Lead Opinion
delivered the opinion of the Court, except as to Part II-B.
In Monell v. New York City Dept. of Social Services,
I
Bertold Pembaur is a licensed Ohio physician and the sole proprietor of the Rockdale Medical Center, located in the city of Cincinnati in Hamilton County. Most of Pembaur’s patients are welfare recipients who rely on government assistance to pay for medical care. During the spring of 1977, Simon Leis, the Hamilton County Prosecutor, began investigating charges that Pembaur fraudulently had accepted payments from state welfare agencies for services not actually provided to patients. A grand jury was convened, and the case was assigned to Assistant Prosecutor William Whalen.
During the investigation, the grand jury issued subpoenas for the appearance of two of Pembaur’s employees. When these employees failed to appear as directed, the Prosecutor obtained capiases for their arrest and detention from the Court of Common Pleas of Hamilton County.
On May 19,1977, two Hamilton County Deputy Sheriffs attempted to serve the capiases at Pembaur’s clinic. Although the reception area is open to the public, the rest of the clinic may be entered only through a door next to the receptionist’s window. Upon arriving, the Deputy Sheriffs identified themselves to the receptionist and sought to pass through this door, which was apparently open. The receptionist blocked their way and asked them to wait for the doctor. When Pembaur appeared a moment later, he and the receptionist closed the door, which automatically locked from the inside, and wedged a piece of wood between it and the wall. Returning to the receptionist’s window, the Deputy Sheriffs identified themselves to Pembaur, showed him the capiases and explained why they were there. Pembaur refused to let them enter, claiming that the police had no legal authority to be there and requesting that they leave. He told them that he had called the Cincinnati police, the local media, and his lawyer. The Deputy Sheriffs decided not to take further action until the Cincinnati police arrived.
Shortly thereafter, several Cincinnati police officers appeared. The Deputy Sheriffs explained the situation to them and asked that they speak to Pembaur. The Cincinnati police told Pembaur that the papers were lawful and that he should allow the Deputy Sheriffs to enter. When Pembaur refused, the Cincinnati police called for a superior officer. When he too failed to persuade Pembaur to open the door,
After a final attempt to persuade Pembaur voluntarily to allow them to enter, the Deputy Sheriffs tried unsuccessfully to force the door. City police officers, who had been advised of the County Prosecutor’s instructions to “go in and get” the witnesses, obtained an axe and chopped down the door. The Deputy Sheriffs then entered and searched the clinic. Two individuals who fit descriptions of the witnesses sought were detained, but turned out not to be the right persons.
After this incident, the Prosecutor obtained an additional indictment against Pembaur for obstructing police in the performance of an authorized act. Although acquitted of all other charges, Pembaur was convicted for this offense. The Ohio Court of Appeals reversed, reasoning that Pembaur was privileged under state law to exclude the deputies because the search of his office violated the Fourth Amendment. State v. Pembaur, No. C-790380 (Hamilton County Court of Appeals, Nov. 3, 1982). The Ohio Supreme Court reversed and reinstated the conviction. State v. Pembaur,
On April 20, 1981, Pembaur filed the present action in the United States District Court for the Southern District of Ohio against the city of Cincinnati, the County of Hamilton,
Much of the testimony at the 4-day trial concerned the practices of the Hamilton County Police in serving capiases. Frank Webb, one of the Deputy Sheriffs present at the clinic on May 19, testified that he had previously served capiases on the property of third persons without a search warrant, but had never been required to use force to gain access. Assistant Prosecutor Whalen was also unaware of a prior instance in which police had been denied access to a third person’s property in serving a capias and had used force to gain entry. Lincoln Stokes, the County Sheriff, testified that the Department had no written policy respecting the serving of capiases on the property of third persons and that the proper response in any given situation would depend upon the circumstances. He too could not recall a specific instance in
The District Court awarded judgment to the defendants and dismissed the complaint in its entirety. The court agreed that the entry and search of Pembaur’s clinic violated the Fourth Amendment under Steagald, supra, but held Steagald inapplicable since it was decided nearly four years after the incident occurred. Because it construed the law in the Sixth Circuit in 1977 to permit law enforcement officials to enter the premises of a third person to serve a capias, the District Court held that the individual municipal officials were all immune under Harlow v. Fitzgerald,
The claims against the county and the city were dismissed on the ground that the individual officers were not acting pursuant to the kind of “official policy” that is the predicate for municipal liability under Monell. With respect to Hamilton County, the court explained that, even assuming that the entry and search were pursuant to a governmental policy, “it was not a policy of Hamilton County per se” because “[t]he Hamilton County Board of County Commissioners, acting on behalf of the county, simply does not establish or control the policies of the Hamilton County Sheriff.” With respect to the city of Cincinnati, the court found that “the only policy or custom followed . . . was that of aiding County Sheriff’s Deputies in the performance of their duties.” The court found that any participation by city police in the entry and search of The clinic resulted from decisions by individual officers as to the permissible scope of assistance they could provide, and not from a city policy to provide this particular kind of assistance.
