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Brown v. Dorsey11/14/2005
itutional policy can result in liability for the local government that adopted the policy. But allowing proof of one discrete illegal act, in this instance a murder, to equal proof that the government has a policy of doing such illegal acts is to eviscerate the rule in Monell that liability attaches to the government only when the act affecting the injury is done pursuant to a policy.
We agree with the dissent in Pembaur v. City of Cincinnati that the majority's reasoning in that decision is circular. Pembaur seems to hold that policy is what policymakers make and that policymakers are those who have the authority to make policy; therefore, any decision made by a policymaker is a policy. In the case at bar, Mrs. Brown argues that Dorsey was a policymaker for the County and, therefore, his ad hoc decision to murder his rival was a policy of the County.
We would reject Mrs. Brown's assertion and affirm on this ground the trial court's dismissal of the claims against the County, but Pembaur is binding precedent and is squarely on point. In Pembaur, the United States Supreme Court granted certiorari to review a decision by the Sixth Circuit Court of Appeals, which had affirmed the dismissal of § 1983 claims against an Ohio county on the explicit ground that the plaintiff had "failed to establish, however, anything more than that, on this one occasion, the . . . Sheriff decided to force entry into his [the plaintiff's] office. . . . That single, discrete decision is insufficient, by itself, to establish that the . . . Sheriff . . . implementing a governmental policy." In an opinion written by Justice Brennan, the Court reversed that portion of the Sixth Circuit's decision and held that a single decision can impose § 1983 liability on a local government when the decision is made by "the official or officials responsible for establishing final policy with respect to the subject matter in question."
Because Sheriff Dorsey had final authority to make policy regarding the use of deadly force by his subordinates, we are prevented by Pembaur from affirming the dismissal on the ground that Dorsey's decision to murder Brown was one discrete decision and not a policy. As argued by the dissent in Pembaur, that controlling federal precedent in effect imposes respondeat superior liability on local governments for the intentional acts of "a certain category of employees, i.e., those with final authority to make policy."
If Dorsey had had the final authority to make policy on behalf of the County, then the pleadings filed by Mrs. Brown, including the amended complaint, would be sufficient to withstand a motion to dismiss brought by the County. However, as explained in Division 1 infra, Dorsey was a policymaker for the state and not for the County with regard to the particular functions at issue. For that reason, the trial court properly dismissed the claims against the County.
Judgment affirmed. Andrews, P. J., and Phipps, J., concur.
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