Journal of Legislation
Volume 27 | Issue 2

Article 5

5-1-2001

Municipal Liability under 42 U.S.C. 1983 and the
Ratification Theory of City of St. Louis v.
Praprotnik: An Analysis of Federal Circuit
Treatment;Note
Jack C. Hanssen

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Recommended Citation
Hanssen, Jack C. (2001) "Municipal Liability under 42 U.S.C. 1983 and the Ratification Theory of City of St. Louis v. Praprotnik: An
Analysis of Federal Circuit Treatment;Note," Journal of Legislation: Vol. 27: Iss. 2, Article 5.
Available at: http://scholarship.law.nd.edu/jleg/vol27/iss2/5

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Municipal Liability Under 42 U.S.C. §1983 and The
Ratification Theory of City of
St. Louis v. Praprotnik: An Analysis of Federal Circuit
Treatment
I. INTRODUCTION

Title 42, section 1983, provides a powerful means of redress for constitutional
grievances and injuries inflicted by the government and its agents.' Section 1983 provides the possibility that the court will award a recovery of attorney's fees to the successful claimant. 2 Additionally, the doctrine of sovereign immunity does not protect
cities and governmental entities (that are not arms of the state) from liability under
§1983. 3 These advantages make a §1983 cause of action an attractive one to any attorney representing a plaintiff who claims to be injured at the hands of the government.
The zealous advocate will seek any legal means to advance his client's claims under
§1983 and actively search for new theories of establishing liability under the section.
One theory that civil rights attorneys have used to establish §1983 liability is a ratification theory. Under a ratification theory, the plaintiff argues, that because the municipality subsequently approved of conduct by its officials that deprived the plaintiff of his
constitutional rights, the municipality should be liable under §1983. In City of St. Louis
4
v. Praprotnik,
a plurality in the United States Supreme Court accepted this theory:
when a final policy maker "approve[d] a subordinate's decision and the basis for it, their

1. See 42lJ.S.C. § 1983 (1994).
2. See The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988(b) (1994). The statute
provides that:
In any action or proceeding to enforce a provision of [section] . . . 1983 . . . the court,

in its discretion may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity such officer
shall not be held liable for any costs including attorney's fees, unless such action was
clearly in excess of such officer's jurisdiction. Id.
3. See Howlett v. Rose, 496 U.S. 356 (1990) (holding that, because of the supremacy clause in the United
States Constitution, Florida state law could not grant municipalities sovereign immunity from a claim under §
1983 when federal law excluded such immunity). Municipalities are not subject, however, to punitive damages
under § 1983. See Case Comment, Second Circuit Holds that Punitive Damages Are UnavailableAgainst
Municipalities: Ciraolo v. City of New York, 216 F.3d 236 (2d Cir. 2000). See also City of Newport v. Fact
Concerts, Inc., 453 U.S. 247 (1981).
4. See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion).

Journalof Legislation

[Vol. 27:2

5
ratification would be chargeable to the municipality.",
Regardless of the Supreme Court plurality's endorsement of the ratification theory,
any application of it is likely to encounter judicial resistance because of a widespread
judicial suspicion of § 1983 claims. Access to attorney's fees and state tax coffers makes
the § 1983 cause of action a prime target for abuse by plaintiffs' attorneys. Many conservative groups, such as the Washington Legal Foundation, have been skeptical of §1983
actions as ."more likely to be frivolous than . . . other suits.' 6 Stephen Ryals, of the
Practicing Law Institute, characterized the judicial attitude to §1983 claims:
A plaintiffs claim of municipal liability in a section 1983 police misconduct case is
cast into a sea of judicial reticence, skepticism and even hostility. One United States
District Judge summed up the body of law, and perhaps the judicial view of municipal
liability claims, in a case pending before her. When she was advised that [sic] plaintiff
intended to prove municipal liability for the beating suffered by the plaintiff, she re7
sponded, with a tint of sarcasm, "Good Luck."

In light of this atmosphere of suspicion and even hostility toward §1983 causes of
action, particularly with regard to claims of police misconduct, any broad application of
the ratification theory will meet judicial skepticism. While this skepticism may be partially justified by judicial concerns about abuse, such resistance should not frustrate a
victim's ability to attain a full redress for constitutional injuries.
This note .analyzes the judicial response to Praprotnik'sratification theory in the
federal circuits. Part II of the note traces the statutory and judicial development of
municipal liability under §1983. Part III outlines the emergence of the ratification theory
of municipal liability under §1983. Part IV sketches the different treatment of the
ratification theory under § 1983 within the different federal circuits. Part V criticizes the
narrow application of the ratification theory by the majority of circuits, and suggests that
these circuits adopt a more expansive application.
II.

FACTUAL AND LEGAL BACKGROUND OF MUNICIPAL LIABILITY UNDER

§1983

The Klu Klux Act of 1871,8 codified as amended in 42 U.S.C. §1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State. . ., subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for redress. 9
5. Id.
6. Brief for Washington Legal Foundation et al. as Amici Curiae at 17, cited in Howlett v. Rose, 496 U.S.
at 379.
7. Stephen M. Ryals, Proof of Municipal Liability in Police Misconduct Cases, PLI Order No. HO-002B,
9 (November 1998).
8. Ku Klux Klan Act of 1871, Pub. L. No. 96-170, 17 Stat. 13 (codified as amended in scattered titles and
sections of U.S.C.).

2001]

The Ratification Theory: City of St. Louis v. Praprotnik

The Supreme Court summarized the statutory elements of a § 1983 cause of action: "A
plaintiff must prove (1) a person (2) acting under color of state law (3) subjected the
plaintiff or caused the plaintiff to be subjected (4)10 to the deprivation of a right secured
by the Constitution or laws of the United States."
A person under § 1983 includes individuals in their private capacity,11 individuals
in their supervisory capacity, 12 and municipalities.13 A municipality is "merely a political subdivision of the State" or a "city deriving its authority from the State.' 14 The eleventh amendment, 15 16however, does not protect a municipality because it is not the state or
an xm of the state.
The standard for determining when a person (as defined supra)is acting under color
of law § 1983 is the same as the standard for determining when there is state action under
the fourteenth amendment. 17 The Supreme Court has held that "a willful participant in
joint activity with the State or its agents" may be liable under §1983.18
A §1983 claim must allege a violation of a right secured by the constitution or by
19 "The plaintiff must allege that some
federal law, a violation of state law is insufficient.
20
person has deprived him of a federal right.",
The final and crucial element in establishing §1983 municipal liability is proof that
the municipality caused the constitutional violation. The Supreme Court noted, in Monell v. New York City Dept. of Social Services,2 that the statutory language "subjects or
causes to be subjected" contained in § 1983 precluded the use of a respondeat superior

