Under R.S. § 1979, derived from § 1 of the "Ku Klux Act" of
April 20, 1871, petitioners (six Negro children and their parents)
brought an action in a Federal District Court against the City of
Chicago and 13 of its police officers for damages for violation of
their rights under the Fourteenth Amendment. They alleged that,
acting "under color of the statutes, ordinances, regulations,
customs and usages" of Illinois and the City of Chicago, but
without any warrant for search or arrest, the police officers broke
into petitioners' home in the early morning, routed them from bed,
made them stand naked in the living room, and ransacked every room,
emptying drawers and ripping mattress covers; that the father was
taken to the police station and detained on "open" charges for ten
hours while he was interrogated about a two-day-old murder; that he
was not taken before a magistrate, though one was accessible; that
he was not permitted to call his family or attorney, and that he
was subsequently released without criminal charges being preferred
against him.
Held: The complaint stated a cause of action against
the police officers under § 1979; but the City of Chicago was not
liable under that section. Pp.
365 U. S.
168-192.
1. Allegation of facts constituting a deprivation under color of
state authority of the guaranty against unreasonable searches and
seizures, contained in the Fourth Amendment and made applicable to
the States by the Due Process Clause of the Fourteenth Amendment,
satisfies to that extent the requirement of § 1979. Pp.
365 U. S.
170-171.
2. In enacting § 1979, Congress intended to give a remedy to
parties deprived of constitutional rights, privileges and
immunities by an official's abuse of his position. Pp.
365 U. S.
171-187.
(a) The statutory words "under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory" do not
exclude acts of an official or policeman who can show no authority
under state law, custom or usage to do what he did, or even who
violated the state constitution and laws. Pp.
365 U. S.
172-187.
Page 365 U. S. 168
(b) One of the purposes of this legislation was to afford a
federal right in federal courts because, by reason of prejudice,
passion, neglect, intolerance, or otherwise, state laws might not
be enforced and the claims of citizens to the enjoyment of rights,
privileges and immunities guaranteed by the Fourteenth Amendment
might be denied by state agencies. Pp.
365 U. S.
174-180.
(c) The federal remedy is supplementary to the state remedy, and
the state remedy need not be sought and refused before the federal
remedy is invoked. P.
365 U. S.
183.
(d) Misuse of power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law is action taken "under color of" state law within the
meaning of § 1979.
United States v. Classic, 313 U.
S. 299;
Screws v. United States, 325 U. S.
91. Pp.
365 U. S.
183-187.
3. Since § 1979 does not contain the word "willfully," as does
18 U.S.C. § 242, and § 1979 imposes civil liability, rather than
criminal sanctions, actions under § 1979 can dispense with the
requirement of showing a "specific intent to deprive a person of a
federal right."
P.
365 U. S.
187.
4. The City of Chicago is not liable under § 1979, because
Congress did not intend to bring municipal corporations within the
ambit of that section. Pp.
365 U. S. 187-192.
272 F.2d 365, reversed.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case presents important questions concerning the
construction of R.S. § 1979, 42 U.S.C. § 1983, which reads as
follows:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any
Page 365 U. S. 169
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress."
The complaint alleges that 13 Chicago police officers broke into
petitioners' home in the early morning, routed them from bed, made
them stand naked in the living room, and ransacked every room,
emptying drawers and ripping mattress covers. It further alleges
that Mr. Monroe was then taken to the police station and detained
on "open" charges for 10 hours, while he was interrogated about a
two-day-old murder, that he was not taken before a magistrate,
though one was accessible, that he was not permitted to call his
family or attorney, that he was subsequently released without
criminal charges being preferred against him. It is alleged that
the officers had no search warrant and no arrest warrant, and that
they acted "under color of the statutes, ordinances, regulations,
customs and usages" of Illinois and of the City of Chicago. Federal
jurisdiction was asserted under R.S. § 1979, which we have set out
above, and 28 U.S.C. § 1343 [
Footnote 1] and 28 U.S.C. § 1331. [
Footnote 2]
Page 365 U. S. 170
The City of Chicago moved to dismiss the complaint on the ground
that it is not liable under the Civil Rights Acts nor for acts
committed in performance of its governmental functions. All
defendants moved to dismiss, alleging that the complaint alleged no
cause of action under those Acts or under the Federal Constitution.
The District Court dismissed the complaint. The Court of Appeals
affirmed, 272 F.2d 365, relying on its earlier decision,
Stift
v. Lynch, 267 F.2d 237. The case is here on a writ of
certiorari which we granted because of a seeming conflict of that
ruling with our prior cases. 362 U.S. 926.
I
Petitioners claim that the invasion of their home and the
subsequent search without a warrant and the arrest and detention of
Mr. Monroe without a warrant and without arraignment constituted a
deprivation of their "rights, privileges, or immunities secured by
the Constitution" within the meaning of R.S. § 1979. It has been
said that, when 18 U.S.C. § 241 made criminal a conspiracy "to
injure, oppress, threaten, or intimidate any citizen in the free
exercise or enjoyment of any right or privilege secured to him by
the Constitution," it embraced only rights that an individual has
by reason of his relation to the central government, not to state
governments.
United States v. Williams, 341 U. S.
70.
Cf. United States v. Cruikshank,
92 U. S. 542;
Ex parte Yarbrough, 110 U. S. 651;
Guinn v. United States, 238 U. S. 347. But
the history of the section of the Civil Rights Act presently
involved does not permit such a narrow interpretation.
Page 365 U. S. 171
Section 1979 came onto the books as § 1 of the Ku Klux Act of
April 20, 1871. 17 Stat. 13. It was one of the means whereby
Congress exercised the power vested in it by § 5 of the Fourteenth
Amendment to enforce the provisions of that Amendment. [
Footnote 3] Senator Edmunds, Chairman
of the Senate Committee on the Judiciary, said concerning this
section:
"The first section is one that I believe nobody objects to, as
defining the rights secured by the Constitution of the United
States when they are assailed by any State law or under color of
any State law, and it is merely carrying out the principles of the
civil rights bill, [
Footnote 4]
which has since become a part of the Constitution, [
Footnote 5]"
viz., the Fourteenth Amendment.
Its purpose is plain from the title of the legislation, "An Act
to enforce the Provisions of the Fourteenth Amendment to the
Constitution of the United States, and for other Purposes." 17
Stat. 13. Allegation of facts constituting a deprivation under
color of state authority of a right guaranteed by the Fourteenth
Amendment satisfies to that extent the requirement of R.S. § 1979.
See Douglas v. Jeannette, 319 U.
S. 157,
319 U. S.
161-162. So far, petitioners are on solid ground. For
the guarantee against unreasonable searches and seizures contained
in the Fourth Amendment has been made applicable to the States by
reason of the Due Process Clause of the Fourteenth Amendment.
Wolf v. Colorado, 338 U. S. 25;
Elkins v. United States, 364 U. S. 206,
364 U. S.
213.
II
There can be no doubt, at least since
Ex Parte
Virginia, 100 U. S. 339,
100 U. S.
346-347, that Congress has the power to
Page 365 U. S. 172
enforce provisions of the Fourteenth Amendment against those who
carry a badge of authority of a State and represent it in some
capacity, whether they act in accordance with their authority or
misuse it.
See Home Tel. & Tel. Co. v. Los Angeles,
227 U. S. 278,
227 U. S.
287-296. The question with which we now deal is the
narrower one of whether Congress, in enacting § 1979, meant to give
a remedy to parties deprived of constitutional rights, privileges
and immunities by an official's abuse of his position.
Cf.
Williams v. United States, 341 U. S. 97;
Screws v. United States, 325 U. S. 91;
United States v. Classic, 313 U.
S. 299. We conclude that it did so intend.
It is argued that "under color of" enumerated state authority
excludes acts of an official or policeman who can show no authority
under state law, state custom, or state usage to do what he did. In
this case, it is said that these policemen, in breaking into
petitioners' apartment, violated the Constitution [
Footnote 6] and laws of Illinois. It is
pointed out that, under Illinois law, a simple remedy is offered
for that violation, and that, so far as it appears, the courts of
Illinois are available to give petitioners that full redress which
the common law affords for violence done to a person, and it is
earnestly argued that no "statute, ordinance, regulation, custom or
usage" of Illinois bars that redress.
The Ku Klux Act grew out of a message sent to Congress by
President Grant on March 23, 1871, reading:
"A condition of affairs now exists in some States of the Union
rendering life and property insecure and
Page 365 U. S. 173
the carrying of the mails and the collection of the revenue
dangerous. The proof that such a condition of affairs exists in
some localities is now before the Senate. That the power to correct
these evils is beyond the control of State authorities I do not
doubt; that the power of the Executive of the United States, acting
within the limits of existing laws, is sufficient for present
emergencies is not clear. Therefore, I urgently recommend such
legislation as in the judgment of Congress shall effectually secure
life, liberty, and property, and the enforcement of law in all
parts of the United States. . . . [
Footnote 7]"
The legislation -- in particular the section with which we are
now concerned -- had several purposes. There are threads of many
thoughts running through the debates. One who reads them in their
entirety sees that the present section had three main aims.
First, it might, of course, override certain kinds of
state laws. Mr. Sloss of Alabama, in opposition, spoke of that
object and emphasized that it was irrelevant because there were no
such laws: [
Footnote 8]
"The first section of this bill prohibits any invidious
legislation by States against the rights or privileges of citizens
of the United States. The object of this section is not very clear,
as it is not pretended by its advocates on this floor that any
State has passed any laws endangering the rights or privileges of
the colored people."
"
Second, it provided a remedy where state law was
inadequate. That aspect of the legislation was summed up as follows
by Senator Sherman of Ohio: "
". . . it is said the reason is that any offense may be
committed upon a negro by a white man, and a
Page 365 U. S. 174
negro cannot testify in any case against a white man, so that
the only way by which any conviction can be had in Kentucky in
those cases is in the United States courts, because the United
States courts enforce the United States laws by which negroes may
testify. [
Footnote 9]"
But the purposes were much broader. The third aim was to provide
a federal remedy where the state remedy, though adequate in theory,
was not available in practice. The opposition to the measure
complained that "[i]t overrides the reserved powers of the States,"
[
Footnote 10] just as they
argued that the second section of the bill "absorb[ed] the entire
jurisdiction of the States over their local and domestic affairs."
[
Footnote 11]
This Act of April 20, 1871, sometimes called "the third
force bill,'" was passed by a Congress that had the Klan
"particularly in mind." [Footnote 12] The debates are replete with references to
the lawless conditions existing in the South in 1871. There was
available to the Congress during these debates a report, nearly 600
pages in length, dealing with the activities of the Klan and the
inability of the state governments to cope with it. [Footnote 13] This report was drawn on by
many of the speakers. [Footnote
14] It was not the unavailability of state remedies, but the
failure of certain States to enforce the laws with an equal hand
that furnished
Page 365 U. S.
175
the powerful momentum behind this "force bill." Mr. Lowe of
Kansas said:
"While murder is stalking abroad in disguise, while whippings
and lynchings and banishment have been visited upon unoffending
American citizens, the local administrations have been found
inadequate or unwilling to apply the proper corrective.
Combinations, darker than the night that hides them, conspiracies,
wicked as the worst of felons could devise, have gone unwhipped of
justice. Immunity is given to crime, and the records of the public
tribunals are searched in vain for any evidence of effective
redress. [
Footnote 15]"
Mr. Beatty of Ohio summarized in the House the case for the bill
when he said:
". . . certain States have denied to persons within their
jurisdiction the equal protection of the laws. The proof on this
point is voluminous and unquestionable. . . . [M]en were murdered,
houses were burned, women were outraged, men were scourged, and
officers of the law shot down, and the State made no successful
effort to bring the guilty to punishment or afford protection or
redress to the outraged and innocent. The State, from lack of power
or inclination, practically denied the equal protection of the law
to these persons. [
Footnote
16]"
While one main scourge of the evil -- perhaps the leading one --
was the Ku Klux Klan, [
Footnote
17] the remedy created was
Page 365 U. S. 176
not a remedy against it or its members, but against those who
representing a State in some capacity were unable or
unwilling to enforce a state law. Senator Osborn of
Florida put the problem in these terms: [
Footnote 18]
"That the State courts in the several States have been unable to
enforce the criminal laws of their respective States or to suppress
the disorders existing, and, in fact, that the preservation of life
and property in many sections of the country is beyond the power of
the State government, is a sufficient reason why Congress should,
so far as they have authority under the Constitution, enact the
laws necessary for the protection of citizens of the United States.
The question of the constitutional authority for the requisite
legislation has been sufficiently discussed."
There was, it was said, no quarrel with the state laws on the
books. It was their lack of enforcement that was the nub of the
difficulty. Speaking of conditions in Virginia, Mr. Porter of that
State said: [
Footnote
19]
"The outrages committed upon loyal men there are under the forms
of law."
Mr. Burchard of Illinois pointed out that the statutes of a
State may show no discrimination: [
Footnote 20]
"If the State Legislature pass a law discriminating against any
portion of its citizens, or if it fails to enact provisions equally
applicable to every class for the protection of their person and
property, it will be admitted that the State does not afford the
equal protection. But if the statutes show no discrimination,
Page 365 U. S. 177
yet, in its judicial tribunals, one class is unable to secure
that enforcement of their rights and punishment for their
infraction which is accorded to another, or, if secret combinations
of men are allowed by the Executive to band together to deprive one
class of citizens of their legal rights without a proper effort to
discover, detect, and punish the violations of law and order, the
State has not afforded to all its citizens the equal protection of
the laws."
Mr. Hoar of Massachusetts stated: [
Footnote 21]
"Now, it is an effectual denial by a State of the equal
protection of the laws when any class of officers charged under the
laws with their administration permanently, and as a rule, refuse
to extend that protection. If every sheriff in South Carolina
refuses to serve a writ for a colored man, and those sheriffs are
kept in office year after year by the people of South Carolina, and
no verdict against them for their failure of duty can be obtained
before a South Carolina jury, the State of South Carolina, through
the class of officers who are its representatives to afford the
equal protection of the laws to that class of citizens, has denied
that protection. If the jurors of South Carolina constantly and as
a rule refuse to do justice between man and man where the rights of
a particular class of its citizens are concerned, and that State
affords by its legislation no remedy, that is as much a denial to
that class of citizens of the equal protection of the laws as if
the State itself put on its statute book a statute enacting that no
verdict should be rendered in the courts of that State in favor of
this class of citizens. "
Page 365 U. S. 178
Senator Pratt of Indiana spoke of the discrimination against
Union sympathizers and Negroes in the actual enforcement of the
laws: [
Footnote 22]
"Plausibly and sophistically, it is said the laws of North
Carolina do not discriminate against them; that the provisions in
favor of rights and liberties are general; that the courts are open
to all; that juries, grand and petit, are commanded to hear and
redress without distinction as to color, race, or political
sentiment."
"But it is a fact, asserted in the report, that of the hundreds
of outrages committed upon loyal people through the agency of this
Ku Klux organization, not one has been punished. This defect in the
administration of the laws does not extend to other cases.
Vigorously enough are the laws enforced against Union people. They
only fail in efficiency when a man of known Union sentiments, white
or black, invokes their aid. Then Justice closes the door of her
temples."
It was precisely that breadth of the remedy which the opposition
emphasized. Mr. Kerr of Indiana referring to the section involved
in the present litigation said:
"This section gives to any person who may have been injured in
any of his rights, privileges, or immunities of person or property
a civil action for damages against the wrongdoer in the Federal
courts. The offenses committed against him may be the common
violations of the municipal law of his State. It may give rise to
numerous vexations and outrageous prosecutions, inspired by mere
mercenary considerations, prosecuted in a spirit of plunder, aided
by the crimes of perjury and subornation of perjury, more reckless
and dangerous to society than the alleged
Page 365 U. S. 179
offenses out of which the cause of action may have arisen. It is
a covert attempt to transfer another large portion of jurisdiction
from the State tribunals, to which it of right belongs, to those of
the United States. It is neither authorized nor expedient, and is
not calculated to bring peace or order or domestic content and
prosperity to the disturbed society of the South. The contrary will
certainly be its effect. [
Footnote 23]"
Mr. Voorhees of Indiana, also speaking in opposition, gave it
the same construction: [
Footnote
24]
"And now for a few moments let us inspect the provisions of this
bill, inspired as it is by the waning and decaying fortunes of the
party in power, and called for, as I have shown, by no public
necessity whatever. The first and second sections are designed to
transfer all criminal jurisdiction from the courts of the States to
the courts of the United States. This is to be done upon the
assumption that the courts of the southern States fail and refuse
to do their duty in the punishment of offenders against the
law."
Senator Thurman of Ohio spoke in the same vein about the section
we are now considering: [
Footnote 25]
"It authorizes any person who is deprived of any right,
privilege, or immunity secured to him by the
Page 365 U. S. 180
Constitution of the United States, to bring an action against
the wrongdoer in the Federal courts, and that without any limit
whatsoever as to the amount in controversy. The deprivation may be
of the slightest conceivable character, the damages in the
estimation of any sensible man may not be five dollars or even five
cents; they may be what lawyers call merely nominal damages, and
yet, by this section, jurisdiction of that civil action is given to
the Federal courts instead of its being prosecuted as now in the
courts of the States."
The debates were long and extensive. It is abundantly clear that
one reason the legislation was passed was to afford a federal right
in federal courts because, by reason of prejudice, passion,
neglect, intolerance or otherwise, state laws might not be enforced
and the claims of citizens to the enjoyment of rights, privileges,
and immunities guaranteed by the Fourteenth Amendment might be
denied by the state agencies.
Much is made of the history of § 2 of the proposed legislation.
As introduced, § 2 was very broad:
". . . if two or more persons shall, within the limits of any
State, band, conspire, or combine together to do any act in
violation of the rights, privileges, or immunities of any person,
to which he is entitled under the Constitution and laws of the
United States, which, committed within a place under the sole and
exclusive jurisdiction of the United States, would, under any law
of the United States then in force, constitute the crime of either
murder, manslaughter, mayhem, robbery, assault and battery,
perjury, subornation of perjury, criminal obstruction of legal
process or resistance of officers in discharge of official duty,
arson, or larceny, and if one or more of the parties to said
conspiracy or combination shall do
Page 365 U. S. 181
any act to effect the object thereof, all the parties to or
engaged in said conspiracy or combination, whether principals or
accessories, shall be deemed guilty of a felony. . . ."
It was this provision that raised the greatest storm. It was § 2
that was rewritten so as to be, in the main, confined to
conspiracies to interfere with a federal or state officer in the
performance of his duties. 17 Stat. 13. Senator Trumbull said:
[
Footnote 26]
"Those provisions were changed, and, as the bill passed the
House of Representatives, it was understood by the members of that
body to go no further than to protect persons in the rights which
were guarantied to them by the Constitution and laws of the United
States, and it did not undertake to furnish redress for wrongs done
by one person upon another in any of the States of the Union in
violation of their laws, unless he also violated some law of the
United States, nor to punish one person for an ordinary assault and
battery committed on another in a State."
But § 1 -- the section with which we are here concerned -- was
not changed as respects any feature with which we are presently
concerned. [
Footnote 27] The
words "under
Page 365 U. S. 182
color of" law were in the legislation from the beginning to the
end. The changes hailed by the opposition -- indeed, the history of
the evolution of § 2 much relied upon now -- are utterly irrelevant
to the problem before us,
viz., the meaning of "under
color of" law. The vindication of States' rights which was hailed
in the amendments to § 2 raises no implication as to the
construction to be given to "color of any law" in § 1. The scope of
§ 1 -- under any construction -- is admittedly narrower than was
the scope of the original version of § 2. Opponents of the Act,
however, did not fail to note that, by virtue of § 1, federal
courts would sit in judgment on the misdeeds of state officers.
[
Footnote 28] Proponents of
the Act, on the other hand, were aware of the extension of federal
power contemplated by every section of the Act. They found
justification, however, for this extension in considerations such
as those advanced by Mr. Hoar: [
Footnote 29]
"The question is not whether a majority of the people in a
majority of the States are likely to be attached to and able to
secure their own liberties. The question is not whether the
majority of the people in every State are not likely to desire to
secure their own rights. It is whether a majority of the people in
every State are sure to be so attached to the principles of civil
freedom and civil justice as to be as much desirous of preserving
the liberties of others as their own as to insure that under no
temptation of party spirit, under no political excitement,
under
Page 365 U. S. 183
no jealousy of race or caste, will the majority, either in
numbers or strength, in any State seek to deprive the remainder of
the population of their civil rights."
Although the legislation was enacted because of the conditions
that existed in the South at that time, it is cast in general
language, and is as applicable to Illinois as it is to the States
whose names were mentioned over and again in the debates. It is no
answer that the State has a law which, if enforced, would give
relief. The federal remedy is supplementary to the state remedy,
and the latter need not be first sought and refused before the
federal one is invoked. Hence, the fact that Illinois, by its
constitution and laws, outlaws unreasonable searches and seizures
is no barrier to the present suit in the federal court.
We had before us in
United States v. Classic, supra, §
20 of the Criminal Code, 18 U.S.C. § 242, [
Footnote 30] which provides a criminal
punishment for anyone who "under color of any law, statute,
ordinance, regulation, or custom" subjects any inhabitant of a
State to the deprivation of "any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United
States." Section 242 first came into the law as § 2 of the Civil
Rights Act, Act of April 9, 1866, 14 Stat. 27. After passage of the
Fourteenth Amendment, this provision was reenacted and amended by
§§ 17, 18, Act of May 31, 1870, 16 Stat. 140, 144. [
Footnote 31] The right involved in the
Classic case was the right of voters in a primary to have
their votes counted. The laws of Louisiana required the defendants
"to count the ballots, to record the result of the count, and
Page 365 U. S. 184
to certify the result of the election."
