Gary Betts v. Boone County, Illinois

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 25-1685

GARY BETTS and EARL BETTS,

Plaintiffs-Appellants,

v.

BOONE COUNTY, ILLINOIS, and REBECCA WIGGET,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 3:23-cv-50418 — Iain D. Johnston, Judge.

____________________

ARGUED FEBRUARY 13, 2026 — DECIDED JUNE 15, 2026

____________________

Before BRENNAN, Chief Judge, and HAMILTON and

SCUDDER, Circuit Judges.

BRENNAN, Chief Judge. The Coroner of Boone County, Illi-

nois, engaged in abhorrent and macabre behavior. Wesley

Hyland kept several skulls as trophies from the deceased he

examined. One was that of Louise Betts. Over four decades

later, after the coroner’s death, the County returned her skull

to the Betts family. The family sued the County under 42

2 No. 25-1685

U.S.C. § 1983 for violating the Due Process Clause of the Four-

teenth Amendment.

The question in this appeal is whether Hyland’s actions

established an “official policy” of unconstitutionally retaining

human remains. We hold the answer is no. The County is not

liable under Monell v. Department of Social Services of City of

New York, 436 U.S. 658 (1978), because state law requires that

coroners return bodily remains to families. Hyland frustrated

an official policy rather than established one.

I

In September 1977 high school student Louise Betts was

kidnapped, raped, and murdered. Her body was disposed of

in a field in Boone County in northeast Illinois. As part of the

investigation into her murder, Boone County Coroner Wesley

Hyland examined Louise’s body. After Hyland concluded, he

returned the remains to the Betts family, who then buried her.

A state statute instructs how coroners are to handle bodily

remains: “That as soon as may be consistent with the perfor-

mance of his duties under this [statute] the coroner shall re-

lease the body of the decedent to the decedent’s next of kin.”

55 ILCS 5/3-3021. But unknown to the family, Hyland kept

Louise’s skull.

In November 2022 the Boone County Coroner contacted

Louise’s brothers, Gary and Earl (“the Bettses”). The Coroner

revealed that Hyland possessed at least three skulls, one of

which was Louise’s. To ensure she received a proper burial,

the Bettses were forced to exhume Louise’s casket to place her

skull with her remains.

The ordeal was understandably painful for the Bettses.

They sued Boone County under 42 U.S.C. § 1983, alleging the

No. 25-1685 3

County violated the Fourteenth Amendment. They claimed

that Hyland’s actions—keeping Louise’s skull without first

notifying them—established a policy of unconstitutionally re-

taining property without due process. The district court al-

lowed the Bettses to amend their complaint several times, and

the County moved to dismiss under Federal Rule of Civil Pro-

cedure 12(b)(6) for failure to state a claim.

The district court agreed with the County. Because the

Bettses sued a municipality, they had to meet the elements set

forth in Monell. That required the Bettses show that Hyland’s

actions established an official County policy, which they

failed to do. The Bettses appeal.

II

We review de novo a grant of a motion to dismiss under

Rule 12(b)(6). Chi. Tchrs. Union, Loc. 1 v. Educators for Excel-

lence, Inc., 159 F.4th 524, 528 (7th Cir. 2025). And “we construe

the complaint in the light most favorable to the plaintiff, ac-

cepting as true all well-pleaded facts alleged, and drawing all

possible inferences in the plaintiff’s favor.” Id. (citation omit-

ted).

A. Property Right

The Bettses’ § 1983 suit alleges that the County violated

the Fourteenth Amendment by depriving them of property

without due process. The first question is whether they have

a property interest in their sister’s remains. Simpson v. Brown

County, 860 F.3d 1001, 1006 (7th Cir. 2017) (“Procedural due

process … generally involves a familiar line of inquiry: (1) is

there a property or liberty interest protected by due pro-

cess[?]”). A plaintiff with no right to something cannot com-

plain when it is taken.

4 No. 25-1685

The Constitution does not create property interests. Leis v.

Flynt, 439 U.S. 438, 441 (1979) (per curiam). Rather, an “inde-

pendent source such as state law” creates those rights, and the

Constitution “extends various procedural safeguards.” Id.

(quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). So, to

identify property interests, courts often look to state law.

Illinois recognizes that family members have a property

right to a next of kin’s remains, as the district court concluded,

and on appeal the County does not appear to disagree. As the

Supreme Court of Illinois has held, “while in the ordinary

sense, there is no property right in a dead body, a right of pos-

session of a decedent’s remains devolves upon the next of kin

in order to make appropriate disposition thereof, whether by

burial or otherwise.” Cochran v. Securitas Sec. Servs. USA, Inc.,

419 Ill. Dec. 374, 93 N.E.3d 493, 497 (Ill. 2017) (quoting Leno v.

St. Joseph Hosp., 55 Ill.2d 114, 302 N.E.2d 58, 59–60 (Ill. 1973)).

The district court also cited Mensinger v. O’Hara, 189 Ill.

App. 48 (Ill. App. 1914). There, the plaintiff’s wife died, and

the defendants were entrusted to bury her body. Id. at 49. But

before burying her, they cut the hair from her head, and plain-

tiff sued. Id. The state court reasoned, “while a dead body is

not considered as property, in the ordinary, technical sense in

which that word is usually employed, yet the law does recog-

nize a right, somewhat akin, perhaps, to a property right, aris-

ing out of the duty of the nearest relatives of the deceased to

bury their dead.” Id. at 53. Other states have also recognized

a property right in a deceased family member’s remains. See

Martinez v. Wayne County, 142 F.4th 828, 837–38 (6th Cir. 2025)

(Ohio and Michigan).

We see no reason to disagree with the district court, so we

move to the next question: whether Monell has been satisfied.

No. 25-1685 5

B. Monell Liability

Section 1983 imposes liability on “[e]very person who, un-

der color” of state law, deprives another of a constitutional

right. 42 U.S.C. § 1983. Monell holds that a local government

can be sued for an “[official] policy or custom” that violates

the Constitution. 436 U.S. at 694. A local government “may

therefore be sued directly if it is alleged to have caused a con-

stitutional tort through a policy statement, ordinance, regula-

tion, or decision officially adopted and promulgated by that

body’s officers.” City of St. Louis v. Praprotnik, 485 U.S. 112, 121

(1988) (plurality opinion) (citation modified). That is true even

though the custom “has not received formal approval

through the body’s official decisionmaking channels.” Id. (ci-

tation omitted).

But there is an important limit: liability under Monell is not

respondeat superior. “[A] local government may not be sued

under § 1983 for an injury inflicted solely by its employees or

agents.” Monell, 436 U.S. at 694. Vicarious liability, the Court

has explained, is “incompatible with the causation require-

ment set out on the face of § 1983.” Praprotnik, 485 U.S. at 122.

The municipality, as the actor, must have an “official policy.”

Id. at 121–22. That “distinguish[es] acts of the municipal-

ity from acts of employees of the municipality.” Pembaur v. City

of Cincinnati, 475 U.S. 469, 479 (1986).

