PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ HOLLIS ANN WHITSON, as guardian ad litem for Peatinna Biggs, Plaintiff - Appellant,

v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SEDGWICK; SH ERIFF CARLTON BRITTON, in his official capacity; THOMAS HANNA, in his individual and official capacities; LARRY NEUGEBAUER, in his individual and official capacities, Defendants - Appellees,

---------------------------- ------------ RIGHTS BEHIND BARS; NATIONAL POLICE ACCOUNTABILITY CENTER; THE SOUTHERN CENTER FOR HUMAN RIGHTS; MACARTHUR JUSTICE CENTER, Amici Curiae. No. 23-1084

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CV-02076-DDD-SKC)

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### July 5, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 1Page 2 Sean Ouellette, Public Justice, Washingt on, D.C. (Ellen Nobl e and Alexandra Z. Brodsky, Public Justice, Washington, D.C., and David Fisher and Jane Fisher-Byrialsen, Fisher & Byrialsen, PLLC, Denver, Colorado , with him on the brie fs), for Appellants. Jonathan N. Eddy (Eric M. Ziporin, with him on the brief), SGR, LLC, Denver, Colorado for Appellees. Jessica Ring Amunson and Mary Marshall, Je nner & Block LLP, Wash ington, D.C.; filed a brief on behalf of Appellants, for Amic i Curiae Rights Behind Bars, The National Police Accountability Project, The Southe rn Center for Human Rights, and The Macarthur Justice Center.

________________ _________________ Before HARTZ , PHILLIPS , and CARSON , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________ Sheriff Thomas Hanna of Sedgwick Count y, Colorado, sexually assaulted an intellectually disabled prisoner while tr ansporting her between county jails. The victim, Peatinna Biggs, filed this civi l-rights suit under 42 U.S.C. § 1983 by and through her guardian ad litem, Plainti ff Hollis Ann Whitson, against Sedgwick County, the Sedgwick County Sheriff’s De partment, and Sheriff Hanna in his individual and official capacit ies. The district court gran ted the motion of the County and the Sheriff’s Department (the municipal defendants) to dismiss the complaint against them, reasoning that the County could be liabl e only if “the challenged conduct [had] been taken pursuant to a polic y adopted by the offici al or officials,” and “Hanna’s actions were not pursuant to Department policies, but in direct contravention of them.” Whitson v. Bd. of Cnty. Comm’rs ( Whitson I), No. 18-CV02076, 2020 WL 13660757, at *5 (D. Colo. Apr. 17, 2020) (internal quotation marks Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 2Page 3 omitted). Hanna was then found liable by a jury in his individual capacity. Whitson appeals the dismissal of th e claims against the munici pal defendants, which are legally equivalent to claims agains t Hanna in his official capacity. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse. Sheriff Hanna’s actions fell within the scope of his polic ymaking authority regarding the custody and care of prisoners and s ubjected the municipal defendants to liability.
I. BACKGROUND
A. Factual Background Because the district court dismisse d the claims against the municipal defendants on the ground that the complaint failed to stat e a claim against them, we assume the truth of the factual allegations of the complaint. See Gann v. Cline , 519 F.3d 1090, 1092 (10th Cir. 2008). On August 10, 2016, Ms. Biggs was incarcerated in the Sedgwick County Jail. She is an adult with an intellectual disability. The jail was run by Sheriff Hanna, the highest ra nking law-enforcement officer in Sedgwick County. Hanna told his Deputy Sheriff Larry Neugebauer that he was going to transfer Ms. Biggs to the Logan Co unty Jail using his personal vehicle. 1 Hanna gave Ms. Biggs her street clot hes and ordered her to ch ange into them. “Deputy Neugebauer knew it was highly unus ual to have an inmate ch ange . . . into street

1 At Hanna’s trial there was evidence that Sedgwick County had previously followed the “Matron Program,” which requi red a female to accompany all female detainees during jail transports by male officers, but Hanna discontinued the program. See Whitson v. Hanna ( Whitson II ), No. 118-CV-02076, 2023 WL 2570224, at *5 (D. Colo. Mar. 6, 2023). Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 3Page 4 clothes before being transferred.” Joint App. at 25. At about 12:15 p.m. he saw Sheriff Hanna load Ms. Biggs, who was handc uffed, into the front passenger seat of his vehicle. Instead of transporting he r to the Logan County Ja il, Sheriff Hanna brought Ms. Biggs into his home. With a gun in his hol ster, he offered to pay her $60 to have sex with him. She refused. He then sexually assaulted her. His gun remained visible on a coffee table throughout the assault. After the assault Ha nna “threatened Ms. Biggs that if she told anyone about what he had done she would spend the rest of her life in prison.” Id . at 27. At about 12:51 p.m. he told the dispatcher that he was taking Ms. Biggs to the Logan County Jail. After driving her th ere he deposited $20 into her commissary account. While the assault was occurring, De puty Neugebauer drove past Hanna’s house on his way to and from his lunch break and saw Hanna’s empty vehicle parked outside his home on both occasions. He repor ted the incident to the Logan County District Attorney’s Office on August 22. Because of the threat by the sheriff, Ms. Biggs had not reported the inci dent. The District Attorney opened an investigation, and two days later Hanna was criminally charged with sexual assault on an at-risk adult, sexual conduct in a correctional ins titute, soliciting pros titution, and firstdegree official misconduct. Hanna was later removed from office. Neither the County of Sedgwick nor the Sedgwick County Sheriff’s Department had any policy in place to ove rsee and monitor the actions of Sheriff Hanna. “This lack of oversight allowed former Sheriff Hanna’s actions to go Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 4Page 5 unchecked and unmonitored throughout his term as the highest ranking law enforcement officer.” Joint App. at 33. B. Procedural Background Plaintiff Whitson filed suit in the United St ates District Court for the District of Colorado against multiple defendants, including the municipal defendants and Sheriff Hanna in his indivi dual and offi cial capacities. 2 After the district court granted the municipal defenda nts’ motions to dismiss, the claims against Hanna proceeded to trial. The jury rendered an $8.25 million verdict against him in compensatory and punitive damages. The original judgment was entered against Hanna in his individual and official capacities. Plaintiff Whitson mo ved to alter or amend the final judgment to explicitly bind the municipal defendants, pointing out that the judgment ag ainst Sheriff Hanna in his official capacity is a judgmen t against the municipal defendants. See Porro v.
Barnes , 624 F.3d 1322, 1328 (10th Cir. 2010) (“Suing individual defendants in their official capacities under § 19 83 . . . is essentially anothe r way of pleading an action against the county or munici pality they represent.”). The municipal defendants, in

