William H. Rehnquist: We'll hear argument now in Number 95-1100, Board of the County Commissioners... the spectators are admonished, do not talk until you get out of the courtroom. The Court remains in session. We'll hear argument now in Number 95-1100, the Board of County Commissioners of Bryan County v. Jill Brown. Mr. Jefferson, you may proceed.
Wallace B. Jefferson: Mr. Chief Justice and may it please the Court: The Commissioners of Bryan County, Oklahoma, are required by statute to levy and collect nearly $900,000 in taxes to satisfy the judgment in this case. The taxpayers might reasonably inquire how they became liable to pay such damages to the respondents. The answer cannot readily be found in any decision of this Court, rather derives from an unprecedented extension of municipal liability contained in the decision of the Fifth Circuit. The Fifth Circuit says Bryan County is liable under section 1983 because its sheriff employed his nephew, who subsequently was held to have used excessive force during the course of an investigatory stop.
Ruth Bader Ginsburg: Mr. Jefferson, would you just straighten me out on how much money is at stake? I thought that apart from $100,000 the rest of the award against the county sticks because it's just based on State law negligence? Wasn't that... that the State has consented, or the county is liable for ordinary negligence under State law, no civil right thing. So we're talking about only $100,000 of the award. Is--
Wallace B. Jefferson: No, Your Honor, I think that's incorrect. The judgment against the county was for the violation of civil rights, and in fact the Fifth Circuit didn't reach the question of negligence. That issues remain--
Speaker: --That's what the jury... wasn't this a jury trial, and didn't they have a set of interrogatories that they--
Wallace B. Jefferson: --Your Honor, if you'll look at the judgment, the judgment that's in the appendix to the petition for cert.. The judgment itself awards damages jointly and severally against the county and against the officer for somewhere near 800,000. My figure of $900,000--
Ruth Bader Ginsburg: --Yes, but look at 42(a), and the only two items that seem to be related to the 1983 exclusively are (k) and (l). The jury answered yes to interrogatory 8 and 9, do you find that the county was negligent, and the same thing in interrogatory 9. There were State law negligence claims--
Wallace B. Jefferson: --That's correct.
Ruth Bader Ginsburg: --given to the jury, right?
Wallace B. Jefferson: Yes, Your Honor.
William H. Rehnquist: Do your arguments here depend on the amount of jury verdict?
Wallace B. Jefferson: They do not. They do not, Your Honor.
Ruth Bader Ginsburg: Okay.
Wallace B. Jefferson: They do not depend on the amount, but--
Ruth Bader Ginsburg: But you... in the opening you made a statement about how much was at stake, and I just wanted to point out that it seems to me that most of this is plain old ordinary negligence under State law, and we're only talking about part of the award.
Wallace B. Jefferson: --I appreciate that, Justice Ginsburg. What the Fifth Circuit found was that because the nephew pleaded guilty to misdemeanor assault and other misdemeanor offenses before he was hired, the Fifth Circuit held that the Sheriff was precluded from hiring him in the first place. In its 2 to 1 opinion, the court then held that the sheriff's decision actually caused the injury suffered by the respondent at the hands of the nephew. We contend the Fifth Circuit is wrong on several fronts. In the first place, Bryan County never adopted an official policy of employing unqualified applicants.
Sandra Day O'Connor: What instructions on causation were given here, and what should have been given, and did the county preserve any objection?
Wallace B. Jefferson: Yes, Your Honor. The instructions are contained in 124(a) through 132(a) of the Joint Appendix. The instruction on causation was the standard deliberate indifference instruction that this Court has derived from Canton and other cases. The objections were clear. The objections were that there is no policy in this case of hiring unqualified applicants, there is no policy of hiring one individual officer, and that as a matter of law the case ought not to be submitted to the jury. We moved for summary judgment. We moved for a directed verdict. We renewed the directed verdict. We moved for JNOV, or a motion for judgment both before and after the judgment.
Sandra Day O'Connor: Do you think that perhaps the jury under these instructions could have based liability on a finding of just but-for causation?
Wallace B. Jefferson: Exactly, Your Honor. I think that that is what they found.
Sandra Day O'Connor: And has this Court approved that approach?
Wallace B. Jefferson: It has not. It has not approved that approach, and in fact the causation has to be much more highly regulated than a but-for causation under Canton, under Tuttle, under every single case that this Court has decided in the section 1983 context.
David H. Souter: Mr. Jefferson, could we go back to the question of policy, and you have said the county doesn't have a policy here, and I guess more exactly the sheriff doesn't have a policy here of hiring unqualified or violence-prone applicants.
Wallace B. Jefferson: That's correct.
David H. Souter: It makes perfect sense to distinguish between policy and implementation, or failure to implement the policy, when the policy is made by one person or body and it's being carried out by another one. If the county commissioners were setting this policy and they said, investigate the applicants carefully and don't hire ones with criminal records indicating violence, and somebody like the sheriff, for whatever reason, failed to follow it, we would say one instance does not convert that instance into county policy. It's only when the policymakers know that it's not being carried out and they do nothing about it that we can say they become deliberately indifferent to it, and so on. The trouble is, here we have a different situation. The policy is being made by the sheriff himself, and on the one hand we'll assume that the sheriff has traditionally had a general policy of investigating applicants and not hiring those with criminal records indicating violence, but we also have to face the fact that it was the sheriff himself who said, in effect, I didn't even bother to finish reading the criminal record. I didn't care. When the policymaker himself does not follow that policy, why don't we judge the policymaker based on that one instance, rather than saying, oh, well, we'll wait and see if he does it several times before we attribute a change of policy to him?
Wallace B. Jefferson: I think there are several answers to that question. Maybe even not the first in order of priority is, compare what happened in this case to what happened in Pembaur, where again the county prosecutor there made one decision and the Court held in a plurality opinion that was enough to establish liability of the county. That decision to go in without a warrant and arrest--
David H. Souter: Because it was a deliberate decision in that case, wasn't it?
Wallace B. Jefferson: --It was a deliberate decision, that's correct, Your Honor, just like in our case a deliberate decision to hire Stacy Burns, no question about that.
David H. Souter: And a deliberate decision not to even finish reading the criminal record.
Wallace B. Jefferson: Or negligence, a negligent... a negligent failure--
David H. Souter: Well, do we have the option to characterize it as negligence?
