Owen v. City of Independence, MO Brief Amici Curiae

    IN' THE
(Euurt o f %  Im t r fi  States

October Term , 1979

No. 78-1779

George D. Ow en ,
Petitioner,

v.
T he City op I ndependence, M issouri, et al., 

Respondents.

BRIEF FOR NATIONAL EDUCATION ASSOCIATION 
AND LAWYERS' COMMITTEE FOR CIVIL RIGHTS 

UNDER LAW, AS AMICI CURIAE

On Writ of Certiorari to the United States 
Court of Appeals for the Eighth Circuit

JOHN B. JONES, JR. 
NORMAN REDLICH

Co-Chairmen

WILLIAM L. ROBINSON 
Director

NORMAN CHACHKIN 
Staff Attorney

Lawyers ’ Committee for Civil 
Rights Under Law 

733 Fifteenth Street, N.W. 
Washington, D. C. 20005

MICHAEL H. GOTTESMAN 
ROBERT M. WEINBERG 
JEREMIAH A. COLLINS 

B kedhoff, Go ttesm a n , Cohen 
& W einberg

1000 Connecticut Avenue, N.W. 
Washington, D. C. 20036

DAVID RUBIN
National Education Association 
1201 Sixteenth Street, N.W. 
Washington, D. C. 20036

WILLIAM E. CALDWELL 
Ratnek  and  Sttgarmon 
525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Amici Curiae

P ress of B yron  S. A d a m s  P r in t in g , I n c ., W a s h in g t o n , D. C.



TABLE OF CONTENTS
Page

T a b l e  o f  C i t a t i o n s .................................................................................. i

I n t e r e s t  o f  t h e  A m ic i  C u r i a e .......................................................  1

S u m m a r y  o f  A r g u m e n t ..........................     3

A r g u m e n t ....................................................................................................... 7

I. C o n g r e ss  D id  N o t  I n t e n d  M u n ic ip a l it ie s  To H a ve  
A n y  I m m u n i t y  I n  § 1983 S u i t s ............................  7

I I .  T h e  A r g u m e n t s  F or  I m p o r t in g  A  M u n ic ip a l  D a m ­
a ge  I m m u n i t y  I n t o  § 1983 A r e  W it h o u t  F o u n d a ­
t io n  ..................................................................   17

A. “Extending” To Municipalities The Qualified
Immunity Enjoyed By Public Officials Against 
Personal Liability ............................................. 17

B. Extrapolating A Qualified Immunity From The
Insulation Which Municipalities Enjoyed From 
Certain Tort Actions At Common Law ........... 24

1. Sovereign Immunity (the Governmental/
Proprietary Distinction) ............................  25

2. The Insulation of “Discretionary” Functions
From Negligence Suits.............................. 32

C o n c l u s i o n ..............................................................................     34

TABLE OF CITATIONS
C a se s  :

Allen v. New York, 1 Fed. Cases 506 (S.D.N.Y. 1879) .. 11
Amey v. Allegheny County, 24 How. (65 U.S.) 364 

(1861) .........'........................................................ 13
Bailey v. Mayor of New York, 3 Hill 531 (N.Y. 1842) . . 15
Barnes v. District of Columbia, 91 U.S. 540 (1876) . . . .  28



11 Table of Citations Continued
Page

Batchelder v. City of Salem, 58 Mass. 599 (1849) . . . . .  13
Beers v. Arkansas, 20 How. (61 U.S.) 527 (1858) .......  30
Bertot v. School District No. 1, Albany County, Wyom­

ing, Slip. Op. No. 76-1169 (November 15, 1978), 
vacated pending rehearing en banc (1979)......... 20-23

Billings v. Worcester, 102 Mass. 329 (1869) ................ 20
Bissell v. City of Jeffersonville, 24 How. (65 U.S.) 287 

(1861) ..................................................................  13
Bliss v. Brooklyn, 3 Fed. Cases 706 (E.D. N.Y. 1871) .. 11
Bradley v. Fisher, 13 Wall. (80 U.S.) 335 (1871) . . . . . .  18
Brown v. Rundlett, 15 N.H. 360 (1844) . .................. . 13, 20
Bunker v. City of Hudson, 122 Wis. 43, 99 N.W. 448 

(1904) . ............................................................... 19-20
Butz v. City of Muscatine, 8 Wall. (75 U.S.) 575 (1869) 11
Campbell v. City of Kenosha, 5 Wall. (72 U.S.) 194 

(1867) ..................................................................  14
Carr v. The Northern Liberties, 35 Penn. State 324

(1860) ..................................................................  33
Chicago v. Robbins, 2 Black (67 U.S.) 418 (1863) . . . . .  28
City of Aurora v. West, 7 Wall. (74 U.S.) 82 (1869) .. 14
City of Chicago v. Greer, 9 Wall. (76 U.S.) 726 (1870). 13
City of Crawfordsville v. Hayes, 42 Ind. 200 (1873) . . 13,20
City of Galena v. Amy, 5 Wall. (72 U.S.) 705 (1867) .. 14
City of Galveston v. Posnainsky, 62 Tex. 118 (1884) .. 26
City of Little Rock v. Willis, 27 Ark. 572 (1872)......... 33
City of Oklahoma City v. Hill Brothers, 6 Okla. 114,

50 P. 242 (1897) ....................................................  19
City of Providence v. Clapp, 17 How. (58 U.S.) 161 

(1855) .................      28
Commissioners of Knox County v. Aspinwall, 21 How.

(62 U.S.) 539 (1859) ............................................. 13



Table of Citations Continued iii 
Page

Corp. of New York v. Ransom, 23 How. (64 U.S.) 487 
(1860) ................................................................... 11

County Commissioner of Anne Arundel County v.
Duckett, 20 Md. 468 (1863) .................................... 20

County of Mercer v. Hackett, 1 Wall. (68 U.S.) 83 
(i864) ..................................................................  14

County of Sheboygan v. Parker, 3 Wall. (70 U.S.) 93 
(1866) ................................................................... 14

Curtis v. County of Butler, 24 How. (65 U.S.) 435
(1861) ...................   13

Danbury v. Norwalk RR Co. v. Town of Norwalk, 37
Conn. 109 (1870) ....................................    15

Darlington v. Mayor of New York, 31 N.Y. 164 (1865). . 12
Edelman v. Jordan, 415 U.S. 651 (1974) ......................  26
Elliot v. Concord, 27 N.H. 204 (1853) ..................... 20
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) .....................  31
Freeland v. City of Muscatine, 9 Iowa 461 (1859).......  20
George v. School District No. 8, 20 Yt. 493 (1848) . . . .  13
Havemeyer v. Iowa County, 3 Wall. (70 U.S.) 294 

(1866) .................................................................  11
Hawkes v. Inhabitants of Charlemont, 107 Mass. 414 

(1871) .............................................................  20
Hodgson v. Dexter, 1 Cranch (5 U.S.) 345 (1803)___ 18
Holden v. Shrewsbury Sell. Dist. No. 10, 38 Vt. 529 

(1866) .................................................... ............. 20
Horton v. Inhabitants of Ipswich, 66 Mass. 488 (Mass. 

(1853) ..................................................................  20
Hurley v. Town of Texas, 20 Wis. 665 (1866)..............  19
Hutto v. Finney, 437 U.S. 678 (1978)..........................  5, 24
Imbler v. Pachtman, 424 U.S. 409 (1976) .....................  10
Inhabitants of Searsmont v. Farswell, 3 Maine 450 

(1825) ........    13



IV Table of Citations Continued
Page

Irvine v. Town of Greenwood, 89 S.C. 511 (1911) . . . .  28-29
Jackson v. Inhabitants of Hampden, 16 Maine 184 

(1839) ................................................................... 13
Johnson v. State of California, 69 Cal.2d 782 (1968). . 23-24
Johnston v. District of Columbia, 118 U.S. 19 (1886) . . 33
Kawananakoa v. Polyblank, 205 U.S. 349 (1907)..........  30
Lake County Estates v. Tahoe Regional Planning 

Agcy., 440 U.S. 391 (1979) ...................................  5, 24
Larned v. City of Burlington, 4 Wall. (71 U.S.) 275 

(1867) ................................................................... 14
Lee v. Village of Sandy Hill, 40 N.Y. 442 (1869) . . . . . .  19
Levy Court of Washington County v. Woodward, 2 

Wall. (69 U.S.) 501 (1865) ....................................  11
Lincoln County v. Tuning, 133 U.S. 529 (1890) ......... 26
Mason v. School District No. 14, 20 Vt. 487 (1848) . . . .  13
Mayor of Lyme v. Henley, 3 B. & Ad. 77 (1862) ......... 29
McGraw v. Town of Marion, 98 Ky. 673, 34 S.W. 18 

(1896) .....................................„............................ 19
Mitchell v. City of Burlington, 4 Wall. (71 U.S.) 270

(1867) ................................................................... 11
Monell v. Department of Social Services of the City of 

New York, 436 U.S. 658 (1978) ..........................passim
Moor v. County of Alameda, 411 U.S. 693 (1973).......  26
Moran v. Miami Co., 2 Black (67 U.S.) 722 (1863)___ 14
Morrison v. McFarland, 51 Ind. 206 (1875) ..................  20
Mount Healthy City Board of Ed. v. Doyle, 429 U.S.