United States v.
Classic, supra, 313 U. S.
325-326. But, according to the indictment, they did not
perform their duty. In an opinion written by Mr. Justice (later
Chief Justice) Stone, in which Mr. Justice Roberts, Mr. Justice
Reed, and MR. JUSTICE FRANKFURTER joined, the Court ruled,
"Misuse of power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law, is action taken 'under color of' state law."
Id. 313 U. S. 326.
There was a dissenting opinion, but the ruling as to the meaning of
"under color of" state law was not questioned.
That view of the meaning of the words "under color of" state
law, 18 U.S.C. § 242, was reaffirmed in
Screws v. United
States, supra, 325 U. S.
108-113. The acts there complained of were committed by
state officers in performance of their duties,
viz.,
making an arrest effective. It was urged there, as it is here, that
"under color of" state law should not be construed to duplicate in
federal law what was an offense under state law.
Id.,
(dissenting opinion)
325 U. S.
138-149,
325 U. S.
157-161. It was said there, as it is here, that the
ruling in the
Classic case as to the meaning of "under
color of" state law was not in focus, and was ill-advised.
Id. (dissenting opinion),
325 U. S.
146-147. It was argued there, as it is here, that "under
color of" state law included only action taken by officials
pursuant to state law.
Id. (dissenting opinion),
325 U. S.
141-146. We rejected that view.
Id.,
325 U. S.
110-113 (concurring opinion),
325 U. S.
114-117. We stated:
"The construction given § 20 [18 U.S.C. § 242] in the
Classic case formulated a rule of law which has become the
basis of federal enforcement in this important field. The rule
adopted in that case was formulated after mature consideration. It
should be good for more than one day only. We do not have here a
situation comparable to
Mahnich v. Southern S.S. Co.,
321 U. S.
96, where we
Page 365 U. S. 185
overruled a decision demonstrated to be a sport in the law, and
inconsistent with what preceded and what followed. The
Classic case was not the product of hasty action or
inadvertence. It was not out of line with the cases which preceded.
It was designed to fashion the governing rule of law in this
important field. We are not dealing with constitutional
interpretations which, throughout the history of the Court, have
wisely remained flexible and subject to frequent reexamination. The
meaning which the
Classic case gave to the phrase 'under
color of any law' involved only a construction of the statute.
Hence, if it states a rule undesirable in its consequences,
Congress can change it. We add only to the instability and
uncertainty of the law if we revise the meaning of § 20 [18 U.S.C.
§ 242] to meet the exigencies of each case coming before us."
Id. 325 U. S.
112-113. We adhered to that view in
Williams v.
United States, supra,
341 U. S. 99.
Mr. Shellabarger, reporting out the bill which became the Ku
Klux Act, said of the provision with which we now deal:
"The model for it will be found in the second section of the act
of April 9, 1866, known as the 'civil rights act.' . . . This
section of this bill, on the same state of facts, not only provides
a civil remedy for persons whose former condition may have been
that of slaves, but also to all people where, under color of State
law, they or any of them may be deprived of rights. . . . [
Footnote 32]"
Thus, it is beyond doubt that this phrase should be accorded the
same construction in both statutes -- in § 1979 and in 18 U.S.C. §
242.
Page 365 U. S. 186
Since the
Screws and
Williams decisions,
Congress has had several pieces of civil rights legislation before
it. In 1956, one bill reached the floor of the House. This measure
had at least one provision in it penalizing actions taken "under
color of law or otherwise." [
Footnote 33] A vigorous minority report was filed
attacking,
inter alia, the words "or otherwise." [
Footnote 34] But not a word of
criticism of the phrase "under color of" state law, as previously
construed by the Court, is to be found in that report.
Section 131(c) of the Act of September 9, 1957, 71 Stat. 634,
637, amended 42 U.S.C. § 1971 by adding a new subsection which
provides that no person, "whether acting under color of law or
otherwise," shall intimidate any other person in voting as he
chooses for federal officials. A vigorous minority report was filed
[
Footnote 35] attacking the
wide scope of the new subsection by reason of the words "or
otherwise." It was said in that minority report that those words
went far beyond what this Court had construed "under color of law"
to mean. [
Footnote 36] But
there was not a word of criticism directed to the prior
construction given by this Court to the words "under color of"
law.
The Act of May 6, 1960, 74 Stat. 86, uses "under color of" law
in two contexts, once when § 306 defines "officer of election" and
next when § 601(a) gives a judicial remedy on behalf of a qualified
voter denied the opportunity to register. Once again, there was a
Committee report containing minority views. [
Footnote 37] Once again, no one challenged the
scope given by our prior decisions to the phrase "under color of"
law.
Page 365 U. S. 187
If the results of our construction of "under color of" law were
as horrendous as now claimed, if they were as disruptive of our
federal scheme as now urged, if they were such an unwarranted
invasion of States' rights as pretended, surely the voice of the
opposition would have been heard in those Committee reports. Their
silence and the new uses to which "under color of" law have
recently been given reinforce our conclusion that our prior
decisions were correct on this matter of construction.
We conclude that the meaning given "under color of" law in the
Classic case and in the
Screws and
Williams cases was the correct one, and we adhere to
it.
In the
Screws case, we dealt with a statute that
imposed criminal penalties for acts "willfully" done. We construed
that word in its setting to mean the doing of an act with "a
specific intent to deprive a person of a federal right." 325 U.S.
at
325 U. S. 103.
We do not think that gloss should be placed on § 1979 which we have
here. The word "willfully" does not appear in § 1979. Moreover, §
1979 provides a civil remedy, while, in the
Screws case,
we dealt with a criminal law challenged on the ground of vagueness.
Section 1979 should be read against the background of tort
liability that makes a man responsible for the natural consequences
of his actions.
So far, then, the complaint states a cause of action. There
remains to consider only a defense peculiar to the City of
Chicago.
III
The City of Chicago asserts that it is not liable under § 1979.
We do not stop to explore the whole range of questions tendered us
on this issue at oral argument and in the briefs. For we are of the
opinion that Congress did not undertake to bring municipal
corporations within the ambit of § 1979.
Page 365 U. S. 188
When the bill that became the Act of April 20, 1871, was being
debated in the Senate, Senator Sherman of Ohio proposed an
amendment which would have made "the inhabitants of the county,
city, or parish" in which certain acts of violence occurred liable
"to pay full compensation" to the person damaged or his widow or
legal representative. [
Footnote
38] The amendment was adopted by the Senate. [
Footnote 39] The House, however, rejected
it. [
Footnote 40] The
Conference Committee reported another version. [
Footnote 41] The
Page 365 U. S. 189
House rejected the Conference report. [
Footnote 42] In a second conference, the Sherman
amendment was dropped, and, in its place, § 6 of the Act of April
20, 1871, as substituted. [
Footnote 43]
Page 365 U. S. 190
This new section, which is now R.S. § 1981, 42 U.S.C. § 1986,
dropped out all provision for municipal liability and extended
liability in damages to "any person or persons, having knowledge
that any" of the specified wrongs are being committed. Mr. Poland,
speaking for the House Conferees about the Sherman proposal to make
municipalities liable, said:
"We informed the conferees on the part of the Senate that the
House had taken a stand on that subject, and would not recede from
it; that that section imposing liability upon towns and counties
must go out, or we should fail to agree. [
Footnote 44]"
The objection to the Sherman amendment stated by Mr. Poland was
that
"the House had solemnly decided that, in their judgment,
Congress had no constitutional power to impose any obligation upon
county and town organizations, the mere instrumentality for the
administration of state law. [
Footnote 45]"
The question of constitutional power of Congress to impose civil
liability on municipalities was vigorously debated with powerful
arguments advanced in the affirmative. [
Footnote 46]
Much reliance is placed on the Act of February 25, 1871, 16
Stat. 431, entitled
"An Act prescribing the Form of the enacting and resolving
Clauses of Acts and Resolutions of Congress, and Rules for the
Construction thereof."
Section 2 of this Act provides that "the word
person' may
extend and be applied to bodies politic and corporate." [Footnote 47]
Page 365 U. S.
191
It should be noted, however, that this definition is merely
an allowable, not a mandatory, one. It is said that doubts should
be resolved in favor of municipal liability because private
remedies against officers for illegal searches and seizures are
conspicuously ineffective, [Footnote 48] and because municipal liability will not
only afford plaintiffs responsible defendants, but cause those
defendants to eradicate abuses that exist at the police level.
[Footnote 49] We do not
reach those policy considerations. Nor do we reach the
constitutional question whether Congress has the power to make
municipalities liable for acts of its officers that violate the
civil rights of individuals.
The response of the Congress to the proposal to make
municipalities liable for certain actions being brought within
federal purview by the Act of April 20, 1871, was so antagonistic
that we cannot believe that the word "person" was used in this
particular Act to include them. [
Footnote 50]
Page 365 U. S. 192
Accordingly, we hold that the motion to dismiss the complaint
against the City of Chicago was properly granted. But since the
complaint should not have been dismissed against the officials, the
judgment must be and is
Reversed.
[
Footnote 1]
This section provides in material part:
"The district courts shall have original jurisdiction of any
civil action authorized by law to be commenced by any person: "
"
* * * *"
"(3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right,
privilege or immunity secured by the Constitution of the United
States or by any Act of Congress providing for equal rights of
citizens or of all persons within the jurisdiction of the United
States."
[
Footnote 2]
Subsection (a) provides:
"The district courts shall have original jurisdiction of all
civil actions wherein the matter in controversy exceeds the sum or
value of $10,000, exclusive of interest and costs, and arises under
the Constitution, laws, or treaties of the United States."
In their complaint, petitioners also invoked R.S. §§ 1980, 1981,
42 U.S.C. §§ 1985, 1986. Before this Court, however, petitioners
have limited their claim to recovery to the liability imposed by §
1979. accordingly, only that section is before us.
[
Footnote 3]
See Cong.Globe, 42d Cong., 1st Sess., App. 68, 80,
83-85.
[
Footnote 4]
Act of April 9, 1866, 14 Stat. 27.
[
Footnote 5]
Supra, note
3
568.
[
Footnote 6]
Illinois Const., Art. II, § 6, provides:
"The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures,
shall not be violated, and no warrant shall issue without probable
cause, supported by affidavit, particularly describing the place to
be searched, and the persons or things to be seized."
Respondents also point to Ill.Rev.Stat., c. 38, §§ 252, 449.1;
Chicago, Illinois, Municipal Code, § 11-40.
[
Footnote 7]
Cong.Globe, 42d Cong., 1st Sess., p. 244.
[
Footnote 8]
Id., App. 268
[
Footnote 9]
Id., p. 345.
[
Footnote 10]
Id. p. 365. The speaker, Mr. Arthur of Kentucky, had no
doubts as to the scope of § 1:
"[I]f the sheriff levy an execution, execute a writ, serve a
summons, or make an arrest, all acting under a solemn, official
oath, though as pure in duty as a saint and as immaculate as a
seraph,
for a mere error of judgment, [he is liable]. . .
."
Ibid. (Italics added.)
[
Footnote 11]
Id. p. 366.
[
Footnote 12]
Randall, The Civil War and Reconstruction (1937), p. 857.
[
Footnote 13]
S.Rep. No. 1, 42d Cong., 1st Sess.
[
Footnote 14]
See, e.g., Cong.Globe, 42d Cong., 1st Sess., App.
166-167.
[
Footnote 15]
Id. p. 374.
[
Footnote 16]
Id. p. 428.
[
Footnote 17]
As Randall,
op. cit. supra, note 12 p. 855, says in discussing the Ku Klux
Klan:
"A friendly view of the order might represent it as an agency of
social control in the South. Yet it never attained the dignity of
the vigilance committees of the western states. nor of the
committees of safety of Revolutionary times."
[
Footnote 18]
Cong.Globe, 42d Cong., 1st Sess. 653.
[
Footnote 19]
Id., App. 277.
[
Footnote 20]
Id., App. 315.
[
Footnote 21]
Id., p. 334
[
Footnote 22]
Id., p. 505.
[
Footnote 23]
Id., App. p. 50. Mr. Golladay of Tennessee expressed
the same concern:
"Is the great State of New York invaded every time a murder is
committed within her bounds? Was the great State of Pennsylvania
invaded when rioters in the city of Philadelphia burned a public
building? Was the great State of Massachusetts invaded when
Webster, one of her first scholars, within the walls of Harvard
murdered Parkman, or later, when evil-disposed persons violated her
laws in Lowell? Did they require the Army and Navy and martial law?
And, sir, because a midnight murderer is sometimes found in the
South, it should not be regarded as an invasion."
Id., App. 160.
[
Footnote 24]
Id., App. 179.
[
Footnote 25]
Id., App. 216.
[
Footnote 26]
Id., p. 579.
[
Footnote 27]
Section 1 in the bill, as originally introduced, read as
follows:
"That any person who, under color of any law, statute,
ordinance, regulation, custom, or usage of any State, shall
subject, or cause to be subjected, any person within the
jurisdiction of the United States to the deprivation of any rights,
privileges, or immunities secured by the Constitution of the United
States, shall, any such law, statute, ordinance, regulation,
custom, or usage of the State to the contrary notwithstanding, be
liable to the party injured in any action at law, suit in equity,
or other proper proceeding for redress; such proceeding to be
prosecuted in the several district or circuit courts of the United
States, with and subject to the same rights of appeal, review upon
error, and other remedies provided in like cases in such courts,
under the provisions of the act of the ninth of April, eighteen
hundred and sixty-six, entitled 'An act to protect all persons in
the United States in their civil rights, and to furnish the means
of their vindication,' and the other remedial laws of the United
States which are, in their nature, applicable in such cases."
[
Footnote 28]
See text at
note
23 supra; see note
10 supra.
[
Footnote 29]
Cong.Globe, 42d Cong., 1st Sess., pp. 334-335.
[
Footnote 30]
Then 18 U.S.C. § 52.
[
Footnote 31]
For full history of the evolution of 18 U.S.C. § 242,
see
Screws v. United States, 325 U. S. 91,
325 U. S.
98-100;
United States v. Classic, 313 U.
S. 299,
313 U. S. 327,
n. 10;
cf. Hague v. CIO., 307 U.
S. 496,
307 U. S.
509-510.
[
Footnote 32]
Cong.Globe, 42d Cong., 1st Sess., App. 68.
[
Footnote 33]
H.R.Rep. No. 2187, 84th Cong., 2d Sess., p. 16.
[
Footnote 34]
Id., p. 26
[
Footnote 35]
H.R.Rep. No. 291, 85th Cong., 1st Sess., pp. 24-60.
[
Footnote 36]
Id. pp. 57-58
[
Footnote 37]
H.R.Rep. No. 956, 86th Cong., 1st Sess., pp. 32-42.
[
Footnote 38]
Cong.Globe, 42d Cong., 1st Sess., p. 663. The proposed amendment
read:
"That if any house, tenement, cabin, shop, building, barn, or
granary shall be unlawfully or feloniously demolished, pulled down,
burned, or destroyed, wholly or in part, by any persons riotously
and tumultuously assembled together; or if any person shall
unlawfully and with force and violence be whipped, scourged,
wounded, or killed by any persons riotousy and tumultuously
assembled together, and if such offense was committed to deprive
any person of any right conferred upon him by the Constitution and
laws of the United States, or to deter him or punish him for
exercising such right, or by reason of his race, color, or previous
condition of servitude, in every such case the inhabitants of the
county, city, or parish in which any of the said offenses shall be
committed shall be liable to pay full compensation to the person or
persons damnified by such offense if living, or to his widow or
legal representative if dead, and such compensation may be
recovered by such person or his representative by a suit in any
court of the United States of competent jurisdiction in the
district in which the offense was committed, to be in the name of
the person injured, or his legal representative, and against said
county, city, or parish. And execution may be issued on a judgment
rendered in such suit and may be levied upon any property, real or
personal, of any person in said county, city, or parish, and the
said county, city, or parish may recover the full amount of such
judgment, costs and interest, from any person or persons engaged as
principal or accessory in such riot in an action in any court of
competent jurisdiction."
[
Footnote 39]
Id., 704-705 .
[
Footnote 40]
Id., 725.
[
Footnote 41]
"That if any house, tenement, cabin, shop, building, barn, or
granary shall be unlawfully or feloniously demolished, pulled down,
burned, or destroyed, wholly or in part, by any persons riotously
and tumultuously assembled together; or if any person shall
unlawfully and with force and violence be whipped, scourged,
wounded, or killed by any persons riotously and tumultuously
assembled together, with intent to deprive any person of any right
conferred upon him by the Constitution and laws of the United
States, or to deter him or punish him for exercising such right, or
by reason of his race, color, or previous condition of servitude,
in every such case the county, city, or parish in which any of the
said offenses shall be committed shall be liable to pay full
compensation to the person or persons damnified by such offense, if
living, or to his widow or legal representative if dead, and such
compensation may be recovered in an action on the case by such
person or his representative in any court of the United States of
competent jurisdiction in the district in which the offense was
committed, such action to be in the name of the person injured, or
his legal representative, and against said county, city, or parish,
and in which action any of the parties committing such acts may be
joined as defendants. And any payment of any judgment, or part
thereof unsatisfied, recovered by the plaintiff in such action,
may, if not satisfied by the individual defendant therein within
two months next after the recovery of such judgment upon execution
duly issued against such individual defendant in such judgment, and
returned unsatisfied, in whole or in part, be enforced against such
county, city, or parish, by execution, attachment, mandamus,
garnishment, or any other proceeding in aid of execution or
applicable to the enforcement of judgments against municipal
corporations, and such judgment shall be a lien as well upon all
moneys in the treasury of such county, city, or parish, as upon the
other property thereof. And the court in any such action may on
motion cause additional parties to be made therein prior to issue
joined, to the end that justice may be done. And the said county,
city, or parish may recover the full amount of such judgment, by it
paid, with costs and interest, from any person or persons engaged
as principal or accessory in such riot, in an action in any court
of competent jurisdiction. And such county, city, or parish, so
paying, shall also be subrogated to all the plaintiff's rights
under such judgment."
Id. 749.
[
Footnote 42]
Cong.Globe, 42d Cong., 1st Sess. 800-801.
[
Footnote 43]
Id., 804
[
Footnote 44]
Id., 804.
[
Footnote 45]
Ibid.
[
Footnote 46]
See especially the comments of Senator Sherman.
Id., 820-821.
[
Footnote 47]
This Act has been described as an instance where "Congress
supplies its own dictionary." Frankfurter, Some Reflections on the
Reading of Statutes, 47 Col.L.Rev. 527, 536. The present code
provision defining "person" (1 U.S.C. § 1) does not, in terms,
apply to bodies politic.
See Reviser's Note, Vol. I, Rev.
U.S. Stats. 1872, p. 19.
[
Footnote 48]
See note, 100 U. of Pa.L.Rev. 1182, 1206-1212.
[
Footnote 49]
See Foote, Tort Remedies for Police Violations of
Individual Rights, 39 Minn.L.Rev. 493, 514.
Cf. Fuller
& Casner, Municipal Tort Liability in Operation, 54 Harv.L.Rev.
437, 459.
[
Footnote 50]
This has been the view of the lower federal courts.
Charlton
v. City of Hialeah, 188 F.2d 421, 423;
Hewitt v. City of
Jacksonville, 188 F.2d 423, 424;
Cobb v. City of
Malden, 202 F.2d 701, 703;
Agnew v. City of Compton,
239 F.2d 226, 230;
Cuiksa v. City of Mansfield, 250 F.2d
700, 703-704. In a few cases in which equitable relief has been
sought, a municipality has been named, along with city officials,
as defendant where violations of 42 U.S.C. § 1983 were alleged.
See, e.g., Douglas v. City of Jeannette, 319 U.
S. 157;
Holmes v. City of Atlanta, 350 U.S.
879. The question dealt with in our opinion was not raised in those
cases, either by the parties or by the Court. Since we hold that a
municipal corporation is not a "person" within the meaning of §
1983, no inference to the contrary can any longer be drawn from
those cases.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
concurring.
Were this case here as one of first impression, I would find the
"under color of any statute" issue very close indeed. However, in
Classic [
Footnote 2/1] and
Screws, [
Footnote 2/2]
this Court considered a substantially identical statutory phrase to
have a meaning which, unless we now retreat from it, requires that
issue to go for the petitioners here.
From my point of view, the policy of
stare decisis, as
it should be applied in matters of statutory construction, and, to
a lesser extent, the indications of congressional acceptance of
this Court's earlier interpretation, require that it appear beyond
doubt from the legislative history of the 1871 statute that
Classic and
Screws misapprehended the meaning of
the controlling provision [
Footnote
2/3] before a departure from what was decided in those cases
would be justified. Since I can find no such justifying indication
in that legislative history, I join the opinion of the Court.
However, what has been written on both sides of the matter makes
some additional observations appropriate.
Page 365 U. S. 193
Those aspects of Congress' purpose which are quite clear in the
earlier congressional debates, as quoted by my Brothers DOUGLAS and
FRANKFURTER in turn, seem to me to be inherently ambiguous when
applied to the case of an isolated abuse of state authority by an
official. One can agree with the Court's opinion that:
"It is abundantly clear that one reason the legislation was
passed was to afford a federal right in federal courts because, by
reason of prejudice, passion, neglect, intolerance or otherwise,
state laws might not be enforced and the claims of citizens to the
enjoyment of rights, privileges, and immunities guaranteed by the
Fourteenth Amendment might be denied by the state agencies. . .