Wallace B. Jefferson: --I think we can speculate that that's what it is. I think the jury--
David H. Souter: What was the standard put to the jury? Did they have to find that there was deliberate indifference, and if they found that there was, then we can't call it negligence.
Wallace B. Jefferson: --They had to find that it was deliberate indifference, but the facts of the case--
David H. Souter: So why doesn't that put it in the same class with--
Wallace B. Jefferson: --Because the facts of the case are as consistent... when you look at the facts, they're as consistent with either finding negligence, failure to use ordinary care, or, Your Honors, even a finding that he was pursuing his own personal interest in hiring... employing his nephew.
David H. Souter: --Yes, but the jury did find deliberate indifference, didn't it?
Wallace B. Jefferson: You're correct, Your Honor, that--
David H. Souter: So that the fact... we have to take the facts as they come to us, I suppose.
Wallace B. Jefferson: --And I'm offering the facts.
David H. Souter: I don't know why we would recharacterize them, and if we don't recharacterize them, why aren't we in a Pembaur situation?
Wallace B. Jefferson: Justice Souter, the other answer to that question is, in Pembaur it was a governmental purpose that this county prosecutor was furthering. I think the answer here is, we don't know what the purpose was, and I don't think, just because the jury found that there was deliberate indifference here that you're... this Court is bound to that opinion, when... when there's--
Antonin Scalia: Mr. Jefferson--
Wallace B. Jefferson: --Yes, Your Honor.
Antonin Scalia: --We're talking about policy. The word policy isn't in the statute, is it?
Wallace B. Jefferson: No, it is not.
Antonin Scalia: I mean, that's just sort of a shorthand that we've used, and maybe in a close case we should stop using it. The statute doesn't require a policy, it requires a statute, ordinance, regulation, custom, or usage. Now, maybe a single act may establish a policy, but it's hard to see how a single act can establish a custom or usage.
Wallace B. Jefferson: I think that's exactly correct, Your Honor, and this raises... this case raises the question in Pembaur which I don't think was fully resolved, and Chief Justice Rehnquist, you'll recall this. Is it the case that every time someone who is designated policymaker makes a decision, no matter what is is, that he's making policy for the county? In other words--
David H. Souter: Isn't the answer to that clearly no?
Wallace B. Jefferson: --Yes, it is.
David H. Souter: But whether he is or whether he isn't depends on whether the action is essentially a negligent action or whether it's an intentional one. If I was just careless... if, you know, the coffee was boiling over and I forgot to come back and finish reading the record of the applicant, sure, negligence. But if, in fact, I simply said here's this record, I don't know what's in it, I'm not even going to bother to finish reading it, I suppose that's intentional.
Wallace B. Jefferson: Even if he had read it--
David H. Souter: Isn't that what it turns on?
Wallace B. Jefferson: --I think... I think not, Your Honor, but even if he had read what was in the record... and this is a very central point here, and it's not an easy one to make based on these facts, but I think the analysis has to be this way. Even if he had read that record, he was authorized to put this person on the force under the Constitution.
David H. Souter: Well, he may have been authorized by State law, but there would be a question of whether it was constitutional.
Wallace B. Jefferson: I disagree with that, Your Honor.
David H. Souter: Why?
Wallace B. Jefferson: Because there's nothing in the Constitution or in any opinion of this court that I'm aware of that says that it is unconstitutional to hire somebody who has a background of misdemeanor arrests. If... and/or conviction.
David H. Souter: No, I mean, we are... our standards are not that specific, but we do have a standard of... which we've been characterizing as deliberate indifference, and I would suppose that it could be found to be within the scope of deliberate indifference.
Wallace B. Jefferson: Well, I disagree, and I think that that is a policy question for the Court.
Sandra Day O'Connor: Well, Mr. Jefferson, even if there's a finding here of deliberate indifference, does that mean that the jury does not have to evaluate whether that single act of deliberate indifference caused the respondent's injuries? I don't think they were asked to decide that. It was a theory that, well, this employee was hired, and therefore there had to be causation, because if he hadn't been hired, this accident wouldn't have occurred, and isn't something more required than that?
Wallace B. Jefferson: Yes, Your Honor. I mean, there--
Sandra Day O'Connor: Even if there was deliberate indifference in a single act of hiring, it seems to me an act that no law required or prohibited the hiring of someone with misdemeanor convictions, and-- --Isn't it true, Mr. Jefferson, that the jury specifically found that the inadequate hiring directly caused the plaintiff's injury?
Wallace B. Jefferson: --It did.
John Paul Stevens: Yes. So there was a finding on causation direct-- --In a but-for sense. But there's no... but-for is not used in the instruction, is it? But it could be--
Wallace B. Jefferson: But that's the only evidence of it, Your Honor. I mean, it's only a but-for... the evidence behind this jury's verdict is only in a but-for and a vicarious sense, that there's a causative link of any kind between the--
John Paul Stevens: --Well, is your principal argument that there was inadequate evidence to support the judgment? Then we don't have to wrestle with the question of whether a single incident could constitute a policy, if that's the case.
Wallace B. Jefferson: --I believe that that is our position. The evidence doesn't support--
John Paul Stevens: We could basically set the judgment aside for inadequate evidence. On the single incident point, is it the county's position that if the sheriff had before him a record that showed us not just misdemeanor... you of course say that's a minor record, but had a record before him of a series of felonies and violent behavior, and just an extremely obvious danger putting the officer on the street, that that still could not constitute a basis for liability?
Wallace B. Jefferson: --I think you have to be very careful, Your Honor, when we're talking about what is really a negligent hiring.
John Paul Stevens: I'm assuming that the record is so clear that any competent sheriff would have recognized a serious danger to the public by letting this man be hired as a police officer. That still would not justify liability, as I understand your theory.
Wallace B. Jefferson: It would not. It would not be unconstitutional to hire him, and I'll support that with a case that Your Honor wrote for a unanimous Court, the Collins v. Harker Heights case. There was clear evidence there. It's under the Due Process Clause, and I understand that's a different amendment that we're talking about, but there was clear evidence there that sending this person down into the sewer was going to result in death. I mean, that's what the--
John Paul Stevens: We held there was no constitutional violation.
Wallace B. Jefferson: --That's exactly right.
John Paul Stevens: I thought the assumption in this case was that the officer who had been hired did commit a violation of the Fourth Amendment rights of the plaintiff.
Wallace B. Jefferson: But you would have to find here that the county violated the Constitution.