So, a municipality is not liable under § 1983 unless the

deprivation of a constitutional right is caused by a municipal

policy or custom. The problem, however, is defining “policy,”

as § 1983 does not use that term. To fill the gap, caselaw has

established that a plaintiff may demonstrate a policy or cus-

tom that causes a constitutional deprivation in one of three

ways: (1) an express policy of the municipality; (2) a

6 No. 25-1685

widespread practice constituting custom or usage; or (3) an

act by a person with final policymaking authority. Kujawski v.

Bd. of Comm'rs of Bartholomew Cnty., 183 F.3d 734, 737 (7th Cir.

1999); see also Dean v. Wexford Health Sources, Inc., 18 F.4th 214,

235 (7th Cir. 2021). This appeal concerns the third way.

A single unconstitutional act of a final policymaker can es-

tablish municipal policy, leading to Monell liability. McGreal

v. Ostrov, 368 F.3d 657, 685 (7th Cir. 2004). Showing that, how-

ever, is hard: “That’s because it's difficult to infer from a single

event that a municipality is not just negligent, but deliberately

indifferent to its employees’ unconstitutional conduct.” Cam-

bric v. City of Corpus Christi, 170 F.4th 321, 327 (5th Cir. 2026)

(Oldham, J., concurring).

To have final policymaking authority means the govern-

ment agent possesses “final authority to establish municipal

policy with respect to the action ordered.” Pembaur, 475 U.S.

at 481 (plurality). This means the agent’s “edicts or acts may

fairly be said to represent official policy.” Monell, 436 U.S. at

694 (emphasis added). To determine that, the Court tells us,

we examine state law. Pembaur, 475 U.S. at 483. Often, “[f]inal

policymaking authority may be granted directly by statute or

delegated or ratified by an official having policymaking au-

thority.” Kujawski, 183 F.3d at 737. But answering who has fi-

nal policymaking authority entails more than just asking who

sits at the top; the city’s organizational chart alone will not

provide the answer. As we have explained: “Any city acts ex-

clusively through agents; the city is just a name for a complex

of persons. … That a particular agent is the apex of a bureau-

cracy makes the decision ‘final’ but does not forge a link be-

tween ‘finality’ and ‘policy.’” Auriemma v. Rice, 957 F.2d 397,

400 (7th Cir. 1992).

No. 25-1685 7

Our holding in Auriemma also teaches that local law is a

lens through which to view the final policymaker question. Id.

at 401. There, the Superintendent of Police in Chicago, Fred

Rice, allegedly promoted certain officers based on their race

and politics. Id. at 398. Aggrieved officers sued the City of Chi-

cago under Monell. Id. at 398–99.

This court held that Chicago was not liable because city

ordinances “applicable to the police department unequivo-

cally ban racial and political discrimination.” Id. at 399. And,

as police superintendent, Rice could not countermand those

ordinances. Id. at 401. Rice’s decision to discriminate, then,

was not an official government policy. “Liability for unau-

thorized acts is personal; to hold the municipality liable, Mo-

nell tells us, the agent’s action must implement rather than

frustrate the government’s policy.” Id. at 400. So, “[i]f, in the

course of selecting senior staff, Rice discriminated on account

of race and politics, he violated rather than implemented the

policy of Chicago. On Rice falls the responsibility for his

deeds.” Id. at 401. As this court later described Auriemma’s

rule, “[c]ertainly someone with executive authority whose ac-

tions fly in the face of state or local law is not a policymaker

under Monell and its progeny.” Cornfield ex rel. Lewis v. Consol.

High Sch. Dist. No. 230, 991 F.2d 1316, 1325 (7th Cir. 1993).

This court applied Auriemma’s rule in Killinger v. Johnson,

389 F.3d 765 (7th Cir. 2004). During a town celebration, the

mayor suspected a bar was serving alcohol to the underage.

Id. at 768. With the chief of police’s approval, the mayor or-

dered the bar closed. Id. Killinger, the bar owner, sued the

mayor and the municipality under § 1983. Id.

The thrust of his claim was “that the mayor violated his

due process rights by failing to observe the procedures

8 No. 25-1685

mandated by the Liquor Act” when closing his bar. Id. at 772.

But the nature of Killinger’s claim proved why he failed to

establish a Monell violation: the mayor was not a final policy-

maker if state law withdrew his authority. “The Illinois Gen-

eral Assembly, not the mayor, established the procedures ap-

plicable to temporary closings, suspensions, and fines under

the [Liquor] Act. If the mayor violated these procedures, he

was acting contrary to—not setting—the policy of the State.”

Id.

Here, a state statute unequivocally prohibited Hyland’s

actions: “That as soon as may be consistent with the perfor-

mance of his duties under this [statute] the coroner shall re-

lease the body of the decedent to the decedent’s next of kin.”

55 ILCS 5/3-3021. Hyland, after his investigation, kept

Louise’s skull; he did not “release the body of the decedent.”

Hyland acted contrary to this unequivocal statutory com-

mand, just like the police superintendent in Auriemma and the

mayor in Killinger. Hyland “frustrated,” rather than “imple-

mented,” the government’s policy. Auriemma, 957 F.2d at 400.

Responsibility thus falls on him, not Boone County.

Contrast Vodak v. City of Chicago, which applied Au-

riemma’s rule. 639 F.3d 738 (7th Cir. 2011). There, the police

superintendent initially permitted a protest, but then unilat-

erally revoked permission and arrested protestors. Id. at 740–

41, 748. They sued the City of Chicago, and the City’s defense

was that the police superintendent lacked authority to deal

“with demonstrations and mass arrests.” Id. at 748. “But no

ordinance constrained him,” in contrast to Auriemma, where

the City Council “had by ordinance limited the police super-

intendent’s discretion with respect to employment decisions.”

Id. at 748–49. Here, like Auriemma but not Vodak, state law did

No. 25-1685 9

“constrain” and “limit” what Hyland could do with re-

mains—the law required him to return them to the decedent’s

family members.

The Bettses disagree. As they see it, the state statute does

not constrain the coroner. Rather, it offers guidance to the cor-

oner on how to return remains. The language is therefore dis-

tinguishable from the unequivocal command in Auriemma.

But consider how an ordinary English speaker would un-

derstand the state statute. It says the coroner “shall release the

body of the decedent” to the family “as soon as may be con-

sistent with the performance of his duties.” 55 ILCS 5/3-3021.

“Shall” certainly imposes a requirement. See, e.g., BLACK’S

LAW DICTIONARY (12th ed. 2024) (defining “shall” as “Has a

duty to; more broadly, is required to.”); AMERICAN HERITAGE

DICTIONARY 1598 (4th ed. 2000) (defining “shall” as “[a]n or-

der, promise, requirement, or obligation.”). And “the body”

includes the principal parts of the corpse—a family indeed

would be surprised to receive a body from the coroner with-

out its arms, legs, or head. See, e.g., Brotherton v. Cleveland, 923

F.2d 477, 482 (6th Cir. 1991) (property right in a body includes

corneas); Adams v. King County, 192 P.3d 891, 900–01 (Wash.

2008) (tortious interference with a dead “body” claim can be

maintained against “the unauthorized removal of a brain”).

