Lead Opinion
delivered the opinion of the Court.
Monell v. New York City Dept. of Social Services,
I
The events giving rise to this suit are detailed in the District Court’s findings of fact,
Sometime in early April 1972, Alberg received a written report on the investigation’s progress, along with copies of confidential witness statements. Although the City Auditor found that the Police Department’s records were insufficient to permit an adequate accounting of the goods contained in the property room, the City Counselor concluded that there was no evidence of any criminal acts or of any violation of
On April 10, Alberg asked petitioner to resign as Chief of Police and to accept another position within the Department, citing dissatisfaction with the manner in which petitioner had managed the Department, particularly his inadequate supervision of the property room. Alberg warned that if petitioner refused to take another position in the Department his employment would be terminated, to which petitioner responded that he did not intend to resign.
On April 13, Alberg issued a public statement addressed to the Mayor and the City Council concerning the results of the investigation. After referring to “discrepancies” found in the administration, handling, and security of public property, the release concluded that “[t]here appears to be no evidence to substantiate any allegations of a criminal nature” and offered assurances that “[sjteps have been initiated on an administrative level to correct these discrepancies.” Id., at 1115. Although Alberg apparently had decided by this time to replace petitioner as Police Chief, he took no formal action to that end and left for a brief vacation without informing the City Council of his decision.
While Alberg was away on the weekend of April 15 and 16, two developments occurred. Petitioner, having consulted with counsel, sent Alberg a letter demanding written notice of the charges against him and a public hearing with a reason
On the evening of April 17, 1972, the City Council held its regularly scheduled meeting. After completion of the planned agenda, Councilman Roberts read a statement he had prepared on the investigation.
City Manager Alberg discharged petitioner the very next day. Petitioner was not given any reason for his dismissal; he received only a written notice stating that his employment as Chief of Police was “[t]erminated under the provisions of Section 3.3(1) of the City Charter.”
The local press gave prominent coverage both to the City Council’s action and petitioner’s dismissal, linking the discharge to the investigation.
II
Petitioner named the city of Independence, City Manager Alberg, and the present members of the City Council in their official capacities as defendants in this suit.
Respondents petitioned for review of the Court of Appeals’ decision. Certiorari was granted, and the case was remanded for further consideration in light of our supervening decision in Monell v. New York City Dept. of Social Services,
Monell held that “a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is 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.”
“The Supreme Court’s decisions in Board of Regents v. Roth,408 U. S. 564 . . . (1972), and Perry v. Sindermann,408 U. S. 593 . . . (1972), crystallized the rule establishing the right to a name-clearing hearing for a government employee allegedly stigmatized in the course of his discharge. The Court decided those two cases two months after the discharge in the instant case. Thus, officials of the City of Independence could not have been aware of [petitioner’s] right to a name-clearing , hearing in connection with the discharge. The City of Independence should not be charged with predicting the future course of constitutional law. We extend the limited immunity the district court applied to the individual defendants to cover the City as well, because its officials acted in good faith and without malice. We hold the City not liable for actions it could not reasonably have known violated [petitioner’s] constitutional rights.” Id., at 338 (footnote and citations omitted).14
Ill
Because the question of the scope of a municipality’s immunity from liability under § 1983 is essentially one of statutory construction, see Wood v. Strickland,
Moreover, the congressional debates surrounding the passage of § 1 of the Civil Rights Act of 1871, 17 Stat. 13 — the forerunner of § 1983 — confirm the expansive sweep of the stat
“I have a single remark to make in regard to the rule of interpretation of those provisions of the Constitution under which all the sections of the bill are framed. This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people.” Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871) (hereinafter Globe App.).
Similar views of the Act’s broad remedy for violations of federally protected rights were voiced by its supporters in both Houses of Congress. See Monell v. New York City Dept. of Social Services,
Subsequent cases have required that we consider the personal liability of various other types of government officials. Noting that “[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction,” Pierson v. Ray, supra, at 553-554, held that the absolute immunity traditionally accorded judges was preserved under § 1983. In that same case, local police officers were held to enjoy a “good faith and probable cause” defense to § 1983 suits similar to that which existed in false arrest actions at common law.
In each of these cases, our finding of § 1983 immunity “was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.” Imbler v. Pachtman, supra, at 421. Where the immunity claimed by the defendant was well established at common law at the time § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Eights Act, we have construed the statute to incorporate that immunity. But there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify the qualified immunity accorded the city of Independence by the Court of Appeals. We hold, therefore, that the municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983.
A
Since colonial times, a distinct feature of our Nation’s system of governance has been the conferral of political power upon public and municipal corporations for the management of matters of local concern. As Monell recounted, by 1871,
As a general rule, it was understood that a municipality’s tort liability in damages was identical to that of private corporations and individuals:
“There is nothing in the character of a municipal corporation which entitles it to an immunity from liability for such malfeasances as private corporations or individuals would be liable for in a civil action. A municipal corporation is liable to the same extent as an individual for any act done by the express authority of the corporation, or of a branch of its government, empowered to act for it upon the subject to which the particular act relates, and for any act which, after it has been done, has been lawfully ratified by the corporation.” T. Shear-man & A. Redfield, A Treatise on the Law of Negligence § 120, p. 139 (1869) (hereinafter Shearman & Redfield).
Accord, 2 Dillon § 764, at 875 (“But as respects municipal corporations proper, ... it is, we think, universally considered, even in the absence of statute giving the action, that they are liable for acts of misfeasance positively injurious to individuals, done by their authorized agents or officers, in the course of the performance of corporate powers constitutionally conferred, or in the execution of corporate duties”) (emphasis in original). See 18 E. McQuillin, Municipal Corporations § 53.02 (3d rev. ed. 1977) (hereinafter McQuillin). Under this general theory of liability, a municipality was deemed responsible for any private losses generated through a wide variety of its operations and functions, from personal injuries due to its defective sewers, thoroughfares, and public utilities, to property damage caused by its trespasses and uncompensated takings.