John Paul Stevens: Well, and my question is, if it had been as foreseeable as my hypothetical suggested, you would still say no.
Wallace B. Jefferson: I would say no, and I give as an answer, Your Honor, Collins v. Harker Heights. In that, you stated the Due Process Clause is not a guarantee against incorrect or ill-advised personnel decisions, and that's correct. I mean, there are States that have lesser standards than Oklahoma's does, there are States that have more severe standards, but nothing about any of those standards in and of themselves shows that the standard is unconstitutional.
Ruth Bader Ginsburg: Mr. Jefferson, you put Pembaur in one box because that involved a direction by the prosecutor, go do it, so the causation problem that Justice O'Connor brought up here didn't exist there, but you also had in your brief something about a category of dangerous practices, and I was not clear on what would fit that category. It wasn't something, a direct command like shoot him, but--
Wallace B. Jefferson: I had--
Ruth Bader Ginsburg: --what is a dangerous practice that might make the municipality liable?
Wallace B. Jefferson: --I had in mind something like Canton, where a dangerous practice would be putting people out on the police force, for example, with no training in the use of deadly weapons. That could be enough to make--
Antonin Scalia: One person? Suppose it's done just once. Would you acknowledge that that would be enough?
Wallace B. Jefferson: --Under Canton, I would acknowledge it would, under Canton, yes, for that training sort of idea, but for hiring... for hiring, the Court has been clear for generations now that there is no respondeat superior liability, and we're talking about holding the county here liable for a hiring decision, not just a standard, but one particular decision that is geared toward one particular person. I think it's very critical to note that the jury's question in this case said, do you find that in the case of Stacy Burns, only him, that there was an inadequate hiring by the county.
William H. Rehnquist: What you're saying, I take it, is that if we start saying that one particular instance like this of a deviation from a regular rule is itself a policy, then you're back to respondeat superior.
Wallace B. Jefferson: Yes, and strict liability, because there are thousands upon thousands of personnel decisions being made every day. Some of them are not good decisions.
John Paul Stevens: Well, they wouldn't be the same as respondeat superior, because under respondeat superior you wouldn't even have to look at the hiring at all.
Wallace B. Jefferson: Well, that's what you'd be saying in effect, that it doesn't matter, you don't really have to look at the hiring.
John Paul Stevens: If you did respondeat superior, but if you look at the hiring and say that you looked at... that he hired somebody who was obviously going to go out and commit violent acts, that's another step in the chain, that it would not be enough... I mean, you wouldn't need to even look at that under respondeat superior.
Wallace B. Jefferson: But the first step in the chain would be, is the hiring itself unconstitutional. Can this Court--
John Paul Stevens: Why do you keep-- --No.
Wallace B. Jefferson: --Well--
John Paul Stevens: Does the hiring cause a constitutional violation? That's the issue.
Wallace B. Jefferson: --Well, but if it were--
John Paul Stevens: And here you admit that there was a constitutional violation, you admit but-for causation, but you say it's not sufficiently direct.
Wallace B. Jefferson: --That's correct, Your Honor, but when we're talking about causation and your... the Court's opinions in this area are not crystal clear on this. Deliberate indifference is not a standard in and of itself. It has causation elements to it, and you have to show that when the decision was made, if it's hiring or training, that almost the Court... the county had in mind that this violation is going to occur.
David H. Souter: Well, you're saying, then, that one deliberately indifferent act, even by the policymaker, is never going to be enough.
Wallace B. Jefferson: It is not enough in the context of this case, because the deliberate--
David H. Souter: Well, why would it ever be enough, on your theory?
Wallace B. Jefferson: --The--
David H. Souter: I thought you were saying, all right, if the policymaker says, I intend, or it is my purpose that the constitutional violation will occur, one instance would be enough, but you're saying that in deliberate indifference cases it's not... I think you're saying that in deliberate indifference cases it's not enough, because you can never establish the direct causal connection by one instance of deliberate indifference.
Wallace B. Jefferson: --I'll--
David H. Souter: Isn't that your argument?
Wallace B. Jefferson: --I'll give you an example--
David H. Souter: No, isn't... do I get your argument.
Wallace B. Jefferson: --No, no, no, you do not. You do not, because I do believe that there would be an extreme case which we probably will never see where one instance would be enough, and that would be where someone like Bryan County had a report in front of them, the psychological examination... there's no question of Burns passed it here, but had a report in front of them that said this person had a psychopathic disorder. He has... he is going to... by a psychiatrist. He is going to commit excessive force, criminal acts.
David H. Souter: But that's like Justice Stevens' example, isn't it, and I thought your answer to Justice Stevens was, no, that wouldn't be enough.
Wallace B. Jefferson: Well, Justice Stevens was asking me whether someone with a felony record. I think that's a very dangerous--
David H. Souter: Yes, but his said the felony record was so bad, as he characterized it, that any reasonable person would say that if you put the officer in a position to use force, he's going to misuse it, and you said no, that still wouldn't be enough, and I don't see why it should be any difference if you have a report that the individual's a psychopath. The probable result is the same in each instance.
Wallace B. Jefferson: --Granted, Your Honor, if... there could be a situation like that that's extreme. Why Justice Stevens--
Antonin Scalia: I don't understand this whole line of concession. I thought you were basing your argument upon the distinction between what happens once and what is... what can be called a policy, but the extremeness of the negligence, whether it's indifference or gross negligence or whatever, certainly has no bearing upon that principle.
Wallace B. Jefferson: --Your Honor, I agree... my--
Antonin Scalia: So you should have to say, it seems to me, that even if he had psychiatric evaluation that said that this fellow was a serial killer, it... you would have a cause of action against the individual who hired, but not against the city.
Wallace B. Jefferson: --My concession is based only on your decision in Canton, which recognized the ability--
Antonin Scalia: Which suggests that your argument is contrary to our precedent.
Wallace B. Jefferson: --Well, no, Your Honor. What I'm saying is that the examples of Justice Stevens' and Justice Souter's are almost never going to happen. The example in the footnote in Canton about putting people out on the police force without training them in the use of deadly weapons, that is quite an extreme example, and the--
Antonin Scalia: No, but would one person do? You contend that... you maintain that failure to train one person would be enough. That is a policy. But hiring one bad person is not enough.
Wallace B. Jefferson: --Failure to train one person under Canton is not enough unless the link is so direct that no person could ever... it's the functional equivalent of the city telling that one person go out and commit excessive force.