280 (1977) .............................................................  26
Myer and Stucken v. City of Muscatine, 1 Wall. (68 

U.S.) 384 (1864) ...............................................  14
Nebraska City of Campbell, 2 Black (67 U.S.) 590 

(1862) ...........................................................   28



Table o f Citations Continued v
Page

O’Connor v. Donaldson, 422 U.S. 563 (1975) ..............  10
Page v. Hardin, 8 B. Monroe 648 (Ky. 1844) .............. 20
Paul v. School District No. 2, 28 Vt. 575 (1856)..........  13
Pierson v. Ray, 386 U.S. 547 (1967) ............................  10
Procunier v. Navarette, 434 U.S. 555 (1978)............... 10
Ransom v. Boston, 196 Mass. 248, 81 N.E. 998 (1907) .. 13
Richardson v. School District No. 10, 38 Vt. 602 (1866). 13
Riggs v. Johnson County, 6 Wall. (73 U.S.) 166 (1868). 15
Roach v. Commonwealth, 2 Dali. (2 U.S.) 206 (Pa.) . . .  11
Rogers v. City of Burlington, 3 Wall. (70 U.S.) 93

(1866) ..................................................................  14
Ruck v. Williams, 3 Ilurlst. & N. 308 (1858) ................ 18
Sala v. County of Suffolk, 604 F.2d 207 (2nd Cir. 

1979) ..................................................................  25, 29
Scheuer v. Rhodes, 416 U.S. 232 (1974) ...................  10, 21
School District v. McComb, 18 Colo. 240 (1893) .........  13
Schussler v. Board of Commissioners of Hennepin 

County, 67 Minn. 412, 70 N.W. 6 (1897) ...............  19
Seibert v. Mayor of Pittsburg, 1 Wall. (68 U.S.) 272 

(1864) ............................................................... 14
Shaw v. Mayor of Macon, 19 Gfa. 468 (1856) ..............  13, 20
Squiers v. Village of Neenah, 24 Wis. 588 (1869).......  19
State of Missouri ex rel Cullen v. Carr, 3 Mo. App. 6

1876) ....................................................................  20
Stoddard v. Village of Saratoga Springs, 127 N.Y. 261,

27 N.E. 1030 (1891) ...............................................  19
Tenney v. Brandhove, 341 U.S. 367 (1951) . ................  7,10
Thayer v. Boston, 19 Pick. 511 (Mass. 1837)............  19, 20
Thompson v. County of Lee, 3 Wall. (70 U.S.) 327

(1866) ................................................. .............  11
Town Council of Akron v. McComb, 18 Ohio 229 (1849) 19



VI Table of Citations Continued
Page

Trustees of the Town of Milford v. Simpson, 11 Ind.
520 (1858) .............................................................  13

Von Hostrup v. City of Madison, 1 Wall. (68 U.S.) 291 
(1864) ................................................................... 14

Walker v. Hallock, 32 Ind. 239 (1869)..........................  15
Weed v. Borough of Greenwich, 45 Conn. 170 (1877) . . 20
Weightman v. Washington, 1 Black (66 U.S.) 39 

(1862) .................................................   28,29,33
Wood v. Strickland, 420 U.S. 308 (1975) . . . .  9-10, 21, 22, 23
Woodcock v. City of Calais, 66 Me. 234 (1877) ........... 20
Woods v. County of Lawrence, 1 Black (66 U.S.) 386

(1862)     13-14

C o n s t it u t io n  a n d  S t a t u t e s  :

Constitution of the United States:
Contract Clause ...................................................    11
Eleventh Amendment............................................  26
Fourteenth Amendment .........................................  31

Civil Rights Act of 1871, § 1, 42 U.S.C. § 1983 . . . .  passim

M is c e l l a n e o u s  :

Bardeen, Common School Law (4th ed. 1888) ............  13
Beach, Commentaries on the Law of Public Corpora­

tions (1893) ............................................. 15,26,27,33
Burke, A Treatise on the Law of Public Schools (1880) 13
Cooley, Treatise on the Constitutional Limitations 

(1868) ....... ......... ........... .............................26,27,33
Dillon, Treatise on the Law of Municipal Corporations 

(1872) ................................................... 13,14-15, 26-27



Table o f Citations Continued Vll
Page

Note, Liability of Cities for the Negligence and Other 
Misconduct of Their Officer sand Agents, 30 Am.
St. Rep. 376 (1893) .........................................20,27-28

Note, On the Patent Laws, 4 L.ed. 488 ......................... 11
Note, Right of One Whose Property Has Been Taken 

for Public Use Without His Consent and Without 
Condemnation Proceedings to Maintain Action for 
Compensation or for Permanent Damages, 28 
L.R.A. (N.S. 968 (1910) .......................................  12

Note, Streets, Change of Grade, Liability of Cities, 30 
Am. St. Rep. 835 (1892)......................................... 12

Shearman & Redfield, A Treatise on the Law of Negli­
gence (1869) ................................. 15,17, 25, 27, 32-33

Taylor, Public School Law of the United States 295 
(1892) ...................................................................  13



IN THE
i? u |trrm r C o u r t  o f tljr lu ttrfc  S t a ir s

October T erm, 1979

No. 78-1779

G eorge D. Ow en , 
Petitioner,

v.
T he City of I ndependence, M issouri, et al., 

Respondents.

BRIEF FOR NATIONAL EDUCATION ASSOCIATION 
AND LAWYERS' COMMITTEE FOR CIVIL RIGHTS 

UNDER LAW, AS AMICI CURIAE

On Writ of Certiorari to the United Stales 
Court of Appeals for the Eighth Circuit

INTEREST OF THE AMICI CURIAE1

The National Education Association (NEA) is the 
largest teacher organization in the United States, with 
a membership of approximately 1.7 million educators, 
virtually all of whom are employed by public educa­

1 Consents of all parties to the filing of this brief have been filed 
with the Clerk.



2

tional institutions. One of N EA’s purposes is to safe­
guard the constitutional rights of teachers and other 
public educators.

The Lawyers’ Committee for Civil Rights Under 
Law is a non-profit corporation organized in 1963 at 
the request of President Kennedy. Its Board of Trus­
tees includes several past presidents of the American 
Bar Association, two former Attorneys General, and a 
former Solicitor General of the United States. The 
Committee’s primary mission is to involve private 
lawyers throughout the country in the quest of all 
citizens to secure their civil rights through the legal 
process.

The resolution of this case will have an important 
impact upon the extent to which those who are injured 
by the unconstitutional actions of public officials and 
entities can secure complete relief in the federal courts. 
Both amici have a vital interest in the resolution of this 
case.

Pursuant to that same interest these amici filed a 
brief in Monell v. Department of Social Services of the 
City of New York, 436 U.S. 658 (1978). In Monell 
this Court held that municipalities are “ persons”  and 
can be sued directly under § 1983 for monetary relief. 
The Court left open, however, the question whether 
municipalities should be afforded any form of qualified 
immunity in such suits. That question is presented in 
the instant case, and its resolution will determine 
whether complete relief is, indeed, available in the 
federal courts to those who suffer injuries from uncon­
stitutional actions of municipalities.

This brief is filed to provide the Court with the views 
of the amid, refined through extensive litigation under



3

the Fourteenth Amendment and 42 U.S.C. § 1983, that 
municipalities do not enjoy any form of immunity from 
damage liability for violations made actionable by 
§ 1983.

SUMMARY OF ARGUMENT

I. The question here is solely one of statutory inter­
pretation : Did the Congress that enacted § 1983 intend 
to provide municipalities with some form of immunity 
against liability for damages in § 1983 suits'? Congress 
intended no such immunity. The words of § 1983—that 
municipalities “ shall be liable to the party injured in 
an action at law” —are broadly remedial and contain 
no indication of a congressional intention to adopt an 
immunity for municipalities. And, Congress knew that 
the statute would subject municipalities to monetary 
liability, yet there was not a mention in the entire 
course of legislative consideration of the bill that mu­
nicipalities would or should have any immunity in suits 
under § 1983.

Further, there was no “ tradition”  of any municipal 
immunity “ so well grounded in history and reason” 
that the 1871 Congress must be assumed to have sub 
silentio incorporated an immunity into its enactment 
—indeed, the “ tradition”  was that wherever munici­
palities were subject to suit, which by 1871 was a broad 
range of cases, they had no immunity of any kind. As 
of 1871, municipalities were subject to suit for every 
breach of contract, for every violation of constitution 
or statute (whether state or federal), and for a wide 
range of torts. In all instances where they were subject 
to suit, municipalities had no immunity of any kind 
against damage awards. Particularly pertinent here,



4

it was well established as of 1871 that enactment of a 
statute imposing liability on municipalities did not 
carry with it any implicit damage immunity; whenever 
municipalities were made subject to damage liability 
by statute, that liability was enforced without extend­
ing any immunity to the municipalities. Congress can­
not be assumed to have silently intended that the enact­
ment of § 1983 would carry with it an immunity for 
municipalities which did not then exist with respect to 
any other cause of action against municipalities.