9. 42 U.S.C. § 1983 (1994).
10. City of Oklahoma City v. Tuttle, 471 U.S. 808,829 (1985).
11. See Adickes v. Hicks, 398 U.S. 144 (1970) (holding that, where the defendant was a private party
who had allegedly denied the plaintiff service at a restaurant because of racial prejudice, a claim under § 1983
could be sustained if it alleged that the private party had reached a tacit agreement with the police).
12. See Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir.1999) (holding that a supervisor can be liable under § 1983 if he directly participated in the constitutional deprivation, after learning of the deprivation he
failed to remedy the wrong, he created a policy or custom under which constitutional practices occurred, or he
was grossly negligent in managing subordinates who cause the deprivation).
13. Formerly, the Court, held that Congress did not intend § 1983 to provide a cause of action against
municipalities. See Monroe v. Pape, 365 U.S. 167 (1961). The Court revisited the legislative history of § 1983,
however, and overruled Monroe in so far as that decision had held that for the purpose of the act, a "person"
did not include municipalities as well as natural persons. See Monell v. New York City Dept. of Soc. Services,
436 U.S. 658, 663, 665, 690 (1978). The circuit courts have also consistently treated private corporations
acting under color of state law as municipal corporations for the purposes of imposing § 1983 liability. See
Austin v. Paramount Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999) (holding that principals of municipal liability "apply equally" to private corporations acting under color of state law).
14. United Bldg. and Constr. Trades Council v. Mayor of Camden, 465 U.S. 208,215 (1984).
15. U.S. CONST. amend. X.
16. See Howlett, 496 U.S. at 365, 378.
17. U.S. CONST. amend. XIV.
18. United States v. Price, 383 U.S. 787,794 (1966).
19. See Gomez v. Toledo, 446 U.S. 635, 640 (1980).
20. Id.
21. Monell v. New York City Dept. of Soc. Services, 436 U.S. 658 (1978).

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[Vol. 27:2

theory of liability against a municipality. 22 The Supreme Court held that "[t]he touchstone of the §1983 action against a government body is an allegation that official policy
is responsible for the deprivation of rights protected by the Constitution." 23 The Court
described the purpose of this touchstone: "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., 24 A municipality is
responsible under § 1983 only when its "final policy makers" create a "policy or custom"
which actually "inflicts the [constitutional] injury., 25 Exactly how a municipality's final
policymaker may inflict a constitutional injury was the issue that the Supreme Court
26
addressed in City of St. Louis v. Praprotnik.
II.

PRAPROTNIK AND THE EMERGENCE OF THE RATIFICATION THEORY UNDER

§1983
James H. Praprotnik was an architect employed by the Community Development
Agency (CDA) of St. Louis. The CDA created a policy that required the agency's professional employees to obtain agency approval before taking private clients.27 After
Praprotnik accepted a private client without first obtaining approval, the director of the
CDA suspended Praprotnik for violation of the policy. Praprotnik appealed his suspension to the Civil Service Commission and had his suspension reduced to a reprimand on
the grounds that the penalty of suspension was excessively harsh. Subsequently, his
performance evaluations became much less favorable in contrast to his previous evaluations. 28 The CDA transferred Praprotnik into a position of less responsibility, and eventually fired him. 29 Praprotnik filed a complaint against the City of St. Louis in federal
district court that alleged that he had been fired in retaliation for exercising his first
amendment rights before the Civil Service Commission. 30 The jury returned a verdict in
Praprotnik's favor and the city appealed. 1 The Court of Appeals for the Eighth Circuit
affirmed the verdict. 32 The circuit court stated that Praprotnik's supervisors were effectively the final policy makers for the city because they were not subject to de novo review by the Civil Service Commission and had fired Praprotnik in retaliation of exercis-

22. Id. at 692 (quoting 42 U.S.C. § 1983) (emphasis in court opinion).
23. Id. at 690.
24. Id.
25. Id. at 694.
26. The Supreme Court in Monell left the "full contours" of municipal liability under § 1983 to be developed "another day." Praprotnik,485 U.S. 112, 123 (1988) (citing Monell, 436 U.S. at 695).
27. See id. at 114.
28. See id. at 115.
29. See id. at 116.
30. See id. at 114-17.
31. See id. at 117. Praprotnik had also presented a claim of violation of due process and the jury found
the city liable on both theories. The Court of Appeals, however, vacated that part of the judgment. See id.
32. See id.

2001]

The Ratification Theory: City of St. Louis v. Praprotnik

ing his first amendment rights.33 The city appealed to the United States Supreme Court,
which granted certiorari. 4
The Supreme Court reversed and remanded the decision to the circuit court on the
grounds that the supervisors were not the authorized final policymakers in the City's
employment policy. 35 The plurality held that the question of whether an official has final
policymaking authority is to be determined by reference to state law and is not a question of fact to be determined by the jury.36 In Praprotnik's case, the City Charter "expressly [stated]" that the Civil Service Commission had the final authority over policymaking in matters of state employment. 37 The plurality noted that Praprotnik had presented no evidence to support the conclusion that the Civil Service Commission had
played any role in developing a policy of retaliatory action.38 Indeed, the only action the
commission had taken was action favorable to Praprotnik.39 Under the causation requirement of Monell and the principles of municipal liability, therefore, the city could
40
not be held liable for causing him constitutional injury.
The Supreme Court plurality issued its decision in Praprotnikfor the express purpose of clarifying a confusion in the circuit courts as to when "a decision on a single
occasion may be enough to establish an unconstitutional municipal policy."'4 1 In his
concurrence, Justice Brennan, however, argued that the plurality holding effectively
closed the door on municipal liability for single occasions of subordinate misconduct
authorized by the municipality. 42 He stated that municipal policymakers (authorized by
state law to make policy) could promulgate constitutional policies, but then delegate
their policymaking authority to subordinates and refuse to review the subordinate's unconstitutional conduct for conformity with the original policy. 43 This would effectively
protect the municipality from all liability because, under the plurality's ruling that policymaking authority was a question of state law rather than fact, only conduct done in
conformity with the announced policy could subject the municipality to liability.' The
subordinate official, not authorized to make policy by state law, could not subject the
45
municipality to liability.
33. See id.
34. Seeid. at ll8.
35. See id. at 118, 127.
36. See id. at 124.
37. See id. at 129 (citing ST. Louis CrrY CHARTER, art. XVIII, § 7(d), App. 63).
38. See Praprotnik, 485 U.S. at 128.
39. See id.
40. See supra notes 21-26 and accompanying text.
41. Praprotnik, 485 U.S. at 123. The Supreme Court plurality stated: "Two Terms ago, in Pembaur,...
we undertook to define more precisely when a decision on a single occasion may be enough to establish an
unconstitutional municipal policy .... Today, we set out again to clarify the issue that we last addressed in
Pembaur." Id. at 123-24 (citing Pembaur v. Cincinnati, 475 U.S. 469, 480 (1986).
42. See id. at 132.
43. See id. at 145.
44. See id.
45. See id.

