1. Upon review of a judgment affirming the conviction, for
violation of § 20 of the Criminal Code and conspiracy thereunto, of
local law enforcement officers who arrested a negro citizen for a
state offense and wrongfully beat him to death, the judgment is
reversed with directions for a new trial. Pp.
325 U. S. 92-94,
325 U. S.
113.
Opinion of DOUGLAS, J., in which the CHIEF JUSTICE, MR. JUSTICE
BLACK and MR. JUSTICE REED concur:
2. Section 20 of the Criminal Code, so far as it penalizes acts
which "willfully" deprive a person of any right secured to him by
the due process clause of the Fourteenth Amendment, is to be
construed as requiring a specific intent to deprive of a right
which has been made specific by the express terms of the
Constitution or laws of the United States or by decisions
interpreting them; and, as so construed, the section is not
unconstitutional as lacking an ascertainable standard of guilt. P.
325 U. S.
101.
3. The trial court erred in not instructing the jury that, in
order to convict, they must find that the defendants had the
purpose to deprive the prisoner of a constitutional right. In
determining whether that requisite bad purpose was present, the
jury would be entitled to consider all the attendant circumstances
-- the malice of the defendants, the weapons used in the assault,
the character and duration of the assault, the provocation, if any,
and the like. P.
325 U. S.
106.
4. Although no exception was taken to the trial court's charge,
the error was so fundamental -- failure to submit to the jury the
essential elements of the only offense on which the conviction
could rest -- that this Court takes note of it
sua sponte.
P.
325 U. S.
107.
5. In making the arrest and in assaulting the prisoner, the
defendants acted "under color of law," within the meaning of § 20
of the Criminal Code. P.
325 U. S.
107.
Defendants were officers of the law who had made an arrest, and
it was their duty under the law of the State to make the arrest
Page 325 U. S. 92
effective. By their own admissions, they made the assault in
order to protect themselves and to keep the prisoner from
escaping.
140 F.2d 662, reversed.
CERTIORARI, 322 U.S. 718, to review a judgment affirming
convictions for violation of § 20 of the Criminal Code and
conspiracy.
MR. JUSTICE DOUGLAS announced the judgment of the Court and
delivered the following opinion, in which the CHIEF JUSTICE, MR.
JUSTICE BLACK and MR. JUSTICE REED concur.
This case involves a shocking and revolting episode in law
enforcement. Petitioner Screws was sheriff of Baker County,
Georgia. He enlisted the assistance of petitioner Jones, a
policeman, and petitioner Kelley, a special deputy, in arresting
Robert Hall, a citizen of the United States and of Georgia. The
arrest was made late at night at Hall's home on a warrant charging
Hall with theft of a tire. Hall, a young negro about thirty years
of age, was handcuffed and taken by car to the courthouse. As Hall
alighted from the car at the courthouse square, the three
petitioners began beating him with their fists and with a solid-bar
blackjack about eight inches long and weighing two pounds. They
claimed Hall had reached for a gun and had used insulting language
as he alighted from the
Page 325 U. S. 93
car. But after Hall, still handcuffed, had been knocked to the
ground, they continued to beat him from fifteen to thirty minutes
until he was unconscious. Hall was then dragged feet first through
the courthouse yard into the jail and thrown upon the floor, dying.
An ambulance was called, and Hall was removed to a hospital, where
he died within the hour and without regaining consciousness. There
was evidence that Screws held a grudge against Hall, and had
threatened to "get" him.
An indictment was returned against petitioners -- one count
charging a violation of § 20 of the Criminal Code, 18 U.S.C. § 52
and another charging a conspiracy to violate § 20 contrary to § 37
of the Criminal Code, 18 U.S.C. § 88. Sec. 20 provides:
"Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects, or causes to be
subjected, any inhabitant of any State, Territory, or District to
the deprivation of any rights, privileges, or immunities secured or
protected by the Constitution and laws of the United States, or to
different punishments, pains, or penalties, on account of such
inhabitant being an alien, or by reason of his color, or race, than
are prescribed for the punishment of citizens, shall be fined not
more than $1,000, or imprisoned not more than one year, or
both."
The indictment charged that petitioners, acting under color of
the laws of Georgia, "willfully" caused Hall to be deprived of
"rights, privileges, or immunities secured or protected" to him by
the Fourteenth Amendment -- the right not to be deprived of life
without due process of law; the right to be tried, upon the charge
on which he was arrested, by due process of law and, if found
guilty, to be punished in accordance with the laws of Georgia; that
is to say that petitioners "unlawfully and wrongfully did assault,
strike and beat the said Robert Hall about the head with human
fists and a blackjack causing injuries" to Hall "which were the
proximate and immediate cause
Page 325 U. S. 94
of his death." A like charge was made in the conspiracy
count.
The case was tried to a jury. [
Footnote 1] The court charged the jury that due process of
law gave one charged with a crime the right to be tried by a jury
and sentenced by a court. On the question of intent, it charged
that
". . . if these defendants, without its being necessary to make
the arrest effectual or necessary to their own personal protection,
beat this man, assaulted him or killed him while he was under
arrest, then they would be acting illegally under color of law, as
stated by this statute, and would be depriving the prisoner of
certain constitutional rights guaranteed to him by the Constitution
of the United States and consented to by the State of Georgia."
The jury returned a verdict of guilty and a fine and
imprisonment on each count was imposed. The Circuit Court of
Appeals affirmed the judgment of conviction, one judge dissenting.
140 F.2d 662. The case is here on a petition for a writ of
certiorari which we granted because of the importance in the
administration of the criminal laws of the questions presented.
I
We are met at the outset with the claim that § 20 is
unconstitutional insofar as it makes criminal acts in violation of
the due process clause of the Fourteenth Amendment. The argument
runs as follows: it is true that this Act, as construed in
United States v. Classic, 313 U.
S. 299,
313 U. S. 328,
was upheld in its application to certain ballot to frauds committed
by state officials. But, in that case, the constitutional rights
protected were the rights to vote
Page 325 U. S. 95
specifically guaranteed by Art. I, 2 and § 4 of the
Constitution. Here, there is no ascertainable standard of guilt.
There have been conflicting views in the Court as to the proper
construction of the due process clause. The majority have quite
consistently construed it in broad general terms. Thus, it was
stated in
Twining v. New Jersey, 211 U. S.
78,
211 U. S. 101,
that due process requires that
"no change in ancient procedure can be made which disregards
those fundamental principles, to be ascertained from time to time
by judicial action, which have relation to process of law and
protect the citizen in his private right, and guard him against the
arbitrary action of government."
In
Snyder v. Massachusetts, 291 U. S.
97,
291 U. S. 105,
it was said that due process prevents state action which "offends
some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental." The same
standard was expressed in
Palko v. Connecticut,
302 U. S. 319,
302 U. S. 325,
in terms of a "scheme of ordered liberty." And the same idea was
recently phrased as follows:
"The phrase formulates a concept less rigid and more fluid than
those envisaged in other specific and particular provisions of the
Bill of Rights. Its application is less a matter of rule. Asserted
denial is to be tested by an appraisal of the totality of facts in
a given case. That which may, in one setting, constitute a denial
of fundamental fairness, shocking to the universal sense of
justice, may, in other circumstances and in the light of other
considerations, fall short of such denial."
Betts v. Brady, 316 U. S. 455,
316 U. S.
462.
It is said that the Act must be read as if it contained those
broad and fluid definitions of due process, and that, if it is so
read, it provides no ascertainable standard of guilt. It is pointed
out that, in
United States v. Cohen Grocery Co.,
255 U. S. 81,
255 U. S. 89, an
Act of Congress was struck down, the enforcement of which would
have been
"the exact equivalent of an effort to carry out a statute
Page 325 U. S. 96
which, in terms, merely penalized and punished all acts
detrimental to the public interest when unjust and unreasonable in
the estimation of the court and jury."
In that case, the act declared criminal was the making of "any
unjust or unreasonable rate or charge in handling or dealing in or
with any necessaries." 255 U.S. p.
255 U. S. 86.
The Act contained no definition of an "unjust or unreasonable
rate," nor did it refer to any source where the measure of "unjust
or unreasonable" could be ascertained. In the instant case, the
decisions of the courts are, to be sure, a source of reference for
ascertaining the specific content of the concept of due process.
But, even so, the Act would incorporate by reference a large body
of changing and uncertain law. That law is not always reducible to
specific rules, is expressible only in general terms, and turns
many times on the facts of a particular case. Accordingly, it is
argued that such a body of legal principles lacks the basic
specificity necessary for criminal statutes under our system of
government. Congress did not define what it desired to punish, but
referred the citizen to a comprehensive law library in order to
ascertain what acts were prohibited. To enforce such a statute
would be like sanctioning the practice of Caligula, who "published
the law, but it was written in a very small hand, and posted up in
a corner, so that no one could make a copy of it." Suetonius, Lives
of the Twelve Caesars, p. 278.
The serious character of that challenge to the constitutionality
of the Act is emphasized if the customary standard of guilt for
statutory crimes is taken. As we shall see, specific intent is at
times required. Holmes, The Common Law, pp. 66
et seq. But
the general rule was stated in
Ellis v. United States,
206 U. S. 246,
206 U. S. 257,
as follows:
"If a man intentionally adopts certain conduct in certain
circumstances known to him, and that conduct is forbidden by the
law under those circumstances, he intentionally breaks the law in
the only sense in which the law ever considers intent."
