Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991). · Go Syfert
Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991). Cases Citing This Book View Copy Cite
87 citation events (60 in the last 25 years) across 31 distinct courts.
Strongest positive: FOX v. MAKIN (med, 2023-08-16) · Strongest negative: Bruce & Tanya & Associates v. Board of Supervisors, Fairfax (ca4, 2021-05-10)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 49 distinct citers. How cited ↗
cited Cited "but see" Bruce & Tanya & Associates v. Board of Supervisors, Fairfax
4th Cir. · 2021 · signal: but see · confidence high
But see Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788 , 791–792 (7th Cir. 1991).
examined Cited as authority (verbatim quote) FOX v. MAKIN
D. Me. · 2023 · signal: see · quote attribution · 1 verbatim quote · confidence high
it is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the 'policy' of enforcing state law.
examined Cited as authority (verbatim quote) Jordan v. Lee
M.D. Tenn. · 2022 · quote attribution · 1 verbatim quote · confidence high
it is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the 'policy' of enforcing state law.
examined Cited as authority (verbatim quote) Reid v. Lee
M.D. Tenn. · 2022 · quote attribution · 1 verbatim quote · confidence high
it is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the 'policy' of enforcing state law.
examined Cited as authority (verbatim quote) BOHANON v. CITY OF INDIANAPOLIS
S.D. Ind. · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
it is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the 'policy' of enforcing state law.
examined Cited as authority (verbatim quote) Jordan v. Lee
M.D. Tenn. · 2020 · quote attribution · 1 verbatim quote · confidence high
it is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the 'policy' of enforcing state law.
examined Cited as authority (verbatim quote) Joshua Vasquez v. Kimberly Foxx
7th Cir. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
it is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the 'policy' of enforcing state law.
examined Cited as authority (quoted) Joshua Vasquez v. Kimberly Foxx
7th Cir. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
it is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the 'policy' of enforcing state law.
cited Cited as authority (rule) Sally Ness v. City of Bloomington
8th Cir. · 2021 · confidence medium
Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788, 790-92 (7th Cir. 1991).
discussed Cited as authority (rule) Martin v. Evans
D. Mass. · 2017 · confidence medium
If the language and standards from Monell are not to become a dead letter, such a ‘policy’ simply cannot be sufficient to ground liability against a municipality.” 928 F.2d 788, 791-92 (7th Cir. 1991); see also Bethesda Lutheran Homes & Servs., Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998) (stating that “the position of this circuit” is that a county “cannot be held liable under section 1983 for acts that it did under the command of state or federal law”).
cited Cited as authority (rule) Yi v. Yang
Alaska · 2012 · confidence medium
Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir.1991).
discussed Cited as authority (rule) Fisher v. Kealoha
D. Haw. · 2012 · confidence medium
Moreover, City asserts that "[t]he mere enforcement of state law on the part of local government, in the absence of express incorporation or adoption of state law into local regulations, has been found insufficient to sustain a federal action under § 1983.” (City MTD Mem. at 13 (citing Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788, 790 (7th Cir.1991))).
discussed Cited as authority (rule) N.N. v. Madison Metropolitan School District
W.D. Wis. · 2009 · confidence medium
This circuit’s take on the issue is set forth in two opinions, Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir.1991), and Bethesda Lutheran Homes and Services, Inc. v. Leean, 154 F.3d 716, 718 (7th Cir.1998), but the discussions in both cases are relatively brief and not necessarily completely consistent.
discussed Cited as authority (rule) Sherman Ex Rel. Sherman v. Township High School District 214
N.D. Ill. · 2009 · confidence medium
As this court has recently recognized, “it is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the ‘policy’ of enforcing state law.” See CSWS LLC v. Village of Bedford Park, 2008 WL 4148530 , *2 (N.D.Ill.2008) (quoting Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir.1991)).
discussed Cited as authority (rule) Vives v. City of New York (2×) also: Cited "see"
2d Cir. · 2008 · confidence medium
Rather, he claims that the City itself formulated an unconstitutional policy that allowed his arrest. 8 county board did not act in a policy-making capacity when it fired plaintiff because termination procedures and criteria were prescribed by the state although the state procedures allowed the county board some discretion); Surplus Store and Exch., Inc. v. City of Delphi, 928 F.2d 788, 791 (7th Cir. 1991) (holding insufficient for Monell liability plaintiff’s claim that municipality had a policy of enforcing state statutes and stating: “It is difficult to imagine a municipal policy more i…
discussed Cited as authority (rule) Vives v. City of New York (2×) also: Cited "see"
2d Cir. · 2008 · confidence medium
See Bockes *352 v. Fields, 999 F.2d 788, 791 (4th Cir.1993) (holding that county board did not act in a policy-making capacity when it fired plaintiff because termination procedures and criteria were prescribed by the state although the state procedures allowed the county board some discretion); Surplus Store and Exch., Inc. v. City of Delphi, 928 F.2d 788, 791 (7th Cir.1991) (holding insufficient for Monell liability plaintiffs claim that municipality had a policy of enforcing state statutes and stating: “It is difficult to imagine a municipal policy more innocuous and constitutionally perm…