II. The court below, and others, without having es­
tablished the necessary predicate of legislative intent, 
have nevertheless held that § 1983 provides municipali­
ties a qualified damage immunity, basing their holdings 
upon one or the other of two distinct rationales. Neither 
of these rationales furnishes a proper justification for 
importing any kind of municipal damage immunity 
into § 1983.

A. There is no basis for “ extending”  to municipali­
ties the qualified immunity enjoyed by public officials 
against personal liability. Nothing could be plainer 
than that as of 1871 the good faith immunity enjoyed 
by public officials was wholly inapplicable to damage 
awards against the public treasury. The English courts, 
which had established the public official immunity doc­
trine later followed by the American courts, had re­
peatedly declared the doctrine “ inapplicable”  to dam­
age awards against the public treasury. The American 
cases similarly recognized the propriety of awarding 
damages against municipalities notwithstanding that 
the wrong was committed in the good faith and reason­
able belief that it was lawful.

Further, the reasons which underlie the common-law 
qualified immunity for public officials in their individ­



5

ual capacity do not justify a similar immunity for 
governmental entities. And, twice recently this Court 
has recognized that fact. Hutto v. Finney, 437 U.S. 678, 
699, n. 32 (1978); Lake County Estates v. Talioe Re­
gional Planning Agcy., 440 U.S. 391, 405 n. 29 (1979).

B. There were two common law doctrines which insu­
lated municipalities from certain types of tort actions 
altogether, regardless of the relief sought (injunctive 
or monetary). Neither could have formed a predicate 
for an unexpressed congressional intent to qualify the 
damage liability of municipalities, in § 1983 actions.

1. The sovereign immunity enjoyed by municipalities 
at common law with respect to certain of their func­
tions affords no basis for imputing to Congress an un­
stated intention to limit the amenability of municipali­
ties to damage awards under § 1983. Sovereign immu­
nity was not a damage immunity. Its effect, where it 
applied, was to insulate the municipality from suit al­
together. The doctrine’s existence did not reflect a pru­
dential judgment about the desirability of holding mu­
nicipalities accountable for their torts; rather, it re­
flected a matter of power-—as the sovereign made the 
law, it could be sued only if and to the extent it chose 
to subject itself to the law it made. Given the nature of 
that immunity, it was by definition abrogated by enact­
ment of a statute by the state (or, where, as here, fed­
eral power exists, the federal government) subjecting 
a municipality to suit. Such enactments by states were 
widespread as of 1871, and their effect was to make 
municipalities liable in damages without immunity. 
There is no basis for attributing to Congress a differ­
ent intention when it made municipalities suable in this 
statute.



6

2. There was also at common law a doctrine insulat­
ing municipalities from tort suits challenging “ discre­
tionary”  decisions. This was not an immunity; rather, 
it defined what constituted a cause of action and what 
did not. I f  the law of negligence had been made applic­
able to every decision of a municipality, then the legis­
lative judgments of the elected officials could have been 
subjected to judicial review on a claim they were not 
“ reasonable,”  and judges and juries could thereby have 
second-guessed and overturned discretionary decisions 
entrusted to the legislature. To protect against this, 
the courts carved out those functions which were com­
mitted to a governmental entity’s legislative “ discre­
tion”  and made them not subject to suit (for injunc­
tive or monetary relief) under the “ reasonable man”  
standard. But the rationale of the “ discretionary func­
tion”  doctrine also defined its limits. Where a munici­
pality was subject to “ duties which are absolute and 
imperative in their nature,”  there was no protection 
against injunction or damages for “ non-performance 
or mis-performance. ”  The doctrine is thus by its terms 
inapplicable to § 1983. Municipalities do not have dis­
cretion to violate the federal Constitution. The inquiry 
under § 1983 is not whether public decisions are “ rea­
sonable,”  but whether they are in violation of the fed­
eral Constitution and/or federal statutes. The very 
purpose of § 1983 was to vest the federal courts with 
the power to conduct this inquiry. The “ discretionary 
function”  doctrine cannot justify a presumption that 
Congress silently intended to create a qualified immu­
nity for municipalities from damage liability under 
§ 1983.



7

ARGUMENT

I. CONGRESS DID NOT INTEND MUNICIPALITIES TO HAVE 
ANY IMMUNITY IN § 1983 SUITS.

In this brief we address only the question whether 
municipalities 2 have some form of immunity in actions 
brought against them under 42 U.S.C. § 1983, which 
was enacted as part of § 1 of the Civil Rights Act of 
1871. The question is solely one of statutory interpre­
tation : Did the Congress that enacted § 1983 intend to 
provide municipalities with some form of immunity 
against liability for damages in § 1983 suits ? As we 
show below, Congress intended no such immunity. 
There is no warrant in the language of § 1983 or in its 
legislative history for finding a congressional inten­
tion to establish such an immunity; and, there was no 
“ tradition”  of any such immunity “ so well grounded 
in history and reason”  3 that the 1871 Congress must 
be assumed to have sub silentio incorporated an im­
munity into its enactment—-indeed, the “ tradition”  
was that wherever municipalities were subject to suit, 
which by 1871 was in a broad range of cases, they 
simply had no immunity of any kind.

The words of § 1983 are broadly remedial and con­
tain no indication of a congressional intention to adopt 
an immunity for municipalities:

2 Throughout this brief, we use the term “ municipalities”  to 
include all forms of local government: cities, counties, school dis­
tricts, etc. This Court drew no distinction between the various 
forms of local government in Monell, concluding that all were 
embraced within the statutory term “ person,”  436 U.S. at 690. 
The analysis we proffer herein likewise would warrant no distinc­
tion between them with respect to the immunity question.

3 Tenney v. Brandhove, 341 U.S. 367, 376 (1951).



8

Every person who, under color of any statute, 
ordinance, regulation, custom, or usage, of any 
State or Territory, subjects, or causes to be sub­
jected, any citizen of the United States or other 
person within the jurisdiction thereof to the depri­
vation of any rights, privileges, or immunities se­
cured by the Constitution and laws, shall he liable 
to the party injured in an action at law, suit in 
equity, or other proper proceeding for redress. 
[Emphasis added].

The congressional debates which culminated in pas­
sage of this provision confirm Congress’ intent that 
these statutory words were to be given their full sweep. 
The Act’s author and manager in the House, Repre­
sentative Shellabarger, in his speech introducing the 
bill, explained the breadth of construction which was 
contemplated—an explanation which was quoted in 
Monell v. New York City Dept, of Social Services, 436 
U.S. 658, 684 (1978), and bears repeating here:

This act is remedial, and in aid of the preserva­
tion of human liberty and human rights. All stat­
utes 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 every­
where else where there is wise judicial interpre­
tation, 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. . .. Chief Justice 
Jay and also Story say:

‘ Where a power is remedial in its nature there 
is much reason to contend that it ought to be con­
strued liberally, and it is generally adopted in the



9

interpretation of laws’ Story on Constitution, see.
429.

This view of the sweep of the bill was voiced by its 
sponsors (and acknowledged by its opponents) 
throughout the debates in passages cited in Monell, 436 
IT.S. at 683-687 and note 45. A repeated theme was 
that the provision represented the exercise of the entire 
power which Congress possessed under the Constitu­
tion to remedy violations of that Constitution. Ibid.

The 1871 Congress made a positive determination 
to subject municipalities to suits under § 1983. Id. at 
686, 690. And, that Congress knew that municipalities 
would be subject to monetary liability in such suits. 
Id. at 690. Yet, there was not a mention in the entire 
course of legislative consideration of the bill that mu­
nicipalities would or should have any immunity in suits 
under § 1983.

The silence of the statute and in the debates on the 
subject of an immunity for municipalities is of course 
powerful evidence that none was intended. But con­
gressional intent may sometimes be discerned from 
other sources. That has proven to be true with respect 
to the personal immunities which this Court has found 
are enjoyed by public officials under § 1983. This Court 
has found that at the time of the enactment of § 1983, 
the state of the law was that many public officials were 
immunized, either absolutely or qualifiedly, from per­
sonal liability for their official acts. When this Court 
encountered damage claims against such officials, it 
was confronted with the question whether the 1871 
Congress intended, sub silentio, that the existing per­
sonal immunities would be applicable in suits under 
§ 1983. The Court recognized that this “ immunity ques­



10

tion involves the construction of a federal statute. .. 
Wood v. Strickland, 420 U.S. 308, 314 (1975). The 
question thus was not whether an immunity might 
make sense as a policy matter, but whether Congress 
intended its inclusion in § 1983. Where an immunity 
was well established in 1871 and its rationale compati­
ble with the purposes of § 1983, this Court “  presume[d] 
that Congress would have specifically so provided had 
it wished to abolish the doctrine.”  Pierson v. Bay, 386 
U.S. 547, 555 (1967). Using the words of Mr. Justice 
Frankfurter in the seminal case on this issue, Tenney 
v. Brandhove, 341 U.S. 367, 376 (1951), where there 
was in 1871 a “ tradition”  of an immunity “ so well 
grounded in history and reason”  that “ [w]e cannot 
believe Congress . . . would [have] impinge[d]” upon 
it by “ covert inclusion in the general language [of 
§ 1983],”  §1983 was construed to incorporate that 
immunity.4

The claim that the 1871 Congress must have intended 
municipalities to have some form of immunity in § 1983 
suits has not previously been resolved by this Court. 
It is our submission that this claim founders on the 
most basic threshold proposition: there was simply no 
immunity for municipalities that the 1871 Congress 
could have assumed it was incorporating in § 1983.

