Justice Stevens and Section 1983
By now, all of us know that Justice Stevens has announced that he will step down immediately after the last day of the 2009 Term (in late June or early July 2010). In this post, I want to call attention to Justice Stevens’s unheralded position advocating respondeat superior liability for section 1983 local government liability.
Justice Stevens and Local Government Liability
This position was articulated by Justice Stevens, dissenting in Oklahoma City v. Tuttle, 471 U.S. 808, 834-844 (1985), and concurring in part and concurring in the judgment in Pembaur v. Cincinnati, 475 U.S. 469, 489-491 (1986). Essentially, he argued that the Court got it wrong in the seminal decision in Monell v. Dept. of Social Services, 436 U.S. 658 (1978), where the Court held, rejecting respondeat superior liability, that a local government could only be liable for damages under section 1983 when a plaintiff’s constitutional deprivation was brought about by an official policy or custom of the local government.
In his view, respondeat superior liability was an appropriate basis for local government liability for several reasons. First, in 1871 when section 1983 was enacted, local governments were indeed vicariously liable for many of their employees’ acts. And second, section 1983’s “subjects, or causes to be subjected” language was not inconsistent with respondeat superior liability.
His Position Exhumed
In Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997), Justice Breyer, joined by Justices Stevens and Ginsburg, argued that in light of the increasing complexities of section 1983 local government liability, it was time to reexamine Monell‘s rejection of respondeat superior liability and its embrace of the official policy or custom requirement.
Justice Breyer maintained that Justice Stevens’s position was looking increasingly attractive because Monell had “produced an highly complex body of interpretive law.” He argued that “the legal prerequisites for reexamination of an important statute are present here.” Among other things, the soundness of the original principle distinguishing respondeat superior liability from the official policy or custom requirement was doubtful. Also, this requirement had created a body of law that was “neither readily understandable nor easy to apply.”
Furthermore, these complexities had made it difficult for local governments to predict just when they would be held liable. Finally, many local government indemnification statutes provided for payments to victims of constitutional violations that were similar to those that would be provided in a respondeat superior regime.
Not surprisingly, Justice Breyer’s call in Bryan County for a reexamination of Monell fell on deaf ears in 1997. It is even less likely in 2010 that the Court will ease the requirements for section 1983 local government liability given its continuing, almost obsessive, concern with avoiding section 1983 respondeat superior liability. See, for example, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which has been the subject of several posts, where the Court on its own changed the requirements for constitutional tort supervisory liability because of this concern.
Nevertheless, I wonder what the world of section 1983 local government liability would have looked like had the Court in Monell not rejected respondeat superior liability but instead adopted Justice Steven’s position.