With the ratification of the fourteenth amendment in 1868, Congress and the judiciary embarked on a century-long journey to transform the mere words of the amendment into an instrument capable of protecting those injured by illegal state action. The legislative branch moved first and with dispatch in enacting the Civil Rights Bill of 1871, whose overarching provisions charted broad expanses of the new constitutional territory. Courts, on the other hand, through the characteristically measured process that marks the restrained exercise of judicial power, proceeded slowly, yet deliberately, to effectuate the congressional and constitutional design. We are asked on this appeal to move one step further in fulfilling the promise of the fourteenth amendment by recognizing that, in certain instances, municipalities may be held liable in damages for actions taken in derogation of that amendment. Cognizant of our responsibility to develop remedies implementing fundamental constitutional provisions, we proceed with our task.

In order to understand the complex legal issues presented by this case, its relatively simple facts must be traversed initially.1 During the early evening hours of September 18, 1971, two teenage girls were involved in an altercation when one allegedly began to choke the other. Denise Stiles managed to free herself from her friend's grasp, and ran home to tell her mother, Jean Stiles Pasano, about the incident. Mrs. Pasano immediately reported her daughter's story to the West Haven police force, and two of its officers, Christopher Columbus Skeens and Robert J. Weber, began their search for the girl's alleged "attacker," Nancy Guckin. Near the corner of Noble Street and Washington Avenue in West Haven, Patrolman Weber spotted a group of teenagers, and learned that one of their number was Nancy.

After identifying the girl, Weber began to escort her to the patrol car. When she screamed for help, the assembled youngsters shouted their protests at Weber, and fifteen-year-old Thomas Turpin, one of the onlookers, attempted to come to her aid. As Turpin approached the car, Officer Skeens grabbed him from behind and, according to Turpin, clubbed him on the back of his skull with a nightstick. The resulting laceration was treated at a nearby hospital and required six stitches.

On November 7, 1972, Turpin filed suit against Skeens in federal court, claiming that the officer had used excessive force in restraining him, and thereby violated his civil rights under 42 U.S.C. § 1983. During the course of the trial, Officer Skeens contended that he and Weber merely threw Turpin aside, and that the youngster had sustained his head injury by striking the left rear side of the police car. Judge Newman, who tried the case without a jury, credited Turpin's version of the incident, which was corroborated by the testimony of six eyewitnesses. He awarded the youngster $3,500 in damages, a sum ultimately paid by the insurance carrier for the City of West Haven. The decision was publicized in the community and discussed by members of the West Haven Police Department. Turpin claims that this resulted in widespread animosity generated against him among the officers.

Spurred by the general interest in the case, the Board of Police Commissioners met to discuss Judge Newman's decision. Ultimately, the Board decided against disciplining Skeens, in spite of the court's determination that he had used excessive force. Indeed, Skeens was subsequently promoted. Turpin alleges that this action by the Board served to encourage members of the West Haven Police Department to believe that they could violate his civil rights with impunity.

This attitude, Turpin suggests, triggered the incident which lies at the heart of the instant lawsuit. On May 6, 1975, less than three months after Judge Newman's decision, Turpin was leaving Pickering's Store on the corner of Campbell Avenue and Noble Street in West Haven at about seven-thirty in the evening when he saw his friend, Walter Edwards, and decided to join him. The two companions, Turpin asserts, were standing there peacefully when Joseph Mailet, a West Haven police officer, recognized Turpin. Mailet, allegedly acting out of malice stemming from Turpin's successful suit against Skeens, arrested Turpin and Edwards for disorderly conduct. Officer Leslie Sweetman, who was parked in his squad car nearby, assisted Mailet with the arrest. After Turpin was processed and detained at the offices of the West Haven Police Department, he was released on a nonsurety bond. One month later, on June 12, 1975, a Nolle prosequi was filed by an assistant prosecuting attorney, thus terminating the proceedings against Turpin.

Turpin, claiming that the arrest violated his civil rights, commenced the instant action against the officers and the City of West Haven on July 25, 1975. Insofar as the two police officers were charged with wrongdoing, Turpin's suit was based on the provisions of 42 U.S.C. §§ 1983 and 1988, with federal jurisdiction asserted under 28 U.S.C. § 1343(3). The action against the City, on the other hand, was brought directly pursuant to the provisions of the fourteenth amendment, with jurisdiction grounded in 28 U.S.C. § 1331 the general federal question provision. Pendent claims against the City based on Connecticut law were also asserted.2 Turpin sought a compensatory recovery of $100,000, and an additional $100,000 in punitive damages.

The City moved for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, claiming that Turpin failed to state a claim against it. Judge Newman adopted the findings of Magistrate Arthur H. Latimer on this issue. The Judge held that, under the circumstances presented, a right of action could not be implied directly from the fourteenth amendment. He also dismissed the pendent state claims. Turpin, seeking an instant appeal, then moved successfully for the entry of a final judgment on the claims against the City under Rule 54(b) of the Federal Rules of Civil Procedure, the action against the individual defendants still continuing. In granting Turpin's motion, Judge Newman noted that over 30 lawsuits in the District of Connecticut presented claims similar to that pressed against the City of West Haven. This appeal was, accordingly, allowed.3

Turpin's decision to proceed against the City directly under the fourteenth amendment, invoking the jurisdictional provisions of 28 U.S.C. § 1331, results, of course, from judicial interpretations of 42 U.S.C. § 1983, the modern day codification of Section 1 of the Civil Rights Act of 1871. In 1961, the Supreme Court decided that § 1983 could not be used to impose liability in damages upon municipalities. Monroe v. Pape, 365 U.S. 167, 187-91, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). After an analysis of the provision's legislative history, Justice Douglas wrote that Congress could not have intended to include municipalities among the class of "persons" capable of being sued under the statute.4 Subsequently, the rationale of Monroe was logically extended to preclude § 1983 injunctive actions against municipalities.5 City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Accordingly, individuals seeking relief against municipalities for the deprivation of their civil rights have often turned directly to the fourteenth amendment. They have relied on the principle expounded in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), that, even in the absence of a statutory right of action, courts have the power to fashion common law remedies for constitutional wrongs.6

The facts in Bivens are enlightening. Six agents of the Federal Bureau of Narcotics were alleged to have invaded Webster Bivens's apartment without the authority of either a search or arrest warrant. If the charges were true, the conduct of the agents violated the fourth amendment. No remedy, however, was apparently available to Bivens for this violation of his constitutional rights. Since only employees of the federal government were involved, 42 U.S.C. § 1983, which, by its terms, applies only to "state action," was rendered inapplicable. And the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80, which would otherwise allow suits against the United States, then exempted all intentional torts.7 In sum, if Bivens was to be accorded any federal relief, his only recourse would be a damage action under the fourth amendment. Justice Brennan gave short shrift to the argument that petitioner should be relegated to his state remedies, noting,

"(W)here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Bell v. Hood, 327 U.S. at 684, 66 S.Ct. 773.

Bivens, supra, 403 U.S. at 392, 91 S.Ct. at 2002. He went on to stress that damages have historically been regarded as the ordinary remedy for an invasion of personal interests in liberty.