2 The district court ruled that Sedgwick County is not a proper defendant in the case because “[p]ursuant to the Colorado C onstitution, the County is a separate and distinct entity from the Sh eriff’s Department [and] . . . does not have the legal authority to control or supervise th e Sheriff and the Sheriff’s deputies.” Whitson I, 2020 WL 13660757, at *5. This decision should be reconsidered on remand. See Chavez v. Bd. of Cnty. Comm’rs. , 426 F. Supp. 3d 802, 813 (D. Colo. 2019) (“[W]hen a Monell claim is based on a sheriff-made polic y, any distinction between suing the sheriff’s office versus su ing the county becomes purel y theoretical, because the county will pay regardless.”). Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 5Page 6 turn, moved to clarify the judgment to say that the official-cap acity claims did not survive the motions to dismiss. The distri ct court granted the municipal defendants’ motion, concluding that Hanna ’s conduct could not be imputed to the municipality because “the assault was wholly unrelated to the realm of his grant of authority with respect to transportation of prisoners” and he was “advancing a purely personal agenda.” Whitson v. Hanna ( Whitson II ), No. 118-CV-02076, 2023 WL 2570224, at *4 (D. Colo. Mar. 6, 2023) (i nternal quotation marks omitted).
II. DISCUSSION
A. Liability of municipal defendants The central question before us is whet her a final policymak er’s assault of a county prisoner in the course of carrying out official dutie s for which he was charged with setting policy subjects the municipal defendants to liability. We answer yes. A municipal government is not liable fo r every constitutiona l violation by one of its officers or employees. Although a municipality is a “person” subject to suit under § 1983 for constitutional violati ons, it “cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 691 (1978). Rather, a municipality is responsible only for (1) actions taken by subordinate employees in conformity with preexisting official policies or customs and (2) actions taken by final policymakers, whose conduct “can be no less described as the official policy of a municipality.” Seifert v. Unified Gov’t of Wyandotte Cnty./Kansas City , 779 F.3d 1141, 1159 (10th Cir. 2015) (internal quotation marks Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 6Page 7 omitted); see Simmons v. Uintah Hea lth Care Special Dist. , 506 F.3d 1281, 1283 (10th Cir. 2007) (Gorsuch, J.) (While municipaliti es are liable for official policy decisions, “this is hardly the only basis available for assigning municipal liability.” Municipalities are “equally answerable for actions undertaken by their final policymakers, whether or not those actions conform to their own preexisting rules.”); id. at 1287 (“Actions taken by a municipa lity’s final policymakers, even in contravention of their own writte n policies, are fairly attri butable to the municipality and can give rise to liability.”). The motive of the policymaker is irrelevant. The important thing is that the policymaker is responsible for an unconstitu tional act. As the Supreme Court has said: [P]roof that a municipa lity’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the acti on taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the m unicipal action was the moving force behind the injury of which the plaintiff complains. Bd. of Cnty. Comm’rs v. Brown , 520 U.S. 397, 405 (1997) (emphasis added); see Pembaur v. City of Cincinnati , 475 U.S. 469, 483 (1986) (p lurality opinion of Justice Brennan) (municipal liability may attach to “a single decision to take unlawful action made by municipal policymakers.”). The deci sion on which liability is based need not “reflect[] implementation of a generally applicable rule,” Brown , 520 U.S. at 406, which is how we usually think of a policy decision. As we stated in Simmons , “An act by a municipality’s final policymaking authority is no less an act of the institution than the act of a subordinate employ ee conforming to a preexisting policy or Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 7Page 8 custom,” 506 F.3d at 1285, and therefore “[a]ctions taken by a municipality’s final policymakers . . . are fairly attr ibutable to the municipality,” id. at 1287. One must keep in mind, however, that “‘municipal liability attaches only where the decisi onmaker possesses final authority to establish municipal policy with respect to the action ordered .’” Beedle v. Wilson , 422 F.3d 1059, 1068 (10th Cir. 2005) (brackets omitted a nd emphasis added) (quoting Pembaur , 475 U.S. at 481 (plurality opinion of Brennan, J.)). Only then can we say that the final policymaker’s actions “are fairly attribut able to the municipality.” Simmons , 506 F.3d at 1287. A municipality is an artificial person. But in certain respect s it can be identified with the final policymakers who have authority to control its actions. As we understand controlling precedent, when an official ta kes action over which he or she has final policymaking authority, the policymaker is the municipality, so it is fair to impose liability on that entity for that action.
In Simmons the administrator of a c ounty nursing home brought a § 1983 action alleging unlawful termination by the board of the county’s health-care specialservices district that operated the nursing home. See id. at 1283. The trial court held that the health-care district could not be held liable because the alleged constitutional violation by the board in terminating the administrator violated the board’s own reduction-in-force (RIF) policy. We rejected that defense, conducting a two-step inquiry: “It is undisputed before us that the Board was the final policymaker on personnel matters for the Dist rict. It is also undis puted that Ms. Simmons’s employment was terminated pursuant to the Board’s own actions.” Id. at 1286. Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 8Page 9 Because the Board possessed final authority over the unlawful action, the decision was “no less chargeable as an official act of the District than one taken pursuant to the District’s written RIF policy.” Id. Otherwise, municipal ities would be immune from liability whenever thei r policymakers abused the au thority conferred on them. “Such a rule of law would . . . serve to unde rmine rather than e nhance Section 1983’s purposes.” Id. at 1285. So too here. Sheriff Hanna was the final policymaker for the municipal defendants with respect to th e care of county prisoners, in cluding their transportation. By Colorado statute the sherif f “shall have charge and custody of the jails of the county, and of the prisoners in the jails, and shall supervise them himself or herself or through a deputy or jailer.” Co lo. Rev. Stat. Ann. § 30-10-511; see Whitson II , 2023 WL 2570224, at *4 (“[I]t is undisputed that transporta tion of prisoners is within the realm of the county sheriff’s policymak ing authority.”). Hanna’s actions with respect to prisoner Biggs were undoubtedly within the scope of activities for which he was to set policy. Our conclusion in this case finds str ong support in the decisions by other circuits. Those decisions have repeatedly held that a policymaker need not be motivated by legitimate policy goals for co nduct to fall within final policymaking authority. We discuss se veral such decisions.
In Bennett v. Pippin , 74 F.3d 578 (5th Cir. 1996) , a county sheriff raped an attempted-murder suspect after an interrogation at her home. See id. at 583–84