Illinois caselaw aligns with how an ordinary English

speaker would read the state statute. “Shall” in a statute is a

mandatory command. People v. Cooper, 487 Ill. Dec. 411, 272

N.E.3d 465, 475 (Ill. 2025); Berz v. City of Evanston, 375 Ill. Dec.

422, 997 N.E.2d 733, 742 (Ill. App. Ct. 2013) (Gordon, J., con-

curring in part) (collecting cases). And the Supreme Court of

Illinois has presumed the coroner must return the body and

the remains under the state statute: “These remains were

10 No. 25-1685

taken to the Will County coroner … When the examination

was completed … [t]he remains were then returned to the vic-

tim’s family in accordance with [the statute].” People v. Jordan,

82 Ill. Dec. 925, 469 N.E.2d 569, 571 (Ill. 1984). 1

Hyland had concluded his investigation of Louise’s mur-

der. State law thus required that “[he] shall release the body

of the decedent.” 55 ILCS 5/3-3021. But he kept her skull, a

part of the “body” he should have returned. 2 The state statute,

then, unequivocally restrained Hyland’s authority. Because

he acted ultra vires, flouting that restraint, he did not establish

County policy.

The Bettses point to other state laws to contend that Hy-

land had discretionary power over all decisions involving his

position. For example, 55 ILCS 5/3-3003 empowers the coro-

ner to “control the internal operations of his office,” and to

“procure necessary equipment, materials, supplies, and ser-

vices to perform the duties of the office.” Section 5/3-3013 con-

fers certain investigatory powers on the coroner, and 5/3-3019

provides that only the coroner can give permission to another

to move or handle a dead body. Because state law confers

broad authority on Hyland to run his office as he pleases, the

Bettses claim, he made unconstitutional policy by keeping

Louise’s skull.

1 The Bettses’ complaint alleged that “[Hyland] had a duty by statute

to provide Louise’s complete remains to her next of kin.” They walked

back that contention in their reply brief, however.

2 Cf. Adams, 192 P.3d at 901 (“[A]uthority to remove organs while con-

ducting an autopsy … does not imply that the medical examiner has au-

thority to retain the brain.”).

No. 25-1685 11

But the Bettses cannot point to a statute conferring author-

ity over the action at issue—how bodily remains are returned.

“The official must also be responsible for establishing final

government policy respecting such activity before the munic-

ipality can be held liable.” Pembaur, 475 U.S. at 482–83 (plural-

ity). As this court recognized in Vodak, “one can be an official

policymaker in one domain but not in another.” 639 F.3d at

748 (citing McMillian v. Monroe County, 520 U.S. 781, 785

(1997)). So, Hyland had authority to decide how many scal-

pels to buy. 55 ILCS 5/3-3003 (coroner can “procure necessary

equipment, materials, supplies and services”). But that does

not mean he had final policymaking authority over returning

remains. The coroner decides when it is necessary to exhume

a body for an autopsy, 55 ILCS 5/3-3015(c), yet he does not get

to keep a body part. Under state statute, Hyland was com-

pelled to return all remains to the Bettses but did not. Like the

police superintendent in Auriemma, the coroner lacks unfet-

tered power to make final decisions over remains.

Nor does it matter that Hyland was the top official in the

coroner’s office, elected by the people of the county and an-

swerable to them. 3 Auriemma tells us “[a]uthority to make a

final decision need not imply authority to establish rules.” Id.

at 401. Consider Killinger, where the mayor—presumably an

elected position—did not establish an official policy because

he acted contrary to state law. 389 F.3d at 772. Here, the

3 The dissenting opinion attempts to distinguish Auriemma by noting

that the coroner here was elected. But the “elected” status of the police

superintendent was not important in Auriemma’s analysis. Indeed, the

word “elected” does not appear in that opinion. And that the City’s

elected mayor played a role in the discriminatory hiring decisions was

“immaterial.” 957 F.2d at 400.

12 No. 25-1685

coroner has no authority to countermand state law. Hyland

was required to follow 55 ILCS 5/3-3021, just as he was re-

quired to follow the Illinois Constitution and the United

States Constitution. See 55 ILCS 5/3-3005 (Coroner’s Oath).

Hyland’s choice to keep Louise’s skull “violated rather than

implemented” Boone County policy. Auriemma, 957 F.2d at

401.

Last, the Bettses submit that Bradley v. Village of University

Park, 929 F.3d 875 (7th Cir. 2019), implicitly overruled Au-

riemma. They point to a single statement in Bradley, which

reads: “[A]n unconstitutional act of municipal decisionmak-

ers can result in municipal liability even if their act also vio-

lated state law.” Id. at 885. So, to the Bettses, even if Hyland

violated state law, the County can still be held liable.

That statement cited Owen v. City of Independence for the

proposition “that both a city and its manager could be held

liable under § 1983 for firing the city police chief without due

process, even if the defendants’ actions also violated state

law.” Id. (citing 445 U.S. 622, 627 n.4, 633 (1980)). In Owen, a

City Manager fired the Chief of Police, who then sued under

§ 1983. 445 U.S. at 629–33. A footnote describes a letter the

chief wrote to the manager, which says in part: “My coun-

sel … have advised me … your relief and discharge of

me … would be in violation of the Missouri Administrative

Procedure Act.” Id. at 627 n.4. This is the state law violation

that Bradley says occurred.

That is an insufficient foundation to support Bradley’s de-

scription that the Supreme Court “made clear that both a city

and its manager could be held liable under § 1983 for firing

the city police chief without due process, even if the defend-

ants’ actions also violated state law.” Bradley, 929 F.3d at 885.

No. 25-1685 13

Owen did not resolve whether the city violated state law when

it fired the police chief, as the letter claims. It did not need to.

So, Owen does not concern the implications of a state law vio-

lation for Monell liability. Rather, the Court “declined to af-

ford qualified immunity to a municipality despite the good

faith of its individual officers.” Capra v. Cook Cnty. Bd. of Rev.,

733 F.3d 705, 711 (7th Cir. 2013); see also Pembaur, 475 U.S. at

480; Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877

F.3d 136, 145 (3d Cir. 2017).

Nor is Bradley about state law violations and Monell, as fi-

nal decision-making authority in that case was conceded. 929

F.3d at 885 (“The mayor and the board concede that they had

sole discretion and authority to fire Bradley.”). The case

largely concerns Parratt v. Taylor, 451 U.S. 527 (1981), and the

process that is due under the Fourteenth Amendment. Id. at

885–86. In Bradley, the majority rejected the defendant’s read-

ing of Parratt as a defense to Monell liability, id. at 898, which

is how the case has been subsequently understood. Luster v.

Village of Ashmore, 76 F.4th 535, 537 (7th Cir. 2023) (“We ad-

dressed [Parratt] at some length in Bradley.”).

III

The dissenting opinion submits that as long as the relevant

official is elected and has general authority over a particular

domain, his actions make the municipality liable—even if a

law constrains his authority or discretion. This is respondeat

superior by another name. It is not supported in our caselaw

or that of other circuits, and it extends Monell liability too far.