On appeal, Pembaur challenged only the dismissal of his claims against Whalen, Hamilton County, and the city of Cin
The Court of Appeals affirmed the District Court’s dismissal of Pembaur’s claim against Hamilton County, but on different grounds. The court held that the County Board’s lack of control over the Sheriff would not preclude county liability if “the nature and duties of the Sheriff are such that his acts may fairly be said to represent the county’s official policy with respect to the specific subject matter.” Id., at 340-341. Based upon its examination of Ohio law, the Court of Appeals found it “clea[r]” that the Sheriff and the Prosecutor were both county officials authorized to establish “the official policy of Hamilton County” with respect to matters of law enforcement. Id., at 341. Notwithstanding these conclusions, however, the court found that Pembaur’s claim against the county had been properly dismissed:
“We believe that Pembaur failed to prove the existence of a county policy in this case. Pembaur claims that the deputy sheriffs acted pursuant to the policies of the Sheriff and Prosecutor by forcing entry into the medical center. Pembaur has failed to establish, however, anything more than that, on this one occasion, the Prosecutor and the Sheriff decided to force entry into his office. . . . That single, discrete decision is insufficient,*477 by itself, to establish that the Prosecutor, the Sheriff, or both were implementing a governmental policy.” Ibid. (footnote omitted) (emphasis in original).
Pembaur petitioned for certiorari to review only the dismissal of his claim against Hamilton County. The decision of the Court of Appeals conflicts with holdings in several other Courts of Appeals,
h-i t — I
A
Our analysis must begin with the proposition that “Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v. New York City Dept. of Social Services,
Monell is a case about responsibility. In the first part of the opinion, we held that local government units could be made liable under § 1983 for deprivations of federal rights, overruling a contrary holding in Monroe v. Pape,
The conclusion that tortious conduct, to be the basis for municipal liability under §1983, must be pursuant to a municipality’s “official policy” is contained in this discussion. The “official policy” requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsi
With this understanding, it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances. No one has ever doubted, for instance, that a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body — whether or not that body had taken similar action in the past or intended to do so in the future — because even a single decision by such a body unquestionably constitutes an act of official government policy. See, e. g., Owen v. City of Independence,
Indeed, any other conclusion would be inconsistent with the principles underlying § 1983. To be sure, “official policy” often refers to formal rules or understandings — often but not always committed to writing — that are intended to, and do, establish fixed plans of action to be followed under similar cir
B
Having said this much, we hasten to emphasize that not every decision by municipal officers automatically subjects the municipality to §1983 liability. Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.
C
Applying this standard to the case before us, we have little difficulty concluding that the Court of Appeals erred in dismissing petitioner’s claim against the county. The Deputy Sheriffs who attempted to serve the capiases at petitioner’s clinic found themselves in a difficult situation. Unsure of the proper course of action to follow, they sought instructions from their supervisors. The instructions they received were to follow the orders of the County Prosecutor. The Prosecutor made a considered decision based on his understanding of the law and commanded the officers forcibly to enter petitioner’s clinic. That decision directly caused the violation of petitioner’s Fourth Amendment rights.
Respondent argues that the County Prosecutor lacked authority to establish municipal policy respecting law enforcement practices because only the County Sheriff may establish policy respecting such practices. Respondent suggests that the County Prosecutor was merely rendering “legal advice” when he ordered the Deputy Sheriffs to “go in and get” the witnesses. Consequently, the argument concludes, the action of the individual Deputy Sheriffs in following this advice and forcibly entering petitioner’s clinic was not pursuant to a properly established municipal policy.