Few opinions have stirred as much debate as Bivens. It has led commentators to explore not only the precise scope of its holding but, more fundamentally, to inquire into the respective roles of Congress and the courts in fashioning remedies for constitutional wrongs. And it is clear to us, and to many others, that judicial power to redress constitutional grievances is not limited to the fourth amendment. Bivens, if anything, established that damages could flow from injuries caused by an invasion of other constitutional provisions.8 See Note, Remedies for Constitutional Torts: "Special Factors Counselling Hesitation", 9 Ind.L.Rev. 441, 449 (1976). Indeed, its rationale has been applied to cases arising under the first,9 fifth,10 sixth,11 eighth,12 ninth,13 and fourteenth14 amendments.

Underlying the evident readiness of courts to imply a remedy is the recognition, seldom clearly expressed, that the courts are doing no more than fulfilling their traditional common law function. See Monaghan, The Supreme Court, 1974 Term Foreword: Constitutional Common Law (hereinafter cited as Monaghan), 89 Harv.L.Rev. 1 (1974). Where Congress does not provide any remedy for the vindication of a right guaranteed by the Constitution, the Constitution itself may Require that the exercise of judicial power fill the void. See Kostka v. Hogg, 560 F.2d 37, 44-45 (1st Cir. 1977). In most instances, however, courts are free to imply remedies where the relief requested is merely appropriate to the vindication of the interest asserted. When one analyzes Bivens, he is driven to the conclusion that Bivens Decided that precise issue. The Court refused to accept the premise that a remedy must be necessary or indispensable to warrant its implication:

The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. Cf. J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 78 L.Ed. 142 (1933).

403 U.S. at 397, 91 S.Ct. at 2005. In such instances, courts are doing no more than creating structures for enforcement similar to those normally fashioned by legislatures. Monaghan, Supra, 89 Harv.L.Rev. at 28; Hill, The Bill of Rights and the Supervisory Power, 69 Colum.L.Rev. 181 (1969).

It is too late in the day to question whether the court can act in this fashion even in the absence of express congressional authorization. The development of the exclusionary rule and the required provision of Miranda warnings might well be examples of "common law" development.15 In his concurrence in Bivens, Justice Harlan recognized the appropriateness of this role for the courts, and likened judicial rulemaking to legislative activity:

In resolving that question, it seems to me that the range of policy considerations we may take into account is at least as broad as the range of those a legislature would consider with respect to an express statutory authorization of a traditional remedy.

403 U.S. at 407, 91 S.Ct. at 2010. The soundness of Justice Harlan's reasoning may be found in the explanation that the courts are not really impinging upon congressional authority when they act in the manner under discussion.16

In assuming its common law role, the court invigorates the political process. As Professor Monaghan has aptly noted, "the Court, in effect, opens a dialogue with Congress but one in which the factor of inertia is now on the side of individual liberty." Monaghan, Supra, 89 Harv.L.Rev. at 29. The legislature, at the least, becomes sensitive to those areas in which its own remedial scheme is lacking, and can use the court's determination as a focal point for the re-examination of the policy questions involved.17

The fourteenth amendment provides an apt context for the application of the court's common law powers. At its inception, the principles underlying the amendment were heralded as "the very spirit and inspiration of our system of government, the absolute foundation upon which it was established."18 If the judicial branch has an obligation, independent of Congress, to enforce the terms of any constitutional provision, certainly the fourteenth amendment should be foremost among them.

The City of West Haven suggests, nonetheless, that the language of the amendment requires a contrary result. It argues that since Section five19 explicitly accords Congress "the power to enforce by appropriate legislation" the provisions of the Amendment, the courts are precluded from doing so.20 In addition, the City contends that the first four substantive sections are little more than precatory.

To support this proposition, it resurrects dicta nearly a century old from Ex Parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880). The Court there indicated its acceptance of a severely restricted view of judicial power under the fourteenth amendment, going so far as to suggest that courts lack the power to declare state legislation in conflict with the fourteenth amendment. 100 U.S. at 345, 347. Almost a quarter century has passed since the Supreme Court's landmark opinion in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and it can no longer seriously be contended that the judiciary is relegated to so meager a role in enforcing the terms of the amendment.21 Brown and its progeny demonstrate that courts have and will play an enormous role in fashioning equitable remedies under the fourteenth amendment. And the courts have been anything but meek in requiring states and municipalities to reshape their institutions to conform with the dictates of the Constitution. See generally Chayes, The Role of the Judge in Public Law Litigation, 89 Harv.L.Rev. 1281 (1976). Since the language of the amendment does not suggest any distinction between the propriety of according equitable relief and damages,22 we fail to see how any differentiation of substance between the forms of relief can be justified.

The position taken by the City of West Haven also does not find any support in the legislative history of the amendment. The first draft of the provision was framed only in terms of a grant of power to Congress to secure the privileges and immunities of state citizens and equal protection for all persons.23 After three days of debate in the House of Representatives, it became clear that this original language could not secure enough votes for passage. B. Schwartz, Statutory History 191. A revised draft was then introduced, whose five sections contained not only a grant of power to Congress but a series of substantive prohibitions against the states. The significance of the change is that the proposed amendment incorporated four self-executing provisions barring the states from restricting civil rights. Representative Bingham, the author of the amendment, explained the import of the modification in subsequent debates on the Civil Rights Act of 1871:

Well might the gentleman inquire, as he does today, "What means that language if we adopted the amendment without power to enforce it?" . . . .Mr. Speaker, allow me to say, further, that by the text of the Constitution as you remember it, and as all thoughtful Representatives remember it, there are negative limitations upon the power of the States; as, for example, that no state shall make an Ex post facto law; . . . .

These are of the negative limitations on the power of the States in the original text of the Constitution. Does the gentleman undertake to tell me that they have not always been enforced against state constitutions and state statutes, and the judgment of the highest courts of the States, in the Supreme Court, under the twenty-fifth section of the act of 1789? Why sir, if I were to read the decisions that have been made in the exercise of this very power, under that law, enforcing these negative prohibitions upon States, the sun would go down before I had read even a syllabus of the cases. B. Schwartz, Statutory History 304-05.

Moreover, if we were to accept the City's argument that, independent of legislative action, courts lack the power to compel compliance with constitutional provisions containing congressional enforcement clauses, we would be emasculating much of the modern Constitution. An express grant of power to the legislative branch is not peculiar to the fourteenth amendment. It is contained in the thirteenth, fifteenth, eighteenth, nineteenth, twenty-third, twenty-fourth, and twenty-sixth amendments as well. Indeed, that language is also a part of the proposed equal rights amendment.

In rejecting the proposition that Section five is an implicit limitation on the court's powers, we do, of course, recognize that the enforcement provision has been accorded a special role in the constitutional framework. Congressional enactments empowered by Section five can override the proscriptions of the eleventh amendment, See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976),24 and perhaps even the tenth amendment, See National League of Cities v. Usery, 426 U.S. 833, 852 n.17, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976).25

Bivens instructs us, then, that this court has the power to imply a remedy for violations of the fourteenth amendment. Bivens expressly cautioned, however, that courts should tread warily when confronted with an "explicit congressional declaration" antithetical to the existence of a cause of action. Indeed, many courts, adhering to this proposition, have refused to allow recourse against municipalities for violations of the fourteenth amendment, asserting that Congress manifested its antipathy to such actions during the debates surrounding the passage of the Civil Rights Act of 1871 (now, § 1983). See, e.g., Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977); Pitrone v. Mercadante, 420 F.Supp. 1384 (E.D.Pa.1976); Smetanka v. Borough of Ambridge, 378 F.Supp. 1366 (W.D.Pa.1974); Perzanowski v. Salvio, 369 F.Supp. 223 (D.Conn.1974). Cf. Crosley v. Davis, 426 F.Supp. 389 (E.D.Pa. 1977).

