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David Achtenberg

Professor & Law Foundation Scholar

UMKC School of Law

Kansas City, MO 64110-2499


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Pembaur v. City of Cincinnati

475 U.S. 469 (1986)
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Pembaur’s Legal Significance

Pembaur’s Background Story

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 corollary, Pembaur 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.

Pembaur’s 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 and local law enforcement officials had a bizarre and convoluted history which can be found by clicking here.   However, a simplified version of the facts will help understand the documents in this website. 

On 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]."

Dr. Pembaur sued  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.