And see 254 U. S. District
of
Page 325 U. S. 97
Columbia, 254 U. S. 135,
254 U. S. 137;
Nash v. United States, 229 U. S. 373,
229 U. S. 377.
Under that test, a local law enforcement officer violates § 20 and
commits a federal offense for which he can be sent to the
penitentiary if he does an act which some court later holds
deprives a person of due process of law. And he is a criminal
though his motive was pure and though his purpose was unrelated to
the disregard of any constitutional guarantee. The treacherous
ground on which state officials -- police, prosecutors,
legislators, and judges -- would walk is indicated by the character
and closeness of decisions of this Court interpreting the due
process clause of the Fourteenth Amendment. A confession obtained
by too long questioning (
Ashcraft v. Tennessee,
322 U. S. 143);
the enforcement of an ordinance requiring a license for the
distribution of religious literature (
Murdock v.
Pennsylvania, 319 U. S. 105);
the denial of the assistance of counsel in certain types of cases
(
cf. Powell v. Alabama, 287 U. S. 45
with Betts v. Brady, supra); the enforcement of certain
types of anti-picketing statutes (
Thornhill v. Alabama,
310 U. S. 88); the
enforcement of state price control laws (
Olsen v.
Nebraska, 313 U. S. 236);
the requirement that public school children salute the flag
(
Board of Education v. Barnette, 319 U.
S. 624) -- these are illustrative of the kind of state
action [
Footnote 2] which might
or might not be caught in the broad reaches of § 20 dependent on
the prevailing view of the Court as constituted when the case
arose. Those who enforced local law today might not know for many
months (and meanwhile could not find out) whether what they did
deprived some one of due process of law. The enforcement of a
criminal statute so construed would indeed cast
Page 325 U. S. 98
law enforcement agencies loose at their own risk on a vast
uncharted sea.
If such a construction is not necessary, it should be avoided.
This Court has consistently favored that interpretation of
legislation which supports its constitutionality.
Ashwander v.
Tennessee Valley Authority, 297 U. S. 288,
297 U. S. 348;
Labor Board v. Jones & Laughlin Steel Corp.,
301 U. S. 1,
301 U. S. 30;
Anniston Mfg. Co. v. Davis, 301 U.
S. 337,
301 U. S.
351-352. That reason is impelling here, so that, if at
all possible, § 20 may be allowed to serve its great purpose -- the
protection of the individual in his civil liberties.
Sec. 20 was enacted to enforce the Fourteenth Amendment.
[
Footnote 3] It derives
[
Footnote 4] from § 2 of the
Civil Rights Act of April 9, 1866. 14 Stat. 27. [
Footnote 5] Senator Trumbull, chairman of the
Senate Judiciary Committee, which reported the bill, stated that
its purpose was "to protect all persons in the United States in
their civil rights, and furnish the means of their vindication."
Cong.Globe, 39th Cong., 1st Sess., p. 211. In origin, it was an
antidiscrimination measure (as its language indicated), framed to
protect Negroes in their newly won rights.
See Flack, The
Adoption of the Fourteenth Amendment (1908), p. 21. It was
Page 325 U. S. 99
amended by § 17 of the Act of May 31, 1870, 16 Stat. 144,
[
Footnote 6] and made
applicable to "any inhabitant of ay State or Territory." [
Footnote 7] The prohibition against the
"deprivation of any rights, privileges, or immunities, secured or
protected by the Constitution and laws of the United States" was
introduced by the revisers in 1874. R.S. § 5510. Those words were
taken over from § 1 of the Act of April 20, 1871, 17 Stat. 13 (the
so-called Ku-Klux Act), which provided civil suits for redress of
such wrongs. [
Footnote 8]
See Cong.Rec.
Page 325 U. S. 100
43d Cong., 1st Sess., p. 828. The 1874 revision was applicable
to any person who under color of law, etc., "subjects, or causes to
be subjected" any inhabitant to the deprivation of any rights, etc.
The requirement for a "willful" violation was introduced by the
draftsmen of the Criminal Code of 1909. Act of March 4, 1909, 35
Stat. 1092. And we are told "willfully" was added to § 20 in order
to make the section "less severe." 43 Cong.Rec. 60th Cong., 2d
Sess., p. 3599.
We hesitate to say that, when Congress sought to enforce the
Fourteenth Amendment [
Footnote
9] in this fashion, it did a vain thing. We hesitate to
conclude that, for 80 years, this effort of Congress, renewed
several times, to protect the important rights of the individual
guaranteed by the Fourteenth Amendment has been an idle gesture.
Yet if the Act falls by reason of vagueness so far as due process
of law is concerned, there would seem to be a similar lack of
specificity when the privileges and immunities clause (
Madden
v. Kentucky, 309 U. S. 83) and
the equal protection clause (
Smith v. Texas, 311 U.
S. 128;
Hill v. Texas, 316 U.
S. 400) of the Fourteenth Amendment are involved. Only
if no construction can save the Act from this claim of
unconstitutionality are we willing to reach that result. We do not
reach it, for we are of the view that, if § 20 is confined more
narrowly than the lower courts confined it, it can be preserved as
one of the sanctions to the great rights which the Fourteenth
Amendment was designed to secure.
Page 325 U. S. 101
II
We recently pointed out that "willful" is a word "of many
meanings, its construction often being influenced by its context."
Spies v. United States, 317 U. S. 492,
317 U. S. 497.
At times, as the Court held in
United States v. Murdock,
290 U. S. 389,
290 U. S. 394,
the word denotes an act which is intentional, rather than
accidental.
And see United States v. Illinois Central R.
Co., 303 U. S. 239.
But, "when used in a criminal statute, it generally means an act
done with a bad purpose."
Id., p.
290 U. S. 394.
And see Felton v. United States, 96 U. S.
699;
Potter v. United States, 155 U.
S. 438;
Spurr v. United States, 174 U.
S. 728;
Hargrove v. United States, 67 F.2d 820.
In that event, something more is required than the doing of the act
proscribed by the statute.
Cf. United States v. Balint,
258 U. S. 250. An
evil motive to accomplish that which the statute condemns becomes a
constituent element of the crime.
Spurr v. United States,
supra, p.
174 U. S. 734;
United States v. Murdock, supra, p.
290 U. S. 395.
And that issue must be submitted to the jury under appropriate
instructions.
United States v. Ragen, 314 U.
S. 513,
314 U. S.
524.
An analysis of the cases in which "willfully" has been held to
connote more than an act which is voluntary or intentional would
not prove helpful, as each turns on its own peculiar facts. Those
cases, however, make clear that, if we construe "willfully" in § 20
as connoting a purpose to deprive a person of a specific
constitutional right, we would introduce no innovation. The Court,
indeed, has recognized that the requirement of a specific intent to
do a prohibited act may avoid those consequences to the accused
which may otherwise render a vague or indefinite statute invalid.
The constitutional vice in such a statute is the essential
injustice to the accused of placing him on trial for an offense the
nature of which the statute does not define, and hence of which it
gives no warning.
Page 325 U. S. 102
See United States v. Cohen Grocery Co., supra. But
where the punishment imposed is only for an act knowingly done with
the purpose of doing that which the statute prohibits, the accused
cannot be said to suffer from lack of warning or knowledge that the
act which he does is a violation of law. The requirement that the
act must be willful or purposeful may not render certain, for all
purposes, a statutory definition of the crime which is, in some
respects, uncertain. But it does relieve the statute of the
objection that it punishes without warning an offense of which the
accused was unaware. That was pointed out by Mr. Justice Brandeis,
speaking for the Court in
Omaechevarria v. Idaho,
246 U. S. 343. An
Idaho statute made it a misdemeanor to graze sheep "upon any range
usually occupied by any cattle grower." The argument was that the
statute was void for indefiniteness because it failed to provide
for the ascertainment of boundaries of a "range" or for determining
what length of time was necessary to make a prior occupation a
"usual" one. The Court ruled that
"any danger to sheepmen which might otherwise arise from
indefiniteness, is removed by 6314 of Revised Codes, which provides
that: 'In every crime or public offense there must exist a union,
or joint operation, of act and intent, or criminal
negligence.'"
Id., p.
246 U. S. 348.
A similar ruling was made in
Hygrade Provision Co. v.
Sherman, 266 U. S. 497. The
charge was that a criminal statute which regulated the sale of
"kosher" meat or products "sanctioned by the orthodox Hebrew
religious requirements" was unconstitutional for want of any
ascertainable standard of guilt. The Court, speaking through Mr.
Justice Sutherland, stated,
". . . since the statutes require a specific intent to defraud
in order to encounter their prohibitions, the hazard of prosecution
which appellants fear loses whatever substantial foundation it
might have in the absence of such a requirement."
