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Bennett v. City of Slidell

United States Court of Appeals, Fifth Circuit
Jul 9, 1984
735 F.2d 861 (5th Cir. 1984)

Summary

denying reh'g (with opinion)

Summary of this case from Coon v. Ledbetter

Opinion

No. 81-3236.

July 9, 1984.

Frank M. RePass, III, New Orleans, La., for City of Slidell, Gerry Hinton, et al.

R. Gordon Kean, Jr., Pamela C. Walker, Baton Rouge, La., David W. Oestreicher, II, New Orleans, La., Fernando J. Estopinal, III, Slidell, La., for amicus-La. Municipal Assoc.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, BROWN, GEE, GARZA, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges.


ON PETITION FOR REHEARING


This court unanimously agrees upon the following statement:

A municipality is liable under § 1983 for a deprivation of rights protected by the Constitution or federal laws that is inflicted pursuant to official policy.

Official policy is:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or

2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.

Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.

The majority of the court regard the foregoing statement to be in accord with the original opinion in this case and we reaffirm the further definition of the contours of city liability explained in part 4 of that opinion. Bennett v. City of Slidell, 728 F.2d 762, 767-769 (5th Cir. 1984). By that writing, inter alia, we rejected the line of authority, discussed in part 3 and represented in particular by our opinion in Schneider v. City of Atlanta, 628 F.2d 915 (5th Cir. 1980), which would permit policy or custom to be attributed to the city itself by attribution to any and all city officers endowed with final or supervisory power or authority. Only those policymakers defined in part 4 may, by their declaration of formal policy or accession to custom, subject the city to liability in the absence of such declaration or accession by the governing body itself. We affirm, however, the writing in Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980), as it relates to the officer who obtains policymaking authority by virtue of the office to which that officer is elected.

The petition for rehearing filed by the appellee is DENIED.

POLITZ, Circuit Judge, joined by GARZA, TATE, JOHNSON and JERRE S. WILLIAMS, Circuit Judges, concur in the general statement contained in the per curiam but would grant rehearing, being convinced that Bennett was aggrieved by the official policy of the municipality for the reasons stated in the dissenting opinion.


Summaries of

Bennett v. City of Slidell

United States Court of Appeals, Fifth Circuit
Jul 9, 1984
735 F.2d 861 (5th Cir. 1984)

denying reh'g (with opinion)

Summary of this case from Coon v. Ledbetter

denying reh'g (with opinion)

Summary of this case from Rhode v. Denson

denying reh'g with opinion

Summary of this case from Rhode v. Denson

denying reh'g (with opinion)

Summary of this case from Van Ooteghem v. Gray

denying petition for reh'g

Summary of this case from Franks v. Wayne Cnty.

denying reh'g with opinion

Summary of this case from Morrow v. City of Tenaha Deputy City Marshal Barry Wa.

stating that liability of a municipality under § 1983 attaches only where a deprivation of a constitutional right is caused by an official policy or a custom so established as to fairly represent official policy

Summary of this case from Morales v. Boyd

modifying 728 F.2d 762 (en banc)

Summary of this case from Jett v. Dallas Independent School District

defining "official policy" for purposes of municipal liability under section 1983

Summary of this case from O'Quinn v. Manuel

rehearing petition denied

Summary of this case from Flores v. Edinburg Consol. Independent School

defining official policy

Summary of this case from Babin v. Par. of Jefferson

In Bennett, 735 F.2d at 862, the the Fifth Circuit indicated the lesser authority of appointed officials by rejecting the reasoning of Schneider v. City of Atlanta, 628 F.2d 915. The Plaintiff in Schneider alleged that the director of the Atlanta Bureau of Corrections retaliated against her in violation of the First Amendment while she was employed at the Bureau.

Summary of this case from Joiner v. City of Ridgeland, Miss.

In Bennett, the Fifth Circuit highlighted the distinction between the authority of appointed and elected officials, noting the broad policymaking authority sometimes conferred on elected officials in local government. 735 F.2d at 862 (modifying 728 F.2d at 762.)

Summary of this case from Joiner v. City of Ridgeland, Miss.

In Bennett, the reasoning of which is reaffirmed in Jett, the Fifth Circuit rejected a claim against a city based upon the actions of the city attorney, although it affirmed the personal liability of the attorney.

Summary of this case from Joiner v. City of Ridgeland, Miss.

modifying 728 F.2d at 762.

Summary of this case from Joiner v. City of Ridgeland, Miss.
Case details for

Bennett v. City of Slidell

Case Details

Full title:HENRY J. BENNETT, JR., PLAINTIFF-APPELLEE, v. CITY OF SLIDELL, GERRY…

Court:United States Court of Appeals, Fifth Circuit

Date published: Jul 9, 1984

Citations

735 F.2d 861 (5th Cir. 1984)

Citing Cases

Joiner v. City of Ridgeland, Miss.

In subsequent opinions, both the Supreme Court and the Fifth Circuit have stressed that the latter statement…

Rhode v. Denson

Of course, in a finite sense every decision by a policymaker is one "promulgated by the . . . lawmaking…