discussed Cited as authority (rule) Dennis Reeves Cooper v. Gordon A. Dillon (2×) also: Cited "see"
11th Cir. · 2005 · confidence medium
Similarly, we reject Dillon’s argument that, based on the reasoning in Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791 (7th Cir.1991), Key West cannot be liable for enforcing an unconstitutional state statute which the municipality did not promulgate or adopt.
examined Cited as authority (rule) Wong v. City & County of Honolulu (3×) also: Cited "see"
D. Haw. · 2004 · confidence medium
Surplus Store & Exchange, Inc. v. City of Delphi 928 F.2d 788, 791-92 (7th Cir.1991).
discussed Cited as authority (rule) Lui v. Commission on Adult Entertainment Establishments of the Delaware
D. Del. · 2003 · confidence medium
In other words, as the Third Circuit has stated, “when a county is merely enforcing state law, without adopting any particular policy of its own, it cannot be held liable ----” Doby v. DeCrescenzo, 171 F.3d 858 (3d Cir.1999) (citing with approval Surplus Store and Exch., Inc. v. City of Delphi, 928 F.2d 788, 790-92 (7th Cir.1991)); see also Leatherman, supra, 507 U.S. at 166 , 113 S.Ct. 1160 (“In short, a municipality cannot be held liable unless a municipal policy or custom caused the constitutional injury.”).
discussed Cited as authority (rule) Gulino v. Board of Education of the City School District of New York
S.D.N.Y. · 2002 · confidence medium
The following are the § 1983 cases cited by BOE: Caminero v. Rand, 882 F.Supp. 1319, 1325 (S.D.N.Y.1995); Thompson v. Duke, 882 F.2d 1180, 1185 (7th Cir.1989), cert. denied, 495 U.S. 929 , 110 S.Ct. 2167 , 109 L.Ed.2d 496 (1990); Surplus Store & Exchange, Inc. v. Delphi, 928 F.2d 788, 790-92 (7th Cir.1991); Bethesda Lutheran Homes & Servs., Inc., v. Leean, 154 F.3d 716, 718 (7th Cir.1998); Bigford v. Taylor, 834 F.2d 1213, 1222-23 (5th Cir.); McMahon v. Novello, 192 F.Supp.2d 54, 66 (W.D.N.Y.2001); Koster v. Perales, 903 F.2d 131, 139 (2d Cir.1990); Unger v. Blum, 117 A.D.2d 607 , 498 N.Y.S.2…
discussed Cited as authority (rule) Bethesda Lutheran Homes and Services, Inc. v. Joseph Leean
7th Cir. · 1998 · confidence medium
That at least is the position of this circuit, Quinones v. City of Evanston, 58 F.3d 275, 278 (7th Cir.1995); Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir.1991), and also of the Sixth Circuit.
cited Cited as authority (rule) Rossi v. Town of Pelham
D.N.H. · 1997 · confidence medium
First, Pelham cites Surplus Store & Exchange Inc. v. City of Delphi, 928 F.2d 788, 791 (7th Cir.1991), for the proposition that a municipality cannot be held liable for merely enforcing state law.
cited Cited as authority (rule) Rossi v. Town of Pelham
D.N.H. · 1997 · confidence medium
First, Pelham cites Surplus Store & Exchange Inc. v. City of Delphi, 928 F.2d 788, 791 (7th Cir. 1991), for the proposition that a municipality cannot be held liable for merely enforcing state law.
cited Cited as authority (rule) Yeo v. Town of Lexington
1st Cir. · 1997 · confidence medium
See Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir. 1991).
discussed Cited as authority (rule) Minnesota Council of Dog Clubs v. City of Minneapolis (2×)
Minn. Ct. App. · 1995 · confidence medium
Surplus Store & Exchange v. City of Delphi, 928 F.2d 788, 791 (7th Cir.1991).
discussed Cited as authority (rule) Children's Healthcare is a Legal Duty, Inc. v. Deters
S.D. Ohio · 1995 · confidence medium
“It is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the ‘policy’ of enforcing state law.” Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791 (7th Cir.1991).
discussed Cited as authority (rule) Baxter v. Vigo County School Corporation
7th Cir. · 1994 · signal: cf. · confidence medium
Cf. Surplus Store & Exch. v. City of Delphi, 928 F.2d 788, 791-92 (1991) (stating that "the language and standards from Monell are not to become a dead letter").
discussed Cited as authority (rule) Baxter ex rel. Baxter v. Vigo County School Corp.
7th Cir. · 1994 · signal: cf. · confidence medium
Cf. Surplus Store & Exch. v. City of Delphi, 928 F.2d 788, 791-92 (1991) (stating that “the language and standards from Monell are not to become a dead letter”).
cited Cited as authority (rule) Town of Bourne v. Polito
Mass. Super. Ct. · 1993 · confidence medium
Surplus Stores and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir. 1991).
discussed Cited as authority (rule) Caldwell v. City of Elwood, Indiana
7th Cir. · 1992 · confidence medium
Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 790 (7th Cir.1991); Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir.1985); see also Partee v. Metropolitan School Dist. of Washington Township, 954 F.2d 454, 455-56 (7th Cir.1992) (quoting City of St.
discussed Cited as authority (rule) Caldwell v. City of Elwood
7th Cir. · 1992 · confidence medium
Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 790 (7th Cir.1991); Strauss v. City of Chicago, 760 F.2d 765, 768 (7th Cir.1985); see also Partee v. Metropolitan School Dist. of Washington Township, 954 F.2d 454, 455-56 (7th Cir.1992) (quoting City of St.
discussed Cited as authority (rule) Marzec v. Village of Crestwood, Ill.
7th Cir. · 1991 · confidence medium
The plaintiffs' claim is foreclosed by our recent decision in Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir.1991), in which Chief Judge Bauer wrote: 14 It is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the "policy" of enforcing state law.
discussed Cited as authority (rule) Hinkfuss v. Shawano County
E.D. Wis. · 1991 · confidence medium
