question of whether there has been a violation of the Constitution or laws of the United States; that issue is not raised by the parties in this case and thus may be ignored here.
Of the three remaining elements of a § 1983 cause of action of relevance here, respondent clearly established two. After Monell, a municipality like Oklahoma City undoubtedly is a "person" to whom § 1983 applies. And there can be little doubt that the city's actions establishing particular police training procedures were actions taken "under color of state law," as that term is commonly understood.
The remaining question is causation. In a § 1983 case involving a municipal defendant, the causation element to be proved by the plaintiff may be seen as divided into two parts. First, the plaintiff must predicate his recovery on some particular action taken by the city, as opposed to an action taken unilaterally by a nonpolicymaking municipal employee. This is the inquiry required by Monell, and the plaintiff would carry his burden by proving the existence of a particular official municipal policy or established custom.
The instruction in question in this case permitted the plaintiff to carry his burden of proving "policy or custom" by merely introducing evidence concerning the particular actions taken by Rotramel on the night of October 4, 1980.
A jury finding of liability based on this theory would unduly threaten petitioner's immunity from respondeat superior liability. A single police officer may grossly, outrageously, and recklessly misbehave in the course of a single incident. Such misbehavior may in a given case be fairly
Respondent objects that in Monell and Owen v. City of Independence, 445 U.S. 622 (1980), we found a municipality liable despite evidence that showed only a single instance of misconduct. If the city's argument here depended on the premise that municipal conduct that resulted in only a single
The city's argument, however, does not depend on any such unlikely or extravagant premise. It depends instead merely on that fact that a single incident of police misbehavior by a single policeman is insufficient as sole support for an inference that a municipal policy or custom caused the incident. And this was not an inference comparable to any on which the plaintiffs in Monell or Owen relied. In Monell, both parties agreed that the City of New York had a policy of forcing women to take maternity leave before medically necessary. 436 U. S., at 661, n. 2. This policy, of course, violated the interest we recognized in Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974). In Owen, the municipality's city council, in the course of dismissing the plaintiff from his post as Chief of Police, passed a resolution releasing to the press material that smeared the reputation of the plaintiff. There was no doubt that the release of the information was an official action — that is, a policy or custom — of the city. Thus, the crucial factor in both cases was that the plaintiff introduced direct evidence that the city itself had acted.
For the reasons given above, I agree with the Court that the judgment in this case should be reversed; there may be many ways of proving the existence of a municipal policy or custom that can cause a deprivation of a constitutional right, but the scope of § 1983 liability does not permit such liability to be imposed merely on evidence of the wrongful actions of a single city employee not authorized to make city policy.
When a police officer is engaged in the performance of his official duties, he is entrusted with civic responsibilities of the highest order. His mission is to protect the life, the liberty, and the property of the citizenry. If he violates the Federal Constitution while he is performing that mission, I believe that federal law provides the citizen with a remedy against his employer as well as a remedy against him as an individual. This conclusion is supported by the text of 42 U. S. C. § 1983, by its legislative history, and by the holdings and reasoning in several of our major cases construing the statute. The Court's contrary conclusion rests on nothing more than a recent judicial fiat that no litigant had asked the Court to decree.
As we have frequently noted, § 1983 "came onto the books as § 1 of the Ku Klux Act of April 20, 1871. 17 Stat. 13."
At the time the statute was enacted the doctrine of respondeat superior was well recognized in the common law of the several States and in England.
The legislative history of the Ku Klux Act supports this conclusion for two reasons. First, the fact that "nobody" objected to § 1
Of greatest importance, however, is the nature of the wrong for which § 1983 provides a remedy. The Act was primarily designed to provide a remedy for violations of the United States Constitution — wrongs of the most serious kind.
The central holding in Monroe v. Pape, 365 U.S. 167 (1961), confirms this analysis. In that case, the city of Chicago had rested its entire defense on the claim that the individual officers had acted "ultra vires" when they invaded the petitioners' home.
Justice Harlan's statement of the opposing positions identifies the central issue in Monroe:
If the action of a police officer is "far more serious than an ordinary state tort" because it is "made possible by his position," the underlying reason that such an action is a "matter of federal concern" is that it is treated as the action of the officer's employer. If the doctrine of respondeat superior would impose liability on the city in an ordinary tort case, a fortiori, that doctrine must apply to the city in a § 1983 case.