. Although the court of appeals reversed th e judgment against the county because it Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 9Page 10 had been denied its right to a jury trial, it rej ected the county’s argument that it could not be liable for the rape “because the Sher iff’s actions did not constitute a policy of the County . . . because they violated well-established County policy.” Id. at 585–86. The court explained that “a single de cision may create municipal liability if that decision were made by a final policym aker responsible for that activity.” Id. at 586 (internal quotation marks omitted). “When a final policy maker makes the relevant decision, and when that decision is within the sphere of the policy maker’s final authority, the existence of a well-established , officially-adopted policy will not insulate the municipa lity from liability.” Id. (internal quotation marks omitted). The sheriff’s “actions were those of the Co unty” because “the county sheriff is the county’s final policymaker in the area of la w enforcement” and “his relationship with [the victim] grew out of the attempted mu rder investigation and . . . he used his authority over the investigati on to coerce sex with her.” Id. (internal quotation marks omitted). The court concluded that “[t]he fact that rape is not a legitimate law enforcement goal does not prevent the Sher iff’s act from falli ng within his law enforcement function.” Id. We do not see how that decisi on could be consistent with the position of the municipal defendants in this case. For similar reasons the court of appeals in Turner v. Upton Cnty., Tex. , 915 F.2d 133 (5th Cir. 1990), rejected the county’s argument that it could not be liable for a county sheriff’s decision to conspire to subject the plaintiff “to trial on false charges bolstered by fabricated evidence and perjured test imony,” and to attempt “to coerce her to change her plea from not guilty to guilty.” Id. at 135. “Where a final Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 10Page 11 policymaker abuses the powers vested in hi s position to the detr iment of a citizen,” said the court, “that abuse can be the basi s for suit being brought [against the county] under section 1983.” Id . at 137 n.3. The Sixth Circuit has also recognized that a municipality may be liable for a single act of misconduct by a policymaker that was not au thorized by some general policy. In Meyers v. City of Cincinnati , 14 F.3d 1115, 1117 (6th Cir. 1994), a city employee was fired in violation of his ri ght to free speech for making statements criticizing affirmative action. Observing th at “[n]o municipal official in his right mind would advocate . . . a general polic y [of disciplining City employees for exercising their rights of free speech],” the court sa id that the city would be liable even for an “isolated inci dent” so long as the decision to punish the employee for exercising his constitutional rights “was made by the government’s authorized decisionmakers.” Id. at 1117–18 (internal quotation marks omitted). And in Moldowan v. City of Warren , 578 F.3d 351 (6th Cir. 2009), the circuit court held that the city “may be held liable under § 1983 for the failure to disclose exculpatory evidence and the destruction of evidence from [the plaintif f’s] first trial, even though those actions were not taken pursuant to an overarching policy,” so long as the decisionmaker was “responsible for estab lishing final government policy respecting [the] activity.” Id. at 394 (internal quot ation marks omitted). Similar misconduct by the ultimate polic ymaker led the Eighth Circuit to affirm municipal liability in Dean v. Searcey , 893 F.3d 504 (8th Cir. 2018). In that case the Sheriff “gave oxygen” to a “reckl ess investigation” by knowingly approving Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 11Page 12 improper investigatory tactics including wrongful arrests and interrogations. Id. at 512–13. And recently, in Felts v. Green , 91 F.4th 938 (8th Cir. 2024), the court upheld the liability of the C ity of St. Louis based on the decision of the president of the Board of Aldermen to block from his official Twitter accoun t a citizen who had criticized him. It explained that “[m]uni cipal liability may be imposed for a single decision by municipal policymakers who po ssess final authority to establish municipal policy with respect to the action ordered.” Id. at 942 (internal quotation marks omitted). The president’ s “unilateral” and “unrevie wable” decision to block a user who personally criticized him was therefore imputed to the municipality. Id. at 944. But cf. Dahl v. Rice Cnty., Minn. , 621 F.3d 740, 743 (8th Cir. 2010) (County was not liable for an incident in which th e sheriff lost his temper with a deputy and struck him in the chest. “Although a policy can be infe rred from a single decision, no such deliberative action occurre d. There is no evidence that this single incident of [the sheriff] losing his temper represents a policy of [the sher iff for the county].” (internal quotation marks omitted)). Two more appellate decisions complete our survey. In Botello v. Gammick , 413 F.3d 971 (9th Cir. 2005), th e Ninth Circuit held that the county could be liable for the efforts of the district attorney to retaliate agains t the exercise of free-speech rights by a former investigator. The district attorney allegedly tried to sabotage the plaintiff’s future job prospects by calli ng a future employer “to dissuade it from hiring [the plaintiff] ” by making “false allegations a bout [the plaintiff’s] character and performance at his previous job.” Id. at 974. The court held that the district Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 12Page 13 attorney’s “administrative acts” were ta ken in the prosecuto r’s capacity “as a policymaker for the County.” Id. at 979. And the Eleventh Circuit in Mandel v. Doe , 888 F.2d 783 (11th Cir. 1989), affirmed that the county delegated to a physician’s assistant “final policymaking authority with respect to me dical affairs at [a] road prison,” id. at 793, so that the county was li able when the physician’s assistant provided “grossly deficient [medical] treat ment” resulting in permanent physical impairment to the plaintiff, id. at 787; see id. at 794. The circuit-court decisions relied upon by the district court and municipal defendants are readily distinguishable from the case before us because the public official was not specifically charged with regulating (and setting policy for) the activity on which the claim was based. Thus, in Lankford v. City of Hobart , 73 F.3d 283 (10th Cir. 1996), where the municipality was held not liable for the poli ce chief’s “private, ra ther than public, acts of sexual harassment” against two dispatchers, id . at 287, the chief “had no authority to make any policy on behalf of the City including terms or conditions of employment,” id. at 285 (internal quotation mark s omitted). The lack of final policymaking authority easily doomed any cl aim that the municipality was liable.
In Starrett v. Wadley , 876 F.2d 808 (10th Cir. 1989) , the county assessor made repeated sexual advances toward a female deputy assessor, often while intoxicated. See id. at 812. He became “hostile” toward her and “scrutinize[ed] her work more closely than the work of other employees ” when she rebuffed his advances, and he eventually terminated her. Id. She sued the county asse ssor and the county under 42 Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 13Page 14 U.S.C. § 1983 for retaliatory firing and sexual harassment. 3 See id. at 811. This court imputed liability to the county for her term ination but not for the sexual harassment. It explained that the county assessor’s “act of firing plain tiff was an act of the County because [he] had final authority to set em ployment policy as to the hiring and firing of his staff.” Id. at 818. But the assessor’s sexua l misconduct was disconnected from his official authority. “Those acts did not c oncern any official terms of employment, such as job title or descrip tion, salary levels, or other conditions that Wadley could establish only because the County delegate d final policy authority over those matters to him.” Id. at 820. We said that “the County should not be lia ble for [the assessor’s acts of harassment] unless they were so wi despread and pervasiv e as to establish a ‘custom’ within his office.” Id. (Indeed, the jury had been instructed that the County would be liable for the assesso r’s acts of sexual harassment only if they “were part of a pattern of action sufficient to estab lish custom or policy” of the County. Id. at 819 n.16.). Roe v. City of Waterbury , 542 F.3d 31 (2d Cir. 2008), is the principal case relied on by both the district court and the municipal defendants for the proposition that a municipality is not liable for uncon stitutional action by the policymaker when the policymaker (in that case, a mayor) is pursuing purely personal ends. The facts in that case, however, are, to say the least, unusual. Before he was elected mayor of the City of Waterbury, Philip Giordano me t a woman who “provi ded Giordano with