Stephen G. Breyer: Who actually will pay the judgment here if in fact you win and the judgment is only against the sheriff personally? I just wonder, in other words, does your client have an insurance policy?
Wallace B. Jefferson: It has no insurance policy. In fact, it's going to--
Stephen G. Breyer: Well, is it in the habit when there are judgments against individual police officers or others to pay those judgments?
Wallace B. Jefferson: --Your Honor, there is not anything in the record, and I cannot tell you.
Stephen G. Breyer: Have you ever heard, if you've looked into this generally, of cities or municipalities that don't have some kind of policy or custom of paying these judgments for--
Wallace B. Jefferson: Yes.
Stephen G. Breyer: --Are there many?
Wallace B. Jefferson: Yes, I believe there are.
Stephen G. Breyer: And how do the plaintiffs recover in those cases?
Wallace B. Jefferson: The plaintiffs--
Stephen G. Breyer: Are policemen independently wealthy that they can pay these things?
Wallace B. Jefferson: --Sometimes there is no recovery.
Stephen G. Breyer: And then how can the policy of the statute be vindicated if, in fact, the judgments... the defendants are judgment-proof, by and large?
Wallace B. Jefferson: You can't get around the intent to vindicate the statute by holding a county liable for something it did not do, even if the officer cannot pay the judgment.
Stephen G. Breyer: Under Monell.
Wallace B. Jefferson: Under Monell.
Stephen G. Breyer: I see.
Wallace B. Jefferson: That's correct.
Anthony M. Kennedy: Suppose in this case that the sheriff made a notation in the file, I am hiring this man as a matter of policy, will not check background for college offenses. Would the case be different?
Wallace B. Jefferson: Not if it's not a more generalized policy than that, than that one case, no. We would still--
Anthony M. Kennedy: In other words, even though he says it's a policy, it's not a policy.
Wallace B. Jefferson: --That's right. That's right.
William H. Rehnquist: I suppose that would be some evidence that the policy they claim to follow was not followed, but the real policy was to hire people regardless of, you know, any felony record.
Wallace B. Jefferson: It would be a closer case, and maybe, you know, perhaps you would get to a jury on it, but the evidence in this case is, in every single instance, every hiring decision made by this sheriff, every other time, adequate background investigation. The Fifth Circuit found that as well. There was one deviation from this consistently good policy, and that was--
William H. Rehnquist: And it was for a relative.
Wallace B. Jefferson: --For a relative, for hiring a nephew, and that's my point, Your Honor, that the explanation for this hiring is, in my view, as consistent with the fact that he hired just to promote his nephew--
Antonin Scalia: Well, why isn't that a policy of hiring relatives without adequate background checks?
Wallace B. Jefferson: --Well, if it were a policy, that would be correct, but it's not.
Antonin Scalia: Well, I don't see how it gets you anything, I really don't.
Wallace B. Jefferson: I guess the point on that, Your Honor, is, whether or not it's an official policy, that is not the end of the question for the Court. I don't think it's an official policy because it's a one-time deviation from a policy which could be consistent with negligence and not established policy for the county. The causation is lacking here as a matter of law. If the Court were to find that there was causation in this case, then you look at the statutes at the end of the amicus brief for the National League of Cities, and look at all the statutes that allow hiring people with this sort of record, those would have to go out the door, or at least, if you hold that way, then there's going to be liability in each and every case for every single hiring decision.
Anthony M. Kennedy: What's the standard you want us to adopt in order to reach your conclusion? Do you want us to just make a judgment on this record, or are you suggesting that there's a legal standard here?
Wallace B. Jefferson: I think the legal standard, and I would put this for your consideration, is that in a negligent hiring context the Court is going to maintain its consistent position since Monroe v. Pape and beyond that there is no liability for respondeat superior, for simply hiring an individual.
Anthony M. Kennedy: And suppose its an ax murderer.
Wallace B. Jefferson: If it's an ax murderer, that, even in itself... and that's my distinction, Justice Souter. It... an ax... it's not unconstitutional to hire an ax murderer in itself. Now, that's an extreme position.
David H. Souter: But that is... you keep coming back to this concept of unconstitutional hiring, and isn't the proper concept an act which results in or causes an unconstitutional injury? Well, it's a policy which results in or causes, not an act. Well, act or policy, depending on how we analyze it, but it's not the hiring decision that is unconstitutional. It is the hiring decision as part of a causal chain that results in an unconstitutional injury, and our question is, does that hiring decision... can one hiring decision, if it's intentional, qualify as the first step in that chain, or does it have to be part of a more generalized practice or policy?
Wallace B. Jefferson: It cannot be the starting point, unless you're to say--
David H. Souter: No, but I mean, the point here is it's not that you characterize step one as being per se unconstitutional. You characterize the whole chain of events as having an unconstitutional result, isn't that fair?
Wallace B. Jefferson: --Well, no. The... because the first--
David H. Souter: Well, I could have a policy, I suppose, that I will in fact hire ax murderers, but if I never hire an ax murderer, there is an... if no ax murderers apply, and I never hire one, there's never going to be a constitutional injury, so we won't be concerned about it. We're only concerned when the whole chain is filled in.
Wallace B. Jefferson: --But if Your Honor's correct then the Federal courts in every case or controversy have the right to look behind personnel standards that everyone agrees are... that States implement that every one agrees are not constitutionally infirm themselves. They can go behind it in every instance. So if Your Honor is correct there that you don't first look at whether the hiring decision itself is constitutional, then what you're doing is saying Federal courts are able to intrude on an area that has been, at least, and even under Collins, your case, the prerogative of the State government.
William H. Rehnquist: Well, the argu-- --To say that the... you have a policy of unconstitutional hiring I think is mistaken. The constitutional violation is done by the person who actually inflicts the injury on the person who's the plaintiff, and the question of whether you can recover against the county or not is whether the county has the policy... I don't think you refer to the policy as the policy of unconstitutional hiring.
Wallace B. Jefferson: I agree with that proposition, Your Honor. The... but the federalism question is still at play because if the Court were to rule in this case to affirm the case, then the question becomes, do all these hiring standards, these personnel standards that we have, and all of the States around the country, and they're all different, or many are different, are they enough to create a jury question every single time?
