Pembaur’s Legal Significance

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.