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[Vol. 27:2

The plurality responded to Justice Brennan's criticism by pointing out different
ways in which the Civil Service Commission could have created municipal liability for
violating Praprotnik's constitutional rights:
It would be a different matter if a particular decision by a subordinate was cast in the
form of a policy statement and expressly approved by the supervising policymaker. It
would also be a different matter if a series of decisions by a subordinate official manifested a "custom or usage" of which the supervisor must have been aware. In both
those cases, the supervisor could realistically be deemed to have adopted a policy that
happened to have been formulated or initiated by a lower-ranking official. 46
This passage lays out two particular ways a final policymaker may subject the municipality to liability: (1) if the policymaker consents to a custom or usage which causes a
constitutional injury; or (2) if the policymaker approves a decision of a subordinate. The
second manner of creating municipal liability is referred to in this Note as the ratification theory."
The plurality made clear that, to establish liability under the ratification theory,
more than "[s]imply going along with discretionary decisions made by one's subordinates" is required. 47 Furthermore, the plurality held that a final policymaker's ratification of an unconstitutional act will be chargeable to the municipality ohly if the plaintiff
presents evidence that the final policymaker had "approved [the] subordinate's decision
'48
and the basis for it."
The final policymaker's approval, therefore, has to be a deliberate
one. Where the final policymaker has announced a constitutional policy, the "mere failure to investigate the basis of a subordinate's discretionary decisions" is not enough to
create liability.49 The failure to investigate is consistent with the final policymaker's
50
presumption that subordinates are faithfully carrying out the policies that guide them.
Nevertheless, if the policymaker has knowledge of an unconstitutional rationale, motive,
or effect of the subordinate's conduct, a policymaker's "[riefusals to carry out stated
policies could obviously help to show that a municipality's actual policies were different
from the ones that had been announced."'', In such a situation, the policymaker will have
ratified the unconstitutional conduct of the subordinate and subject the municipality to
52
liability.
The plurality intended the ratification theory of liability, combined with the custom
and usage theory, to provide adequate safeguards against municipal attempts to shield
themselves from liability by hiding behind state law. An analysis of federal circuit court
46. Id. at 130.
47. Id.
48. Id. at 127.
49. Id.
50. See id.
51. Id.
52. See id. at 131. The Court noted, "[ilf such a showing were made, we would be contronted with a difference case than the one we decide today." Id.

20011

The Ratification Theory: City of St. Louis v. Praprotnik

treatment applying the ratification theory, however, reveals that-their application of the
theory may have seriously limited the relief available to victims of constitutional abuse.
A. Analysis of Federal Circuit Court Treatment of Praprotnik
The federal circuits, upon encountering the ratification theory of Praprotnik,were
immediately faced with the dilemma of applying the common law of agency to a § 1983
cause of action with the strict causation requirement imposed by Monell. They have
handled this dilemma differently.
The Restatement (Second) of Agency defines ratification: "Ratification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect
as if originally authorized by him. ' '53 This definition does not require that the ratifier
cause the action in any way. The ratifier, rather, merely grants authority that relates back
to the time of the act and endorses it. Thus, when the common law of agency principle
of ratification is applied to §1983 law, it creates the possibility of a direct conflict with
the causation requirement of Monell.
The common law is only a tool in interpreting how the statute is to be applied. Justice Souter, in discussing the applicability of the common law of malicious prosecution
to §1983 analysis, has pointed out that the common law is "merely a 'starting point' for
the analysis under § 1983. '5 Faced with the possibility of a conflict between common
law principles of agency and § 1983 liability, therefore, the courts should either adapt the
principle to avoid the conflict or refuse to apply it in that situation.
There are some situations where it appears all circuits agree that there is no conflict
between ratification and the statutory causation requirement defined by Monell. For
example, when a constitutional injury is begun by a subordinate municipal officer but
continued or finalized by a reviewing authorized final policymaker, there is a clear
causal connection between the final policymaker's conduct and the constitutional injury.
An example of this situation is that to which the Northern District Court of Georgia has
suggested that the ratification theory of Praprotnikshould be limited:
This theory [of ratification] would more likely be applicable in a situation where a
plaintiff was fired by a municipality. In such a situation, there is typically a decision
made by a municipal employee who is not the final decisionmaker because his firing
decisions are generally reviewable by a civil service board. In such an instance, although the original decision to fire by the plaintiffs supervisor is not the final decision
on the matter, the subsequent approval by a review board would serve as the final decision chargeable to the municipality. This situation 55appears to be the type of situation
contemplated by the Supreme Court in Praprotnik.

53. RESTATEMENT (SECOND) OF AGENCY, §§ 82, 218 (1958).

54. Heck v.Humphrey, 512 U.S. 477,493 (1994) (Souter, J., concurring).
55. Thomas v. Clayton County Bd. of Educ., 94 F. Supp. 2d 1290, 1325 n.36 (N.D. Ga. 1999).

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[Vol. 27:2

Like the Georgia court, all circuits agree that if there is evidence that the reviewing
final policymaker ratified the subordinate's decision and the basis for it prior to the infliction of the injury or contemporaneously with the infliction, the municipality may
56
incur § 1983 liability.
There are other situations, however, where the causal connection between the final
policymakers ratification and the constitutional injury is not clear. For example, there
may be a situation where a police officer uses excessive force in arresting someone and
a superior deliberately refuses to investigate the incident, fails to reprimand the officer,
or engages in a cover-up of the incident. While, in such an instance, the arresting officer's conduct appears to have been ratified by an authorized policymaker, the causal
connection between the ratification and the infliction of the injury is tenuous. The circuits have struggled with the question of when, if ever, such ex postfacto ratification is
consistent with Monell's holding that § 1983 is subject to a strict causation requirement.
Most circuits have found that it is not.57 The Ninth, and possibly the Eighth Circuit,
however, have found a way to adapt the agency principle of ratification to the causal
requirement of Monell and permit ex post facto ratification in the context of §1983 li58
ability.
B. A Permissive Application of the Ratification Theory
1. The Ninth Circuit
The Ninth Circuit Court of Appeals makes the most broad application of Praprotnik's the ratification theory. The circuit court has adopted the common law of agency on
ratification into its theory of ratification liability under §1983 with a slight modification
in rationale to escape a conflict with the Monell causation requirement.
The Circuit Court held in Au Hoon v. City of Honolulu,59 held that a single instance
56. See, e.g., Hall v. Marion Sch. Dist. No. 2, 31 F.3d 183, 196 (4th Cir. 1994) (affirming the district
court's ruling that the city, knowing of retaliation by its subordinates against an employee's exercise of her
first amendment rights, could be liable under § 1983 for ratification of the injury); Meyers v. City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994) (affirming the district court's allowing a § 1983 judgment against a
city's civil service commission because it had ratified the firing of the plaintiff in violation of his first amendment rights when it refused to reverse the firing action taken at a lower level which it knew to be retaliatory);
Fiorenzo v. Nolan, 965 F.2d 348, 351 (7th Cir. 1992) (affirming the district court's grant of summary judgment on plaintiffs' § 1983 claim because the final policymaker had been out of town and was not informed of
the unconstitutional conduct of subordinates until after it had occurred); David v. City of Denver, 101 F.3d
1344, 1358 (10th Cir. 1997) (holding that a civil service commission could ratify personnel decisions and
create § 1983 municipal liability); Pearson v. Macon-Bibb Hosp. Auth., 952 F.2d 1274, 1281 (11 th Cir. 1992)
(reversing the district court's grant of summary judgment on § 1983 claim because there was sufficient evidence to allow a jury to find that the employer had ratified the decision to fire the plaintiff ab initio).
57. See infra Part IV.B.
58. See infra Part IV.A.
59. K. Au Hoon v. City of Honolulu, No. CV-88-0172-ACK, 1991 WL 1677 (9th Cir. Jan. 10, 1991).