“There is a large class of cases, in which the rights of both the public and of individuals may be deeply involved, in which it cannot be known at the time the act is done, whether it is lawful or not. The event of a legal inquiry, in a court of justice, may show that it was unlawful. Still, if it was not known and understood to be! unlawful at the time, if it was an act done by the officers! having competent authority, either by express vote of \ the city government, or by the nature of the duties and ! functions with which they are charged, by their offices, to act upon the general subject matter, and especially if the j act was done with an honest view to obtain for the public j some lawful benefit or advantage, reason and justice ob- ¡ viously require that the city, in its corporate capacity, should be liable to make good the damage sustained by an individual, in consequence of the acts thus done.” ]
The Thayer principle was later reiterated by courts in several jurisdictions, and numerous decisions awarded damages against municipalities for violations expressly found to have been committed in good faith. See, e. g., Town Council of Akron v. McComb,
That municipal corporations were commonly held liable for damages in tort was also recognized by the 42d Congress. See Monell v. New York City Dept. of Social Services,
To be sure, there were two doctrines that afforded municipal corporations some measure of protection from tort liability. The first sought to distinguish betweeá a municipality’s “governmental” and “proprietary” functions; as to the former, the city was held immune, whereas in its exercise of the latter, the city was held to the same standards of liability as any private corporation. The second doctrine immunized a municipality for its “discretionary” or “legislative” activities, but not for those which were “ministerial” in nature. A brief examination of the application and the rationale underlying each of these doctrines demonstrates that Congress could not have intended them to limit a municipality’s liability under § 1983.
The governmental-proprietary distinction
That the municipality’s common-law immunity for “governmental” functions derives from the principle of sovereign immunity also explains why that doctrine could not have served as the basis for the qualified privilege respondent city claims under § 1983. First, because, sovereign immunity insulates the municipality from unconsented suits altogether, the pres-enee or absence of good faith is simply irrelevant. The critical issue is whether injury occurred while the city was exercising- governmental, as opposed to pioprietary, powers or obligations — not whether its agents reasonably believed they were acting lawfully in so conducting themselves.
The second common-law distinction between municipal functions — that protecting the city from suits challenging “discretionary” decisions — was grounded not on the principle of sovereign immunity, but on a concern for separation of powers. A large part of the municipality’s responsibilities involved broad discretionary decisions on issues of public policy — decisions that affected large numbers of persons and called for a delicate balancing of competing considerations. For a court or jury, in the guise of a tort suit, to review the reasonableness of the city’s judgment on these matters would be an infringement upon the powers properly vested in a coordinate and coequal branch of government. See Johnson v. State,
Although many, if not all, of a municipality’s activities would seem to involve at least some measure of discretion, the influence of this doctrine on the city’s liability was not as significant as might be expected. For just as the courts
Once again, an understanding of the rationale underlying the common-law immunity for “discretionary” functions explains why that doctrine cannot serve as the foundation for a good-faith immunity under § 1983. That common-law doctrine merely prevented courts from substituting their own judgment on matters within the lawful discretion of the municipality. But a municipality has no “discretion” to violate the Federal Constitution; its dictates are absolute and imperative. And when a court passes judgment on the municipality’s conduct in a § 1983 action, it does not seek to second-guess the “reasonableness” of the city’s decision nor to interfere with the local government’s resolution of competing policy considerations. Rather, it looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes. As was stated in Sterling v. Constantin,
In sum, we can discern no “tradition so well grounded in history and-reason” that would warrant the conclusion that in enacting § 1 of the Civil Rights Act, the 42d Congress sub silentio extended to municipalities a qualified immunity based on the good faith of their officers. Absent any clearer indication that Congress intended so to limit the reach of a statute expressly designed to provide a “broad remedy for violations of federally protected civil rights,” Monell v. New York City Dept. of Social Services,
B
Our rejection of a construction of § 1983 that would accord municipalities a qualified immunity for their good-faith constitutional violations is compelled both by the legislative purpose in enacting the statute and by considerations of public policy. The central aim of the Civil Rights Act was to provide protection to those persons wronged by the “ ‘[mjisuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” Monroe v. Pape,
How “uniquely amiss” it would be, therefore, if the government itself — “the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct” — were permitted to disavow liability for the injury it has begotten. See Adickes v. Kress & Co.,
Moreover, § 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well. See Robertson v. Wegmann,
Our previous decisions conferring qualified immunities on various government officials, see supra, at 637-638, are not to
“(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.”38
The first consideration is simply not implicated when the damages award comes not from the official’s pocket, but from the public treasury. It hardly seems unjust to require a municipal defendant which has violated a citizen’s constitutional rights to compensate him for the injury suffered thereby. Indeed, Congress enacted § 1983 precisely to provide a remedy for such abuses of official power. See Monroe v. Pape,
It has been argued, however, that revenue raised by taxation for public use should not be diverted to the benefit of a single or discrete group of taxpayers, particularly where the municipality has at all times acted in good faith. On the contrary, the accepted view is that stated in Thayer v. Boston — " that the city, in its corporate capacity, should be liable to make good the damage sustained by an [unlucky] indi
The second rationale mentioned in Scheuer also loses its force when it is the municipality, in contrast to the official, whose liability is at issue. At the heart of this justification for a qualified immunity for the individual official is the concern that the threat of personal monetary liability will introduce an unwarranted and unconscionable consideration into the decisionmaking process, thus paralyzing the governing official’s decisiveness and distorting his judgment on matters
In sum, our decision holding that municipalities have no immunity from damages liability flowing from their constitutional violations harmonizes well with developments in the common law and our own pronouncements on official immunities under § 1983. Doctrines of tort law have changed significantly over the past century, and our notions of governmental responsibility should properly reflect that evolution. No longer is individual “blameworthiness” the acid test of liability; the principle of equitable loss-spreading has.joined fault as a factor in distributing the costs of official misconduct.
We believe that today’s decision, together with prior precedents in this area, properly allocates these costs among the three principals in the scenario of the § 1983 cause of action: the victim of the constitutional deprivation; the officer whose conduct caused the injury; and the public, as represented by the municipal entity. The innocent individual who is harmed by an abuse of governmental authority is assured that he will be compensated for his injury. The offending official, so long as he conducts himself in good faith, may go about his business secure in the knowledge that a qualified immunity will protect him from personal liability for damages that are more appropriately chargeable to the populace as a whole. And the public will be forced to bear only the costs of injury inflicted by the “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.”
Reversed.
Notes
Title 42 U. S. C. § 1983 provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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.”
Under § 3.3 (1) of the city’s charter, the City Manager has sole authority to “[a]ppoint, and when deemed necessary for the good of the service, lay off, suspend, demote, or remove all directors, or heads, of administrative departments and all other administrative officers and employees of the city. . . .”
Alberg returned from his vacation on the morning of April 17, and immediately met informally with four members of the City Council. Although the investigation of the Police Department was discussed, and although Alberg testified that he had found a replacement for petitioner by that time, he did not inform the Council members of his intention to discharge petitioner.
The letter, dated April 15,1972, stated in part:
“My counsel . . . have advised me that even though the City Charter may give you authority to relieve me, they also say you cannot do so without granting me my constitutional rights of due process; which includes a written charge and specifications, together with a right to a public hearing and to be represented by counsel and to cross-examine those who may. appear against me.