266 U.S. pp.
266 U. S.
502-503. In
United States v. Ragen, supra, we
took
Page 325 U. S. 103
that course in a prosecution for willful evasion of a federal
income tax where it was alleged that the defendant had deducted
more than "reasonable" allowances for salaries. By construing the
statute to require proof of bad faith, we avoided the serious
question which the rule of
United States v. Cohen Grocery Co.,
supra, might have presented. We think a like course is
appropriate here.
Moreover, the history of § 20 affords some support for that
narrower construction. As we have seen, the word "willfully" was
not added to the Act until 1909. Prior to that time, it may be that
Congress intended that he who deprived a person of any right
protected by the Constitution should be liable without more. That
was the pattern of criminal legislation which has been sustained
without any charge or proof of
scienter.
Shevlin-Carpenter Co. v. Minnesota, 218 U. S.
57;
United States v. Balint, supra. And the
present Act, in its original form, would have been susceptible of
the same interpretation apart from the equal protection clause of
the Fourteenth Amendment, where "purposeful discriminatory" action
must be shown.
Snowden v. Hughes, 321 U. S.
1,
321 U. S. 8-9.
But, as we have seen, the word "willfully" was added to make the
section "less severe." We think the inference is permissible that
its severity was to be lessened by making it applicable only where
the requisite bad purpose was present, thus requiring specific
intent not only where discrimination is claimed, but in other
situations as well. We repeat that the presence of a bad purpose or
evil intent alone may not be sufficient. We do say that a
requirement of a specific intent to deprive a person of a federal
right made definite by decision or other rule of law saves the Act
from any charge of unconstitutionality on the grounds of
vagueness.
Once the section is given that construction, we think that the
claim that the section lacks an ascertainable standard of guilt
must fail. The constitutional requirement that a criminal statute
be definite serves a high function.
Page 325 U. S. 104
It gives a person acting with reference to the statute fair
warning that his conduct is within its prohibition. This
requirement is met when a statute prohibits only "willful" acts in
the sense we have explained. One who does act with such specific
intent is aware that what he does is precisely that which the
statute forbids. He is under no necessity of guessing whether the
statute applies to him (
see Connally v. General Construction
Co., 269 U. S. 385),
for he either knows or acts in reckless disregard of its
prohibition of the deprivation of a defined constitutional or other
federal right.
See Gorin v. United States, 312 U. S.
19,
312 U. S. 27-28.
Nor is such an act beyond the understanding and comprehension of
juries summoned to pass on them. The Act would then not become a
trap for law enforcement agencies acting in good faith. "A mind
intent upon willful evasion is inconsistent with surprised
innocence."
United States v. Ragen, supra, p.
314 U. S.
524.
It is said, however, that this construction of the Act will not
save it from the infirmity of vagueness, since neither a law
enforcement official nor a trial judge can know with sufficient
definiteness the range of rights that are constitutional. But that
criticism is wide of the mark. For the specific intent required by
the Act is 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. Take
the case of a local officer who persists in enforcing a type of
ordinance which the Court has held invalid as violative of the
guarantees of free speech or freedom of worship. Or a local
official continues to select juries in a manner which flies in the
teeth of decisions of the Court. If those acts are done willfully,
how can the officer possibly claim that he had no fair warning that
his acts were prohibited by the statute? He violates the statute
not merely because he has a bad purpose, but because he acts in
defiance of announced rules of law. He who defies a
Page 325 U. S. 105
decision interpreting the Constitution knows precisely what he
is doing. If sane, he hardly may be heard to say that he knew not
what he did. Of course, willful conduct cannot make definite that
which is undefined. But willful violators of constitutional
requirements, which have been defined, certainly are in no position
to say that they had no adequate advance notice that they would be
visited with punishment. When they act willfully in the sense in
which we use the word, they act in open defiance or in reckless
disregard of a constitutional requirement which has been made
specific and definite. When they are convicted for so acting, they
are not punished for violating an unknowable something.
The Act, so construed, has a narrower range in all its
applications than if it were interpreted in the manner urged by the
government. But the only other alternative, if we are to avoid
grave constitutional questions, is to construe it as applicable
only to those acts which are clearly marked by the specific
provisions of the Constitution as deprivations of constitutional
rights, privileges, or immunities, and which are knowingly done
within the rule of
Ellis v. United States, supra. But, as
we have said, that course would mean that all protection for
violations of due process of law would drop out of the Act. We take
the course which makes it possible to preserve the entire Act and
save all parts of it from constitutional challenge. If Congress
desires to give the Act wider scope, it may find ways of doing so.
Moreover, here as in
Apex Hosiery Co. v. Leader,
310 U. S. 469, we
are dealing with a situation where the interpretation of the Act
which we adopt does not preclude any state from punishing any act
made criminal by its own laws. Indeed, the narrow construction
which we have adopted more nearly preserves the traditional balance
between the States and the national government in law enforcement
than that which is urged upon us.
Page 325 U. S. 106
United States v. Classic, supra, met the test we
suggest. In that case, we were dealing merely with the validity of
an indictment, not with instructions to the jury. The indictment
was sufficient, since it charged a willful failure and refusal of
the defendant election officials to count the votes cast, by their
alteration of the ballots, and by their false certification of the
number of votes cast for the respective candidates. 313 U.S. pp.
313 U. S.
308-309. The right so to vote is guaranteed by Art. I, §
2 and § 4 of the Constitution. Such a charge is adequate, since he
who alters ballots or without legal justification destroys them
would be acting willfully in the sense in which § 20 uses the term.
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. When they so act, they at
least act in reckless disregard of constitutional prohibitions or
guarantees. Likewise, it is plain that basic to the concept of due
process of law in a criminal case is a trial -- a trial in a court
of law, not a "trial by ordeal."
Brown v. Mississippi,
297 U. S. 278,
297 U. S. 285.
It could hardly be doubted that they who "under color of any law,
statute, ordinance, regulation, or custom" act with that evil
motive violate § 20. Those who decide to take the law into their
own hands and act as prosecutor, jury, judge, and executioner
plainly act to deprive a prisoner of the trial which due process of
law guarantees him. And such a purpose need not be expressed; it
may at times be reasonably inferred from all the circumstances
attendant on the act.
See Tot v. United States,
319 U. S. 463.
The difficulty here is that this question of intent was not
submitted to the jury with the proper instructions. The court
charged that petitioners acted illegally if they applied more force
than was necessary to make the arrest effectual or to protect
themselves from the prisoner's alleged
Page 325 U. S. 107
assault. But in view of our construction of the word
"willfully," the jury should have been further instructed that it
was not sufficient that petitioners had a generally bad purpose. To
convict, it was necessary for them to find that petitioners had the
purpose to deprive the prisoner of a constitutional right,
e.g., the right to be tried by a court, rather than by
ordeal. And in determining whether that requisite bad purpose was
present, the jury would be entitled to consider all the attendant
circumstances -- the malice of petitioners, the weapons used in the
assault, its character and duration, the provocation, if any, and
the like.
It is true that no exception was taken to the trial court's
charge. Normally we would, under those circumstances, not take note
of the error.
See Johnson v. United States, 318 U.
S. 189,
318 U. S. 200.
But there are exceptions to that rule.
United States v.
Atkinson, 297 U. S. 157,
297 U. S. 160;
Clyatt v. United States, 197 U. S. 207,
197 U. S.
221-222. And where the error is so fundamental as not to
submit to the jury the essential ingredients of the only offense on
which the conviction could rest, we think it is necessary to take
note of it on our own motion. Even those guilty of the most heinous
offenses are entitled to a fair trial. Whatever the degree of
guilt, those charged with a federal crime are entitled to be tried
by the standards of guilt which Congress has prescribed.
III
It is said, however, that petitioners did not act "under color
of any law" within the meaning of § 20 of the Criminal Code. We
disagree. We are of the view that petitioners acted under "color"
of law in making the arrest of Robert Hall and in assaulting him.
They were officers of the law who made the arrest. By their own
admissions, they assaulted Hall in order to protect themselves and
to keep their prisoner from escaping. It was their duty
Page 325 U. S. 108
under Georgia law to make the arrest effective. Hence, their
conduct comes within the statute.
Some of the arguments which have been advanced in support of the
contrary conclusion suggest that the question under § 20 is whether
Congress has made it a federal offense for a state officer to
violate the law of his State. But there is no warrant for treating
the question in state law terms. The problem is not whether state
law has been violated, but whether an inhabitant of a State has
been deprived of a federal right by one who acts under "color of
any law." He who acts under "color" of law may be a federal officer
or a state officer. He may act under "color" of federal law or of
state law. The statute does not come into play merely because the
federal law or the state law under which the officer purports to
act is violated. It is applicable when and only when someone is
deprived of a federal right by that action. The fact that it is
also a violation of state law does not make it any the less a
federal offense punishable as such. Nor does its punishment by
federal authority encroach on state authority or relieve the state
from its responsibility for punishing state offenses. [
Footnote 10]
We agree that, when this statute is applied to the action of
state officials, it should be construed so as to respect the proper
balance between the States and the federal government in law
enforcement. Violation of local law does not necessarily mean that
federal rights have been invaded. The fact that a prisoner is
assaulted, injured, or even murdered by state officials does not
necessarily mean that he is deprived of any right protected or
secured by the
Page 325 U. S. 109
Constitution or laws of the United States.
Cf. Logan v.