Anthony M. Kennedy: Oh, but I think-- --No, but that's not true, because in this case it's been conceded, the case is argued to us on the assumption that the sheriff is the policymaker. It's just as if the board of supervisors debated this, or whatever the governing board is in Oklahoma, debated this entire issue.
Wallace B. Jefferson: But... yes, Your Honor--
Anthony M. Kennedy: And said that after due deliberation we think that this is a good hire.
Wallace B. Jefferson: --And what I'm saying is, let's say it was. Let's say he really had looked at the record and said I want to hire him anyway. That is authorized by State law. That hiring decision would be authorized by State law.
David H. Souter: Well, but that's not this case, and if this case were decided against you it would not open any such door, because this case proceeds not only on the assumption that the sheriff is the policymaker, it proceeds on the assumption, as I understand the jury instructions, that he was deliberately indifferent to this kind of result when he made his hiring decision. That does not open the door to looking behind every particular act of hiring, no matter what the governmental policy is.
Wallace B. Jefferson: Well, I believe it does, because of the way the case was submitted to the jury. It wasn't just--
David H. Souter: It was submitted on a deliberate indifference theory.
Wallace B. Jefferson: --Deliberate indifference with respect to one particular employee.
William H. Rehnquist: Thank you, Mr. Jefferson. Mr. Serr, we'll hear from you.
Brian Serr: Mr. Chief Justice and may it please the Court: First, I'd like to respond to Justice O'Connor's concern that this case turns in but-for... on but-for causation. That's simply not true. The--
Sandra Day O'Connor: But it could. The jury could have reached a verdict on but-for causation.
Brian Serr: --Absolutely not, because the instructions came right out of the Canton case. The instructions required a finding of direct cause, and in the verdict form required a finding of proximate cause. This doesn't turn on but-for causation. I don't know how one defines proximate cause any clearer than saying direct cause. Direct cause, closely related to, affirmative link, moving forth, are the terms that this Court has employed to refer to the causation requirement. But Canton specifically says closely related to. That's direct. That's direct causation. That is a common way for judges to refer to proximate cause. And moreover, as a matter of law, the evidence here was not insufficient to establish that direct cause, because what we had here was precisely the constitutional deprivation that was predicted by the red flags that were up at the time that the county hired Sheriff Burns. If... sorry, Officer Burns. If Officer Burns had gone out and enforced the law in a racially discriminatory manner, there's no causation. If Officer Burns had gone out and committed a sexual assault of a juvenile detainee, there's no causation. The link between the deliberate indifference and the constitutional deprivation just doesn't match up. But here, the deprivation that occurred, the excessive use of force, was precisely the deprivation that was endangered, that was ignored when the sheriff ignored the red flags that were there right at the time of hiring. Justice Scalia, I'm glad you referred to the statute, because it seems to me that the word policy is... that they're trying to use the word policy against us, and that's what I would say. The word policy isn't in the statute. The statute says every person who... and a municipality can be a person so long as the municipality itself is doing the acting. Every person who under color of any statute, ordinance, regulation, custom, or usage, that has been interpreted by this Court as doing nothing more, nothing less than saying that the person must act under color of State law, State action as this Court has interpreted in the Lugar v. Edmondson case. I don't know how a sheriff can act for the county and not be acting under color of State law.
Antonin Scalia: It doesn't say State action. It... State action has to be reflected in a statute, ordinance, regulation--
Brian Serr: The--
Antonin Scalia: --custom, or usage.
Brian Serr: --Your Honor, the statutes of Oklahoma clearly provide that the sheriff is the final decisionmaker on matters of employing deputies. They serve... in the Oklahoma Revised Statutes, Chapter 19, section 547, those deputies serve at the pleasure of the sheriff. Prior to 1979, boards of county commissioners in Oklahoma had final approval authority over deputies. Since a 1979 change in the law, that's not true. The sheriff, they serve at the pleasure of the sheriff. The sheriff--
Antonin Scalia: That may be true, but was it under color of that statute? Did that statute authorize hiring of unqualified police officers?
Brian Serr: --This Court has never interpreted section 1983, as Justice Souter indicated, to require that the action by the municipality be facially unconstitutional. This Court has already decided that in Canton.
William H. Rehnquist: But we also decided in Monell that a municipality could not be held liable unless there were a policy.
Brian Serr: And this Court in Pembaur looked back on Monell and interpreted Monell as... Monell wanted to preclude respondeat superior. Liability of municipalities must be premised on acts of the municipality itself, not merely on acts of subordinate employees. Pembaur took a very common sense view of how municipal power is exercised. It's often vested in individuals such as sheriffs who have final county authority to make policy, to make decisions that bind the county. The sheriff was the alter ego of the county. The sheriff was the county when acting in matters within the sphere of his authority, and the sphere of his authority clearly allowed him to make decisions as to who can wear the badge and who may not wear the badge.
Antonin Scalia: Oh, yes, he personally would have been acting under color of a statute, or of a law, but when you try to place liability on the municipality for the municipality's failure to have higher standards for the recruitment of police officers, you have to refer to something else. You have to refer to some custom or usage, or call it a policy.
Brian Serr: That's not what this Court said in Pembaur.
William H. Rehnquist: Well, that's certainly what we said in Monell. Are you questioning our decision in Monell?
Brian Serr: I am not questioning your decision in Monell. I agree--
Anthony M. Kennedy: Well, but then, you see, your argument so far, as I interpret it, is a strictly respondeat superior argument. Monell says respondeat superior doesn't work when you're seeking to hold the city liable. You must have something other--
Brian Serr: --Your Honor--
Anthony M. Kennedy: --than respondeat superior, and we're asking whether or not you... and you seem to disagree with that.
Brian Serr: --No. Your Honor, subordinate employees, a county is not liable for the acts of subordinate employees such as the officer using the excessive force. Pembaur recognized, however, that official municipal power, the municipal... a county cannot literally pick itself up off the map and go out and commit a constitutional tort on someone. A county can only act through human beings. Sometimes a county acts officially through boards, through legislative boards. Sometimes a county acts officially through executive officers. The question under Monell, as this Court later explained in Pembaur, is, who is doing the acting? Is the municipality itself doing the acting, rather than being held liable based only on the actions of some subordinate employee who doesn't have the authority, who doesn't have the power to bind the county? The sheriff here was a final policymaker, an executive decisionmaker. Matters of hiring and training officers under State law were exclusively within his control. The county could not act on these matters other than through the sheriff.