We decline to break with the great weight of the caselaw until

instructed differently.

14 No. 25-1685

Scores of plaintiffs are not left without redress for consti-

tutional wrongs done to them by government, as the dissent-

ing opinion suggests. The Bettses, or any hypothetical plain-

tiffs, are not without recourse. They can sue the sheriff in tort

or under § 1983. The state could—and should—criminally

prosecute government actors who commit crimes. But munic-

ipal liability does not arise simply because a rogue elected of-

ficial acted unconstitutionally. Concluding otherwise

stretches both Supreme Court and this court’s rulings too far.

Start with this court’s caselaw. The dissenting opinion’s

position is contrary to binding circuit precedent. Auriemma

and Killinger hold that a government official is not a final pol-

icymaker if state or local law restricts his power. See

Auriemma, 957 F.2d at 400 (“to hold the municipality liable,

Monell tells us, the agent’s action must implement rather than

frustrate the government’s policy.”); Killinger, 389 F.3d at 772

(“If the mayor violated these procedures, he was acting con-

trary to—not setting—the policy of the State.”). The dissent-

ing opinion cannot point to a Seventh Circuit case supporting

its view. 4 This case is an application of Auriemma, Killinger,

Cornfield, and Vodak—binding precedents. We make no new

law.

Those cases, read together, stand for the same rule—that

an official is not a final policymaker for a given issue when

state or local law withdraws his or her authority over that

area. An official’s actions, therefore, cannot be viewed as

4 The dissenting opinion states that Vodak distinguishes Auriemma. But

Vodak cited Auriemma with approval and applied its framework. 639 F.3d

at 747. The court in Vodak held that no ordinance constrained the police

superintendent, id. at 748–49, unlike the ordinance in Auriemma. Had that

not been true, the city may not have been liable in Vodak.

No. 25-1685 15

municipal “policy” in cases where they contradict state law.

No such law existed in Vodak, but the existence of such laws

dictated the holdings of both Auriemma and Killinger.

There is also a tension in the dissenting opinion’s position.

Our colleague concludes that Hyland was a final policymaker

because state law gives coroners the sole power to release a

dead body after an autopsy. But if a state law’s grant of power

to the coroner defines whether he is a final policymaker, why

then does a state law’s restriction of power play no role in an-

swering the same question?

Recall that under the final policymaker rule, when the mu-

nicipality confers its powers, the final policymaker’s acts are

those of the municipality. Municipalities in Illinois are bound

by state law. Newsome v. Thompson, 560 N.E.2d 974, 978 (Ill.

App. Ct. 1990). Under state law, Boone County coroners can-

not do what they please with bodily remains. How, then,

could Boone County bestow that power in unrestrained form?

The principles established in our caselaw are consistent

with the Supreme Court’s Monell precedent. Though the dis-

senting opinion relies on Pembaur, several aspects of that case

support our view. For one, a majority of the Court reaffirmed

the principle that “whether an official had final policymaking

authority is a question of state law.” Pembaur, 475 U.S. at 483

(plurality); id. at 491 (O’Connor, J., concurring in part and con-

curring in the judgment) (looking to state law to define the

scope of the officials’ authority).

For another, two justices whose votes were essential to the

majority expressly considered the fact that the alleged uncon-

stitutional action was not illegal under federal, state, or local

law at the time of the violation for their conclusion that Monell

16 No. 25-1685

liability could attach. As Justice White explained, “[l]ocal law

enforcement officers are expected to obey the law and ordi-

narily swear to do so when they take office. Where the con-

trolling law places limits on their authority, they cannot be

said to have the authority to make contrary policy.” Id. at 486

(White, J., concurring). That point was critical to Justice

O’Connor, too, “[g]iven that [the county’s] procedure was

consistent with federal, state, and local law at the time the case

arose,” it represented the county’s policy. Id. at 491 (O’Con-

nor, J., concurring in part). Taken together, these points help

show that our caselaw’s focus on whether the official’s actions

violate state law is relevant to the Monell inquiry.

Nor is this case’s holding contrary to Monroe v. Pape, 365

U.S. 167 (1961). The dissenting opinion posits that individual

officers can be held liable under § 1983 even if their unconsti-

tutional conduct also violates state law. Id. at 172. While true,

individual liability is not municipal liability. Monell teaches that

a municipality can be held liable only for its own actions, not

solely “because it employs a tort-feasor.” 436 U.S. at 691. Un-

der the dissent’s reasoning, however, these forms of liability

are the same: when a rogue elected official acts unconstitu-

tionally, the municipality is liable. Thus, Monell liability is

limitless, courting respondeat superior.

So, it is no surprise several circuits have raised similar con-

cerns and disclaimed the same theory the dissenting opinion

embraces. Consider Roe v. City of Waterbury, 542 F.3d 31 (2d

Cir. 2008). Philip Giordano was elected city mayor, and as

mayor, sexually abused two young girls. Id. at 34. After his

arrest, the victims sued the City under § 1983 and Monell. As

a final policymaker over law enforcement, safety, and social

issues, they argued, the mayor’s actions established that the

No. 25-1685 17

City’s official policy was to permit his abusive crimes. Id. at

37.

The Second Circuit disagreed. “Regardless of what broad

powers he had as a mayor, the state of Connecticut has made

the policy (and the laws) prohibiting such conduct.” Id. at 40.

And there was nothing in the mayor’s “behavior that could

have advanced any conceivable job function or any conceiva-

ble policy goal or interest of the City.” Id. at 40. That reasoning

is consistent with Auriemma’s principle and the conclusion we

reach here. Yet, the dissenting opinion would hold the mayor

liable in City of Waterbury. Indeed, the dissent’s cautionary hy-

pothetical is remarkably similar to that case’s facts. But “a

finding of municipal liability in this case,” the Second Circuit

warned, “would amount to a finding of respondeat superior.”

Id. at 41 (citation modified).

Granted, the dissenting opinion finds support in Bennett v.

Pippin, 74 F.3d 578 (5th Cir. 1996), but that case has been func-

tionally overruled. Recent cases from the Fifth Circuit cast se-

rious doubt on Bennett’s holding. In Bolton v. City of Dallas, 541

F.3d 545 (5th Cir. 2008) (per curiam), the chief of police was

fired by the Dallas city manager, so he sued the City under

Monell for the city manager’s acts of violating his due process

rights. Id. at 546–47. First, the Fifth Circuit observed that it had

previously adopted the holding in Auriemma. Id. at 549. Sec-

ond, it held that the city manager was not a final policymaker

because neither state nor local law gave him the power to fire

the chief of police. Id. Just as here, local law prohibited the city

manager from firing the chief, “the relevant local law … pro-

hibits the specific action.” Id. at 551. So, “absent some contrary

custom not shown here, Benavides’s action clearly does not

represent final policy with respect to the removal of city

18 No. 25-1685

officials like Bolton. It is the Charter that announces the City’s

policy in this regard.” Id. (citing Auriemma, 957 F.2d at 400).

And in Doe v. Burleson County, 86 F.4th 172, 177–78 (5th Cir.