"In spite of your recent investigation and your public statement given to the public press, your relief and discharge of me without a full public hearing upon written charges will leave in the minds of the public and those who might desire to have my services, a stigma of personal wrongdoing on my part.
“Such action by you would be in violation of my civil rights as granted by the Constitution and Congress of the United States and you would be liable in damages to me. Further it would be in violation of the Missouri Administrative Procedure Act.
“May I have an expression from you that you do not intend to relieve me or in the alternative give me a written charge and specifications of your basis for your grounds of intention to relieve me and to grant me a public hearing with a reasonable opportunity to respond to the charge and a right to be represented by counsel.”
City Manager Alberg stated that he did not receive the letter until after petitioner's discharge.
Roberts’ statement, which is reproduced in full in
“On April 2, 1972, the City Council was notified of the existence of an investigative report concerning the activities of the Chief of Police of the*628 City of Independence, certain police officers and activities of one or more other City officials. On Saturday, April 15th for the first time I was able to see these 27 voluminous reports. The contents of these reports are astoundingly shocking and virtually unbelievable. They deal with the disappearance of 2 or more television sets from the police department and signed statement that they were taken by the Chief of Police for his own personal use.
“The reports show that numerous firearms properly in the police department custody found their way into the hands of others including undesirables and were later found by other law enforcement agencies.
“Reports whow [sic] that narcotics held by the Independence Missouri Chief of Police have mysteriously disappeared. Reports also indicate money has mysteriously disappeared. Reports show that traffic tickets have been manipulated. The reports show inappropriate requests affecting the police court have come from high ranking police officials. Reports indicate that things have occurred causing the unusual release of felons. The reports show gross inefficiencies on the part of a few of the high ranking officers of the police department.
“In view of the contents of these reports, I feel that the information in the reports backed up by signed statements taken by investigators is so bad that the council should immediately make available to the news media access to copies of all of these 27 voluminous investigative reports so the public can be told what has been going on in Independence. I further believe that copies of these reports should be turned over and referred to the prosecuting attorney of Jackson County, Missouri for consideration and presentation to the next Grand Jury. I further insist that the City Manager immediately take direct and appropriate action, permitted under the Charter, against such persons as are shown by the investigation to have been involved.”
Ironically, the official minutes of the City Council meeting indicate that concern was expressed by some members about possible adverse legal consequences that could flow from their release of the reports to the media. The City Counselor assured the Council that although an action might be maintained against any witnesses who made unfounded accusations, “the City does have governmental immunity in this area . . . and neither the Council nor the City as a municipal corporation can be held liable for libelous slander.” App. 20-23.
See n. 2, supra.
The investigation and its culmination in petitioner’s firing received front-page attention in the local press. See, e. g., “Lid Off Probe, Council Seeks Action,” Independence Examiner, Apr. 18, 1972, Tr. 24-25; “Independence Accusation. Police Probe Demanded,” Kansas City Times, Apr. 18, 1972, Tr. 25; “Probe Culminates in Chief’s Dismissal,” Independence Examiner, Apr. 19, 1972, Tr. 26; “Police Probe Continues; Chief Ousted,” Community Observer, Apr. 20, 1972, Tr. 26.
Petitioner did not join former Councilman Roberts in the instant litigation. A separate action seeking defamation damages was brought in state court against Roberts and Alberg in their individual capacities. Petitioner dismissed the state suit against Alberg and reached a financial settlement with Roberts. See
The District Court, relying on Monroe v. Pape,
The District Court offered three reasons to support its conclusion: First, because the actual discharge notice stated only that petitioner was “[t]er-minated under the provisions of Section 3.3 (1) of the City Charter,” nothing in his official record imputed any stigmatizing conduct to him. .Second, the court found that the City Council’s actions had no causal connection to petitioner’s discharge, for City Manager Alberg had apparently
As an alternative ground for denying relief, the District Court ruled that the city was entitled to assert, and had in fact established, a qualified immunity against liability based on the good faith of the individual defendants who acted as its agents: “[Defendants have clearly shown by a preponderance of the evidence that neither they, nor their predecessors, were aware, in April 1972, that, under the circumstances, the Fourteenth Amendment accorded plaintiff the procedural rights of notice and a hearing at the time of his discharge. Defendants have further proven that they cannot reasonably be charged with constructive notice of such rights since plaintiff was discharged prior to the publication of the Supreme Court decisions in Roth v. Board of Regents, [
Both parties had appealed from, the District Court’s decision. On respondents’ challenge to the court’s assumption of subject-matter jurisdiction under 28 U. S. C. § 1331, the Court of Appeals held that the city was subject to suit for reinstatement and backpay under an implied right of action arising directly from the Fourteenth Amendment.
As compensation for the denial of his constitutional rights, the Court of Appeals awarded petitioner damages in lieu of backpay. The court explained that petitioner’s termination without a hearing must be considered a nullity, and that ordinarily he ought to remain on the payroll and receive wages until a hearing is held and a proper determination on his retention is made. But because petitioner had reached the mandatory retirement age during the course of the litigation, he could not be reinstated to his former position. Thus the compensatory award was to be measured by the amount of money petitioner would likely have earned to retirement had he not been deprived of his good name by the city’s actions, subject to mitigation by the amounts actually earned, as well as by the recovery from Councilman Roberts in the state defamation suit.
The Court of Appeals rejected the municipality’s assertion of a good-faith defense, relying upon a footnote in Wood v. Strickland,
Although respondents did not cross petition on this issue, they have raised a belated challenge to the Court of Appeals’ ruling that petitioner was deprived of a protected “liberty” interest. See Brief for Respondents 45-46. We find no merit in their contention, however, and decline to disturb the determination of the court below.
Wisconsin v. Constantineau,
Cf. Wood v. Strickland,
The Courts of Appeals are divided on the question whether local governmental units are entitled to a qualified immunity based on the good faith of their officials. Compare Bertot v. School Dist. No. 1,
See n. 1, supra.
As we noted in Monell v. New York City Dept. of Social Services, see
“[This section’s] whole effect is to give to the Federal Judiciary that which now does not belong to it — a jurisdiction that may be constitutionally conferred upon it, I grant, but that has never yet been conferred upon it. It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action*637 against the wrong-doer in the Federal courts, and that without any limit whatsoever as to the amount in controversy. . . .
. . That is the language of this bill. Whether it is the intent or not I know not, but it is the language of the bill; for there is no limitation whatsoever upon the terms that are employed, and they are as comprehensive as can be used.” Globe App. 216-217.