We might be inclined to agree with respondent if we thought that the Prosecutor had only rendered “legal advice.” However, the Court of Appeals concluded, based upon its examination of Ohio law, that both the County Sheriff and the County Prosecutor could establish county policy under appropriate circumstances, a conclusion that we do not question here.
The decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Notes
A capias is a writ of attachment commanding a county official to bring a subpoenaed witness who has failed to appear before the court to testify and to answer for civil contempt. See Ohio Rev. Code Ann. § 2317.21 (1981).
Hamilton County Prosecutor Leis was not made a defendant because counsel for petitioner believed that Leis was absolutely immune. Tr., Mar. 14-Mar. 17, p. 267. We express no view as to the correctness of this evaluation. Cf. Imbler v. Pachtman,
The court found that there was a city policy respecting the use of force in serving capiases as well as a policy of aiding county police. It based this conclusion on the testimony of Cincinnati Chief of Police Myron Leistler, who stated that it was the policy of his Department to take whatever steps were necessary, including the forcing of doors, to serve an arrest document.
See, e. g., McKinley v. City of Eloy,
There is no question in this case that petitioner suffered a constitutional deprivation. The Court of Appeals found, and respondent concedes, that the entry and search of petitioner’s clinic violated the Fourth Amendment under Steagald v. United States,
The opinion below also can be read as holding that municipal liability cannot be imposed for a single incident of unconstitutional conduct by municipal employees whether or not that conduct is pursuant to municipal policy. Such a conclusion is unsupported by either the language or reasoning of Monell, or by any of our subsequent decisions. As we explained last Term in Oklahoma City v. Tuttle,
This legislative history is discussed at length in Monell and need only be summarized here. The distinction between imposing liability on municipalities for their own violations and imposing liability to force municipalities to prevent violations by others was made by Members of the House of Representatives who successfully opposed the “Sherman amendment” to the Civil Rights Act of 1871, 17 Stat. 13, the precursor of § 1983. The Sherman amendment sought to impose civil liability on municipalities for damage done to the person or property of its inhabitants by private persons “riotously and tumultuously assembled.” Cong. Globe, 42d Cong., 1st Sess., 749 (1871) (quoted in Monell,
Thus, our statement of the conclusion juxtaposes the policy requirement with imposing liability on the basis of respondeat superior:
“We conclude, therefore, 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. . . , whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id., at 694.
While the dictionary is not the source definitively to resolve legal questions, we note that this description of “policy” is consistent with the word’s ordinary definition. For example, Webster’s defines the word as “a specific decision or set of decisions designed to carry out such a chosen course of action.” Webster’s Third New International Dictionary 1754 (1981). Similarly, the Oxford English Dictionary defines “policy” as “[a] course of action adopted and pursued by a government, party, ruler, statesman, etc.; any course of action adopted as advantageous or expedient.” VII Oxford English Dictionary 1071 (1933). See also, Webster’s New Twentieth Century Dictionary 1392 (2d ed. 1979) (“any governing principle, plan, or course of action”); Random House Dictionary 1113 (1966) (“a course of action adopted and pursued by a government, ruler, political party, etc.”).
Section 1983 also refers to deprivations under color of a state “custom or usage,” and the Court in Monell noted accordingly that “local govern
Respondent argues that the holding in Tuttle is far broader than this. It relies on the statement near the end of Justice Rehnquist’s plurality opinion that “[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”
This reading of the Tuttle plurality is strained, and places far too much weight on a single word. The plaintiff in Tuttle alleged that a police officer’s use of excessive force deprived her decedent of life without due process of law. The plaintiff proved only a single instance of unconstitutional action by a nonpolieymaking employee of the city. She argued that the city had “caused” the constitutional deprivation by adopting a “policy” of inadequate training. The trial judge instructed the jury that a single, unusually excessive use of force may warrant an inference that it was attributable to grossly inadequate training, and that the municipality could be held liable on this basis. We reversed the judgment against the city. Although there was no opinion for the Court on this question, both the plurality and the opinion concurring in the judgment found plaintiff’s submission inadequate because she failed to establish that the unconstitutional act was taken pursuant to a municipal policy rather than simply resulting from such a policy in a “but for” sense. Id., at 822-824 (plurality opinion), 829-830 (Brennan, J., concurring in part and concurring in judgment). That conclusion is entirely consistent with our holding today that the policy which ordered or authorized an unconstitutional act can be established by a single decision by proper municipal policymakers.'