3 The plaintiff also sued un der Title VII, but the analys is of that claim is not relevant to this case. Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 14Page 15 sexual favors in exchange for money.” Id. at 34. After being elected mayor he continued to see the woman and eventually asked that she “introduce younger women to him.” Id. She brought two pre-teens to him and, for nearly a year, Giordano sexually abused them “on numerous occasions at the mayor’s offi ce, at his home, and in his city-issued police cruiser.” Id. at 33. To arrange the sexual encounters, he used cell phones paid for and issued by the City. See id. at 34. The children sued Giordano and the City of Waterbury. While Giordano was held liable in his personal capacity, the Second Circuit affirmed the dism issal of claims against the City. See id. at 41. The “critical inquiry” was “whether the government official [was] a final policymaker with respect to the particular conduct ch allenged in the lawsuit.” Id. at 37. The plaintiffs argued that the mayor was th e “final policymaker of the City in the areas of law enforcement, sa fety, and social issues; a nd as a result he had final policymaking authority over the area of conduct that included his abusive acts.” Id. The court was not persuaded, explaining that “decisions to sexually abuse young children . . . are not in any way re lated to the City’s interests.” Id. at 38. Although the mayor had “generally br oad” policymaking author ity, “a finding of general policymaking power on the part of the Mayor was not sufficient for municipal liability to attach” because he had no “policymaking author ity with respec t to the acts of sexual abuse he committed.” Id . “An official acts who lly outside his official policymaking capacity,” said the court, “when he misuses his power to advance a purely personal agenda.” Id. at 41. Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 15Page 16 We have no quarrel with the outcome in Roe . The mayor’s interactions with the two children had nothing to do with his official duties. The only connections between his being mayor and his sexual assaults were that he arranged to be with the children by making calls on his mayoral cell phone and some of the assaults were in his office and his official car. It would be quite a stretch to say that the mayor “possesse[d] final authority to establish municipal policy with respect to ” his actions with the children. Beedle , 422 F.3d at 1068 (internal quot ation marks omitted). On the other hand, we see no support for th e proposition that conduct by a policymaking official that would otherwise lead to municipal liability cannot be attributed to the municipality when the official acts for purely personal reasons . The Supreme Court has spoken forcefully on the issue, saying, “proof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality ac ted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.” Brown , 520 U.S. at 405 (emphasis added). A rule under which a municipality could escape liability whenever a polic ymaker motivated by purely personal considerations violates constitutional mandates would “ser ve to undermine rather than enhance Section 1983’s purposes.” Simmons , 506 F.3d at 1285. The factual context presented by this case is quite different from the contexts of the cases offered to dispute muni cipal liability. Here the victim was in the custody Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 16Page 17 of the official and the offici al was statutorily charged w ith supervising the victim’s

care. See Colo. Rev. Stat. Ann. § 30-10-511 (t he sheriff “shall have charge and custody of the jails of the county, and of the prisoners in the jails, and shall supervise them himself or herself or th rough a deputy or jailer.”). In this circum stance, we see no escape from the conclusion that Sheri ff Hanna possessed “final authority to establish municipal policy with respect to the action ordered .” Beedle , 422 F.3d at 1068 (emphasis added and inte rnal quotation marks omitted). Indeed, he had not only the authority, but the responsib ility, to set policy with re spect to the treatment of prisoners in his custody. A few words about the dissent. It sugge sts that it is bad policy to expose a municipality to what could be enormous liability for ac tions by policymakers who are motivated solely to achieve personal gratif ication without any intent to serve the municipality’s interest. It therefore re jects the appellate decision holding a municipality liable for sexual assaults by a sh eriff. And it appears to distinguish the other out-of-circuit decisions cited above in support of our approach on the ground that the misconduct may not have been mo tivated just by the desire for selfgratification (perhaps because conduct motiv ated solely by personal reasons is not considered within the scope of employme nt). But the misconduct in those cases may well have been motivated by purely personal concerns—for example, did the sheriff fabricate evidence because of a personal ve ndetta against the defendant or did the alderman infringe the free-speech rights of a constituent only to protect his personal reputation—and, more importantly, the opi nions in those cases did not address Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 17Page 18 motive, presumably because the motive was irrelevant . If liability depends on whether there is a possible “p roper” motivation for the o fficial’s action, the likely unseemly consequence is that the only vi ctims who cannot obtain relief from a municipality for a policymaker’s misconduct are victims of sexual assault, for which there could never be a legitimate motiv e. Would that be such good policy? In any event, the theory of municipal liability we are imposing is hardly a stranger to the law and is fully consistent with Monell