The governmental immunity at issue in the present case differs significantly from the official immunities involved in our previous decisions. In those cases, various government officers had been sued in their individual capacities, and the immunity served to insulate them from personal liability for damages. Here, in contrast, only the liability of the municipality itself is at issue, not that of its officers, and in the absence of an immunity, any recovery would come from public funds.
Primary among the constitutional suits heard in federal court were those based on a municipality’s violation of the Contract Clause, and the courts’ enforcement efforts often included “various forms of ‘positive’ relief, such as ordering that taxes be levied and collected to discharge federal-court judgments, once a constitutional infraction was found.” Monell v. New York City Dept. of Social Services,
See infra, at 644-650.
See generally C. Rhyne, Municipal Law 729-789 (1957); Shearman &
Accord, Bunker v. City of Hudson,
Even in England, where the doctrine of official immunity followed by the American courts was first established, no immunity was granted where the damages award was to come from the public treasury. As Baron Bramwell stated in Buck v. Williams, 3 H. & N. 308, 320, 157 Eng. Rep. 488, 493 (Exch. 1858):
“I can well understand if a person undertakes the office or duty of a Commissioner, and there are no means of indemnifying him against the consequences of a slip, it is reasonable to hold that he should not be responsible for it. I can also understand that, if one of several Commissioners does something not within the scope of his authority, the Commissioners as a body are not liable. But where Commissioners, who are a quasi corporate body, are not affected [i. e., personally] by the result of an action, inasmuch as they are authorized by act of parliament to raise a fund for payment of the damages, on what principle is it that, if an individual member of the public suffers from an act bona fide but erroneously done, he is not to be compensated? It seems to me inconsistent with actual justice, and not warranted by any principle of law.”
See generally Shearman & Redfield §§ 133, 178.
Senator Stevenson proceeded to read from the decision in Prather v. Lexington,
“Where a particular act, operating injuriously to an individual, is authorized by a municipal corporation, by a delegation of power either general or special, it will be liable for the injury in its corporate capacity, where the acts done would warrant a like action against an individual. But as a general rule a corporation is not responsible for the unauthorized and unlawful acts of its officers, although done under the color of their office; to render it liable it must appear that it expressly authorized the acts to be done by them, or that they were done in pursuance of a general authority to act for the corporation, on the subject to which they relate. (Thayer v. Boston,19 Pick., 511 .) It has also been held that cities are responsible to the same extent, and in the same manner, as natural persons for injuries occasioned by the negligence or unskillfulness of their agents jn the constmction .of works for their benefit.” Globe 762.
At one point in the'debafesPSenator Stevenson did protest that the Sherman amendment would, for the first time, “create a corporate liability for personal injury which no prudence or foresight could have prevented.” Ibid. As his later remarks made clear, however, Stevenson’s objection went only to the novelty of the amendment’s creation of vicarious municipal liability for the unlawful acts of private individuals, “even if a municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything about it.” Monell v. New York City Dept. of Social Services,
See, e. g., Globe 365 (remarks of Rep. Arthur) (“But if the Legislature enacts a law, if the Governor enforces it, if the judge upon the bench renders a judgment, if the sheriff levy an execution, execute a writ, serve a summons, or make an arrest, all acting under a solemn, official oath,
In actuality, the distinction between a municipality’s governmental and proprietary functions is better characterized not as a line, but as a succession of points. In efforts to avoid the often-harsh results occasioned by a literal application of the test, courts frequently created highly artificial and elusive distinctions of their own. The result was that the very same activity might be considered “governmental” in one jurisdiction, and “proprietary” in another. See 18 McQuillin § 53.02, at 105. See also W. Prosser, Law of Torts § 131, p. 979 (4th ed. 1971) (hereinafter Pros-ser) . As this Court stated, in reference to the “ ‘nongovernmental’-‘governmental’ quagmire that has long plagued the law of municipal corporations”: “A comparative study of the cases in the forty-eight States will disclose an irreconcilable conflict. More than that, the decisions in each of the States are disharmonious and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound.” Indian Towing Co. v. United States,
“While acting in their governmental capacity, municipal corporations proper are given the benefit of that same rule which is applied to the sovereign power itself, and are afforded complete immunity from civil responsibility for acts done or omitted, unless such responsibility is expressly created by statute. When, however, they are not acting in the exercise of their purely governmental functions, but are performing duties that pertain to the exercise of those private franchises, powers, and privileges which belong to them for theirown. corporate benefit, or are dealing with property held by them for their own corporate gain or emolument, then a different rule of liability is applied and they are generally held responsible for injuries arising from their negligent acts or their omissions to the same extent as a private corporation under like circumstances.” Williams §4, at 9. See generally 18 McQuillin §§53.02, 53.04, 53.24; Prosser § 131, at 977-983; James, Tort Liability of Governmental Units and Their Officers, 22 U. Chi. L. Rev. 610, 611-612, 622-629 (1955).
Although it has never been understood how the doctrine of sovereign immunity came to be adopted in the American democracy, it apparently stems from the personal immunity of the English Monarch as expressed in the maxim, “The King can do no wrong.” It has been suggested, however, that the meaning traditionally ascribed to this phrase is an ironic perversion of its original intent: “The maxim merely meant that the King was not privileged to do wrong. If his acts were against the law, they were injuriae (wrongs). Bracton, while ambiguous in his several statements as to the relation between the King and the law, did not intend .to convey the idea that he was incapable of committing a legal wrong.” Borchard, Government Liability in Tort, 34 Yale L. J. 1, 2, n. 2 (1924). See also Kates & Kouba, Liability of Public Entities Under Section 1983 of the Civil Rights Act, 45 S. Cal. L. Rev. 131, 142 (1972).
In this country, “[t]he sovereign or governmental immunity doctrine, holding that the state, its subdivisions and municipal entities, may not be
The common-law immunity for governmental functions is thus more comparable to an absolute immunity from liability for conduct of a certain character, which defeats a suit at the outset, than to a qualified immunity, which “depends upon the circumstances and motivations of [the official’s] actions, as established by the evidence at trial.” Imbler v. Pachtman,
Municipal defenses — including an assertion of sovereign immunity— to a federal right of action are, of course, controlled by federal law. See Fitzpatrick v. Bitzer,
See generally 18 McQuillin § 53.04a; Shearman & Redfield §§ 127-130; Williams § 6, at 15-16. Like the govemmental/proprietary distinction, a clear line between the municipality’s “discretionary” and “ministerial” functions was often hard to discern, a difficulty which has been mirrored in the federal courts’ attempts to draw a similar distinction under the Federal Tort Claims Act, 28 U. S. C. §2680 (a). See generally 3 K. Davis, Administrative Law Treatise §25.08 (1958 and Supp. 1970).