Thus, for example, the County Sheriff may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy. If this were the case, the Sheriff’s decisions respecting employment would not give rise to municipal liability, although similar decisions with respect to law enforcement practices, over which the Sheriff is the official policymaker, would give rise to municipal liability. Instead, if county employment policy was set by the Board of County Commissioners, only that body’s decisions would provide a basis for county liability. This would be true even if the Board left the Sheriff discretion to hire and fire employees and the Sheriff exercised that discretion in an unconstitutional manner; the decision to act unlawfully would not be a decision of the Board. However, if the Board delegated its power to establish final employment policy to the Sheriff, the Sheriff’s decisions would represent county policy and could give rise to municipal liability.
We generally accord great deference to the interpretation and application of state law by the courts of appeals. United States v. S.A. Empresa de Viacao Aerea Rio Grandense,
Concurrence Opinion
concurring.
The forcible entry made in this case was not then illegal under federal, state, or local law. The city of Cincinnati frankly conceded that forcible entry of third-party property to effect otherwise valid arrests was standard operating procedure. There is no reason to believe that respondent county would abjure using lawful means to execute the capiases issued in this case or had limited the authority of its officers to use force in executing capiases. Further, the county officials who had the authority to approve or disapprove such entries opted for the forceful entry, a choice that was later held to be inconsistent with the Fourth Amendment. Vesting discretion in its officers to use force and its use in this case sufficiently manifested county policy to warrant reversal of the judgment below.
Such results would not conform to Monell and the cases following it. I do not understand the Court to hold otherwise in stating that municipal liability attaches where “a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Ante, at 483-484. A sheriff, for example, is not the final policymaker with respect to the probable-cause requirement for a valid arrest. He has no alternative but to act in accordance with the established standard; and his deliberate or mistaken departure from the controlling law of arrest would not represent municipal policy.
In this case, however, the Sheriff and the Prosecutor chose a course that was not forbidden by any applicable law, a
The county has not challenged the retroactivity of Steagald v. United States,
Concurrence Opinion
concurring in part and concurring in the judgment.
This is not a hard case. If there is any difficulty, it arises from the problem of obtaining a consensus on the meaning of the word “policy” — a word that does not appear in the text of 42 U. S. C. § 1983, the statutory provision that we are supposed to be construing. The difficulty is thus a consequence of this Court’s lawmaking efforts rather than the work of the Congress of the United States.
With respect to both the merits of the constitutional claim and the county’s liability for the unconstitutional activities of its agents performed in the course of their official duties, there can be no doubt that the Congress that enacted the Ku Klux Act in 1871 intended the statute to authorize a recovery in a case of this kind. When police officers chopped down the door to petitioner’s premises in order to serve capiases on two witnesses, they violated petitioner’s constitutional rights. Steagald v. United States,
Because I believe that Parts I, II-A, and II-C are consistent with the purpose and policy of § 1983, as well as with our precedents, I join those Parts of the Court’s opinion
See Oklahoma City v. Tuttle,
Indeed, it can be argued that the justification for a forcible entry to serve a capias, as in this case, is even weaker than the justification for a forcible entry to execute an arrest warrant, as in Steagald. Since the Sixth Circuit in this action,
See
The fact that the Sixth Circuit and two other Circuits had reached a contrary conclusion does not transform Steagald into a nonretroactive opinion. This Court has never suggested that resolution of a split in the Circuits
Several commentators have concluded that the dicta in Monell v. New York City Dept. of Social Services,
Newport v. Fact Concerts, Inc.,
The reasons for my not joining Parts II and IV of Monell,
Dissenting Opinion
with whom The Chief Justice and Justice Rehnquist join, dissenting.