+ On that basis, the Court in Tenney concluded that § 1983 
adopted the absolute immunity of legislators as to what they do 
or say in legislative proceedings. Applying the same analysis, this 
Court has found § 1983 to provide an absolute immunity for judges, 
Pierson v. Ray, supra, and prosecutors, Imbler v. Pachtman, 424 
U.S. 409, 424 (1976), and a qualified immunity for other cate­
gories o f public official. Pierson, supra; Scheuer v. Rhodes, 416 
U.S. 232 (1974); Wood v. Strickland, supra; O’Connor v. Donald­
son, 422 U.S. 563 (1975); Procunier v. Navarette, 434 U.S. 555 
(1978).



11

Congress may not be found to have incorporated in its 
enactment, sub silentio, an immunity which did not 
exist.

As of 1871, municipalities were suable for most of 
their actions. They were subject to suit for every breach 
of contract, for every violation of constitution or stat­
ute, whether federal or state, and for a wide range of 
torts.5 And, in all instances where they were subject

5 Federal Constitutional Violations. The most important provision 
of the federal Constitution, prior to the Reconstruction Amend­
ments, imposing duties upon municipalities was the Contract 
Clause. As was observed in Monell, 436 U.S. at 681, the federal 
courts “ vigorously enforced the Contract Clause against munici­
palities— an enforcement effort which included various forms of 
‘ positive ’ relief, such as ordering that taxes be levied and collected 
to discharge federal-court judgments, once a constitutional infrac­
tion was found.”  In addition to the cases cited in Monell, id. at 
673, n. 28, see Iiavemeyer v. Iowa County, 3 Wall. (70 U.S.) 294, 
303 (1866); Thompson v. County of Lee, 3 Wall. (70 U.S.) 327, 
330 (1866); Mitchell v. City of Burlington, 4 Wall. (71 U.S.) 270 
(1867) ; Butz v. City of Muscatine, 8 Wall. (75 U.S.) 575, 584 
(1869).

Federal Statutory Violations. Federal patent laws were in effect 
from 1790 on. Note, On the Patent Laws, 4 L.ed. 488. Damage 
actions against municipalities for infringement of patent were com­
mon, and the remedial standards were identical to those applied in 
suits against private defendants. See, e.g., Corp. of New York v. 
Ransom, 23 How. (64 U.S.) 487 (1860) ; Bliss v. Brooklyn, 3 Fed. 
Cases 706 (E.D. N.Y. 1871); Allen v. New York, 1 Fed. Cases 506 
(S.D.N.Y. 1879). We found no other federal statute of broad 
applicability which imposed duties upon municipalities prior to 
1871, and which thus could have produced litigation seeking mone­
tary relief from municipalities. For two narrow federal statutes 
which led to monetary judgments, see Roach v. Commonwealth, 
2 Dali. (2 U.S.) 206 (Pa.) (judgment against State, prior to adop­
tion of Eleventh Amendment) ; Levy Court of Washington County 
v. Woodward, 2 Wall. (69 U.S.) 501 '(1865).

State Constitutions. Most state constitutions contained a provi­
sion prohibiting takings without just compensation. These provi-



12

to suit, regardless of the form of the action, municipali­
ties had no immunity of any kind against damage 
awards; in all such suits, their liability in damages was

sions were regularly enforced against municipalities through dam­
age awards. Note, Eight of One Whose Property Has Been Taken 
for Public Use Without His Consent and Without Condemnation 
Proceedings to Maintain Action for Compensation or for Perma­
nent Damages, 28 L.R.A. (N.S.) 968 (1910). During the 1870’s, 
many state constitutions were amended to broaden the “ just com­
pensation”  principle beyond literal “ takings”  to property injuries 
inflicted incidentally (e.g., by regrading the streets so that a mer­
chant’s store was no longer accessible to the public). The state 
courts “ have been unanimous in holding that under such consti­
tutional provision a city is liable to [the property owner] for all 
direct and consequential damage arising from its action in grading 
or changing the grade o f its streets, unless he is compensated under 
the power of eminent domain before the work is done . . . ”  Note, 
Streets, Change of Grade, Liability of Cities, 30 Am. St. Rep. 835, 
837 (1892) (citing cases).

State Statutes. State statutes imposed many obligations upon 
municipalities, the violation of which was enforceable by damage 
action. The statutes authorizing suits for damages for a municipal­
ity ’s failure to prevent a riot, the analogue upon which the Sher­
man Amendment had been modeled, was much discussed during the 
debates on § 1983, Monell, 436 U.S. at 667-668, n. 17, as was the 
New fo rk  Court of Appeals’ 1865 decision rejecting a city ’s claim 
that the statute violated the city ’s right to due process under the 
state constitution, Darlington v. Mayor of New York, 31 N.Y. 164 
(1865) (see passages cited in Monell, at 667-668, n. 17). In some 
states, the extension of the “ just compensation”  principle to non­
takings was accomplished by state statute, rather than constitu­
tional amendment. Note, Streets, Change of Grade, supra, 30 Am. 
St. Rep. at 848-849. State statutes restricting the grounds for dis­
charging municipal employees, or requiring due process incident 
to discharge, gave rise to damages in actions denominated “ con­
tract”  (see below under “ Employment Cases” ). And, most im­
portantly, state statutes were applied widely to sustain tort damage 
awards (see below under “ Torts” , and infra, pp. 27-30).

Employment Cases. Claims of wrongful discharge by municipal 
employees invariably were treated as “ contract”  actions, and dam-



13

understood to be identical to that of private corpora­
tions and private individuals. There were, to be sure, 
two common law doctrines which insulated certain mu-

ages were regularly awarded against muncipalities for wrongful 
discharge. Thus an 1880 treatise stated: “ Where [a] teacher is 
wrongfully dismissed on charge of incompetency or any similar 
charge, he is entitled to recover from the district his wages for the 
balance of the term contracted for. ’ ’ Burke, A Treatise on the Law 
of Public Schools 84 (1880). Accord, Bardeen, Common School 
Law 46 (4th ed. 1888) ; Taylor, Public School Law o f the United 
States 295 (1892). Many of these were true “ breach of contract”  
actions. See, e.g,, Mason v. School District No. 14, 20 Yt. 487 
(1848) ; George v. School District No. 8, 20 Vt. 493 (1848) ; 
Richardson v. School District No. 10, 38 Vt. 602 (1866) ; Batchel- 
der v. City of Salem, 58 Mass. 599 (1849); Trustees of the Town 
of Milford v. Simpson, 11 Ind. 520 (1858) ; City of Crawfordsville 
V. Hayes, 42 Ind. 200 (1873) ; Brown v. Rundlett, 15 N.TI. 360, 
370 (1844). But many were really actions for violation of statutes 
requiring due process, or restricting the grounds for discharge, and 
damages were awarded for such statutory violations under the 
rubric “ breach of contract.”  See, e.g., Paul v. School District No. 2, 
28 Vt. 575, 578-580 (1856) (statute construed to limit grounds to 
incompetency or unfaithfulness) ; Inhabitants of Searsmont v. Far- 
well, 3 Maine 450 (1825) (statute limiting grounds) ; Shaw v. 
Mayor of Macon, 19 6a. 468, 469 (1856) (same) ; Jackson v. In­
habitants of Hampden, 16 Maine 184 (1839) (dismissal without 
adherence to statutory procedures) ; School District v. McComb, 
18 Colo. 240 (1893) (same) ; Ransom v. Boston, 196 Mass. 248, 81 
N.E. 998 (1907) (same).