Critics of implication rely primarily on the rejection of the Sherman Amendment in 1871. See Monroe v. Pape, 365 U.S. 167, 188, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). This amendment would have imposed strict liability upon municipalities for almost any form of private organized violence. It is worthwhile to recite the endless reach of that language, for so much has been made of the rejection of the Sherman Amendment:

That if any house, tenement, cabin, shop, building, or granary shall be unlawfully or feloniously demolished, pulled down, burned, or destroyed, wholly or in part, by Any persons riotously and tumultuously assembled together . . . the county, city, or parish in which any of the said offenses shall be committed shall be liable to pay full compensation to the person or persons damnified by such offense.

Cong. Globe, 42d Cong., 1st Sess., p. 663 (emphasis added). Counties, cities and parishes, responsible for violence committed within their confines, even by non-residents, would have been transformed into guarantors of the public peace. The amendment passed the Senate, but was twice rejected by the House of Representatives.

The Supreme Court, in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), relied on the rejection of the Sherman Amendment in holding that municipalities are not "persons" for the purposes of § 1983. Justice Douglas, in plumbing the source of the apparent congressional antagonism to municipal liability, suggested it derived from the legislature's fear that it had "no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of state law." 365 U.S. at 190, 81 S.Ct. at 485.

Others have found alternative explanations in the legislative history for the rejection of the amendment. Some representatives, for example, were not willing to accept a measure so extreme as to impose liability for purely private acts. Others were of the view that the proliferation of such damage actions might well bankrupt municipal treasuries. Nearly all the objections to the amendment adverted to its breadth and its dubious constitutionality. See Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922, 945-51 (1976); Comment, 57 Calif.L.Rev. 1142, 1164-70 (1969). Certainly, it is difficult to draw any reasoned conclusion regarding Congress's attitude toward municipal liability for the constitutional torts of public employees from the fate of the Sherman Amendment.26

Some who have accepted the notion that § 1983 evidences an explicit policy against judicial imposition of liability upon municipalities, most notably the First Circuit in Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977), do not merely rely on the 1871 debates and Monroe. Substantial emphasis is placed on two recent decisions by the Supreme Court, Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976) and Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), both addressing issues left unresolved by Monroe. The opinions, however, ultimately add little to the Monroe analysis. In Aldinger, where an action had been brought under § 1983 against several officers of Spokane County, an attempt was made to have the federal court exercise pendent jurisdiction over state claims against the County itself. The sole initial source of jurisdiction was § 1343(3), the jurisdictional counterpart of § 1983. The Court declined to adopt this "pendent party" theory, basing its decision, in part, on a determination that such an outcome would conflict with § 1983:

Parties such as counties, whom Congress Excluded from liability in § 1983, and thereby by reference in the grant of jurisdiction under § 1343(3), can argue with a great deal of force that the scope of that "civil action" over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them Back within that power merely because the facts also give rise to an ordinary civil action against them under the law.

427 U.S. at 17, 96 S.Ct. at 2421. Given that Congress did not view § 1983 as authorizing suits against municipalities (for whatever reasons), the Court correctly perceived the anomaly of bootstrapping state claims into a federal court by the use of § 1983's penumbra of pendent jurisdiction.

In Moor, the Court was presented with the question whether § 1988, enacted to fill "gaps" in the federal civil rights law through the adoption of appropriate provisions of state law, should be construed to permit a type of liability explicitly rejected in the § 1983 debates. The petitioners in that case sought to incorporate into federal law California statutory provisions making a county vicariously liable for the wrongful acts of its employees. The limited issue presented, as characterized by Justice Marshall for the Court, was whether in " § 1988 Congress has effectively mandated the adoption of California's law of vicarious liability into federal law." 411 U.S. at 701, 93 S.Ct. at 1791. In rejecting this contention, the Court observed that the judicial implication of remedies under § 1988 should be "restricted to those contexts in which Congress has in fact authorized resort to state and common law." Id. In short, Moor stands for the not particularly remarkable proposition that Congress itself should not be viewed as authorizing, under a remedial provision, measures it elsewhere declined to adopt.27

The Court's rejection of attempts to expand the scope of § 1983 through the back door, by a forced interpretation of other statutory enactments, does not reflect Congress's antipathy to the remedy in question. To accept the "antipathy" argument would lead us into a Cul de sac. We would be forced to accept the objectionable concept that Congress's failure to provide a remedy for every conceivable constitutional violation demonstrates a belief by Congress that certain injustices must remain unredressed. As Professor Nowak points out,

(W)hile the Civil Rights Bill of 1871 was sweeping in scope, it was considered to be a first step in the enforcement of the principles of the fourteenth amendment. . . . Thus, it would seem that the proponents of the bill intended to provide civil and criminal sanctions against individuals who engaged in activities designed to deprive some individuals of the rights guaranteed by the amendment and thought it advisable to see if these provisions were effective before determining whether any sanctions against governmental bodies were needed in order to enforce the amendment.

Nowak, Congressional Power, 75 Colum.L.Rev. at 1467. Professor Nowak's thesis has much to commend it. Section 1983 represented Congress's initial foray into the area of civil rights. That it was wary of going too far Ab initio should not be read as an intention to create a prohibition In perpetuo against judicial action expanding the scope of available relief.

In similar fashion, we are not persuaded to a contrary result by the fact that various bills introduced in Congress to supplant the rule of Monroe v. Pape have failed to gain passage.28 In reviewing these inchoate legislative acts, it is difficult, if not impossible, to derive from them a definitive determination of legislative intent.29 While it is true that Congress has had 16 years to overrule Monroe, we fail to see how congressional inaction in this area would abridge our powers under Bivens. It is an exercise in frustration to attempt to read meaning into Congress's inactions in this and so many other areas that, as courts have suggested time and again, cry out for its action. We do not pretend to understand how Congress devises its priorities. And, if we may hazard a conjecture, it is likely that Congress will not move with haste, or, indeed, at all, to negate our ruling today.

In sum, we take issue with those who find guidance in congressional inaction. Congress acts only by affirmatively passing laws, a process which requires the concurrence of both Houses, and, in most instances, the approval of the President. Admittedly, in interpreting an enacted provision, it may be appropriate to review the legislative history of the measure, including provisions that were earlier rejected. There, of course, one is merely determining congressional intent as embodied in positive law. Nothing in this principle, however suggests that legislative silence30 can in any way be viewed as an expression of congressional "intent," let alone the sort of "explicit congressional declaration" required by Bivens. As the Supreme Court has observed, "(t)he search for significance in the silence of Congress is too often the pursuit of a mirage." Scripps-Howard Radio v. FCC, 316 U.S. 4, 11, 62 S.Ct. 875, 880, 86 L.Ed. 1229 (1942). See generally H. M. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1381-1401 (tent. ed. 1958); Mishkin, Some Further Last Words on Erie the Thread, 87 Harv.L.Rev. 1682, 1687-88 (1974).

