Appeal from a judgment of the United States District Court for the District of Connecticut, Newman, J., dismissing plaintiff's complaint against the City of West Haven for failure to state a claim directly under the fourteenth amendment.
Kaufman, Chief Judge, Feinberg, Mansfield, Mulligan, Oakes, Timbers, Gurfein, Van Graafeiland and Meskill, Circuit Judges. Oakes, Circuit Judge, concurring. Van Graafeiland, Circuit Judge (with whom Judges Mulligan, Timbers and Meskill concur), dissenting.
With the ratification of the fourteenth amendment in 1868, Congress and the judiciary embarked on a century-long journey to transform the mere words of the amendment into an instrument capable of protecting those injured by illegal state action. The legislative branch moved first and with dispatch in enacting the Civil Rights Bill of 1871, whose overarching provisions charted broad expanses of the new constitutional territory. Courts, on the other hand, through the characteristically measured process that marks the restrained exercise of judicial power, proceeded slowly, yet deliberately, to effectuate the congressional and constitutional design. We are asked on this appeal to move one step further in fulfilling the promise of the fourteenth amendment by recognizing that, in certain instances, municipalities may be held liable in damages for actions taken in derogation of that amendment. Cognizant of our responsibility to develop remedies implementing fundamental constitutional provisions, we proceed with our task.
In order to understand the complex legal issues presented by this case, its relatively simple facts must be traversed initially.*fn1 During the early evening hours of September 18, 1971, two teenage girls were involved in an altercation when one allegedly began to choke the other. Denise Stiles managed to free herself from her friend's grasp, and ran home to tell her mother, Jean Stiles Pasano, about the incident. Mrs. Pasano immediately reported her daughter's story to the West Haven police force, and two of its officers, Christopher Columbus Skeens and Robert J. Weber, began their search for the girl's alleged 'attacker, ' Nancy Guckin. Near the corner of Noble Street and Washington Avenue in West Haven, Patrolman Weber spotted a group of teenagers, and learned that one of their number was Nancy.
After identifying the girl, Weber began to escort her to the patrol car. When she screamed for help, the assembled youngsters shouted their protests at Weber, and fifteen-year-old Thomas Turpin, one of the onlookers, attempted to come to her aid. As Turpin approached the car, Officer Skeens grabbed him from behind and, according to Turpin, clubbed him on the back of his skull with a nightstick. The resulting laceration was treated at a nearby hospital and required six stitches.
On November 7, 1972, Turpin filed suit against Skeens in federal court, claiming that the officer had used excessive force in restraining him, and thereby violated his civil rights under 42 U.S.C. § 1983. During the course of the trial, Officer Skeens contended that he and Weber merely threw Turpin aside, and that the youngster had sustained his head injury by striking the left rear side of the police car. Judge Newman, who tried the case without a jury, credited Turpin's version of the incident, which was corroborated by the testimony of six eyewitnesses. He awarded the youngster $3,500 in damages, a sum ultimately paid by the insurance carrier for the City of West Haven. The decision was publicized in the community and discussed by members of the West Haven Police Department. Turpin claims that this resulted in widespread animosity generated against him among the officers.
Spurred by the general interest in the case, the Board of Police Commissioners met to discuss Judge Newman's decision. Ultimately, the Board decided against disciplining Skeens, in spite of the court's determination that he had used excessive force. Indeed, Skeens was subsequently promoted. Turpin alleges that this action by the Board served to encourage members of the West Haven Police Department to believe that they could violate his civil rights with impunity.
This attitude, Turpin suggests, triggered the incident which lies at the heart of the instant lawsuit. On May 6, 1975, less than three months after Judge Newman's decision, Turpin was leaving Pickering's Store on the corner of Campbell Avenue and Noble Street in West Haven at about seven-thirty in the evening when he saw his friend, Walter Edwards, and decided to join him. The two companions, Turpin asserts, were standing there peacefully when Joseph Mailet, a West Haven police officer, recognized Turpin. Mailet, allegedly acting out of malice stemming from Turpin's successful suit against Skeens, arrested Turpin and Edwards for disorderly conduct. Officer Leslie Sweetman, who was parked in his squad car nearby, assisted Mailet with the arrest. After Turpin was processed and detained at the offices of the West Haven Police Department, he was released on a nonsurety bond. One month later, on June 12, 1975, a nolle prosequi was filed by an assistant prosecuting attorney, thus terminating the proceedings against Turpin.
