In the 1978 case of
Monell v. Department of Social Services, the Court
had held that municipalities could be sued under § 1983
only for actions taken “pursuant to official
municipal policy of some nature.” However,
the Court recognized that the phrase "official policy" provided a rough
sketch rather than a detailed map of the boundaries of municipal liability and
left important line-drawing questions unresolved.
Pembaur v. City of Cincinnati
dealt with some of the most important of these questions.
Clearly, a city or county could make official policy by formally adopting a rule
to be followed consistently in the future, but Pembaur
held that it could also do so by consciously choosing a course of action
intended to deal with a particular situation—even
if the decision was not intended to bind municipal officials in future situations.
Similarly, there was no
doubt that municipal policy could be made county’s legislative body, but
Pembaur held that policy could also be made by
other city officials so long as the authority to do so was granted by
legislative action or was lawfully delegated to the official. As a
recognized that a modern city’s policy making authority can be dispersed
among various officers and official bodies.
At the same time,
Pembaur distinguished between authority to make
municipal policy and authority to exercise discretion in applying that
policy to particular situations. Only the former would make
the city liable.
effort to define the scope of municipal liability would not be the
Court’s final word on the subject, but it laid an important foundation
on which the Court would build.
The dispute between Dr. Bertold Pembaur
law enforcement officials had a bizarre and convoluted
history which can be found
simplified version of the facts will help understand the documents in this website.
May 19, 1977, Hamilton County deputy sheriffs forcibly
entered the non-public areas of Dr. Bertold
Pembaur’s medical office in an effort to arrest
witnesses who had failed to appear before a grand jury. The
deputies were acting pursuant to a writ of attachment but did not have a
warrant. While the law was not clear at the time, such an entry
was subsequently held to be unconstitutional. Prior to forcing
entry, the deputies sought advice from the county’s prosecuting attorney
who advised them to "go in and get [the witnesses]."
a number of city and county officials
as well as the City of Cincinnati and Hamilton County for damages under
42 U.S. C. § 1983.
However, the Supreme Court case, dealt only with his claim against
Hamilton County. The Court of Appeals had held that the County could
not be held liable because the advice of the Prosecutor was "a single
discrete decision" and therefore could not be deemed to constitute
official policy under Monell. As
discussed above, the Supreme Court rejected the Court of Appeals ruling
that a municipality could be held liable when an official with final
policy making authority consciously chose a course of action in a
particular situation even if that choice was not intended to bind future
decisions by county officials.
More than a decade after the events
at Dr. Pembaur’s office, the County was ordered to pay damages in the
amount of five thousand dollars.