Berkley v. Common Council of Charleston

63 F.3d 295
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 11, 1995
DocketNo. 94-1121
StatusPublished
Cited by11 cases

This text of 63 F.3d 295 (Berkley v. Common Council of Charleston) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berkley v. Common Council of Charleston, 63 F.3d 295 (4th Cir. 1995).

Opinions

Reversed and remanded by published opinion. Judge LUTTIG wrote the majority opinion, in which Chief Judge ERVIN, Judges HALL, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON, WILLIAMS, MICHAEL, and MOTZ and Senior Judge PHILLIPS joined. Senior Judge PHILLIPS wrote a special concurring opinion, in which Chief Judge ERVIN and Judge MURNAGHAN joined. Judge WIDENER wrote a dissenting opinion. Judge WILKINSON wrote a dissenting opinion, in which Judge RUSSELL and Judge WIDENER joined.

OPINION

LUTTIG, Circuit Judge:

We heard this case en banc to decide whether a municipality, here the City of Charleston, is entitled to absolute immunity from liability under 42 U.S.C. § 1983 for the unconstitutional enactments and actions of its local legislature. The numerous circuits that have addressed the question have unanimously concluded, in recognition of Supreme Court precedent, that municipalities are not entitled to such an immunity. We now join our sister circuits and hold that a municipality is not immune from liability under section 1983 for the enactments and actions of the local legislative body.

I.

In Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities and other local governments are “persons” subject to liability for constitutional violations under 42 U.S.C. § 1983. Id. at 690, 98 S.Ct. at 2035-36. A municipality may only be found liable under section 1983, however, where “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.” Id. Since Monell, municipalities and local governments have repeatedly, and unsuccessfully, attempted to secure some immunity from liability in suits brought under section 1983.

In the course of adjudicating these various claims to immunity, the Supreme Court has left no doubt that municipalities and local governments are not entitled to immunity from suits brought under section 1983. Chief Justice Rehnquist, writing for a unanimous Court, could not have been any clearer when he observed recently that “unlike various government officials, municipalities do not enjoy immunity from suit — either absolute or qualified — under § 1983.” Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, — U.S. —, —, 113 S.Ct. 1160, 1162, 122 L.Ed.2d 517 (1993). The Chief Justice based his observation in Leatherman on the Court’s decision in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), where, in denying municipalities a qualified immunity defense to claims brought under section 1983, see id. at 650, 100 S.Ct. at 1415, the Court “held” that “municipalities have no immunity from damages liability flowing from their constitutional violations,” id. at 657, 100 S.Ct. at 1418. In the face of such clear and broad pronouncements by the Supreme Court, we have little trouble concluding that a municipality is not immune from section 1983 liability for unconstitutional enactments and other legislative activities of the local legislature.1

[297]*297Apart from the unequivocal statements in the Court’s opinions, the reasoning employed by the Court in Owen forecloses any other conclusion. In Owen, the Court explained that it will only recognize an immunity from suit under section 1983 where “a tradition of immunity was so firmly rooted in the common law [at the time of the statute’s enactment] and was supported by such strong policy reasons that ‘Congress would have specifically so provided had it wished to abolish the doctrine.”’ Id. at 637, 100 S.Ct. at 1408. After surveying the common law at the time of the enactment of section 1 of the Civil Rights Act of 1871, the predecessor statute to section 1983, and after evaluating the public policy considerations behind municipal liability, the Court held that there was no justification in history or tradition, or in policy, for affording municipalities immunity from suit under section 1983.

With regard to the inquiry into tradition, the Court unqualifiedly concluded that “there is no tradition of immunity for municipal corporations.” Id. at 638, 100 S.Ct. at 1409. Though the Court was able to identify two common law doctrines that might have served as a basis for municipal immunity, it held that neither of these immunities survived Congress’ enactment of section 1 of the Civil Rights Act of 1871. Id. at 644, 100 S.Ct. at 1412.

The first of these common law doctrines “sought to distinguish between a municipality’s ‘governmental’ and ‘proprietary’ functions,” with the municipality subject to liability for the latter, but immune from liability as to the former. Id. The Court found that by 1871, the immunity from suit for a municipality’s “governmental functions” had largely been “nullified” by the states. Id. at 645-46, 100 S.Ct. at 1412-13; see also id. at 646, 100 S.Ct. at 1413 (referring to “nominal existence” of such an immunity). In any event, because the governmental function immunity was rooted in principles of sovereign immunity, id. at 645, 100 S.Ct. at 1412, the Court held that the immunity was “obviously abrogated” by the enactment of section 1983, id. at 647, 100 S.Ct. at 1413:

By including municipalities within the class of “persons” subject to liability for violations of the Federal Constitution and laws, Congress — the supreme sovereign on matters of federal law — abolished whatever vestige of the State’s sovereign immunity the municipality possessed.

Id. at 647-48, 100 S.Ct. at 1413-14 (footnote omitted).

The Court in Owen identified as a second common law protection available to municipalities in the nineteenth century a doctrine that “immunized a municipality for its ‘discretionary5 or ‘legislative’ activities,” but which did not protect municipalities from liability for acts “ministerial” in nature. Id. at 644, 100 S.Ct. at 1412. This doctrine was grounded in separation of powers principles, the concern being that “[f]or a court or jury ... to review the reasonableness of the city’s judgment on [discretionary or legislative] matters would be an infringement upon the powers properly vested in a coordinate and coequal branch of government.” Id. at 648, 100 S.Ct. at 1414. As it had found with the municipality’s common law immunity from liability for its “governmental” actions, the Court found the municipality’s immunity from lability for its “discretionary” or “legislative” activities to be largely hollow at the time Congress enacted the Civil Rights Act of 1871. Id. at 649,100 S.Ct. at 1414. More importantly, the Court found that the very rationale behind the immunity for discretionary activities precluded any claim that the immunity survived the enactment of section 1983:

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Berkley v. Common Council of City of Charleston
63 F.3d 295 (Fourth Circuit, 1995)

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63 F.3d 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berkley-v-common-council-of-charleston-ca4-1995.