Monell, et al. v. Dept of Social Services of the City of New York, 436 U.S. 658, 690-91 , 98 S.Ct. 2018, 2035-36 , 56 L.Ed.2d 611 (1978); City of Oklahoma City v. Tuttle, 471 U.S. 808 , 105 S.Ct. 2427 , 85 L.Ed.2d 791 (1985); Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 790 (7th Cir.1991); Erwin v. City of Manitowoc, 872 F.2d 1292 , 1297 (7th Cir. 1989).
discussed Cited "see" Marshall Spiegel v. Corrine McClintic
7th Cir. · 2019 · signal: see · confidence high
See Surplus Store & Exch., Inc. v. City of Del‐ phi, 928 F.2d 788, 791 (7th Cir. 1991) (rejecting the argument that a municipality was liable because it “ha[d] a ‘policy’ of allowing or instructing its police officers to enforce the chal‐ lenged statutes”).
discussed Cited "see" Spiegel v. McClintic
7th Cir. · 2019 · signal: see · confidence high
See Surplus Store & Exch., Inc. v. City of Delphi , 928 F.2d 788 , 791 (7th Cir. 1991) (rejecting the argument that a municipality was liable because it "ha[d] a 'policy' of allowing or instructing its police officers to enforce the challenged statutes").
discussed Cited "see" Marshall Spiegel v. Corrine McClintic
7th Cir. · 2019 · signal: see · confidence high
See Surplus Store & Exch., Inc. v. City of Del‐ phi, 928 F.2d 788, 791 (7th Cir. 1991) (rejecting the argument that a municipality was liable because it “ha[d] a ‘policy’ of allowing or instructing its police officers to enforce the chal‐ lenged statutes”).
cited Cited "see" Boston Taxi Owners Ass'n. v. City of Boston
D. Mass. · 2016 · signal: see · confidence high
See Yeo v. Town of Lexington, 131 F.3d 241, 257 (1st Cir. 1997) (Stahl, J., concurring) (citing Surplus Store & Exch., Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir. 1991)).
discussed Cited "see" David Snyder v. J. King etal (2×)
7th Cir. · 2014 · signal: see · confidence high
See Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir.1991); Whitesel v. Sengenberger, 222 F.3d 861, 872 (10th Cir.2000) (county cannot be liable for “merely implementing” a policy created at the state level); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980) (municipal entity cannot be held liable for simply enforcing state law because the municipal policy in that instance “may more fairly be characterized as the effectuation of the policy of the State ... embodied in that statute, for which the citizens of a particular county should not bear s…
discussed Cited "see" David Snyder v. J. King
7th Cir. · 2014 · signal: see · confidence high
See Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir. 1991)); Whitesel v. Sengenberger, 222 F.3d 861, 872 (10th Cir. 2000) (county cannot be liable for “merely implementing” a policy created at the state level); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980) (municipal entity cannot be held liable for simply enforcing state law because the municipal policy in that instance “may more fairly be characterized as the effectuation of the policy of the State … embodied in that statute, for which the citizens of a particular county should not be…
discussed Cited "see" Doby v. DeCrescenzo
3rd Cir. · 1999 · signal: see · confidence high
See Surplus Store and Exch., Inc. v. City of Delphi, 928 F.2d 788, 790-92 (7th Cir.1991); cf. Garner v. Memphis Police Dep’t, 8 F.3d 358, 364-66 (6th Cir.1993) (stating that municipality would be held liable under Monell where state law authorized police officers to use deadly force to apprehend fleeing felons but municipality adopted a policy explaining when such force could be used).
discussed Cited "see" Rebecca S. Doby Herbert K. Doby, in No. 98-1124 v. James Decrescenzo Bucks County Department of Mental Health and Mental Retardation Phillip M. Fenster, County Administrator, Bucks County Department of Mental Health and Mental Retardation, in His Official Capacity Amy Bryant, Individually and in Her Official Capacity as Delegate for the County Administrator of the Bucks County Department of Mental Health/mental Retardation Lenape Valley Foundation Debbie Neidhardt, Individually and in Her Official Capacity as Delegate for the County Administrator of the Bucks County Department of Mental Health and Mental Retardation Township of Warrington Warrington Township Police Department John Bonargo, Chief of Police, Warrington Township Police Department, in His Official Capacity John Doe, Police Officer 1, Officer Who, With Police Officer 2, Asked Mrs. Doby to Step Outside Apartment at Approximately 7:00 P.M. And Took Mrs. Doby in Handcuffs and Shackles to the Hospital, Individually and in His Official Capacity as Police Officer of Warrington Township John Doe, Police Officer 2, Officer Who, With Police Officer 1, Asked Mrs. Doby to Step Outside Apartment at Approximately 7:00 P.M. And Took Mrs. Doby in Handcuffs and Shackles to the Hospital, Individually and in His Official Capacity as Police Officer of Warrington Township John Doe, Police Officer 3, Officer Who Came to the Dobys' Apartment at Approximately 7:00 P.M. On December 30, 1993, and Remained at Their Apartment After Mrs. Doby Was Taken to the Hospital, Individually and in His Official Capacity as Police Officer of Warrington Township Lenape Valley Foundation John C. Richards, M.D. Doylestown Hospital Joseph Knox, Sergeant, of the Warrington Township Police Department, in His Official and Individual Capacity Michael Neipp, Officer, of the Warrington Township Police Department, in His Official and Individual Capacity Kenneth Hawthorn, Officer, of the Warrington Township Police Department, in His Official and Individual Capacity Rebecca S. Doby Herbert K. Doby, in No. 98-1224 v. James Decrescenzo Bucks County Department of Mental Health and Mental Retardation Phillip M. Fenster, County Administrator, Bucks County Department