Pembaur v. City of Cincinnati
Decided on Mar. 25, 1986; 475 US 469


A. Issues Discussed: Civil Rights (federal), 4th and 14th amendments

B. Legal Question Presented:

Was the forceful entry into Pembaur's clinic an act of official government policy which would cause the county to be liable under 42 U.S.C. 1983 for infringing Pembaur's Fourth and Fourteenth Amendment rights?


A. Background:

Petitioner, Bertold Pembaur, a licensed Ohio physician, was indicted by a grand jury for fraudulently accepting payments from state welfare agencies for services not actually provided to patients. During the investigation, the grand jury issued subpoenas for the appearance of two of Pembaur's employees. When these employees failed to appear as requested, the Prosecutor obtained orders for their arrest.

On May 19, 1977, two County Deputy Sheriffs attempted to serve the orders of arrest at the petitioner's clinic.  However, the petitioner barred the door and refused to let them enter the part of the clinic where the employees presumably were located.  The Deputy Sheriffs then called their superior who told them to call the County Prosecutor's Office and to follow his instructions. The Deputy Sheriffs spoke to the Assistant Prosecutor assigned to the case. He in turn conferred with the County Prosecutor, who told him to instruct the Deputy Sheriffs to "go in and get" the employees. The Assistant Prosecutor relayed these instructions to the Deputy Sheriffs. After the Deputy Sheriffs tried unsuccessfully to force the door, city police officers obtained an axe and chopped it down. The Deputy Sheriffs then entered and searched the clinic but were unable to locate the employees sought.

The petitioner was later indicted and convicted for obstructing police in the performance of an authorized act. The Ohio Court of Appeals reversed his conviction reasoning that Pembaur was privileged under state law to exclude the deputies because the search of his office violated the Fourth Amendment. Pembaur filed a suit against the county seeking damages, alleging that the county and city police had violated his rights under the Fourth and Fourteenth Amendments. After the Court of Appeals dismissed his claims, holding that he had failed to prove the existence of a county policy, a requirement under 42 U.S.C. 1983 in order for the county to be liable, Pembaur filed a petition for certiorari with the US Supreme Court.

B. Counsel of Record:
Opposing Side
Robert E. Manley argued the cause for petitioner. With him on the briefs was Andrew S. Lipton.
Roger E. Friedmann argued the cause for respondents. With him on the brief was Arthur M. Ney, Jr.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Jack D. Novik, Burt Neuborne, and Bruce Campbell filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. No amici curiae briefs were filed on behalf of Respondent.


"Tortious conduct, to be the basis for municipal liability under 1983, must be pursuant to a municipality's 'official policy...' The 'official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible...

[W]e hasten to emphasize that not every decision by municipal officers automatically subjects the municipality to 1983 liability. Municipal liability attaches only where the decision maker possesses final authority to establish municipal policy with respect to the action ordered.

We hold that municipal liability under 1983 attaches where - and only where - a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.

Applying this standard to the case before us, we have little difficulty concluding that the Court of Appeals erred in dismissing petitioner's claim against the county. The Deputy Sheriffs who attempted to serve the capiases at petitioner's clinic found themselves in a difficult situation. Unsure of the proper course of action to follow, they sought instructions from their supervisors. The instructions they received were to follow the orders of the County Prosecutor. The Prosecutor made a considered decision based on his understanding of the law and commanded the officers forcibly to enter petitioner's clinic. That decision directly caused the violation of petitioner's Fourth Amendment rights.

In ordering the Deputy Sheriffs to enter petitioner's clinic the County Prosecutor was acting as the final decision maker for the County, and the county may therefore be held liable under 1983.

The decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered."

Justice Vote: 6 Pro vs. 3 Con

  • Brennan, W.  Pro  (Wrote majority opinion)
  • Marshall, T.  Pro  (Joined majority opinion)
  • Blackmun, H.  Pro  (Joined majority opinion)
  • White,   B.  Pro  (Wrote concurring opinion)
  • Stevens  J.,  Pro  (Wrote concurring opinion)
  • O’Connor,  S.  Pro  (Wrote concurring opinion)
  • Powell, L.  Con  (Wrote dissenting opinion ) 
  • Rehnquist, W.  Con  (Joined dissenting opinion)
  • Burger, W.  Con  (Joined dissenting opinion)

The ACLU filed a brief as amicus curiae urging reversal; the US Supreme Court reversed the judgment of the Court of Appeals  for the Sixth Circuit in a 6-3 vote, giving the ACLU an apparent win.