2023), the court held that a judge’s sexual assault cannot lead

to Monell liability because “the broad ability to make deci-

sions … for the county’s business generally is distinguishable

from [defendant’s] personal responsibility for his alleged sex-

ual misconduct against an employee.” Id. at 178. To rule oth-

erwise would “seem to sound instead in respondeat supe-

rior.” Id. (citation modified). Accordingly, Bolton and Burleson

County cast serious doubt on the viability of Bennett.

Next, the dissenting opinion submits that Simmons v. Uin-

tah Health Care Special Dist., 506 F.3d 1281, 1285 (10th Cir.

2007), conflicts with our holding. Simmons held that when a

final policymaker flouts a municipality’s policy, Monell liabil-

ity can be established. Id. That holding may conflict with Au-

riemma. 5 But Simmons is distinguishable from this case: there,

the municipality set the policy; here, the state did. Our dissent-

ing colleague acknowledges this, but we see a critical differ-

ence. Simmons makes the point in a footnote: “We have previ-

ously held that the fact an official is meaningfully bound by

policies developed by others often signals that he or she is not

a final policymaker. That test, however, does not bear on our

current situation—where the Board in question has

5 Simmons also may be distinguishable from Auriemma. In Simmons,

the county formed a district, and the district constituted a board, which

adopted polices for the management of a nursing home. Id. at 1283. When

the board violated one of those policies, the court held the municipality

was still liable: “Actions taken by a municipality's final policymakers,

even in contravention of their own written policies, are fairly attributable

to the municipality.” Id. at 1287. But in Auriemma, the superintendent of

police did not violate the policies he established but rather city ordinances.

No. 25-1685 19

demonstrated that it is not meaningfully bound by

its own policies.” Id. at 1285 n.4 (citation modified).

Footnote 4 in Simmons also included a reference to Randle

v. City of Aurora, 69 F.3d 441 (10th Cir. 1995). There, the court

identified considerations to determine who is a final policy-

maker. One is whether he “is meaningfully constrained by

policies not of that official’s own making.” Id. at 448 (citation

modified). Here, the policy that restrained Hyland was devel-

oped by others—the state legislature. That was also true in

Killinger: the mayor did not establish policy by closing the bar

during a town celebration because state law forbade such acts.

389 F.3d at 765. Simmons, thus, is consistent with Killinger and

this case.

Finally, the dissenting opinion raises a separate and unre-

lated fact scenario in which a sheriff rapes a prisoner. To our

dissenting colleague, under this case’s holding, such a

circumstance would not present Monell liability. Yet as the

Second Circuit has explained, for example, “authorizing, con-

doning, or promoting the sexual abuse of children” cannot be

a municipality’s official policy because “the state of Connect-

icut has made the policy (and the laws) prohibiting such con-

duct.” City of Waterbury, 542 F.3d at 40; see also Bolton, 541 F.3d

at 545 (“[T]he relevant local law … prohibits the specific ac-

tion.”). This court’s caselaw follows the same line of reason-

ing. Our holding here is an application of that caselaw: When

a state unequivocally restricts a final policymaker’s power

over a subject, he does not establish policy when violating that

prohibition. Illinois state law mandates that coroners may not

keep bodily remains. The coroner’s rogue, purely personal ac-

tions to the contrary do not establish an official municipal pol-

icy.

20 No. 25-1685

IV

Hyland’s behavior was heinous. But federal law does not

right every wrong. See Educators for Excellence, 159 F.4th at 532.

Because state law required coroners to return all remains to

the next of kin, Hyland did not implement an “official policy”

when he kept Louise’s skull. Much the opposite—he violated

the law. So, the Bettses cannot establish that Boone County

was liable for Hyland’s actions under Monell, and the district

court properly dismissed their case.

AFFIRMED

No. 25-1685 21

HAMILTON, Circuit Judge, dissenting. I respectfully dissent.

We should reverse the dismissal of the Betts family’s

constitutional claim. An elementary point of Section 1983 law

is that an individual defendant’s violation of state law is not

a defense to federal liability under Section 1983. Monroe v.

Pape, 365 U.S. 167, 172, 183–87 (1961). We should hold here,

similarly, that a local policymaking official’s violation of state

law also is not a defense to Monell liability for his or her local

government.

The majority affirms dismissal of the Betts family’s

constitutional claim because Coroner Hyland violated a state

law as he also violated the family’s federal constitutional

rights. That reasoning disregards the history and purposes of

Section 1983. It also conflicts with the reasoning of Monroe v.

Pape and the judicial glosses on municipal liability stemming

from Monell v. Department of Social Services, 436 U.S. 658 (1978).

To pose the issue starkly, by the majority’s reasoning,

Monell liability would not apply to a county whose elected

sheriff raped a prisoner while on the job. Nor would Monell

liability apply when a mayor orders police to shut down a

political march by his opponents or discriminates on the basis

of religion or race. After all, rape is a crime in every state.

Political speech, freedom of religion, and racial equality are

protected by every state constitution. On the majority’s

reasoning, rape, political suppression, and religious and

racial discrimination must therefore be contrary to every

county’s or city’s policy, no matter what elected officials do

under color of state law. Other circuits have had little

difficulty in allowing Monell liability in, for example, cases of

rape by elected sheriffs, Whitson v. Board of County Comm’rs of

County of Sedgwick, 106 F.4th 1063 (10th Cir. 2024); Bennett v.

22 No. 25-1685

Pippin, 74 F.3d 578 (5th Cir. 1996), or unconstitutional arrests

of political opponents ordered by a mayor. Hollins v. Powell,

773 F.2d 191, 195–96 (8th Cir. 1985). We should follow that

course here.

The unusual facts of this case might distract us from the

broad and important issues the majority opinion puts at stake.

In Monell, the Supreme Court held that municipal

governments could be held liable under Section 1983 for

constitutional violations. At the same time, the Court rejected

common-law principles of respondeat superior liability for

such governments. Instead, the Court held that a municipal

government may be held liable only for a constitutional

violation that reflects a municipal policy or custom. 436 U.S.

at 690–91. Justices, scholars, and lower courts have criticized

the reasoning of Monell, see, e.g., Vodak v. City of Chicago, 639

F.3d 738, 747 (7th Cir. 2011) (collecting sources), but the policy

or custom standard has endured.

Nearly fifty years of case law have recognized three paths

to showing such a municipal policy or custom. As my

colleagues explain, the first path is an express municipal

policy, and the second is a widespread custom or practice

with the practical effect of an express policy. Those two paths

are not available here.

The focus here is the third path, an act by a person with

final policymaking authority for the municipal government,

phrased in Monell as “those whose edicts or acts may fairly be

said to represent official policy.” 436 U.S. at 694. Monell did

not develop that concept further, but the Court held in

Pembaur v. City of Cincinnati that a single unconstitutional act

of an executive branch official could amount to local

government policy. 475 U.S. 469, 480–81, 484 (1986) (elected

No. 25-1685 23

county prosecutor was final policymaker on subject and

single decision could support Monell liability).

In this case, Coroner Hyland was an independently

elected county official. See 55 ILCS 5/3-3002. In his work, he

was accountable to the voters rather than to another county

governing body or official. See 55 ILCS 5/3-3003 (“The county

coroner shall control the internal operations of his office.”).