of Mental Health and Mental Retardation, in His Official Capacity Amy Bryant, Individually and in Her Official Capacity as Delegate for the County Administrator of the Bucks County Department of Mental Health/mental Retardation Lenape Valley Foundation Debbie Neidhardt, Individually and in Her Official Capacity as Delegate for the County Administrator of the Bucks County Department of Mental Health and Mental Retardation Township of Warrington Warrington Township Police Department John Bonargo, Chief of Police, Warrington Township Police Department, in His Official Capacity John Doe, Police Officer 1, Officer Who, With Police Officer 2, Asked Mrs. Doby to Step Outside Apartment at Approximately 7:00 P.M. And Took Mrs. Doby in Handcuffs and Shackles to the Hospital, Individually and in His Official Capacity as Police Officer of Warrington Township John Doe, Police Officer 2, Officer Who, With Police Officer 1, Asked Mrs. Doby to Step Outside Apartment at Approximately 7:00 P.M. And Took Mrs. Doby in Handcuffs and Shackles to the Hospital, Individually and in His Official Capacity as Police Officer of Warrington Township John Doe, Police Officer 3, 2 Officer Who Came to the Dobys' Apartment at Approximately 7:00 P.M. On December 30, 1993, and Remained at Their Apartment After Mrs. Doby Was Taken to the Hospital, Individually and in His Official Capacity as Police Officer of Warrington Township Lenape Valley Foundation John C. Richards, M.D. Doylestown Hospital Joseph Knox, Sergeant, of the Warrington Township Police Department, in His Official and Individual Capacity Michael Neipp, Officer, of the Warrington Township Police Department, in His Official and Individual Capacity Kenneth Hawthorn, Officer, of the Warrington Township Police Department, in His Official and Individual Capacity
3rd Cir. · 1999 · signal: see · confidence high
See Surplus Store and Exch., Inc. v. City of Delphi, 928 F.2d 788, 790-92 (7th Cir.1991); cf. Garner v. Memphis Police Dep't, 8 F.3d 358, 364-66 (6th Cir.1993) (stating that municipality would be held liable under Monell where state law authorized police officers to use deadly force to apprehend fleeing felons but municipality adopted a policy explaining when such force could be used).
cited Cited "see" Yeo v. Town of Lexington
1st Cir. · 1997 · signal: see · confidence high
See Surplus Store & Exchange, Inc. v. City of Delphi 928 F.2d 788, 791-92 (7th Cir.1991).
discussed Cited "see" Yeo v. Town Of Lexington
1st Cir. · 1997 · signal: see · confidence high
See Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir.1991). 102 In the end, defendants are entitled to judgment because they did not, under § 1983, ultimately cause the conduct of the non-party students.
cited Cited "see" Yeo v. Town of Lexington
1st Cir. · 1997 · signal: see · confidence high
See Surplus Store & Exchange, Inc. v. City of Delphi, ___ ______________________________ ______________ 928 F.2d 788, 791-92 (7th Cir. 1991).
cited Cited "see, e.g." Kevin Link v. City of Granite City
S.D. Ill. · 2025 · signal: see also · confidence medium
Id. at 691, 98 S.Ct. at 2036 ; see also Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 790 (7th Cir. 1991).
discussed Cited "see, e.g." Newsome v. Robinson
S.D. Ill. · 2024 · signal: see also · confidence medium
Id. at 691, 98 S.Ct. at 2036 ; see also Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 790 (7th Cir.1991). officers who engage in unjustified use of excessive and unreasonable force[.]” 3.
discussed Cited "see, e.g." Dakota Rural Action v. Noem
D.S.D. · 2019 · signal: see, e.g. · confidence medium
See, e.g., Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir. 1991) (“It is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the ‘policy’ of enforcing state law.
discussed Cited "see, e.g." Nichols v. Brown
C.D. Cal. · 2012 · signal: see also · confidence low
However, “mere enforcement of a state statute is not a sufficient basis for imposing § 1983 municipal liability.” Wong v. City & County of Honolulu, 333 F.Supp.2d 942, 951 (D.Hawai’i 2004); see also Surplus Store and Exchange, Inc. v. City of Delphi 928 F.2d 788 , 791 n. 4 (7th Cir.1991) (refusing to construe state law as a municipal policy in section 1983 claim on the ground that doing so “would allow municipalities to be nothing more than convenient receptacles of liability for violations caused entirely by state actors-here, the [state] legislature”).
discussed Cited "see, e.g." Anderson v. Town of Durham
Me. Super. Ct · 2003 · signal: see, e.g. · confidence low
See, e.g., Surplus Store and Exchange, Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991) (imposing no liability upon local officials enforcing state law); Bigford v. Taylor, 834 F.2d 1213, 1222 (5th Cir. 1988) (the enforcement of state law by local officials does not give rise to § 1983 liability); cf, Chaloux v. Killeen, 886 F.2d 247, 251 (9 Cir. 1989) (finding that “the Monell doctrine did not intend to limit the reach of plaintiffs seeking prospective relief under § 1983 .. . under an allegedly unconstitutional “state statute”).
Retrieving the full opinion text from the archive…
SURPLUS STORE AND EXCHANGE, INC., Plaintiff-Appellant,
v.
CITY OF DELPHI, Defendant-Appellee
89-3494.
Court of Appeals for the Seventh Circuit.
Apr 5, 1991.
928 F.2d 788
1991 U.S. App. LEXIS 5426
1991 WL 45320
Carolyn S. Holder, Holder & Davis, Lafayette, Ind., for plaintiff-appellant., William W. Kurnik, Kurnik, Cipolla, Stephenson & Barasha, Arlington Heights, 111., James S. Stephenson, Stephenson & Kur-nik, Indianapolis, Ind., for defendant-appel-lee.
Bauer, Easterbrook, Will.
Cited by 64 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 65%
Citer courts: Seventh Circuit (1)
BAUER, Chief Judge.