."
without being certain that Congress meant to deal with anything
other than abuses so recurrent as to amount to "custom, or usage."
One can agree with my Brother FRANKFURTER, in dissent, that
Congress had no intention of taking over the whole field of
ordinary state torts and crimes, without being certain that the
enacting Congress would not have regarded actions by an official,
made possible by his position, as far more serious than an ordinary
state tort, and therefore as a matter of federal concern. If
attention is directed at the rare specific references to isolated
abuses of state authority, one finds them neither so clear nor so
disproportionately divided between favoring the positions of the
majority or the dissent as to make either position seem plainly
correct. [
Footnote 2/4]
Besides the inconclusiveness I find in the legislative history,
it seems to me by no means evident that a position
Page 365 U. S. 194
favoring departure from
Classic and
Screws
fits better that with which the enacting Congress was concerned
than does the position the Court adopted 20 years ago. There are
apparent incongruities in the view of the dissent which may be more
easily reconciled in terms of the earlier holding in
Classic.
The dissent considers that the "under color of" provision of §
1983 distinguishes between unconstitutional actions taken without
state authority, which only the State should remedy, and
unconstitutional actions authorized by the State, which the Federal
Act was to reach. If so, then the controlling difference for the
enacting legislature must have been either that the state remedy
was more adequate for unauthorized actions than for authorized ones
or that there was, in some sense, greater harm from
unconstitutional actions authorized by the full panoply of state
power and approval than from unconstitutional actions not so
authorized or acquiesced in by the State. I find less than
compelling the evidence that either distinction was important to
that Congress.
I
If the state remedy was considered adequate when the official's
unconstitutional act was unauthorized, why should it not be thought
equally adequate when the unconstitutional act was authorized? For
if one thing is very clear in the legislative history, it is that
the Congress of 1871 was well aware that no action requiring state
judicial enforcement could be taken in violation of the Fourteenth
Amendment without that enforcement being declared void by this
Court on direct review from the state courts. And presumably it
must also have been understood that there would be Supreme Court
review of the denial of a state damage remedy against an official
on grounds of state authorization of the unconstitutional
Page 365 U. S. 195
action. It therefore seems to me that the same state remedies
would, with ultimate aid of Supreme Court review, furnish identical
relief in the two situations. This is the point Senator Blair made
when, having stated that the object of the Fourteenth Amendment was
to prevent any discrimination by the law of any State, he argued
that:
"This being forbidden by the Constitution of the United States,
and all the judges, State and national, being sworn to support the
Constitution of the United States, and the Supreme Court of the
United States having power to supervise and correct the action of
the State courts when they violated the Constitution of the United
States, there could be no danger of the violation of the right of
citizens under color of the laws of the States."
Cong.Globe, 42d Cong., 1st Sess., at App. 231.
Since the suggested narrow construction of § 1983 presupposes
that state measures were adequate to remedy unauthorized
deprivations of constitutional rights, and since the identical
state relief could be obtained for state-authorized acts with the
aid of Supreme Court review, this narrow construction would reduce
the statute to having merely a jurisdictional function, shifting
the load of federal supervision from the Supreme Court to the lower
courts and providing a federal tribunal for fact findings in cases
involving authorized action. Such a function could be justified on
various grounds. It could, for example, be argued that the state
courts would be less willing to find a constitutional violation in
cases involving "authorized action" and that, therefore, the victim
of such action would bear a greater burden in that he would more
likely have to carry his case to this Court, and, once here, might
be bound by unfavorable state court findings. But the legislative
debates do not disclose congressional
Page 365 U. S. 196
concern about the burdens of litigation placed upon the victims
of "authorized" constitutional violations, contrasted to the
victims of unauthorized violations. Neither did Congress indicate
an interest in relieving the burden placed on this Court in
reviewing such cases.
The statute becomes more than a jurisdictional provision only if
one attributes to the enacting legislature the view that a
deprivation of a constitutional right is significantly different
from, and more serious than, a violation of a state right, and
therefore deserves a different remedy even though the same act may
constitute both a state tort and the deprivation of a
constitutional right. This view, by no means unrealistic as a
common sense matter, [
Footnote 2/5]
is, I believe, more consistent with the flavor of the legislative
history than is a view that the primary purpose of the statute was
to grant a lower court forum for fact findings. For example, the
tone is surely one of overflowing protection of constitutional
rights, and there is not a hint of concern about the administrative
burden on the Supreme Court, when Senator Frelinghuysen says:
"As to the civil remedies, for a violation of these privileges,
we know that, when the courts of a State
Page 365 U. S. 197
violate the provisions of the Constitution or the law of the
United States, there is now relief afforded by a review in the
Federal courts. And since the 14th Amendment forbids any State from
making or enforcing any law abridging these privileges and
immunities, as you cannot reach the Legislatures, the injured party
should have an original action in our Federal courts, so that, by
injunction or by the recovery of damages, he could have relief
against the party who under color of such law is guilty of
infringing his rights. As to the civil remedy, no one, I think, can
object."
Id. at 501. And Senator Carpenter reflected a similar
belief that the protection granted by the statute was to be very
different from the relief available on review of state
proceedings:
"The prohibition in the old Constitution that no State should
pass a law impairing the obligation of contracts was a negative
prohibition laid upon the State. Congress was not authorized to
interfere in case the State violated that provision. It is true
that, when private rights were affected by such a State law, and
that was brought before the judiciary, either of the State or
nation, it was the duty of the court to pronounce the act void; but
there the matter ended. Under the present Constitution, however, in
regard to those rights which are secured by the fourteenth
amendment, they are not left as the right of the citizen in regard
to laws impairing the obligation of contracts was left, to be
disposed of by the courts as the cases should arise between man and
man, but Congress is clothed with the affirmative power and
jurisdiction to correct the evil."
"I think there is one of the fundamental, one of the great, the
tremendous revolutions effected in our Government by that article
of the Constitution. It
Page 365 U. S. 198
gives Congress affirmative power to protect the rights of the
citizen, whereas, before, no such right was given to save the
citizen from the violation of any of his rights by State
Legislatures, and the only remedy was a judicial one when the case
arose."
Id. at 577.
In my view, these considerations put in serious doubt the
conclusion that § 1983 was limited to state-authorized
unconstitutional acts, on the premise that state remedies
respecting them were considered less adequate than those available
for unauthorized acts.
II
I think this limited interpretation of § 1983 fares no better
when viewed from the other possible premise for it, namely that
state-approved constitutional deprivations were considered more
offensive than those not so approved. For one thing, the enacting
Congress was not unaware of the fact that there was a substantial
overlap between the protections granted by state constitutional
provisions and those granted by the Fourteenth Amendment. Indeed,
one opponent of the bill, Senator Trumbull, went so far as to state
in a debate with Senators Carpenter and Edmunds that his research
indicated a complete overlap in every State, at least as to the
protections of the Due Process Clause. [
Footnote 2/6] Thus, in one very significant sense, there
was no ultimate state approval of a large portion of otherwise
authorized actions depriving a person of due process rights. I
hesitate to assume that the proponents of the present statute, who
regarded it as necessary even though they knew that the provisions
of the Fourteenth Amendment were self-executing, would have thought
the remedies unnecessary whenever there were self-executing
provisions of state constitutions also forbidding what the
Fourteenth Amendment forbids. The only alternative is
Page 365 U. S. 199
to disregard the possibility that a state court would find the
action unauthorized on grounds of the state constitution. But if
the defendant official is denied the right to defend in the federal
court upon the ground that a state court would find his action
unauthorized in the light of the state constitution, it is
difficult to contend that it is the added harmfulness of state
approval that justifies a different remedy for authorized than for
unauthorized actions of state officers. Moreover, if indeed the
legislature meant to distinguish between authorized and
unauthorized acts, and yet did not mean the statute to be
inapplicable whenever there was a state constitutional provision
which, reasonably interpreted, gave protection similar to that of a
provision of the Fourteenth Amendment, would there not have been
some explanation of this exception to the general rule? The fact
that there is none in the legislative history at least makes more
difficult a contention that these legislators were, in fact, making
a distinction between use and misuse of state power.
There is a further basis for doubt that it was the additional
force of state approval which justified a distinction between
authorized and unauthorized actions. No one suggests that there is
a difference in the showing the plaintiff must make to assert a
claim under § 1983 depending upon whether he is asserting a denial
of rights secured by the Equal Protection Clause or a denial of
rights secured by the Due Process Clause of the Fourteenth
Amendment. If the same Congress which passed what is now § 1983
also provided remedies against two or more nonofficials who
conspire to prevent an official from granting equal protection of
the laws,
see 42 U.S.C. § 1985, then it would seem almost
untenable to insist that this Congress would have hesitated, on the
grounds of lack of full state approval of the official's act, to
provide similar remedies against an official who, unauthorized,
denied that equal protection of the laws on his own initiative.
For
Page 365 U. S. 200
there would be no likely state approval of or even acquiescence
in a conspiracy to coerce a state official to deny equal
protection. Indeed, it is difficult to attribute to a Congress
which forbad two private citizens from hindering an official's
giving of equal protection an intent to leave that official free to
deny equal protection of his own accord. [
Footnote 2/7]
We have not passed upon the question whether 42 U.S.C. § 1985,
[
Footnote 2/8] which was passed as
the second section of the Act that included § 1983, was intended to
reach only the Ku Klux Klan or other substantially organized group
activity, as distinguished from what its words seem to include, any
conspiracy of two persons with
"the purpose of preventing or hindering the constituted
authorities of any State . . . from giving or securing to all
persons within such State . . . the equal protection of the laws. .
. . [
Footnote 2/9]"
Without now deciding the question, I think
Page 365 U. S. 201
it is sufficient to note that the legislative history is not
without indications that what the words of the statute seem to
state was, in fact, the meaning assumed by Congress. [
Footnote 2/10]
Page 365 U. S. 202
These difficulties in explaining the basis of a distinction
between authorized and unauthorized deprivations of constitutional
rights fortify my view that the legislative history does not bear
the burden which
stare decisis casts upon it. For this
reason, and for those stated in the opinion of the Court, I agree
that we should not now depart from the holdings of the
Classic and
Screws cases.
[
Footnote 2/1]
313 U. S. 299.
[
Footnote 2/2]
325 U. S. 91.
[
Footnote 2/3]
The provision is now found in 42 U.S.C. § 1983:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."
[
Footnote 2/4]
Compare Cong.Globe, 42d Cong., 1st Sess. 504 (Senator
Pratt), and
id. at App. 50 (Rep. Kerr), with Cong.Globe,
41st Cong., 2d Sess. 3663 (Senator Sherman), Cong.Globe, 42d Cong.,
1st Sess. 697 (Senator Edmunds),
id. at App. 68 (Rep.
Shellabarger), and Cong.Globe, 39th Cong., 1st Sess. 1758 (Senator
Trumbull).
[
Footnote 2/5]
There will be many cases in which the relief provided by the
state to the victim of a use of state power which the state either
did not or could not constitutionally authorize will be far less
than what Congress may have thought would be fair reimbursement for
deprivation of a constitutional right. I will venture only a few
examples. There may be no damage remedy for the loss of voting
rights or for the harm from psychological coercion leading to a
confession. And what is the dollar value of the right to go to
unsegregated schools? Even the remedy for such an unauthorized
search and seizure as Monroe was allegedly subjected to may be only
the nominal amount of damages to physical property allowable in an
action for trespass to land. It would indeed be the purest
coincidence if the state remedies for violations of common law
rights by private citizens were fully appropriate to redress those
injuries which only a state official can cause and against which
the Constitution provides protection.
[
Footnote 2/6]
Id. at 577.
[
Footnote 2/7]
Compare the statement of Representative Burchard:
"If the refusal of a State officer, acting for the State, to
accord equality of civil rights renders him amenable to punishment
for the offense under United States law, conspirators who attempt
to prevent such officers from performing such duty are also clearly
liable."
Cong.Globe, 42d Cong., 1st Sess., App. 315.
[
Footnote 2/8]
Section 2 as finally adopted was substantially as now provided
in 42 U.S.C. § 1985:
"If two or more persons in any State . . . conspire . . . for
the purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; or for the purpose
of preventing or hindering the constituted authorities of any State
. . . from giving or securing to all persons within such State . .
. the equal protection of the laws; [and] if one or more persons
engaged therein do, or cause to be done, any act in furtherance of
the object of such conspiracy, whereby another is injured in his
person or property, or deprived of having and exercising any right
or privilege of a citizen of the United States, the party so
injured or deprived may have an action for the recovery of damages,
occasioned by such injury or deprivation, against any one or more
of the conspirators."
[
Footnote 2/9]
I do not think that this Court's decision in
Collins v.
Hardyman, 341 U. S. 651, can
properly be viewed as determining the scope of the provision of §
1985 which refers to conspiring "for the purpose of preventing . .
. the constituted authorities of any State . . . from giving . . .
the equal protection of the laws. . . ." Not only did the Court
specifically disclaim any consideration of this provision, but it
proceeded to emphasize that the petitioners therein had only been
subjected to a private discrimination, since
"There is not the slightest allegation that defendants were
conscious of or trying to influence the law, or were endeavoring to
obstruct or interfere with it."
341 U.S. at
341 U. S. 661.
The holding that the equal protection of the law is unaffected by
discriminatorily motivated violations of state law so long as the
instrumentalities of law enforcement remain free, able, and willing
to remedy these violations is clearly based upon premises which
cannot control the quite dissimilar case of a conspiratorial
attempt to affect the fairness of these instrumentalities, "the
constituted authorities of any State."
[
Footnote 2/10]
Representative Poland, who had doubted the constitutionality of
the earlier forms of § 2, had no such doubts about its present
form. His reading of the provision is clear from his defense of
it:
"But I do agree that, if a State shall deny the equal protection
of the laws, or if a State make proper laws and have proper
officers to enforce those laws, and somebody undertakes to step in
and clog justice by preventing the State authorities from carrying
out this constitutional provision, then I do claim that we have the
right to make such interference an offense against the United
States; that the Constitution does empower us to aid in carrying
out this injunction, which, by the Constitution, we have laid upon
the States, that they shall afford the equal protection of the laws
to all their citizens. When the State has provided the law, and has
provided the officer to carry out the law, then we have the right
to say that anybody who undertakes to interfere and prevent the
execution of that State law is amenable to this provision of the
Constitution, and to the law that we may make under it declaring it
to be an offense against the United States."
Id. at 514. An opponent of the provision was, if
anything, even clearer in expressing his understanding of the
coverage of the provision:
". . . It does not require that the combination shall be one
that the State cannot put down; it does not require that it shall
amount to anything like insurrection. If three persons combine for
the purpose of preventing or hindering the constituted authorities
of any State from extending to all persons the equal protection of
the laws, although those persons may be taken by the first sheriff
who can catch them or the first constable, although every citizen
in the country may be ready to aid as a posse, yet this statute
applies. It is no case of domestic violence, no case of
insurrection, and no case, therefore, for the interference of the
Federal Government, much less its interference where there is no
call made upon it by the Governor or the Legislature of the
State."
Id. at App. 218 (Senator Thurman);
see also
id. at 514 (Rep. Farnsworth).
MR. JUSTICE FRANKFURTER, dissenting except insofar as the Court
holds that this action cannot be maintained against the City of
Chicago.
Abstractly stated, this case concerns a matter of statutory
construction. So stated, the problem before the Court is denuded of
illuminating concreteness, and thereby of its far-reaching
significance for our federal system. Again abstractly stated, this
matter of statutory construction is one upon which the Court has
already passed. But it has done so under circumstances and in
settings that negative those considerations of social policy upon
which the doctrine of
stare decisis, calling for the
controlling application of prior statutory construction, rests.
This case presents the question of the sufficiency of
petitioners' complaint in a civil action for damages brought under
the Civil Rights Act, R.S. § 1979,
Page 365 U. S. 203
42 U.S.C. § 1983. [
Footnote 3/1]
The complaint alleges that, on October 29, 1958, at 5:45 a.m.,
thirteen Chicago police officers, led by Deputy Chief of Detectives
Pape, broke through two doors of the Monroe apartment, woke the
Monroe couple with flashlights, and forced them at gunpoint to
leave their bed and stand naked in the center of the living room;
that the officers roused the six Monroe children and herded them
into the living room; that Detective Pape struck Mr. Monroe several
times with his flashlight, calling him "nigger" and "black boy";
that another officer pushed Mrs. Monroe; that other officers hit
and kicked several of the children and pushed them to the floor;
that the police ransacked every room, throwing clothing from
closets to the floor, dumping drawers, ripping mattress covers;
that Mr. Monroe was then taken to the police station and detained
on "open" charges for ten hours, during which time he was
interrogated about a murder [
Footnote
3/2] and exhibited in lineups; that he was not brought before a
magistrate, although numerous magistrate's courts were accessible;
that he was not advised of his procedural rights; that he was not
permitted to call his family or an attorney; that he was
subsequently released without criminal charges having been filed
against him. It is also alleged that the actions of the officers
throughout were without authority of a search warrant or an arrest
warrant; that those actions constituted arbitrary and unreasonable
conduct; that the
Page 365 U. S. 204
officers were employees of the City of Chicago, which furnished
each of them with a badge and an identification card designating
him as a member of the Police Department; that the officers were
agents of the city, acting in the course of their employment and
engaged in the performance of their duties, and that it is the
custom of the Department to arrest and confine individuals for
prolonged periods on "open" charges for interrogation, with the
purpose of inducing incriminating statements, exhibiting its
prisoners for identification, holding them incommunicado while
police officers investigate their activities, and punishing them by
imprisonment without judicial trial. On the basis of these
allegations, various members of the Monroe family seek damages
against the individual police officers and against the City of
Chicago. The District Court dismissed the complaint for failure to
state a claim, and the Court of Appeals for the Seventh Circuit
affirmed. 272 F.2d 365.
Petitioners base their claim to relief in the federal courts on
what was enacted as § 1 of the "Ku Klux Act" of April 20, 1871, "An
Act to enforce the Provisions of the Fourteenth Amendment to the
Constitution of the United States, and for other Purposes." 17
Stat. 13. It became, with insignificant rephrasing, § 1979 of the
Revised Statutes. As now set forth in 42 U.S.C. § 1983, it is, in
relevant part, as follows:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress. "
Page 365 U. S. 205
I
In invoking § 1979 (the old designation will be used hereafter),
petitioners contend that its protection of "rights, privileges, or
immunities secured by the Constitution" encompasses what "due
process of law" and "the equal protection of the laws" of the
Fourteenth Amendment guarantee against action by the States. In
this contention they are supported both by the title of the Act of
1871 and by its legislative history.
See the authoritative
statement of Mr. Edmunds, reporting the bill from the Senate
Committee on the Judiciary, Cong.Globe, 42d Cong., 1st Sess. 568.
See also id. at 332-334, App. 885, 310. It is true that a
related phrase, "any right or privilege secured . . . by the
Constitution or laws," in § 241 of Title 18, U.S.C., was said by a
plurality of the Court in
United States v. Williams,
341 U. S. 70, to
comprehend only the rights arising immediately from the
relationship of the individual to the central government.
And
see United States v. Cruikshank, 92 U. S.
542. [
Footnote 3/3] But
this construction was demanded by § 241, which penalizes
conspiracies of private individuals acting as such, while § 1979
applies only to action taken "under color of any statute," etc.
Different problems of statutory meaning are presented by two
enactments deriving from different
Page 365 U. S. 206
constitutional sources.
See the
Civil Rights
Cases, 109 U. S. 3.
Compare United States v. Williams, supra, with Screws v. United
States, 325 U. S. 91. If
petitioners have alleged facts constituting a deprivation under
color of state authority of a right assured them by the Fourteenth
Amendment, they have brought themselves within § 1979.
Douglas
v. Jeannette, 319 U. S. 157;
Hague v. CIO, 307 U. S. 496,
307 U. S.
525-526 (opinion of Stone, J.). [
Footnote 3/4]
To be sure,
Screws v. United States, supra, requires a
finding of specific intent in order to sustain a conviction under
the cognate penal provisions of 18 U.S.C. § 242 [
Footnote 3/5] --
"an intent to deprive a person of a right which has been made
specific either by the express terms of the Constitution or laws of
the United States or by decisions interpreting them."
325 U.S. at
325 U. S. 104.
Petitioners' complaint here alleges no such specific intent. But,
for a number of reasons, this requirement of
Screws should
not be carried over and applied to civil actions under § 1979.
First, the word "willfully" in 18 U.S.C. § 242, from which the
requirement of intent was derived in
Screws, does not
appear in § 1979. Second, § 1979, by the very fact that it is a
civil provision, invites treatment different from that to be given
its criminal analogue. The constitutional scruples concerning
vagueness which were deemed to compel the
Screws
construction have less force in the context of a civil proceeding,
[
Footnote 3/6]
Page 365 U. S. 207
and § 1979, insofar as it creates an action for damages, must be
read in light of the familiar basis of tort liability that a man is
responsible for the natural consequences of his acts. Third, even
in the criminal area, the specific intent demanded by
Screws has proved to be an abstraction serving the
purposes of a constitutional need without impressing any actual
restrictions upon the nature of the crime which the jury tries. The
Screws opinion itself said that
"The fact that the defendants may not have been thinking in
constitutional terms is not material where their aim was not to
enforce local law, but to deprive a citizen of a right and that
right was protected by the Constitution."