The Ratification Theory: City of St. Louis v. Praprotnik

2001]

of ex post facto ratification may create §1983 liability. 60 A city prosecutor indicted Au
Hoon for first degree assault based on the victim's perjured testimony. 6' The prosecutor
learned of the perjured testimony before trial, but did not reveal the perjury until the
opening arguments.62 The court determined to proceed with the trial despite the use of
perjured testimony. 63 Before sentencing, the first deputy prosecuting attorney evaluated
the case including the statement of perjury by the victim, but did nothing. 64 After Au
Hoon spent thirteen months in prison, the Hawaii Supreme Court reversed the conviction and released Au Hoon. Au Hoon then brought a §1983 action against the prosecutor, the first deputy prosecutor, and the City and County of Honolulu.65 The district
court granted summary judgment in favor of Honolulu, in part, because it concluded that
no authorized policymakers had ratified the actions of the prosecutor. 66 In support of this
conclusion, the district court stated that there was no evidence that the first deputy
prosecution actually participated in the challenged decisions.67
The Ninth Circuit Court of Appeals reversed the district court. The court noted that
"[a] review of the transcript of proceedings below makes apparent that the district court
believed that 'ratification' could not apply to actions that had already been taken at a
lower level. That was error. 68 The court of appeals disagreed, stating:
[I]t is not correct to say that only actions approved in advance are 'ratified' for purposes of imposing liability on a municipality under section 1983. To do so confuses
decisionmaking authority with policymaking authority, and further ignores the fact69 that
ratification demonstrates that the act was consonant with the policy of the entity.
In support of its holding in Au Hoon,70 the court of appeals cited two cases from the
Sixth Circuit: Marchese v. Lucas71 and Leach v. Shelby County Sheriff.72 The Ninth
Circuit's broad application of the ratification theory, however, is inconsistent with the
See also Christie v. lopa, 176 F.3d 1231, 1240 (9th Cir. 1999) (reversing the district court's grant of summary
judgment on a § 1983 claim against a supervising prosecutor because there was evidence that he had ratified
his subordinate's selective prosecution of the plaintiff); Larez v. City of Los Angeles, 946 F.2d 630, 645 - 47
(9th Cir. 1991) (holding that the city's police chief, as final policymaker, could subject the city to § 1983
liability under a ratification theory when he sent a letter stating that the plaintiff's complaints about excessive
force would not be sustained).
60. AuHoon, 1991 WL 1677, at *4.
61. See id.
at 1.
62. See id.
63. See id.
64. See id.

65.
66.
67.
68.
69.
70.
71.
72.

See id.
See id. at 2.
See id. at 4.
Id.
Id.
See id.
758 F.2d 181, 188-89 (6th Cir. 1985); see infra notes 111-12 and accompanying text.
891 F.2d 1241, 1248 (6th Cir. 1989); see infra notes 113-14 and accompanying text.

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[Vol. 27:2

Sixth Circuit's own treatment of these cases because it allows a single instance of subsequent ratification to create liability. The Sixth Circuit has subsequently clarified its
opinions in these cases to exclude the position taken by the Ninth Circuit.7 3 The Ninth
Circuit citation of the Sixth Circuit's Marchese line of cases to support of its position,
therefore, appears to have been off base. The Eighth Circuit is the only other circuit to
follow broad application of the ratification theory.
2. The Eighth Circuit
In the Eighth Circuit, there are only three district court opinions that mention the
ratification theory of Praprotnikand none of them deal with the issue extensively. 74 The
district cases suggest that the courts in Eighth Circuit have reached a modified version
of the Ninth Circuit's approach.75 These cases allow ex postfacto ratification, but place
strict formality requirements on what conduct counts as ratification.
In Copper v. City of Fargo,7 6 the plaintiffs argued that "the City of Fargo is liable
for plaintiffs' constitutional claims . . . because the City of Fargo ratified Niemann's
unconstitutional arrest of plaintiffs after learning about the extent of plaintiffs' picketing
route." 77 The city admitted that during discovery that the "defendant Niemann acted
pursuant to the City's official policies, customs, practices, and procedures when he arrested plaintiffs., 78 The district court entertained the possibility of ex postfacto ratification but declined to find it in this case. The district court noted that the admissions were
"not the equivalent of an affirmative decision, cast in the form of a policy statement, to
ignore training deficiencies or completely omit training about the proper enforcement of
the residential anti-picketing ordinance. 79
The position taken by the Ninth and Eighth Circuits is a minority one. Most other
circuits have adopted the position that allowing subsequent ratification to create municipal liability under §1983 permits vicarious liability in violation of Monell.
C. A Limited Application of the Ratification Theory
1. The Third Circuit
In Looney v. City of Wilmington,80 a district court in the Third Circuit addressed the
73. See infra notes 115-118 and accompanying text.
74. See Springdale Educ. Ass'n v. Springdale Schl. Dist., 133 F.3d 649 (8th Cir. 1998); Westborough
Mall, Inc. v. City of Cape Girardeau, 901 F.2d 1479 (8th Cir. 1990); Williams v. Butler, 863 F.2d 1398 (8th
Cir. 1988).
75. See infra notes 76-79 and accompanying text.
76. Copper v. City of Fargo, 905 F. Supp. 703 (D.N.D. 1995).
77. Id. at 708.
78. Id.
79. Id. (citations omitted).
80. Looney v. City of Wilmington, 723 F. Supp. 1025 (D. Del. 1989).

2001]

The Ratification Theory: City of St. Louis v. Praprotnik

possibility of a conflict between an ex post facto application of Praprotnik'sratification
theory and the causation requirement of Monell.8' The district court decided to avoid
running afoul of Monell by refusing to allow the ratification theory of Praprotnikto
apply to ex postfacto situations.
In Looney, the plaintiff claimed that the city had ratified an illegal search and use of
excessive force by its police officers when its final policymaker reviewed a report of the
incident and found that the arresting officers had not violated city policy.8 2 The district
court granted summary judgment because the alleged incidence of ratification occurred
after the infliction of any constitutional injury and, therefore, could not be the cause of
the injury.83 The district court noted the problem presented in attempting to apply the
ratification theory as it was announced in Praprotnik: "[T]he Supreme Court has never
explained exactly what it meant by the ratification theory set forth in Praprotnik.Does
ratification mean approval of a subordinate's action before those actions are taken, or
does it mean approval after the subordinate has acted?" 84 The district court concluded
that "the Supreme Court's emphasis on the element of causation in actions involving
municipal liability" required that the "ratification of an employee's actions must occur
prior to when the employee acts" because "[cilearly, a government's later ratification of
85
an employee's actions could not in any sense be viewed as the cause of those actions.,
2. The Eleventh Circuit
The Eleventh Circuit Court of Appeals has successfully avoided the question raised
by the ratification theory of Praprotnik.86 The district courts in the circuit, however,
have followed the Delaware district court's decision in Looney 87 and boldly opposed the
81. The only time that the Court of Appeals of the Third Circuit has considered the ratification theory was
in Andrews v. City of Philadelphia,895 F.2d 1469 (3d Cir. 1990), and did not involve any dispute about the
causation requirement of Monell.
82. See Looney, 723 F. Supp. at 1036.
83. See id. at 1037.
84. Id.
85. Id. at 1037 (citing Monell, 436 U.S. 658, 692). The district court in Looney, however, did not base its
decision to grant summary judgment solely upon this reasoning. The court considered two other factors. First,
the district court noted that other Circuits had only applied the ratification theory to instances of ratification
that occurred prior the completion of the injury. Looney, 723 F. Supp. at 1036 (citing Melton v. City of Oklahoma City, 879 F.2d 706, 725 (10th Cir. 1989) (holding the city was liable under § 1983 for the unconstitutional firing of its employee by a subordinate official where its final-policy maker expressly approved the