Possession may be “rather more than nine points of the law,” Corporation of Kingston-upon-Hull v. Horner, [1774] Lofft 576, 591 (Lord Mansfield), but, as this case demonstrates, nine points is not always enough — especially if the holder of[*789] the tenth point is assisted by a police officer.

At stake here are a couple of gold rings worth about $1,100. On May 26, 1988, Patrolman Steve Mullin of the Delphi City Police Department spotted the rings at the Surplus Store and Exchange (“Surplus”) on Main Street in Lafayette, Indiana. Mullin believed that the rings had been stolen from their true owner, Joyce Fowler. Surplus claimed (and still claims) that it obtained the rings in a bona fide purchase. Undaunted by this claim, Officer Mullin seized the rings, but not before signing a receipt that read: “The above items are released with the understanding that at this time [Surplus] has a vested interest in them and disposition [of] such is to be made by a court of law.” Officer Mullin promptly disregarded the receipt and, later that same day, released the rings to Ms. Fowler. No notice of this release was given to Surplus, nor was any hearing or other proceeding held before Mullin gave away the rings.

This incident spawned a suit by Surplus in federal district court under 42 U.S.C. § 1983 (“§ 1983”). [1] Surplus named as a defendant only Mullin’s employer, the City of Delphi (“Delphi”). In its brief, broadly-drafted complaint (and amended complaint), Surplus charged that Mullin violated its fourth and fourteenth amendment rights by seizing the rings and giving them to Fowler, “the purported owner.” The fourteenth amendment claim — the heart of Surplus’ complaints — sounds in procedural due process; to wit, Mullin’s actions deprived Surplus of its property interest in the rings “without proper judicial hearing.” Surplus alleged further that Mullin took these actions “under color of State law,” citing in support three Indiana statutes: Ind.Code §§ 35-33-5-5, 35-43-4-4(h), and 35-43-4-5 (1986 Supp.). The first provision states that all items of property seized by a law enforcement agency “shall be securely held” by the agency, with the exception that, if the item is “property obtained unlawfully from its owner,” it may be returned to the owner before trial “in accordance with [Ind.Code § ] 35-43-4-4(h).” Ind.Code §§ 35-33-5-5(a) & (b). The second provision, in turn, allows a law enforcement agency “that is holding as evidence property over which a person is alleged to have exerted unauthorized control or to have otherwise obtained unlawfully” to return the property to its owner, if the agency follows certain procedures (e.g., photographing the item, obtaining a receipt from the owner, etc.). Ind.Code § 35-48-4-4(h). The third provision, which is found in the “Defenses” section of the “Theft; Conversion” chapter, shields from criminal liability a person who attempts to return stolen personal property to its owner. Ind.Code § 35-43-4-5(d). None of these statutes provide for a judicial hearing or other proceeding before the subject property is returned to its owner. Finally, Surplus’ complaints allege that Mullin was acting “in his capacity as an employee of the City of Delphi.”