325 U.S. at
325 U. S. 106.
And lower courts, in applying the statute, have allowed inference
of the requisite specific intent from evidence, it would appear, of
malevolence alone. [
Footnote 3/7]
But if intent to infringe "specific" constitutional rights comes in
practice to mean no more than intent without justification to bring
about the circumstances which infringe those rights, then the
consequence of introducing the specific intent issue into a
litigation is, in effect, to require fictional pleading, needlessly
burden jurors with abstruse instructions, and lessen the degree of
control which federal courts have over jury vagaries.
If the courts are to enforce § 1979, it is an unhappy form of
judicial disapproval to surround it with doctrines which partially
and unequally obstruct its operation. Specific intent in the
context of the section would cause
Page 365 U. S. 208
such embarrassment without countervailing justification.
Petitioners' allegations that respondents, in fact, did the acts
which constituted violations of constitutional rights are
sufficient.
II
To show such violations, petitioners invoke primarily the
Amendment's Due Process Clause. [
Footnote 3/8] The essence of their claim is that the
police conduct here alleged offends those requirements of decency
and fairness which, because they are "implicit in the concept of
ordered liberty," are imposed by the Due Process Clause upon the
States.
Palko v. Connecticut, 302 U.
S. 319,
302 U. S. 325.
When we apply to their complaint that standard of a "principle of
justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental," [
Footnote
3/9] which has been the touchstone for this Court's enforcement
of due process, [
Footnote 3/10]
the merit of this constitutional claim is evident. The conception
expressed in
Wolf v. Colorado, 338 U. S.
25,
338 U. S. 27,
that "[t]he security of one's privacy against arbitrary intrusion
by the police . . . is basic to a free society," was not an
innovation of
Wolf. The tenet that there exists a realm of
sanctuary surrounding every individual and infrangible, save in a
very limited class of circumstances, by the agents of government,
had informed the decision of the King's Bench two centuries earlier
in
Entick v. Carrington, 2 Wils. 275, had been the basis
of Otis' contemporary speech against the Writ of
Page 365 U. S. 209
Assistance,
see Gray's notes in Quincy's Massachusetts
Reports, App. I, at 471; Tudor, Life of James Otis (1823) 63, and
has in the intervening years found expression not only in the
Fourth Amendment to the Constitution of the United States, but also
in the fundamental law of every State. [
Footnote 3/11] Modern totalitarianisms have been a
stark reminder, but did not newly teach, that the kicked-in door is
the symbol of a rule of fear and violence fatal to institutions
founded on respect for the integrity of man.
The essence of the liberty protected by the common law and by
the American constitutions was "the right to shut the door on
officials of the state unless their entry is under proper authority
of law"; particularly,
"the right to resist unauthorized entry which has as its design
the securing of information to fortify the coercive power of the
state against the individual."
Frank v.
Maryland, 359 U.S.
Page 365 U. S. 210
360,
359 U. S. 365.
[
Footnote 3/12] Searches of the
dwelling house were the special object of this universal
condemnation of official intrusion. [
Footnote 3/13] Night-time search was the evil in its
most obnoxious form. [
Footnote
3/14] Few reported cases have presented all of the manifold
aggravating circumstances which petitioners here allege --
intrusion en masse, by dark, by force, unauthorized by warrant,
into an occupied private home, without even the asserted
justification of belief by the intruders that the inhabitants were
presently committing some criminal act within; physical abuse and
the calculated degradation of insult and forced nakedness; sacking
and disordering of personal effects throughout the home; arrest and
detention against the background terror of threatened criminal
proceedings. Wherever similar conduct has appeared, the courts have
unanimously condemned police entries as lawless. [
Footnote 3/15]
Page 365 U. S. 211
If the question whether due process forbids this kind of police
invasion were before us in isolation, the answer would be quick.
If, for example, petitioners had sought damages in the state courts
of Illinois and if those courts had refused redress on the ground
that the official character of the respondents clothed them with
civil immunity, we would be faced with the sort of situation to
which the language in the
Wolf opinion was addressed:
"we have no hesitation in saying that, were a State
affirmatively to sanction such police incursion into privacy, it
would run counter to the guaranty of the Fourteenth Amendment."
338 U.S. at
338 U. S. 28. If
that issue is not reached in this case, it is not because the
conduct which the record here presents can be condoned. But, by
bringing their action in a Federal District Court, petitioners
cannot rest on the Fourteenth Amendment
simpliciter. They
invoke the protection of a specific statute by which Congress
restricted federal judicial enforcement of its guarantees to
particular enumerated circumstances. They must show not only that
their constitutional rights have been infringed, but that they have
been infringed "under color of [state] statute, ordinance,
regulation, custom, or usage," as that phrase is used in the
relevant congressional enactment.
III
Of course, if Congress, by appropriate statutory language,
attempted to reach every act which could be attributed to the
States under the Fourteenth Amendment's prohibition: "No State
shall . . . ," the reach of the statute would be the reach of the
Amendment itself. Relevant to the enforcement of such a statute
would be not only the concept of state action as this Court has
developed it,
see Nixon v. Condon, 286 U. S.
73,
286 U. S. 89,
but also considerations of the power of Congress, under the
Amendment's Enforcement Clause, to determine what
Page 365 U. S. 212
is "appropriate legislation" to protect the rights which the
Fourteenth Amendment secures.
Cf. United States v. Raines,
362 U. S. 17.
Still, in this supposed case, we would arrive at the question of
what Congress could do only after we had determined what it was
that Congress had done. So, in the case before us now, we must ask
what Congress did in 1871. We must determine what Congress meant by
"under color" of enumerated state authority. [
Footnote 3/16]
Congress used that phrase not only in R.S. § 1979, but also in
the criminal provisions of § 2 of the First Civil Rights Act of
April 9, 1866, 14 Stat. 27, from which is derived the present 18
U.S.C. § 242, [
Footnote 3/17]
and, in both cases, used it with the same purpose. [
Footnote 3/18] During the seventy
years
Page 365 U. S. 213
which followed these enactments, cases in this Court in which
the "under color" provisions were invoked uniformly involved action
taken either in strict pursuance of some specific command of state
law [
Footnote 3/19] or within the
scope of executive discretion in the administration of state laws.
[
Footnote 3/20]
Page 365 U. S. 214
The same is true, with two exceptions, in the lower federal
courts. [
Footnote 3/21] In the
first of these two cases, it was held that § 1979 was not directed
to instances of lawless police brutality, although the ruling was
not put on "under color"
Page 365 U. S. 215
grounds. [
Footnote 3/22] In
the second, an indictment charging a county tax collector with
depriving one Ah Koo of a federally secured right under color of a
designated California law, set forth in the indictment, was held
insufficient against a demurrer.
United States v. Jackson,
26 Fed.Cas. 563, No. 15,459 (C.C.D.Cal. 1874). The court wrote:
"The indictment contains no averment that Ah Koo was a foreign
miner, and within the provisions of the state law. If this averment
be unnecessary . . . , the act of congress would then be held to
apply to a case of illegal extortion by a tax collector from any
person,
Page 365 U. S. 216
though such exaction might be wholly unauthorized by the law
under which the officer pretended to act."
"We are satisfied that it was not the design of congress to
prevent or to punish such abuse of authority by state officers. The
object of the act was, not to prevent illegal exactions, but to
forbid the execution of state laws, which, by the act itself, are
made void. . . ."
"It would seem necessarily to follow that the person from whom
the tax was exacted must have been a person from whom, under the
provisions of the state law, the officer was authorized to exact
it. The statute requires that a party shall be subjected to a
deprivation of right secured by the statute under color of some
law, statute, order or custom; but if this exaction, although made
by a tax collector, has been levied upon a person not within the
provisions of the state law, the exaction cannot be said to have
been made 'under color of law,' any more than a similar exaction
from a Chinese miner, made by a person wholly unauthorized, and
under the pretense of being a tax collector."
Id. at 563-564. Throughout this period, the only
indication of this Court's views on the proper interpretation of
the "under color" language is a dictum in the
Civil Rights
Cass, 109 U. S. 3. There,
in striking down other Civil Rights Act provisions which, as the
Court regarded them, attempted to reach private conduct not
attributable to state authority, Mr. Justice Bradley contrasted
those provisions with § 2 of the Act of 1866:
"This [latter] law is clearly corrective in its character,
intended to counteract and furnish redress against State laws and
proceedings, and customs having the force of law, which sanction
the wrongful acts specified."
Id. at
109 U. S. 16.
A sharp change from this uniform application of seventy years
was made in 1941, but without acknowledgment or
Page 365 U. S. 217
indication of awareness of the revolutionary turnabout from what
had been established practice. The opinion in
United States v.
Classic, 313 U. S. 299,
accomplished this. The case presented an indictment under § 242
charging certain local Commissioners of Elections with altering
ballots cast in a primary held to nominate candidates for Congress.
Sustaining the sufficiency of the indictment in an extensive
opinion concerned principally with the question whether the right
to vote in such a primary was a right secured by the Constitution,
[
Footnote 3/23] Mr. Justice Stone
wrote that the alteration of the ballots was "under color" of state
law. This holding was summarily announced without exposition; it
had been only passingly argued. [
Footnote 3/24] Of the three authorities cited to
support it, two did not involve the "under color" statutes,
[
Footnote 3/25] and the third,
Hague v. CIO, 307 U. S. 496, was
a case in which high-ranking municipal officials claimed
authorization for their actions under municipal ordinances (here
held unconstitutional)
Page 365 U. S. 218
and under the general police powers of the State. [
Footnote 3/26] All three of these cases
had dealt with "State action" problems, and it is "State action,"
not the very different question of the "under color" clause, that
Mr. Justice Stone appears to have considered. [
Footnote 3/27] (I joined in this opinion without
having made an independent examination of the legislative history
of the relevant legislation or of the authorities drawn upon for
the
Classic construction. Acquiescence so founded does not
preclude the responsible recognition of error disclosed by
subsequent study.) When, however, four years later, the Court was
called on to review the conviction under § 242 of a Georgia County
Sheriff who had beaten a Negro prisoner to death, the opinion of
four of the six Justices who believed that the statute applied
merely invoked
Classic and
stare decisis, and did
not reconsider the meaning which that case had uncritically assumed
was to be attached to the language, "under color" of state
authority.
Screws v. United States, 325 U. S.
91. The briefs in the
Screws case did
Page 365 U. S. 219
not examine critically the legislative history of the Civil
Rights Acts. [
Footnote 3/28] The
only reference to this history in the plurality opinion, insofar as
it bears on the interpretation of the clause "under color of . . .
law," is contained in a pair of sentences discounting two
statements by Senators Trumbull and Sherman regarding the Civil
Rights Acts of 1866 and 1870, cited by the minority. [
Footnote 3/29] The bulk of the plurality
opinion's treatment of the issue consists of the argument that
"under color" had been construed in
Classic, and that the
construction there put on the words should not be abandoned or
revised. 325 U.S. at
325 U. S.
109-113. The case of
Williams v. United States,
341 U. S. 97,
reaffirmed
Screws and applied it to circumstances of
third-degree brutality practiced by a private detective who held a
special police officer's card and was accompanied by a regular
policeman. [
Footnote 3/30]
Page 365 U. S. 220
Thus, although this Court has three times found that conduct of
state officials which is forbidden by state law may be "under
color" of state law for purposes of the Civil Rights Acts, it is
accurate to say that that question has never received here the
consideration which its importance merits. That regard for
controlling legislative history which is conventionally observed by
this Court in determining the true meaning of important legislation
that does not construe itself [
Footnote 3/31] has never been applied to the "under
color" provisions; particularly, there has never been canvassed the
full record of the debates preceding passage of the 1871 Act with
which we are concerned in this case. Neither
Classic nor
Screws nor
Williams warrants refusal now to take
account of those debates and the illumination they afford. While we
may well decline to reexamine recent cases which derive from the
judicial process exercised under its adequate safeguards --
documenting briefs and adequate arguments on both sides as
foundation for due deliberation -- the relevant demands of
stare decisis do not preclude considering, for the first
time thoroughly and in the light of the best available evidence of
congressional purpose, a statutory
Page 365 U. S. 221
interpretation which started as an unexamined assumption on the
basis of inapplicable citations and has the claim of a dogma solely
through reiteration. Particularly is this so when that
interpretation, only recently made, was at its inception a silent
reversal of the judicial history of the Civil Rights Acts for three
quarters of a century.
"The rule of
stare decisis, though one tending to
consistency and uniformity of decision, is not inflexible."
Hertz v. Woodman, 218 U. S. 205,
218 U. S. 212.
It is true, of course, that the reason for the rule is more
compelling in cases involving inferior law, law capable of change
by Congress, than in constitutional cases, where this Court --
although even in such cases a wise consciousness of the limitations
of individual vision has impelled it always to give great weight to
prior decisions -- nevertheless bears the ultimate obligation for
the development of the law as institutions develop.
See, e.g.,
Smith v. Allwright, 321 U. S. 649. But
the Court has not always declined to reexamine cases whose outcome
Congress might have changed.
See Mr. Justice Brandeis,
dissenting, in
Burnet v. Coronado Oil & Gas Co.,
285 U. S. 393,
285 U. S.
406-407, n. 1. Decisions involving statutory
construction, even decisions which Congress has persuasively
declined to overrule, have been overruled here.
See Girouard v.
United States, 328 U. S. 61,
overruling United States v. Schwimmer, 279 U.
S. 644,
United States v. Macintosh,
283 U. S. 605, and
United States v. Bland, 283 U. S. 636;
see also Commissioner v. Estate of Church, 335 U.
S. 632,
overruling May v. Heiner, 281 U.
S. 238.
And, with regard to the Civil Rights Acts, there are reasons of
particular urgency which authorize the Court -- indeed, which make
it the Court's responsibility -- to reappraise in the hitherto
skimpily considered context of R.S. § 1979 what was decided in
Classic, Screws and
Williams. This is not an area
of commercial law in which, presumably, individuals may have
arranged their affairs in
Page 365 U. S. 222
reliance on the expected stability of decision.
Compare
National Bank v. Whitney, 103 U. S. 99;
Vail v. Arizona, 207 U. S. 201;
Walling v. Halliburton Oil Well Cementing Co.,
331 U. S. 17;
United States v. South Buffalo R. Co., 333 U.
S. 771. Nor is it merely a mine-run statutory question
involving a narrow compass of individual rights and duties. The
issue in the present case concerns directly a basic problem of
American federalism: the relation of the Nation to the States in
the critically important sphere of municipal law administration. In
this aspect, it has significance approximating constitutional
dimension. Necessarily, the construction of the Civil Rights Acts
raises issues fundamental to our institutions. This imposes on this
Court a corresponding obligation to exercise its power within the
fair limits of its judicial discretion.
"We recognize that
stare decisis embodies an important
social policy. It represents an element of continuity in law, and
is rooted in the psychologic need to satisfy reasonable
expectations. But
stare decisis is a principle of policy,
and not a mechanical formula of adherence to the latest decision,
however recent and questionable. . . ."
Helvering v. Hallock, 309 U. S. 106,
309 U. S.
119.
Now, while invoking the prior decisions which have given "under
color of [law]" a content that ignores the meaning fairly comported
by the words of the text and confirmed by the legislative history,
the Court undertakes a fresh examination of that legislative
history. The decision in this case, therefore, does not rest on
stare decisis, and the true construction of the statute
may be thought to be as free from the restraints of that doctrine
as though the matter were before us for the first time. Certainly,
none of the implications which the Court seeks to draw from
silences in the minority reports of congressional committees in
1956, 1957, and 1960, or from the use of "under color" language in
the very different context of the Act of May 6, 1960,
Page 365 U. S. 223
74 Stat. 86 -- concerned, in relevant part, with the
preservation of election records and with the implementation of the
franchise -- serves as an impressive bar to reexamination of the
true scope of R.S. § 1979 itself in its pertinent legislative
setting. [
Footnote 3/32]
Page 365 U. S. 224
IV
This case squarely presents the question whether the intrusion
of a city policeman for which that policeman can show no such
authority at state law as could be successfully interposed in
defense to a state law action against him, is nonetheless to be
regarded as "under color" of state authority within the meaning of
R.S. § 1979. Respondents, in breaking into the Monroe apartment,
violated the laws of the State of Illinois. [
Footnote 3/33] Illinois law
Page 365 U. S. 225
appears to offer a civil remedy for unlawful searches; [
Footnote 3/34] petitioners do not claim
that none is available. Rather, they assert that they have been
deprived of due process of law and of equal protection of the laws
under color of state law, although, from all that appears, the
courts of Illinois are available to give them the fullest redress
which the common law affords for the violence done them, nor does
any "statute, ordinance, regulation, custom, or usage" of the State
of Illinois bar that redress. Did the enactment by Congress of § 1
of the Ku Klux Act of 1871 encompass such a situation?
That section, it has been noted, was patterned on the similar
criminal provision of § 2, Act of April 9, 1866. The earlier Act
had as its primary object the effective nullification of the Black
Codes, those statutes of the Southern legislatures which had so
burdened and disqualified the Negro as to make his emancipation
appear illusory. [
Footnote 3/35]
The Act had been vetoed by President Johnson, whose veto message
describes contemporary understanding of its second section; the
section, he wrote,
"seems to be designed to apply to some existing or future law of
a State or Territory which may conflict with the provisions of the
bill. . . . It provides for counteracting such forbidden
legislation by imposing fine and imprisonment upon the legislators
who may pass such conflicting laws, or upon the officers or agents
who shall put, or attempt to put, them into execution. It means an
official offense, not a common
Page 365 U. S. 226
crime committed against law upon the persons or property of the
black race. Such an act may deprive the black man of his property,
but not of the right to hold property. It means a deprivation of
the right itself, either by the State judiciary or the State
Legislature. [
Footnote 3/36]"
And Senator Trumbull, then Chairman of the Senate Judiciary
Committee, [
Footnote 3/37] in his
remarks urging its passage over the veto, expressed the intendment
of the second section as those who voted for it read it:
"If an offense is committed against a colored person simply
because he is colored, in a State where the law affords him the
same protection as if he were white, this act neither has nor was
intended to have anything to do with his case, because he has
adequate remedies in the State courts; but if he is discriminated
against under color of State laws because he is colored, then it
becomes necessary to interfere for his protection. [
Footnote 3/38]"
Section 2 of the 1866 Act was reenacted in substance in 1870 as
part of "An Act to enforce the Right of Citizens . . . to vote in
the several States . . . ," 16 Stat. 140,
Page 365 U. S. 227
144. The following colloquy on that occasion is particularly
revealing:
"Mr. SHERMAN. . . . My colleague cannot deny that we can, by
appropriate legislation, prevent any private person from shielding
himself under a State regulation, and thus denying to a person the
right to vote. . . ."
"Mr. CASSERLY. I should like to ask the Senator from Ohio how a
State can be said to abridge the right of a colored man to vote
when some irresponsible person in the streets is the actor in that
wrong?"
"Mr. SHERMAN. If the offender, who may be a loafer, the meanest
man in the streets, covers himself under the protection or color of
a law or regulation or constitution of a State, he may be punished
for doing it."
"Mr. CASSERLY. Suppose the State law authorizes the colored man
to vote; what then?"
"Mr. SHERMAN. That is not the case with which we are dealing. .
. . This bill only proposes to deal with offenses committed by
officers or persons under color of existing State law, under color
of existing State constitutions. No man could be convicted under
this bill reported by the Judiciary Committee unless the denial of
the right to vote was done under color or pretense of State
regulation. The whole bill shows that. . . . [T]he first and second
sections of the bill . . . simply punish officers as well as
persons for discrimination under color of State laws or
constitutions, and it so provides all the way through. [
Footnote 3/39] "
Page 365 U. S. 228
The original text of the present § 1979 contained words, left
out in the Revised Statutes, which clarified the objective to which
the provision was addressed:
"That any person who, under color of any law, statute,
ordinance, regulation, custom, or usage of any State, shall
subject, or cause to be subjected, any person within the
jurisdiction of the United States to the deprivation of any rights,
privileges, or immunities secured by the Constitution of the United
States, shall,
any such law, statute, ordinance, regulation,
custom, or usage of the State to the contrary notwithstanding,
be liable to the party injured. . . . [
Footnote 3/40]"
Representative Shellabarger, reporting the section, explained it
to the House as,
"in its terms, carefully confined to giving a civil action for
such wrongs against citizenship as are done under color of State
laws which abridge these rights. [
Footnote 3/41]"
Senator Edmunds, steering the measure through the Senate, found
constitutional sanction for it in the Fourteenth Amendment,
explaining that state action may consist in executive nonfeasance
as well as malfeasance, so that any offenses against a citizen in
a
Page 365 U. S. 229
State are susceptible of federal protection
"unless the criminal who shall commit those offenses is punished
and the person who suffers receives that redress which the
principles and spirit of the laws entitle him to have. [
Footnote 3/42]"
And James A. Garfield supported the bill in the House as
"so guarded as to preserve intact the autonomy of the States,
the machinery of the State governments, and the municipal
organizations established under State laws. [
Footnote 3/43]"
Indeed, the Ku Klux Act, as a whole, encountered in the course
of its passage strenuous constitutional objections which focused
precisely upon an assertedly unauthorized extension of federal
judicial power into areas of exclusive State competence. [
Footnote 3/44] A special target was § 2
of the bill as reported to the House, providing criminal
penalties:
"if two or more persons shall, within the limits of any State,
band, conspire, or combine together to do
Page 365 U. S. 230
any act in violation of the rights, privileges, or immunities of
any person, to which he is entitled under the Constitution and laws
of the United States, which, committed within a place under the
sole and exclusive jurisdiction of the United States, would, under
any law of the United States then in force, constitute the crime of
either murder, manslaughter, mayhem, robbery, assault and battery,
perjury, subornation of perjury, criminal obstruction of legal,
process [
sic] or resistance of officers in discharge of
official duty, arson, or larceny. . . . [
Footnote 3/45]"
In vain the proponents of this section argued its propriety,
seeking to support it by argument
ex necessitate from the
complete failure of state judicial and executive organs to control
the depredations of the Klan. [
Footnote 3/46] Even
Page 365 U. S. 231
in the Reconstruction Congress, the majority party split. Many
balked at legislation which they regarded as establishing a general
federal jurisdiction for the protection of person and property in
the States. [
Footnote 3/47] Only
after a complete
Page 365 U. S. 232
rewriting of the section to meet these constitutional objections
could the bill be passed. [
Footnote
3/48] Yet almost none of those who had decried § 2 as
undertaking impermissibly to make the national courts tribunals of
concurrent jurisdiction for the punishment of state law offenses
expressed similar objections to § 1, later § 1979. [
Footnote 3/49] One of the most
Page 365 U. S. 233
vehement of those who could find no constitutional sanction for
federal judicial control of conduct already proscribed by state
law, and who therefore opposed original § 2 as reaching beyond the
limits of congressional competence, expressly supported § 1 as
affording "further redress for violations under State authority of
constitutional rights." [
Footnote
3/50]
The general understanding of the legislators unquestionably was
that, as amended, the Ku Klux Act did
"not undertake to furnish redress for wrongs done by one person
upon another in any of the States . . . in violation of their laws,
unless he also violated some law of the United States, nor to
punish one person for an ordinary assault and battery. . . .