While the plurality purports to answer a question of statutory construction — which it properly introduces with a quotation of the statutory text, see ante, at 816 — its opinion actually provides us with an interpretation of the word "policy" as it is used in Part II of the opinion in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-695 (1978). The word "policy" does not appear in the text of § 1983, but it provides the theme for today's decision.
Part II of Monell contains dicta of the least persuasive kind. As JUSTICE POWELL noted in his separate concurrence, language that is "not necessary to the holding may be accorded less weight in subsequent cases."
In a number of decisions construing § 1983, the Court has considered whether its holding is supported by sound considerations of policy.
The Court's contrary conclusion can only be explained by a concern about the danger of bankrupting municipal corporations. That concern is surely legitimate, but it is one that should be addressed by Congress — perhaps by imposing maximum limitations on the size of any potential recovery or by requiring the purchase of appropriate liability insurance — rather than by this Court. Moreover, it is a concern that is relevant to the law of damages rather than to the rules defining the substantive liability of "every person" covered by § 1983.
The injection into § 1983 litigation of the kind of debate over policy that today's decision will engender can only complicate the litigation process. My rather old-fashioned and simple approach to the statute would eliminate from this class of civil-rights litigation the time-consuming "policy" issues that Monell gratuitously engrafted onto the statute. Of greatest importance, it would serve the administration of justice and effectuate the intent of Congress.
I respectfully dissent.
Burt Neuborne and Charles S. Sims filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
"Whether a single isolated incident of the use of excessive force by a police officer establishes an official policy or practice of a municipality sufficient to render the municipality liable for damages under 42 U. S. C. § 1983." Pet. for Cert. i.
Although much of the petition for certiorari was directed to pointing out the general uncertainties concerning municipal liability for "inadequate training" of its police force, and although respondent's brief in opposition said nothing to dispel the notion that this general question was presented, we confine our holding to the above question. In reaching our conclusion, however, we find it necessary to discuss the many unanswered questions concerning municipal liability that we must assume have an answer in order to properly address this question.
We note in addition that JUSTICE STEVENS' position, which is based substantially on his perception of the common law of municipal liability at the time § 1983 was enacted, is by no means representative of all the contemporary authorities. Both the majority and dissenting opinions in Owen v. City of Independence, 445 U.S. 622 (1980), recognized that certain rather complicated municipal tort immunities existed at the time § 1983 was enacted, see id., at 644-650; id., at 676-679 (POWELL, J., dissenting); we are therefore somewhat surprised to learn that the "common law" at the time applied the doctrine of respondent superior "to municipal corporations, and to the wrongful acts of police officers." Post, at 836-837. Even those cases known to allow municipal liability at the time hardly support the broad vicarious liability suggested by the dissent; the famous case of Thayer v. Boston, 36 Mass. 511, 516-517 (1837), for example, spoke in guarded language that seems in harmony with the limitations on municipal liability expressed in Monell. That court stated:
"As a general rule, the corporation is not responsible for the unauthorized and unlawful acts of its officers, though done colore officii; it must further appear, that they were expressly authorized to do the acts, by the city government, or that they were done bona fide in pursuance of a general authority to act for the city, on the subject to which they relate; or that, in either case, the act was adopted and ratified by the corporation." 36 Mass., at 316-317.
"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 injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U. S. C. § 1983.
"As for those things which a servant may do on behalf of his master, they seem all to proceed upon this principle, that the master is answerable for the act of his servant, if done by his command, either expressly given, or implied: nam qui facit per alium, facit per se. Therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it: not that the servant is excused, for he is only to obey his master in matters that are honest and lawful. If an inn-keeper's servants rob his guests, the master is bound to restitution: for as there is a confidence reposed in him, that he will take care to provide honest servants, his negligence is a kind of implied consent to the robbery; nam, qui non prohibet, cum prohibere possit, jubet. So likewise if the drawer at a tavern sells a man bad wine, whereby his health is injured, he may bring an action against the master: for although the master did not expressly order the servant to sell it to that person in particular, yet his permitting him to draw and sell it at all is impliedly a general command." 1 W. Blackstone, Commentaries *429-*430.
He continued in the same volume:
"We may observe, that in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer: he may frequently be answerable for his servant's misbehaviour, but never can shelter himself from punishment by laying the blame on his agent. The reason of this is still uniform and the same; that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a standing maxim that no man shall be allowed to make any advantage of his own wrong." Id., at *432.