Delphi moved to dismiss both the original and amended complaints, arguing that Indiana tort law provides an adequate remedy for Surplus’ alleged injury. Surplus proffered a lengthy response to Delphi’s motion. In light of the briefing that had taken place, the district court treated Delphi’s motion as one for summary judgment under Fed.R.Civ.P. 56 and, on October 5, 1989, entered a memorandum opinion dismissing Surplus’ complaint. (A judgment order to the same effect followed six days later.) The court’s dismissal was “without prejudice to enable the plaintiff to pursue whatever claims may be available under the law of Indiana and in the courts of Indiana.” From this final order, Surplus brought a timely appeal.

There are so many problems with this lawsuit, it is hard to know where to begin. Indeed, this fact is well-illustrated by the district court’s opinion, which touches on a number of possible rationales for the dismissal of Surplus’ action. The district court seems ultimately to rely upon the[*790] ground that Indiana tort law provides an adequate remedy, following Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). See generally Guenther v. Holmgreen, 738 F.2d 879, 882 (7th Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985) (discussing and applying Parratt’s teaching that “a victim of a property or liberty deprivation who has recourse to an adequate state remedy has not been denied ‘due process of law’ ”). We choose a different tack. [2]

As mentioned above, Surplus has sued only the municipality of Delphi. “[0]ur first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989). See also City of Oklahoma City v. Tuttle, 471 U.S. 808, 816-20, 105 S.Ct. 2427, 2432-35, 85 L.Ed.2d 791 (1985); Monell v. New York Dept. of Social Services, 436 U.S. 658, 690-95, 98 S.Ct. 2018, 2035-38, 56 L.Ed.2d 611 (1978); Leahy v. Board of Trustees, 912 F.2d 917, 922 (7th Cir.1990) (“Proximate causation between the municipality’s policy or custom and the plaintiff’s injury must be present.”) (quoting Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985)). Our search for a Delphi policy that meets this requirement begins with Surplus’ pleadings, but they provide no help. In its complaints, Surplus not only fails to point to a specific Delphi policy or custom directly and causally linked to the alleged deprivation, but fails altogether to refer to any sort of Delphi policy or custom linked in any way to the alleged deprivation. In fact, the sole mention of Delphi is a reference to its employment of Officer Mullin, which is both revealing and dooming: the former because, under Surplus’ allegations the only thing that Delphi did or failed to do that could possibly make it culpable for the constitutional violation is employ Officer Mullin, and the latter because that very ground for municipal liability has been explicitly rejected by the Supreme Court. See Harris, 489 U.S. at 385, 109 S.Ct. at 1203 (“[A] municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983.”) (emphasis in original) (discussing Monell, 436 U.S. at 694-95, 98 S.Ct. at 2037-38); Tuttle, 471 U.S. 808, 818, 105 S.Ct. 2427, 2433 (municipal liability cannot be imposed “merely because of an employment relationship”) (also discussing Mo-nell ).

Surplus’ failure to allege in its pleadings facts which, if true, would meet the municipal policy requirement is itself a sufficient ground on which to dismiss Surplus’ § 1983 claim. See Leahy, 912 F.2d at 922 (citing cases). Moving beyond Surplus’ pleadings and examining its briefs in this court, however, we discover that Surplus believes that it has satisfied the municipal policy requirement (as well as the separate “under color of state law” requirement) by citing in its complaints three particular Indiana statutes that authorized Officer Mullin to seize[*791] and dispose of the rings. [3] These statutes, Surplus argues, are unconstitutional because they fail to require a pre-disposition hearing. Surplus then attempts to make the conceptual leap from these Indiana statutes to Delphi city policy by arguing that Delphi has a “policy” of enforcing the statutes. [4] In other words, it is Surplus’ contention that Delphi’s decision simply to enforce these “unconstitutional” Indiana statutes was a “municipal policy” that “caused” the wrongful deprivation of Surplus’ property interest in the rings, and thus the requirements of Monell and Harris, et al. are satisfied.