[
Footnote 3/51]"
Even those who -- opposing the constitutional objectors -- found
sufficient congressional power in the Enforcement Clause of the
Fourteenth Amendment to give this kind of redress deemed
inexpedient the exercise of any such power:
"Convenience and courtesy to the States suggest a sparing use,
and never so far as to supplant the State authorities except in
cases of extreme necessity, and when the State governments
criminally refuse or neglect those duties which are imposed
Page 365 U. S. 234
upon them. [
Footnote
3/52]"
Extreme Radicals, those who believed that the remedy for the
oppressed Unionists in the South was a general expansion of federal
judicial jurisdiction so that "loyal men could have the privilege
of having their causes, civil and criminal, tried in the Federal
courts," were disappointed with the Act as passed. [
Footnote 3/53]
Finally, it is significant that the opponents of the Act,
exhausting ingenuity to discover constitutional objections to every
provision of it, also construed § 1 as addressed only to conduct
authorized by state law, and therefore within the admitted
permissible reach of Fourteenth Amendment federal power. "The first
section of this bill prohibits any invidious legislation by States
against the rights or privileges of citizens of the United States,"
one such opponent paraphrased the provision. [
Footnote 3/54] And Senator Thurman, who insisted
vociferously on the absence of federal power to penalize a
conspiracy of individuals to violate state law ("that is a case of
mere individual violence, having no color whatsoever of authority
of law, either Federal or State, and to say that you can punish men
for that mere conspiracy, which is their individual act, and which
is a crime against the State laws themselves, punishable by the
State laws, is simply to wipe out all the State jurisdiction over
crimes and transfer it bodily to the Congress"), [
Footnote 3/55] admitted without question the
constitutionality of § 1 [
Footnote
3/56] ("It refers to a deprivation under color of law, either
statute law or "custom or usage" which has become common law").
[
Footnote 3/57]
Page 365 U. S. 235
The Court now says, however, that
"It was not the unavailability of state remedies, but the
failure of certain States to enforce the laws with an equal hand
that furnished the powerful momentum behind this 'force bill.'"
Of course, if the notion of "unavailability" of remedy is
limited to mean an absence of statutory, paper right, this is in
large part true. [
Footnote 3/58]
Insofar as the Court undertakes to demonstrate -- as the bulk of
its opinion seems to do -- that § 1979 was meant to reach some
instances of action not specifically authorized by the avowed,
apparent, written law inscribed in the statute books of the States,
the argument knocks at an open door. No one would or could deny
this, for, by its express terms, the statute comprehends
deprivations of federal rights under color of any "statute,
ordinance, regulation,
custom, or usage" of a State.
(Emphasis added.) The question is, what class of cases other than
those involving state statute law were meant to be reached. And,
with respect to this question, the Court's conclusion is undermined
by the very portions of the legislative debates which it cites. For
surely the misconduct of individual municipal police officers,
subject to the effective oversight of appropriate state
administrative and judicial authorities, presents a situation which
differs
toto coelo from one in which "Immunity is given to
crime, and the records of the public tribunals are searched in vain
for any evidence of effective redress," [
Footnote 3/59] or in which murder rages while a State
makes
Page 365 U. S. 236
"no successful effort to bring the guilty to punishment or
afford protection or redress," [
Footnote 3/60] or in which the "State courts . . .
[are] unable to enforce the criminal laws . . . or to suppress the
disorders existing," [
Footnote
3/61] or in which, in a State's
"judicial tribunals one class is unable to secure that
enforcement of their rights and punishment for their infraction
which is accorded to another, [
Footnote 3/62]"
or "of . . . hundreds of outrages . . . not one [is] punished,"
[
Footnote 3/63] or "the courts of
the . . . States fail and refuse to do their duty in the punishment
of offenders against the law," [
Footnote 3/64] or in which a "class of officers charged
under the laws with their administration permanently and as a rule
refuse to extend [their] protection." [
Footnote 3/65] These statements indicate that Congress
-- made keenly aware by the post-bellum conditions in the South
that States through their authorities could sanction offenses
against the individual by settled practice which established state
law as truly as written codes -- designed § 1979 to reach, as well,
official conduct which, because engaged in "permanently and as a
rule," or "systematically," [
Footnote
3/66] came through acceptance by law-administering officers to
constitute "custom, or usage" having the cast of law.
See
Nashville, C. & St.L. R. Co. v. Browning, 310 U.
S. 362,
310 U. S. 369.
They do not indicate an attempt to reach, nor does the statute, by
its terms, include, instances of acts in defiance of state law and
which no settled state practice, no systematic pattern of official
action or inaction, no "custom, or usage, of any State," insulates
from effective and adequate reparation by the State's
authorities.
Page 365 U. S. 237
Rather, all the evidence converges to the conclusion that
Congress, by § 1979, created a civil liability enforceable in the
federal courts only in instances of injury for which redress was
barred in the state courts because some "statute, ordinance,
regulation, custom, or usage" sanctioned the grievance complained
of. This purpose, manifested even by the so-called "Radical"
Reconstruction Congress in 1871, accords with the presuppositions
of our federal system. The jurisdiction which Article III of the
Constitution conferred on the national judiciary reflected the
assumption that the state courts, not the federal courts, would
remain the primary guardians of that fundamental security of person
and property which the long evolution of the common law had secured
to one individual as against other individuals. The Fourteenth
Amendment did not alter this basic aspect of our federalism.
[
Footnote 3/67]
Its commands were addressed to the States. Only when the States,
through their responsible organs for the formulation and
administration of local policy, sought to deny or impede access by
the individual to the central government in connection with those
enumerated functions assigned to it, or to deprive the individual
of a certain minimal fairness in the exercise of the coercive
forces of the State, or without reasonable justification to treat
him differently than other persons subject to their jurisdiction,
was an overriding federal sanction imposed. As between individuals,
no corpus of substantive rights was guaranteed by the Fourteenth
Amendment, but only "due process of law" in the ascertainment and
enforcement of rights and equality in the enjoyment of rights and
safeguards that the States afford. This was the base of the
distinction between federal citizenship and state
Page 365 U. S. 238
citizenship drawn by the
Slaughter-House
Cases, 16 Wall. 36. This conception begot the
"State action" principle on which, from the time of the
Civil
Rights Cases, 109 U. S. 3, this
Court has relied in its application of Fourteenth Amendment
guarantees. As between individuals, that body of mutual rights and
duties which constitute the civil personality of a man remains
essentially the creature of the legal institutions of the
States.
But, of course, in the present case, petitioners argue that the
wrongs done them were committed not by individuals, but by the
police as state officials. There are two senses in which this might
be true. It might be true if petitioners alleged that the redress
which state courts offer them against the respondents is different
than that which those courts would offer against other individuals,
guilty of the same conduct, who were not the police. This is not
alleged. It might also be true merely because the respondents are
the police -- because they are clothed with an appearance of
official authority which is, in itself, a factor of significance in
dealings between individuals. Certainly the night-time intrusion of
the man with a star and a police revolver is a different phenomenon
than the night-time intrusion of a burglar. The aura of power which
a show of authority carries with it has been created by state
government. For this reason, the national legislature, exercising
its power to implement the Fourteenth Amendment, might well
attribute responsibility for the intrusion to the State and
legislate to protect against such intrusion. The pretense of
authority alone might seem to Congress sufficient basis for
creating an exception to the ordinary rule that it is to the state
tribunals that individuals within a State must look for redress
against other individuals within that State. The same pretense of
authority might suffice to sustain congressional legislation
creating the exception.
See Ex parte Virginia,
100 U. S. 339. But
until Congress has
Page 365 U. S. 239
declared its purpose to shift the ordinary distribution of
judicial power for the determination of causes between co-citizens
of a State, this Court should not make the shift. Congress has not
in § 1979 manifested that intention.
The unwisdom of extending federal criminal jurisdiction into
areas of conduct conventionally punished by state penal law is
perhaps more obvious than that of extending federal civil
jurisdiction into the traditional realm of state tort law. But the
latter, too, presents its problems of policy appropriately left to
Congress. Suppose that a state legislature or the highest court of
a State should determine that, within its territorial limits, no
damages should be recovered in tort for pain and suffering, or for
mental anguish, or that no punitive damages should be recoverable.
Since the federal courts went out of the business of making
"general law,"
Erie R. Co. v. Tompkins, 304 U. S.
64, such decisions of local policy have admittedly been
the exclusive province of state lawmakers. Should the civil
liability for police conduct which can claim no authority under
local law, which is actionable as common law assault or trespass in
the local courts, comport different rules? Should an unlawful
intrusion by a policeman in Chicago entail different consequences
than an unlawful intrusion by a hoodlum? These are matters of
policy in its strictly legislative sense, not for determination by
this Court. And if it be, as it is, a matter for congressional
choice, the legislative evidence is overwhelming that § 1979 is not
expressive of that choice. Indeed, its precise limitation to acts
"under color" of state statute, ordinance or other authority
appears on its face designed to leave all questions of the nature
and extent of liability of individuals to the laws of the several
States except when a State seeks to shield those individuals under
the special barrier of state authority. To extend Civil Rights Act
liability beyond that point is
Page 365 U. S. 240
to interfere in areas of state policymaking where Congress has
not determined to interfere.
Nor will such interference be negligible. One argument urged in
Screws in favor of the result which that case reached was
the announced policy of self-restraint of the Department of Justice
in the prosecution of cases under 18 U.S.C. § 242.
See 325
U.S. at
325 U. S.
159-160. Experience indicates that private litigants
cannot be expected to show the same consideration for the autonomy
of local administration which the Department purportedly shows.
[
Footnote 3/68]
Relevant also are the effects upon the institution of federal
constitutional adjudication of sustaining under § 1979 damage
actions for relief against conduct allegedly violative of federal
constitutional rights, but plainly
Page 365 U. S. 241
violative of state law. Permitting such actions necessitates the
immediate decision of federal constitutional issues despite the
admitted availability of state law remedies which would avoid those
issues. [
Footnote 3/69] This
would make inroads, throughout a large area, upon the principle of
federal judicial self-limitation which has become a significant
instrument in the efficient functioning of the national judiciary.
See Railroad Comm'n of Texas v. Pullman Co., 312 U.
S. 496, and cases following. Self-limitation is not a
matter of technical nicety, nor judicial timidity. It reflects the
recognition that, to no small degree, the effectiveness of the
legal order depends upon the infrequency with which it solves its
problems by resorting to determinations of ultimate power.
Especially is this true where the circumstances under which those
ultimate determinations must be made are not conducive to the most
mature deliberation and decision. If § 1979 is made a vehicle of
constitutional litigation in cases where state officers have acted
lawlessly at state law, difficult questions of the federal
constitutionality of certain official practices -- lawful perhaps
in some States, unlawful in others -- may be litigated between
private parties without the participation of responsible state
authorities which is obviously desirable to protect legitimate
state interests, but also to better guide adjudication by competent
recordmaking and argument.
Of course, these last considerations would be irrelevant to our
duty if Congress had demonstrably meant to reach by § 1979
activities like those of respondents in this case. But where it
appears that Congress plainly did not have that understanding,
respect for principles which this Court has long regarded as
critical to the most effective functioning
Page 365 U. S. 242
of our federalism should avoid extension of a statute beyond its
manifest area of operation into applications which invite conflict
with the administration of local policies. Such an extension makes
the extreme limits of federal constitutional power a law to
regulate the quotidian business of every traffic policeman, every
registrar of elections, every city inspector or investigator, every
clerk in every municipal licensing bureau in this country. The text
of the statute, reinforced by its history, precludes such a
reading.
In concluding that police intrusion in violation of state law is
not a wrong remediable under R.S. § 1979, the pressures which urge
an opposite result are duly felt. The difficulties which confront
private citizens who seek to vindicate in traditional common law
actions their state-created rights against lawless invasion of
their privacy by local policemen are obvious, [
Footnote 3/70] and obvious is the need for more
effective modes of redress. The answer to these urgings must be
regard for our federal system, which presupposes a wide range of
regional autonomy in the kinds of protection local residents
receive. If various common law concepts make it possible for a
policeman -- but no more possible for a policeman than for any
individual hoodlum intruder -- to escape without liability when he
has vandalized a home, that is an evil. But surely its remedy
devolves, in the first instance, on the States. Of course, if the
States afford less protection against the police, as police, than
against the hoodlum -- if, under authority of state "statute,
ordinance, regulation, custom, or usage," the police are specially
shielded --
Page 365 U. S. 243
§ 1979 provides a remedy which dismissal of petitioners'
complaint in the present case does not impair. Otherwise, the
protection of the people from local delinquencies and shortcomings
depends, as in general it must, upon the active consciences of
state executives, legislators and judges. [
Footnote 3/71] Federal intervention, which must, at
best, be limited to securing those minimal guarantees afforded by
the evolving concepts of due process and equal protection, may, in
the long run, do the individual a disservice by deflecting
responsibility from the state lawmakers, who hold the power of
providing a far more comprehensive scope of protection. Local
society, also, may well be the loser by relaxing its sense of
responsibility and, indeed, perhaps resenting what may appear to it
to be outside interference where local authority is ample and more
appropriate to supply needed remedies.
This is not to say that there may not exist today, as in 1871,
needs which call for congressional legislation to protect the civil
rights of individuals in the States. Strong contemporary assertions
of these needs have been expressed. Report of the President's
Committee on Civil Rights, To Secure These Rights (1947); Chafee,
Safeguarding Fundamental Human Rights: The Tasks of States and
Nation, 27 Geo.Wash.L.Rev. 519 (1959). But both the insistence of
the needs and the delicacy of the issues involved in finding
appropriate means for their satisfaction demonstrate that their
Page 365 U. S. 244
demand is for legislative, not judicial, response. We cannot
expect to create an effective means of protection for human
liberties by torturing an 1871 statute to meet the problems of
1960.
Of an enactment like the Civil Rights Act, dealing with the
safeguarding and promotion of individual freedom, it is especially
relevant to be mindful that, since it is projected into the future,
it is ambulatory in its scope, the statute properly absorbing the
expanding reach of its purpose to the extent that the words with
which that purpose is conveyed fairly bear such expansion. But this
admissible expansion of meaning through the judicial process does
not entirely unbind the courts and license their exercise of what
is qualitatively a different thing, namely, the formulation of
policy through legislation. In one of the last writings by that
toughminded libertarian, who was also no friend of narrow
construction, Professor Zechariah Chafee, Jr., he admonished
against putting the Civil Rights Act to dubious new uses even
though, as a matter of policy, they might be desirable in the
changed climate nearly a hundred years after its enactment:
"At all events, we can be sure of one thing. If federal
protection be desirable, we ought to get it by something better
than a criminal statute of antiquated uncertainties and based on
the outmoded Privileges and Immunities Clause of the Fourteenth
Amendment. . . . It is very queer to try to protect human rights in
the middle of the Twentieth Century by a left-over from the days of
General Grant."
Id. at 529. It is not a work for courts to melt and
recast this statute. "Under color" of law meant by authority of law
in the nineteenth century. No judicial sympathy, however strong,
for needs now felt can give the phrase -- a phrase which occurs in
a statute, not in a constitution -- any different meaning in the
twentieth.
Compare Mr. Justice Holmes' varying approaches
to construction of the same word in a statute
Page 365 U. S. 245
and in the Constitution,
Towne v. Eisner, 245 U.
S. 418, and
Eisner v. Macomber, 252 U.
S. 189,
252 U. S. 219
(dissenting).
This meaning, no doubt, poses difficulties for the case-by-case
application of § 1979. Manifestly, the applicability of the section
in an action for damages cannot be made to turn upon the actual
availability or unavailability of a state law remedy for each
individual plaintiff's situation. Prosecution to adverse judgment
of a state court damage claim cannot be made prerequisite to § 1979
relief. In the first place, such a requirement would effectively
nullify § 1979 as a vehicle for recovering damages. [
Footnote 3/72] In the second place, the
conclusion that police activity which violates state law is not
"under color" of state law does not turn upon the existence of a
state tort remedy. Rather, it recognizes the freedom of the States
to fashion their own laws of torts in their own way under no threat
of federal intervention save where state law makes determinative of
a plaintiff's rights the particular circumstance that defendants
are acting by state authority. Section 1979 was not designed to
cure and level all the possible imperfections of local common law
doctrines, but to provide for the case of the defendant who can
claim that some particular dispensation of state authority
immunizes him from the ordinary processes of the law.
Page 365 U. S. 246
It follows that federal courts, in actions at law under § 1979,
would have to determine whether defendants' conduct is in violation
of, or under color of, state law, often with little guidance from
earlier state decisions. Such a determination will sometimes be
difficult, of course. But Federal District Courts sitting in
diversity cases are often called upon to determine as intricate and
uncertain questions of local law as whether official authority
would cloak a given practice of the police from liability in a
state court suit. Certain fixed points of reference will be
available. If a plaintiff can show that defendant is acting
pursuant to the specific terms of a state statute or of a municipal
ordinance, § 1979 will apply.
See Lane v. Wilson,
307 U. S. 268. If
he can show that defendant's conduct is within the range of
executive discretion in the enforcement of a state statute, or
municipal ordinance, § 1979 will apply.
See Hague v. CIO,
307 U. S. 496.
Beyond these cases will lie the admittedly more difficult ones in
which he seeks to show some "
custom or usage' which has become
common law." [Footnote
3/73]
Page 365 U. S.
247
V
My Brother HARLAN's concurring opinion deserves separate
consideration. It begins by asking what is its essential question:
why would the Forty-second Congress, which clearly provided tort
relief in the federal courts for violations of constitutional
rights by acts of a policeman acting pursuant to state authority,
not also have provided the same relief for violations of
constitutional rights by a policeman acting in violation of state
authority? What, it inquires, would cause a Congress to distinguish
between the two situations? Examining a first possible
differentiating factor -- the differing degrees of adequacy of
protection of person and property already available in the state
courts -- it reasons that this could not have been significant in
view of Congress' purpose in 1871, for that purpose was not to
enact a statute having
"merely a jurisdictional function, shifting the load of federal
supervision from the Supreme Court to the lower courts and
providing a federal tribunal for fact findings.
Page 365 U. S. 248
Examining the other possible distinction -- the difference
between injuries to individuals from isolated acts of abuse of
authority by state officers and injuries to individuals from acts
sanctioned by the dignity of state law -- it finds that this, too,
could not have been important, especially to a Congress which was
aware of the existence of state constitutional guarantees of
protection to the individual, and which enacted the conspiracy
statute which became R.S. § 1980 and is now 42 U.S.C. § 1985."
To ask why a Congress which legislated to reach a state officer
enforcing an unconstitutional law or sanctioned usage did not also
legislate to reach the same officer acting unconstitutionally
without authority is to abstract this statute from its historical
context. The legislative process of the post-bellum Congresses
which enacted the several Civil Rights Acts was one of struggle and
compromise in which the power of the National Government was
expanded piece by piece against bitter resistance; the Radicals of
1871 had to yield ground and bargain over detail in order to keep
the moderate Republicans in line. [
Footnote 3/74] This was not an endeavor for achieving
legislative patterns of analytically satisfying symmetry. It was a
contest of large sallies and small retreats in which as much ground
was occupied, at any time, as the temporary coalescences of forces
strong enough to enroll a prevailing vote could agree upon. To
assume that, if Congress reached one situation, it would also have
reached another situation involving not dissimilar problems --
assuming,
arguendo, that the problems, viewed in
intellectual abstraction, are not dissimilar -- ignores the temper
of the times which produced the Ku Klux Act. This approach would be
persuasive only if the two situations, that of a
Page 365 U. S. 249
state officer acting pursuant to state authority and that of a
state officer acting without state authority, were so entirely
similar that they would not, in 1871, have been perceived as two
different situations at all. In view of the fierce debate which
occupied the Forty-second Congress as to whether the Fourteenth
Amendment had been intended to do more than invalidate state
legislation offensive on its face, [
Footnote 3/75] this supposition must be ruled out.