United States, 144 U. S. 263,
dealing with assaults by federal officials. The Fourteenth
Amendment did not alter the basic relations between the States and
the national government.
United States v. Harris,
106 U. S. 629;
In re Kemmler, 136 U. S. 436,
136 U. S. 448.
Our national government is one of delegated powers alone. Under our
federal system, the administration of criminal justice rests with
the States except as Congress, acting within the scope of those
delegated powers, has created offenses against the United States.
Jerome v. United States, 318 U. S. 101,
318 U. S. 105.
As stated in
United States v. Cruikshank, 92 U. S.
542,
92 U. S.
553-554,
"It is no more the duty or within the power of the United States
to punish for a conspiracy to falsely imprison or murder within a
State than it would be to punish for false imprisonment or murder
itself."
And see
United States v. Fox, 95 U. S.
670,
95 U. S. 672.
It is only state action of a "particular character" that is
prohibited by the Fourteenth Amendment and against which the
Amendment authorizes Congress to afford relief.
Civil Rights
Cases, 109 U. S. 3,
109 U. S. 11,
109 U. S. 13.
Thus, Congress, in § 20 of the Criminal Code, did not undertake to
make all torts of state officials federal crimes. It brought within
§ 20 only specified acts done "under color" of law, and then only
those acts which deprived a person of some right secured by the
Constitution or laws of the United States.
This section was before us in
United States v. Classic,
313 U. S. 299,
313 U. S. 326,
where we said: "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." In that case, state election officials were charged with
failure to count the votes as cast, alteration of the ballots, and
false certification of the number of votes cast for the respective
candidates. 313 U.S. pp.
313 U. S.
308-309. We stated that those acts of the defendants
"were committed in the course of
Page 325 U. S. 110
their performance of duties under the Louisiana statute
requiring them to count the ballots, to record the result of the
count, and to certify the result of the election."
Id. pp.
313 U. S.
325-326. In the present case, as we have said, the
defendants were officers of the law who had made an arrest and who,
by their own admissions, made the assault in order to protect
themselves and to keep the prisoner from escaping,
i.e.,
to make the arrest effective. That was a duty they had under
Georgia law.
United States v. Classic is, therefore,
indistinguishable from this case so far as "under color of" state
law is concerned. In each, officers of the State were performing
official duties; in each, the power which they were authorized to
exercise was misused. We cannot draw a distinction between them
unless we are to say that § 20 is not applicable to police
officers. But the broad sweep of its language leaves no room for
such an exception.
It is said that we should abandon the holding of the
Classic case. It is suggested that the present problem was
not clearly in focus in that case, and that its holding was
ill-advised. A reading of the opinion makes plain that the question
was squarely involved and squarely met. It followed the rule
announced in
Ex parte Virginia, 100 U.
S. 339,
100 U. S. 346,
that a state judge who, in violation of state law, discriminated
against negroes in the selection of juries violated the Act of
March 1, 1875, 18 Stat. 336. It is true that that statute did not
contain the words under "color" of law. But the Court. in deciding
what was state action within the meaning of the Fourteenth
Amendment, held that it was immaterial that the state officer
exceeded the limits of his authority.
". . . as he acts in the name and for the State, and is clothed
with the State's power, his act is that of the State. This must be
so, or the constitutional prohibition has no meaning. Then the
State has clothed one of its agents with power to annul or to evade
it."
100 U.S. at p.
100 U. S. 347.
And see 100 U. S.
Rives,
Page 325 U. S. 111
100 U. S. 313,
100 U. S. 321.
The
Classic case recognized, without dissent, that the
contrary view would defeat he great purpose which § 20 was designed
to serve. Reference is made to statements [
Footnote 11] Of Senator Trumbull in his
discussion of § 2 of the Civil Rights Act of 1866, 14 Stat. 27, and
to statements of Senator Sherman concerning the 1870 Act [
Footnote 12] as supporting the
conclusion that "under color of any law" was designed to include
only action taken by officials pursuant to state law. But those
statements, in their context, are inconclusive on the precise
problem involved in the
Classic case and in the present
case. We are not dealing here with a case where an officer not
authorized to act nevertheless takes action. Here, the state
officers were authorized to make an arrest and to take such steps
as were necessary to make the arrest effective. They acted without
authority only in the sense that they used excessive force in
making the arrest effective. It is clear that under "color" of law
means under "pretense" of law. Thus, acts of officers in the ambit
of their personal pursuits are plainly excluded. Acts of officers
who undertake to perform their official duties are included whether
they hew to the line of their authority or overstep it. If, as
suggested, the statute was designed to embrace only action which
the State in fact authorized, the words "under color of any law"
were hardly apt words to express the idea.
Nor are the decisions under § 33 of the Judicial Code, 28 U.S.C.
§ 76, in point. That section gives the right of removal to a
federal court of any criminal prosecution begun in a state court
against a revenue officer of the United States "on account of any
act done under color of his office or of any such (revenue) law."
The cases under it recognize that it is an "exceptional" procedure
which wrests from state courts the power to try offenses
against
Page 325 U. S. 112
their own laws.
Maryland v. Soper (No. 1), 270 U. S.
9,
270 U. S. 29,
270 U. S. 35;
Colorado v. Syres, 286 U. S. 510,
286 U. S. 518.
Thus, the requirements of the showing necessary for removal are
strict.
See Maryland v. Soper (No. 2), 270 U. S.
36,
270 U. S. 42,
saying that acts "necessary to make the enforcement effective" are
done under "color" of law. Hence, those cases do not supply an
authoritative guide to the problems under § 20 which seeks to
afford protection against officers who possess authority to act and
who exercise their powers in such a way as to deprive a person of
rights secured to him by the Constitution or laws of the United
States. It is one thing to deprive state courts of their authority
to enforce their own laws. It is quite another to emasculate an Act
of Congress designed to secure individuals their constitutional
rights by finely spun distinctions concerning the precise scope of
the authority of officers of the law.
Cf. Yick Wo v.
Hopkins, 118 U. S. 356.
But beyond that is the problem of
stare decisis. The
construction given § 20 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 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
Page 325 U. S. 113
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 to meet the exigencies of each case coming before us.
Since there must be a new trial, the judgment below is
Reversed.
[
Footnote 1]
A demurrer to the indictment alleging, among other things, that
the matters charged did not constitute an offense against the
United States, and did not come within the purview of § 20, was
overruled. At the end of the government's case, petitioners' motion
for a directed verdict on the grounds of the insufficiency of the
evidence was denied.
[
Footnote 2]
Moreover, federal as well as state officials would run afoul of
the Act, since it speaks of "any law, statute, ordinance,
regulation, or custom." Comparable uncertainties will exist in the
application of the due process clause of the Fifth Amendment.
[
Footnote 3]
See Cong.Globe, 41st Cong., 2d Sess., pp. 3807-3808,
3881. Flack, The Adoption of the Fourteenth Amendment (1908), pp.
19-54, 219, 223, 227;
Hague v. CIO, 307 U.
S. 496,
307 U. S.
510.
[
Footnote 4]
See United States v. Classic, 313 U.
S. 299,
313 U. S. 327,
note 10.
[
Footnote 5]
"That any person who, under color of any law, statute,
ordinance, regulation, or custom, shall subject, or cause to be
subjected, any inhabitant of any State or Territory to the
deprivation of any right secured or protected by this act, or to
different punishment, pains, or penalties on account of such person
having at any time been held in a condition of slavery or
involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, or by reason of his color or
race, than is prescribed for the punishment of white persons, shall
be deemed guilty of a misdemeanor, and, on conviction, shall be
punished by fine not exceeding one thousand dollars, or
imprisonment not exceeding one year, or both, in the discretion of
the court."
[
Footnote 6]
That any person who, under color of any law, statute, ordinance,
regulation, or custom, shall subject, or cause to be subjected, any
inhabitant of any State or Territory to the deprivation of any
right secured or protected by the last preceding section of this
act, or to different punishment, pains, or penalties on account of
such person being an alien, or by reason of his color or race, than
is prescribed for the punishment of citizens, shall be deemed
guilty of a misdemeanor, and, on conviction, shall be punished by
fine not exceeding one thousand dollars, or imprisonment not
exceeding one year, or both, in the discretion of the court.
The preceding section referred to read as follows:
"That all persons within the jurisdiction of the United States
shall have the same right in every State and Territory in the
United States to make and enforce contracts, to sue, be parties,
give evidence, and to the full and equal benefit of all laws and
proceedings for the security of person and property as is enjoyed
by white citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and none
other, any law, statute, ordinance, regulation, or custom to the
contrary notwithstanding. No tax or charge shall be imposed or
enforced by any State upon any person immigrating thereto from a
foreign country which is not equally imposed and enforced upon
every person immigrating to such State from any other foreign
country, and any law of any State in conflict with this provision
is hereby declared null and void."
[
Footnote 7]
Its sponsor, Senator Stewart, stated that
"It extends the operation of the civil rights bill, which is
well known in the Senate and to the country, to all persons within
the jurisdiction of the United States."
Cong.Globe, 41st Cong., 2d Sess., p. 1536.
[
Footnote 8]
That section provided in part:
"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 . . ."