. Monell rejected respondeat superior liability for munici palities. In other words, a municipality would not be liable simply because of misconduct by empl oyees acting within the scope of their employment. Rather, the conduct must be “f airly attributable to the municipality.”
Simmons , 506 F.3d at 1287. We said above that “when an official takes action over which he or she has final policym aking authority, the policymaker is the municipality, so it is fair to impose li ability on that entity for that action.” Supra at 8. In other words, when the polic ymaker is the alter ego of the municipality, liability is appropriate, regardless of the miscreant’s motives or whether the conduct was within the scope of employment. The Supreme Cour t has recognized this narrow basis of liability outside of respondeat superior. Ou tlining relevant agency law in the course of determining when an employer can be liable under Title VII for a hostile work environment, the Court noted that an empl oyer can be liable “even where employees commit torts outside the scope of employm ent,” when the employee’s “high rank in the company makes him or her the employer’s alter ego.” Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 758 (1998). Surely, a municipality can be liable for the torts Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 18Page 19 of its alter ego. And surely, the Sheriff of Sedgwick County is the alter ego of the Sheriff’s Department. This does not mean that a municipality is liable for all misconduct by a sheriff. If Hanna had raped a customer at a bar afte r work, there would likely be no municipal liability. As explained above, the sheriff mu st have final policymaking authority with respect to the actions taken. See Beedle , 422 F.3d at 1068. Given that Hanna raped a prisoner in his custody while transporti ng the prisoner to another jail, that requirement was undoubtedly satisfied. 4
B. Further proceedings There remains the question whether th e municipal defendants are bound by the existing judgment against Hanna under la w-of-the-case doctrine or preclusion principles. We leave to the di strict court to determine in the first inst ance whether— and, if so, to what extent—the muni cipal defendants are bound by the existing judgment. We do, however, make two observa tions that may be of some use. First, the judgment against Hanna includes both compensatory and punitive damages, but punitive damages are not recoverable against the municipal defendants. See City of Newport v. Fact Concerts , 453 U.S. 247, 270–71 (1981). Second, there is some support for the proposition that preclusi on principles may apply in certain circumstances in the c ontext of a sheriff-muni cipality relationship. See Russell v.

4 The recent decision in Doe v. Burleson County , 86 F.4th 172 (5th Cir. 2023), cited by the dissent, is read ily distinguishable on this ground. The judge “did not possess final policymaking authority in any area relevant to” the alleged sexual assault. Id. at 176. Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 19Page 20 SunAmerica Sec., Inc. , 962 F.2d 1169, 1175 (5th Cir. 1992) (observing that “most other federal circuits have concluded that employer-employee or principal-agent relations may constitute grounds for application of res judicata.”).
III. CONCLUSION
We REVERSE and REMAND for proceedings in the district court consistent with this opinion. Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 2023-1084, Whitson v. Hanna PHILLIPS , J. dissenting.
I would affirm the district court’s dismi ssal of the claims against Sedgwick County because Sheriff Hanna did not act as a final po licymaker in his decision to sexually abuse Ms. Biggs. I agree with the district court’s conclusion that Sheriff Hanna advanced a purely personal agenda in committing the sexual assault and acted outside his authorized law-enforcement “realm” of setting polic y for the transportation of prisoners. Whitson v.
Hanna ( Whitson II ), No. 1:18-CV-02076, 2023 WL 25 70224 at *4 (D. Colo. Mar. 6, 2023) (quoting Randle v. City of Aurora , 69 F.3d 441, 448 (10t h Cir. 1995)). As the district court put it so well, sexual assault “is not within the po licymaking authority a county sheriff has.” Id. I disagree with the majority’s characteri zation that Sheriff Hanna’s sexual assault occurred “while transporting [Ms. Biggs] betw een county jails” and “in the course of carrying out official duties for which he was charged with setting policy[.]” See Majority Op. at 2, 6, 19. In fact, Sheriff Hanna inte rrupted the transport be tween the county jails by stopping at his house and taking Ms. Biggs in to his home to sexually assault her. The jail transport resumed only after he completed the sexual assault. I agree that Sheriff Hanna had policymaki ng authority over the jail transportation of detainees like Ms. Biggs, a nd that legitimately exercising th is authority could result in municipal liability under § 1983 . For instance, if the sheri ff had instructed deputies to tighten handcuffs one extra click during trans port out of concern for escape risks and a detainee suffered nerve damage, the sheriff’s exercise of policymaking authority should Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 212 qualify as municipal policy. Or if concerned that detainee transports were taking too long, the sheriff had instructed deputies not to fasten detainees with safety belts to speed their entry and exit from sheriff vehicles and a deta inee was injured in a head-on collision, the sheriff’s exercise of policymaking authorit y should again qualify as municipal policy. The voters may have elected an unsuitable sh eriff, but the sheriff, however misguided, would be acting within a sheriff’s realm th ere. But those sorts of policies bear no resemblance to Sheriff Hanna’s supposed “po licy” of halting detainee jail transport for whatever time he needed to commit a sexual assault. The majority opinion goes too far for me in approving as municipal policy a rogue sheriff’s one-time, secret action that is unquestionably outside of the sheriff’s re alm and legitimate policymaking authority. In justifying its holding, the majority opinion relies on a conglomeration of three distinct categories of final-policymaker cases. In each category, the policymaker is acting under color of law (and is thus suable unde r § 1983), as Sheriff Hanna was here. In the first category, which by my reading covers the bulk of final-po licymaker cases, the policymaker makes wrong deci sions—but within the realm of his or her authority—and causes a constitutional injury to another pers on. In the second category, which involves far fewer cases, the policymaker —again within the realm of his or her authority—acts in his employment in an illegal wa y, for instance, by falsifying evidence and the like while investigating crimes. In the third category, wh ich involves far fewer cases even yet, the final policymaker acts outside the authorized realm by committing crimes, such as sexual Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 223 assaults, solely for personal gratification. Fo r these third-category cases, I cannot see how the municipality is the driving force of the constitutional violation. 1 Though the majority opinion doesn’t lack for case citations, the cases from the first two categories offer little help. None of the cited Supreme Court cases concern the third-category situation. So that leaves us w ith the circuit courts. I dispute the majority’s declaration that its “conclusion in this case finds strong su pport in the decisions by other circuits.” Majority Op. at 9.
I. The Majority Opinion’ s Third-Category Cases As support for its holding, the ma jority opinion relies heavily on Bennett v. Pippin , 74 F.3d 578 (5th Cir. 1996). In Bennett , a woman shot her husband after he allegedly assaulted her. Id. at 583. The woman was arrested in another county after informing the authorities there. Id. The county sheriff drove her back to her house, surv eyed the scene of the shooting, then left to atte nd to other law enforcement duties. Id. After arrest and booking, a deputy to ok the woman home. Id. Later, the sheriff retu rned alone to “assuage [her] previously expressed concern that [her husband’s] friends wo uld attack her” and because “he was mildly arouse d by the manner in which Ms . Bennett had touched him as