dismissal)). Second, the Looney court pointed out that in the case before them, the report before the final
policymaker only reflected the offending officer's version of the facts and not the plaintiff's version. The city
official, therefore, could not have knowingly approved the basis of the unconstitutional behavior of the officer
because he had no reason to suspect its existence. See Looney, 723 F. Supp. at 1037.
86. See Mandel v. Doe, 888 F.2d 783, at 793-94 n.17 (1 1th Cir. 1989) (holding that because the municipality's final policymaking authority had delegated authority over medical assistance of prisoners to a physician's assistant who directly caused a constitutional injury, there was no need to consider the question of
whether a final policy maker ratified the conduct of the physician's assistant).
87. See supra notes 80-85 and accompanying text (discussing the Third Circuit's decision in Looney v.
City of Wilmington, 723 F. Supp. 1025 (D. Del. 1989)).

Journalof Legislation

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ex post facto application of the ratification theory to § 1983.8
In Gainorv. Douglas County, 89 the plaintiff brought a §1983 action in the Northern
District of Georgia based on a violation of his fourth amendment rights by a county
police officer. 90 The plaintiff claimed that the county supervisor had ratified the officer's
conduct in a subsequent public statement of approval and that this was sufficient to create liability under the Supreme Court's decision in Praprotnik.9' Citing the Delaware
district court's opinion in Looney as support, 92 the United States District Court for the
Northern District of Georgia held that:
[Tihe Supreme Court has clearly held that a municipality can only be liable if its policy
was the moving force behind a constitutional violation. A post hoc approval of an action already taken could not possibly be the motivating force for causing the action to
be taken. Thus, in order to impose liability under a ratification based theory, it is necessary to show prior ratification of the policy giving rise to the action alleged to have
violated the plaintiffs federal rights, such that the ratification of that policy could be
said to be the moving force behind the alleged constitutional violation. Thus, plaintiff's
ratification theory of liability is denied.93
The district court could not have been clearer: the ratification theory of Praprotnikwas
only to apply to contemporaneous or prior approval of unconstitutional conduct.
Apparently, however, the district court had not been clear enough. In the year thereafter, the district court faced a virtually identical claim in Thomas v. Clayton County
Board of Education.94 In Thomas, a student brought a § 1983 action in the district court
against the city based on an allegedly unconstitutional strip search at school.95 The
plaintiff claimed that the city had ratified the strip search and could be held liable under
the ratification theory of Praprotnik, because the school district conducted a cursory
investigation and took no corrective action after hearing of the complaint. 96 The district
court held true to its position in Gainor: "Plaintiff's reliance on Praprotnikis misplaced.
...In the instant case, the searches were concluded, and no after-the-fact approval or
disapproval could change the fact that the searches had already occurred., 97 After-thefact (or ex post facto) ratification, according to the district court, may not create § 1983
liability.9"
The district court in Gainordid sketch out a situation where subsequent ratification
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.

See infra note 92-93 and accompanying text.
Gainor v. Douglas County, 59 F. Supp. 2d 1259 (N.D. Ga. 1998).
See id. at 1268.
See id. at 1292.
Id. at 1293 (citing Looney, 723 F. Supp. at 1037).
Id. (internal citations omitted).
Thomas v. Clayton County Bd.of Educ., 94 F. Supp. 2d 1290 (N.D. Ga. 1999).
See id. at 1298.
Seeid. at 1325.
Id.
See id.

2001]

The Ratification Theory: City of St. Louis v. Praprotnik

of unconstitutional conduct could create liability. The district court stated that if the
plaintiff presented evidence that the county police officers had previously made the
decision to use excessive force and had gone unpunished for these decisions by the final
policymaker, this would be evidence that a "custom or usage existed for [the final policymaker] to ratify." 99
This idea that subsequent ratification of unconstitutional conduct requires evidence
of a prior custom or usage of the same type of conduct has been reaffirmed by other
district courts in the Eleventh Circuit. In Mizell v. Lee,1°° another district court in the
circuit confronted a case in which the plaintiff brought a § 1983 action against the city on
the theory that it had subsequently ratified the use of excessive force against him by
failing to investigate the incident.' 0 ' The city made a motion for summary judgment
against the plaintiff. The court denied the motion, holding that:
Standing alone, the failure of the City to investigate the allegations leveled by plaintiff
... in no way establishes a policy or custom on the part of the City to acquisce to the
alleged unconstitutional actions of [the defendant police officer].... Plaintiffs, however, have alleged that the City not only acquiesced to the actions of [the defendant police officer] in the present case, but that the City also acquiesced in a prior case involving the use of excessive force by [the same defendant police officer]. Therefore, in accordance with the Supreme Court's decision in Praprotnik,a genuine issue of material
fact exists as to whether a custom existed on the part of the city council to acquiesce to
the use of excessive force by [the defendant police officer]. 12
Thus, while the courts in the Eleventh Circuit oppose the idea that a single incident of
subsequent ratification can create §1983 liability, they are willing to impose liability if
the incident of subsequent ratification is combined with prior instances sufficient to
03
show a policy or custom.'
3. The Seventh Circuit
The Seventh Circuit Court of Appeals has also noted the ambiguousness of Praprotnik. The Court of Appeals stated in Cornfield v. ConsolidatedHigh School Dist. No.
230,'04 "[a]rguably, the endorsement or ex post authorization could create liability for

99. Gainor v. Douglas County, 59 F. Supp. 2d. 1259, 1292 (N.D. Ga. 1998).
100. Mizell v. Lee, 829 F. Supp. 1338 (M.D. Ga. 1993).
101. Seeid.at 1341-42.
102. Id. at 1342.
103. See, e.g., Samarco v. Neumann, 44 F. Supp. 2d 1276, 1289 (S.D. Fla. 1999) (holding that to survive
summary judgment on a theory of ratification under Prapronik, the plaintiff had to .present evidence that
demonstrated the "existence of a custom which caused a deprivation of federal rights, and that the custom was
so widespread that [the final policymaker], although aware, acquiesced in the unlawful custom").
104. See Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316 (7th Cir. 1993) (dismissing
the plaintiff's claim that the municipality's school principle had ratified an allegedly unconstitutional search of
its students).