Turpin, claiming that the arrest violated his civil rights, commenced the instant action against the officers and the City of West Haven on July 25, 1975. Insofar as the two police officers were charged with wrongdoing, Turpin's suit was based on the provisions of 42 U.S.C. §§ 1983 and 1988, with federal jurisdiction asserted under 28 U.S.C. § 1343(3). The action against the City, on the other hand, was brought directly pursuant to the provisions of the fourteenth amendment, with jurisdiction grounded in 28 U.S.C. § 1331 - the general federal question provision. Pendent claims against the City based on Connecticut law were also asserted.*fn2 Turpin sought a compensatory recovery of $100,000, and an additional $100,000 in punitive damages.
The City moved for dismissal under Rule 12(b) (6) of the Federal Rules of Civil Procedure, claiming that Turpin failed to state a claim against it. Judge Newman adopted the findings of Magistrate Arthur H. Latimer on this issue. The Judge held that, under the circumstances presented, a right of action could not be implied directly from the fourteenth amendment. He also dismissed the pendent state claims. Turpin, seeking an instant appeal, then moved successfully for the entry of a final judgment on the claims against the City under Rule 54(b) of the Federal Rules of Civil Procedure, the action against the individual defendants still continuing. In granting Turpin's motion, Judge Newman noted that over 30 lawsuits in the District of Connecticut presented claims similar to that pressed against the City of West Haven. This appeal was, accordingly, allowed.*fn3
Turpin's decision to proceed against the City directly under the fourteenth amendment, invoking the jurisdictional provisions of 28 U.S.C. § 1331, results, of course, from judicial interpretations of 42 U.S.C. § 1983, the modern day codification of Section 1 of the Civil Rights Act of 1871. In 1961, the Supreme Court decided that § 1983 could not be used to impose liability in damages upon municipalities. Monroe v. Pape, 365 U.S. 167, 187-91, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). After an analysis of the provision's legislative history, Justice Douglas wrote that Congress could not have intended to include municipalities among the class of "persons" capable of being sued under the statute.*fn4 Subsequently, the rationale of Monroe was logically extended to preclude § 1983 injunctive actions against municipalities.*fn5 City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973). Accordingly, individuals seeking relief against municipalities for the deprivation of their civil rights have often turned directly to the fourteenth amendment. They have relied on the principle expounded in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), that, even in the absence of a statutory right of action, courts have the power to fashion common law remedies for constitutional wrongs.*fn6
The facts in Bivens are enlightening. Six agents of the Federal Bureau of Narcotics were alleged to have invaded Webster Bivens's apartment without the authority of either a search or arrest warrant. If the charges were true, the conduct of the agents violated the fourth amendment. No remedy, however, was apparently available to Bivens for this violation of his constitutional rights. Since only employees of the federal government were involved, 42 U.S.C. § 1983, which, by its terms, applies only to "state action," was rendered inapplicable. And the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80, which would otherwise allow suits against the United States, then exempted all intentional torts.*fn7 In sum, if Bivens was to be accorded any federal relief, his only recourse would be a damage action under the fourth amendment. Justice Brennan gave short shrift to the argument that petitioner should be relegated to his state remedies, noting,
"Where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Bell v. Hood, 327 U.S. at 684.
Bivens, supra, 403 U.S. at 392. He went on to stress that damages have historically been regarded as the ordinary remedy for an invasion of personal interests in liberty.
Few opinions have stirred as much debate as Bivens. It has led commentators to explore not only the precise scope of its holding but, more fundamentally, to inquire into the respective roles of Congress and the courts in fashioning remedies for constitutional wrongs. And it is clear to us, and to many others, that judicial power to redress constitutional grievances is not limited to the fourth amendment. Bivens, if anything, established that damages could flow from injuries caused by an invasion of other constitutional provisions.*fn8 See Note, Remedies for Constitutional Torts: "Special Factors Counselling Hesitation," 9 Ind. L. Rev. 441, 449 (1976). Indeed, its rationale has been applied to cases arising under the first,*fn9 fifth,*fn10 sixth,*fn11 eighth,*fn12 ninth,*fn13 and fourteenth*fn14 amendments.