To formulate this argument is to see its fatal flaws. First, consider what Surplus has not alleged. (The meritless suggestion rejected supra in note 4 aside), Surplus has not claimed that the alleged constitutional violation was caused by a “policy statement, ordinance, regulation, or decision officially adopted and promulgated by” Delphi that was itself unconstitutional. See Sims v. Mulcahy, 902 F.2d 524, 541-42 (7th Cir.1990) (quoting Patrick v. Jasper County, 901 F.2d 561, 565 (7th Cir.1990) (quoting in turn Monell, 436 U.S. at 690, 98 S.Ct. at 2035)). Nor has Surplus claimed that the constitutional violation was caused by an “entrenched practice with the effective force of a formal policy” that Delphi allowed to develop, which practice or custom was itself unconstitutional. See Gray v. Dane County, 854 F.2d 179, 183-84 (7th Cir.1988). Nor has Surplus argued that Delphi, as a matter or policy or custom, enforces the law in a manner or method that caused the constitutional violation, which differentiates Surplus’ claim from the one class of claims in which municipal liability can lie absent a showing of a municipal policy or custom that is itself unconstitutional: the “inadequate training” or “inadequate procedures” cases. See Graham v. Sauk Prairie Police Comm’n, 915 F.2d 1085, 1096-1104 (7th Cir.1990) (discussing and applying “inadequate training” and “municipal policy” standards from Harris and Tuttle to claim of inadequate pre-employment investigation of police officer’s background); Sims, 902 F.2d at 542-45 (applying same to claim against city for failure to monitor and investigate behavior of police during searches). Instead, Surplus argues that Delphi properly can be held liable for the deprivation of its property because Delphi has a “policy” of allowing or instructing its police officers to enforce the challenged statutes.

It is difficult to imagine a municipal policy more innocuous and constitutionally permissible, and whose causal connection to the alleged violation is more attenuated, than the “policy” of enforcing state law. If the language and standards from Monell [*792] are not to become a dead letter, such a “policy” simply cannot be sufficient to ground liability against a municipality. Cf. Tuttle, 471 U.S. at 823, 105 S.Ct. at 2436:

Obviously, if one retreats far enough from a constitutional violation some municipal “policy” can be identified behind almost any such harm inflicted by a municipal official____ But Monell must be taken to require proof of a city policy different in kind from [the “policy” of establishing a police force] before a claim can be sent to a jury on the theory that a particular violation was “caused” by the municipal “policy.” At the very least there must be an affirmative link between the policy and the particular constitutional violation alleged.

See also Thompson v. Duke, No. 84 C 5082, slip op. at 5 (N.D.Ill. Jan. 4, 1988) [available on Westlaw at 1987 WL 33188] (rejecting plaintiffs claim that county was liable under § 1983 for “blindly following” unconstitutional state parole board procedures on the ground that the county's “practice of simply following state law is not the promulgation or maintenance of a practice which directly causes injury” as Monell requires), aff'd, 882 F.2d 1180, 1187 (7th Cir.1989).

All that remains is to distinguish two cases on which Surplus places great reliance for, among other things, the municipal policy requirement: Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), and Florida Pawnbrokers and Secondhand Dealers Ass’n, Inc. v. City of Fort Lauderdale, 699 F.Supp. 888 (S.D.Fla.1988) (“Pawnbrokers I”). In Logan, the Court held that a state commission could not destroy a complainant’s recognized property right without a pre-deprivation hearing when there existed an “established state procedure” that should — and could easily — have provided such a hearing. In such a case, the Court stated, the mere existence of a post-deprivation hearing or remedy was constitutionally inadequate. Id. 455 U.S. at 434-37, 102 S.Ct. at 1156-59. For all it teaches concerning procedural due process, Logan is silent as to Monell’s municipal policy requirement — simply because it did not involve a § 1983 claim against a municipality. Thus, Surplus’ reliance on Logan for its “official policy” argument is misplaced.

In Pawnbrokers I, the district court declared Florida’s pawnbroker seizure statute violative of due process and enjoined Fort Lauderdale from enforcing it. Among the many differences between that case and this case are the following: 1) the Florida statute at issue, Fla.Stat.Ann. § 715.041(2) (West 1988), specifically authorized both the seizure of stolen property from pawn shops and the return of the property to its owner, compare supra note 3; and 2) Fort Lauderdale, by ordinance, expressly incorporated the statute into the municipal code, adding a preamble that stated, “the City also desires to facilitate the recovery of stolen property for return to victims of burglaries and thefts.” See Pawnbrokers I, 699 F.Supp. at 890. See also Florida Pawnbrokers and Secondhand Dealers Ass’n, Inc. v. City of Fort Lauderdale, 711 F.Supp. 1084, 1085 (S.D.Fla.1989) (“Pawnbrokers II ”) (“The city here did not merely enforce the state statute. As held in the prior order of this court, the city of Fort Lauderdale had a policy of using the statute as one part of a comprehensive plan for dealing with the potential of the pawnbroking business as a market for stolen property.”). Overlooking this second difference, Surplus seizes on the following paragraph in Pawnbrokers I in support of its argument that the municipal policy requirement was satisfied in that case by mere enforcement:

While it is true that the city did not enact the pawnbroker seizure statute, it is equally clear that the city’s policy of enforcing the statute constitutes state action. Monell, [436 U.S. at 690-91, 98 S.Ct. at 2035-36] (local governing bodies are directly liable where, “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”).