Contract Cases Generally. “ Upon authorized contracts,”  munici­
palities were “ liable in the same manner, and to the same extent, 
as private corporations or natural persons. ’ ’ Dillon, Treatise on the 
Law of Municipal Corporations 702 (1872). See also Burke, A 
Treatise on the Law of Public Schools 66-67 (1880) ; City of Chi­
cago v. Greer, 9 Wall. (76 IJ.S.) 726 (1870). The most frequently 
litigated breach of contract actions, at least in federal court, were 
those for failure to pay interest on municipal bonds. Commissioners 
of Knox County v. Aspinwall, 21 How. (62 U.S.) 539 (1859) ; 
Amey v. Allegheny County, 24 How. (65 U.S.) 364 (1861) ; Bissell 
V. City of Jeffersonville, 24 How. (65 U.S.) 287 (1861); Curtis v. 
County of Butler, 24 How. (65 U.S.) 435 (1861) ; Woods v. County



14

nicipal functions from suit in tort, for any type of 
relief (injunctive as well as monetary). We discuss 
these infra, at pp. 25-34, and show that they have

of Lawrence, 1 Black (66 U.S.) 386 (1862) ; Moran v. Miami Co.,
2 Black (67 U.S.) 722 (1863) ; Von Hostrup v. City of Madison, 
1 Wall. (68 U.S.) 291 (1864) ; County of Mercer v. Hackett, 1 
Wall. (68 U.S.) 83 (1864); Seibert v. Mayor of Pittsburg, 1 Wall. 
(68 U.S.) 272 (1864) ; Myer and Stuchen v. City of Muscatine, 
1 Wall. (68 U.S.) 384 (1864) ; County of Sheboygan v. Parker,
3 Wall. (70 U.S.) 93 (18C6) ; Rogers v. City of Burlington, 3 Wall. 
(70 U.S.) 93 (1866) ; Lamed v. City of Burlington, 4 Wall. (71 
U.S.) 275 (1867) ; Campbell v. City of Kenosha, 5 Wall. (72 U.S.) 
194 (1867) ; City of Aurora v. West, 7 Wall. (74 U.S.) 82 (1869). 
A  city ’s plea that execution of judgment would cause it great harm 
met with this response from the Supreme Court:

The Counsel for the [city] has called our attention, with em­
phasis and eloquence, to the diminished resources of the city, 
and the disproportionate magnitude of its debt. Much as. per­
sonally, we may regret such a state of things, we can give no 
weight to considerations of this character, when placed in the 
scale as a counterpoise to the contract, the law, the legal rights 
of the creditor, and our duty to enforce them. Such securities 
occupy the same ground in this Court as all others which are 
brought before us. When clothed with legal validity it is our 
purpose to sustain them, and to give to their holders the bene­
fit of all the remedies to which the law entitles them . . . 
[W ]e cannot recognize a distinction, unknown to the law, 
between this and any other class of obligations we may be 
called upon to enforce.

City of Galena v. Amy, 5 Wall. (72 U.S.) 705, 710 (1867).

Torts. As explained infra, pp. 25-31, the common law divided the 
functions of municipalities into two categories, “ governmental”  
and “ proprietary,”  and rendered municipalities suable for tort 
only with respect to their “ proprietary”  functions (the “ govern­
mental”  functions being shielded by the state’s sovereign immu­
nity). However, as also explained infra, pp. 27-30, the states by 
statute withdrew sovereign immunity with respect to many “ gov­
ernmental”  functions, thus giving rise to a body of statutory tort 
law which was well developed by 1871. Wherever municipalities 
were suable, they were liable for their negligent acts ‘ ‘ on the same 
principles and to the same extent as a private corporation. ’ ’ Dillon,



15

no relevance to the construction of § 1983. The point 
at this juncture is that it was well understood that this 
common law insulation was overridden by the enact­
ment of a statute making municipalities accountable 
in court, and such statutes were widespread as of 1871. 
The enactment of such a statute did not carry with it 
any implicit damage immunity for municipalities; 
when municipalities were made subject to statutory 
liabilities in damages, these liabilities were enforced 
without extending any immunity to the municipalities.6 
Congress cannot be assumed to have thought that the 
enactment of § 1983 would carry with it an immunity 
for municipalities that did not exist under other forms 
of statutory liability.

Treatise on the Law of Municipal Corporations 33 (1872). Accord: 
Beach, Commentaries on the Law of Public Corporations 265 
(1893); Shearman & Redfield, A Treatise on the Law of Negligence 
139, 149, 159 (1869) ; Bailey v. Mayor of New York, 3 Hill 531, 
538-539 (N.Y. 1842); Danbury v. Norwalk RR Co. v. Town of 
Norwalk, 37 Conn. 109, 119 (1870). Similarly, “  [i]n  regard to the 
use of its corporate property, a municipal corporation [was] bound 
to an observance of the same rules which the law impose [d] on 
individuals,”  and was therefore “ responsible, as an individual 
would be under the same circumstances, for the creation and main­
tenance of a public nuisance, and [was] liable to a public prosecu­
tion, or to a private action at the suit of any one specially injured 
thereby.”  Shearman & Redfield, supra at 181. See also Walker v. 
Hallock, 32 Ind. 239, 244 (1869). And, “ the federal courts found 
no obstacle to awards of damages against municipalities for com­
mon-law takings.”  Monell, 436 U.S. at 687, n. 47. For an indication 
of the enormous volume of tort damage awards which had been 
rendered against municipalities as of 1871, see generally the cases 
and materials cited infra at pp. 19-20, 27-28.

Execution of Monetary Judgments Against Municipalities. For a 
comprehensive description of the manner in which federal and 
state courts achieved execution of monetary judgments against 
municipalities as of 1871, see Riggs v. Johnson County, 6 Wall. 
(73 U.S.) 166 (1868). See also Monell, 436 U.S. at 674, n. 30.

6 See infra, pp. 19-20, 27-29.



16

It is important to understand how we derived cer­
tain of the propositions set forth in the preceding 
paragraph. There were literally thousands of reported 
eases as of 1871 awarding damages against municipali­
ties for wrongs they were found to have committed. We 
do not purport to have read all of them. We have read 
several hundred of those cases and examined contem­
poraneous treatises discussing thousands more. We did 
not find a single case in which a municipality was held 
to have committed an actionable wrong and yet was in­
sulated from paying damages from those injured by 
that wrong. Indeed, there appear to have been only a 
handful of cases in which the question of a damage 
immunity for municipalities was even addressed, and 
in each it was rejected out of hand.7 It is always difficult 
to prove a negative; we cannot say that no case exists 
in which some court found some municipality immune 
from damages; we can only say that we could not find 
one and the treatises do not mention any. But the 
question here is whether there was a municipal im­
munity from damages so well established in the law 
of the time that Congress must have intended to adopt 
it as part of § 1983. That question can be answered 
definitively: if there were such an immunity, there 
would not have been a multitude of cases where munici­
palities were found to be liable in damages without even 
asserting the immunity; and, there would not have been 
uniform rejection of the existence of the immunity in 
those rare cases we could find where it was asserted.

In § 1983, Congress enacted a statute that declares 
without qualification that municipalities “ shall be li­
able”  to parties injured by violations of federal Con­

7 See infra, pp. 18-20.



17

stitutional or statutory duties “ in an action at law, 
suit in equity, or other proper proceeding for redress.”  
There is no basis for attributing to Congress an Tin- 
stated intention to qualify the statutory declaration by 
conferring upon municipalities an immunity that did 
not exist elsewhere in the law. Nevertheless, the court 
below, and others, without having established the neces­
sary predicate of legislative intent, have found it ap­
propriate to adopt such an immunity, based upon one 
or the other of two distinct rationales. We discuss these 
rationales separately below, and show the impropriety 
of adopting an immunity for municipalities based on 
either.

II. THE ARGUMENTS FOR IMPORTING A  MUNICIPAL DAM­
AGE IMMUNITY INTO § 1983 ARE WITHOUT FOUNDATION.

A. "Extending" To Municipalities The Qualified Immunity 
Enjoyed By Public Officials Against Personal Liability

The court below chose to “ extend the limited im­
munity [enjoyed by] the individual defendants to 
cover the City as well,”  589 E.2d at 338. No explana­
tion was proffered below for this extension, and noth­
ing eoidd be plainer than that as of 1871 the good faith 
immunity enjoyed by public officials sued in their in­
dividual capacity—an immunity which had evolved 
out of concern for “ the harshness and impolicy of cast­
ing on individuals a public duty, and making them re­
sponsible out of their private means for the non-fulfill­
ment of it” 8 *— was wholly inapplicable to damage 
awards against the public treasury. The English courts,

8 Shearman & Redfield, A Treatise on the Law of Negligence 209
(1869).



18

which had established the official immunity doctrine 
later followed by the American courts,9 had repeatedly 
declared the doctrine “ inapplicable”  to damage awards 
against the public treasury.10 As Baron Bramwell ex­
plained in Ruck v. Williams, 3 Hurlst. & N. 308, 319 
(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 conse­
quences of a slip, it is reasonable to hold that he 
should not be responsible for it. I can also under­
stand 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 re­
sult 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.

The American cases similarly recognized the pro­
priety of awarding damages against municipalities 
notwithstanding that the wrong was committed in the 
good faith and reasonable belief that it was lawful. 
The most cited statement of the principle was Chief

9 See Hodgson v. Dexter, 1 Cranch (5 U.S.) 345, 363-3G4 (1803) ; 
Bradley v. Fisher, 13 Wall. (80 U.S.) 335, 347-353 (1871).

10 Shearman & Redfield, supra, at pp. 208-210, and cases cited in 
n. 1 thereat.



19

Justice Shaw’s opinion in Thayer v. Boston, 19 Pick. 
511, 515-516 (Mass. 1837) :

There is a large class of cases, in which the rights 
of both the pumic 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 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 
act was done with an honest view to obtain for the 
public some lawful benefit or advantage, reason 
and justice obviously require that the city, in its 
corporate capacity, should be liable to make good 
the damages sustained by an individual, in conse­
quence of the acts thus done. It would be equally 
injurious to the individual sustaining damage, and 
to the agents and persons employed by the city 
government, to leave the party injured no means 
of redress, except against agents employed, and 
by what at the time appeared to be competent au­
thority, to do the acts complained of, but which 
are proved to be unauthorized by law.