This section became § 1979 of the Revised Statutes, and is now
found in 8 U.S.C. § 43.
See Hague v. CIO, supra, note 3 p.
307 U. S.
510.
[
Footnote 9]
Sec. 5 thereof provides: "The Congress shall have power to
enforce, by appropriate legislation, the provisions of this
Article."
[
Footnote 10]
The petitioners may be guilty of manslaughter or murder under
Georgia law and at the same time liable for the federal offense
proscribed by § 20. The instances where "an act denounced as a
crime by both national and state sovereignties" may be punished by
each without violation of the double jeopardy provision of the
Fifth Amendment are common.
United States v. Lanza,
260 U. S. 377,
260 U. S. 382;
Hebert v. Louisiana, 272 U. S. 312.
[
Footnote 11]
Cong.Globe, 39th Cong., 1st Sess., p. 1759.
[
Footnote 12]
Cong.Globe, 41st Cong., 2d Sess., p. 3663.
MR. JUSTICE RUTLEDGE, concurring in the result.
For the compelling reason stated at the end of this opinion I
concur in reversing the judgment and remanding the cause for
further proceedings. But for that reason, my views would require
that my vote be cast to affirm the Judgment, for the reasons stated
by MR. JUSTICE MURPHY and others I feel forced, in the peculiar
situation, to state.
The case comes here established, in fact, as a gross abuse of
authority by state officers. Entrusted with the state's power and
using it, without a warrant or with one of only doubtful legality,
[
Footnote 2/1] they invaded a
citizen's home, arrested him for alleged theft of a tire, forcibly
took him in handcuffs to the courthouse yard, and there beat him to
death. Previously, they had threatened to kill him, fortified
themselves at a near-by bar, and resisted the bartender's
importunities not to carry out the arrest. Upon this and other
evidence which overwhelmingly supports (140 F.2d at 665) the
verdict, together with instructions adequately
Page 325 U. S. 114
covering an officer's right to use force, the jury found the
petitioners guilty.
I
The verdict has shaped their position here. Their contention
hardly disputes the facts on which it rests. [
Footnote 2/2] They do not come therefore as faithful
state officers, innocent of crime. Justification has been
foreclosed. Accordingly, their argument now admits the offense, but
insists it was against the state alone, not the nation. So they
have made their case in this Court. [
Footnote 2/3]
In effect, the position urges it is murder they have done,
[
Footnote 2/4] not deprivation of
constitutional right. Strange as the argument is the reason. It
comes to this, that abuse of state power creates immunity to
federal power. Because what they did violated the state's laws, the
nation cannot reach their conduct. [
Footnote 2/5] It may deprive the citizen of his liberty
and his life. But whatever state officers may do in abuse of their
official capacity can give this Government and its courts no
concern. This though the prime object of the Fourteenth Amendment
and § 20 was to secure these fundamental rights against wrongful
denial by exercise of the power of the states.
The defense is not pretty. Nor is it valid. By a long course of
decision from
Ex parte Virginia, 100 U.
S. 339, to
United States v. Classic,
313 U. S. 299, it
has been rejected. [
Footnote
2/6]
Page 325 U. S. 115
The ground should not need ploughing again. It was cleared long
ago, and thoroughly. It has been kept clear until the ancient
doubt, laid in the beginning, was resurrected in the last stage of
this case. The evidence has nullified any pretense that petitioners
acted as individuals, about their personal though nefarious
business. They used the power of official place in all that was
done. The verdict has foreclosed semblance of any claim that only
private matters, not touching official functions, were involved.
Yet neither was the state's power, they say.
There is no third category. The Amendment and the legislation
were not aimed at rightful state action. Abuse of state power was
the target. Limits were put to state authority, and states were
forbidden to pass them, by whatever agency. [
Footnote 2/7] It is too late now, if there were better
reason than exists for doing so, to question that, in these matters
abuse binds the state and is its act, when done by
Page 325 U. S. 116
one to whom it has given power to make the abuse effective to
achieve the forbidden ends. Vague ideas of dual federalism,
[
Footnote 2/8] of
ultra
vires doctrine imported from private agency, [
Footnote 2/9] and of want of finality in official
action [
Footnote 2/10] do not
nullify what four years of civil strife secured and eighty years
have verified. For it was abuse of basic civil and political
rights, by states and their officials, that the Amendment and the
enforcing legislation were adopted to uproot.
The danger was not merely legislative or judicial. Nor was it
threatened only from the state's highest officials. It was abuse by
whatever agency the state might invest with its power capable of
inflicting the deprivation. In all its flux, time makes some things
axiomatic. One has been that state officials who violate their
oaths of office and flout
Page 325 U. S. 117
the fundamental law are answerable to it when their misconduct
brings upon them the penalty it authorizes and Congress has
provided.
There could be no clearer violation of the Amendment or the
statute. No act could be more final or complete to denude the
victim of rights secured by the Amendment's very terms. Those
rights so destroyed cannot be restored. Nor could the part played
by the state's power in causing their destruction be lessened,
though other organs were now to repudiate what was done. The
state's law might thus be vindicated. If so, the vindication could
only sustain, it could not detract from, the federal power. Nor
could it restore what the federal power shielded. Neither acquittal
nor conviction, though affirmed by the state's highest court, could
resurrect what the wrongful use of state power has annihilated.
There was in this case abuse of state power, which, for the
Amendment's great purposes, was state action, final in the last
degree, depriving the victim of his liberty and his life without
due process of law.
If the issues made by the parties themselves were allowed to
govern, there would be no need to say more. At various stages,
petitioners have sought to show that they used no more force than
was necessary, that there was no state action, and that the
evidence was not sufficient to sustain the verdict and the
judgment. These issues, in various formulations, [
Footnote 2/11] have comprehended their case. All
have been resolved against them without error. This should end the
matter.
Page 325 U. S. 118
II
But other and most important issues have been injected and made
decisive to reverse the judgment. Petitioners have not denied that
they acted "willfully" within the meaning of § 20. or that they
intended to do the acts which took their victim's liberty and life.
In the trial court, they claimed justification. But they were
unable to prove it. The verdict, on overwhelming evidence, has
concluded against them their denial of bad purpose and reckless
disregard of rights. This is necessarily implied in the finding
that excessive force was used. No complaint was made of the charge
in any of these respects, and no request for additional charges
concerning them was offered. Nor, in the application for certiorari
or the briefs, have they raised questions of the requisite criminal
intent or of unconstitutional vagueness in the statute's definition
of the crime. However, these issues have been brought forward, so
far as the record discloses, first by the dissenting opinion in the
Court of Appeals, then by inquiry at the argument and in the
disposition here.
The story would be too long to trace in more than outline the
history of § 20 and companion provisions, in particular § 19,
[
Footnote 2/12] with which it
must be considered on any suggestion of fatal ambiguity. But this
history cannot be ignored unless we would risk throwing overboard
what the nation's greatest internal conflict created and eight
Page 325 U. S. 119
decades have confirmed, in protection of individual rights
against impairment by the states.
Sections 19 and 20 are twin sections in all respects that
concern any question of vagueness in defining the crimes. There are
important differences. Section 19 strikes at conspiracies, § 20 at
substantive offenses. The former protects "citizens," the latter
"inhabitants." There are, however, no differences in the basic
rights guarded. Each protects in a different way the rights and
privileges secured to individuals by the Constitution. If one falls
for vagueness in pointing to these, the other also must fall for
the same reason. If one stands, so must both. It is not one
statute, therefore, which we sustain or nullify. It is two.
The sections have stood for nearly eighty years. Nor has this
been without attack for ambiguity. Together, the two sections have
repelled it. In 1915, one of this Court's greatest judges, speaking
for it, summarily disposed of the suggestion that § 19 is invalid:
"It is not open to question that this statute is constitutional. .
. . [It] dealt with Federal rights and with all Federal rights, and
protected them in the lump . . ."
United States v. Mosley,
238 U. S. 383,
238 U. S. 386,
387. And in
United States v. Classic, 313 U.
S. 299, the Court with equal vigor reaffirmed the
validity of both sections, against dissenting assault for fatal
Page 325 U. S. 120
ambiguity in relation to the constitutional rights then in
question. These more recent pronouncements but reaffirmed earlier
and repeated ones. The history should not require retelling. But
old and established freedoms vanish when history is forgotten.
Section 20 originated in the Civil Rights Act of 1866 (14 Stat.
27), § 19 in the Enforcement Act of 1870 (16 Stat. 141, § 6). Their
great original purpose was to strike at discrimination,
particularly against Negroes, the one securing civil, the other
political, rights. But they were not drawn so narrowly. From the
beginning, § 19 protected all "citizens," § 20 "inhabitants."
At first, § 20 secured only rights enumerated in the Civil
Rights Act. The first ten years brought it, through broadening
changes, to substantially its present form. Only the word
"willfully" has been added since then, a change of no materiality,
for the statute implied it beforehand. [
Footnote 2/13] 35 Stat. 1092. The most important change
of the first decade replaced the specific enumeration of the Civil
Rights Act with the present broad language covering "the
deprivation of any rights, privileges, or immunities, secured or
protected by the Constitution and laws of the United States." R.S.