Underlying the evident readiness of courts to imply a remedy is the recognition, seldom clearly expressed, that the courts are doing no more than fulfilling their traditional common law function. See Monaghan, The Supreme Court, 1974 Term - Foreword: Constitutional Common Law [hereinafter cited as Monaghan], 89 Harv. L. Rev. 1 (1974). Where Congress does not provide any remedy for the vindication of a right guaranteed by the Constitution, the Constitution itself may require that the exercise of judicial power fill the void. See Kostka v. Hogg, 560 F.2d 37, 44-45 (1st Cir. 1977). In most instances, however, courts are free to imply remedies where the relief requested is merely appropriate to the vindication of the interest asserted. When one analyzes Bivens, he is driven to the conclusion that Bivens decided that precise issue. The Court refused to accept the premise that a remedy must be necessary or indispensable to warrant its implication:
The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. Cf. J.I. Case Co. v. Borak, 377 U.S. 426, 433, 12 L. Ed. 2d 423, 84 S. Ct. 1555 (1964); Jacobs v. United States, 290 U.S. 13, 16, 78 L. Ed. 142, 54 S. Ct. 26 (1933).
403 U.S. at 397. In such instances, courts are doing no more than creating structures for enforcement similar to those normally fashioned by legislatures. Monaghan, supra, 89 Harv. L. Rev. at 28; Hill, The Bill of Rights and the Supervisory Power, 69 Colum. L. Rev. 181 (1969).
It is too late in the day to question whether the court can act in this fashion even in the absence of express congressional authorization. The development of the exclusionary rule and the required provision of Miranda warnings might well be examples of "common law" development.*fn15 In his concurrence in Bivens, Justice Harlan recognized the appropriateness of this role for the courts, and likened judicial rulemaking to legislative activity:
In resolving that question, it seems to me that the range of policy considerations we may take into account is at least as broad as the range of those a legislature would consider with respect to an express statutory authorization of a traditional remedy.
403 U.S. at 407. The soundness of Justice Harlan's reasoning may be found in the explanation that the courts are not really impinging upon congressional authority when they act in the manner under discussion. *fn16
In assuming its common law role, the court invigorates the political process. As Professor Monaghan has aptly noted, "the Court, in effect, opens a dialogue with Congress, but one in which the factor of inertia is now on the side of individual liberty." Monaghan, supra, 89 Harv. L. Rev. at 29. The legislature, at the least, becomes sensitive to those areas in which its own remedial scheme is lacking, and can use the court's determination as a focal point for the re-examination of the policy questions involved.*fn17
The fourteenth amendment provides an apt context for the application of the court's common law powers. At its inception, the principles underlying the amendment were heralded as "the very spirit and inspiration of our system of government, the absolute foundation upon which it was established."*fn18 If the judicial branch has an obligation, independent of Congress, to enforce the terms of any constitutional provision, certainly the fourteenth amendment should be foremost among them.
The City of West Haven suggests, nonetheless, that the language of the amendment requires a contrary result. It argues that since Section five*fn19 explicitly accords Congress "the power to enforce by appropriate legislation" the provisions of the Amendment, the courts are precluded from doing so.*fn20 In addition, the City contends that the first four substantive sections are little more than precatory.
To support this proposition, it resurrects dicta nearly a century old from Ex Parte Virginia, 100 U.S. 339, 25 L. Ed. 676 (1880). The Court there indicated its acceptance of a severely restricted view of judicial power under the fourteenth amendment, going so far as to suggest that courts lack the power to declare state legislation in conflict with the fourteenth amendment. 100 U.S. at 345, 347. Almost a quarter century has passed since the Supreme Court's landmark opinion in Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), and it can no longer seriously be contended that the judiciary is relegated to so meager a role in enforcing the terms of the amendment.*fn21 Brown and its progeny demonstrate that courts have - and will - play an enormous role in fashioning equitable remedies under the fourteenth amendment. And the courts have been anything but meek in requiring states and municipalities to reshape their institutions to conform with the dictates of the Constitution. See generally Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976). Since the language of the amendment does not suggest any distinction between the propriety of according equitable relief and damages,*fn22 we fail to see how any differentiation of substance between the forms of relief can be justified.