Accord: Town Council of Akron v. McComh, 18 Ohio 
229, 230-231 (1849) ; Hurley v. Town of Texas, 20 Wis. 
665, 669-670 (1866); Squiers v. Village of Neenah, 24 
Wis. 588, 593 (1869) ; Lee v. Village of Sandy Hill, 40 
N.Y. 442, 448-451 (1869) ; Stoddard v. Village of Sara­
toga Springs, 127 N.Y. 261, 268, 27 N.E. 1030, 1031 
(1891); McGraw v. Town of Marion, 98 Ky. 673, 680- 
683, 34 S.W. 18 (1896); Schussler v. Board of Commis­
sioners of Hennepin County, 67 Minn. 412, 70 N.W. 
6, 7 (1897) ; City of Oklahoma City v. Hill Brothers, 
6 Okl. 114, 137-139, 50 P. 242, 249 (1897) ; Bunker v.



20

City of Hudson,, 122 Wis. 43, 54, 99 N.W. 448, 452 
(1904).11

We have not found a single ease, despite extensive 
research, in which any American court in the Nine­
teenth Century ‘ ‘ extended”  to municipalities the im­
munity for good faith acts enjoyed by officials against 
individual liability.

While the court below did not attempt to explain its 
extension of an immunity intended for public officials 
in their individual capacity to municipalities, that ef­
fort was made by a panel of the Tenth Circuit in Bertot 
v. School District No. 1, Albany County, Wyoming, 
Slip. Op. No. 76-1169 (November 15, 1978), vacated 
pending rehearing en banc (1979).

11 In addition to the decisions cited in text, which expressly 
articulated the Thayer principle, there were innumerable decisions 
awarding damages against municipalities for violations expressly 
found to have been committed in good faith. See e.g., Page v. 
Hardin, 8 B. Monroe 648 (Ky. 1844) ; Holden v. Shrewsbury Sch. 
Dist. No. 10, 38 Vt. 529, 532 (1866) ; Horton v. Inhabitants of 
Ipswich, 66 Mass. 488, 489, 492 (Mass. 1853) ; Billings v. Wor­
cester, 102 Mass. 329, 332-333 (1869) ; Hawks v. Inhabitants of 
Charlemont, 107 Mass. 414, 417 (1871); Freeland v. City of Mus­
catine, 9 Iowa 461, 464 (1859); Elliot v. Concord, 27 N.H. 204 
(1853) ; State of Missouri ex rel Cullen v. Carr, 3 Mo. App. 6, 10 
(1876) ; Weed v. Borough of Greenwich, 45 Conn. 170, 183 (1877); 
Woodcock v. City of Calais, 66 Me. 234, 235-236 (1877) ; and see 
generally, Note, Liability of Cities for the Negligence and Other 
Misconduct of Their Officers and Agents, 30 Am. St. Rep. 376, 
405-411 (1893). Still other cases recognized that the doctrine of 
official immunity was inapplicable to suits against the municipality, 
without inquiring further into the existence or non-existence of 
good faith. Shaw v. Mayor of Macon, 19 6a. 468, 469 (1856) ; 
County Commissioners of Anne Arundel County v. Duckett, 20 
Md. 468, 481-482 (1863); Brown v. Rundlett, 15 N.H. 360, 370 
(1844) ; Morrison v. McFarland, 51 Ind. 206, 210 (1875), citing 
City of Crawfordsville v. Hays, 42 Ind. 200 (1873).



21

This Court in Scheuer v. Rhodes, 416 U.S., supra 
at 240, and Wood v. Strickland, 420 U.S., supra at 319- 
320, had spelled out the reasons underlying the com­
mon-law qualified immunity for public officials in their 
individual capacity: (1) that individuals should not 
be deterred from seeking public office by the risk of 
personal financial exposure; (2) that it would be un­
fair to subject those who do accept public service to 
personal liability for good faith performance of their 
office; and (3) that public officers should make deci­
sions on public matters in the public interest and 
should not be rendered timid by the need to weigh on 
the scales a personal, non-public consideration, i.e., 
concern for their potential personal liability.

The Tenth Circuit panel in Bertot found the third 
of these factors to justify a good faith immunity for 
the government entity as well as for the individual 
public officials (slip op. at 5-6):

The reasons for the application of the doctrine 
of qualified immunity are as compelling when con­
sidering the members individually as they are to 
the evaluation of the members acting collectively. 
. . .  It is apparent that conscientious board mem­
bers will be just as concerned that their decisions 
or actions might create a liability for damages on 
the board or the local entity as they would on 
themselves. The restriction on the exercise of in­
dependent judgment is the same. The individuals 
are the same in whatever capacity, their good 
faith is the same in each capacity whether it is 
individual good faith, board good faith when con­
sidered collectively, or official capacity good faith. 

* * * *
Qualified immunity should thus be applied to the 
board as such and to the individuals in their offi-



22

eial capacities. . . . The individuals with this quali­
fied immunity conduct the official board business, 
make the decisions, and carry on the official busi­
ness. I f  they have such immunity, there would 
seem to be no reason why it should not be carried 
into their collective actions as a board.

The rationale of the Bertot court is doubly wrong: 
it misapprehends the role of a court in construing 
§ 1983; and it misapprehends the rationale for the 
public official immunity doctrine.

First, as we discussed above, at pp. 7-10, supra, 
the question is not whether immunizing municipali­
ties is a good idea, but whether there is any reason 
to conclude that Congress intended to establish such 
an immunity sub silentio in § 1983. In the absence of 
an established body of law recognizing such an im­
munity in 1871, there is no justification for attributing 
such an intent to Congress. And as we have shown, the 
law in 1871 was all to the contrary.

Second, the Bertot panel misunderstood the public 
interest sought to be protected by the third of the rea­
sons listed above underlying the public official immu­
nity. The Court in Wood, supra, stated that reason as 
follows (420 U.S. at 319-320) :

Denying any measure of immunity in these cir­
cumstances “ would contribute not to principled 
and fearless decision-making but to intimidation.”  
. . . 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 decision-maker from ex­
ercising his judgment independently, forcefully, 
and in a manner best serving the long-term inter­
est of the school and the students.



23

The Bertot panel assumed that public officials would 
be deterred from acting “ forcefully”  by entity liability 
as well as by personal liability, and that therefore the 
reason expressed in Wood would equally justify an 
immunity for the governmental entity—i.e., public 
officials must be able to act free from the concern that 
their actions on behalf of the entity might violate the 
law and thus result in monetary liability for the entity. 
But the predicate of the statement in Wood, and of 
the common law from which it drew, is that public 
officials’ judgments on the public matters with which 
they deal should not be clouded by personal considera­
tions, i.e. the threat to their own pocketbooks. It hardly 
follows that they should be equally insulated from con­
sidering the impact of their decisions on the treasury 
of the entity they were elected to serve. Consideration 
of possible “ corporate”  liability is appropriate in any 
decision-making process, and indeed is essential to as­
suring that governmental entities will comport them­
selves in a manner consistent with their legal obliga­
tions. Constitutional and statutory proscriptions on the 
conduct of governmental entities are meant to be taken 
into account and to affect the decisions of those 
charged with running those entities. The consideration 
of possible entity liability is a proper public concern 
and should not be confused with the personal concern 
raised by the possibility of individual liability.12

12 See Johnson v. State of California, 69 Cal.2d 782 (1968), in 
which the court considered whether “ [t]he danger that public 
employees will be insufficiently zealous in their official duties”  
might serve as a basis for entity immunity under state laws. Noting 
that official immunities were developed to protect public employees 
‘ ‘ from the spectre of extensive personal tort liability”  (id. at 790; 
emphasis added), the court stated that it did not “ deem an em­
ployee’s concern over the potential liability of his employer, the



24

Twice recently, this Court has recognized that the 
considerations underlying the public official immunity 
do not apply to governmental entities. In Hutto v. Fin­
ney, 437 U.S. 678, 699 n. 32 (1978), the Court, in 
approving an award of attorney’s fees from the state 
treasury, criticized the dissenters who “ would appar­
ently leave the officers to pay the award,”  because the 
latter result would:

. . . def[y] this Court’s insistence in a related con­
text that imposing personal liability in the absence 
of bad faith may cause state officers to “ exercise 
their discretion with undue timidity.”  Wood v. 
Strickland, 420 U.S. 308, 321.

Similarly, in Lake County Estates v. Tahoe Planning 
Agcy., 440 U.S. 391, 405 n. 29 (1979), the Court, while 
holding individual regional legislators to be immune, 
stated that “ [i ]f  the respondents have enacted uncon­
stitutional legislation, there is no reason why relief 
against [the entity] itself should not adequately vin­
dicate petitioners’ interests.”

B. Extrapolating A Qualified Immunity From The Insulation 
Which Municipalities Enjoyed From Certain Tort Actions 
At Common Law

In his concurring opinion in Monell, 436 U.S. at 
713-714, Mr. Justice Powell noted that one of the ques- 
tions remaining “ for another day”  was “ whether the 
protection available at common law for municipal cor-

governmental unit, a justification for an expansive definition of . . . 
immune acts.”  Id. at 792. The court ‘ ‘ consider[ed] it unlikely that 
the possibility of governmental liability will be a serious deterrent 
to the fearless exercise of judgment by the employee, ’ ’ but believed 
that if such deterrence did occur, it might well be ‘ ‘ wholesome.”  
Id. at 792.