Under Illinois law, the elected coroner is the only person who

may authorize the release of a body after an autopsy. 55 ILCS

5/3-3019. In his work as coroner in general and for the purpose

of releasing bodies in particular, he was the county’s final

policymaker.

My colleagues assume that Coroner Hyland, by having

allegedly kept a murder victim’s skull for his bizarre

collection, violated both Illinois state law and the

constitutional rights of her family. My colleagues affirm

dismissal of her family’s Monell claim on the theory that it was

the Illinois legislature that established the relevant “policy”

for the county. In their view, an Illinois statute has long

provided that the “public policy” of state is for a county

coroner to release the body of a decedent to her next of kin as

soon as may be consistent with the coroner’s official duties. 55

ILCS 5/3-3021. Because Coroner Hyland also violated this

state law, my colleagues reason, he was acting to “frustrate”

what they deem to be county policy rather than to

“implement” it. See ante at 7–8.

This reasoning is flawed. Taking the Monell standard and

the majority’s view of the Illinois statute as given, the

majority’s logic contradicts itself. It also undermines the

powerful remedial purposes of Section 1983 as first adopted

by the Reconstruction-era Congress in 1871. As explained

24 No. 25-1685

below, circuit courts have struggled to follow fragmented and

sometimes conflicting guidance from the Supreme Court in

these final-policymaker cases. I hope the Supreme Court will

step in to clarify that an unconstitutional action by a truly final

local policymaker can establish local policy even if the action

also violates state or local law.

Seventh Circuit Law: As my colleagues point out, case law

offers some support for their approach, but our circuit’s cases

pose an impossible tension that calls for resolution. To

explain, language in Auriemma v. Rice supports the majority’s

result here. 957 F.2d 397 (7th Cir. 1992). In Auriemma, senior

white police officers in Chicago alleged that the

Superintendent of Police had used race to make decisions to

promote and demote his senior staff. The City of Chicago had

adopted ordinances that flatly prohibited both racial and

political discrimination in the police department, including in

the most senior positions. The superintendent had no

authority to violate those ordinances, and he was also not the

senior-most executive officer in charge of implementing

them—that would have been the mayor, at whose pleasure

the superintendent served. Id. at 399–401.

Note the key difference between Auriemma and this case,

however. The Chicago police superintendent was not an

independently elected official. Instead, he reported to such an

elected official, the mayor. To be sure, the Auriemma panel

said in dicta that those plaintiffs’ allegations that the

defendant superintendent had cleared his decisions with the

mayor did not matter. The panel explained that was because

the mayor was only another executive official, not a

legislative official with the power to change city policy

regarding discrimination in hiring decisions. Id. at 399–400.

No. 25-1685 25

That dictum regarding the mayor was not necessary to the

panel’s reasoning and result, however. I believe the dictum

conflicts with the reasoning and holding of Pembaur, which

held that local policy could be established not only by

legislative bodies but also by executive officials with final

policymaking authority. 475 U.S. at 480.

The majority finds its strongest support in this circuit in

the odd case of Killinger v. Johnson, where the Auriemma

dictum was applied as a holding. 389 F.3d 765 (7th Cir. 2004).

In Killinger, a village mayor acted as a judicial officer in

summarily ordering a bar be closed for an evening and later

imposing a license suspension and fine. The plaintiff sued the

village on the theory that the mayor was a final policymaker

and had violated plaintiff’s due process rights. Id. at 768. The

panel affirmed summary judgment for the village on the

Monell claim, reasoning that the relevant procedures were

established by state statute: “If the mayor violated these

procedures, he was acting contrary to—not setting—the

policy of the State. Because the mayor does not hold final

policymaking authority to establish procedural rules, [the

village] is not liable for his actions.” Id. at 772.

On the other side of this Monell issue we have Vodak v. City

of Chicago, 639 F.3d 738 (7th Cir. 2011), where we reversed

summary judgment for the city on a Monell claim. The city

was sued for actions of the police superintendent in allegedly

ordering arrests of demonstrators in the absence of arguable

probable cause to believe they had knowingly violated a

police order. Id. at 746, 748. The city made “the extravagant

claim that the only officials whose tortious conduct can ever

impose liability on it are the members of the City Council

acting through their ordinances.” Id. at 747. We reasoned that

26 No. 25-1685

the City Council had not restrained the police

superintendent’s authority to make mass arrests at

demonstrations, leaving the superintendent as the final

policymaking authority for the relevant decision. Vodak

distinguished Auriemma. Whereas in Auriemma the City

Council had adopted ordinances prohibiting employment

discrimination on the basis of race, no ordinance restrained

the superintendent’s actions in ordering mass arrests in Vodak.

639 F.3d at 748–49.

With respect, however, that factual difference between

Vodak and Auriemma does not offer a sound basis for

producing opposite results under Monell. The point shows

instead the internal contradiction in the reasoning of the

Auriemma dictum, the Killinger holding, and the majority

opinion here. It is this: Local policymaking officials are subject

to federal, state, and local laws, including the United States

Constitution and state constitutions. (The police

superintendent’s actions in Vodak surely also violated the

Illinois Constitution, for example. See Ill. Const. art. I, §§ 4 &

5.) Do all those laws amount to “local policies”? If a plaintiff

can show that a local elected executive official violated his

rights under the federal Constitution, why should the local

government’s liability under Monell depend on whether the

official’s actions also violated some other law? 1

1 We noted in Vodak that the police superintendent’s final policymak-

ing authority was consistent with Illinois law. 639 F.3d at 748, citing Fabi-

ano v. City of Palos Hills, 336 Ill. App. 3d 635, 657, 784 N.E.2d 258, 278 (2002).

In Fabiano, the defendant city made a Monell argument quite similar to the

majority’s position here: the police chief could not be a final policymaker

because municipal rules required him to enforce federal, state, and local

No. 25-1685 27

For example, all three states in this circuit have state

constitutional analogs to the federal Equal Protection Clause,

and state courts ordinarily interpret them as consistent with

federal equal protection law. Caulkins v. Pritzker, 2023 IL

129453, ¶¶ 45–46, 228 N.E.3d 181, 191–92; Mayo v. Wisconsin

Injured Patients & Families Compensation Fund, 2018 WI 78,

¶ 35, 914 N.W.2d 678, 690–91; Collins v. Day, 644 N.E.2d 72, 75

(Ind. 1994). By the logic of the majority opinion, those state

constitutional provisions also establish “policy” for every

local government in the circuit. The state constitutional

provisions, after all, bind every local government in each

state. So by the majority’s logic, local governments could

successfully defend any equal protection claims under Monell

on the theory that they also violated the state constitution’s

equal protection provision. That would be an astonishing and

unprecedented restriction on Monell in this circuit.

