Pembaur v. City of Cincinnati

Justice White agreed that the County's decision manifested official policy, but emphasized the legal setting in 1977. At that time, forcible entry into third-party property to execute otherwise valid arrest process was not forbidden by federal, state, or local law, and Cincinnati acknowledged that such entry was standard operating procedure. County officials with authority to approve or reject the entry chose to use force, making that choice fairly attributable to the County.

He stressed an important limit on the majority's rule. A sheriff or prosecutor does not make municipal policy merely by deliberately violating controlling law; such an unlawful departure would ordinarily be an employee's mistake rather than a policy choice. Here, however, the officials selected a course that no then-applicable law prohibited, even though Steagald later established that the entry violated the Fourth Amendment.

Justice Stevens agreed with the result and joined the portions of the opinion explaining that the entry was unconstitutional and that the County was liable. In his view, the case was straightforward because officers forcibly entered a third party's premises without a search warrant, consent, or exigent circumstances, conduct that Steagald made unconstitutional and that established Fourth Amendment principles had already foreshadowed.

He disagreed with Monell's no-respondeat-superior premise and therefore did not join Part II-B. In his view, the 1871 Congress that enacted § 1983 intended governmental entities to answer for constitutional injuries caused by their agents acting in the course of their duties. That reading also better serves deterrence and compensation, because the County has both the resources to compensate victims and the institutional authority to prevent future violations.

Justice O'Connor agreed with Justice White's narrower explanation. Because forcible entry to execute arrest process was standard operating procedure at the time and was consistent with federal, state, and local law, it was reasonable to infer that the County's policy permitted the entry. The County officials who approved it also had authority under state law to make that choice.

She declined to join the majority's broader final-policymaker analysis in Part II-B. She feared that its formulation might be read to impose municipal liability more broadly than Monell permits, but concluded that the particular facts here sufficiently demonstrated county policy.

Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, first argued that Pembaur had no actionable constitutional violation because Steagald should not apply retroactively in this civil damages suit. In 1977, Sixth Circuit precedent permitted entry into a third party's premises under an arrest warrant when officers had reason to believe the suspect was inside. Applying Steagald retroactively would unfairly impose damages on local officials for conduct that governing law had permitted and would deter legitimate law enforcement activity.

Even if Steagald applied, Justice Powell argued that the prosecutor's brief telephone instruction did not create official county policy. The deputies encountered a novel situation, the Sheriff had no written policy governing it, and the prosecutor gave an ad hoc response rather than adopting a policy intended to guide comparable cases.

In his view, the majority treated policy as whatever an official with policymaking authority happens to decide, effectively reviving respondeat superior for a class of senior officials. Whether a government has made policy should instead turn on the nature of the decision and the process used to make it. A generally applicable rule, or a formal and deliberative process such as recorded action by a legislative body, can demonstrate official policy; an offhand instruction to resolve one immediate situation cannot.