Respondeat Superior

What It Is

Respondeat superior (“let the master answer”) is a tort doctrine that holds employers liable for the wrongful acts of employees committed within the scope of employment. If a delivery driver runs a red light and hits you, the employer is liable.

Why It Doesn’t Apply to § 1983

In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court held that municipalities can be sued under § 1983 — but not on a respondeat superior theory. A city is not liable simply because it employs an officer who violated your rights.

Instead, you must show the violation resulted from a municipal policy, custom, or decision by a final policymaker.

Why This Matters

In any other area of law, if a police officer assaults you on the job, the city is automatically liable. In § 1983? You have to prove the city had a policy or custom that caused the violation.

This creates a massive gap. An officer who acts on their own — even repeatedly, even egregiously — doesn’t generate municipal liability unless you can connect the behavior to a policy, custom, or training failure.

The practical effect: cities shield themselves by saying “that was a rogue officer, not our policy.” Even when the pattern of “rogue” officers suggests a systemic problem.

The Historical Weakness of Monell’s Rejection

Monell’s rejection of respondeat superior isn’t as settled as it appears. The Court based it on the Forty-Second Congress’s rejection of the “Sherman Amendment” to the Ku Klux Act — a proposal to make cities liable for Klan violence within their borders. But legal historians have shown this was a misreading.

The Sherman Amendment was rejected because it imposed liability on cities for failing to prevent third-party violence — even with no notice and no ability to stop it. That’s a nonfeasance problem. Respondeat superior covers something fundamentally different: liability for your own employee’s malfeasance while acting within the scope of employment. The congressional objections to the Sherman Amendment were, as Professor Achtenberg documents, “utterly inapplicable” to respondeat superior. See David Achtenberg, Taking History Seriously: Municipal Liability Under 42 U.S.C. § 1983 and the Debate over Respondeat Superior, 73 Fordham L. Rev. 2183 (2005).

The anomaly

The result is striking:

• In every state, cities are liable under respondeat superior for ordinary torts — car accidents, slip-and-falls, medical malpractice by city employees
• Under federal § 1983, cities are exempt from respondeat superior for constitutional violations — the most serious wrongs their employees can commit
• The § 1983 standard is even more demanding than liability for independent contractors in ordinary tort law

Four Supreme Court Justices (Breyer, Stevens, Ginsburg, Souter) have called for reexamining Monell’s respondeat superior bar. The doctrine has been called “hanging by a thread.”

What this means for you

As a pro se plaintiff, you must work within Monell as it stands — proving policy, custom, or failure to train. But understanding why the doctrine is the way it is helps you see the workaround: custom and pattern evidence is functionally the closest available substitute for respondeat superior. If you can show repeated similar violations the city knew about and tolerated, you’re building the municipal liability case Monell requires.

Key Cases

• Monell v. Dep’t of Social Services, 436 U.S. 658 (1978) — No respondeat superior in § 1983
• Board of County Commissioners v. Brown, 520 U.S. 397 (1997) — Single hiring decision can create Monell liability only if the need to act was “plainly obvious”
• Owen v. City of Independence, 445 U.S. 622 (1980) — Cities have no qualified immunity defense
• City of Canton v. Harris, 489 U.S. 378 (1989) — Failure-to-train standard requires “deliberate indifference”

Further Reading

• David Achtenberg, Taking History Seriously: Municipal Liability Under 42 U.S.C. § 1983 and the Debate over Respondeat Superior, 73 Fordham L. Rev. 2183 (2005)