Cf. P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 336 (2d ed. 1973) (“[W]here constitutional rights are at stake the courts are properly astute, in construing statutes, to avoid the conclusion that Congress intended to use the privilege of immunity ... in order to defeat them”).
The absence of any damages remedy for violations of all but the most “clearly established” constitutional rights, see Wood v. Strickland,
For example, given the discussion that preceded the Independence City Council’s adoption of the allegedly slanderous resolution impugning petitioner’s integrity, see n. 6, supra, one must wonder whether this entire litigation would have been necessary had the Council members thought that the city might be liable for their misconduct.
Cf. Albemarle Paper Co. v. Moody,
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 system-wide measures in order to increase the vigilance with which otherwise indifferent municipal officials protect citizens’ constitutional rights Js, of course, particularly acute where the frontline officers are judgment-proof in their individual capacities.
On at least two previous occasions, this Court has expressly recognized that different considerations come into play when governmental rather than personal liability is threatened. Hutto v. Finney,
Our decision in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,
Wood v. Strickland,
Monell v. New York City Dept. of Social Services indicated that the principle of loss-spreading was an insufficient justification for holding the municipality liable under § 1983 on a respondeat superior theory.
“The imposition of monetary costs for mistakes which were not unreasonable in the light of all the circumstances would undoubtedly deter even the most conscientious school decisionmaker from exercising his judgment independently, forcefully, and in a manner best serving the long-term interest of the school and the students.” Wood v. Strickland, supra, at 319-320.
Note, Developments in the Law: Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1224 (1977). See also Johnson v. State,
“Nor do we deem an employee’s concern over the potential liability of his employer, the governmental unit, a justification for an expansive definition of 'discretionary/ and hence immune, acts. As a threshold matter, we consider it unlikely that the possibility of government liability will be*657 a serious deterrent to the fearless exercise of judgment by the employee. In any event, however, to the extent that such a deterrent effect takes hold, it may be wholesome. An employee in a private enterprise naturally gives some consideration to the potential liability of his employer, and this attention unquestionably promotes careful work; the potential liability of a governmental entity, to the extent that it affects primary conduct at all, will similarly influence public employees.” (Citation and footnote omitted.)
Dissenting Opinion
with whom The Chief Justice, Mr. Justice Stewart, and Mr. Justice Rehnquist join, dissenting.
The Court today holds that the city of Independence may be liable in damages for violating a constitutional right that was unknown when the events in this case, occurred. It finds a denial of due process in the city’s failure to grant petitioner a hearing to clear his name after he was discharged. But his dismissal involved only the proper exercise of discretionary powers according to prevailing constitutional doctrine. The city imposed no stigma on petitioner that would require a “name clearing” hearing under the Due Process Clause.
On the basis of this alleged deprivation of rights, the Court interprets 42 U. S. C. § 1983 to impose strict liability on municipalities for constitutional violations. This strict liability approach inexplicably departs from this Court’s prior decisions under § 1983 and runs counter to the concerns of the 42d Congress when it enacted the statute. The Court’s ruling also ignores the vast weight of common-law precedent as well as the current state law of municipal immunity. For these reasons, and because this decision will hamper local governments unnecessarily, I dissent.
I
The Court does not question the District Court’s statement of the facts surrounding Owen’s dismissal. Ante, at 625. It nevertheless rejects the District Court’s conclusion that no due process hearing was necessary because “the circumstances of [Owen’s] discharge did not impose a stigma of illegal or immoral conduct on his professional reputation.”
A
From 1967 to 1972, petitioner Owen served as Chief of the Independence Police Department at the pleasure of the City Manager.
In early April, the City Auditor reported that the records in the property room were so sparse that he could not conduct an audit. The City Counselor reported that “there was no evidence of any criminal acts, or violation of any state law or municipal ordinances, in the administration of the property room.”
On April 13, the City Manager asked Lieutenant Cook of the Police Department if he would be willing to take over as Chief. Alberg also released the following statement to the public:
“At my direction, the City Counselor’s office, [i]n conjunction with the City Auditor ha[s] ¡completed a routine audit of the police property room.
*660 “Discrepancies were found in the administration, handling and security of recovered property. There appears to be no evidence to substantiate any allegations of a criminal nature. . . .”560 F. 2d, at 928-929 .
The District Court found that the City Manager decided on Saturday, April 15, to replace Owen with Lieutenant Cook as Chief of Police.
On April 18, Alberg “implemented his prior decision to discharge [Owen] as Chief of Police.”
The City Manager referred to the Prosecuting Attorney all reports on the property room. The grand jury returned a “no true bill,” and there has been no further official action on the matter. Owen filed a state lawsuit against Councilman
This federal action was filed in 1976. Owen alleged that he was denied his liberty interest in his professional reputation when he was dismissed without formal charges or a hearing. Id., at 8, 10.
B
Due process requires a hearing on the discharge of a government employee “if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination. . . .” Codd v. Velger,
The events surrounding Owen’s dismissal “were prominently reported in local newspapers.”
The City Manager gave no specific reason for dismissing Owen. Instead, he relied on his discretionary authority to discharge top administrators “for the good of the service.” Alberg did not suggest that Owen “had been guilty of dishonesty, or immorality.” Board of Regents v. Roth, supra, at 573. Indeed, in his “property room” statement of April 13, Alberg said that there was “no evidence to substantiate any allegations of a criminal nature.” This exoneration was reinforced by the grand jury’s refusal to initiate a prosecution in the matter. Thus, nothing in the actual firing cast such a stigma on Owen’s professional reputation that his liberty was infringed.
The Court does not address directly the question whether any stigma was imposed by the discharge. Rather, it relies on the Court of Appeals’ finding that stigma derived from events “connected with” the firing. Ante, at 633;
Even if the Council resolution is viewed as part of the discharge process, Owen has demonstrated no denial of his liberty; Neither the City Manager nor the Council cast any aspersions on Owen’s character. Alberg absolved all connected with the property rodm of any illegal activity, while the Council resolution alleged no wrongdoing. That events focused public attention upon Owen’s dismissal is undeniable;' such attention is a condition of employment — and of discharge — for high government officials. Nevertheless, nothing in the actions of the City Manager or the City Council triggered a constitutional right to a name-clearing hearing.
The statements by Councilman Roberts were neither measured nor benign, but they provide no basis for this action against the city of Independence. Under Monell v. New York City Dept. of Social Services,
As the District Court concluded, “[a]t most, 'the circumstances . . . suggested that, as Chief of Police, [Owen] had been an inefficient administrator.”