Contrariwise, it is historically persuasive that the Forty-second
Congress, which was not thinking in neat abstract categories,
designed a statute to protect federal constitutional rights from an
immediate evil perceived to be grave -- the evil described by the
statute's sponsor, Mr. Shellabarger, "such wrongs . . . as are done
under color of State laws which abridge these rights," [
Footnote 3/76] -- but did not, by the
same measure, seek to control unconstitutional action abusive of a
state authority which did not, itself, "abridge these rights."
Moreover, even under the most rigorous analysis, the two
situations argumentatively deemed not dissimilar are indeed
dissimilar, and dissimilar in both of the two relevant aspects. As
to the adequacy of state court protection of person and property,
there seems a very sound distinction, as a class, between injuries
sanctioned by state law (as to which there can never be state court
redress, if at all, unless (1) the state courts are sufficiently
receptive to a federal claim to declare their own law
unconstitutional, or (2) the litigant persists through a tortuous
and protracted process of appeals, after a state trial court has
found the facts, through the state court system to this Court) and
injuries not sanctioned by state law. To make this line of
distinction determine the incidence of Civil Rights legislation
serves to cover the bulk of cases where
Page 365 U. S. 250
federal judicial protection would be needed. To be sure, this
leaves certain cases unprotected, namely, the few instances of
federal constitutional violations not authorized by state statute,
custom or usage and which concern interests wholly unrecognized by
state statute or common law. But the cost of ignoring the
distinction in order to cover those cases -- the cost, that is, of
providing a federal judicial remedy for every constitutional
violation -- involves preemption by the National Government, in the
larger class of cases in which rights secured by the Fourteenth
Amendment relate to interests of person and property having a state
law origin, of matters of intimate concern to state and local
governments. One of the most persistently recurring motifs in the
legislative history of the Ku Klux Act is precisely a reluctance to
invade these regions of state and local concern except insofar as
absolutely necessary for effective assurance of the Fourteenth
Amendment's guarantees. Therefore, the line of distinction between
state-authorized and unauthorized actions, as a line of compromise
among positions concerning which the legislative evidence is clear
that Congress wanted to, and did, compromise, is the most probable
for the Act's draftsmen to have selected.
To attribute significance to this line of distinction is not to
reduce the Ku Klux Act to having "merely a jurisdictional function,
shifting the load of federal supervision from the Supreme Court" to
an original federal tribunal. First, there are certain classes of
cases where § 1979, construed as reaching only unconstitutional
conduct authorized by state law, will accord "substantive" relief
that would not have been available through the means of state law,
state court litigation subject to the commands of the Supremacy
Clause and to Supreme Court review. This would be the case, for
example, if a Negro were to bring an action for damages against a
state election official who had denied him the right to vote
pursuant to discriminatory
Page 365 U. S. 251
state franchise provisions [
Footnote 3/77] in a State which did not recognize a
common law action for deprivation of the right to vote. Similarly,
one whose home had been searched by state police acting under a
state statute, regulation, custom or usage which authorized an
unconstitutional intrusion could recover by a § 1979 action a
measure of relief determined, as a "substantive" matter, by federal
law, whereas Supreme Court reviewed state court suit might have
availed him only damages for technical trespass. And, second, with
reference to the more numerous classes of cases in which the
redress which a federal trial court might give would be
approximately the same, "substantively," as that which could be
recovered by state court suit, the theory that the Reconstruction
Congress could not have meant § 1979 principally as a
"jurisdictional" provision granting access to an original federal
forum in lieu of the slower, more costly, more hazardous route of
federal appeal from factfinding state courts, forgets how important
providing a federal trial court was among the several purposes of
the Ku Klux Act. [
Footnote 3/78]
One may agree that, in one sense, § 1979 is not "merely"
jurisdictional -- not jurisdictional in the sense, for example,
that § 3 of the 1866 Civil Rights Act was jurisdictional. [
Footnote 3/79] Section 1979 does
Page 365 U. S. 252
create a "substantive" right to relief. But this does not
negative the fact that a powerful impulse behind the creation of
this "substantive" right was the purpose that it be available in,
and be shaped through, original federal tribunals.
In truth, to deprecate the purposes of this 1871 statute in
terms of analysis which refers to "merely . . . jurisdictional"
effects, to "shifting the load of federal supervision," and to the
"administrative burden on the Supreme Court," is to attribute
twentieth century conceptions of the federal judicial system to the
Reconstruction Congress. If, today, Congress were to devise a
comprehensive scheme for the most effective protection of federal
constitutional rights, it might conceivably think in terms of
defining those classes of cases in which Supreme Court review of
state court decision was most appropriate, and those in which
original federal jurisdiction was most appropriate, fitting all
cases into one or the other category. The Congress of 1871
certainly did not think in such terms. Until 1875, there was no
original "federal question" jurisdiction in the federal courts,
[
Footnote 3/80] and the ordinary
mode of protection of federal constitutional rights was Supreme
Court review. [
Footnote 3/81] In
light of the then-prevailing notions of the appropriate relative
spheres of jurisdiction of state and
Page 365 U. S. 253
federal courts of first impression, any allowance of Federal
District and Circuit Court competence to adjudicate causes between
co-citizens of a State was a very special case, a rarity. [
Footnote 3/82] To ask why, when such a
special case was created to redress deprivations of federal rights
under authority of state laws which abridged those rights, a
special case was not also created to cover other deprivations of
federal rights whose somewhat similar nature might have made the
same redress appropriate disregards the dominant jurisdictional
thought of the day and neglects consideration of the fact that
redress in a federal trial court was then to be very sparingly
afforded. To extend original federal jurisdiction only in the class
of cases in which, constitutional violation being sanctioned by
state law, state judges would be less likely than federal judges to
be sympathetic to a plaintiff's claim is a purpose quite consistent
with the "overflowing protection of constitutional rights" which,
assuredly, § 1979 manifests. [
Footnote 3/83]
Page 365 U. S. 254
Finally, it seems not unreasonable to reject the suggestion that
state-sanctioned constitutional violations are no more offensive
than violations not sanctioned by the majesty of state authority.
Degrees of offensiveness, perhaps, lie largely in the eye of the
person offended, but is it implausible to conclude that there is
something more reprehensible, something more dangerous, in the
action of the custodian of a public building who turns out a Negro
pursuant to a local ordinance than in the action of the same
custodian who turns out the same Negro, in violation of state law,
to vent a personal bias? Or something
Page 365 U. S. 255
more reprehensible about the public officer who beats a criminal
suspect under orders from the Captain of Detectives, pursuant to a
systematic and accepted custom of third-degree practice, than about
the same officer who, losing his temper, breaks all local
regulations and beats the same suspect? If it be admitted that
there is a significant difference between the situation of the
individual injured by another individual and who, although the
latter is an agent of the State, can claim from the State's
judicial or administrative processes the same protection and
redress against him as would be available against any other
individual, and the situation of one who, injured under the
sanction of a state law which shields the offender, is left alone
and helpless in the face of the asserted dignity of the State,
then, certainly, it was the latter of these two situations -- that
of the unprotected Southern Negroes and Unionists -- about which
Congress was concerned in 1871. [
Footnote 3/84]
Page 365 U. S. 256
Again, an analysis which supposes that Congress, by §§ 1 and 2
[
Footnote 3/85] of the Ku Klux
Act, was attempting to provide comprehensive coverage of a single
problem, and, therefore, may not be supposed to have left any
aspect of the problem unprovided for, ignores that these two
sections were, in fact, designed to cope with two wholly different
problems -- two wholly diverse evils. Section 2 was newly drafted
in 1871, not, like § 1, taken over from the 1866 Act. It was both
civil and criminal, not, like § 1, merely civil. It aimed
exclusively at conspiracies, as § 1 did not. And, most important,
it sought to protect only the federal right of equal protection,
not, like § 1, all Fourteenth Amendment rights. [
Footnote 3/86] Because of its limited scope in
this latter respect, those who drafted it and voted for it thought
that it could constitutionally be made to reach instances of action
having more tenuous connection with the lawfully asserted authority
of the State than could a statute which also reached due process
violations. [
Footnote 3/87] For
the same reason, it does not reach isolated
Page 365 U. S. 257
instances of misuse of state authority, but only such as possess
the character of "purposeful discrimination" [
Footnote 3/88] which amounts to a denial of equal
protection. The evil that § 2 meant to stamp out was the evil of
conspiracy -- more particularly, the evil of the Klan,
"a conspiracy, so far-flung and embracing such numbers, with a
purpose to dominate and set at naught the 'carpetbag' and
'scalawag' governments of the day,"
that it appeared "able effectively to deprive Negroes of their
legal rights and to close all avenues of redress or vindication."
Collins v. Hardyman, 341 U. S. 651,
341 U. S. 662.
[
Footnote 3/89] The enormity and
the power of this organization were what made it dangerous.
[
Footnote 3/90] Section 1 aimed
at another evil, the evil not of combinations dedicated to
purposeful and systematic discrimination, but of violation of any
rights, privileges, or immunities secured by the Constitution
through the authority, enhanced by the majesty and dignity of the
States. Here, it was precisely this authorization, this assurance
that behind a constitutional violation lay the whole power of the
State, that was the danger. One can agree that these two statutory
sections may overlap unevenly, rather than
Page 365 U. S. 258
dovetail, but surely it is more plausible to regard this uneven
overlap as a result of the diverse origins and purposes of the
sections than to derive from it the justification for a
construction of § 1979 which distorts the section by stretching it
to cover a class of cases presenting neither the evil with which §
1, nor the evil with which § 2, of the Ku Klux Act was designed to
cope.
VI
The present case comes here from a judgment sustaining a motion
to dismiss petitioners' complaint. That complaint, insofar as it
describes the police intrusion, makes no allegation that that
intrusion was authorized by state law other than the conclusory and
unspecific claim that,
"During all times herein mentioned, the individual defendants
and each of them were acting under color of the statutes,
ordinances, regulations, customs and usages of the State of
Illinois, of the County of Cook, and of the defendant City of
Chicago."
In the face of Illinois decisions holding such intrusions
unlawful, and in the absence of more precise factual averments to
support its conclusion, such a complaint fails to state a claim
under § 1979.
However, the complaint does allege, as to the ten-hour detention
of Mr. Monroe, that
"it was, and it is now, the custom or usage of the Police
Department of the City of Chicago to arrest and confine individuals
in the police stations and jail cells of the said department for
long periods of time on 'open' charges."
These confinements, it is alleged, are for the purpose of
interrogating and investigating the individuals arrested, in the
aim of inducing incriminating statements, permitting possible
identification of suspects in lineups, holding suspects
incommunicado while police conduct field investigations of their
associates and background, and punishing the arrested persons
without trial. Such averments do present
Page 365 U. S. 259
facts which, admitted as true for purposes of a motion to
dismiss, seem to sustain petitioners' claim that Mr. Monroe's
detention -- as contrasted with the night-time intrusion into the
Monroe apartment -- was "under color" of state authority. Under the
few relevant Illinois decisions, it is impossible to say with
certainty that a detention
incommunicado for ten hours is
unlawful
per se, [
Footnote
3/91] or that the courts of that State would hold that the
lawless circumstances surrounding Mr. Monroe's arrest made his
subsequent confinement illegal. On this record, then, petitioners'
complaint suffices to raise the narrow issue of whether the
detention
incommunicado, considered alone, violates due
process. [
Footnote 3/92]
Since the majority's disposition of the case causes the Court
not to reach that constitutional issue, it is neither necessary nor
appropriate to discuss it here.
[
Footnote 3/1]
The complaint is in nine counts, and seeks to assert a claim in
favor of Mr. Monroe, Mrs. Monroe, and their children, respectively,
under each of R.S. §§ 1979, 1980 and 1981, 42 U.S.C. §§ 1983, 1985
and 1986. Petitioners have abandoned in this Court their claims
under §§ 1980 and 1981, and we are not now asked to determine the
applicability of those sections to the facts alleged.
[
Footnote 3/2]
The murder was asserted by the examining officers to have been
committed two days before, on October 27.
[
Footnote 3/3]
Drawing upon the reasoning of the
Slaughter-House
Cases, 16 Wall. 36, this decision determined that
only those rights or privileges were secured by the Constitution
and laws which were inherent in the status of the individual as a
citizen of the National Government,
see Ex parte
Yarbrough, 110 U. S. 651,
Guinn v. United States, 238 U. S. 347, or
which were necessary to the integrity of the federal governmental
institution,
see Motes v. United States, 178 U.
S. 458;
compare Logan v. United States,
144 U. S. 263,
with United States v. Powell, 212 U.S. 564, or which were
created by Congress in the legitimate exercise of its Article I
powers,
see United States v. Waddell, 112 U. S.
76.
[
Footnote 3/4]
It was brought to the attention of Congress in 1871 that
"rights, privileges, or immunities" was a more extensive phrase
than "privileges or immunities" as used in the Fourteenth Amendment
prohibiting a State from abridging "the privileges or immunities of
citizens of the United States." Cong.Globe, 42d Cong., 1st Sess.,
App. 49-50.
[
Footnote 3/5]
"Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any inhabitant of any
State . . . to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or laws of the
United States . . . shall be fined not more than $1,000 or
imprisoned not more than one year, or both."
[
Footnote 3/6]
Civil liability has always been drawn from such indefinite
standards as reasonable care, a man of ordinary prudence,
foreseeability, etc.
And see Baltimore & Ohio R. Co. v.
Groeger, 266 U. S. 521;
Miller v. Strahl, 239 U. S. 426.
[
Footnote 3/7]
See Koehler v. United States, 189 F.2d 711 (C.A. 5th
Cir.);
Clark v. United States, 193 F.2d 294 (C A. 5th
Cir.);
Crews v. United States, 160 F.2d 746 (C.A. 5th
Cir.). These cases are not cited by way of approval.
[
Footnote 3/8]
Petitioners also rely on the Equal Protection Clause. The
disposition of the litigation by the majority here makes it
unnecessary to discuss this aspect of the case.
[
Footnote 3/9]
Snyder v. Massachusetts, 291 U. S.
97,
291 U. S.
105.
[
Footnote 3/10]
See Twining v. New Jersey, 211 U. S.
78;
Powell v. Alabama, 287 U. S.
45;
Palko v. Connecticut, 302 U.
S. 319;
Betts v. Brady, 316 U.
S. 455;
Gibbs v. Burke, 337 U.
S. 773;
Rochin v. California, 342 U.
S. 165.
[
Footnote 3/11]
Ala.Const., Art. I, § 5; Alaska Const., Art. I, § 14;
Ariz.Const., Art. II, § 8; Ark.Const., Art. II, § 15; Cal.Const.,
Art. I, § 19; Colo.Const., Art. II, § 7; Conn.Const., Art. I, § 8;
Del.Const., Art. I, § 6; Fla.Const., Declaration of Rights, § 22;
Ga.Const., Art. I, § 2-116; Hawaii Const., Art. I, § 5; Idaho
Const., Art. I, § 17; Ill.Const., Art. II, § 6; Ind.Const., Art. I,
§ 11; Iowa Const., Art. I, § 8; Kan.Const., Bill of Rights, § 15;
Ky.Const., Bill of Rights, § 10; La.Const., Art. 1, § 7; Me.Const.,
Art. I, § 5; Md.Const., Declaration of Rights, Art. 26;
Mass.Const., Pt. I, Art. XIV; Mich.Const., Art. II, § 10;
Minn.Const., Art. I, § 10; Miss.Const., Art. 3, § 23; Mo.Const.,
Art. I, § 15; Mont.Const., Art. III, § 7; Neb.Const., Art. I, § 7;
Nev.Const., Art. I, § 18; N.H.Const., Pt. I, Art. 19; N.J.Const.,
Art. I, par. 7; N.M.Const., Art. II, § 10; N.Y.Const., Art. I, §
12, and Civil Rights Law, § 8; N.C.Const., Art. I, § 15;
N.D.Const., Art. I, § 18; Ohio Const., Art. I, § 14; Okla.Const.,
Art. II, § 30; Ore.Const., Art. I, § 9; Pa.Const., Art. I, § 8;
R.I.Const., Art. I, § 6; S.C.Const., Art. I, § 16; S.D.Const., Art.
VI, § 11; Tenn.Const., Art. I, § 7; Tex.Const., Art. I, § 9; Utah
Const., Art. I, § 14; Vt.Const., c. I, Art. 11; Va.Const., Art. I,
§ 10; Wash.Const., Art. I, § 7; W.Va.Const., Art. III, § 6;
Wis.Const., Art. I, § 11; Wyo.Const., Art. I, § 4.
[
Footnote 3/12]
See Huckle v. Money, 2 Wils. 205;
Wilkes v.
Wood, 19 How.St.Tr. 1153;
Bessemer v. Eidge, 162 Ala.
201, 50 So. 270; 1 Cooley's Constitutional Limitations (8th
ed.1927) 610-615; Fraenkel, Concerning Searches and Seizures, 34
Harv.L.Rev. 361 (1921), containing a collection of authorities.
[
Footnote 3/13]
See, e.g., Thurman v. State, 116 Fla. 426, 156 So. 484;
compare Simpson v. State, 152 Tex.Cr.R. 481, 215 S.W.2d
617,
with McClannan v. Chaplain, 136 Va. 1, 15-17, 116
S.E. 495. Note the common legislative proscription upon the search
of private homes by officers otherwise authorized to make entries
for the enforcement of prohibition laws and other regulatory
statutes.
E.g., National Prohibition Act, tit. II, § 25,
41 Stat. 305, 315,
and see Cornelius, Search and Seizure
(2d ed.1930), §§ 135-144.
[
Footnote 3/14]
See 2 Hale, Pleas of the Crown (Wilson ed. 1800)
150.
[
Footnote 3/15]
See, e.g., People v. Cahan, 44 Cal. 2d
434, 282 P.2d 905 (1955);
Sarafini v. San
Francisco, 143 Cal. App.
2d 570, 300 P.2d 44 (1956);
Ware v.
Dunn, 80 Cal. App. 2d
936, 183 P.2d 128 (1947);
Walker v. Whittle, 83
Ga.App. 445,
64 S.E.2d 87
(1951);
People v. Dalpe, 371 Ill. 607, 21 N.E.2d 756
(1939);
Hart v. State, 195 Ind. 384, 145 N.E. 492 (1924);
Johnson v. Commonwealth, 296 S.W.2d 210 (Ky.App. 1956);
Deaderick v. Smith, 33 Tenn.App. 151,
230
S.W.2d 406 (1950).
[
Footnote 3/16]
The various analyses which have enabled this Court to find state
action in situations other than that presented by
Barney v. New
York, 193 U. S. 430, are
plainly not appropriate to consideration of the question whether,
in a given instance, official conduct is "under color" of state
law.
Nashville, C. & St.L. R. Co. v. Browning,
310 U. S. 362, and
Iowa-Des Moines Nat'l Bank v. Bennett, 284 U.
S. 239, came here on certiorari from state court
proceedings.
Courter v. Louisville & Nashville R. Co.,
196 U. S. 599, and
Raymond v. Chicago Traction Co., 207 U. S.
20, held that accepted administrative usage in the
exercise of a power specifically conferred by state legislation and
wholly dependent upon that legislation for its coercive effects
might constitute such action of a State as to present a cognizable
federal question.
But see Memphis v. Cumberland Tel. & Tel.
Co., 218 U. S. 624.
Similarly,
Home Tel. & Tel. Co. v. Los Angeles,
227 U. S. 278,
held that the existence in a state constitution of provisions
coincident with those of the Federal Constitution did not
ipso
facto immunize state officials from the original jurisdiction
of the federal courts. From none of these cases is implication to
be drawn pertinent to the interpretation of § 1979.
[
Footnote 3/17]
See 365
U.S. 167fn3/5|>note 5,
supra.
[
Footnote 3/18]
Mr. Shellabarger, Chairman of the House Select Committee which
authored the Act of April 20, 1871, whose first section is now §
1979, reported to the House that that section was modeled upon the
second section of the Act of April 9, 1866, 14 Stat. 27, and that
the two sections were intended to cover the same cases, with
qualifications not relevant here. Cong.Globe, 42d Cong., 1st Sess.,
App. 68.
See also id. at 461. The 1866 provision had been
reenacted, substantially and in form, by the seventeenth and
eighteenth sections of the Act of May 31, 1870, 16 Stat. 140, 144,
and the 1874 revision of the provision was, in turn, patterned on
the present § 1979.
See Screws v. United States,
325 U. S. 91,
325 U. S.
99-100. The sections have consistently been read as
coextensive in their reach of acts "under color" of state
authority.
Picking v. Pennsylvania R. Co., 151 F.2d 240,
248 (C.A.3d Cir.);
Burt v. City of New York, 156 F.2d 791,
792 (C.A.2d Cir.);
McShane v. Moldovan, 172 F.2d 1016,
1020 (C.A. 6th Cir.);
Geach v. Moynahan, 207 F.2d 714, 717
(C.A. 7th Cir.).
As enacted in 1871, the provision which is now § 1979 reached
acts taken "under color of any
law, statute, ordinance,
regulation, custom, or usage of any State. . . ." 17 Stat. 13.
(Emphasis added.) In the Revised Statutes of 1874 and 1878, "law"
was omitted from the section, although "law" was retained in the
parallel criminal provision, R.S. § 5510, as amended, 18 U.S.C. §
242, and in the jurisdictional provisions, R.S. §§ 563(12) and
629(16). The deletion in § 1979 appears in the Reviser's Draft
(1872) without explanation. 1 Revision of U.S. Statutes, Draft
(1872) 947. No alteration in statutory coverage is permissibly to
be based upon the change.
The jurisdictional provisions may now be found in 28 U.S. C §
1343.
[
Footnote 3/19]
Carter v. Greenhow, 114 U. S. 317;
Bowman v. Chicago & N.W. Ry. Co., 115 U.