§ 5510. This inclusive designation brought § 20 into conformity
with § 19's original coverage of "any right or privilege secured to
him by the Constitution or laws of the United States." Since then,
under these generic designations, the two have been literally
identical in the scope of the rights they secure. The slight
difference in wording cannot be one of substance. [
Footnote 2/14]
Page 325 U. S. 121
Throughout a long and varied course of application, the sections
have remained unimpaired on the score of vagueness in the crimes
they denounce. From 1874 to today, they have repelled all attacks
proposed to invalidate them. None has succeeded. If time and
uniform decision can give stability to statutes, these have
acquired it.
Section 20 has not been much used, in direct application, until
recently. There were, however, a number of early decisions.
[
Footnote 2/15] Of late, the
section has been applied more frequently, in considerable variety
of situation, against varied and vigorous attack. [
Footnote 2/16] In
United States v.
Classic, 313 U.S. at
313 U. S. 321,
as has been stated, this Court gave it clear-cut sanction. The
opinion expressly repudiated any idea that the section, or § 19, is
vitiated by ambiguity. Moreover, this was done in terms which leave
no room to say that the decision was not focused upon that
question. [
Footnote 2/17] True,
application to Fourteenth Amendment
Page 325 U. S. 122
rights was reserved because the question was raised for the
first time in the Government's brief filed here. 313 U.S. at
313 U. S. 329.
But the statute was sustained in application to a vast range of
rights secured by the Constitution, apart from the reserved
segment, as the opinion's language and the single reservation
itself attest. The ruling, thus broad, could not have been
inadvertent. For it was repeated concerning both sections, broadly,
forcefully, and upon citation of long-established authority. And
this was done in response to a vigorous dissent which made the most
of the point of vagueness. [
Footnote
2/18] The point was flatly, and deliberately, rejected. The
Court could not have been blinded by other issues to the import of
this one.
The
Classic decision thus cannot be put aside in this
case. Nor can it be demonstrated that the rights secured by the
Fourteenth Amendment are more numerous or more dubious than the
aggregate encompassed by other
Page 325 U. S. 123
constitutional provisions. Certainly "the equal protection of
the laws," guaranteed by the Amendment, is not more vague and
indefinite than many rights protected by other commands. [
Footnote 2/19] The same thing is true of
"the privileges or immunities of citizens of the United States."
The Fifth Amendment contains a due process clause as broad in its
terms restricting national power as the Fourteenth is of state
power. [
Footnote 2/20] If § 20
(with 19) is valid in general coverage of other constitutional
rights, it cannot be void in the less sweeping application to
Fourteenth Amendment rights. If it is valid to assure the rights
"plainly and directly" secured by other provisions, it is equally
valid to protect those "plainly and directly" secured by the
Fourteenth Amendment, including the expressly guaranteed rights not
to be deprived of life, liberty or property without due process of
law. If, in fact, there could be any difference among the various
rights protected, in view of the history, it would be that the
section applies more clearly to Fourteenth Amendment rights than to
others. Its phrases
"are all phrases of large generalities. But they are not
generalities of unillumined vagueness; they are generalities
circumscribed by history, and appropriate to the largeness of the
problems of government with which they were concerned."
Malinski v. New York, 324 U. S. 401,
concurring opinion, p.
323 U. S.
413.
Historically, the section's function and purpose have been to
secure rights given by the Amendment. From the Amendment's adoption
until 1874, it was Fourteenth Amendment legislation. Surely when,
in that year, the section was expanded to include other rights,
these were
Page 325 U. S. 124
not dropped out. By giving the citizen additional security in
the exercise of his voting and other political rights, which was
the section's effect, unless the
Classic case falls,
Congress did not take from him the protection it previously
afforded (wholly apart from the prohibition of different penalties)
[
Footnote 2/21] against
deprivation of such rights on account of race, color or previous
condition of servitude, or repeal the prior safeguard of civil
rights.
To strike from the statute the rights secured by the Fourteenth
Amendment, but at the same time to leave within its coverage the
vast area bounded by other constitutional provisions, would
contradict both reason and history. No logic but one which
nullifies the historic foundations of the Amendment and the section
could support such an emasculation. There should be no judicial
hack work cutting out some of the great rights the Amendment
secures, but leaving in others. There can be none excising all
protected by the Amendment, but leaving
Page 325 U. S. 125
every other given by the Constitution intact under the statute's
aegis.
All that has been said of § 20 applies with equal force to § 19.
It had an earlier more litigious history, firmly establishing its
validity. [
Footnote 2/22] It also
has received recent application, [
Footnote 2/23]
Page 325 U. S. 126
without question for ambiguity except in the
Classic
case, which nevertheless gave it equal sanction with its
substantive counterpart.
Separately, and often together in application, § § 19 and 20
have been woven into our fundamental and statutory law. They have
place among our more permanent legal achievements. They have
safeguarded many rights and privileges apart from political ones.
Among those buttressed, either by direct application or through the
general conspiracy statute, § 37 (18 U.S.C. § 88), [
Footnote 2/24] are the rights to a fair
trial, including freedom from sham trials; to be free from arrest
and detention by methods constitutionally forbidden and from
extortion of property by such methods; from extortion of
confessions; from mob action incited or shared by state officers;
from failure to furnish police protection on proper occasion and
demand; from interference with the free exercise of religion,
freedom of the press, freedom of speech and assembly; [
Footnote 2/25] and
Page 325 U. S. 127
the necessary import of the decisions is that the right to be
free from deprivation of life itself, without due process of law,
that is, through abuse of state power by state officials, is as
fully protected as other rights so secured.
So much experience cannot be swept aside, or its teaching
annulled, without overthrowing a great, and a firmly established,
constitutional tradition. Nor has the feared welter of uncertainty
arisen. Defendants have attacked the sections, or their
application, often and strenuously. Seldom has complaint been made
that they are too vague and uncertain. Objections have centered
principally about "state action," including "color of law" and
failure by inaction to discharge official duty,
cf. Catlette v.
United States, 132 F.2d 902, and about the strength of federal
power to reach particular abuses. [
Footnote 2/26] More rarely, they have touched other
matters, such as the limiting effect of official privilege
[
Footnote 2/27] and, in
occasional instances,
mens rea. [
Footnote 2/28]
Page 325 U. S. 128
In all this wealth of attack, accused officials have little used
the shield of ambiguity. The omission, like the Court's rejection
in the
Classic case, cannot have been inadvertent. There
are valid reasons for it, apart from the old teaching that the
matter has been foreclosed.
One is that the generality of the section's terms simply has not
worked out to be a hazard of unconstitutional, or even serious,
proportions. It has not proved a source of practical difficulty. In
no other way can be explained the paucity of the objection's
appearance in the wealth of others made. If experience is the life
of the law, as has been said, this has been true preeminently in
the application of §§ 19 and 20.
Moreover, statutory specificity has two purposes, to give due
notice that an act has been made criminal before it is done and to
inform one accused of the nature of the offense charged, so that he
may adequately prepare and make his defense. More than this,
certainly the Constitution does not require.
Cf. Amend.
VI. All difficulty on the latter score vanishes, under § 20, with
the indictment's particularization of the rights infringed and the
acts infringing them. If it is not sufficient in either respect, in
these as in other cases, the motion to quash or one for a bill of
particulars is at the defendant's disposal. The decided cases
demonstrate that accused persons have had little or no difficulty
to ascertain the rights they have been charged with transgressing
or the acts of transgression. [
Footnote 2/29] So it was with the defendants in this
case. They were not puzzled to know for what they were indicted, as
their proof and their defense upon the law conclusively show. They
simply misconceived that the victim had no federal rights, and that
what they had done was not a crime within the federal power to
penalize. [
Footnote 2/30] That
kind of error relieves no one from penalty.
Page 325 U. S. 129
In the other aspect of specificity, two answers, apart from
experience, suffice. One is that § 20, and § 19, are no more
general and vague, Fourteenth Amendment rights included, than other
criminal statutes commonly enforced against this objection. The
Sherman Act is the most obvious illustration. [
Footnote 2/31]
Furthermore, the argument of vagueness, to warn men of their
conduct, ignores the nature of the criminal act itself, and the
notice necessarily given from this. Section 20 strikes only at
abuse of official functions by state officers. It does not reach
out for crimes done by men in general. Not murder
per se,
but murder by state officers in the course of official conduct and
done with the aid of state power, is outlawed. These facts,
inherent in the crime, give all the warning constitutionally
required. For one so situated who goes so far in misconduct can
have no excuse of innocence or ignorance.
Generally, state officials know something of the individual's
basic legal rights. If they do not, they should, for they assume
that duty when they assume their office. Ignorance of the law is no
excuse for men in general. It is less an excuse for men whose
special duty is to apply it, and therefore to know and observe it.
If their knowledge is not comprehensive, state officials know, or
should know, when they pass the limits of their authority, so far,
at any rate, that their action exceeds honest error of judgment and
amounts to abuse of their office and its function. When they enter
such a domain in dealing with the citizen's rights, they should do
so at their peril, whether that
Page 325 U. S. 130
be created by state or federal law. For their sworn oath and
their first duty are to uphold the Constitution, then only the law
of the state, which, too, is bound by the charter. Since the
statute, as I think, condemns only something more than error of
judgment, made in honest effort at once to apply and to follow the
law,
cf. United States v. Murdock, 290 U.