In light of the express reservation by the Supreme Court of the question before us, Mt. Healthy City School District v. Doyle, 429 U.S. 274, 277-78, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977),31 and our view that we have the power to imply a remedy under the fourteenth amendment, we must proceed to evaluate the "appropriateness" of subjecting a municipality to liability for the actions of public servants. In defining the parameters of appropriateness, our starting point again must be Bivens. There, the Court permitted a remedy against federal agents who, by their own actions, violated the Constitution. See Bivens, supra, 403 U.S. at 397, 91 S.Ct. 1999.32 The clear intendment of Bivens is that those directly responsible for unconstitutional behavior may be called to task for their wrongful acts.

It is no longer open to debate that, if the municipality is a proper party on which to impose liability, damages are an appropriate remedy for the alleged illegal arrest of Turpin. See Bivens, supra, 403 U.S. at 395, 91 S.Ct. 1999 at 2004. "Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." Id. Turpin alleges a violation of rights protected by the fourth amendment that is made enforceable against the states through the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). As such, Turpin's claim stands on a common constitutional footing with the claim pressed in Bivens.33

The concept that a municipality itself, as well as its employees, can violate the strictures of the fourteenth amendment, is a meaningful one.34 While a municipality, of course, can only act through its agents, Adekalu v. New York City, 431 F.Supp. 812, 819 (S.D.N.Y.1977), the actions and policy determinations of those in "high office" must be treated as the conduct of the governmental entity.35 Accordingly, we hold that a damage action can be maintained against a municipality to redress injuries resulting from those actions of its employees that have been authorized, sanctioned or ratified by municipal officials or bodies functioning at a policy-making level.36 Under such circumstances, it is clear that the municipality, no less than the employee, has violated the Constitution.37

While a federal remedy already exists, in most instances, against the employee under § 1983, the municipality cannot presently be made accountable for its Own wrongful acts. It seems a most elementary principle of logic that two remedies should be provided for two, distinct, constitutional wrongs. The force of this syllogism is magnified by the enhanced possibility of injury resulting from wrongful acts authorized or sanctioned by a municipality. The Court in Bivens noted that an agent acting in the name of the United States is possessed of vastly greater power than an individual trespasser acting in his own name. Certainly, the resources of an entire city, when directed and channelled by those in positions of authority, are far more potent than the force of a single, low-level employee.

Policy considerations suggest the appropriateness of the course we have taken. A municipality is ordinarily not judgment-proof, and may provide the only source of recovery for an individual injured by a violation of his constitutional rights. Moreover, a municipality is well-suited to spread the cost of compensating victims of tortious governmental behavior, and is arguably in the best position to reduce the incidence of such behavior by promulgating corrective policies. See G. Calabresi, The Cost of Accidents (1970). At the same time, by permitting liability only in those instances where the municipality is directly responsible for the unconstitutional behavior, the drain on the local fisc will be minimized. In a circuit whose contours include the City of New York, we are not insensitive to the financial plight of local governmental bodies.38 In short, while allowing recovery for unconstitutional behavior on the part of the municipality is fair and reasonable, we should not needlessly expand recovery at the expense of already overburdened taxpayers.

To further safeguard local finances, some have suggested that a specialized form of immunity be granted municipalities faced with actions of such extraordinary dimensions as to significantly threaten municipal treasuries. See Damage Remedies, supra, 89 Harv.L.Rev. at 958. Obviously, we are not presented with facts raising this problem, and therefore decline to express our view as to the circumstances, if any, under which such immunity might be appropriate. Similarly, the question whether the immunity accorded officers in the "good faith" exercise of their duties, See, e.g., Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), should be extended to municipalities is also not presented by the instant facts.39 Turpin's suit is premised on the contention that the Board of Police Commissioners knowingly encouraged members of the department to violate Turpin's civil rights.

In any event, we decline Turpin's invitation to impose liability on the City under a theory of Respondeat superior. Admittedly, some courts have concluded that a municipality should be liable for any constitutional violation committed by an employee in the course of his employment, even if not sanctioned by a policy-making entity. See, e.g., Santiago v. City of Philadelphia, 435 F.Supp. 136 (E.D.Pa.1977); Williams v. Brown, 398 F.Supp. 155 (N.D.Ill.1975). Such a determination, we believe, is fundamentally inconsistent with the import of Bivens. To the extent that one allows recovery under a theory of Respondeat superior, an additional remedy is being created for a single constitutional infraction. It is not a case of redress for two distinct constitutional violations.

This proposition is well illustrated by Dean Prosser's painfully clear description of the nature of derivative liability. An individual can be held liable for another's negligence even though he "has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it. . . . The foundation of the action is still negligence, or other fault, on the part of (the Primary actor); and all that the law has done is to broaden the liability for that fault by imposing it Upon an additional, albeit innocent, defendant." W. Prosser, Handbook of the Law of Torts 458 (4th Ed. 1971) (emphasis added). Since the Sine qua non of Bivens is the imposition of liability upon those actors who can meaningfully be termed "culpable," it is inappropriate to permit a recovery of damages from those who, by any standard, are innocent of wrongdoing. Courts should only create a cause of action where none exists or the need for one is demonstrated. We cannot, accordingly, ignore the fact that Congress has provided a primary remedy under § 1983 against the employees themselves, and has chosen not to impose vicarious liability upon the municipality.

Moreover, other factors counsel against our extension of the remedies already provided by Congress. There are, to be sure, lingering doubts about our power to impose vicarious liability upon municipalities. Cf. Monroe v. Pape, 365 U.S. 167, 191, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).40 And, as we noted earlier, a drastic extension of existing law might well lead to serious drains upon municipal treasuries. The incorporeal spectre which so troubled many members of the House during the debates on the Sherman Amendment would take on substance, particularly in light of the increased involvement by local government in the daily affairs of its citizens. These concerns have led most courts to reject the concept of implied vicarious liability. Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977); Jamison v. McCurrie, 565 F.2d 483 (7th Cir. 1977); Adekalu v. New York City, 431 F.Supp. 812 (S.D.N.Y.1977); McDonald v. State of Illinois, 557 F.2d 596 (7th Cir.), Cert. denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453 (1977). Cf. Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977).

In rejecting Respondeat superior, we have created a harmonious legislative and judicial scheme for the enforcement of the fourteenth amendment, and thereby adhere to the teaching of Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), that implied remedies must, in nature and scope, be "consistent" with the legislative enactments already governing an area.

It is clear that notions of Respondeat superior have not been incorporated into § 1983 to permit the imposition of liability in damages upon supervisory personnel for the wrongs of their subordinates: "The rule in this Circuit is that when monetary damages are sought under § 1983, the general doctrine of Respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required." Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973). Of course, since a municipality, the true employer for purposes of vicarious liability, cannot be made a defendant under § 1983, the failure to permit damage actions against supervisory workers does not constitute an appropriate test of Congress's views on the adoption of notions of Respondeat superior.

In contrast, however, an injunctive action under § 1983 against supervisory personnel is, in a very real sense, a suit against the municipality itself. See Monell v. Dep't of Social Services, 532 F.2d 259, 265 (2d Cir. 1976), Cert. granted, 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977). As such, the disposition of this type of action, typified by the facts of Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), provides guidance in the cognate circumstances before us. In Rizzo, residents of the Philadelphia community alleged that various members of the City's police force had committed unconstitutional acts in the course of fulfilling their duties. Under § 1983, they sought broad injunctive relief against various city officials, including the institution of a mechanism for the disciplining of police officers. The plaintiffs, however, did not demonstrate that the random actions of the police officers were part of a concerted plan or pursuant to any departmental policy express or otherwise. This failure to prove any 'causal link' between individual incidents and the behavior of those in authority was fatal to their claim. In permitting municipal liability only where the governmental entity authorizes, sanctions, or ratifies the actions of its employees, we are creating a judicial remedy in concert with the standards applied to actions under § 1983.