Journalof Legislation

[Vol. 27:2

any unconstitutional searches."' 10 5 Yet, the circuit court has all but stated that it believes
ex post facto ratification, without any direct evidence of causation, is not a permissible
application of the Praprotnikratification theory.
In Kernats v. O'Sullivan,'0 6 the Seventh Circuit Court of Appeals held that an ex
post facto ratification of unconstitutional conduct, with no evidence of causation, is not
sufficient to establish § 1983 liability.10 7 In Kernats, the plaintiff alleged that the police,
cooperating with her landlord, conducted an unconstitutional search and seizure of her
person and property.10 8 The plaintiff sought to establish municipal liability for the alleged constitutional injury because a supervisor ratified the police officer's actions.1 ° 9
The Court of Appeals stated:
The complaint simply states that Wade 'ratified' O'Sullivan's conduct when he met
with the Kernats several days later and when he wrote them a letter attempting to explain and justify O'Sullivan's actions. By this time, of course, any unconstitutional seizure that may have taken place had been accomplished and Wade could have done
nothing to undo that fact. Wade's ex post attempt to dissuade the Kernats from taking
their case to the media (or the courts) by rationalizing O'Sullivan's behavior is not the
type of involvement in a constitutional violation that gives rise to §1983 liability."i0
While this holding leaves open the possibility that some ex post facto affirmative approval of unconstitutional conduct beyond a persuasive effort not to go to the media
might create municipal liability, the opinion's strong emphasis on the irreversibility of
the harm suggests that the possibility of such a holding is closed in fact, if not in actuality.
4. The Sixth Circuit
In a pre-Praprotnikdecision, Marchese v. Lucas,"' the Sixth Circuit Court of Appeals affirmed a district court's ruling in favor of a plaintiff who alleged that the city had
1 12
ratified two custodial beatings that constituted excessive force against the plaintiff.
The circuit court reaffirmed the continued validity of this decision after Praprotnikin
Leach v. Shelby County Sheriff."3 In Leach, the Court of Appeals, following Marchese,
affirmed the district court's decision in favor of the plaintiff on the theory that the supervisory official had ratified the unconstitutional acts of his subordinates, depriving the
plaintiff of needed medical attention while in jail, and could be liable, therefore, under
105.
106.
107.
108.
109.
110.
111.
112.
113.

Id. at 1326.
Kernats v. O'Sullivan, 35 F.3d 1171 (7th Cir. 1994).
Seeid. at 1182-83.
See id. at.1173.
Seeid.at 1182-83.
Id.
Marchese v. Lucas, 758 F.2d 181 (6th Cir. 1985).
See id. at 188-89.
Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir. 1989).

2001]

The Ratification Theory: City of St. Louis v. Praprotnik

§1983.114
The Sixth Circuit, however, has distinguished the Marchese line of cases in Dyer v.
Casey." 5 In Dyer, the plaintiff appealed summary judgment on his claim that he had
been subjected to an unreasonable strip search by a police officer and that the county
had ratified the conduct by a failure to investigate. 116 The plaintiff relied upon the theory
set out in Marchese and Lucas, that a "failure to investigate or discipline amounts to a
"ratification" of the officers conduct." 117 The circuit court affirmed the district court's
grant of summary judgment, distinguishing the cases relied upon by the plaintiff. According to the circuit court in these cases, "the responsible governmental entity took
absolutely no action in the face of several prior incidents which should have required an
investigation into the employee's conduct. Here, however, the [police] department conducted meaningful investigations into the incidents involving Casey." '" 8 Because there
was no evidence of a previous custom of insufficient investigation or discipline of the
defendant police officer, the circuit court believed it could not find ratification under
§1983.
The Sixth Circuit explicitly denied the possibility of ex post facto ratification in
Williams v. Ellington.'19 In Williams, the plaintiff claimed that the city had ratified an
unconstitutional search of a school student by a teacher. 120 The circuit court accepted
that the city had ratified the search, but skeptically remarked that the plaintiff's "only
grasp at evoking municipal liability under §1983 is to show that this subsequent ratification is sufficient to establish the necessary causation requirements."' 2'1 The circuit court
went on, after noting the lack of any prior instances of unconstitutional searches approved by the board, to find that the School Board could not be liable "for the ratification of the search in question, because this single, isolated decision can hardly constitute
the "moving force" behind the alleged constitutional deprivation.' 22
The position adopted by the courts in the Third, Sixth, Seventh, and Eleventh Cir-

114. Id. at 1248.
115. Dyer v. Casey, No. 94-5780, 1995 WL 712765, *2 (6th Cir. Dec. 4, 1995) (per curiam).
116. See id.
117. Id.
118. Id.
119. Williams v. Ellington, 936 F.2d 881 (6th Cir. 1991).
120. See id. at 884.
121. Id. This holding in Williams has been subsequently followed by other decisions within the circuit.
See Feliciano v. City of Cleveland, 988 F.2d 649, 656 n.6 (6th Cir. 1993) (stating that even where an unconstitutional drug test might have been ratified, the plaintiff would still have to prove that the ratification was the
moving force of the violation to establish § 1983 liability); Caron v. City of Oakwood, 1993 WL 1377512
(S.D. Ohio 1993) (explaining that even if there had been a subsequent ratification of a sheriff's possibly unconstitutional seizure of depictions of nude adults, this ratification could not have been the moving force of the
violation) (citing Monell, 436 U.S. at 694); see also, Fisher v. City of Cincinnati, 753 F.Supp. 681 (S.D. Ohio
1990) (holding that the plaintiff alleging that a city ratified unconstitutional conduct by its police officers must
prove causation in order to recover on a § 1983 claim).
122. Williams, 936 F.2d at 885.