S. 389, officials who violate it must act in intentional
or reckless disregard of individual rights, and cannot be ignorant
that they do great wrong. [
Footnote
2/32] This being true, they must be taken to act at peril of
incurring the penalty placed upon such conduct by the federal law,
as they do of that the state imposes.
What has been said supplies all the case requires to be decided
on the question of criminal intent. If the criminal act is limited,
as I think it must be and the statute intends, to infraction of
constitutional rights, including rights secured by the Fourteenth
Amendment, by conduct which amounts to abuse of one's official
place or reckless disregard of duty, no undue hazard or burden can
be placed on state officials honestly seeking to perform the
rightful functions of their office. Others are not entitled to
greater protection.
But, it is said, a penumbra of rights may be involved, which
none can know until decision has been made and infraction may occur
before it is had. It seems doubtful this could be true in any case
involving the abuse of official function which the statute requires
and, if it could, that one guilty of such an abuse should have
immunity for that reason. Furthermore, the doubtful character of
the
Page 325 U. S. 131
right infringed could give reason at the most to invalidate the
particular charge, not for outlawing he statute or narrowly
restricting its application in advance of compelling occasion.
For there is a body of well established, clear-cut fundamental
rights, including many secured by the Fourteenth Amendment, to all
of which the sections may and do apply, without specific
enumeration and without creating hazards of uncertainty for conduct
or defense. Others will enter that category. So far, at the least,
when they have done so, the sections should stand without question
of their validity. Beyond this, the character of the act proscribed
and the intent it necessarily implies would seem to afford would-be
violators all of notice the law requires, that they act at peril of
the penalty it places on their misconduct.
We have in this case no instance of mere error in judgment, made
in good faith. It would be time enough to reverse and remand a
conviction, obtained without instructions along these lines if such
a case should arise. Actually the substance of such instruction was
given in the wholly adequate charge concerning the officer's right
to use force, though not to excess. When, as here, a state official
abuses his place consciously or grossly in abnegation of its
rightful obligation, and thereby tramples underfoot the established
constitutional rights of men or citizens, his conviction should
stand when he has had the fair trial and full defense the
petitioners have been given in this case.
III
Two implicit but highly important considerations must be noticed
more definitely. One is the fear grounded in concern for possible
maladjustment of federal-state relations if this and like
convictions are sustained. Enough has been said to show that the
fear is not well grounded. The same fear was expressed, by some in
exaggerated and
Page 325 U. S. 132
highly emotional terms, when § 2 of the Civil Rights Act, the
antecedent of § 20, was under debate in Congress. [
Footnote 2/33] The history of the legislation's
enforcement gives it no support. The fear was not realized in later
experience. Eighty years should be enough to remove any remaining
vestige. The volume of prosecutions and convictions has been small,
in view of the importance of the subject matter and the length of
time the statutes have been in force. There are reasons for this,
apart from self-restraint of federal prosecuting officials.
One lies in the character of the criminal act and the intent
which must be proved. A strong case must be made to show abuse of
official function, and therefore to secure indictment or
conviction. Trial must be "by an impartial jury of the State and
the district wherein the crime shall have been committed." Const.,
Amend. VI;
cf. Art. III, § 2. For all practical purposes,
this means within the state of which the accused is an officer.
Citizens of the state have not been, and will not be, ready to
indict or convict their local officers on groundless charges or in
doubtful cases. The sections can be applied effectively only when
twelve of them concur in a verdict which accords with the
prosecuting official's belief that the accused has violated
another's fundamental rights. A federal official therefore faces
both a delicate and a difficult task when he undertakes to charge
and try a state officer under the terms of §§ 19 and 20. The
restraint which has been shown is as much enforced by these
limitations as it has been voluntary.
Page 325 U. S. 133
These are the reasons why prosecution has not been frequent, has
been brought only in cases of gross abuse, and therefore has
produced no grave or substantial problem of interference by federal
authority in state affairs. But if the problem in this phase of the
case were more serious than it has been or is likely to be, the
result legally could not be to give state officials immunity from
the obligations and liabilities the Amendment and its supporting
legislation have imposed. For the verdict of the struggle which
brought about adoption of the Amendment was to the contrary.
Lying beneath all the surface arguments is a deeper implication,
which comprehends them. It goes to federal power. It is that
Congress could not in so many words denounce as a federal crime the
intentional and wrongful taking of an individual's life or liberty
by a state official acting in abuse of his official function and
applying to the deed all the power of his office. This is the
ultimate purport of the notions that state action is not involved
and that the crime is against the state alone, not the nation. It
is reflected also in the idea that the statute can protect the
victim in his many procedural rights encompassed in the right to a
fair trial before condemnation, but cannot protect him in the right
which comprehends all others, the right to life itself.
Suffice it to say that, if these ideas did not pass from the
American scene once and for all, as I think they did, upon adoption
of the Amendment without more, they have long since done so.
Violation of state law there may be. But from this no immunity to
federal authority can arise where any part of the Constitution has
made it supreme. To the Constitution state officials and the states
themselves owe first obligation. The federal power lacks no
strength to reach their malfeasance in office when it infringes
constitutional rights. If that is a great power, it is one
generated by the Constitution and the Amendments,
Page 325 U. S. 134
to which the states have assented and their officials owe prime
allegiance. [
Footnote 2/34]
The right not to be deprived of life or liberty by a state
officer who takes it by abuse of his office and its power is such a
right. To secure these rights is not beyond federal power. This §§
19 and 20 have done, in a manner history long since has
validated.
Accordingly, I would affirm the judgment.
My convictions are as I have stated them. Were it possible for
me to adhere to them in my vote, and for the Court at the same time
to dispose of the cause, I would act accordingly. The Court,
however, is divided in opinion. If each member accords his vote to
his belief, the case cannot have disposition. Stalemate should not
prevail for any reason, however compelling, in a criminal cause or,
if avoidable, in any other. My views concerning appropriate
disposition are more nearly in accord with those stated by MR.
JUSTICE DOUGLAS, in which three other members of the Court concur,
than they are with the views of my dissenting brethren who favor
outright reversal. Accordingly, in order that disposition may be
made of this case, my vote has been cast to reverse the decision of
the Court of Appeals and remand the cause to the District Court for
further proceedings in accordance with the disposition required by
the opinion of MR. JUSTICE DOUGLAS.
[
Footnote 2/1]
The evidence was conflicting whether the warrant was made out
and issued before or after the arrest and killing, and, if issued
beforehand, whether it was valid. The Court of Appeals noted there
was evidence "that the alleged warrant of arrest was prepared by
the sheriff, and was a spurious afterthought" (140 F.2d at 665),
but assumed in the petitioner's favor that a valid warrant had been
issued. The dissenting opinion said the victim's shotgun was taken
from his home "not in a search of his person, but apparently
without lawful warrant." 140 F.2d at 667.
[
Footnote 2/2]
The crucial dispute of fact was over whether the defendants had
used more force than was necessary to restrain the prisoner. The
"overwhelming weight of the testimony" (140 F.2d at 665) was that
they used not only all force required to subdue him (if it is
assumed he resisted), but continued to beat him for fifteen to
thirty minutes after he was knocked to the ground.
[
Footnote 2/3]
Cf. 325 U. S. @
[
Footnote 2/4]
The dissenting judge in the Court of Appeals thought the local
offense was not "willful murder, but rather that it was involuntary
manslaughter in the commission of an unlawful act." 140 F.2d at
666.
[
Footnote 2/5]
It does not appear that the state has taken any steps toward
prosecution for violation of its law.
[
Footnote 2/6]
Cf. notes
325 U.S.
91fn2/7|>7 and
325 U.S.
91fn2/10|>10.
And see Neal v. Delaware,
103 U. S. 370,
103 U. S. 397;
Civil Rights Cases, 109 U. S. 3,
109 U. S. 15-18;
Chicago, B. & Q. R. Co. v. Chicago, 166 U.
S. 226,
166 U. S.
233-234;
Raymond v. Chicago Traction Co.,
207 U. S. 20,
207 U. S. 35-37;
Ex parte Young, 209 U. S. 123;
Home Tel. & Tel. Co. v. Los Angeles, 227 U.
S. 278,
227 U. S.
288-289;
Cuyahoga Power Co. v. Akron,
240 U. S. 462;
Fidelity & Deposit Co. v. Tafoya, 270 U.
S. 426,
270 U. S. 434;
Hopkins v. Southern California Telephone Co., 275 U.
S. 393,
275 U. S. 398;
Iowa-Des Moines Bank v. Bennett, 284 U.
S. 239,
284 U. S.
245-246;
Nixon v. Condon, 286 U. S.
73,
286 U. S. 89;
Mosher v. City of Phoenix, 287 U. S.
29;
Sterling v. Constantin, 287 U.
S. 378,
287 U. S. 393;
Mooney v. Holohan, 294 U. S. 103;
Missouri ex rel. Gaines v. Canada, 305 U.
S. 337,
305 U. S. 343;
Hague v. CIO, 307 U. S. 496,
307 U. S. 512;
Cochran v. Kansas, 316 U. S. 255;
Pyle v. Kansas, 317 U. S. 213.