In applying the rule we have today articulated, we are mindful of the precept that a claim, especially one implicating civil rights, "should not be dismissed at the pleadings stage unless it appears to a certainty that plaintiffs are entitled to no relief under any state of the facts." Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir. 1970).41 When so viewed, we find the allegations in Turpin's complaint sufficient to state a cause of action. His claim is premised, not on a set of random circumstances, as was the case in Rizzo, but rather on concerted behavior by the supervisory body of the West Haven Police Department. In essence, Turpin alleges that the Board of Police Commissioners, aware that the growing animus towards Turpin presented a threat to his liberties, acted in such a way as to encourage the expression of these feelings of hostility against him. Not only did the department fail to take any disciplinary action against Skeens, it rewarded him with a promotion.

We see little to be gained from arguing whether the Board's meeting to discuss possible disciplinary sanctions against Skeens constituted affirmative action as opposed to inaction. Where the actions of subordinate employees are concerted, the failure of supervisors to control their behavior may, in effect, create a De facto departmental policy. See, e.g., Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969); Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971). In the context of this case, it would not be impossible to conclude that the West Haven Police Department had an "implicit policy" of encouraging harassment of Turpin. But, we do not pass on the merits of this case. We are merely dealing with words in a complaint and whether its allegations are sufficient to permit the action to go forward.

We accordingly remand for further proceedings consistent with the views expressed herein. Given our disposition of Turpin's right of action under the fourteenth amendment, a reconsideration of the dismissal of his pendent state claims is warranted. We leave that task to the discretion of the district judge. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

In sum, therefore, we have today decided that a municipality can be liable in damages for the unconstitutional actions of its employees. Recognizing, however, that remedies should be implied only against those who have themselves contravened the strictures of the fourteenth amendment, we limit the action to those instances in which the municipality is itself a wrongdoer. This governmental culpability arises whenever the unconstitutional actions of employees are authorized, sanctioned, or ratified by municipal officials or bodies functioning at a policy-making level. We expressly decline to impose liability on a municipality, under a theory of Respondeat superior, for each and every wrongful act undertaken by its workers. Accordingly, while we have woven an important thread, heretofore missing, into the fabric of fourteenth amendment protections, we have done so cognizant of the traditional prerogatives of Congress, and of our responsibility to give substance to the Constitution. In performing this task, we have not been unmindful or insensitive to the increasing pressures daily being imposed upon municipalities.

The parade of horribles envisaged by the dissent prompts me to write this brief concurrence which in no respect qualifies my concurrence in Chief Judge Kaufman's fine majority opinion.

That parade, consisting of unlimited municipal liability for the countless unconstitutional acts committed across the land by municipalities' policymaking bodies assumes a state of lawlessness and disregard of constitutional rules that is reminiscent of the early days of Tombstone, Arizona. This assumption is unfair to the municipalities as well as to their officials. The parade demonstrates an unawareness, if not an open disregard, of insurance, a fundamental institution in American commerce designed to spread risk. It also overlooks the abolition of municipal immunity for torts which has taken place in some forty states over the last two or three decades, both by statute and by court decision.1 Why it is permissible for municipalities to be responsible for nonconstitutional torts, say an automobile death caused by a city truck operator driving negligently, but it is "staggering" if they are not immune from supposed "incalculable liability" for the deprivation of fundamental personal rights protected by the Fourteenth Amendment2 is a little difficult for me to follow.

The dissent's broadbased frontal attack premised on excerpts from sources as diverse and conflicting as Eugene Rostow and Raoul Berger3 on what it perceives as "judicial activism" is better answered in the pages of a law review than in the context of a judicial opinion. Still it seems worthwhile to call attention to the wisdom of Mr. Justice Cardozo, no flaming activist:

The great ideals of liberty and equality are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles, by enshrining them in constitutions, and consecrating to the task of their protection a body of defenders.4

He also counseled that "the power to declare the law carries with it the power, and within limits the duty, to make law when none exists . . . ."5 Since it is a novel question whether the Fourteenth Amendment permits a direct action against municipalities for their unconstitutional acts, "we are not fettered by an inveterate course of decisions upon it. We are at liberty . . . to decide it upon reason and not by precedent." Conner v. Long, 104 U.S. 228, 243, 26 L.Ed. 723 (1881) (Matthews, J.).

With these guiding principles in mind, I turn to several technical points which illustrate that the dissent's historical and legal analysis is somewhat askew. (1) Fisher v. City of New York, 312 F.2d 890 (2d Cir.), Cert. denied, 374 U.S. 828, 83 S.Ct. 1866, 10 L.Ed.2d 1051 (1963), quoted in the lead paragraph of the dissenting opinion, was decided eight years before Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), recognized a direct right of action under the Bill of Rights for at least Fourth Amendment violations. The Second Circuit panel deciding Fisher thus did not have the benefit of the Bivens analysis, much less that of the many commentaries and decisions on Bivens -type questions. To point to Fisher is, therefore, a little disingenuous, to say the least.

(2) The dissent fails adequately to treat the limitations built into the right to damages against municipalities. One commentator has pointed out that not only must the interest to be remedied be (a) "protected by the Constitution" and (b) "produced by 'state action' within the meaning of the fourteenth amendment" but (c) the action must also be the "sort of abuse of government power that is necessary to raise an ordinary tort by a government agent to the stature of a violation of the Constitution." Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922, 952 (1976) (hereinafter Note, Damage Remedies ). This third criterion, which has been set out in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), Jones v. Marshall, 528 F.2d 132, 137-39 (2d Cir. 1975) (use of deadly force against escaping felon not a deprivation of a constitutional right), and Johnson v. Glick, 481 F.2d 1028, 1032-33 (2d Cir.), Cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) (correctional officers' conduct must shock the conscience), eliminates both de minimis cases and even some substantial cases such as, for example, those for a first false arrest. See also Meredith v. Arizona, 523 F.2d 481, 483 (9th Cir. 1975). Another limiting factor is the jurisdictional amount of $10,000 in 28 U.S.C. § 13316 which probably precludes cases involving many deprivations of free speech, free assembly and Fourth Amendment rights. See, Note, Damage Remedies, supra at 960 n.189. And the Supreme Court's recent opinion, Carey v. Piphus, --- U.S. ----, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), requiring compensable loss over and above constitutional deprivation, is a major limitation. Other limitations may arise or will occur to the reader. That they are not recognized in the dissenting opinion is unfortunate.

(3) The dissent's reliance upon the speeches of Congressmen Bingham and Stevens in introducing the proposed Fourteenth Amendment to the House of Representatives is totally misplaced. Bingham's original bill became the fifth section of the Amendment. But, as finally adopted, the Amendment contained five sections, the first four of which the dissent would evidently prefer to ignore. Of course the draftsmen of the Fourteenth Amendment "intended to give Congress the power to enforce its provisions," as the dissent states. Post at 175. But since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510 (1913), it is well established that the other sections of the Amendment have their own efficacy, irrespective of Congressional enactment: they act as a shield against past local acts of unconstitutionality as well as a sword against future local acts of unconstitutionality.7 A more complete reading of one source cited by the dissent, B. Schwartz, 1 Statutory History of the United States: Civil Rights, covering pages 184-333, and especially pages 272-73 and 306 (1970), will prove beyond refutation that more was intended by the Framers of the Fourteenth Amendment than merely enabling Congress to make laws carrying it into effect. See also C. Fairman, 6 History of the Supreme Court of the United States 1270-1300 (1971).