II
Having constructed a constitutional deprivation from the valid exercise of governmental authority, the Court holds that municipalities are strictly liable for their constitutional torts. Until two years ago, municipal corporations enjoyed absolute immunity from § 1983 claims. Monroe v. Pape, 365 U. S.
After today’s decision, municipalities will have gone in two short years from absolute immunity under § 1983 to strict liability. As a policy matter, I believe that strict municipal liability unreasonably subjects local governments to damages judgments for actions that were reasonable when performed. It converts municipal governance into a hazardous slalom through constitutional obstacles that often are unknown and unknowable.
The Court’s decision also impinges seriously on the prerogatives of municipal entities created and regulated primarily by the States. At the very least, this Court should not initiate a federal intrusion of this magnitude in the absence of explicit congressional action. Yet today’s decision is supported by nothing in the text of § 1983. Indeed, it conflicts with the apparent intent of the drafters of the statute, with the common law of municipal tort liability, and with the current state law of municipal immunities.
A
1
Section 1983 provides a private right of action against “[e]very person” acting under color of state law who imposes or causes to be imposed a deprivation of constitutional rights.
This approach reflects several concerns. First, the common-law traditions of immunity for public officials could not have been repealed by the “general language” of § 1983. Tenney v. Brandhove, supra, at 376; see Imbler v. Pachtman, supra, at 421-424; Pierson v. Ray,
In response to these considerations, the Court has found absolute immunity from § 1983 suits for state legislators, Tenney v. Brandhove, supra, judges, Pierson v. Ray, supra, at 553-555, and prosecutors in their role as advocates for the State, Imbler v. Pachtman, supra. Other officials have been granted a qualified immunity that protects them when in good faith they have implemented policies that reasonably were thought to be constitutional. This limited immunity extends to police officers, Pierson v. Ray, supra, at 555-558, state executive officers, Scheuer v. Rhodes, supra, local school board members, Wood v. Strickland, supra, the super
The Court today abandons any attempt to harmonize § 1983 with traditional tort law. ' It points out that municipal immunity may be abrogated by legislation. Thus, according to the Court, Congress “abolished” municipal immunity when it included municipalities “within the class of ‘persons’ subject to liability” under § 1983. Ante, at 647.
This reasoning flies in the face of our prior decisions under this statute. We. have held repeatedly that “immunities ‘well grounded in history and reason’ [were not] abrogated ‘by covert inclusion in the general language’ of § 1983.” Imbler v. Pachtman, supra, at 418, quoting Tenney v. Brandhove, supra, at 376. See Scheuer v. Rhodes, supra, at 243-244; Pierson v. Ray, supra, at 554. The peculiar nature of the Court’s position emerges when the status of executive officers under § 1983 is compared with that of local governments. State and local executives are personally liable for bad-faith or unreasonable constitutional torts. Although Congress' had the power to make those individuals liable for all such torts, this Court has refused to find an abrogation of traditional immunity in a statute that does not mention immunities. Yet the Court now views the enactment of § 1983 as a direct abolition of traditional municipal immunities. Unless the Court is overruling its previous immunity decisions, the silence in § 1983 must mean that the 42d Congress- mutely accepted the immunity of executive officers, but silently rejected common-law municipal immunity. I find this interpretation of the statute singularly implausible.
2
Important public policies support the extension of qualified immunity to local governments. First, as recognized by the doctrine of separation of powers, some governmental decisions should be at least presumptively insulated from judicial re
Because today’s decision will inject constant consideration of § 1983 liability into local decisionmaking, it may restrict the independence of local governments and their ability to respond to the needs of their communities. Only this Term, we noted that the “point” of immunity under § 1983 “is to forestall an atmosphere of intimidation that would conflict with [officials’] resolve to perform their designated functions in a principled fashion.” Ferri v. Ackerman,
The Court now argues that local officials might modify their actions unduly if they face personal liability under § 1983, but that they are unlikely to do so when the locality itself will be held liable. Ante, at 655-656. This contention denigrates the sense of responsibility of municipal officers, and misunderstands the political process. Responsible local officials will be concerned about potential judgments against
In addition, basic fairness requires a qualified immunity for municipalities. The good-faith defense recognized under § 1983 authorizes liability only when officials acted with malicious intent or when they “knew or should have known that their conduct violated the constitutional norm.” Procunier v. Navarette,
B
The Court searches at length — and in vain — for legal authority to buttress its policy judgment. Despite its general statements to the contrary, the Court can find no support for its position in the debates on the civil rights legislation that included § 1983. Indeed, the legislative record suggests that
1
The modern dispute over municipal liability under § 1983 has focused on the defeat of the Sherman amendment during the deliberations on the Civil Rights Act of 1871. E. g., Monroe v. Pape,
Because Senator Sherman initially proposed strict municipal liability for constitutional torts, the discussion of his amendment offers an invaluable insight into the attitudes of his colleagues on the question now before the Court. Much of the resistance to the measure flowed from doubts as to Congress’ power to impose vicarious liability on local governments. Monell v. New York City Dept. of Social Services,
First, several legislators expressed trepidation that the proposal’s strict liability approach could bankrupt local governments. They warned that liability under the proposal could bring municipalities “to a dead stop.” Cong. Globe, 42d Cong., 1st Sess., 763 (1871) (Sen. Casserly). See id., at 762 (Sen. Stevenson); id., at 772 (Sen. Thurman). Representative Bingham argued that municipal liability might be so great under the measure as to deprive a community “of the means of administering justice.” Id., at 798. Some Congressmen argued that strict liability would inhibit the effective operation of municipal corporations. The possibility of liability, Representative Kerr insisted, could prevent local officials from exercising “necessary and customary functions.” Id., at 789. See id., at 763 (Sen. Casserly); id., at 808 (Rep. Garfield).
“Is not that right? Why make the county, or town, or parish liable when it had no reason whatsoever, to anticipate that any such crime was about to be committed, and when it had no knowledge of the commission of the crime until after it was committed? What justice is there in that?” Ibid.
