The opinion of the court was delivered by: BECKER
Each of the above captioned cases involves a claim against a municipal police officer for alleged violations of civil rights and alleges some form or other of police brutality.
The respective plaintiffs have each invoked the 28 U.S.C. § 1343(3) jurisdiction of this Court in support of a 42 U.S.C. § 1983 cause of action. However, each of the plaintiffs has also invoked our general federal question jurisdiction, 28 U.S.C. § 1331, and has pleaded what we shall describe as a Bivens claim, see Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), i.e., a direct cause of action in damages against the police officer's municipal employer implied, via the doctrine of respondeat superior, from the Fourteenth Amendment itself, asserting the violation of rights secured by the Constitution. Each of the municipality defendants has in turn moved to dismiss the Bivens claim for want of jurisdiction and for failure to state a claim upon which relief can be granted. This opinion addresses those motions.
Within the past year or so it has become "boilerplate" for plaintiffs' counsel in § 1983 police brutality claims in this Court to join a Bivens claim with the § 1983 claim.
Since the municipalities in such cases have consistently moved to dismiss, there is in this district a considerable body of law on the point,
complementing a considerable body of law on the subject in other courts.
While there are some enlightening discussions in these cases, the most definitive exegesis and the most persuasive statement of the pro-implication view is found in a casenote entitled Damages Remedies Against Municipalities For Constitutional Violations, 89 Harv.L.Rev. 922 (1976) (hereinafter Harvard Note). The most cogent statement of the view that a Bivens cause of action against a municipality cannot be implied is found in the opinion of our colleague Judge Ditter in Pitrone v. Mercadante, 420 F. Supp. 1384 (E.D. Pa., 1976).
Judge Ditter's non-implication holding in Pitrone rested primarily upon the existence of civil rights remedies via section 1983 and upon that section's exclusion of municipal liability. Pitrone, supra at slip op. pp. 9-12. In particular Judge Ditter considered limitations in the holding of Bivens, the legislative history of § 1983, and the recent Supreme Court cases
interpreting that section. After reviewing Aldinger, Judge Ditter observed (at p. 14) that:
The Supreme Court's conclusion that "Congress has by implication declined to extend federal jurisdiction over [a municipality]," [citing Aldinger at 2422], makes it highly unlikely that the Court would be willing to sanction the implication of a direct Fourteenth Amendment claim against such a party either. After all, to do so would be merely another way of subjecting to liability for civil rights violations those whom Congress has by statute chosen to exclude.
The Harvard Note, on the other hand, takes the position that a damages action against municipalities should be implied on the authority of Bivens notwithstanding the Supreme Court's interpretation of § 1983. The Harvard Note distinguishes Monroe, Moor, and Bruno. See note 15 infra.
First, for the reasons set forth in the Harvard Note, we believe that from a policy viewpoint the cases which imply a Bivens cause of action appear on their face to reach a more desirable result for the reason that they remove any concern that a plaintiff found entitled to recover for a violation of his civil rights will have a financially responsible defendant to collect from.
Secondly, we observe that the question before us is an exceedingly close one,
on which we have deliberated for a long period of time and on which we have "flip-flopped" several times before coming to our present conclusion.
This is so partly because there are conflicting strains in the few appellate decisions in this general area, so that a district judge lacks clear guidance as to how the Third Circuit or Supreme Court would decide the issue. There appear to be indications from the accent and tone in recent Supreme Court opinions which point against implication.
However our conclusion stems not from these atmospheric indications but from the teachings of Bivens in light of § 1983 and these recent Supreme Court cases interpreting it.
Thirdly, we record our interim, though ultimately rejected, resolution of the problem, i.e., that a municipality may, a la Bivens, be implied to be "directly" as opposed to vicariously liable. We record this approach (1) because of the closeness of the question as reflected by the respectable authority on both sides, and (2) because we believe that it reflects an alternative (though hybrid) and not plainly untenable approach to the problem, recitation of which may conceivably be helpful to those judges and commentators thinking and writing in the area. Under this interim approach, a municipality would be directly liable where the actionable conduct involved application of some policy formulated by (high level) policymaking officials, such as where high police officials disseminate a policy of encouragement of or calculated indifference toward police brutality, or direct the use of deadly force in the case of minor disturbances, or adopt a policy of allowing police officers of known bellicose propensities to remain on the beat.
For the reasons set forth in note 11 supra, and those set forth in the text below, we have declined to rest our decision upon such a view.
Finally, we believe the question of implication is open to us despite Skehan v. Board of Trustees, 501 F.2d 31 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975), on remand, 538 F.2d 53 (3d Cir. 1976) (en banc). In Skehan the civil rights plaintiff sought damages from the Board of Trustees of Bloomsburg State College for actions by high-ranking administrators and the trustees themselves. See id. at 34-37. The Court stated: "There is § 1331 jurisdiction to award relief against the College if under Pennsylvania law it is not an agency of the Commonwealth covered by the Commonwealth's immunity." Id. at 44. Even assuming that in Skehan the Court be deemed to have upheld an implied cause of action in damages against the College (it nowhere discussed the question in Bivens terms or otherwise), it had no occasion to consider the significance of the Bivens liability of a municipality, or of imposing liability through the doctrine of respondeat superior, for the basis of the claim in Skehan was the conduct of the highest level of administrative personnel -- the college trustees -- who virtually constituted the body corporate.
Moreover, the court in Skehan also failed to discuss the possible impact of § 1983 upon any implication decision. This important question not only forms the focal point of this opinion, but has become yet more sensitive (since Skehan) in the wake of Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976), which demonstrates the strength of the Court's regard for the failure of Congress to render municipalities liable under § 1983. We are therefore persuaded that Skehan is distinguishable and hence that the Skehan holding should not control in this setting without a further clarification from the Court of Appeals.
Our discussion must begin with Bivens. The Court in that case was faced with the problem of whether compensation for the victims of Fourth Amendment violations by federal agents should be left to depend wholly upon variable state law tort remedies. The court concluded that a traditional damage action could be based upon the Fourth Amendment as a matter of federal law. However, Bivens dealt with an area in which Congress had not theretofore acted, and there was no available federal remedy against the offending (federal) agents for vindication of constitutional rights. The Bivens majority, writing on tabula rasa because of the absence of Congressional contraindication, had no difficulty in holding that a cause of ...