25

porations, see post, at 720-721, support[s] a qualified 
municipal immunity in the context of the § 1983 dam­
ages action.”  The reference was to a passage in Mr. 
Justice Rehnquist’s dissenting opinion noting that “ no 
state court had ever held that municipal corporations 
were always liable in tort in precisely the same manner 
as other persons,”  id. at 720-721. The Second Circuit 
has ruled that this consideration warrants extending 
to municipalities a qualified good faith immunity from 
damages for injuries caused by their constitutional 
violations. Sola v. County of Suffolk, 604 F.2d 207, 211 
(2nd Cir. 1979).

There were, indeed, two common law doctrines which 
insulated municipalities from certain types of tort 
actions altogether, regardless of the relief sought, in­
junctive or damages. We discuss each of those doc­
trines now, and show that neither could have formed 
the predicate for an unexpressed congressional intent 
to qualify the damage liability of municipalities in 
§ 1983 actions.

1. S overeig n  Im m un ity (the G ovem m en ta l/P rop rieta ry
Distinction).

At common law, the doctrine of sovereign immunity 
insulated state governments from tort actions. When 
the state delegated certain of its functions to a muni­
cipality, the municipality was deemed an “ arm of the 
state.”  “ In chartering a municipal corporation, the 
state, in fact, charters a portion of itself . . .  A munici­
pal organization is only a contrivance to aid the state 
to administer the laws . . . ”  Shearman & Redfield, 
supra, at p. 143. With respect to those “ governmental”  
functions the municipality enjoyed the state’s sovereign 
immunity from suit:



26

So far as [municipal corporations] exercise 
powers conferred on them for purposes essentially 
public—purposes pertaining to the administration 
of general laws made to enforce the general policy 
of the state—they should be deemed agencies of 
the state, and not subject to be sued for any act or 
omission occurring while in the exercise of such 
power, unless by statute the action be given. In 
reference to such matters they should stand as does 
sovereignty, whose agents they are, subject to be 
sued only when the State by statute declares they 
may be.

Beach, Commentaries on the Law of Public Corpora­
tions, 266 (1893), quoting City of Galveston v. Posnain- 
sky, 62 Tex. 118 (1884).13

Certain of a municipality’s functions, however, were 
deemed not to have been delegated by the state, but 
rather to have been voluntarily adopted by the citizens 
of the municipality. As to these “ proprietary” func­
tions, municipalities were treated the same as private 
corporations: 14

[W ]ith respect to local or municipal powers 
proper (as distinguished from those conferred 
upon the municipality as a mere agent of the state)

13 A ccord : Cooley, Treatise on the Constitutional Limitations 
240 (1868). The doctrine of sovereign immunity at common law 
differed in scope, purpose and effect from the immunity extended 
by the Eleventh Amendment. Thus, while the common-law doctrine 
applied to some functions of municipalities, “  [t] he bar of the Elev­
enth Amendment to suit in federal courts . . . does not extend to 
counties and similar municipal corporations.”  Ml. Healthy City 
Board of Ed. v. Doyle, 429 U.S. 274, 280 (1977). See also Edelman 
v. Jordan, 415 U.S. 651, 667 n. 12 (1974) ; Moor v. County of 
Alameda, 411 U.S. 693 (1973); Lincoln County v. Luning, 133 
U.S. 529 (1890).

14 Except in South Carolina, see pp. 28-29 n. 17, infra.



27

the inhabitants are to be regarded as having been 
clothed with them at their request and for their 
peculiar and special advantage and . . .  as to such 
powers and the duties springing out of them, the 
corporation has a private character, and is liable, 
on the same principles and to the same extent as 
a private corporation.

Dillon, Treatise on the Law of Municipal Corporations 
33 (1st ed., 1872).15 *

In reality, by 1871 municipal corporations were far 
more amenable to suits in tort than the governmental/ 
proprietary distinction would suggest. For sovereign 
immunity was lost if “ by statute the action be given.”  
Beach, supra, at 266. During the early and mid-Nine- 
teenth Century, the courts found that as to many “ gov­
ernmental”  functions the states had by statute with­
drawn the immunity. The process by which this was 
accomplished is described in Shearman & Redfield, 
supra, pp. 145-153, and in Note, Liability of Cities for 
the Negligence and Other Misconduct of Their Officers

15 Accord: Cooley, supra, at p. 248; Beach, supra, at 770. This 
dichotomy resulted in cities being more generally amenable to tort 
actions at common law than counties and school districts, for the 
latter were considered to be exercising delegated “ state”  powers 
in most if not all of their activities:

Counties, townships, school districts, and road districts do not 
usually possess corporate powers under special charters; but 
they exist under general laws of the State, which apportion 
the territory of the State into political divisions for conveni­
ence of government, and require of the people residing within 
those divisions the performance of certain public duties as a 
part of the machinery of the State. . . . Whether they shall 
assume those duties or exercise those powers, the political 
divisions are not allowed the privilege of choice; the legisla­
ture assumes this division of the State to be essential in repub­
lican government. . . .

Cooley, supra, at 240. A ccord : Beach, supra, at 267.



and Agents, 30 Am. St. Rep. 376, 380-387 (1893). 
While a minority of the state courts required explicit 
statutory conferral of a cause of action to lift sov­
ereignty, 30 Am. St. Rep. at 381—rulings which often 
were followed by the enactment of such explicit stat­
utes, ibid—“ a decisive majority of the courts in this 
country, both state and national”  ruled that the imposi­
tion of a duty upon a municipality by charter or stat­
ute 11 implies that redress should be accorded in the 
courts to anyone injured by its non-performance or 
mis-performance,”  id. at 385 (emphasis added). By 
whichever route was followed in a particular state, 
there developed throughout the nation an entire body 
of statutory tort law: causes of action which could not 
have been brought at common law were brought pur­
suant to statute. See, e.g., City of Providence v. Clapp, 
17 How. (58 U.S.), 161, 167-169 (1855); Weightman 
v. Washington, 1 Black (66 U.S.) 39, 50-52 (1862); 
Nebraska City v. Campbell, 2 Black (67 U.S.) 590, 592 
(1862); Chicago v. Robbins, 2 Black (67 U.S.) 418, 
422-425 (1863); Barnes v. District of Columbia, 91 
U.S. 540, 544-552 (1876).16

Municipalities thus were broadly amenable to tort 
actions as of 1871: for their “ proprietary”  actions they 
were suable at common law the same as a private cor­
poration, and for their “ governmental”  actions they 
were suable to the extent—and it was a considerable 
extent—that statutory causes of action had been created 
as described above.17 And in both contexts—-the common

10 State court cases to the same effect are collected in Note, supra, 
30 Am. St. Rep. at 380-387.

17 In his dissenting opinion in Monell, 436 U.S. at 721, Mr. 
Justice Rehnquist cited Irvine v. Town of Greenwood, 89 S.C. 511



29

law action for “ proprietary” torts, and the statutory 
action for ‘ ‘ governmental”  torts—municipalities were 
found liable in damages in a multitude of cases; 18 * our 
research did not disclose a single case where a munici­
pality was afforded any immunity, qualified or other­
wise, from paying damages for injuries resulting from 
an actionable tort.10

The sovereign immunity enjoyed by municipalities 
at common law affords no basis for imputing to Con­
gress an unstated intention to qualify the amenability

(1911), as reflecting a view that municipalities enjoyed “ absolute”  
tort immunity. In Irvine, the South Carolina Supreme Court 
rejected the “ governmental/proprietary ”  distinction, and held that 
all functions of municipalities were “ governmental.”  The Irvine 
court acknowledged that its ruling conflicted with decisions of the 
United States Supreme Court, decisions in other states, and the 
views expressed in the treatises, and it cited no decision from any 
other state supporting its position. The effect of its decision, as the 
court recognized, id. at 514, 518, was to render municipalities 
suable only for statutory torts, i.e., in causes of action which the 
General Assembly of South Carolina had authorized by statute.

In Sala, 604 F.2d, supra at 211, the Second Circuit, citing Mr. 
Justice Rehnquist’s dissent, read a good faith immunity into § 1983, 
reasoning that as § 1983 was “ enacted by a Congress accustomed 
to nearly absolute municipal immunity”  its statute should not “ be 
read to implement a doctrine of liability without fault.”  Even if 
this were not a non sequitur, its premise (that Congress was “ ac­
customed to nearly absolute municipal immunity” ) overlooked both 
the universal acceptance (outside of South Carolina) of the pro­
prietary functions doctrine and the statutory developments ren­
dering municipalities suable for “ governmental”  acts.

;s See sources cited at pp. 19-20, 27-28.

19 Although not a damage immunity, there was a rule of damages 
applicable with respect to at least some municipal torts that, in 
order to recover, the “ plaintiff [must have] sustained some peculiar 
damage beyond the rest of the K ing’s subjects”  by reason of the 
tort. Weig'htman v. Washington, 1 Black (66 U.S.) 39, 53 (1862), 
citing Mayor of Lyme v. Henley, 3 B. & Ad. 77 (1832).



