The opinion of the court was delivered by: POLLAK
The question to be determined is the sufficiency of the amended complaint filed by Willie Jones, Calvin Byrd and Arthur Lee Jones against two defendants, the City of Philadelphia and the Police Department of Philadelphia.
The amended complaint, while not a model of precise pleading, seems to allege in substance the following: (1) on May 13, 1975, the three plaintiffs were "at Liberty Fair in Philadelphia and comporting themselves quietly and peacefully, when they were told to leave, and escorted out by the Defendant, Police Department of Philadelphia"; (2) all three plaintiffs thereupon got into the automobile belonging to plaintiff Arthur Lee Jones, whereupon "Defendant Police Department of Philadelphia threw a nightstick into the front window of the automobile and began to open fire upon the Plaintiffs"; (3) plaintiff Willie Jones was severely wounded and still has a bullet lodged in his chest; plaintiff Calvin Byrd suffered substantial injuries; and plaintiff Arthur Lee Jones' automobile was heavily damaged; and (4) all three plaintiffs were arrested without probable cause. Based on these alleged wrongs, the plaintiffs seek damages ranging in amount from $ 500,000 (Byrd and Arthur Lee Jones) to $ 1,000,000 (Willie Jones).
Relying on the federal question jurisdiction conferred on district courts by 28 U.S.C. § 1331, the amended complaint characterizes the plaintiffs' claims as causes of action arising under the Fourteenth Amendment.
The same claims are also said to constitute state law causes of action with respect to which a district court otherwise validly seized of a case can, derivatively, exercise pendent jurisdiction.
The amended complaint does not invoke 42 U.S.C. § 1983 as a basis for plaintiffs' federal claims against Philadelphia and its Police Department. Nor does the amended complaint charge any individual defendants (whether police officers or others acting "under color of law"), under Section 1983 or otherwise, with involvement in or accountability for the events of May 13, 1975. Accordingly the only question of consequence placed in issue by the motion to dismiss is whether a violation of the Fourteenth Amendment by municipal officials confers on one injured thereby a cause of action against the municipality anchored not in Section 1983 (or some other civil rights statute) but in the Amendment itself.
Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), declared that a municipality is not a "person" within the meaning of Section 1983, and hence not accountable in a federal court for the acts of municipal employees infringing upon federal constitutional rights, notwithstanding that the malfeasant employees are themselves suable under Section 1983 both at law and in equity. To ameliorate what was widely perceived as an anomalous immunity, federal courts commenced to find in the Constitution itself the municipal liability which, so the Supreme Court had held in Monroe v. Pape, the Congress of 1871 had not made provision for in adopting Section 1983. By analogy to the constitutional cause of action judicially authorized in Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), several Courts of Appeals read into the Fourteenth Amendment at least some measure of municipal liability for the constitutional torts of municipal employees. (See Jones v. City of Memphis, 586 F.2d 622, 624 (1978) in which the Sixth Circuit collects rulings of the Second, Fourth, Fifth, Seventh, Eighth and Tenth Circuits). The scope of the liability imposed vicariously on municipalities by the Constitution did not, however, appear to be as broad as that imposed directly on municipal employees by Section 1983. As the Second Circuit, speaking through Chief Judge Kaufman, put the matter in its first En banc consideration of Turpin v. Mailet, 579 F.2d 152, 168 (1978): "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."
Proceeding more cautiously than most other Circuits, the Third Circuit declined to decide whether the Fourteenth Amendment sanctioned suits against municipalities, but at the same time held that a complaint which posed such a federal claim sufficiently invoked federal question jurisdiction so as to empower a federal district court to pursue pendent state claims in a state (such as Pennsylvania) whose tort law makes municipalities liable for the torts of their employees. See Patzig v. O'Neil, 577 F.2d 841, 850-51 (1978).
Turpin v. Mailet, the Second Circuit decision quoted above, was decided on June 5, 1978. On June 6, 1978, the Supreme Court, in Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), reexamined what Congress had wrought in 1871 and overturned Monroe v. Pape's restrictive reading of Section 1983:
Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-68, 90 S. Ct. 1598, 1613, 26 L. Ed. 2d 142 (1970): "Congress included customs and usages (in § 1983) because of the persistent and widespread discriminatory practices of state officials . . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a "custom or usage' with the force of law."
On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tort-feasor or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.
We conclude, therefore, that a local government may not be sued for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
436 U.S. at 690-91, 694, 98 S. Ct. at 2035-2036, 2038 ...