The Court today holds Hamilton County liable for the forcible entry in May 1977 by Deputy Sheriffs into petitioner’s office. The entry and subsequent search were pursuant to capiases for third parties — petitioner’s employees — who had failed to answer a summons to appear as witnesses before a grand jury investigating petitioner. When petitioner refused to allow the Sheriffs to enter, one of them, at the request of his supervisor, called the office of the County Prosecutor for instructions. The Assistant County Prosecutor received the call, and apparently was in doubt as to what advice to give. He referred the question to the County Prosecutor, who advised the Deputy Sheriffs to “go in and get them [the witnesses]” pursuant to the capiases. This five-word response to a single question over the phone is now found by this Court to have created an official county policy for which Hamilton County is liable under § 1983. This holding is wrong for at least two reasons. First, the Prosecutor’s response and the Deputies’ subsequent actions did not violate any constitutional right that existed at the time of the forcible entry. Second, no official county policy could have been created solely by an offhand telephone response from a busy County Prosecutor.
» — I
Petitioner s allegation of a constitutional violation rests exclusively on Steagald v. United States,
The only way to transform this search — legitimate at the time — into a constitutional violation is to apply Steagald retroactively. This would not be a startling proposition if all that petitioner sought was retroactive application of a new rule of criminal law to a direct appeal from his criminal conviction.
The leading case explaining the framework of analysis for civil retroactivity is Chevron Oil Co. v. Huson,
When viewed in light of these factors, retroactive application of Steagald is not justified. First, Steagald overruled past Courts of Appeals precedent, and the decision had not been foreshadowed in opinions of this Court. The governing law in three Federal Circuits permitted searches of third parties’ homes pursuant to an arrest warrant, see swpra, at 493, and earlier decisions of this Court arguably supported such searches.
We ought to be even more wary of applying new rules of Fourth Amendment law retroactively to civil cases than we are with new rules of civil law. The primary reason for imposing §1983 liability on local government units is deterrence, so that if there is any doubt about the constitutionality of their actions, officials will “err on the side of protecting citizens’ rights.” Owen v. City of Independence,
Moreover, there is a significant cost to unwarranted deterrence of law enforcement officials. We recognized in Irnbler a strong state interest in “vigorous and fearless” prosecution, and found that to be “essential to the proper functioning of the criminal justice system.”
For these reasons, Steagald should not be applied retroactively. Consequently, petitioner has no constitutional violation of which to complain. I therefore would affirm the decision of the Court of Appeals.
Even if Steagald is applied retroactively, petitioner has failed to demonstrate the existence of an official policy for which Hamilton County can be liable. The action said to have created policy here was nothing more than a brief response to a single question over the telephone. The Deputy Sheriffs sought instructions concerning a situation that had never occurred before, at least in the memory of the participants. Ante, at 474-475. That in itself, and the fact that the Assistant Prosecutor had to obtain advice from the County Prosecutor, strongly indicate that no prior policy had been formed. Petitioner therefore argues that the County Prosecutor’s reaction in this case formed county policy. The sparse facts supporting petitioner’s theory — adopted by the Court today — do not satisfy the requirement in Monell v. New York City Dept. of Social Services,
A
Under Monell, local government units may be liable only when “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”
The Court variously notes that if a decision “is properly made by that government’s authorized decisionmakers, it surely represents an act of official government ‘policy’ as that term is commonly understood,” ante, at 481, and that “where action is directed by those who establish governmental policy, the municipality is equally responsible . . . ,” ibid. Thus, the Court’s test for determining the existence of policy focuses only on whether a decision was made “by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Ante, at 483-484.
In my view, the question whether official policy — in any normal sense of the term — has been made in a particular case is not answered by explaining who has final authority to make policy. The question here is not “could the County Prosecutor make policy?” but rather, “did he make policy?” By focusing on the authority granted to the official under state law, the Court’s test fails to answer the key federal question presented. The Court instead turns the question into one of state law. Under a test that focuses on the authority of the decisionmaker, the Court has only to look to state law for the resolution of this case. Here the Court of Appeals found that “both the County Sheriff and the County Prosecutor [had authority under Ohio law to] establish county policy under appropriate circumstances.” Ante, at 484. Apparently that recitation of authority is all that is needed under the Court’s test because no discussion is offered to demonstrate that the Sheriff or the Prosecutor actually used that authority to establish official county policy in this case.