The position taken by the City of West Haven also does not find any support in the legislative history of the amendment. The first draft of the provision was framed only in terms of a grant of power to Congress to secure the privileges and immunities of state citizens and equal protection for all persons.*fn23 After three days of debate in the House of Representatives, it became clear that this original language could not secure enough votes for passage. B. Schwartz, Statutory History 191. A revised draft was then introduced, whose five sections contained not only a grant of power to Congress but a series of substantive prohibitions against the states. The significance of the change is that the proposed amendment incorporated four self-executing provisions barring the states from restricting civil rights. Representative Bingham, the author of the amendment, explained the import of the modification in subsequent debates on the Civil Rights Act of 1871:
Well might the gentleman inquire, as he does today, "What means that language if we adopted the amendment without power to enforce it?" . . . .
Mr. Speaker, allow me to say, further, that by the text of the Constitution as you remember it, and as all thoughtful Representatives remember it, there are negative limitations upon the power of the States; as, for example, that no state shall make an ex post facto law; . . . .
These are of the negative limitations on the power of the States in the original text of the Constitution. Does the gentleman undertake to tell me that they have not always been enforced against state constitutions and state statutes, and the judgment of the highest courts of the States, in the Supreme Court, under the twenty-fifth section of the act of 1789? Why sir, if I were to read the decisions that have been made in the exercise of this very power, under that law, enforcing these negative prohibitions upon States, the sun would go down before I had read even a syllabus of the cases. B. Schwartz, Statutory History 304-05.
Moreover, if we were to accept the City's argument that, independent of legislative action, courts lack the power to compel compliance with constitutional provisions containing congressional enforcement clauses, we would be emasculating much of the modern Constitution. An express grant of power to the legislative branch is not peculiar to the fourteenth amendment. It is contained in the thirteenth, fifteenth, eighteenth, nineteenth, twenty-third, twenty-fourth, and twenty-sixth amendments as well. Indeed, that language is also a part of the proposed equal rights amendment.
In rejecting the proposition that Section five is an implicit limitation on the court's powers, we do, of course, recognize that the enforcement provision has been accorded a special role in the constitutional framework. Congressional enactments empowered by Section five can override the proscriptions of the eleventh amendment, see Fitzpatrick v. Bitzer, 427 U.S. 445, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976),*fn24 and perhaps even the tenth amendment, see National League of Cities v. Usery, 426 U.S. 833, 852 n.17, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976).*fn25
Bivens instructs us, then, that this court has the power to imply a remedy for violations of the fourteenth amendment. Bivens expressly cautioned, however, that courts should tread warily when confronted with an "explicit congressional declaration" antithetical to the existence of a cause of action. Indeed, many courts, adhering to this proposition, have refused to allow recourse against municipalities for violations of the fourteenth amendment, asserting that Congress manifested its antipathy to such actions during the debates surrounding the passage of the Civil Rights Act of 1871 (now, § 1983). See, e.g., Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977); Pitrone v. Mercadante, 420 F. Supp. 1384 (E.D. Pa. 1976); Smetanka v. Borough of Ambridge, 378 F. Supp. 1366 (W.D. Pa. 1974); Perzanowski v. Salvio, 369 F. Supp. 223 (D. Conn. 1974). Cf. Crosley v. Davis, 426 F. Supp. 389 (E.D. Pa. 1977).
Critics of implication rely primarily on the rejection of the Sherman Amendment in 1871. See Monroe v. Pape, 365 U.S. 167, 188, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). This amendment would have imposed strict liability upon municipalities for almost any form of private organized violence. It is worthwhile to recite the endless reach of that language, for so much has been made of the rejection of the Sherman Amendment:
That if any house, tenement, cabin, shop, building, or granary shall be unlawfully or feloniously demolished, pulled down, burned, or destroyed, wholly or in part, by any persons riotously and tumultuously assembled together . . . the county, city, or parish in which any of the said offenses shall be committed shall be liable to pay full compensation to the person or persons damnified by such offense.