S. 611;
Giles v. Harris, 189 U.
S. 475;
Devine v. Los Angeles, 202 U.
S. 313;
Myers v. Anderson, 238 U.
S. 368;
Nixon v. Herndon, 273 U.
S. 536;
Lane v. Wilson, 307 U.
S. 268;
Douglas v. Jeannette, 319 U.
S. 157. One case not involving a state constitution,
statute, or ordinance was an instance of state judicial action.
Green v. Elbert, 137 U. S. 615,
and see Anglo-American Prov. Co. v. Davis Prov. Co., No.
2, 191 U. S. 376.
[
Footnote 3/20]
Holt v. Indiana Mfg. Co., 176 U. S.
68;
Moyer v. Peabody, 212 U. S.
78;
Hague v. CIO. 307 U.
S. 496;
cf. Smith v. Allwright, 321 U.
S. 649.
[
Footnote 3/21]
Northwestern Fertilizing Co. v. Hyde Park, 18 Fed.Cas.
393, No. 10,336 (C.C.N.D.Ill. 1873);
Baltimore & Ohio R.
Co. v. Allen, 17 F. 171 (C.C.W.D.Va. 1883);
Tuchman v.
Welch, 42 F. 548, and
M. Schandler Bottling Co. v.
Welch, 42 F. 561 (C.C.D. Kan. 1890);
Hemsley v.
Myers, 45 F. 283 (C.C.D. Kan. 1891);
Davenport v.
Cloverport, 72 F. 689 (D.C.D. Ky. 1896);
Fraser v.
McConway & Torley Co., 82 F. 257 (C.C.D.Pa. 1897);
Crystal Springs Land & Water Co. v. Los Angeles, 76 F.
148 (C.C. S.D.Cal. 1896),
aff'd, 177 U.
S. 169 (
see California Oil & Gas Co. v.
Miller, 96 F. 12 (C.C. S.D.Cal. 1899));
Aultman &
Taylor Co. v. Brumfield, 102 F. 7 (C.C.N.D. Ohio 1900),
app. dism'd, 22 S. Ct. 938;
Wadleigh v. Newhall,
136 F. 941 (C.C.N.D.Cal.1905);
Farson v. City of Chicago,
138 F. 184 (C.C.N.D.Ill.1905);
Brickhouse v. Brooks, 165
F. 534 (C.C.E.D.Va.1908);
Simpson v. Geary, 204 F. 507
(D.C.D. Ariz.1913);
Raich v. Truax, 219 F. 273 (D.C.D.
Ariz.1915),
aff'd, 239 U. S. 239 U.S.
33;
Marcus Brown Holding Co. v. Pollak, 272 F. 137
(D.C.S.D.N.Y.1920);
West v. Bliley, 33 F.2d 177
(D.C.E.D.Va.1929),
aff'd, 42 F.2d 101 (C.A.4th Cir.1930);
Trudeau v. Barnes, 65 F.2d 563 (C.A. 5th Cir.1933);
Jones v. Oklahoma City, 78 F.2d 860 (C.A. 10th Cir.1935);
Mitchell v. Greenough, 100 F.2d 184 (C.A. 9th Cir.1938);
Blackman v. Stone, 101 F.2d 500 (C.A. 7th Cir.1939);
City of Manchester v. Leiby, 117 F.2d 661 (C.A. 1st
Cir.1941);
Hannan v. City of Haverhill, 120 F.2d 87 (C.A.
1st Cir.1941);
Hume v. Mahan, 1 F.
Supp. 142 (D.C.E.D. Ky.1932),
rev'd, 287 U.S. 575;
Premier-Pabst Sales Co. v. McNutt, 17 F. Supp.
708 (D.C.S.D. Ind.1935);
Gobitis v. Minersville School
Dist., 21 F. Supp.
581 (D.C.E.D.Pa.1937),
24 F. Supp.
271 (1938),
aff'd, 108 F.2d 683 (C.A.3d Cir.1939),
rev'd, 310 U. S. 310 U.S.
586;
Connor v. Rivers, 25 F. Supp.
937 (D.C.N.D.Ga.1938),
aff'd, 305 U.S. 576305 U.S.
576;
Ghadiali v. Delaware State Medical
Society, 28 F. Supp.
841 (D.C.D. Del.1939);
Mills v. Board of
Education, 30 F. Supp.
245 (D.C.D. Md.1939);
Bluford v.
Canada, 32 F. Supp.
707 (D.C.W.D. Mo.1940),
app. dism'd, 119 F.2d 779
(C.A. 8th Cir.1941);
Kennedy v. City of
Moscow, 39 F. Supp.
26 (D.C.D. Idaho 1941). In these cases, R.S. § 1979 or the
parallel jurisdictional provisions were invoked. Note that, in the
Jones and Farson cases, supra, defendant's conduct was
specifically authorized by local ordinance, although plaintiffs
asserted the invalidity of those ordinances under state as well as
under federal law. In both cases, relief was denied on the ground
that no state action was shown, within the rule of
Barney v.
New York, 193 U. S. 430. To
this group of cases involving acts authorized by state law must be
added
Miller v. Rivers, 31 F. Supp.
540 (D.C.M.D.Ga.1940),
rev'd as moot, 112 F.2d 439
(C.A. 5th Cir.1940), in which a state governor had several times
authorized action in violation of state court restraining orders,
finally declaring martial law in the face of the state judicial
decrees. Two reported criminal prosecutions under § 242 also
involved conduct sanctioned by state law.
United States v.
Buntin, 10 F. 730 (C.C. S.D. Ohio 1882);
United States v.
Stone, 188 F. 836 (D.Md.1911).
Cf. United States v.
Horton, 26 Fed.Cas. 375, No. 15,392 (D.Ala. 1867),
semble.
[
Footnote 3/22]
Brawner v. Irvin, 169 F. 964 (C.C.N.D.Ga.1909). In one
case, decided in 1940 just prior to
United States v.
Classic, 313 U. S. 299, a
Federal District Court did distinctly decide that similar police
misconduct unauthorized by state law, was "under color" of state
law.
United States v. Sutherland, 37 F. Supp.
344 (D.C.N.D.Ga.1940). An unreported 1940 case,
United
States v. Cowan (D.C.E.D.La.), is said to have reached a
similar result.
See 1941 Atty.Gen.Rep. 98; Brief for the
United States,
United States v. Classic, 313 U.
S. 299, p. 45, n. 25. In neither of these two cases does
there appear to have been any examination of the legislative
history of the "under color" statutes, nor is any reasoning offered
to support the conclusion of the courts.
[
Footnote 3/23]
The court below had dismissed the indictment on the ground that
the right was not so secured and had not discussed the "under
color" issue. 35 F. Supp. 66.
[
Footnote 3/24]
The Government's brief contended that, inasmuch as the Civil
Rights statutes were passed to enforce the Fourteenth Amendment,
they should be read as coextensive with it: "under color" of state
law should be coincident with "State action" as this Court had
developed the "State action" concept. Classic's brief argued the
point as though it were urging a "State action" contention.
[
Footnote 3/25]
Ex parte Virginia, 100 U. S. 339,
arose under federal legislation penalizing "any officer or other
person charged with any duty in the selection or summoning of
jurors" who discriminated on grounds of race, color, or previous
condition of servitude in the choosing of juries. The issue was
whether this provision could constitutionally be applied to a state
judge who discriminated in the administration of a state statute
fair on its face.
Home Tel. & Tel. Co. v. Los Angeles,
227 U. S. 278,
posed the question whether the enforcement of an allegedly
confiscatory municipal regulatory ordinance was state action for
purposes of Federal District Court "arising under"
jurisdiction.
[
Footnote 3/26]
The Mayor and other officials of Jersey City were charged with a
concerted program of discriminatory law enforcement intended to
drive union organizers out of the city. The acts upon which
amenability to suit under § 1979 was predicated were (1) the
enforcement of a municipal ordinance which this Court held
unconstitutional on its face; (2) the enforcement of a second
ordinance in a manner which willfully discriminated against union
organizers, and (3)
"acts not under the authority of any ordinance or statute, but
committed under color of municipal office and as part of a
deliberate municipal policy."
101 F.2d 774, 790. The Court of Appeals for the Third Circuit
held that, on these facts, all three classes of conduct, viewed
together, constituted "State action." This Court affirmed and
modified the decree without considering the point
[
Footnote 3/27]
That the Court had not, in the
Classic case, isolated
the "under color" issue from the question of "State action" is
indicated by the opinions in
Snowden v. Hughes,
321 U. S. 1. The
latter case arose under § 1979, yet, although the "State action"
principle had been the basis for the decision below and was
prominently treated in two opinions here, no reference was made to
the "under color" phrase.
[
Footnote 3/28]
The brief for petitioners Screws
et al. contains no
citation to legislative history. The brief for the United States,
after several citations intended to demonstrate that the purpose of
the Civil Rights Acts was to enforce the Fourteenth Amendment and
to protect the rights which it secures (these citations, employed
to the same purpose, may be found in the plurality opinion, 325
U.S. at
325 U. S.
98-99), sets forth only one other bit of legislative
material: a statement made in debate by Senator Davis of Kentucky,
an opponent of the Act of 1866, to the effect that the Act would
repeal the penal laws of all the States.
See Cong.Globe,
39th Cong., 1st Sess. 598.
[
Footnote 3/29]
See 325 U.S. at
325 U. S. 111
(plurality);
id. at
325 U. S.
142-144 (dissent). These two statements are set forth in
text at
365
U.S. 167fn3/38|>notes 38 and
365
U.S. 167fn3/39|>39,
infra. The plurality opinion
also contains references to other aspects of the legislative
history in another context,
id. at
325 U. S.
98-100;
see 365
U.S. 167fn3/28|>note 28,
supra. In his separate
opinion, Mr. Justice Rutledge twice adverts to legislative
materials, once with regard to matters not relevant here,
id. at
325 U. S. 120,
n. 13, 14, and once, pertinently, with particular reference to the
position of opponents of the 1866 Act that the legislation would
invade the province of the States (setting forth Senator Davis'
statement,
see 365
U.S. 167fn3/28|>note 28,
supra),
id. at
325 U. S. 132,
n. 33. Mr. Justice Murphy, also writing separately, does not
discuss the "under color" issue.
[
Footnote 3/30]
Neither the Court's opinion nor the briefs in
Williams
contain any citation to the legislative history of the Civil Rights
Acts. It is true that, between
Screws and
Williams, Congress, in 1948, reenacted § 242 without
material change. If that section were before the Court in the
present case, the implications of that reenactment might have to be
appraised. Yet whatever tenuous thread of legislative approbation
of
Screws might be drawn from the kind of bulk-sale
congressional action which was involved in its enactment of a whole
criminal code by way of the new Title 18, U.S.C. in 1948, any
attempt to tangle in that same thread § 1979 -- a statute which has
not been touched by Congress in three quarters of a century --
would exceed the bounds of fictionally implied legislative
adoption.
[
Footnote 3/31]
E.g., United States v. United Mine Workers,
330 U. S. 258;
United States v. CIO, 335 U. S. 106;
United States v. Harriss, 347 U.
S. 612;
Phillips Petroleum Co. v. Wisconsin,
347 U. S. 672;
Galvan v. Press, 347 U. S. 522;
Textile Workers v. Lincoln Mills, 353 U.
S. 448.
[
Footnote 3/32]
The Act of September 9, 195, 1 Stat. 634, 637, provides that
"No person, whether acting under color of law or otherwise,
shall intimidate, threaten, coerce, or attempt to intimidate,
threaten, or coerce any other person for the purpose of interfering
with the right of such other person to vote"
at any election held solely or in part for the purpose of
selecting or electing candidates for designated federal offices.
Such an enactment, of course, can in no conceivable manner be
considered congressional "adoption" or approbation of this Court's
constructions of the "under color" clause in
Classic,
Screws, and
Williams, for the sufficient reason
(among others) that the statute employs the clause only to go
beyond it -- manifesting a purpose, through the expression "under
color of law or otherwise," to reach all individual conduct of the
class described, whether or not "under color" of law, and whatever
"under color" of law may mean.
See H.R.Rep. No. 291, 85th
Cong., 1st Sess. 12. The provisions of H.R. 627, 84th Cong., 2d
Sess., as reported from the House Committee on the Judiciary and
made the subject of H.R.Rep. No. 2187, 84th Cong., 2d Sess., are
similar.
See especially id. at 9-11.
The Civil Rights Act of 1960, 74 Stat. 86, 88-89, 90, does twice
use the clause "under color of [law]," but in contexts wholly
different from that of R.S. § 1979. Section 301 of the 1960 Act
requires every "officer of election" to retain and preserve during
a specified period all records and papers which come into his
possession relating to acts requisite to voting at an election
wherein candidates for designated federal offices are voted for.
Section 306 (which comprises the only use of "under color" language
in the House bill that was the subject of H.R.Rep. No. 956, 86th
Cong., 1st Sess.) defines an "officer of election" as "any person
who, under color of any Federal, State, Commonwealth, or local law,
statute, ordinance, regulation, authority, custom, or usage,
performs or is authorized to perform any function, duty, or task in
connection with any application, registration, payment of poll tax,
or other act requisite to voting" in any election at which votes
are cast for candidates for those designated federal offices. These
provisions, like those of the 1957 Act, are of very limited scope,
reaching only certain conduct affecting federal elections. Section
601 of the 1960 Act provides that, in any proceeding instituted by
the Attorney General for preventive relief against the deprivation,
on account of race or color, of certain voting rights,
see
R.S. § 2004, as amended by the Act of September 9, 1957, 71 Stat.
634, 637, 42 U.S.C. § 1971, the court shall, on proper request,
make a finding whether such deprivation was or is pursuant to a
pattern or practice. If the court finds such a pattern or practice,
any person of that race or color resident within the affected area
is entitled, during a specified period, to an order declaring him
qualified to vote,
"upon proof that, at any election or elections (1) he is
qualified under State law to vote, and (2) he has since such
finding by the court been (a) deprived of or denied under color of
law the opportunity to register to vote or otherwise to qualify to
vote, or (b) found not qualified to vote by any person acting under
color of law."
Whatever meaning "under color of law" may have as so employed,
Congress' use of the phrase in this narrowly limited context --
applying to a situation in which voting rights have been infringed
on grounds of race or color pursuant to a pattern or practice --
cannot reasonably be taken as indicative of congressional attitude
toward one or another possible construction of "under color" in the
sweeping context of R.S. § 1979.
All this is said quite apart from the consideration of how
little weight may properly be given to inferences drawn from the
silence of minority reports of congressional committees, especially
committees sitting almost a century after the enactment of the
legislation in question.
[
Footnote 3/33]
People v. Grod, 385 Ill. 584, 53 N.E.2d 591;
People
v. Dalpe, 371 Ill. 607, 21 N.E.2d 756;
People v.
Brocamp, 307 Ill. 448, 138 N.E. 728.
See
Ill.Rev.Stat., c. 38, §§ 691-699 (1959); Ill.Const., Art. II, §
6.
[
Footnote 3/34]
See Bucher v. Krause, 200 F.2d 576 (C.A. 7th Cir.).
[
Footnote 3/35]
See Cong.Globe, 39th Cong., 1st Sess. 474, 602,
1117-1118; 1123-1124, 1151, 1159-1160, 1758-1759.
See 1
Fleming, Documentary History of Reconstruction (Reprint 1950)
273-311; 2 Commager, Documents of American History (6th ed.1958)
2-7, for typical Black Code provisions. A more dispassionate
appraisal of the Codes than was possible during the turbulence of
Reconstruction is found in Randall, The Civil War and
Reconstruction (1937) 724-730.
[
Footnote 3/36]
Cong.Globe, 39th Cong., 1st Sess. 1680.
See also id. at
1266. Light is thrown upon this distinction between the deprivation
of a right and its violation -- deprivation being competent to the
law-making and law-enforcing organs of a State -- by comparison of
the language of § 1979, establishing liability for the "deprivation
of any rights, privileges, or immunities secured by the
Constitution . . . ," 17 Stat. 13, with the provisions of the
criminal conspiracy section of the 1870 Act, penalizing
conspiracies to intimidate any person in order to "hinder his free
exercise and enjoyment of any right or privilege granted or secured
to him by the Constitution." 16 Stat. 140, 141.
Cf. Civil
Rights Cases, 109 U. S. 3,
109 U. S.
17-18.
[
Footnote 3/37]
Senator Trumbull had introduced the bill. Cong.Globe, 39th
Cong., 1st Sess. 129.
[
Footnote 3/38]
Cong.Globe, 39th Cong., 1st Sess. 1758.
[
Footnote 3/39]
Cong.Globe, 41st Cong., 2d Sess. 3663. Mr. Sherman's remarks
were addressed not specifically to the section which paralleled the
1866 "under color" language, but to the whole of the pending Senate
amendment, a substitute for the House bill.
Compare id. at
3561
with id. at 3503. It was from the Senate amendment,
containing an "under color" provision modeled on § 2 of the Act of
1866, that the 1870 Act, as finally enacted, immediately
derived.
[
Footnote 3/40]
17 Stat. 13. (Emphasis added.)
[
Footnote 3/41]
Cong.Globe, 42d Cong., 1st Sess., App. 68. Mr. Shellabarger was
the Chairman of the House Select Committee which drafted the Ku
Klux Act. In reporting it out of committee, he described its first
section, now § 1979, as modeled on the second section of the First
Civil Rights Act of 1866.
Ibid. In debate on the 1866 Act,
Shellabarger had said that the earlier provision was meant
"not to usurp the powers of the States to punish offenses
generally against the rights of citizens in the several States, but
its whole force is expended in defeating an attempt, under State
laws, to deprive races and the members thereof as such of the
rights enumerated in this act."
Cong.Globe, 39th Cong., 1st Sess. 1294.
[
Footnote 3/42]
Cong.Globe, 42d Cong., 1st Sess. 697.
[
Footnote 3/43]
Id. at 808
[
Footnote 3/44]
The claim was several times repeated in debate that the bill
operated to absorb "the entire jurisdiction of the States over
their local and domestic affairs,"
id. at 366, or that it
would bring "private grievances to the Federal courts."
Id. at 395. With very few exceptions (
ibid., id.
at 361, 429, App. 91) these criticisms were not directed to the
Act's first section, now § 1979.
See also id. at 416, 510,
660, App. 160, 179, 241-243, 258. One opposition speaker did object
specifically to § 1 as providing a federal forum for the
deprivation of a suitor's rights, although "The offenses committed
against him may be the common violations of the municipal law of
his State."
Id. at App. 50. And one supporter of the
measure, who argued that the Fourteenth Amendment gave Congress
power to enact a general criminal law, if necessary, for the
protection of citizens under the Privileges and Immunities, Due
Process, and Equal Protection Clauses, said of § 2 of the Act of
1866, the model for § 1 of the 1871 Act, that it punished acts
which would otherwise be "mere misdemeanors" at state law.
Id. at 504. But these two remarks are the only assertions,
throughout hundreds of pages of debate, that § 1 might reach
conduct which state law proscribed. Proponents of the bill,
addressing themselves to the charge of federal overreaching,
insisted that they could support the measure only because they
understood that it did not presume to enter upon that realm of
protection of rights traditionally reserved to the States.
Id. at 800.
See notes
365
U.S. 167fn3/47|>47-50,
infra. And see the statement
of Senator Edmunds,
id. at 697-698:
"[The bill] does not undertake to interpose itself out of the
regular order of the administration of law. It does not attempt to
deprive any State of the honor which is due to the punishment of
crime."
[
Footnote 3/45]
Id. at 317. Any act to effect the object of the
conspiracy rendered all the conspirators guilty of a felony.
[
Footnote 3/46]
The impetus for the enactment of the Ku Klux Act was President
Grant's message to Congress asserting that a condition then existed
in some States which rendered life and property insecure and which
was beyond the power of state authorities to control.
See
id. at App. 226. Throughout the debates on the bill, the note
was repeated: there was a need for federal action to supplant state
administration which was failing to provide effective protection
for private rights.
Id. at 345, 368, 374, 428, 444, 457
459, 460, 476, 505-506, 653, App. 78, 167, 185, 248-249, 252.
Constitutional authority for such federal action was sought in the
logic that "States" were ordered by the Fourteenth Amendment not to
"deny" equal protection of the laws; that a "State" in effect
denied such protection not only when its legislation was on its
face unequal, but whenever its judicial or executive authorities by
a consistent course of practice, "permanently and as a rule"
refused to enforce its laws for the protection of some class of
persons.
Id. at 334.
See id. at 416, 482,
505-506, 606-608, 697, App. 251-252, 315. But what was deemed the
prerequisite to validity of congressional action in implementation
of the Amendment under this theory was no less than a State's
permitting "the rights of citizens to be systematically trampled
upon without color of law,"
id. at 375; "A systematic
failure to make arrests, to put on trial, to convict, or to punish
offenders."
Id. at 459. The National Government was
thought powerless to intervene to regulate
"A mere assault and battery, or arson, or murder. . . . The law
is believed to be sufficient to cover such cases, and the officers
of justice amply able to arrest and punish the offenders."
Id. at 457.
See also Mr. Perry's assertion,
id. at App. 79, that the wrongs which Congress may remedy
"are not injuries inflicted by mere individuals or upon ordinary
rights of individuals," but injuries inflicted
"under color of State authority or by conspiracies and unlawful
combinations with at least the tacit acquiescence of the State
authorities."
Wrongs susceptible of adequate redress before the state courts
evidently did not concern Congress, and Congress in 1871 did not
attempt to reach those wrongs.
