MUNICIPAL IMMUNITY

Although precise practice varied among the states, two distinctions shaped municipalities' common law liability. First, cities were immune from harms resulting from the exercise of governmental functions, such as fire protection, but they were not immune for harms attending proprietary functions, such as running a business. This sovereignlike immunity drew upon cities' legal connection to sovereign states, but it was independent of the eleventh amendment immunity which states enjoy from suit in federal court. Since Lincoln County v. Luning (1890), cities and counties have not been viewed as part of the state for Eleventh Amendment purposes. Second, courts distinguished between discretionary functions, for which cities were immune, and ministerial activities, for which cities were not immune. As long as municipal liability was largely a branch of common law liability, courts articulated no significant distinctions between the treatment of federal claims against cities and claims brought under state law.

monroe v. pape (1961), which reinvigorated section 1983, title 42, united states code, and transformed the liability of state and local officials for violations of federal law into a question of federal statutory interpretation, laid the groundwork for greater municipal liability for violations of federal rights. But Monroe also retarded this development by interpreting section 1983 not to authorize suits against municipalities for violations of federal law. Indeed, the Court suggested that Congress doubted its constitutional authority to do so.

Between 1961 and 1978 litigants employed, with mixed success, various techniques to exploit Monroe 's federalization of official liability law, while at the same time avoiding Monroe 's holding that section 1983 did not authorize suits against cities. While these techniques were still developing, monell v. department of social services (1978) drastically changed the law of municipal liability. Monellreinterpreted the legislative history relied on in Monroe, concluded that Congress had meant to subject cities to suit for violations of federal law, and overruled Monroe 's limitation on suits against cities. But Monell also held that Congress had not intended cities to be liable merely because they had employed an individual wrongdoer. Under Monell, cities are liable for violation of federal law only if the violation is "by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy."

The question whether an alleged violation of federal law may be characterized as official policy became even more critical when, in owen v. city of independence (1980), the Court held that cities may not rely on the good faith defense available to individual officials as part of the law of executive immunity. Owen also severed the final links between municipalities' common law immunities and their modern amenability to suit under federal law. The Court rejected reliance by cities on sovereign-based immunities; a higher sovereign, the United States, had in section 1983 commanded municipal liability. The immunity for discretionary acts fell because "a municipality has no 'discretion' to violate the Federal Constitution." Cities achieved a modest victory when, in City of Newport v. Fact Concerts, Inc. (1981), the Court reaffirmed their traditional immunity from punitive damages claims.

Theodore Eisenberg
(1986)

Bibliography

Schnapper, Eric 1979 Civil Rights Litigation After Monell. Columbia Law Review 79:213–266.