"It is well known that there is virtually no remedy against the driver of an omnibus, and therefore it is necessary that, for injury resulting from an act done by him in the course of his master's service, the master should be responsible; for there ought to be a remedy against some person capable of paying damages to those injured by improper driving. . . . It may be said that it was no part of the duty of the defendants' servant to obstruct the plaintiff's omnibus, and moreover the servant had distinct instructions not to obstruct any omnibus whatever. In my opinion those instructions are immaterial. If disobeyed, the law casts upon the master a liability for the act of his servant in the course of his employment; and the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability. Therefore, I consider it immaterial that the defendants directed their servant not to do the act. Suppose a master told his servant not to break the law, would that exempt the master from responsibility for an unlawful act done by his servant in the course of his employment?" Id., at 539.
"Governmental corporations then, from the highest to the lowest, can commit wrongful acts through their authorized agents for which they are responsible; and the only question is, how that responsibility shall be enforced. The obvious answer is, in courts of justice, where, by the law, they can be sued."
See also Thayer v. Boston, 36 Mass. 511, 516-517 (1837), where the court stated:
"That an action sounding in tort, will lie against a corporation, though formerly doubted, seems now too well settled to be questioned. Yarborough v. Bank of England, 16 East, 6; Smith v. Birmingham & Gas Light Co., 1 Adolph. & Ellis, 526. And there seems no sufficient ground for a distinction in this respect, between cities and towns and other corporations. Clark v. Washington, 12 Wheaton, 40; Baker v. Boston, 12 Pick. 184.
"Whether a particular act, operating injuriously to an individual, was authorized by the city, by any previous delegation of power, general or special, or by any subsequent adoption and ratification of particular acts, is a question of fact, to be left to a jury, to be decided by all the evidence in the case. As a general rule, the corporation is not responsible for the unauthorized and unlawful acts of its officers, though done colore officii; it must further appear, that they were expressly authorized to do the acts, by the city government, or that they were done bona fide in pursuance of a general authority to act for the city, on the subject to which they relate; or that, in either case, the act was adopted and ratified by the corporation." (Emphasis added.)
In 1871, the year the Ku Klux Act was passed, Thayer was cited in support of the following statement:
"When officers of a town, acting as its agents, do a tortious act with an honest view to obtain for the public some lawful benefit or advantage, reason and justice require that the town in its corporate capacity should be liable to make good the damage sustained by an individual in consequence of the acts thus done." Hawks v. Charlemont, 107 Mass. 414, 417-418 (1871).
"The liability of municipal corporations for the acts of their agent is, as a general rule, too well settled at this day to be seriously questioned." Ibid.
"It is by now well settled that the tort liability created by § 1983 cannot be understood in a historical vacuum. In the Civil Rights Act of 1871, Congress created a federal remedy against a person who, acting under color of state law, deprives another of constitutional rights. . . . One important assumption underlying the Court's decisions in this area is that members of the 42d Congress were familiar with common-law principles, including defenses previously recognized in ordinary tort litigation, and that they likely intended these common-law principles to obtain, absent specific provisions to the contrary." Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1981).
In Newport, the Court further noted:
"Given that municipal immunity from punitive damages was well established at common law by 1871, we proceed on the familiar assumption that `Congress would have specifically so provided had it wished to abolish the doctrine.' Pierson v. Ray, 386 U. S., at 555. Nothing in the legislative debates suggests that, in enacting § 1 of the Civil Rights Act, the 42d Congress intended any such abolition." 453 U. S., at 263-264.
"Since the decision of this Court in the Civil Rights Cases, 109 U.S. 3 (1883), the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful."
"I own that it is a good deal of a mystery to me how judges, of all persons in the world, should put their faith in dicta." B. Cardozo, The Nature of the Judicial Process 29 (1921).
"The great advantage of police compliance with the law is that it helps to create an atmosphere conducive to a community respect for officers of the law that in turn serves to promote their enforcement of the law. Once they set an example of lawful conduct they are in a position to set up lines of communication with the community and to gain its support." R. Traynor, Lawbreakers, Courts, and Law-Abiders, 41 Journal of the State Bar of California 458, 478 (July-August 1966).
See also Owen v. City of Independence, 445 U. S., at 652, n. 36 ("In addition, the threat of liability against the city ought to increase the attentiveness with which officials at the higher levels of government supervise the conduct of their subordinates. The need to institute systemwide measures in order to increase the vigilance with which otherwise indifferent municipal officials protect citizens' constitutional rights is, of course, particularly acute where the frontline officers are judgment-proof in their individual capacities").