(4) So too with Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879). That case obviously has validity for the proposition that the reach of Congress's power under Section 5 of the Fourteenth Amendment is substantial, as explicated in Fitzpatrick v. Bitzer, 427 U.S. 445, 453-56, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). It has, however, not had since Brown v. Board of Education, supra, or for that matter Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), any validity for the proposition that the Amendment can be enforced Only if Congress acts. That is the Ex parte Virginia proposition which the dissent would advance. Ex parte Virginia, supra, may be alive and well in the dissent's eye, but its dictum quoted by the dissent, Post at 175, is dead and, hopefully, buried. Of course, this presupposes that Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), overruled in Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956) (per curiam), is also no longer good law.

(5) Professor Tribe's treatise is referred to by the dissent. At footnote 16 the dissent quotes his reference to certain critics of the doctrine of judicial review. Professor Tribe's analysis of the criticism should be noted as well:

Initially, the critics may be evaluated in their own terms. Their arguments rest ultimately upon a dichotomy between a democratic political process and an antidemocratic adjudicatory process. It is this dichotomy which creates the problem of legitimacy for judicial review, and it is this dichotomy which the critics seek to bridge. A realistic analysis of judicial and political institutions, however, might suggest that the dichotomy is more metaphorical than real. Certainly, the Constitution does provide for an independent judiciary, by granting article III judges a fixed salary and life tenure, and by making congressional removal, at least, quite difficult. The process of appointment, however, is entirely political, and the sometimes quite rapid turnover in the Supreme Court's membership suggests that the federal judiciary may be more capable of adapting to changes in the political consensus than the notion of an independent judiciary would immediately suggest. Moreover, it is not ultimately true that constitutional decisions are beyond the reach of democratic politics: there is, after all, the process of constitutional amendment, a process which is again almost purely political, and which has in fact been used successfully on four occasions to override Supreme Court decisions. More fundamentally if less dramatically, the Court's power to move beyond a current consensus is circumscribed by its institutional incapacity to lead where others are too reluctant to follow. If judicial review thus may be somewhat more democratic than its stereotype, it may also be true that the democracy of legislative and executive politics is overstated. The point does not require much development: the ways in which representative democracy in practice diverges from the ideal are well-known. The result then is an imperfectly antidemocratic judicial process and an imperfectly democratic political process; the conclusion which this result suggests is that, Contra the critics, it cannot be consent which is the sole touchstone of legitimacy.

L. Tribe, American Constitutional Law 49-51 (1978) (footnotes omitted).8

(6) One further point, though others could be made; the dissent emphasizes that "(j)udges should consider the economic and social consequences of their decisions and should gauge the wisdom of their acts by the results which are likely to ensue." Post at 182. I agree wholeheartedly. Of course, by this the dissent admits that value judgments do ultimately, and especially in hard cases,9 play a role, even in constitutional adjudication. I wonder how that admission squares with the dissent's purported eschewing of "judicial activism," "judicial legislation" and "judicial autocracy." In the end, it is the dissent's value judgment based upon "economic and social consequences" including "incalculable liability" that prompts the dissent to decide as it does. Different value judgments motivate the majority to decide a different way. I believe the dissent is entitled to its judgment without pejoratives. I regret that the dissent does not play by the same rules.

VAN GRAAFEILAND, Circuit Judge (with whom MULLIGAN, TIMBERS and MESKILL, Circuit Judges, concur), dissenting:

In Fisher v. City of New York, where plaintiff's complaint seeking money damages was dismissed, this Court said:

Insofar as plaintiff's claim is based, not on the Civil Rights Act, but directly upon Section 1 of the Fourteenth Amendment to the United States Constitution, we affirm on the ground that plaintiff has not stated a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

312 F.2d 890, 891 (2d Cir.), Cert. denied, 374 U.S. 828, 83 S.Ct. 1866, 10 L.Ed.2d 1051 (1963).

Our Brothers in the majority have now arrived at a completely contrary holding. In doing so, they do not tell us whether Judges Medina, Waterman and Moore erred in deciding Fisher as they did or whether these able judges were simply interpreting a different Constitution from the "modern Constitution" which the majority herein purport to construe.

The majority justify their holding by stating that they are simply creating a "(structure) for enforcement similar to those normally fashioned by legislatures." They say that they are "(invigorating) the political process," that they are indulging in "judicial rule-making" which they liken to "legislative activity," and that they are thus opening a "dialogue with Congress."1 With all due respect for our Brothers' good intentions, we do not believe that a decision of such incalculable impact as the one they now make can be justified as simply the opening of a "dialogue with Congress"2 or that it comports with this Court's constitutional role in a democratic society.

* Commentators who advocate the judicial adoption of a "modern Constitution" tend to look with disdain upon the intentions of those who labored so hard to frame the written document. That standards of interpretation should be based upon these intentions is labeled as a "filiopietistic notion" completely out of place in what these advocates are convinced is a more enlightened age.3 Judges are more circumspect. Rare indeed is the judge who will concede that his decision departs in the slightest from the meaning and intent of the carefully prepared text. The American public must be "mercifully soothed" into a belief that each judicial pronouncement, no matter how autocratic, is made in compliance with the people's constitutional mandate.4 However, a court which pays only lip-service to a "continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms,"5 is derelict in fulfilling the obligations so carefully imposed upon it by the framers of our Constitution. Consistent with this belief, we deem it important to reexamine, even though briefly, the role that the federal judiciary was designed to play in our democratic society.6

Students of constitutional history are agreed that one of the primary factors which motivated the authors of our Constitution was the fear of unchecked power in the institutions which they created.7 It is clear, moreover, that this apprehension was not directed against the legislative branch alone.8 Unlimited judicial power was to be guarded against, and this meant, among other things, that the judiciary was to be precluded from participating in the legislative process.9 "Judicis est jus dicere non dare"10 was an established maxim of the English law which served as a guide and inspiration for the constitutional framers. Rufus King, one of the Constitutional delegates, stated "that the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation."11

One may wonder how we have moved from the clearly documented position of the framers of the Constitution to the position taken by the majority herein, as illustrated in the above quoted passages from Chief Judge Kaufman's opinion. The answer is that, as a practical matter, the only restraint upon the power of the federal judiciary is that which is self-imposed.12

One need only skim through the all too numerous Supreme Court dissents to recognize that on occasion judicial activism has been checked with a very loose rein.13 Sometimes this has pleased the so-called conservatives; at other times it has gratified the so-called liberals. During the early decades of the twentieth century, those who are today's staunchest supporters of judicial activism were the most vocal critics of the Supreme Court's "usurpation" of congressional powers in striking down social and welfare legislation.14 When the focus of the judiciary swung from property rights to personal rights, a new and different set of critics came to the fore.15 The issue, as these critics see it, is not one of liberalism versus conservatism, but one of representative democratic government versus judicial autocracy.16