These concerns were echoed in the House of Representatives. Representative Kerr complained that “it is not required, before liability shall attach, that it shall be known that there was any intention to commit these crimes, so as to fasten liability justly upon the municipality.” Id., at 788. He denounced the “total and absolute absence of notice, constructive or implied, within any decent limits of law or reason,” adding that the proposal “takes the property of one and gives it to another by mere force, without right, in the absence of guilt or knowledge, or the possibility of either.” Ibid. Similarly, Representative Willard argued that liability “is only warranted when the community . . . has proved faithless to its duties. . . .” Id., at 791. He criticized the absence of a requirement that it be “prov[ed] in court that there has been any default, any denial, any neglect on the part of
Partly in response to these objections, the amendment as finally enacted conditioned liability on a demonstration that the defendant knew that constitutional rights were about to be denied. Representative Poland introduced the new measure, noting that “any person who has knowledge of any of the offenses named . . . shall [have a] duty to use all reasonable diligence within his power to prevent it.” Id., at 804 (emphasis supplied). The same point was made by Representative Shellabarger, the sponsor of the entire Act and, with Representative Poland, a member of the Conference Committee that produced the final draft. Id., at 804-805; see id., at 807 (Rep: Garfield).
On the Senate side, one conferee stated that under the final version
“in order to make the [municipal] corporation liable as a body it must appear in some way to the satisfaction of the jury that the officers of the corporation, those persons whose duty it was to repress tumult, if they could, had reasonable notice of the fact that there was a tumult, or was likely to be one, and neglected to take the necessary means to prevent it.” Id., at 821 (Sen. Edmunds).
Senator Sherman disliked the revised provision. He complained that “before you can make [a person] responsible you have got to show that they had knowledge that the specific wrongs upon the particular person were about to be wrought.” Ibid.
These objections to the Sherman amendment apply with equal force to strict municipal liability under § 1983. Just
The Court declares that its rejection of qualified immunity is “compelled” by the “legislative purpose” in enacting § 1983. Ante, at 650. One would expect powerful documentation to back up such a strong' statement. Yet the Court notes only three features of the legislative history of the Civil Rights Act. Far from “compelling” the Court’s strict liability approach, those features of the congressional record provide scant support for its position.
First, the Court reproduces statements by Congressmen attesting to the broad remedial scope of the law. Ante, at 636, and n. 17. In view of our many decisions recognizing the immunity of officers under § 1983, supra, at 666-667, those statements plainly shed no light on congressional intent with respect to immunity under the statute. Second, the Court cites Senator Stevenson’s remark that frequently “a statutory liability has been created against municipal corporations for injuries resulting from a neglect of corporate duty.” Ante, at 642-643, citing Cong. Globe, 42d Cong., 1st Sess., 762 (1871). The Senator merely stated the unobjectionable proposition that municipal immunity could be qualified or abolished by statute. This fragmentary observation provides no basis for the Court’s version of the legislative history.
Finally, the Court emphasizes the lack of comment on municipal immunity when opponents of the bill did discuss the immunities of government officers. “Had there been a
2
The Court’s decision also runs counter to the common law in the 19th century, which recognized substantial tort immunity for municipal actions. E. g., 2 J. Dillon, Law of Municipal Corporations §§ 753, 764, pp. 862-863; 875-876 (2d ed. 1873); W. Williams, Liability of Municipal Corporations for Tort 9, 16 (1901). Nineteenth-century courts generally held that municipal corporations were not liable for acts undertaken in their “governmental,” as opposed to their “proprietary,” capacity.
More directly relevant to this case is the common-law distinction between the “discretionary” and “ministerial” duties of local governments. This Court wrote in Harris v. District of Columbia,
“[H]ow careful we must be that courts and juries do not encroach upon the functions committed to other public officers. It belongs to the province of town councils to direct the drainage of our towns, according to the best of their means and discretion, and we cannot directly or indirectly control them in either. No law allows us to substitute the judgment of a jury ... for that of the representatives of the town itself, to whom the business is especially committed by law.”
Today’s decision also conflicts with the current law in 44 States and the District of Columbia. All of those jurisdictions provide municipal immunity at least analogous to a “good faith” defense against liability for constitutional torts. Thus, for municipalities in almost 90% of our jurisdictions, the Court creates broader liability for constitutional deprivations than for state-law torts.
Sixteen States and the District of Columbia follow the traditional rule against recovery for damages imposed by discretionary decisions that are confided to particular officers or organs of government.
C
The Court turns a blind eye to this overwhelming evidence that municipalities have enjoyed a qualified immunity and to the policy considerations that for the life of this Republic have justified its retention. This disregard of precedent and policy is especially unfortunate because suits under § 1983 typically implicate evolving constitutional standards. A good-faith defense is much more important for those actions than in those involving ordinary tort liability. The duty not to run over a pedestrian with a municipal bus is far less likely to change than is the rule as to what process, if any, is due the busdriver if he claims the right to a hearing after discharge.
The right of a discharged government employee to a “name clearing” hearing was not recognized until our decision in Board of Regents v. Roth,
Under § 3.3 (1) of the Independence City Charter in effect in 1972, the City Manager had the power to “[a)ppoint, and when deemed necessary for the good of the service, lay off, suspend, demote, or remove all directors, or heads, of administrative departments. . . .” Section 3.8 of that Charter stated that the Chief of Police is the “director” of the Police Department. Charter of the City of Independence, Mo. (Dec. 5, 1961) (hereinafter cited as Charter).
In its answer to Owen’s complaint in this action, the city cited the state-court action as Owen v. Roberts and Alberg, Case No. 778,640 (Jackson County, Mo., Circuit Ct.). App. 15.
Owen initially claimed that his property interests in the job also were violated. The Court of Appeals affirmed the District Court’s rejection of that contention,
The Court suggests that the city should have presented a cross-petition for certiorari in order to argue that Owen has no cause of action. Ante, at 633, n. 13. It is well settled that a respondent “may make any argument presented below that supports the judgment of the lower court.” Hankerson v. North Carolina,
The City Charter prohibits any involvement of Council members in the City Manager’s personnel decisions. Section 2.11 of the Charter states that Council members may not “participate in any manner in the appointment or removal of officers and employees of the city.” Violation of § 2.11 is a misdemeanor that may be punished by ejection from office.
The Court suggests somewhat cryptically that stigma was imposed on Owen when “the city — through the unanimous resolution of the City Council — released to the public an allegedly false statement impugning petitioner’s honesty and integrity.” Ante, at 633, n. 13. The Court fails, however, to identify any “allegedly false statement.” The resolution did call for public disclosure of the reports on the property room situation, but those reports were never released. Ante, at 630. Indeed, petitioner’s complaint alleged that the failure to release those reports left “a cloud or suspicion of misconduct” over him. App. 8. The resolution also referred the reports to the prosecutor and called on the City Manager to take appropriate action. Neither event could constitute the public release of an “allegedly false statement” mentioned by the Court.
Roberts himself enjoyed absolute immunity from § 1983 suits for acts taken in his legislative capacity. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,
This case bears some resemblance to Martinez v. California,
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. ...” 42 U. S. C. § 1983.
