Monroe establishes that government officials act under color when they violate constitutional rights while performing government functions, including when their conduct violates state law. Monell (and its progeny) establish that a municipality is liable only for violations pursuant to municipal policy enacted by a municipal policymaker, including when the policymaker compels the misconduct or fails to train, supervise, or discipline misbehaving officers.
Thus, a police officer who commits a sexual assault while questioning a witness acts under color, although the conduct is unlawful. If his policymaker supervisor ordered the assault or failed to train or control him, the municipality can be liable.
But imagine the chief of police (the policymaker for the department) commits the sexual assault. As an individual government officer, he acts under color under Monroe and can be individually liable. As a policymaker, does his single action, violative of state law, become municipal “policy” establishing Monell liability? That is, does every action that a policymaker takes under color, at least within the areas in which he has policymaking authority, become municipal policy?
A recent divided Seventh Circuit says no, in a bizarre case–the elected county coroner (the policymaker on all things autopsy) kept body parts from autopsies (in violation of state law), including the skull of the plaintiffs’ murder-victim daughter. The decision creates a split of recent authority with the Tenth Circuit (sheriff committed sexual assault). And it adds to a long-standing divide between the Fifth Circuit (which agrees with the Tenth) and the Second Circuit (which agrees with the Seventh).
This is an interesting question on the link between two models of liability. As Larry Alexander described it, Monroe and under color adopt a “governmentalist” model, imposing individual liability on the appearance of a connection between the misconduct and the government; Monell adopts a “legalist” model, imposing liability only when formal state or local law compels the conduct at issue. The answer turns on whether possession of policymaking authority establishes “legalism” for everything the policymaker does, even where it contradicts other legal sources and authorities.