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[Vol. 27:2

cuits appears to be that shared by the First,1' 3 Second, 124 and Fourth 25 circuits as well,
although they have not addressed the causation question as directly. Thus, this position
1 26
constitutes the majority opinion of the circuits. The positions taken by the Fifth,
123. The First Circuit Court of Appeals has also found that ratification must occur prior to the completion of the act to preserve the causal connection required by Monell. In Landrigan v. City of Warwick, 628
F.2d 736 (1st Cir. 1980), the First Circuit upheld a district court's dismissal of the plaintiff's §1983 claim
alleging that the City of Warwick had ratified the use of excessive force against him by failing to investigate
the incident. See id. at 739. The Court of Appeals disposed of this claim in a footnote:
We fail to see . . . how section 1983 liability can be predicated on a ratification theory
in the context of this case. Holding the municipalities liable here "would ignore the fundamental requirement that there be a causal connection between the action or inaction
on the part of the municipality and constitutional wrongs visited on the plaintiff.
Id. at 747 n.7 (citing Monell, 436 U.S. 658, 692).
The First Circuit Court of Appeals then entertained the theory that the City could be held liable for its
failure to investigate a charge of perjury brought against one of the police officers who had been involved in
the incident and, therefore, become liable for any damage that resulted from the continuing conspiracy to
cover-up of the incident by the police officers. Landrigan, 628 F.2d at 747. The court stated, "We do not
believe that a municipality's failure to investigate this isolated charge of perjury growing out of civil litigation
between a policeman and a citizen would be sufficient, by itself, to establish its liability for the conduct here in
question." Id. This opinion suggests that if there had been evidence of prior instances of a failure to investigate
the police officer for perjury, the municipality could be liable for having ratified a policy of non-investigation
that caused the constitutional injury.
124. The courts in the Second Circuit use the word "acquiescence" to describe the ratification theory to
connote that the theory requires contemporaneous. or prior approval and that subsequent ratification would be
insufficient. Sorlucco v. New York City Police Dep't., 971 F.2d 864 (2nd Cir. 1992) (stating that the city
could be liable under § 1983 if the plaintiff proved that the discriminatory practices of subordinates were so
manifest as to demonstrate constructive acquiescence by the city's senior policymaking officials). See also
Ariza v. City of New York, 1996 WL 118535 (E.D.N.Y. 1996) (holding that the city could be liable under a §
1983 ratification theory if its Commissioner, as final policymaker, approved of a custom of retaliatory discrimination against the plaintiff).
125. An analysis of the Fourth Circuit Court of Appeals' opinion in Hall v. Marion Sch. Dist. No. 2 reveals that the appellate court would require that any liability imposed under the. ratification theory occur prior
to the constitutional injury so that it could be said to have "participated" in causing the injury. Hall v. Marion
Sch. Dist. No. 2, 31 F.3d 183, 196 (4th Cir. 1994) (affirming the district court's ruling that the city, knowing
of retaliation by its subordinates against an employee's exercise of her first amendment rights, could be liable
under § 1983 for ratification of the injury).
A district court in the Fourth Circuit has imposed severe requirements on an application of the ratification
theory under § 1983, requiring that in order to establish municipal liability under the ratification theory the city
must have not only ratified the decision and the basis for it but also "made a calculated choice to follow the
course of action deemed unconstitutional." Green v. Fairfax County Sch. Bd., 832 F. Supp. 1032, 1043
(E.D.Va. 1993) (quoting Pachaly v. City of Lynchburg, 897 F.2d 723, 726 (4th Cir. 1990)). The district court,
in support of its holding, also cited a Sixth Circuit holding in Williams that a "single isolated decision by a
school board to ratify [a] warrantless strip search made pursuant to lawful policy was insufficient to establish §
1983 liability." Green, at 1043 (citing Williams v. Ellington, 936 F.2d 881, 884-85 (6th Cir. 1991)); see supra
notes 119-22 and accompanying text. It appears that, in the Fourth Circuit, a single instance of ratification of
an unconstitutional act by a subordinate is insufficient to establish liability.
126. The Court of Appeals for the Fifth Circuit has only looked at the ratification theory presented by
Praprotnik once. In that case, an owner of a towing service alleged that his first amendment rights had been
violated when a license to use a police radio frequency in his business had been revoked by the police chief,
and that the city had ratified the injury caused by the police chief. The court of appeals reversed the dismissal
of the ratification claim by the district court. See Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir.
1995).

2001]

The Ratification Theory: City of St. Louis v. Praprotnik

377

Tenth, 127 and District of Columbia12 8 Circuits are unclear, while the Ninth and Eighth
Circuits eschew the majority position and hold that ex post facto ratification is not nec29
essarily subject to a causal deficiency under Monell.1
IV. CONCLUSION

The circuits that disagree with the Ninth and Eighth Circuits' position on the ratification theory do so for two reasons. First, they believe that subsequent ratification, by
itself, is irreconcilable with the causation requirement of Monell and is, therefore, not
contemplated by the plurality in Praprotnik. Second, they believe that allowing one
simple instance of subsequent ratification of an employee's improper conduct to create
liability will subject the municipality to the difficulty of choosing between litigation and
supporting a possibly valuable employee.' 3 In the end, the first reason is chimerical;
and the second is insufficient. The position taken by the Ninth and Eighth Circuits is
more consistent with a close reading of the plurality's reasoning in Praprotnikand a
concern for the rights of persons upon whom the state inflicts constitutional injury.
The majority of circuits believe that subsequent ratification, by itself, necessarily
conflicts with the Monell requirement of causation. This position, however, is inconsistent. As the Ninth Circuit has remarked, the First Circuit Court of Appeals has pointed
out that the Supreme Court, "'has never held that inferences about what customs or poli'1 3
cies existed in a city before an event could not be drawn from subsequent actions." '

In a recent district court opinion, the theory of subsequent ratification was directly laid out: "[a] sherriff
cannot be held vicariously liable for the acts of subordinates or deputies unless he ratifies the wrongful acts of
the subordinates or deputies." The court refused to hold the sherriff liable because, "nothing in the record
establishes that Sheriff Harris was the cause of this extended stay [in prison]." Campbell v. Harris, 2000 WL
349746, *9 (N.D. Tex. 2000) (citing Brown v. Byer, 870 F.2d 975 (5th Cir. 1989)). But see C-I v. City of
Horn Lake, 775 F. Supp. 940, 949 (N.D. Miss.1990). In City of Horn Lake, the district court implied that direct
causation would not be necessary. A group of middle school students made § 1983 claim, alleging fourth and
fourteenth amendment violations against themselves by a police officer. See id. at 943. They further alleged
that the supervising police officer ratified the violations as a final policymaker in his decision to prosecute the
children and thereby subjected the municipality to liability. See id. at 949. Based upon this evidence of subsequent ratification, the court denied the motion for summary judgment on the ratification claim. See id.
127. The Tenth Circuit has not sufficiently addressed the causal requirements of the ratification theory
under § 1983 to predict its stance on this issue. See Harris v. Williams, 1994 WVL 446772, *1 (10th Cir. 1994);
David v. City of Denver, 101 F.3d 1344, 1358 (10th Cir. 1996). One district court case in the circuit, however,
has suggested that subsequent ratification is sufficient to establish liability. See L.B. v. Washington County,
905 F. Supp. 979, 985 and n.7 (C.D. Utah 1995) (remarking that a Sheriff's subsequent review of a subordinate's reports that confirmed that the procedures used by police officers were in accord with city policy would
be sufficient to establish § 1983 municipal liability).
128. The only case discussing the ratification theory of Praprotnik in the federal circuit for the District of
Columbia sheds little light on the circuit's stance on whether or not an ex post facto ratification may create §
1983 municipal liability. See Carter v. District of Columbia, 14 F. Supp. 2d 97 (D.D.C. 1998).
129. See supraPart IV.A.
130. See infra note 137 and accompanying text.
131. Henry v. County of Shasta, 132 F.3d 512, 519 (9th Cir. 1997) (quoting Bordano v. McLeod, 871
F.2d 1151, 1166-67 (lstCir. 1989)).