B
In my view, proper resolution of the question whether official policy has been formed should focus on two factors: (i) the nature of the decision reached or the action taken, and (ii) the process by which the decision was reached or the action was taken.
Focusing on the nature of the decision distinguishes between policies and mere ad hoc decisions. Such a focus also reflects the fact that most policies embody a rule of general applicability. That is the tenor of the Court’s statement in Monell that local government units are liable under § 1983 when the action that is alleged to be unconstitutional “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”
Another factor indicating that policy has been formed is the process by which the decision at issue was reached. Formal procedures that involve, for example, voting by elected officials, prepared reports, extended deliberation, or official records indicate that the resulting decisions taken “may fairly be said to represent official policy,” Monell, supra, at 694. Owen v. City of Independence,
Applying these factors to the instant case demonstrates that no official policy was formulated. Certainly, no rule of general applicability was adopted. The Court correctly
Similarly, nothing about the way the decision was reached indicates that official policy was formed. The prosecutor, without time for thoughtful consideration or consultation, simply gave an off-the-cuff answer to a single question. There was no process at all. The Court’s holding undercuts
In fact, on direct appeal from his criminal conviction, petitioner did enjoy retroactive application of the rule in Steagald, although it did not entitle him to reversal of his conviction. State v. Pembaur,
If new criminal rules are so applied, it is possible that a person could obtain the benefit of retroactive application of a new criminal rule to his civil § 1983 case, even though he could not use the new rule to attack his conviction collaterally. A prisoner literally could be forced to remain in prison while collecting his civil damages award. In Shea v. Louisiana,
In Dalia v. United States,
Justice Stevens misunderstands the unique posture of this case. This is not a question of retroactivity of a new civil rule to civil cases versus retroactivity of a new criminal rule to criminal cases. The special concerns discussed in the text above arise in part out of the retroactive application of a new rule of criminal law to civil eases. I see little to be gained by comparing the societal costs of civil and criminal retroactivity, see concurring opinion of Stevens, J., ante, at 488-489, n. 3, because they can be severe in either case. Today’s opinion could result in even a nonnegligent mistake in judgment imposing heavy liability on units of local government, especially now in view of the skyrocketing cost — or unavailability — of liability insurance. See also Malley v. Briggs, ante, p. 335.
The Court’s only response to these concerns is to note that respondent has “never challenged and has in fact also conceded that Steagald applied retroactively to this case. ... We decide this case in light of respondent’s concessions.” Ante, at 477, n. 5. The retroactivity issue, however, is central to this case. We need not reach the difficult federal issues in this case if the Court correctly resolved Steagald’s retroactivity.
The focus on a rule of general applicability does not mean that more than one instance of its application is required. The local government unit may be liable for the first application of a duly constituted unconstitutional policy.
An example of official policy in the form of a rule of general applicability is Newport v. Fact Concerts, Inc.,
There is nothing in the record to support the inference relied on by Justices White and O’Connor. Nor has this Court ever held that because a policy has been adopted by one city or county we may assume that a similar policy has been adopted by neighboring cities or counties. After all, the city and county in this case are separate governmental entities.
Moreover, and again contrary to the views of my colleagues, this Court has never held — at least to my knowledge — that we may assume that simply because certain conduct is permitted by existing law, it must have been adopted as county policy. The undisputed facts in this case refute these assumptions by Justices White and O’CONNOR. Neither the Sheriffs who had been denied entry nor the Assistant County Prosecutor knew of any such policy. Otherwise, one of the Sheriffs would not have called the Prosecutor’s office, and certainly the Assistant Prosecutor would not have thought it necessary to put the question to the Prosecutor. Nor did the Prosecutor, when asked, say that the county’s policy was to force an entry when necessary to serve a valid arrest warrant. Rather, he simply said “go in and get them” — the sort of spontaneous reply that a busy official might make quite thoughtlessly. As noted above, the Sheriff testified that the proper response would depend on the circumstances.
Concurrence Opinion
concurring in part and concurring in the judgment.
For the reasons stated by Justice White, I agree that the municipal officers here were acting as policymakers within the meaning of Monell v. New York City Dept. of Social Services,