It is obvious that the majority herein, in an attempt to avoid the charge that their decision is undemocratic, have opted, lock, stock and barrel, for the concept of a "constitutional common law" espoused by Professor Monaghan.17 Professor Monaghan asserts that due process holdings may be either "pure" constitutional or "quasi"-constitutional in nature, or they may be broken down into pure and quasi-constitutional components. Pure constitutional holdings, he says, may be modified only by constitutional amendment. As to the quasi-constitutional holdings which he calls the "common law" of the Constitution, Congress is now to play the "checks and balances" role which the constitutional framers intended for the Supreme Court. As Professor Monaghan puts it, "(W)here the Court's rule is perceived to have gone too far, it can be rejected or modified by the political process without the necessity of a constitutional amendment."18

Unfortunately, calling the end product "constitutional common law" does not change the nature of the process by which it is reached. That, purely and simply, is judicial legislation, defined euphemistically by the majority as opening a "dialogue with Congress" or "invigorating the political process." "Invigoration" means that courts are to take the legislative initiative, with Congress following docilely behind, confronted after each judicial decision with the problem of deciding whether the court was legislating (constitutional common law) or judging (pure constitutional law). When the majority say that Congress is unlikely to negate its ruling in this case, they do more than "hazard a conjecture." If the lay members of Congress can determine what part of the majority's holding is "pure" constitutional law and what part is "constitutional common law," they are more perceptive than the writer of this opinion.19

In any event, the majority do not answer the charge of over-reaching by conceding that Congress may have the right to "reverse" its decision in whole or in part. The issue here is not whether any part of the majority's holding can be discarded by Congress; it is whether the American people, speaking through their Congress and their written Constitution, have authorized this Court to permit an award of damages against municipalities directly under the Fourteenth Amendment. We are satisfied that anyone who reads the history of this Amendment and of 42 U.S.C. § 1983 without "a preconceived determination to attain a particular constitutional goal"20 will conclude that they have not.

In the seminal case of Monroe v. Pape, 365 U.S. 167, 180, 81 S.Ct. 473, 480, 5 L.Ed.2d 492 (1961), the Court, speaking of the Ku Klux Klan Act of April 20, 1871, now in part § 1983, said, "It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts . . . ." In Mitchum v. Foster, 407 U.S. 225, 239, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972), the Court said, "Section 1983 opened the federal courts to private citizens, offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation." In Lynch v. Household Finance Corp., 405 U.S. 538, 543, 92 S.Ct. 1113, 1117, 31 L.Ed.2d 424 (1972), the Court said, "In fact, the Congress that enacted the predecessor of §§ 1983 and 1343(3) seems clearly to have intended to provide a federal judicial forum for the redress of wrongful deprivations of property by persons acting under color of state law."21 If these were correct statements of the law, and we conclude that they were, there was no federal right of action directly under the Fourteenth Amendment. The history of the enactment of the Fourteenth Amendment fully supports this conclusion.

This Amendment had its genesis in the Civil Rights Act of 1866, 14 Stat. 27, which was passed over President Johnson's veto on April 9th of that year. This Act provided that all citizens, regardless of color, shall have the same right "to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property . . . ." Violation of the Act by any "person" under color of law was made a misdemeanor, and federal courts were given jurisdiction of all causes, civil and criminal, arising out of the Act.

Fearful that the Act might be repealed by a subsequent Congress and in doubt as to its constitutionality, its supporters pushed actively for a constitutional amendment along similar lines.22 In February 1866, Congressman Bingham, one of those who questioned the constitutionality of the Civil Rights Act of 1866, introduced a bill in the House proposing the following constitutional amendment:

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.23

Although this bill was not passed, its similarity to § 5 of the Amendment which was submitted to the States for ratification on June 13, 1866, is readily apparent.

Equally apparent were the intentions of the supporters of the proposed Amendment. Speaking on behalf of this original bill, Congressman Bingham said, "I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights . . .."24 Thereafter, Congressman Stevens, in introducing the proposed Amendment to the House, said, "(T)he Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate Equally upon all."25 Senator Howard, who introduced the proposed Amendment in the Senate, said of § 5, "It casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendments are carried out in good faith, and that no State infringes the rights of persons or property. I look upon the clause as indispensable for the reason that it thus imposes upon Congress this power and this duty."26 Public opinion, at least in the North, was that the Fourteenth Amendment "gave Congress the power to define and secure the privileges of citizens of the United States."27

Clearly, the draftsmen of the Fourteenth Amendment intended to give Congress the power to enforce its provisions. The Supreme Court acknowledged this to be so in Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880). Speaking of § 5 of the Fourteenth Amendment, the Court said:

All of the amendments derive much of their force from this latter provision. It is not said the Judicial power of the general government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. It is not said that branch of the government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to Enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the amendments fully effective. Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission, to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.

Id. at 345-46 (emphasis in original).

Although the majority dismiss Ex parte Virginia out of hand as "resurrected" authority, eminent Supreme Court justices have treated it more kindly. Eighty-six years after Ex parte Virginia, Justice Black, dissenting in Harper v. Virginia Board of Elections, cited it with obvious approval and said:

Moreover, the people, in § 5 of the Fourteenth Amendment designated the governmental tribunal they wanted to provide additional rules to enforce the guarantees of that Amendment. The branch of Government they chose was not the Judicial Branch but the Legislative.

Thus § 5 of the Fourteenth Amendment in accordance with our constitutional structure of government authorized the Congress to pass definitive legislation to protect Fourteenth Amendment rights which it has done many times, E.g., 42 U.S.C. § 1971(a). For Congress to do this fits in precisely with the division of powers originally entrusted to the three branches of government Executive, Legislative and Judicial.

383 U.S. 663, 678-80, 86 S.Ct. 1079, 1088, 16 L.Ed.2d 169 (1966).

In 1966, Justice Brennan, speaking for the Court in Katzenbach v. Morgan, also cited Ex parte Virginia with approval and said:

A construction of § 5 that would require a judicial determination that the enforcement of the state law precluded by Congress violated the Amendment, as a condition of sustaining the congressional enactment, would depreciate both congressional resourcefulness and congressional responsibility for implementing the Amendment.

384 U.S. 641, 648, 86 S.Ct. 1717, 1722, 16 L.Ed.2d 828 (1966) (footnote omitted).

Four years later, in Oregon v. Mitchell, Justice Douglas added:

Equal protection became a standard for state action and Congress was given authority to "enforce" it. See Katzenbach v. Morgan, 384 U.S. 641, 647, (86 S.Ct. 1717, 16 L.Ed.2d 828). The manner of enforcement involves discretion; but that discretion is largely entrusted to the Congress not to the courts.

400 U.S. 112, 135, 143, 91 S.Ct. 260, 274, 27 L.Ed.2d 272 (1970) (separate opinion).

As recently as 1976, Justice Rehnquist, writing for the Court in Fitzpatrick v. Bitzer, spoke of Ex parte Virginia in the following language:

The impact of the Fourteenth Amendment upon the relationship between the Federal Government and the States, and the reach of congressional power under § 5, were examined at length by this Court in Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1880).

427 U.S. 445, 453, 96 S.Ct. 2666, 2670, 49 L.Ed.2d 614 (1976). The Court further stated:

In that section Congress is expressly granted authority to enforce "by appropriate legislation" the substantive provisions of the Fourteenth Amendment . . . .

Id. at 456, 96 S.Ct. at 2671.

If the foregoing quotations have any meaning, Ex parte Virginia has not been "resurrected" by appellee; Ex parte Virginia has never been dead.

