422
Souter, J., dissenting
"[i]t could . . . be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are 'deliberately indifferent' to the need," see id., at 390, n. 10, we did not purport to be defining the fault of deliberate indifference universally as the failure to act in relation to a "plainly obvious consequence" of harm. Nor did we, in addressing the requisite risk that constitutional violations will occur, suggest that the deliberate indifference necessary to establish municipal liability must be, as the Court says today, indifference to the particular constitutional violation that in fact occurred.
The Court's formulation that deliberate indifference exists only when the risk of the subsequent, particular constitutional violation is a plainly obvious consequence of the hiring decision, see ante, at 411, while derived from Canton, is thus without doubt a new standard. See post, at 433-434 (Breyer, J., dissenting). As to the "particular" violation, the Court alters the understanding of deliberate indifference as set forth in Canton, where we spoke of constitutional violations generally.3 As to "plainly obvious consequence," the Court's standard appears to be somewhat higher, for example, than the standard for "reckless" fault in the criminal law, where the requisite indifference to risk is defined as that which "consciously disregards a substantial and unjustifiable risk that the material element exists or will result . . . [and] involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation." See American Law Institute, Model Penal Code § 2.02(2)(c) (1985).
3 The Court's embellishment on the deliberate indifference standard is, in any case, no help in resolving this case because there has never been any suggestion that Deputy Burns's criminal background, including charges of assault and battery, indicated that he would commit a constitutional violation different from the one he in fact committed.
Page: Index Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 NextLast modified: October 4, 2007