The Court’s argument is not only unpersuasive, but also is internally inconsistent. The Court contends that strict liability is necessary to “create an incentive for officials ... to err on the side of protecting citizens’ constitutional rights.” Ante, at 651-652. Yet the Court later assures us that such liability will not distort municipal decisionmaking because “[t]he inhibiting effect is significantly reduced, if not eliminated, . . . when the threat of personal liability is removed.” Ante, at 656. Thus, the Court apparently believes that strict municipal liability is needed to modify public policies, but will not have any impact on those policies anyway.
The Court implies that unless municipalities are strictly liable under § 1983, constitutional law could be frozen “in its current state of development.” Ante, at 651, n. 33. I find this a curious notion. This could be the first time that the period between 1961, when Monroe declared local
For example, in a recent case in Alaska, a jury awarded almost $500,000 to a policeman who was accused of "racism and brutality” and removed from duty without notice and an opportunity to be heard. Wayson v. City of Fairbanks, 22 ATLA L. Rep. 222 (Alaska Fourth Dist. Super. Ct. 1979).
Ironically, the State and Federal Governments cannot be held liable for constitutional deprivations. The Federal Government has not waived its sovereign immunity against such claims, and the States are protected by the Eleventh Amendment.
Cong. Globe, 42d Cong., 1st Sess., 663 (1871). The proposal applied to any property damage or personal injury caused “by any persons riotously and tumultuously assembled together; and if such offense was committed to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude. . . .” As revised by the first Conference Com-tnittee on the Civil Rights Act, the provision still required no showing of hotice. Id., at 749.
The final Conference amendment stated:
“That any person or persons having knowledge that any of the wrongs . . . mentioned in the second section of this act, are about to be committed, and having power to prevent or aid in preventing the same, shall neglect or refuse to do so, and such wrongful act shall be committed, such person or persons shall be liable to the person injured or his legal representatives for all damages caused by any such wrongful act. . . Id., at 819.
Under 42 U. S. C. § 1986, the current version of the language approved in place of the Sherman amendment, liability “is dependent on proof of actual knowledge by a defendant of the wrongful conduct. . . .” Hampton v. Chicago,
In the leading case of Bailey v. Mayor &c. of the City of New York,
E. g., Goodrich v. Chicago,
The Court cannot wish away these extensive municipal immunities. It quotes two 19th-century treatises as referring to municipal liability for some torts. Ante, at 640. Both passages, however, refer to exceptions to the existing immunity rules. The first treatise cited by the Court concedes, though deplores, the fact that many jurisdictions embraced the govemmental/proprietary distinction. T. Shearman & A. Redfield, A Treatise on the Law of Negligence § 120, pp. 140-141 (1869). The same volume notes that local governments could not be sued for injury caused by discretionary acts, id., § 127, at 154, or for officers’ acts beyond the powers of the municipal corporation, id., § 140, at 169. The Court’s quotation from Dillon on Municipal Corporations stops just before that writer acknowledges that local governments are liable only for injury caused by nondiscretionary acts involving “corporate duties.” 2 J. Dillon, Law of Municipal Corporations § 764, p. 875 (2d ed. 1873). That writer’s full statement of municipal tort liability recognizes immunity for both governmental and discretionary acts. Dillon observes that municipal corporations may be held liable only “where a duty is a corporate one, that is, one which rests upon the municipality in respect of its special or local interests, and not as a public agency, and is absolute and perfect, and not discretionary or judicial in its nature. . . .” Id., § 778, at 891 (emphasis in original).
The Court takes some solace in the absence in the 19th century of a
The Court also points out that municipalities were subject to suit for some statutory violations and neglect of contractual obligations imposed by State or Federal Constitutions. Ante, at 639-640. That amenability to suit is simply irrelevant to the immunity available in tort actions, which controls the immunity available under § 1983.
The Court cites eight cases decided before 1871 as “reiterat[ing]” the principle announced in Thayer while awarding damages against municipalities for good-faith torts. Three of those cases involved the “special and peculiar” statutory liability of New England towns for highway maintenance, and are wholly-irrelevant to the Court’s argument. Billings v. Worcester,
The Court also notes that Senator Stevenson mentioned Thayer during the debates on the Sherman amendment- 'Ante, at 642, and nn. 23, 24. That reference, however, came during a speech denouncing the Sherman amendment for imposing tort liability on municipal corporations. To reinforce his contention, Senator Stevenson read from the decision in Prather v. Lexington,
Idaho Code § 6-904(1) (1979); Ill. Rev. Stat., ch. 85, §§ 2-103, 2-109, 2-201, 2-203 (1977); Ind. Code §§ 34-4-16.5-3 (6), (8) (1976); 1979 Kan. Sess. Laws, ch. 186, §4 (including specific exceptions to immunity); Mass. Gen. Laws Ann., ch. 258, §§ 10 (a), (b) (West Supp. 1979); Minn. Stat. §§ 466.03 (5), (6) (1978); Mont. Code Ann. §§ 2-9-103, 2-9-111, 2-9-112 (1979); Neb. Rev. Stat. §§ 23-2409 (1), (2) (1977) ; Nev. Rev. Stat. § 41.032 (1977); N. D. Cent. Code §32-12.1-03 (3) (Supp. 1979); Okla. Stat., Tit. 51, §§ 155 (1)-(5) (Supp. 1979); Ore. Rev. Stat. §§ 30.265 (3) (c), (f) (1979).
The Federal Tort Claims Act provides a similar exemption for damages suits against the Federal Government. 28 U. S. C. § 2680 (a). The goal of that provision, according to this Court, is to protect this “discretion of the executive or the administrator to act according to one's judgment of the best course. . . .” Dalehite v. United States,
Mayor and City Council of Baltimore v. Seidel,
Ark. Stat. Ann. § 12-2901 (1979); Shaw v. Mission, 88 S. D. 564,
1977 N. M. Laws, ch. 386, §§ 4-9; Pa. Stat. Ann., Tit. 53, § 5311.202 (b) (Purdon Supp. 1979-1980); Wright v. North Charleston, 271 S. C.
Iowa Code § 613A.4 (3) (1979).
Cal. Gov’t Code Ann. §§ 815.2, 820.2 (West 1966); Tango v. New Haven,
Colo. Rev. Stat. § 24-10-104 (1973); Mo. Rev. Stat. § 71.185 (1978); N. C. Gen. Stat. § 160A-485 (1976); Vt. Stat. Ann., Tit. 29, § 1403 (1970).
Ala. Code § 11-47-190 (1975); State v. Jennings,