We are not met in this case with the interesting question of whether this Court might create municipal liability if Congress had not already acted. Congress has acted.28 It promulgated the Ku Klux Klan Act of 1871, whose "primary purpose" was to enforce the provisions of the Fourteenth Amendment,29 and in that Act it excluded municipalities from liability.30 Although Congress may have been mistaken in believing that it was without power to make municipalities liable for the unlawful acts of its agents, "we must construe the statute in light of the impressions under which Congress did in fact act . . . ."31 We are concerned with the intent of Congress, not with its motive. Moreover, there has been no indication that Congress has changed its mind.

The majority opinion notes that Congress had failed to overrule Monroe v. Pape, supra, in the sixteen years since that case was decided. Yet, reasoning that congressional silence is a poor indicator of congressional intent, the majority decline to "find guidance in congressional inaction." One may well ask how this squares with the majority's earlier statement that they wish to conduct a "dialogue" with Congress. One may also ponder how it is that a court which is prepared to equate inaction upon the part of police officials with a "De facto departmental policy" can find no guidance whatever in congressional inaction.

There are several indications that Congress is not displeased with Monroe v. Pape. Although bills to overrule it have been introduced repeatedly since 1962,32 the only one even to reach the hearing stage was S. 35.33 Testimony on S. 35 was heard on February 8 and 9 of this year, and additional hearings have been scheduled.34

The failure of Congress to take action on any of the bills cannot be explained by congressional failure to give attention to the subject of civil rights. Since Monroe v. Pape, Congress has passed at least seven acts which deal in whole or in part with civil rights.35 Significant among these statutes is Title VII of the Civil Rights Act of 1964.36 In setting up a system of administrative remedies for individuals discriminated against by any "person" in employment, § 701(a) of the Act defined "person" to include individuals, labor unions, partnerships, etc. In 1969, the United States Civil Rights Commission issued a report which found that state and local governments were not providing equal job opportunities and recommended that § 701(a) be amended to include them within the definition of "person."37 The Equal Employment Opportunity Act of 1972 incorporated the Commission's recommendation. The definition of "person" in § 701(a) was amended by § 2 of the 1972 Act to include "governments, governmental agencies (and) political subdivisions."38

Clearly, Congress knows how to amend the definition of "person" to include municipalities. Its failure to do so with § 1983 takes on added significance when it is recognized that just such a change was recommended by the United States Civil Rights Commission in 1961, 1963 and 1965.39

These post-Monroe developments in the legislative branch are strong indications that Congress does not favor municipal liability. If there is to be any meaning at all in the concept of a "dialogue" between the courts and Congress, it must come from the courts being as willing to listen to Congress as to have Congress listen to them. In this case, Congress can be plainly heard.

The majority seek to support their position with the Supreme Court's holding in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). However, in his opinion for the Court, Justice Brennan quite carefully pointed out that "we have here no explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents . . . ."40 In the instant case, we do have a specific congressional declaration that recovery may be had against "persons" and a clear congressional intent that "persons" does not include "municipalities."41 Because of that fact, Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), is more pertinent authority. In Aldinger, the plaintiff, who had been discharged without a hearing from her job as a county clerical worker, brought suit against certain county officers as well as the county itself. Plaintiff alleged a violation of § 1983 in that her discharge violated her rights under the First, Ninth and Fourteenth Amendments. In addition, she asserted a claim against the county under state law for the tortious conduct of its officials. She contended that the district court was empowered to hear the state law claim under the doctrine of either pendent or ancillary jurisdiction. In rejecting this claim, the Court said:

But the question whether jurisdiction over the instant lawsuit extends not only to a related state-law claim, but to the defendant against whom that claim is made, turns initially, not on the general contours of the language in Art. III, I. e., "Cases . . . arising under," but upon the deductions which may be drawn from congressional statutes as to whether Congress wanted to grant this sort of jurisdiction to federal courts. Parties such as counties, whom Congress Excluded from liability in § 1983, and therefore by reference in the grant of jurisdiction under § 1343(3), can argue with a great deal of force that the scope of that "civil action" over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them Back within that power merely because the facts also give rise to an ordinary civil action against them under state law. In short, as against a plaintiff's claim of Additional power over a "pendent party," the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which federal judicial power Has been extended by Congress.

Id. at 16-17, 96 S.Ct. at 2421 (emphasis in original).

Although the question of § 1331 jurisdiction was not considered by the Aldinger Court,42 we believe the same reasoning should apply in this case. Municipalities which Congress Excluded from liability in § 1983 should not be brought Back into the liability fold under § 1331 simply by adding to the complaint an allegation that the amount in controversy exceeds $10,000.

In sum, then, we believe that a cause of action for damages is not inherent in the provisions of the Fourteenth Amendment. The responsibility for implementing these provisions was delegated expressly to Congress. Congress has accepted this responsibility and created a comprehensive legislative scheme for the protection of the civil rights of the citizenry. Although this scheme has been subjected to constant searching scrutiny, Congress has never seen fit to bring municipalities within its scope. This Court should not usurp that legislative prerogative.

Despite the arguments advanced above, the fact remains that the five judges constituting the majority herein have the power to expose every city, town and hamlet in the Second Circuit to incalculable liability under the Fourteenth Amendment, subject only to being overruled by the United States Supreme Court.43 We have stated why we think the exercise of that power is improper. We now suggest a number of reasons why we think it is unwise.

The choice of remedial relief should not be exercised in a factual vacuum. Before we set out on the laudable pursuit of justice, we should have some notion of where we are going. "There can be no wisdom in the choice of a path unless we know where it will lead."44 From the earliest days of our country, men of wisdom have expressed concern over the power of the judiciary to impose financial burdens upon state and local governments.45 This concern was one of the main reasons for the enactment of the Eleventh Amendment.46 Moreover, the proposed Sherman Amendment to § 1983, which would have allowed recovery against municipalities, was rejected in large part because of the devastating effect these damages might have on municipalities.47 In recent years, the Supreme Court has expressed increasing concern about the effect of lower court decisions on the financial stability of communities and the consequent impairment of their ability to render essential governmental services.48

As Justice Blackmun did in City of Lafayette v. Louisiana Power & Light Co., we "question the nonchalance with which the Court puts aside the question of remedy."49 The majority state in one breath that they recognize the "financial plight of local governmental bodies"50 and in another that municipalities are "well-suited to spread the cost of compensating the victims of tortious governmental behavior." Our Brothers simply cannot have it both ways.51

There is a substantial distinction between Bivens and the present case, which they do not discuss, and that is the vast difference in the scope of the causes of action under consideration. Bivens permitted recovery against federal officers who violated the Fourth Amendment; the majority allow recovery against municipalities for Fourteenth Amendment violations. The Fourteenth Amendment incorporates or absorbs most of the provisions of the Bill of Rights. Its due process clause makes applicable to communities all of the provisions of the first eight amendments except Two, Three, and Seven, the indictment clause of Five and the excessive bail clause of Eight.52 As interpreted by the Supreme Court, the Fourteenth Amendment may be violated by conduct which offends "traditional notions of fair play and substantial justice,"53 which "shocks the conscience,"54 or which conflicts with "deeply rooted feelings of the community."55 Future interpretations of the Fourteenth Amendment can only be the subject of conjecture.56 Due process is an open-ended, indefinite concept which defies precise definition.57 The Constitution is said to have been drawn "with purposed vagueness so as to leave room for the unfolding