Mario Colin McConney v. The City of Houston, and Lee P. Brown, Individually and in His Official Capacity as Chief of Police of the City of Houston

GOLDBERG, Circuit Judge,

specially concurring:

I am pleased to concur in the majority’s fine opinion. For clarification purposes, I want to set forth one point that I believe is consistent with Judge Garwood’s opinion for the court. The point centers on whether a municipal policy must itself be unconstitutional to support Section 1983 liability. Because the majority finds the city policy unconstitutional in this case, its opinion does not need to reach the more difficult issue that I address here purely for purposes of clarification.

A city can be held liable for the deprivation of an individual’s constitutional rights in two different ways. One way is when the city itself, through its city council or an authorized final policymaker, 1 deprives a person of a constitutional right. The other way is when a city policy, not unconstitu *1189 tional in itself, canses the predicate unconstitutional act. Thus, an unconstitutional policy may be sufficient to establish municipal liability, but the unconstitutionality of a policy is not necessary in every type of case to hold a city liable.

First, when the city’s policy or custom is the actual, direct predicate constitutional violation, of course, the policy is an unconstitutional policy. See Newport v. Fact Concepts, Inc., 453 U.S. 247 , 101 S.Ct. 2748 , 69 L.Ed.2d 616 (1981) (city council canceled concert permit for content-based reasons). The actor in such a case is the city governing body itself or a final policymaker. McConney’s detention does not involve this direct type of municipal liability.

McConney was detained in jail by low-level 2 city employees. The Supreme Court has not yet informed us whether a “city can be subjected to liability for a policy that while not unconstitutional in and of itself, may give rise to constitutional deprivations” actually effectuated by low-level city employees. City of St. Louis v. Praprotnik, — U.S. -, 108 S.Ct. 915, 936 , 99 L.Ed.2d 107 (1988) (plurality opinion; Justice Brennan’s concurrence specifically notes that the issue is open); see Harris v. City of Canton, 798 F.2d 1414 (6th Cir.1986), ce rt. granted, City of Canton v. Harris, — U.S. -, 108 S.Ct. 1105 , 99 L.Ed.2d 267 (1988) (argued November 8, 1988 concerning municipal liability issue); City of Springfield v. Kibbe, 480 U.S. 257 , 107 S.Ct. 1114, 1116, 1121-22 , 94 L.Ed.2d 293 (O’Connor, J., dissenting). No case in our circuit has held that that a policy must be unconstitutional before liability may attach to a city.

Second, the city may be liable to a section 1983 plaintiff when the city policy “causes”, the predicate unconstitutional act in violation of a specified standard of care. See Stokes v. Bullins, 844 F.2d 269, 272-75 (5th Cir.1988); Grandstaff v. City of Borger, 767 F.2d 161, 168-70 (5th Cir.1985); Languirand v. Hayden 717 F.2d 220 (5th Cir.1983). In these instances, of which McConney’s case is one, the municipal policy or custom must be either grossly negligent, recklessly, or intentionally in disregard of a Section 1983 plaintiff’s constitutional rights to support municipal liability. 3

. See City of St. Louis v. Praprotnik, — U.S. -, 108 S.Ct. 915, 926 , 99 L.Ed.2d 107 (1988); Pembaur v. Cincinnati, 475 U.S. 469, 481-84 , 106 S.Ct. 1292, 1299-1300 , 89 L.Ed.2d 452 (1986).

. When I use the phrase "low-level” I intend no denigration and use the phrase as it is used in government parlance to refer to a nonpolicy-making echelon civil servant.

. Requiring an unconstitutional municipal policy in every case would lead to undesirable and sometimes nonsensical consequences with respect to both the language of the statute and common sense. In the language of the statute, the elements of a § 1983 cause of action require a plaintiff to prove that: (1) a person; (2) acting under color of state law; (3) subjected the plaintiff or caused the plaintiff to be subjected; (4) to the deprivation of a right secured by the Constitution or laws of the United States. Elements three (causation) and four (predicate constitutional violation) involve separate inquiries. When a municipality "causes [the plaintiff] to be subjected" to a deprivation of a constitutional or statutory right, the question of causation should be concerned only with degrees of foreseeability and levels of conduct (negligence, gross negligence, recklessness, and intentional disregard).

Requiring an unconstitutional policy on top of a predicate violation (in presumably both constitutional and nonconstitutional cases) goes beyond the words of the statute and creates a nearly impregnable fortress for an injured plaintiff to pierce. Also, Congress intended that predicate violations can occur in both constitutional and nonconstitutional federal law cases.

It would be irrational to require an unconstitutional policy in a statutory case. The deprivation of a federal statutory right does not necessarily implicate the Constitution in every case. For example, imagine a case in which a city establishes a policy which violates a handicapped child’s federal statutory right to receive a particular type of education. The predicate violation occurs when a principal in the local school, acting in accordance with the city’s policy, refuses to provide the child with some extra assistance which the federal statute requires. The city policy does not have to be unconstitutional for the city to be liable because the city has “caused” the principal to deprive the handicapped child of a federal statutory right. See generally Del A. v. Edwards, 855 F.2d 1148 (5th Cir.1988) (en banc granted) (§ 1983 case involving Child Welfare Act).