Or consider free speech rights. All three states in this

circuit have state constitutional analogs to the free speech

rights in the federal First Amendment. Ill. Const. art. I, §§ 4 &

5; Ind. Const. art. I, § 9; Wis. Const. art. I, §§ 3 & 4. Political

laws (and presumably to comply with all of those laws). The Appellate

Court of Illinois rejected that argument:

At most, the rules and regulations of the police depart-

ment “constrained” [Police Chief] Hurley to enforce fed-

eral, state and local laws. We do not find this to be a mean-

ingful constraint on Hurley’s authority to direct and con-

trol the Palos Hills police department sufficient to strip

him of his final policymaking authority with respect to

law enforcement.

336 Ill. App. 3d at 657, 784 N.E.2d at 278 (reversing summary judgment on

Monell claim). That reasoning seems sound to me.

28 No. 25-1685

changes in local government often produce firings that

arguably violate the federal First Amendment. If the firing

decisions are made by, let’s say, a mayor who looks like the

final policymaker, Monell liability has long been recognized.

See, e.g., Wainscott v. Henry, 315 F.3d 844, 848 (7th Cir. 2003)

(affirming liability of mayor in official capacity, which means

Monell liability for the city); Matlock v. Barnes, 932 F.2d 658,

666 n.4 (7th Cir. 1991) (city was liable for firing); Soderbeck v.

Burnett County, 752 F.2d 285, 293–94 (7th Cir. 1985) (county

would be liable for firings if members of county board

committee were liable). Under the majority’s reasoning,

however, these local governments should have had an

ironclad defense to Monell liability: not only did we violate

the federal First Amendment, we also violated our state

constitution. Our local “policy” was thus to comply with the

state constitution—the superior source of law and policy.

And that means any official’s violation must have

“frustrated” local policy rather than “implemented” it. Q.E.D.

That would be another astonishing restriction of federal rights

and remedies. 2

One more example: Second Amendment rights, with a

variation on the facts from Kellogg v. City of Gary, 562 N.E.2d

685, 707–09 (Ind. 1990) (affirming damages against city under

Monell). Suppose a city mayor today orders the local police

simply to stop issuing handgun licenses, period. Assume that

2 Perhaps one might suggest there is a difference in the degree of spec-

ificity. The requirements of the Illinois coroner statute are more specific

than those of the state constitutional provisions, for example. But the ma-

jority has not suggested this matters, and gauging Monell liability in terms

of the degree of specificity of the higher law would turn the Monell issue

into a hopeless quagmire, undermining the remedy.

No. 25-1685 29

would be contrary to a state statute, a state constitutional

provision (such as Ind. Const. art. I, § 32), and the federal

Second Amendment as construed more recently to provide

individual rights. Should a person who suffered damages be

denied an award under Monell on the theory that the mayor

was “frustrating local policy”?

Other Circuits: Other circuits have disagreed with the

majority’s approach here. They have held that the final

policymaker branch of Monell liability can apply even where

an official with final municipal policymaking authority

violated both state law and the United States Constitution.

The most extreme cases are those where elected sheriffs

have acted under color of state law to commit rape. Under the

majority’s reasoning here, Monell liability would be blocked

by state criminal laws prohibiting rape and sexual assault. I

respectfully submit we should not go down that road any

further. We should instead reverse in this case and reject the

idea that Monell liability can be defeated because the local

official violated some other law as well as the Constitution.

A helpful guide to this area of Section 1983 law is Whitson

v. Board of County Comm’rs of County of Sedgwick, 106 F.4th 1063

(10th Cir. 2024). In Whitson, a jury found that the elected

county sheriff had sexually assaulted an intellectually

disabled prisoner and had done so under color of state law.

The sheriff assaulted the prisoner while transporting her to

the county jail. The sheriff was held liable in his individual

capacity under Section 1983, of course, but the district court

had held that the county was not liable under Monell. Id. at

1065.

30 No. 25-1685

The Tenth Circuit reversed on grounds directly applicable

here. The sheriff was the county’s final policymaking

authority regarding the custody and care of prisoners,

making the county liable for his actions. “As we understand

controlling precedent, when an official takes action over

which he or she has final policymaking authority, the

policymaker is the municipality, so it is fair to impose liability

on that entity for that action.” Id. at 1067.

The sheriff’s sexual assault in Whitson was of course also a

crime under state law, an even more egregious violation of

state law than Coroner Hyland’s violation here. That violation

of state criminal law did not let the county off the hook of

Monell liability for a constitutional violation by its final

policymaker when it came to the treatment of prisoners. We

should apply the same reasoning here.

Whitson found direct support in the Fifth Circuit’s decision

in Bennett v. Pippin, 74 F.3d 578 (5th Cir. 1996), where the

county sheriff had raped a suspect after interrogating her in

her home. Some confusing procedures in the district court led

the Fifth Circuit to remand the Monell claim against the

county for a trial before a jury. Id. at 581–83. Before

remanding, however, the Fifth Circuit squarely rejected the

same theory the majority adopts here. Consistent with the

majority’s reasoning here, the county had argued that the

sheriff could not have been acting pursuant to county policy

because he also violated state law. The Fifth Circuit wrote:

“When a final policy maker makes the relevant decision, and

when that decision is within the sphere of the policy maker’s

final authority, the existence of a well-established, officially-

adopted policy will not insulate the municipality from

liability.” Id. at 586, quoting Gonzalez v. Ysleta Independent

No. 25-1685 31

School District, 996 F.2d 745, 754 (5th Cir. 1993). The sheriff in

Bennett was exercising his power and authority as sheriff to

rape the suspect. His action was de facto county policy by

reason of his office.

The Whitson court also found strong support for its

decision in an opinion written by Justice Gorsuch when he

served on the Tenth Circuit, Simmons v. Uintah Health Care

Special District, 506 F.3d 1281 (10th Cir. 2007). In Simmons, the

board of a county nursing home had fired the administrator

in violation of both the board’s own written policies and the

constitutional guarantee of due process. The independent

board had final policymaking authority in its oversight of the

nursing home. Id. at 1283–84.

The district court had held that the municipal government

was not liable under Monell because the board’s actions had

violated the board’s own officially adopted policy. The Tenth

Circuit flatly rejected that reasoning:

Municipalities are equally answerable for

actions undertaken by their final policymakers,

whether or not those actions conform to their

own preexisting rules. Were the law otherwise,

a municipality’s leaders would have the very

strange incentive to flout their own policies. Or

perhaps even enact policies with the deliberate

purpose of disregarding them. While the law is

often subtle and sometimes complex, it is rarely

so unreasonable. We reverse.

Id. at 1283.

Simmons reasoned that the logic of Pembaur and Monell

must extend to “actions by final policymakers taken in

32 No. 25-1685

defiance of a policy or custom that they themselves adopted.

Were the rule of law different, we would invite irrational

results. Holding municipalities immune from liability

whenever their final policymakers disregard their own

written policies would serve to encourage city leaders to flout

such rules. . . . Such a rule of law would thus serve to

undermine rather than enhance Section 1983’s purposes.” Id.

at 1285.

To be sure, the situation in Simmons was one where the

local government’s final policymaker (the board) was

violating its own policy, not a state statute. Id. at 1285 n.4

(distinguishing cases where defendant was “meaningfully

bound by policies developed by others,” which “often signals

that he or she is not a final policymaker”). But it’s hard to see

why a local official’s violation of a state statute should work

in the county’s favor as a federal defense when a violation of

a formal county ordinance or policy does not, as Simmons held.