30

of municipalities to damage awards under § 1983. The 
doctrine of sovereign immunity was not a damage im­
munity. Its effect, where it applied, was to insulate 
the municipality from suit altogether, and thus to 
preclude the entry of any kind of relief (injunctive 
as well as monetary) against the municipality. The doc­
trine’s existence did not reflect a prudential judgment 
about the desirability or undesirability of holding mu­
nicipalities monetarily accountable for their torts, but, 
rather, reflected a truth about the nature of power: as 
the sovereign made the law, it could be sued only if and 
to the extent it chose to subject itself to the law it 
made. Beers v. Arkansas, 20 How. (61 U.S.) 527, 529 
(1858) ; Kawananakoa v. Polyblank, 205 U.S. 349, 353 
(1907). The law of torts was state law; the state was 
the sovereign which made that law; and except as the 
state elected to subject itself (and its “ arms,”  the mu­
nicipalities) to obedience to that law, and assume ac­
countability in its courts for failure to obey, no action 
would lie.

Given the nature of that immunity, it was by defini­
tion abrogated by enactment of a statute by the state 
or, where federal power exists, the federal government, 
subjecting a municipality to liability. The abolition of 
sovereign immunity through the statutory creation of 
causes of action was widespread by 1871, and its effect 
was that municipalities were made subject to damage 
liability without immunity.20 With respect to violations 
of the federal Constitution and federal statutes, Con­
gress was the “ sovereign” ; the states had no control 
over the decision of Congress whether their subordi­

20 See pp. 27-29, supra.



31

nate governmental bodies could be sued.21 When Con­
gress decided to include municipalities among the 
“ persons”  against whom a § 1983 cause of action could 
be brought, and thus to make municipalities amenable 
in damages for violating those negative duties imposed 
by the Fourteenth Amendment, Monell, supra, 436 
U.S. at 679-680, it rejected en toto the sole foundation 
upon which the common law immunity had rested, i.e. 
the unavailability of suit. It cannot be presumed that 
the 1871 Congress intended this imposition of statutory 
liability to carry with it a municipal immunity from 
damages when in no other statutory action against mu­
nicipalities did such an immunity exist.

There is, accordingly, nothing about the common law 
doctrine of sovereign immunity which justifies imput­
ing to Congress an unstated intention to create a 
“ qualified”  immunity for local governmental bodies in 
§ 1983 suits. To impute to Congress such an intention 
would require assuming that Congress intended, with­
out expressing its intention in the statute or the de­
bates, to create an immunity entirely unknown to the 
law. The state of the law in 1871 was that entities either 
were suable or were not, and if suable they had no im­
munity. Congress made them suable under § 1983, and 
there is no conceivable basis for imputing to Congress 
an intention that they should enjoy a qualified im­
munity.

21 And the authority which Congress was exercising, that be­
stowed by the Fourteenth Amendment, was federal authority, not 
state authority. The laws enacted by Congress during the post- 
Civil War period were “ grounded on the expansion of Congress’ 
powers— with the corresponding diminution of state sovereignty— 
found to be intended by the Framers and made part of the Consti­
tution upon the states’ ratification of [the 13th, 14th and 15th] 
Amendments.”  Fitzpatrick v. Bitzer, 427 U.S. 445, 455-456 (1976).



32

2. The Insulation of "D iscretion a ry" Functions From  
N eg lig en ce  Suits.

There was also at common law a doctrine protecting 
municipalities from tort suits challenging “ discretion­
ary”  decisions. I f the law of negligence had been made 
applicable to every decision of a municipality, then the 
legislative judgments of the elected officials could have 
been subjected to judicial review on a claim that they 
were not “ reasonable” . The effect would have been to 
transfer the ultimate legislative power to judges and 
juries. To protect against this, the courts fashioned 
a distinction between those functions which were com­
mitted to the governmental entities’ legislative “ dis­
cretion”  and those as to which municipalities were un­
der a specific mandate to act (or not to act) in a par­
ticular way. The former were not subject to challenge 
under the “ reasonable man”  standard. This was not 
an immunity; rather, it defined what constituted a 
cause of action and what did not. Its development did 
not reflect a concern unique to monetary liability; in­
deed, a principal concern was to protect against in­
junctions requiring elected officials to alter their legis­
lative judgments:

The statute may enjoin, absolutely and impera­
tively, the performance of an act or duty, or it 
may leave it to the discretion of the corporation 
either to do it or not to do it. I f  the latter is the 
case, courts cannot compel the performance of such 
duties, or hold the corporation responsible civilly 
for its refusal to act. A large part of the functions 
of a city corporation are legislative or governmen­
tal, and necessarily a wide discretion is confided 
to it in determining the means of accomplishing 
its ends, and the courts will not supervise that dis­
cretion. Otherwise, if the courts could by writ of 
mandamus or other process compel the opening



33

and paving of streets, building of sewers, &e., not 
in conformity with the views of local officers, in­
extricable confusion in the administration of gov­
ernment would ensue. For the duty of building 
public works of this kind is one requiring the 
exercise of deliberation, judgment, and discretion. 
It admits of a choice of means, and the determina­
tion of the order of time in which such improve­
ments shall be made. It involves also a variety of 
prudential considerations relating to the burdens 
which may be discreetly imposed at a given time 
and the preference which one locality has over 
another.

Shearman & Redfield, supra, at 153-154 (footnotes 
omitted). The vice, as the treatises and cases uniformly 
recognized, was that maintenance of actions challenging 
decisions of this type “ would transfer to court and jury 
the discretion which the law vests in the municipality.”  
Beach supra, at p. 265; Cooley, supra, at pp. 253-255; 
it would place decision-making “ in the judiciary, in­
stead of in the city council, where the Legislature 
placed it.”  City of Little Bock v. Willis, 27 Ark. 572, 
577 (1872).22

But the rationale of the “ discretionary function”  
doctrine also defined its limits. Where a municipality 
was subject to “ duties which are absolute and impera­
tive in their nature,”  there was no protection against 
injunction or damages for “ non-performance or mis- 
performance.”  Shearman & Redfield, supra, at p. 159. 
The doctrine was simply inapplicable “ when a specific 
and clearly defined duty is enjoined.”  Weightman v. 
Washington, 1 Black (66 U.S.), 39, 50 (1862).

22 Accord: Weightman v. Washington, 1 Black (66 U.S.) 39, 
49-50 (1862) ; Johnston v. District of Columbia, 118 U.S. 19, 20-21 
(1886); Carr v. The Northern Liberties, 35 Penn. State 324, 329- 
330 (1860).



34

And thus it is evident that the insulation of munici­
palities from judicial second-guessing of their “ dis­
cretionary”  decisions is by its terms inapplicable to 
the duties made actionable in § 1983. Municipalities do 
not have “ discretion”  to violate the federal Constitu­
tion. The inquiry under § 1983 is not whether public 
decisions are “ reasonable” , but whether they are in 
violation of the federal Constitution and/or federal 
statutes. It was the very purpose of § 1983 to vest the 
federal courts with the power to conduct this inquiry. 
The discretionary function doctrine, having no applica­
tion to the “ absolute and imperative”  obligations made 
actionable in § 1983, cannot justify a presumption that 
Congress silently intended to create a qualified immu­
nity from damage liability in § 1983.

CONCLUSION

The following propositions, we believe, are disposi­
tive of the issue in this case:

(1) Congress enacted a statute, § 1983, which, with­
out qualification, declared that municipalities “ shall be 
liable to the injured party in an action at law”  for 
their violations of the federal Constitution and federal 
statutes.

(2) The express congressional purpose was to ex­
tend the broadest relief that it was within Congress’ 
power to provide to parties injured by violations of 
the federal Constitution and statutes made actionable 
in § 1983.

(3) There is not a hint in the debates that Congress 
intended to confer any immunity upon municipalities.



35

(4) The state of the law as of 1871 was that wherever 
municipalities were made suable they enjoyed no im­
munity whatever from damage liability.

(5) In particular, the state of the law as of 1871 was 
that the imposition of a statutory duty upon munici­
palities carried with it no implicit form of damage 
immunity.

In the light of these propositions, it would be a dis­
tortion of Congressional will to construe § 1983 as con­
ferring any immunity upon municipalities for the vio­
lations made actionable by that statute.

Accordingly, the decision below should be reversed.

Respectfully submitted,

J ohn B. J ones, J r. 
Norman R edlich 

Co-Chairmen
W illiam  J. R obinson 

Director
Norman Chachkin  

Staff Attorney
Lawyers’ Committee 

for Civil Rights 
Under Law

733 Fifteenth St., N.W. 
Washington, D.C. 20005

M ichael H. Gottesman 
R obert M. W einberg 
J eremiah A. Collins 

B redhoff, G ottesman, 
Cohen & W einberg 

1000 Connecticut Ave., 
N.W.

Washington, D.C. 20036
D avid R ubin

National Education 
Association

1201 Sixteenth St., N.W. 
Washington, D.C. 20036

W illiam  E. Caldwell 
R atner and Sugarmon 
525 Commerce Title 

Building
Memphis, Tennessee 

38103
Attorneys for Amici Curiae