[
Footnote 3/47]
General Garfield,
id. at App. 154:
"Insofar as this section punishes persons who under color of any
State law shall deny or refuse to others the equal protection of
the laws, I give it my cheerful support; but when we provide by
congressional enactment to punish a mere violation of a State law,
we pass the line of constitutional authority."
(This objection is taken specifically to § 3 of the Act,
authorizing federal executive intervention under certain
circumstances.)
See also, e.g., id. at App. 113-116: Mr.
Farnsworth, who had no objection to § 1, now § 1979, vigorously
opposed § 2 as extending to encompass individual action. Farnsworth
regarded the Fourteenth Amendment as directed exclusively to the
discriminations of state legislation, and his approval of § 1
indicates his understanding that it referred to conduct authorized
by such legislation. Garfield seems to have agreed that § 1 did not
reach even systematic maladministration of state law fair on its
face.
See id. at App. 153.
[
Footnote 3/48]
Mr. Shellabarger proposed the amendment to § 2,
id. at
477, to meet the constitutional objections which the original form
of that section had evoked.
See id. at 478, App. 187-190,
313. Numerous members of the majority party thereupon withdrew
their opposition to the bill.
See id. at 514, App.
187-190, 231, 313-315. The form of the second section as it was
finally enacted is, in relevant part, substantially that of R.S. §
1980, 42 U.S.C. § 1985:
"If two or more persons in any State . . . conspire . . . for
the purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; or for the purpose
of preventing or hindering the constituted authorities of any State
. . . from giving or securing to all persons within such State . .
. the equal protection of the laws; [and] if one or more persons
engaged therein do, or cause to be done, any act in furtherance of
the object of such conspiracy, whereby another is injured in his
person or property, or deprived of having and exercising any right
or privilege of a citizen of the United States, the party so
injured or deprived may have an action for the recovery of damages,
occasioned by such injury or deprivation, against any one or more
of the conspirators."
See 17 Stat. 13. Mr. Shellabarger emphasized that the
purpose of the change was to make the gist of the offense a
deprivation of equality of rights, not a deprivation of rights
alone. Cong.Globe, 42d Cong., 1st Sess. 478.
[
Footnote 3/49]
Representative Poland had argued the unconstitutionality of the
original § 2 on the ground that it sought to extend federal
protection to private persons and property, whereas the Fourteenth
Amendment guaranteed only equal protection, leaving the States free
to protect or not to protect whatever interests they chose so long
as the protection afforded was nondiscriminatory. The amendment of
§ 2 met this objection, and Mr. Poland supported the bill, finding
no cause for concern in the language of § 1.
Id. at 514.
For other congressmen who opposed the initial form of § 2 but found
no constitutional impediment to enactment of § 1,
see id.
at 578-579 (Trumbull), App. 86 (Storm), 150-154 (Garfield), 187-190
(Willard). Farnsworth objected to even the amended form of § 2, but
voiced no adverse criticism of § 1.
Id. at 513. Slater,
also opposing § 2, argued that, if Congress could assert general
criminal jurisdiction in the States (as he contended that section
did), it
could also assert general civil jurisdiction in
protection of persons and property. Apparently he did not regard §
1 as threatening such an assertion.
Id. at App. 304.
There was, in fact, relatively little opposition to § 1.
See
id. at 568. Many vociferous opponents of the Act did not
assail that section.
E.g., id. at 419, App. 112, 134-139,
300-303. What objections there were did not suggest that the
section usurped state power by assuming a concurrent authority to
redress state law violations, but, quite the opposite, attacked the
section for penalizing state judges, legislators and administrative
officials acting in full obedience to state law, "under a solemn,
official oath, though as pure in duty as a saint."
Id.. at
365.
[
Footnote 3/50]
Id. at App. 315.
See id. at App. 313-315.
[
Footnote 3/51]
Id. at 579.
[
Footnote 3/52]
Id. at 368 (Sheldon).
See also id. at 501
(Frelinghuysen).
[
Footnote 3/53]
Id. at App. 277 (Porter).
[
Footnote 3/54]
Id. at App. 268 (Sloss).
[
Footnote 3/55]
Id. at App. 218.
[
Footnote 3/56]
Id. at App. 216.
[
Footnote 3/57]
Id. at App. 217. One significant objection made to § 1
reveals its opponents' comprehension of its scope. It was objected
that the section was unnecessary inasmuch as, under Amendment
Fourteen and the Supremacy Clause, there was no longer any danger
of "violation of the rights of citizens under color of the
laws of the States."
Id. at App. 231 (Blair). The
appellate jurisdiction of the Supreme Court of the United States
under § 25 of the Judiciary Act of 1789, providing for review on
writ of error of state court judgments sustaining state authority
against federal constitutional challenge or striking down asserted
federal authority, was regarded as offering sufficient protection
against the deprivations of rights covered by § 1.
Id. at
App. 86 (Storm).
[
Footnote 3/58]
See 365
U.S. 167fn3/46|>note 46,
supra.
[
Footnote 3/59]
Cong.Globe, 42d Cong., 1st Sess. 374.
[
Footnote 3/60]
Id. at 428.
[
Footnote 3/61]
Id. at 653
[
Footnote 3/62]
Id. at App. 315.
[
Footnote 3/63]
Id. at 505.
[
Footnote 3/64]
Id. at App 179.
[
Footnote 3/65]
Id. at 334.
[
Footnote 3/66]
See 365
U.S. 167fn3/46|>note 46,
supra.
[
Footnote 3/67]
"The Fourteenth Amendment, itself a historical product, did not
destroy history for the States. . . ."
Jackman v. Rosenbaum
Co., 260 U. S. 22,
260 U. S.
31.
[
Footnote 3/68]
In the last twenty years, the lower federal courts have
encountered a volume of litigation seeking Civil Rights Act redress
for a variety of wrongs ranging from arbitrary refusal by housing
department officials to issue architect's certificates,
Burt v.
New York, 156 F.2d 791 (C.A.2d Cir.), to allegedly malicious
charges made by a state grand jury.
Lyons v. Baker, 180
F.2d 893 (C.A. 5th Cir.). Plaintiffs have sought redress against
the signers of a mandamus petition, parties to a state mandamus
proceeding to compel city commissioners to hold a local referendum,
Lyons v. Dehon, 188 F.2d 534 (C.A. 5th Cir.), against
state officials administering a local WPA project for refusing to
employ the plaintiff and instituting insanity proceedings against
him,
Love v. Chandler, 124 F.2d 785 (C.A. 8th Cir.),
against adversaries and judge in a state civil judicial proceeding
where egregious error resulting in holding against plaintiffs was
alleged,
Bottone v. Lindsley, 170 F.2d 705 (C.A. 10th
Cir.);
Campo v. Niemeyer, 182 F.2d 115 (C.A. 7th Cir.);
cf. Moffett v. Commerce Trust Co., 187 F.2d 242 (C.A. 8th
Cir.). Most courts have refused to convert what would otherwise be
ordinary state law claims for false imprisonment or malicious
prosecution or assault and battery into civil rights cases on the
basis of conclusory allegations of constitutional violation.
Lyons v. Weltmer, 174 F.2d 473 (C.A.4th Cir.);
McGuire
v. Todd, 198 F.2d 60 (C.A. 5th Cir.);
Curry v. Ragan,
257 F.2d 449 (C.A. 5th Cir.);
Deloach v. Rogers, 268 F.2d
928 (C.A. 5th Cir.);
Agnew v. City of Compton, 239 F.2d
226 (C.A. 9th Cir.).
[
Footnote 3/69]
See, e.g., Valle v. Stengel, 176 F.2d 697 (C.A.3d
Cir.), a case which decides a number of novel and difficult
questions of federal constitutional law. The alleged conduct of
defendant sheriff which was held actionable under § 1979 was in
violation of state law.
[
Footnote 3/70]
See Foote, Tort Remedies for Police Violations of
Individual Rights, 39 Minn.L.Rev. 493 (1955); Barrett, Exclusion of
Evidence Obtained by Illegal Searches -- A Comment on
People
vs. Cahan, 43 Cal.L.Rev. 565 (1955);
cf. Edwards,
Criminal Liability for Unreasonable Searches and Seizures, 41
Va.L.Rev. 621 (1955).
And see, e.g., State for Use Brooks v.
Wynn, 213 Miss. 306, 56 So. 2d 824.
[
Footnote 3/71]
The common law seems still to retain sufficient flexibility to
fashion adequate remedies for lawless intrusions.
Compare
with the cases cited in
Wolf v. Colorado,
338 U. S. 25,
338 U. S. 30, n.
1;
Bull v. Armstrong, 254 Ala. 390,
48 So. 2d
467 (1950);
Sarafini v. San Francisco, 143 Cal. App.
2d 570, 300 P.2d 44 (1956);
Ware v.
Dunn, 80 Cal. App. 2d
936, 183 P.2d 128 (1947);
Walker v. Whittle, 83
Ga.App. 445,
64 S.E.2d 87
(1951);
Johnson v. Atlantic Coast Line R. Co., 142 S.C.
125, 140 S.E. 443 (1927);
Deaderick v. Smith, 33 Tenn.App.
151,
230
S.W.2d 406 (1950).
[
Footnote 3/72]
This is so not only because of the practical impediment to Civil
Rights Act relief which would be posed by a two-suit requirement,
but because the efficient process of judicial administration might
well require that a plaintiff present his federal constitutional
contention to the state courts along with his state law
contentions, that he there assert the federal unconstitutionality
of maintaining the defense of state authorization to a state law
tort action.
Cf. Angel v. Bullington, 330 U.
S. 183. Of course, once that federal contention is
properly presented to the state courts, plaintiff has open for
review here an adverse state court judgment; but if plaintiff were
successful in this Court, the effect of our disposition would be to
return plaintiff to the state courts for a state law measure of
relief.
[
Footnote 3/73]
See 365
U.S. 167fn3/57|>note 57,
supra. Cf. Civil
Rights Cases, 109 U. S. 3,
109 U. S. 16.
And see Nashville, C. & St.L. R. Co. v. Browning,
310 U. S. 362,
310 U. S.
369:
"Here . . . , all the organs of the state are conforming to a
practice, systematic, unbroken for more than forty years, and now
questioned for the first time. It would be a narrow conception of
jurisprudence to confine the notion of 'laws' to what is found
written on the statute books, and to disregard the gloss which life
has written upon it. Settled state practice cannot supplant
constitutional guarantees, but it can establish what is state law.
. . . Deeply embedded traditional ways of carrying out state
policy, such as those of which petitioner complains, are often
tougher and truer law than the dead words of the written text."
Where the jurisdiction of a Federal District Court is invoked to
vindicate a claim under § 1979, and where that court finds that
defendants' conduct is not under color of state law, difficult
questions may also arise as to whether the court should
nevertheless determine the respective rights of the parties at
state law, under the doctrine of
Hurn v. Oursler,
289 U. S. 238, and
Bell v. Hood, 327 U. S. 678.
But see California Water Service Co. v. City of Redding,
304 U. S. 252;
Massachusetts Universalist Convention v. Hildreth & Rogers
Co., 183 F.2d 497 (C.A. 1st Cir.);
Robinson v. Stanley
Home Prods. Inc., 272 F.2d 601 (C.A. 1st Cir.). Petitioners in
this case have never throughout the litigation below raised the
issue of the possible application of the
Hurn rule to
these circumstances, nor is that issue among the questions
presented in their petition for certiorari here. Under our Rule 23,
subpar. 1(c), it is not now, therefore, before the Court, and there
is no intention here to intimate any opinion on the novel problem
of federal jurisdiction of state law claims "pendent" to such a
case as this. Suffice it to say that, whatever application
Hurn may have to these situations, its application will
entail a very different level of federal judicial involvement with
the adjudication of rights between individuals in a State than
would the interpretation of § 1979 which petitioners urge. Whatever
incursion into areas of conventionally exclusive state court
competence jurisdiction "pendent" to a § 1979 claim might entail
would touch considerations not peculiar to § 1979, but rather which
concern the
Hurn doctrine.
[
Footnote 3/74]
See the history of § 2 of the Ku Klux Act, described
supra at notes
365
U.S. 167fn3/44|>44-50. For an excellent picture of the
background of this legislative struggle,
see McKitrick,
Andrew Johnson and Reconstruction (1960).
[
Footnote 3/75]
See, e.g. Cong.Globe, 42d Cong., 1st Sess. 482,
505-506, 697, App. 81-86, 315.
[
Footnote 3/76]
Id. at App. 68.
[
Footnote 3/77]
See, e.g., Lane v. Wilson, 307 U.
S. 268.
[
Footnote 3/78]
See, e.g., the pages of debate cited in
365
U.S. 167fn3/46|>note 46,
supra.
[
Footnote 3/79]
That section gave the District and Circuit Courts of the United
States concurrent jurisdiction of all causes, civil and
criminal,
"affecting persons who are denied or cannot enforce in the
courts or judicial tribunals of the State or locality where they
may be any of the rights secured to them by the first section"
of the 1866 Act. It further provided:
"The jurisdiction in civil and criminal matters hereby conferred
on the district and circuit courts of the United States shall be
exercised and enforced in conformity with the laws of the United
States, so far as such laws are suitable to carry the same into
effect; but in all cases where such laws are not adapted to the
object, or are deficient in the provisions necessary to furnish
suitable remedies and punish offences against law, the common law,
as modified and changed by the constitution and statutes of the
State wherein the court having jurisdiction of the cause, civil or
criminal, is held, so far as the same is not inconsistent with the
Constitution and laws of the United States, shall be extended to
and govern said courts in the trial and disposition of such cause.
. . ."
Act of April 9, 1866, § 3, 14 Stat. 27.
[
Footnote 3/80]
Except, of course, during the time between the Act of February
13, 1801, § 11, 2 Stat. 92, and its repeal by the Act of March 8,
1802, § 1, 2 Stat. 132. "Federal question" jurisdiction was
conferred by the Act of March 3, 1875, § 1, 18 Stat. 470.
[
Footnote 3/81]
Recognition of this situation underlies the comments of Messrs.
Blair and Storm,
see 365
U.S. 167fn3/57|>note 57,
supra, and the debate
among Senators Edmunds, Trumbull and Carpenter referred to in the
concurring opinion.
See especially Cong.Globe, 42d Cong.,
1st Sess. 576-578.
[
Footnote 3/82]
This is why Mr. Carpenter speaks of the Fourteenth Amendment's
Enforcement Clause as working
"one of the fundamental, one of the great, the tremendous
revolutions effected in our Government by that article of the
Constitution."
Id. at 577.
[
Footnote 3/83]
See the remarks of Mr. Dawes, a member of the Committee
which reported the Ku Klux bill,
id. at 476:
"The first remedy proposed by this bill is a resort to the
courts of the United States. Is that a proper place in which to
find redress for any such wrongs? If there be power to call into
the courts of the United States an offender against these rights,
privileges, and immunities, and hold him to an account there,
either civilly or criminally, for their infringement, I submit to
the calm and candid judgment of every member of this House that
there is no tribunal so fitted, where equal and exact justice would
be more likely to be meted out in temper, in moderation, in
severity, if need be, but always according to the law and the fact,
as that great tribunal of the Constitution."
And see, e.g., the remarks of Mr. Coburn,
id.
at 459-460:
"Whenever, then, there is a denial of equal protection by the
State, the courts of justice of the nation stand with open doors,
ready to receive and hear with impartial attention the complaints
of those who are denied redress elsewhere. Here may come the weak
and poor and downtrodden, with assurance that they shall be heard.
Here may come the man smitten with many stripes and ask for
redress. Here may come the nation, in her majesty, and demand the
trial and punishment of offenders, when all, all other tribunals
are closed. . . ."
"Can these means be made effectual? Can we thus suppress these
wrongs? I will say we can but try. The United States courts are
further above mere local influence than the county courts; their
judges can act with more independence, cannot be put under terror,
as local judges can; their sympathies are not so nearly identified
with those of the vicinage; the jurors are taken from the State,
and not the neighborhood; they will be able to rise above
prejudices or bad passions or terror more easily. The marshal,
clothed with more power than the sheriff, can make arrests with
certainty, and, with the aid of the General Government, can seize
offenders in spite of any banded and combined resistance such as
may be expected. Thus, at least, these men who disregard all law
can be brought to trial. Here we stop. The court is to do the rest,
acting under all its solemn obligations of duty to country and God.
Can we trust it, or are we afraid of our own institutions? Does the
grim shadow of the State step into the national court, like a
goblin, and terrify us? Does this harmless and helpless ghost drive
us from that tribunal -- the State that mocks at justice, the State
that licenses outlawry, the State that stands dumb when the lash
and the torch and the pistol are lifted every night over the quiet
citizen? We believe that we can trust our United States courts, and
we propose to do so."
[
Footnote 3/84]
It is suggested that Congress knew there existed state
constitutional guarantees of which state legislation might fall
afoul, and that, nevertheless, there is found in the debates no
"explanation of [the] exception to the general rule" which would
obtain if § 1979 were applied to conduct authorized by state
statute, ordinance, regulation, custom or usage, but violative of a
state constitution. To regard such an application as an "exception"
is to misconceive the incidence of § 1979 by regarding its
operation from the wrong perspective. The question whether official
action does or does not come within the statute depends not upon
what state law the action does or does not violate, but upon what
state law does or does not authorize the action. The state
authorization against which Congress aimed § 1979 was authorization
by the living, functioning law of the State, not authorization in
strict conformity with what may have become no more than an
unheeded pattern of words upon the closed pages of a State's books
of legal learning. It meant to reach those
"Deeply embedded traditional ways of carrying out state policy
[which] . . . are often tougher and truer law than the dead words
of the written text,"
see 365
U.S. 167fn3/73|>note 73,
supra, and it would, by
its terms, have reached the case supposed by my Brother HARLAN not
as a matter of exception in need of explanation, but by its natural
logic.
[
Footnote 3/85]
Section 2 of the Ku Klux Act attached civil and criminal
liability to conspiracy
"for the purpose, either directly or indirectly, of depriving
any person or any class of persons of the equal protection of the
laws, or of equal privileges or immunities under the laws, or for
the purpose of preventing or hindering the constituted authorities
of any State from giving or securing to all persons within such
State the equal protection of the laws. . . ."
17 Stat. 13. The civil provisions of this section were carried
forward, as amended, in R.S. § 1980, and are now found in 42 U.S.C.
§ 1985. The criminal provisions, carried forward in R.S. § 5519,
were declared unconstitutional in
United States v. Harris,
106 U. S. 629, and
Baldwin v. Franks, 120 U. S. 678.
[
Footnote 3/86]
See Cong.Globe, 42d Cong., 1st Sess. 478, App. 315.
[
Footnote 3/87]
The Fourteenth Amendment provides that no State shall "deprive"
any person of life, liberty, or property without due process of
law, and that no State shall "deny" to any person within its
jurisdiction the equal protection of the laws. It is clear that the
Forty-second Congress believed that "denial" could be worked by
non-action, while "deprivation" required ill-action; thus, that the
scope of federal enforcing power under the Equal Protection Clause
reached further, in respect of situations in which there was no
assertion of legitimate state authority, than did the equivalent
scope of power under the Due Process and Privileges and Immunities
Clauses.
See id. at 459, 482, 505-506, 514, 607-608, 697,
App. 251, 315. This appears to be why § 2 was acceptable in its
amended, while not in its original, form.
[
Footnote 3/88]
Snowden v. Hughes, 321 U. S. 1,
321 U. S. 9;
see also Lisenba v. California, 314 U.
S. 219,
314 U. S.
226.
[
Footnote 3/89]
I agree that this is not the appropriate occasion to pass upon
the construction of § 1985.
[
Footnote 3/90]
For an appreciation of the nature and character of the Ku Klux
Klan as it appeared to Congress in 1871,
see S.Rep. No. 1,
42d Cong., 1st Sess., and the voluminous report of the Joint Select
Committee to inquire into the Condition of Affairs in the late
Insurrectionary States, published as S.Rep. No. 41, pt.s. 1-13, and
H.R.Rep. No. 22, pt.s. 1-13, 42d Cong., 2d Sess.
[
Footnote 3/91]
Compare People v. Frugoli, 334 Ill. 324, 166 N.E. 129
(1929), and
Fulford v. O'Connor, 3 Ill. 2d
490,
121 N.E.2d
767 (1954),
with People v. Kelly, 404 Ill. 281, 89
N.E.2d 27 (1949).
[
Footnote 3/92]
In considering the detention of Mr. Monroe as isolable from the
invasion of the Monroe home for purposes of applying § 1979, one
does not ignore that, in its treatment of coerced confession cases
and deprivation of counsel cases coming here from state courts,
this Court has looked to the whole sequence of activity by state
authorities pertinent to the prosecution of a criminal defendant.
Malinski v. New York, 324 U. S. 401,
324 U. S. 412
(concurring opinion joined in, and made a majority view, at
324 U. S.
438);
Watts v. Indiana, 338 U. S.
49;
Turner v. Pennsylvania, 338 U. S.
62;
Harris v. South Carolina, 338 U. S.
68;
Gibbs v. Burke, 337 U.
S. 773. But these cases differ from the one at bar
precisely in the fact that they do come here after the sustaining
of a criminal conviction by the highest court of a State competent
to act in the matter. In all such cases, the processes of law
administration of a State have rendered the final judgment of state
law, and the federal question presented is whether the conviction
has, in light of the totality of the events leading to that
conviction, violated due process. The question in the instant case
is the much narrower one whether petitioners have alleged conduct
"under color" of state authority which deprives them of a
Fourteenth Amendment right, and thus brought respondents' conduct
within the specific requirements of the statute for initiating
litigation in a Federal District Court.