David H. Souter: Mr. Serr, I assume that you would win this point if we analyzed the case in either of these two ways. The first alternative is, we could say that regardless of what the announced policy is, if the policymaker, in this case the sheriff, intentionally, consciously, deliberately follows a different rule in a given case, that that is in fact a change of policy, and therefore we come within Monell. Or we could say, even though the stated policy remains the same, when the policymaker itself or himself acts contrary to it, that is, in fact, the act of the county--
Brian Serr: When there's--
David H. Souter: --because the county can act in no other way, and we don't require multiple instances because there's no question of attributing this act to the ultimately... ultimate policymaker. He's doing it. Now, we could come out your way on this point if we follow either one of those analyses. Does it matter to you which one we follow?
Brian Serr: --It matters to me whether you come out in our favor.
David H. Souter: I realize that. [Laughter] But how about those two avenues, road A, road B. Does it make any difference to your case--
Brian Serr: What was road A again?
David H. Souter: --Road A is that when the policymaker intentionally acts contrary to the stated policy, that action establishes a new policy.
Brian Serr: Sure. We--
David H. Souter: So it still falls within--
Brian Serr: --We would agree with that.
David H. Souter: --All right. Does it matter whether we take that analysis or the second one?
Brian Serr: We win under either of those analyses.
David H. Souter: No, but does it have any implications for your case other than winning or losing? In other words, does it-- --What's the second one again? I forgot the second one by now. [Laughter]
Brian Serr: Other... under either one of those roads, I think we win in this case. I would submit that the bottom line is whether liability is being premised on the acts or omissions of the municipality itself.
Stephen G. Breyer: The difficulty that I'm having with this, frankly, is if you take either of those lines, what... it would end up with the cities being held responsible for the actions of their higher level employees even when those higher level employees are really going against the preexisting policy or just making a mistake, or just being negligent or grossly negligent. What reason... and maybe they should be held liable for that, but how can you hold them liable for the higher action employees but not the policeman who, after all, is going out in the course of duty and also making a mistake, and using too much force, and breaking a door down when he shouldn't, and either thinking that I'm just making a mistake or being indifferent, et cetera. Why should it be the one that they have to pay and not the other? Maybe they should pay both.
Brian Serr: Well, for one thing, liability can only be premised on deliberate indifference. It's not merely negligence or gross negligence. Deliberate indifference is, as explained by this Court in Farmer v. Brannon, that is a very high standard. That is equated with criminal recklessness. When the person that is vested with ultimate... when the ultimate vessel of county power on a particular matter makes an affirmative, conscious exercise of that power, then the county has acted. Now, that doesn't open up counties to broad form liability. That's the way it's been done, really, since Pembaur, since Canton. It's very difficult to prove deliberate indifference. There are very few hiring claims--
Ruth Bader Ginsburg: Mr. Serr, don't you recognize any difference between a prosecutor who says, go seize that evidence illegally, and a city that says we're going to put guns in the hands of police officers and not train them in its use--
Brian Serr: --Sure.
Ruth Bader Ginsburg: --and this case, where the record shows assault, but it turns out to have been an incident on a college campus?
Brian Serr: This Court in Canton looked at the language of section 1983 and decided that section 1983 admits of no distinctions between actions of the municipality that directly authorize or command constitutional violations or actions that just are deliberately indifferent and directly cause constitutional violations. The language of section 1983 does not include words like intent, or directly authorize, or command. Canton's already done that. The action does not have to be unconstitutional. The municipal action does not have to directly authorize violations of the constitutional rights. The municipal action just has to directly cause the violation, and--
Ruth Bader Ginsburg: Well, I'm talking about that causation requirement, because it seems to me that it was a lot closer in Canton than it is here.
Brian Serr: --You mean in Pembaur?
Ruth Bader Ginsburg: But... well, certainly in Pembaur. There it was, go do it, and in Canton was putting a dangerous weapon in the hand of an untrained person.
Brian Serr: Okay. Well, Canton actually involved police officers that failed to discern a severe emotional disturbance in an arrestee, and the Court said, well, there was no notice of any need... of any obvious need to train in that matter, but Canton did recognize that there are certain recurring situations that police officers to a moral certainty will face, such as decisions regarding the use of force, clear constitutional duties in recurrent situations regarding the use of force... Do I use force? How much force do I use? How do I apply that force +/? such that counties are inherently on notice that that is the job description of a police officer.
Sandra Day O'Connor: Well, that was the allegation here, the use of excessive force that turned on that, and yet the instruction given on deliberate indifference, as I understand it, required the jury to assess whether it was so obvious that Sheriff Moore's decision would lead to violations, plural, of constitutional rights, plural. Now, doesn't Canton at least suggest that we require a jury to conclude that the violation of a discrete and identifiable right, here the right to be free from excessive force used, would be obvious and here, how do we know, under that instruction, that the jury wasn't just thinking, well, with that misdemeanor record probably some right would be violated?
Brian Serr: Well, deliberate--
Sandra Day O'Connor: How is it focused here?
Brian Serr: --Your Honor, the deliberate indifference instruction came right out of the language in the majority opinion in Canton that the--
Sandra Day O'Connor: Well-- --Be that as it may, maybe that hadn't been thought through, or it wasn't pressed as a point. Here, it becomes key, and it seems to me it left it very open. I mean, you can say in every case that a constitutional deprivation by the officer who's hired wouldn't have occurred if the employee hadn't been hired, and what is there in the instructions that makes clear that isn't the basis?
Brian Serr: --Well, that was precisely the problem faced by this Court in Canton with respect to failure-to-train cases, that it would be easy for a plaintiff to manufacture a situation of respondeat superior: if you had only trained the officers in Canton to recognize severe emotional disturbance, this wouldn't have happened. And that's why the Court responded in Canton in order to eliminate respondeat superior with the deliberate indifferent standard, that the decisions by the municipality itself must be so inadequate in light of the specific duties assigned to officers as to amount to deliberate disregard.
Sandra Day O'Connor: But these instructions nowhere focused on precisely what it was that was going to be the basis of the liability. Excessive force, and not leaving it plural, so that it was open to them to think well, gee, he might be a careless driver.
Brian Serr: The instructions focused the jury on the training and the hiring of Stacy Burns, and the constitutional right that was at issue here, as the jury knew, well knew, was excessive force, violations of Fourth Amendment rights, and the deliberate indifference must, that's true, directly cause the deprivation. I can't imagine a case where there is a closer affirmative link or causal connection between the red flags present at hiring--
Sandra Day O'Connor: Well--
Brian Serr: --and the deprivation that occurred.