1 The majority opinion notes that “[n]either the County of Sedgwick nor the Sedgwick County Sheriff’s Department had any policy in place to oversee and monitor the actions of Sheriff Hanna.” Majority Op. at 4. It in turn blames this “lack of oversight,” id. , for Sheriff Hanna’s being “unchecked and unmonitored,” id. at 5. But the county has limited options, as noted by Simmons v. Uintah Health Care Special Service District , 506 F.3d 1281 (10th Cir. 2007), which the majority cites for the proposition that “[m]unicipalities are ‘equally answerable fo r actions undertaken by their final policymakers, whether or not those actions c onform to their preexis ting rules.” Majority Op. at 7 (quoting Simmons , 506 F.3d at 1287). Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 234 he lit a cigarette for her.” Id. From there, the sheriff’s and woman’s accounts greatly differed. Id. But at the civil bench trial involving § 1983 claims, the court found that “the Sheriff raped Ms. Bennett in the ma nner described in her testimony.” Id. at 584. This testimony included Ms. Bennett’s account that th e sheriff raped her after telling her that “he was the Sheriff and could th erefore do what he pleased.” Id. at 583. The woman asserted a § 1983 claim against the county alleging that the sheriff had acted as its final policymaker. Id. at 581. The Fifth Circuit began by noting that “[o]ur cases make clear that under Monell , a single decision may create municipal liability if that decision were made by a final policymaker responsible for that activity.” Id. at 586 (cleaned up). Next, the court declared that “in Texas, the county sheriff is the county’s final policymaker in the area of law enforcement, not by virt ue of the delegation by the county’s governing body but, rather, by virtue of the office to wh ich the sheriff has been elected.” Id. (citations omitted). Critically, the cour t then stated that the Sheriff’s actions were those of th e County because his relationship with Bennett grew out of the attempted murd er investigation and because, as we will explain, he used his authority over the investigation to coerce sex with her. The fact that rape is not a le gitimate law enforcem ent goal does not prevent the Sheriff’s act from falling within his law enforcement function. Id. (citation omitted). So if Bennett were a Tenth Circuit case, it might well control the present case. But as an out-of-circuit case, Bennett must earn its way into our caselaw by its persuasive value. For me, Bennett hasn’t earned its place. Other ci rcuits have rejected it, and we should too. I agree with the cases below criticizing Bennett and declining to follow it. Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 245 II. A Circuit-Court Survey Below, I collect the cases I have found ra ising issues akin to those decided in
Bennett and our present appeal.
In Wooten v. Logan , a case the district court relie d on but the majority opinion ignores, a “mentally handicappe d minor” alleged that the then-sheriff and his female friend, who had befriended the gi rl’s mother, conspired to ra pe the girl. 92 F. App’x 143, 144 (6th Cir. 2004). Having won the mother’s tr ust, the woman took th e minor girl for an overnight stay, but as prearranged, the sher iff activated his lights and stopped the car. Id. Soon after, the sheriff and his coconspirator had the girl “engage in oral intercourse, digital penetration and sexual inte rcourse over a two hour period.” Id. During the sexual assaults, the sheriff was wearing his uniform , badge, and firearm and acted under his authority as the county’s ch ief law-enforcement officer. Id. The sheriff and his woman friend later pleaded guilty to statutory rape. Id. The district court granted summary judgment against the plaintiff’s § 1983 municipal-liability claim. Id. at 145. Specifically, it ruled that “although [the sheriff] was the co unty’s final policymak er with regard to enforcement of the law, [the sheriff’s] alle ged criminal conduct did not establish or constitute ‘a municipal policy.’” Id. (cleaned up). A divided panel of the Sixth Circuit affi rmed, ruling that “[t]he district court properly entered summary judgment in favor of the County because [the plaintiff] has not demonstrated that [the sheriff’s] conduct repr esented the ‘official po licy’ of the County, as required for the County to be held liable under § 1983.” Id . The court acknowledged that “[u]nder appropriate circumstances, a si ngle act by a local government official can Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 256 constitute the government’s ‘official policy.’” Id. at 146. It noted that this occurs “where the official ‘possesses final au thority to establish municipa l policy with respect to the action ordered.’” Id. (quoting Pembaur v. City of Cincinnati , 475 U.S. 469, 481 (1986)). But the court ruled that the plaintiff “has not demonstrated that [the sheriff’s] conduct represented the ‘official policy’ of the County, as she has not shown that [the sheriff] was acting in a policymaking capacity when he detained and assaulted her.” Id. The court commented that holding otherwise would “contravene Pembaur ’s attempt ‘to distinguish acts of the municipality from acts of employees of the municipality.’” Id. at 147 (quoting Pembaur , 475 U.S. at 479). The Wooten court considered and rejected the Fifth Circuit’s contrary ruling in
Bennett

