Pembaur v. City of Cincinnati

Incident Summary & Facts

Dr. Bertold Pembaur ran a medical clinic in Cincinnati and was under grand jury investigation by the Hamilton County Prosecutor for welfare fraud. Two of his employees failed to appear in response to grand jury subpoenas, and the Prosecutor obtained capiases (writs of attachment) for their arrest. On May 19, 1977, two Hamilton County Deputy Sheriffs tried to serve the capiases at the clinic. Pembaur and his receptionist shut and locked the door to the inner clinic, wedged it with a piece of wood, and refused entry, saying the officers had no legal authority to be there. Cincinnati police officers and then a superior officer arrived, told Pembaur the papers were lawful, and could not persuade him to open the door.

The deputies called their supervisor, who told them to call Assistant Prosecutor Whalen and follow his instructions. Whalen conferred with County Prosecutor Leis, who instructed the deputies to “go in and get [the witnesses].” After the deputies failed to force the door, city police officers chopped it down with an axe. The deputies searched the clinic and detained two people who turned out not to be the witnesses they were looking for. The respondent conceded that the entry violated the Fourth Amendment under Steagald v. United States, which bars entering a third party’s premises without a search warrant to execute an arrest warrant, absent consent or exigent circumstances.

Pembaur sued under 42 U.S.C. § 1983. The district court dismissed the claims against the county for lack of an “official policy.” The Sixth Circuit affirmed as to the county, holding that a “single, discrete decision” was not enough to establish county policy. The case did not involve a use-of-force encounter against a person. The force at issue was the forcible entry through a door.

Core Legal Issue

Can a single decision by a municipal official with final policymaking authority constitute “official policy” for purposes of municipal liability under § 1983 and Monell?

The Holding

Yes. Municipal liability “may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Here the County Prosecutor, acting as the county’s final decisionmaker, ordered the unconstitutional entry. The Court reversed and remanded.

The Court’s Analysis:

• Purpose of the policy requirement. Monell is “a case about responsibility.” The official-policy requirement separates acts of the municipality from acts of its employees, which rules out respondeat superior liability. When those who set policy direct an action, “the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly.”
• Single decisions count. Just as a single city-council resolution can be policy (Owen; Newport), so can a course of action “tailored to a particular situation” and chosen by authorized decisionmakers.
• Final policymaking authority (Part II-B, a plurality, not a majority). Liability attaches “where — and only where — a deliberate choice to follow a course of action is made from among various alternatives” by the official responsible for final policy on that subject. Mere discretion is not enough. Who holds final authority is a question of state law.
• Application. Under Ohio law, as the Sixth Circuit read it, both the Sheriff and the Prosecutor could set county law-enforcement policy, and county officers may require instructions from the Prosecutor. The Court refused to label the Prosecutor’s “clear command” mere “legal advice.”
• Concurrences and dissent. Justice White stressed that forcible entry was not then illegal and that the officials chose a course they had authority to choose. Justice O’Connor joined that view. Justice Powell, joined by Chief Justice Burger and Justice Rehnquist, dissented: Steagald should not apply retroactively, and an “off-the-cuff” five-word telephone answer (“go in and get them”) was not official policy.