Sandra Day O'Connor: --perhaps you could have offered instructions that would have clarified it, but under the instructions that were given, I don't see why it wasn't open to the jury to base it on--
Brian Serr: Your Honor, I suppose it's always possible for the judge to give more specific instructions, to spell it all out. There was no objection here by petitioner's--
Sandra Day O'Connor: --Well, you're the plaintiff. I mean, it's... you represented the plaintiff, so it's up to the plaintiff to offer appropriate--
Brian Serr: --We think these instructions do the trick under Canton. The judge looked at Canton. We looked at Canton. These instructions do the trick under Canton.
William H. Rehnquist: --Well, do you think Canton supports the proposition that deliberate indifference is the standard with respect... across the board, or just with omissions by... it seemed to me that Canton was more talking about omissions to do something on the part of the supervisor.
Brian Serr: Well, we would certainly assert that it can't be more difficult to prove municipal liability for omissions than for affirmative exercises of municipal power, that if deliberate indifference supports municipal liability for omissions, for failures to act when the notice is there, when the notice is apparent, that certainly that deliberate indifference model supports municipal liability for affirmative exercises of official municipal power so long as--
Antonin Scalia: What there existed in Canton was a training program. The opinion repeatedly discusses the training program, and the training program did not include training in this particular type of skill, and that was the issue. We don't have here a hiring program. I mean, that seems to me the central difference in this case. You have a one-shot hiring by somebody who does have policymaking authority, but it would be very difficult to write an opinion in this case referring to the hiring program of the municipality.
Brian Serr: --Your Honor, there is no requirement of a program. Again, that I think is taking a nonstatutory term, policy, out of context and interpreting it in such a way that goes well beyond Monell's rejection of respondeat superior and would result in actually shielding municipalities from fault when a plaintiff can demonstrate, as plaintiff did here, that the fault clearly lies at the municipality's doorstep. Canton explained... in the very description of the deliberate indifference standard in Canton it says, in light of the duties assigned to specific officers. There doesn't have to be deliberate indifference across the board. There's never going to be deliberate indifference across the board. Even if a county decided not to train anyone, some of those officers are probably going to have been well trained by other counties. It--
Antonin Scalia: But why insist on... if what you say is true, why insist on going up to the level of the policymaker anyway, then? Why not just take the individual officer?
Brian Serr: --Because in order to avoid respondeat superior, liability must flow from the acts or omissions of the municipality itself and not merely from the deprivations committed by the low-level employee. The single incident standing alone, the excessive force standing alone does not by itself put liability on the municipality.
Antonin Scalia: Unless it's committed by somebody high enough up in the municipal hiring--
Brian Serr: No. It has to be caused by official municipal action, which has been defined in Pembaur. That municipal action must be done in deliberate disregard to a constitutional deprivation, Canton, and there must be a direct causal connection, again Canton, between that deliberately indifferent, official municipal exercise of power and the constitutional deprivation that in fact results, and we have all that here.
Stephen G. Breyer: --Can I ask about that? A minor factual question would be helpful. On page 114 of the appendix I take it is the heart of what the sheriff did that was wrong. He ran the driving record down with the Oklahoma police authorities. The Oklahoma police authorities gave him a piece of paper called a rap sheet. If he'd looked at that rap sheet he would have seen that this individual did some other bad things and he never checked on them.
Brian Serr: Recently.
Stephen G. Breyer: All right.
Brian Serr: Recent bad things.
Stephen G. Breyer: Right, but then... so I thought what would be relevant, I'd like to look at the piece of paper that the sheriff had in his hand so that I could make a judgment, perhaps, at a great distance, about what he should have done, or what the jury thought he should have done. Is that piece of paper in the record? I can't find it.
Brian Serr: It is in the record.
Stephen G. Breyer: All right, well, your associate--
Brian Serr: Actually, it's not in those volumes.
William H. Rehnquist: --Well, can you supply it to the clerk afterwards?
Brian Serr: Yes. But it was a lengthy record. It showed several instances of assaultive behavior.
Stephen G. Breyer: I just wanted to look at the piece of paper that the sheriff looked at when he supposedly, in your view, made a mistake of not going further.
Brian Serr: Mm-hmm, and we would submit that that's also a jury question, that the length of that, how red the red flag was... was it just pink, or was it real red? The jury in this case apparently decided that that was a very red flag that was highly predictive of this particular type of deprivation, the excessive force. You know, deliberate indifference, Farmer v. Brandon, that's criminal recklessness. You don't have to do much. Once you have notice of the likely, of the high likelihood of a particular constitutional deprivation, you don't have to do much. You just have to pay attention. You just have to make a little bit of an effort. That effort can be flawed. It can be a negligent effort. It can be a grossly negligent effort. You just have to do something. There was nothing done here. There was no effort. The only effort on hiring that's present in the record is, we ran his record. We got his rap sheet. But then they didn't read it.
Sandra Day O'Connor: Why, in the face of a custom or usage in the past of checking on records, why should this single deviation violate that statute?
Brian Serr: Because the deviation was a conscious, deliberate decision made by the ultimate vessel of county authority on a matter within his sphere of policymaking--
William H. Rehnquist: Why does that make it a policy, a single departure for a relative? So he simply wasn't following the policy in that instance.
Brian Serr: --Well, again, that goes back to Monell and what Monell meant by the use of the word policy. That term, policy, in Monell was juxtaposed with the rejection of respondeat superior. That... when the Court rejected respondeat superior they said, the acts must be the acts of the municipality itself. Monell recognized and Pembaur recognized that municipalities must act through human beings, and sometimes those human beings aren't on boards passing laws that take the form of standard operating procedure. Sometimes those individuals who are vested with the... the ultimate vessels of county power are singular executive individuals--
William H. Rehnquist: Well, what if the supervisors in this case, so there'd be no question of a single... what if the supervisors had said, we always check out the records of people we're going to hire, but in this case it's the chairman's nephew, so we're going to depart in this case. Now, does that become a policy?
Brian Serr: --Mr. Chief Justice, if you take that line of thinking far enough, every political subdivision in the country... counties, cities, school districts... they all get to deliberately, knowingly hire one bad apple.
William H. Rehnquist: Well, if you take your thinking far enough you're right back to respondeat superior.