See also Hollins v. Powell, 773 F.2d 191, 195 (8th Cir. 1985)

(affirming Monell liability where mayor ordered

unconstitutional arrests of local board members appointed by

his predecessor). 3

3 The majority tries to defang Bennett by suggesting it is has been im-

plicitly overruled by the Fifth Circuit. Ante at 17–18. The Fifth Circuit has

not said so, and the majority offers no direct response to the Tenth Cir-

cuit’s decision in Whitson. The majority also claims support from Roe v.

City of Waterbury, 542 F.3d 31 (2d Cir. 2008), which affirmed summary

judgment for a city on Monell liability where the mayor had sexually

abused children. Contrary to the majority’s hypothesis, I do not disagree

with the result in Roe. The theory for affirmance was different there: the

mayor had not been acting as a policymaker when he engaged in his

purely personal crimes. Id. at 38–41 (mayor “had no authority to make

policy authorizing, condoning, or promoting the sexual abuse of

No. 25-1685 33

The Broader Stakes: The majority’s reasoning here is

fundamentally at odds with the purpose and history of

Section 1983 and with the core reasoning of Monroe v. Pape

(with respect to individual defendants) and Monell (with

respect to municipal defendants).

Monroe held that the phrase “under color of” state law as

used in § 1983 embraces the “acts of an official or policeman

who can show no authority under state law, state custom, or

state usage to do what he did.” 365 U.S. at 172. In other words,

a violation of state law is not a defense to individual liability

under Section 1983. That should not be surprising, for in fact,

abuses of official authority granted by a state were the

principal targets of the Reconstruction-era Congress.

As suggested by Section 1983’s colloquial title, the Ku

Klux Act, the legislation responded to the “lawless conditions

existing in the South in 1871,” including racially and

politically motivated murder, rape, and arson, which

government officials routinely violated the law to ignore. Id.

at 172–75. The Court noted the absence of overtly

discriminatory laws (at that time) and called it “abundantly

clear that one reason the legislation was passed was to afford

a federal right in federal courts because, by reason of

prejudice, passion, neglect, intolerance or otherwise, state

laws”—such as colorblind criminal codes and provisions

children”). By contrast, a county’s policy of inaction in response to sexual

abuse of inmates in its jails can create Monell liability despite custodial

sexual abuse being a felony under state law, a fact mentioned several times

in this court’s en banc opinion in J.K.J. v. Polk County, 960 F.3d 367 (7th Cir.

2020). See id. at 372, 374, 376. In this case, there is no doubt that Coroner

Hyland was exercising and abusing his official power in violating the

Betts family’s rights.

34 No. 25-1685

governing access to judicial process—“might not be

enforced.” Id. at 176–77, 180.

Accordingly, the Supreme Court rejected in Monroe the

theory that the apparent availability of a common-law

remedy (for battery, trespass, etc.) in the Illinois courts against

police officers who entered a home and arrested its occupants

defeated the federal constitutional claims. Id. at 172. Section

1983 created a federal remedy that did not depend on whether

actions complied with any state law:

It is no answer that the State has a law which if

enforced would give relief. The federal remedy

is supplementary to the state remedy, and the

latter need not be first sought and refused

before the federal one is invoked. Hence the fact

that Illinois by its constitution and laws outlaws

unreasonable searches and seizures is no barrier to

the present suit in the federal court.

Id. at 183 (emphasis added).

Then in Monell, the Court recognized direct liability

against municipalities and other units of local government,

which it concluded are “persons” as that term is used in

§ 1983. 436 U.S. at 690. The Court cautioned that a

municipality is not liable through the theory of respondeat

superior “solely because it employs a tortfeasor,” but rather

when the municipality itself, “under color of some official

policy, ‘causes’ an employee to violate another’s

constitutional rights.” Id. at 691–92.

Monell fundamentally concerns causation: did either the

relevant “lawmakers” or, as here, “those whose edicts or acts

may fairly be said to represent official policy,” “inflict[] the

No. 25-1685 35

injury?” See id. at 694. Indeed, the Court’s opinion in Pembaur

construed Monell in terms of causation:

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. Monell reasoned that recovery

from a municipality is limited to acts that are,

properly speaking, acts “of the municipality”—

that is, acts which the municipality has officially

sanctioned or ordered.

475 U.S. at 479–80 (footnote omitted).

Viewed in its proper light as a question of causation, the

“official policy” standard of Monell has nothing to do with

whether a policy violates state law. The Congress that enacted

the Ku Klux Act knew that the southern states nominally

outlawed crimes like murder, arson, rape, kidnapping, and

other methods of terrorizing black citizens. The problem was

that local officials were not enforcing those laws and were

actively encouraging their violation in the campaigns of terror

to (re)establish white supremacy. Monroe, 365 U.S. at 172–80.

It would be odd, if not actually perverse, to construe § 1983 so

as not to reach such malfeasance by local officials and

governments that was the principal target of the law. It would

also be odd if violation of state law were a defense for one

class of “persons” who may be liable under § 1983, municipal

corporations, but not for the individual liability of natural

persons. The Supreme Court has not suggested as much, and

it’s hard to see why that would be a sensible interpretation of

§ 1983.

36 No. 25-1685

State law is significant insofar as it allocates final

policymaking authority between various officials, not in

whatever limits it imposes on how officials wield the

authority given to them. As the plurality put it in City of St.

Louis v. Praprotnik, the question is identifying which officials

act as the municipality in which “areas” of activity:

We begin by reiterating that the identification of

policymaking officials is a question of state

law. . . . The States have extremely wide latitude

in determining the form that local government

takes, and local preferences have led to a

profusion of distinct forms. Among the many

kinds of municipal corporations, political

subdivisions, and special districts of all sorts,

one may expect to find a rich variety of ways in

which the power of government is distributed

among a host of different officials and official

bodies. Without attempting to canvass the

numberless factual scenarios that may come to

light in litigation, we can be confident that state

law (which may include valid local ordinances

and regulations) will always direct a court to

some official or body that has the responsibility

for making law or setting policy in any given

area of a local government’s business.

485 U.S. 112, 124–25 (1988) (plurality) (emphasis added and

citations omitted); see also Jett v. Dallas Independent School

District, 491 U.S. 701, 737–38 (1989) (defining question

controlled by state law in general as “the identification of

those officials whose decisions represent the official policy of

the local governmental unit” and, in the particular case,

No. 25-1685 37

“whether Superintendent Wright possessed final

policymaking authority in the area of employee transfers”).

Here, identifying the responsible official is easy. Illinois

law grants the county coroner, an independently elected

official accountable only to the voters, sole authority to release

a dead body. The fact that he was required to comply with the

Illinois Constitution, state statutes, and the common law

while exercising this authority does not take releasing bodies

outside of his area of responsibility. If the Betts family can

prove the coroner acted as they allege, they should be able to

recover damages from the county for the actions of the elected

coroner, regardless of whether he also violated state law.