424
Souter, J., dissenting
no such clear portents. Written standards for hiring law enforcement personnel might be silent on the significance of a prior criminal record without justifying much worry about employing axe murderers (who are unlikely to apply) or subjecting the public to attacks by someone with a 30-year-old assault conviction (who has probably grown up). But a policymaker need not mandate injury to be indifferent to its risk when obvious, and, because a particular hiring decision may raise a very high probability of harm down the line, it simply ignores the issue before us to lump together in one presumptively benign category every singular administrative act of a policymaker that does not expressly command or constitute unconstitutional behavior. Thus, a decision to give law enforcement authority to a scofflaw who had recently engaged in criminal violence presents a very different risk from hiring someone who once drove an overweight truck. While the decision to hire the violent scofflaw may not entail harm to others as unquestionably as an order to "go out and rough-up some suspects," it is a long way from neutral in the risk it creates.
While the Court should rightly be skeptical about predicating municipal or individual liability merely on a failure to adopt a crime-free personnel policy or on a particular decision to hire a guilty trucker, why does it extend that valid skepticism to the quite unsound point of doubting liability for hiring the violent scofflaw? The Court says it fears that the latter sort of case raises a danger of liability without fault, ante, at 408. But if the Court means fault generally (as distinct from the blame imputed on classic respondeat superior doctrine), it need only recall that whether a particular violent scofflaw is violent enough or scoffing enough to implicate deliberate indifference will depend on applying the highly demanding standard the Court announces: plainly obvious consequence of particular injury. It is the high threshold of deliberate indifference that will ensure that municipalities be held liable only for considered acts with
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