699 F.Supp. at 890. The statement itself refers only to the state action requirement and, viewed in that light, is neither troublesome nor helpful to Surplus. If, however,[*793] the court by this statement meant to say that simply enforcing state law satisfies the municipal policy requirement of Mo-nell — which is by no means clear, as Fort Lauderdale officially adopted and promulgated the state pawnbroker statute and the policy behind it — then we believe that the court fundamentally misunderstood the municipal culpability requirement explicated in Monell, Harris, and Tuttle. We will not, as Surplus invites, follow in those footsteps.

Surplus argues that it had a “superior claim” to the rings as a result of a “bona fide purchase,” and that it was unconstitutionally deprived of this property interest by Officer Mullin’s state-law-authorized actions. Whatever the merit of its claim on the rings, Surplus cannot hold the City of Delphi liable under § 1983 for this alleged due process violation unless a policy or custom attributable to Delphi caused the violation; in other words, the fault for the deprivation must lie with Delphi itself, not with Officer Mullin or with the Indiana statutes. Surplus has neither alleged facts that, if true, would meet this municipal policy requirement, nor requested leave to do so. Accordingly, we conclude that Surplus has waived any such contention. The district court’s judgment dismissing Surplus’ complaint is

Affirmed.

1

. The district court had jurisdiction over this suit under 28 U.S.C. §§ 1331, 1343(a)(3), & 1343(a)(4).

2

. Which is not to say that we disagree with the district court’s conclusion regarding the adequacy and availability of relief under Indiana tort law. In fact, we ordered subsequent briefing on this question after oral argument. After reviewing the supplemental briefs and the Indiana case law, it appears that Indiana tort law may fail to provide an adequate remedy. See Ind. Code § 34-4-16.5-3(6), (7), & (8) (provisions of the Indiana Tort Claims Act granting immunity to governmental entities, and employees acting within scope of employment, if the injury or loss resulted from "the performance of a discretionary function,” "the adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment,” or "an act or omission performed in good faith and without malice under the apparent authority of a statute which is invalid”). But see 21 Indiana Law Encyclopedia Municipal Corporations § 410 ("[A] municipal corporation is liable for injuries resulting from the negligence of officers, agents or employees while engaged in the performance of its ministerial ... functions....”); City of Hammond v. Cataldi, 449 N.E.2d 1184, 1186 (Ind.App.1983). We need not, and do not, resolve this issue either way.

3

. We note briefly that, from our reading of the challenged Indiana statutes, it is not even clear that they "authorized” the whole of Officer Mul-lin’s conduct. Sections 35-33-5-5(a) & (b) and 35-43-4-4(h) deal only with the disposition of property already in police custody, and thus do not, at least on their face, authorize Mullin’s seizure of the rings. Section 35-43-4-5(d) has no special applicability to police officers or agencies, but simply shields people who try to return stolen property to its owner from liability for the crimes of theft and conversion.

4

. In its reply brief, Surplus also makes the related, but slightly different, argument that all cities can be charged with "adopting” as a matter of policy all state laws that they do not ignore; i.e., "Indiana statutes are a source of policy for the municipalities acting under them.” Appellant’s Reply Brief at 6. This argument would render meaningless the entire body of precedent from the Supreme Court and this court that requires culpability on the part of a municipality and/or its policymakers before the municipality can be held liable under § 1983, and would allow municipalities to be nothing more than convenient receptacles of liability for violations caused entirely by state actors — here, the Indiana legislature. Thus, it is wholly without merit. Further, counter to Surplus’ suggestion, this argument was not accepted by the Tenth Circuit in the Wolfenbarger cases. See Wolfenbarger v. Williams, 774 F.2d 358 (10th Cir.1985) ("Wolfenbarger I" ); Wolfenbarger v. Williams, 826 F.2d 930 (10th Cir.1987) (" Wolfenbarger II"). In these cases, both the seizure and subsequent disposition of the stolen merchandise at issue was done by city police officers pursuant to express directives from the district attorney to the chief of police — directives that mandated procedures different from Oklahoma law, which provided for a pre-disposition hearing before a magistrate. See Wolfenbarger I, 774 F.2d at 365; Wolfenbarger II, 826 F.2d at 931. Thus, the fault for any due process violation occasioned by these procedures properly lay with the local governmental actors and entities.