. Id. at 146 n.3. Noting Bennett ’s holding that “the rape constituted the county’s ‘official policy,’” Wooten characterized Bennett ’s holding as a “brief analysis [that] could be questioned as effectively providing for respondeat superior .” Id. (citing Bennett , 74 F.3d at 586). Next, in Roe v. City of Waterbury , the city’s mayor sexually abused minor females “on numerous occasions at the mayor’s office, in his ho me, and in his city-issued police cruiser.” 542 F.3d 31, 33 (2d Cir. 2008). He arranged these meetings with a city-paid cell phone. Id. at 34. In pursuing § 1983 claims in th eir lawsuit, the minors contended that the mayor was the final policymaker “in the areas of law enforcement, safety, and social issues; and as a result he had final policymak ing authority over the area of conduct that included his abusive acts.” Id. at 37. On this point, the cour t noted, a plaintiff must show a municipal official had final policymaking power and that his challenged actions were Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 267 “within that official’s area of policymaking authority.” Id. (citing City of St. Louis v. Praprotnik , 485 U.S. 112, 123 (1988)). The Second Circuit upheld the grant of summary judgment for the city, reasoning that “[d]ecisions to sexually abuse young ch ildren are not made for practical or legal reasons and are not in any way re lated to the City’s interest.” Id. at 38 (quoting Anthony v. City of New York , 339 F.3d 129, 139 (2d Cir. 2003)). This meant that “[t]he City cannot be said to be the ‘moving force’ behind the abuse.” Id. (quoting Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown , 520 U.S. 397, 404 (1997)). The court determined that the mayor’s actions were “in an area in which he was not a policymake r,” so he “had no authority to make policy authorizing, co ndoning, or promoting the sexual abuse of children.” Id. at 40. The Second Circuit also rejected the Fifth Circuit’s ruling in Bennett : “In our view, Bennett cannot be reconciled with Pembaur and Praprotnik ’s prohibition against finding municipal liability based on respondeat superior . Consequently, we decline to follow the Fifth Circuit’s reasoning with resp ect to municipal liab ility under § 1983.” Id. at 41. It reasoned that “[a]n official acts who lly outside his official policymaking capacity when he misuses his power to advance a purely personal agenda.” Id. Next, in Dahl v. Rice County , a deputy sheriff filed a claim under § 1983 after a dispute with the sheriff abou t an unauthorized purchase of badges led to a physical altercation. 621 F.3d 740, 742–43 (8th Cir. 2010). In a mee ting to discuss the unauthorized purchase, the depu ty alleged that the “sheriff lost his temper” and “struck Dahl in the chest with the heel of his hand, causing Dahl to injure his back.” Id. at 742 Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 278 (internal quotation marks omitte d). The district court grante d summary judgment for the county. Id. at 741. The Eighth Circuit recited th e legal principles of the m unicipal-liability analysis, including that “a governmental entity may be held liable if a plaintiff proves that its policy or custom was the ‘m oving force [behind] the constitutional violation.’” Id. at 743 (quoting Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 694 (1978)). The court further acknowledged that “[a] policy can be inferre d from a single decision taken by the highest officials responsible for setting policy in th at area of the government’s business.” Id. (citing Praprotnik , 485 U.S. at 123). Applying those standards, the court affirmed on grounds that “[t]here is no evidence that th is single incident of Sheriff Cook losing his temper represents a policy of Sheriff Cook’s or of Rice County’s” or that the sheriff or county “maintains a policy or cu stom of corporal punishment.” Id. (citing Pembaur , 475 U.S. at 483). The court did not cite or discuss Bennett

. Finally, in Doe v. Burleson County , a clerk in the county a ttorney’s office alleged that the county judge had se xually assaulted her several times, including twice in his office. 86 F.4th 172, 174 (5th Cir. 2023). 2 She brought § 1983 cl aims against the judge and the county. Id. After settling with the judge, the plain tiff went to jury trial against the county. Id. at 175. This ended in a mistrial after two jurors conversed with the plaintiff. Id. Before the second trial, the court hear d argument on whether the judge “had final policymaking authority for purposes of Doe’s claim against Burleson County.” Id. This

