436
Breyer, J., dissenting
policy or custom causation requirement"); Schuck, supra, at 1783 (noting the "extraordinary unpredictability of the 'official policy' test").
Finally, relevant legal and factual circumstances may have changed in a way that affects likely reliance upon Monell's liability limitation. The legal complexity just described makes it difficult for municipalities to predict just when they will be held liable based upon "policy or custom." Moreover, their potential liability is, in a sense, greater than that of individuals, for they cannot assert the "qualified immunity" defenses that individuals may raise. Owen v. Independence, 445 U. S. 622 (1980). Further, many States have statutes that appear to, in effect, mimic respondeat superior by authorizing indemnification of employees found liable under § 1983 for actions within the scope of their employment. See, e. g., Conn. Gen. Stat. § 7-465 (1997); Idaho Code § 6-903 (1990); Ill. Comp. Stat., ch. 745, § 10/2-302 (1994); Kan. Stat. Ann. § 75-6109 (1989); Minn. Stat. § 466.07 (1994); Mont. Code Ann. § 2-9-305 (1994); Nev. Rev. Stat. § 41.0349 (1989); N. H. Rev. Stat. Ann. § 29-A:2 (1988); N. D. Cent. Code § 32-12.1- 04(4) (Supp. 1993); Okla. Stat., Tit. 51, § 162 (Supp. 1995); 42 Pa. Cons. Stat. § 8548 (1982); S. D. Codified Laws § 3-19-1 (1994); Utah Code Ann. § 63-30-36 (1993); W. Va. Code § 29- 112A-11 (1992); Wis. Stat. § 895.46 (1993-1994). These statutes—valuable to government employees as well as to civil rights victims—can provide for payments from the government that are similar to those that would take place in the absence of Monell's limitations. To the extent that they do so, municipal reliance upon the continuation of Monell's "policy" limitation loses much of its significance.
Any statement about reliance, of course, must be tentative, as we have not heard argument on the matter. We do not know the pattern of indemnification: how often, and to what extent, States now indemnify their employees, and which of their employees they indemnify. I also realize that there may be other reasons, constitutional and otherwise, that I
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