Brian Serr: No. My thinking is that deliberate indifference is the key. Criminal recklessness is the key, criminal recklessness by the municipality itself.
William H. Rehnquist: Well, you know, if you're talking about what you find in the statute, where do you find criminal recklessness in the statute?
Brian Serr: Well, in the Canton case, and I guess this traces back to Justice O'Connor's opinion in Kibbe, there was a concern by this Court about what to do with those policies that are not facially unconstitutional, or those policies, actions of a municipality that do not directly authorize constitutional deprivation, the failure to train cases, the bad hiring cases, and Justice O'Connor articulated in her opinion in Kibbe that the reason we need a deliberate indifference requirement is to satisfy that causation requirement in the statute. There was--
Anthony M. Kennedy: In answer to the Chief Justice's question in the hypothetical that he put you where they hire the nephew, was that a policy?
Brian Serr: --Absolutely. As that term has been used by Monell and interpreted by this Court in Pembaur, that was a policy.
Anthony M. Kennedy: And then if they... suppose they said, we're too busy today and we're just not going to check the references, would that be a policy?
Brian Serr: That would be negligence, perhaps grossly negligent. That would not be an actionable decision by the municipality under Canton. Canton requires criminal recklessness. Canton says that when you've got deliberate indifference, deliberate disregard of constitutional rights, then you have a policy as that term was used by Monell, so long as that deliberate indifference is attributable to the county itself.
William H. Rehnquist: I don't see how the state of mind of the actor can make something a policy. In other words, a policy is a practice that's followed in an... you know, thick and thin, that sort of thing. You have a departure, and whether it's a negligent departure or a deliberately indifferent departure, it's still... one swallow doesn't make a summer.
Brian Serr: The majority in Pembaur actually reported several dictionary definitions of policy in a footnote, and those dictionary definitions of policy even refer to a single decision. When my dean goes out to collect money from alums and he has to make a decision as to, do we ask this guy for a million bucks now or do we wait a few years and ask him for 3 million bucks, he refers to that as a policy decision. I made a policy decision to ask for the million bucks now.
Ruth Bader Ginsburg: But let's go back to Justice Souter's question, because here there is a policy over a 6, 7 year period of being careful about who is hired to be a police officer. That's the policy, and we have one... does the deviation--
Brian Serr: In--
Ruth Bader Ginsburg: --from the policy become in itself a policy?
Brian Serr: --The Court spoke directly to that in Canton, that when you have genuinely adequate municipal decisionmaking, the fact that one person negligently slips through the cracks or accidently slips through the cracks, no problem, but if that one person deliberately, indifferently, criminally, recklessly slips through the cracks, then you've got a problem under Canton. Rarely will the predictors be there. Rarely will the red flags be there at the time of hiring. There aren't many winning hiring cases. You don't need to worry about that, because rarely are the red flags there at the time of hiring that are particularly predictive of the specific constitutional deprivation. The only situations that I've seen in the lower--
Antonin Scalia: It's a lawsuit.
Brian Serr: --Pardon?
Antonin Scalia: But it's a lawsuit.
Brian Serr: It's a lawsuit. The only--
Antonin Scalia: It may be cheaper to... you know, to settle than to litigate.
Brian Serr: --Sometimes, Your Honor, the job description and the applicant behavior, the preemployment applicant behavior known to the county decisionmakers just doesn't match the job description. You don't put child molesters in a first grade classroom. You don't make them janitors at the elementary school. Maybe groundskeepers at the high school, maybe an assistant to the tax collector. The same thing here. The job description of a police officer, as this Court recognized in Canton, as Justice O'Connor's concurring opinion noted in Canton, police officers are expected, by the nature of their job, to face recurring situations where there are clear constitutional duties regarding the use of force. Those recurring situations often involve stressful, tense confrontations with citizens. That's the job description. You don't hire individuals... some persons are unfit. Recent, lengthy, lawless disrespect for law and order, immature, occasional violent behavior is a red flag. It is highly predictive of the constitutional deprivation that in fact occurred. Again, if you've got a different constitutional deprivation, enforcing the law in a racially discriminatory manner, you don't have the causal link, but we've got all that. We've got the red flag. We... also, I think the lack of hiring suits speaks well of the municipal policymakers in this country, that normally when they see that red flag they don't hire, or if they hire, they take some corrective measures subsequent to hiring, but... and again, that's all the deliberate indifference standard requires of persons to do. The Federal district courts, Justice Scalia, have not been reluctant to grant summary judgment to counties if the county comes up with the least bit of summary judgment proof that they made an effort, that they paid attention. This record in this case is devoid of that paying attention. We ran his record, but then we didn't read it, but he had no felonies, as it turned out. That was the brunt of their case on the hiring. With respect to the bad training, in the face of expert testimony that there was no formal departmental training, that the training was nonexistent in the county, the only thing they came up with was, well, he rode with grandpa a few times in the squad car and grandpa... in the terms of... in its testimony, pointed out the do's and don'ts of what to do, things to look for with the drunk drivers, possible causes, possible reasons to pull people over, and things of that nature. They didn't... the county didn't produce evidence of one single, solitary representative of the county that took Stacy Burns, despite Stacy Burns' lengthy preemployment record of behavior including violence, they didn't point to one county official that took him aside and said, son, let me tell you about the use of force. You're going to be facing situations where you need to use force. Here's when you can, here's when you can't. The record is devoid of that. And I'd like to point out that I think there's a blatant misstatement of the record on page 5 of petitioner's brief here claiming that Calclazier, which was grandpa, and Howell gave Burns general instructions on law enforcement, particular instruction on how to detect drunk drivers, on proper procedures to conduct an investigatory stop, and on methods of placing a suspect under the officer's custody and control. That last, methods of placing a suspect under the officer's custody and control, the transcript cite, 580, simply doesn't bear that out. No one told him about the use of force. Now, that's deliberate indifference, and it's going to be a rare case, a case like ours, where you can meet all those standards. This is... in conclusion, I think this is a case ultimately about accountability, accountability of police officers on the street, which is enforced largely through the Fourth Amendment, accountability on the part of those ultimate policymakers that decide who to put on the street, yet in a Fourth Amendment arena, under Michigan v. Sitz, which is the drunk driving roadblock case, under--
William H. Rehnquist: Thank you, Mr. Serr.
Brian Serr: --Thank you.
William H. Rehnquist: The case is submitted.