2 Doe was published on November 9, 2023, after briefing in this case was complete. Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 289 time, the court concluded that the judge “did not have fi nal policymaking authority for any area relevant to Doe’s cl aim against Burleson County.” Id. (cleaned up). On appeal, the Fifth Circuit determined that though the judge had violated the plaintiff’s constitutional rights in committing the sexual assaults, the judge “did not possess final policymaking authority in any area relevant to Doe’s claim,” so it affirmed. Id. at 176. The court noted that “[a]n un constitutional governmen tal policy could be inferred from a single decision taken by the high est officials responsible for setting policy in that area of the government’s business.” Id. at 176 (quoting Praprotnik , 485 U.S. at 123). The court described a final policymaker as “one that decides the goals for a particular city function and devises the means of achieving those goals.” Id. (quoting Sweetin v. City of Texas City , 48 F.4th 387, 392 (5th Cir. 2022)). The court recited that th e judge had “numerous executive, legislative and administrative chores in the day-to-day governance of the county.” Id. at 177 (quoting Familias Unidas v. Briscoe , 619 F.2d 391, 404 (5th Cir. 1980)). The court determined that the plaintiff had failed to show that th e judge “possessed the requisite authority as it relates specifically to the alleged sexual abuse” and commented that “it is hard to imagine that [the judge] would be considered the ‘ultimate repository of county power’ if he engages in independent, private sexual assault against another.” Id. (quoting Familias Unidas , 619 F.2d at 404). Though th e plaintiff alleged that the judge summoned her to his office to assist with county business, the cour t noted that even if he had authority to summon her there, the judge was “engagi ng in his own inde pendent misconduct, unrelated to his position as County Judge.” Id. at 178 n.2. Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 2910 The court cited its earlier decision in Bennett just once, for the proposition that “[w]hen a final policy maker makes the releva nt decision, and when that decision is within the sphere of the policy maker’s final authority, the existence of a wellestablished, officially-adopt ed policy will not insulate th e municipality from liability.” Id. at 176–77 (quoting Bennett , 74 F.3d at 585). Though Doe did not explicitly overrule
Bennett , it did not attempt to distinguish Bennett on the facts, either. By my reading, if the Fifth Circuit had applied Bennett ’s rule to the facts of Doe , the Fifth Circuit should have come out the other way an d reversed the district court’s dismissal of the plaintiff’s claims against the coun ty. Because it did not, Doe casts doubt on Bennett ’s continued validity.
III. Tenth Circuit Cases of Interest Though the Tenth Circuit ha s not until now had occasion to weigh in on a similar case to those discussed above, it has decided cases in which governmental officials have acted outside their realm for personal gratific ation. In my view, our cases point away from Bennett , not toward it. For starters, in Starrett v. Wadley , 876 F.2d 808 (10th Cir. 1989), a former employee in a County Assessor’s Office filed § 1983 claims against the assessor and county, premised on sexual harassment committed by the a ssessor, who was also her supervisor. Id. at 811. The district court entered ju dgment for the County after a jury trial. Id. On appeal, this court considered “wheth er the County can be held liable under Section 1983 for the Assessor’s acts.” Id. Among the “largely undisputed” facts were Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 3011 these: the assessor “rep eatedly made sexual advances towa rd plaintiff and other female employees, often while he appeared to be in toxicated” and “[t]hose advances included propositioning plaintiff, requesting that she me et him at his house or at other secluded locations, making obscene gestures toward her, and pinching her on the buttocks.” Id. at 812. We noted that “the ju ry reasonably could have conc luded that [the assessor’s] conduct toward plaintiff discriminated agai nst [the plaintiff] because of her sex and thereby deprived her of the right to equal protection of the laws.” Id. at 815. We affirmed the district court’s finding of county liability for the plaintiff’s termination from employment, but we revers ed the finding of co unty liability for the assessor’s acts of sexual harassment. Id. at 818. We acknowledge d that § 1983 municipal liability can occur “for the acts of a municipa l official only when th e official possesses ‘final policymaking authority’ to establish muni cipal policy with respect to the acts in question.” Id. (citing Pembaur , 475 U.S. at 483; Praprotnik , 485 U.S. at 123). But we noted that those cases “emphasi zed that municipal liability is limited to acts that are, properly speaking, acts of the municipality —that is, acts which the municipality has officially sanctioned or ordered.” Id. (cleaned up). Regarding the sexual-harassment claims, we reversed the district court’s de nial of the County’s motion for judgment notwithstanding the verdict, because the “acts of sexual ha rassment complained of here were private rather than official acts” and “w ere personal in nature without any indicia of being ‘officially sanc tioned or ordered.’” Id. at 819–20 (quoting Pembaur , 475 U.S. at 480). Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 3112 Finally, in Lankford v. City of Hobart , two female dispatchers of the city’s police and fire departments sued under § 1983, a lleging sexual harassmen t and discrimination by the police chief. 73 F.3d 283, 285 (10th Cir. 1996). The alleged harassment included “unwelcome sexual advances, obscene remarks, and inappropriate ph ysical touching of their bodies.” Id. After finding no official city po licy favoring sexual harassment, we turned to whether “the official charged wi th sexual harassment [had] ‘final policy making authority’ with respect to the acts in question as a matter of state law.” Id. at 286 (quoting Pembaur , 475 U.S. at 483). That left the questi on “whether [the police chief’s] acts can be characterized as a deliberate choice of th e city and whether he had final policy making authority for the City of Hobart.” Id. We affirmed the district court’s grant of summary judgment on the city’s behalf, reasoning that “[t]his case exemplifies a situation where the defendant was committing priv ate, rather than public, acts of sexual harassment.” Id.
at 287. These cases all reject municipal liability fo r the private acts of a final policymaker that are taken outside the realm of that official ’s duties. So in my view, they point against adopting Bennett ’s rule.
IV. The District Court’s Decision The district court issued a thorough de cision accounting for these precedents. It acknowledged that “a county can be liable for the actions of its polic ymakers, even when those actions violate a prev iously established policy.” Whitson II , 2023 WL 2570224, at *4. But the district court wisely noted that “not every action by a policymaker is attributable to the entity, which is the implication of the plaintiff’s position.” Id. (first Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 3213 citing Pembaur , 475 U.S. at 482 (“[W]e . . . emphasize that not every decision by municipal officers automatically subjects th e municipality to § 1983 liability. Municipal liability attaches only where the decisionmak er possesses final authority to establish policy with respect to the ac tion. . . .”); then citing Randle , 69 F.3d at 448 (municipality may be liable for one-time decision by fina l policymaker if “the policy decision purportedly made by the official [wa]s with in the realm of the official’s grant of authority”)). In my view, the district court got it right by concluding that “the transportation of prisoners is within the realm of the county sheriff’s policym aking authority” but that the municipality defendants “are not being sued because Mr. Hanna transported Ms. Biggs; they are being sued because he sexually assaulted her. That is not within the policymaking authority a county sheriff has.” Id. The district c ourt did not err by concluding that Sheriff Hanna’s actions were “wholly outside” his authority and lawful realm because he “misuse[d] his power to advance a purely personal agenda.” Id. (quoting Roe , 542 F.3d at 41). For these reasons I respectfully dissent and would affirm the district court’s order granting the motion to dismiss the claims ag ainst Sedgwick County . I disagree with the majority opinion’s holding that the sheriff can create a municipal policy with his onetime, illegal , and secret act of sexually assaulting a detainee by interrupting a detainee’s jail transport and improperly taking her inside his home to commit a sexual assault. With that as our circuit’s new rule, I see no way for a municipality to do anything but write Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 3314 checks—strict liability fo r the municipality despite its lega l inability to constrain a rogue sheriff determined to gratify his sexual desires. Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 34