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[Vol. 27:2

Accordingly, many circuits, including the First 13 2 and Second 13 3 Circuits, in the context
of a custom or usage theory of municipal liability, have held that subsequent conduct by
a final policymaker is relevant to establishing the existence of a policy that caused a
prior unconstitutional action by a subordinate.1 34 Admittedly, these circuits, in that context, require that a plaintiff also show some prior instances of unconstitutional conduct
to establish a custom or usage. Yet, to admit that subsequent conduct by a final policymaker has any relevance admits the proposition set forth by the Ninth Circuit: in the
context of ratification theory liability, evidence of subsequent ratification may "demonstrate[] that the act was consonant with the policy of the entity."' 135 Once that is admitted, it is possible to infer from the fact that a constitutional violation was consonant with
municipal policy, that the municipal policy caused the act.
Furthermore, the position of the majority of circuits is inconsistent with the Supreme Court plurality's primary objective in establishing the ratification theory in Praprotnik. Most circuits have conflated the ratification theory with the "custom or usage"
theory. These circuits demand that the plaintiff make some showing of prior instances
establishing a custom or usage when attempting to prove liability by subsequent ratifica132. Id. at 519 (citing Bordano, 871 F.2d at 1167).
133. Id. (citing Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985)). The court of appeals in Henry
quoted Grandstaff.
[I]n the aftermath of [a shooting that constituted excessive force], there were no reprimands, no discharges, and no admissions of error. The officers testified at the trial that
no changes had been made in their policies. If that episode of such dangerous recklessness obtained so little attention and action by the City policymaker the jury was entitled to conclude that it was accepted as the way things are done and have been done in
the City of Borger. If prior policy had been violated, we would expect to see a different
reaction. If what the officers did and failed to do . . . was not acceptable to the police
chief, changes would have been made.
This reaction to so gross an abuse of the use of deadly weapons says more about the
existing disposition of the City's policymaker than would a dozen incidents where individual officers employed excessive force. The policymaker's disposition, his policy
on the use of deadly force, after [the date of the shooting] was evidence of his disposition prior to [that date]. As subsequent conduct may prove discriminatory motive in a
prior employment decision, and subsequent acts may prove the nature of a prior conspiracy, so the subsequent acceptance of dangerous recklessness by the policymaker
tends to prove his preexisting disposition and policy.
Henry, 132 F.3d at 519 (quoting Grandstaff,767 F.2d at 171) (citations omitted by Ninth Circuit).
134. Henry, 132 F.3d at 519. The Ninth Circuit noted:
[The First Circuit concluded] that such inferences were proper. Id. at 1167. See also
Black v. Stephens, 662 F.2d 181, 190-91 (3d Cir. 1981) (police chief's failure to institute adequate investigatory procedures for determining when police officers should be
disciplined constituted official policy encouraging excessive use of force); Jones v.
City of Chicago, 787 F.2d 200, 207 (7th Cir. 1986) (had prior complaint in companion
case not been thoroughly investigated by city, reasonable inference could be drawn regarding city's deliberate indifference to safety and well-being of patients at public
health clinic).
Id.
135. K Au Hoon v. City of Honolulu, No. CV-88-0172-ACK, 1991 WL 1677, *1 (9th Cir. Jan. 10,
1991).

20011

The Ratification Theory: City of St. Louis v. Praprotnik

tion. This runs directly contrary to the objective of the ratification theory set out in Praprotnik to outline an instance where a single decision by a final policymaker may subject the municipality to liability. The plurality, expressly remarked that, "[r]efusals to
carry out stated policies could obviously help to show that a municipality's actual policies were different from the ones that had been announced. If such a showing were
' 136
made, we would be confronted with a different case than the one we decide today."
The plurality's remark demonstrates that, under its reasoning in Praprotnik,it believed
that liability could be imposed under § 1983, where, in a single instance, a final policymaker refuses to conduct a proper investigation when it is aware that that policy has
been violated.
Perhaps the position of the majority of circuits may simply be interpreted as a
higher bar of evidence applied to cases where the ratification claim rests on evidence of
subsequent ratification. The courts have, in fact, advanced good policy reasons for such
a higher standard of evidence:
There are also strong public policy reasons for this holding. If a municipality could be
held liable merely for approving of an officer's actions on the occasion under attack,
each time a § 1983 suit were filed, the municipality would be forced to choose between
risking taxpayers' dollars and undermining a good employee who may 37
have done nothing wrong. The law does not force such a choice upon municipalities.'
The courts are afraid to subject municipal policymakers to the fear that a single instance
of upholding the conduct of an employee may subject them to liability.
The municipality's concern about vulnerability to § 1983 liability should be properly
balanced against the victim's right to redress under § 1983. In a concurring judgment
joined by Justices Marshall and Blackmun, Justice Brennan sharply accused the plurality's holding that the question of who was a final policymaker was determined by state
law. Brennan stated that the holding enabled municipalities to shield themselves from all
liability under § 1983.138 He argued that final policymaking authorities could delegate
their policymaking authority to subordinates and thereby permit municipalities to insulate themselves from all liability. 139 When the policymaker's subordinates inflict a constitutional injury, the municipality would be protected from liability because of the plurality's ruling that final policymaking authority was a question of state law and not fact.
Justice Brennan stated:
Under the plurality's theory, therefore, even where an official wields policymaking authority with respect to a challenged decision, the city would not be liable for that official's policy decision unless reviewing officials affirmatively approved both the "deci136.
137.
138.
139.

City of St. Louis v. Praprotnik, 485 U.S. 112, 131 (1988) (plurality opinion).
Gainor v. Douglas County, 59 F. Supp. 2d 1259, 1293 n.41 (N.D. Ga. 1998).
See Praprotnik,485 U.S. at 132.
See id.

Journalof Legislation

[Vol. 27:2

sion and the basis for it." Reviewing officials, however, may as a matter of practice
never invoke their plenary oversight authority, or their review powers may be highly
circumscribed. Under such circumstances, the subordinate's decision is in effect the final municipal pronouncement on the subject. Certainly a §1983 plaintiff is entitled to
place such considerations before the jury, for the law is concerned not with the niceties
of legislative draftsmanship but with the realities of municipal decisionmaking, and
any assessment of a municipality's actual power is necessarily a factual and practical
one. 140
The ratification theory proposed by the plurality was crucial to its response to Brennan's criticism. The plurality pointed out that if a policymaker refused to carry out
stated policies, such as failing to invoke proper review of a subordinate's conduct (the
example suggested by Brennan), could create liability because such a refusal would
demonstrate that the actual policy was different than the constitutional one formally
announced by the policymaker.141 Thus, the plurality stated that it did not believe that it
had left a "'gaping hole' in § 1983 that needs to be filled with the vague concept of 'de
142
facto final policymaking authority.'
The circuit courts should reconsider their bright line rule against ex postfacto ratification. A categorical denial of relief in these instances weakens this protection and may
result in the realization of the fears of the concurrence in Praprotnik:that municipalities
will shield themselves from all liability for the isolated unconstitutional acts of their
subordinates by refusing to review their conduct even when the policymakers are aware
of the possible unconstitutionality of these acts.
Jack C. Hanssen*

140. Id. at 145.
141. Id. at 131.
142. Id. at 131 (quoting the concurrence at 145 n.7).
Candidate for Juris Doctor, NotreDame Law School, 2002. This Note is dedicated to my father and
mother because it is from their love that I have received the gifts of my faith, family, and education. I would
also like to give a special thanks to Charles Michael Tarone and Richard Trimber for their guidance and constant support.