Cong. Globe, 42d Cong., 1st Sess., p. 663 (emphasis added). Counties, cities and parishes, responsible for violence committed within their confines, even by non-residents, would have been transformed into guarantors of the public peace. The amendment passed the Senate, but was twice rejected by the House of Representatives.
The Supreme Court, in Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), relied on the rejection of the Sherman Amendment in holding that municipalities are not "persons" for the purposes of § 1983. Justice Douglas, in plumbing the source of the apparent congressional antagonism to municipal liability, suggested it derived from the legislature's fear that it had "no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of state law." 365 U.S. at 190.
Others have found alternative explanations in the legislative history for the rejection of the amendment. Some representatives, for example, were not willing to accept a measure so extreme as to impose liability for purely private acts. Others were of the view that the proliferation of such damage actions might well bankrupt municipal treasuries. Nearly all the objections to the amendment adverted to its breadth and its dubious constitutionality. See Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv. L. Rev. 922, 945-51 (1976); Comment, 57 Calif. L. Rev. 1142, 1164-70 (1969). Certainly, it is difficult to draw any reasoned conclusion regarding Congress's attitude toward municipal liability for the constitutional torts of public employees from the fate of the Sherman Amendment.*fn26
Some who have accepted the notion that § 1983 evidences an explicit policy against judicial imposition of liability upon municipalities, most notably the First Circuit in Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977), do not merely rely on the 1871 debates and Monroe. Substantial emphasis is placed on two recent decisions by the Supreme Court, Aldinger v. Howard, 427 U.S. 1, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976) and Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973), both addressing issues left unresolved by Monroe. The opinions, however, ultimately add little to the Monroe analysis. In Aldinger, where an action had been brought under § 1983 against several officers of Spokane County, an attempt was made to have the federal court exercise pendent jurisdiction over state claims against the County itself. The sole initial source of jurisdiction was § 1343(3), the jurisdictional counterpart of § 1983. The Court declined to adopt this "pendent party" theory, basing its decision, in part, on a determination that such an outcome would conflict with § 1983:
Parties such as counties, whom Congress excluded from liability in § 1983, and thereby by reference in the grant of jurisdiction under § 1343(3), can argue with a great deal of force that the scope of that "civil action" over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them back within that power merely because the facts also give rise to an ordinary civil action against them under the law.
427 U.S. at 17. Given that Congress did not view § 1983 as authorizing suits against municipalities (for whatever reasons), the Court correctly perceived the anomaly of bootstrapping state claims into a federal court by the use of § 1983's penumbra of pendent jurisdiction.
In Moor, the Court was presented with the question whether § 1988, enacted to fill "gaps" in the federal civil rights law through the adoption of appropriate provisions of state law, should be construed to permit a type of liability explicitly rejected in the § 1983 debates. The petitioners in that case sought to incorporate into federal law California statutory provisions making a county vicariously liable for the wrongful acts of its employees. The limited issue presented, as characterized by Justice Marshall for the Court, was whether in "§ 1988 Congress has effectively mandated the adoption of California's law of vicarious liability into federal law." 411 U.S. at 701. In rejecting this contention, the Court observed that the judicial implication of remedies under § 1988 should be "restricted to those contexts in which Congress has in fact authorized resort to state and common law." Id. In short, Moor stands for the not particularly remarkable proposition that Congress itself should not be viewed as authorizing, under a remedial provision, measures it elsewhere declined to adopt.*fn27
The Court's rejection of attempts to expand the scope of § 1983 through the back door, by a forced interpretation of other statutory enactments, does not reflect Congress's antipathy to the remedy in question. To accept the "antipathy" argument would lead us into a cul de sac. We would be forced to accept the objectionable concept that Congress's failure to provide a remedy for every conceivable constitutional violation demonstrates a belief by Congress that certain injustices must remain unredressed. As Professor Nowak points out,
While the Civil Rights Bill of 1871 was sweeping in scope, it was considered to be a first step in the enforcement of the principles of the fourteenth amendment. . . . Thus, it would seem that the proponents of the bill intended to provide civil and criminal sanctions against individuals who engaged in activities designed to deprive some individuals of the rights guaranteed by the amendment and thought it advisable to see if these provisions were ...