[
Footnote 2/7]
"The prohibitions of the Fourteenth Amendment are directed to
the States, . . . It is these which Congress is empowered to
enforce, and to enforce against State action, however put forth,
whether that action be executive, legislative, or judicial. . . .
Whoever, by virtue of public position under a State government,
deprives another of property, life, or liberty, without due process
of law, or denies or takes away the equal protection of the laws,
violates the constitutional inhibition, and as he acts in the name
and for the State, and is clothed with the State's power, his act
is that of the State. This must be so, or the constitutional
prohibition has no meaning."
Ex parte Virginia, 100 U. S. 339,
100 U. S.
346-347.
"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."
United States v. Classic, 313 U.
S. 299,
313 U. S. 326,
citing
Ex parte Virginia, supra, and other
authorities.
[
Footnote 2/8]
Cf. 325 U. S. @
"Such enforcement [of the Fourteenth Amendment by Congress] is
no invasion of State sovereignty. No law can be which the people of
the States have, by the Constitution of the United States,
empowered Congress to enact. This extent of the powers of the
general government is overlooked when it is said, as it has been in
this case, that the act of March 1, 1875, [18 Stat., part 3, 336]
interferes with State rights."
Ex parte Virginia, 100 U.S. at
100 U. S.
346.
[
Footnote 2/9]
Cf. Home Tel. & Tel. Co. v. Los Angeles,
227 U. S. 278,
227 U. S.
287.
[
Footnote 2/10]
Compare Barney v. City of New York, 193 U.
S. 430,
with Home Tel. & Tel. Co. v. Los
Angeles, 227 U. S. 278, the
latter suggesting that the former, "if it conflicted with the
doctrine" of
Raymond v. Chicago Traction Co., 207 U. S.
20, and
Ex parte Young, 209 U.
S. 123, "is now so distinguished or qualified as not to
be here authoritative or even persuasive." 227 U.S. at
227 U. S. 294.
See also Snowden v. Hughes, 321 U. S.
1,
321 U. S. 13;
Isseks, Jurisdiction of the Lower Federal Courts to Enjoin
Unauthorized Action of State Officials, 40 Harv.L.Rev. 969,
972.
[
Footnote 2/11]
Petitioners' objections in law were stated most specifically in
the demurrer to the indictment. These grounds also were
incorporated in their motion for a directed verdict and their
statement of grounds for appeal. The grounds for demurrer
maintained that the facts alleged were not sufficient to constitute
a federal offense, to fall within or violate the terms of any
federal law or statute, or to confer jurisdiction upon the District
or other federal court. One ground attacked the indictment for
vagueness.
[
Footnote 2/12]
Section 19 of the Criminal Code (18 U.S.C. § 51):
"If two or more persons conspire 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 or laws
of the United States, or because of his having so exercised
the same, or if two or more persons go in disguise on the highway,
or on the premises of another, with intent to prevent or hinder his
free exercise or enjoyment of any right or privilege so secured,
they shall be fined not more than 5,000 and imprisoned not more
than ten years, and shall, moreover, be thereafter ineligible to
any office, or place of honor, profit, or trust created by the
Constitution or laws of the United States."
(Emphasis added.)
Section 20 (18 U.S.C. § 52) is as follows:
"Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects, or causes to be
subjected, any inhabitant of any State, Territory, or District to
the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution and laws of the United
States, or to different punishments, pains, or penalties, on
account of such inhabitant being an alien, or by reason of his
color, or race, than are prescribed for the punishment of citizens,
shall be fined not more than $1,000, or imprisoned not more than
one year, or both."
(Emphasis added.)
[
Footnote 2/13]
Cf. 325 U.S.
91fn2/32|>note 32. President Johnson, vetoing another bill
on July 16, 1866, stated that the penalties of the Civil Rights Act
"are denounced against the person who willfully violates the law."
Cong.Globe, 39th Cong., 1st Sess., 3839.
[
Footnote 2/14]
For the history of these changes,
see the authorities
cited in the opinion of MR. JUSTICE DOUGLAS, particularly Flack,
Adoption of the Fourteenth Amendment (1908).
[
Footnote 2/15]
United States v. Rhodes, 27 Fed.Cas. 785, No. 16, 151;
United States v. Jackson, 26 Fed.Cas. 563, No. 15,459;
United States v. Buntin, 10 F. 730;
cf. United States
v. Stone, 188 F. 836, a prosecution under § 37 of the Criminal
Code for conspiracy to violate § 20;
cf. also 197 F. 483;
United States v. Horton, 26 Fed.Cas. 375, No. 15,392. The
constitutionality of the statute was sustained in the
Rhodes case in 1866, and in the
Jackson case in
1874. It was likewise sustained in
In re Turner, 24
Fed.Cas. 337, No. 14,247 (1867);
Smith v. Moody, 26 Ind.
299 (1866).
[
Footnote 2/16]
Cf. the authorities cited
infra at
325 U.S.
91fn2/25|>note 25.
[
Footnote 2/17]
Referring to § 20, the Court said:
"The generality of the section, made applicable as it is to
deprivations of any constitutional right, does not obscure its
meaning or impair its force within the scope of its application,
which is restricted, by its terms, to deprivations which are
willfully inflicted by those acting under color of any law, statute
and the like."
313 U.S. at
313 U. S.
328.
Concerning § 19, also involved, the Court pointed to the
decisions in
Ex parte Yarbrough, 110 U.
S. 651, and
United States v. Mosley,
238 U. S. 383,
cf. note 22, and commented:
". . . the Court found no uncertainty or ambiguity in the
statutory language, obviously devised to protect the citizen 'in
the free exercise or enjoyment of any right or privilege secured to
him by the Constitution,' and concerned itself with the question
whether the right to participate in choosing a representative is so
secured. Such is our function here."
313 U.S. at
313 U. S. 321.
The opinion stated further:
"The suggestion that § 19 . . . is not sufficiently specific to
be deemed applicable to primary elections will hardly bear
examination. Section 19 speaks neither of elections nor of
primaries. In unambiguous language, it protects 'any right or
privilege secured by the Constitution,' a phrase which . . .
extends to the right of the voter to have his vote counted . . . ,
as well as to numerous other constitutional rights which are wholly
unrelated to the choice of a representative in Congress,"
citing
United States v. Waddell, 112 U. S.
76;
Logan v. United States, 144 U.
S. 263;
In re Quarles, 158 U.
S. 532;
Motes v. United States, 178 U.
S. 458;
Guinn v. United States, 238 U.
S. 347.
Cf. 325 U.S.
91fn2/18|>note 18.
[
Footnote 2/18]
The dissenting opinion did not urge that §§ 19 and 20 are wholly
void for ambiguity, since it put to one side cases involving
discrimination for race or color as "plainly outlawed by the
Fourteenth Amendment," as to which it was said, "Since the
constitutional mandate is plain, there is no reason why § 19 or §
20 should not be applicable." However it was thought "no such
unambiguous mandate" had been given by the constitutional
provisions relevant in the
Classic case. 313 U.S. at
313 U. S.
332.
[
Footnote 2/19]
Cf. 325 U.S.
91fn2/18|>note 18.
[
Footnote 2/20]
Whether or not the two are coextensive in limitation of federal
and state power, respectively, there is certainly a very broad
correlation in coverage, and it hardly could be maintained that one
is confined by more clear-cut boundaries than the other, although
differences in meandering of the boundaries may exist.
[
Footnote 2/21]
The Court's opinion in the
Classic case treated this
clause of § 20,
cf. 325 U.S.
91fn2/12|>note 12, as entirely distinct from the preceding
clauses, stating that
"the qualification with respect to alienage, color and race,
refers only to differences in punishment,
and not to
deprivations of any rights or privileges secured by the
Constitution,"
(emphasis added), as was thought to be evidenced by the
grammatical structure of the section and "the necessities of the
practical application of its provisions." 313 U.S.
313 U. S.
326.
The "pains and penalties" provision is clearly one against
discrimination. It does not follow that the qualification as to
alienage, color, and race does not also refer to the "deprivation
of any rights or privileges" clause, though not in an exclusive
sense. No authority for the contrary dictum was cited. History here
would seem to outweigh doubtful grammar, since, as § 20 originally
appeared in the Civil Rights Act, the qualification as to "color or
race" (alienage was added later) seems clearly applicable to its
entire prohibition. Although the section is not exclusively a
discrimination statute, it would seem clearly, in the light of its
history, to include discrimination for alienage, color or race
among the prohibited modes of depriving persons of rights or
privileges.
[
Footnote 2/22]
Ex parte Yarbrough, 110 U. S. 651
(1884);
United States v. Waddell, 112 U. S.
76 (1884);
Logan v. United States, 144 U.
S. 263 (1892);
In re Quarles and Butler,
158 U. S. 532
(1895);
Motes v. United States, 178 U.
S. 458 (1900);
United States v. Mosley,
238 U. S. 383
(1915);
United States v. Morris, 125 F. 322 (1903);
United States v. Lackey, 99 F. 952 (1900),
reversed on
other grounds, 107 F. 114,
cert. denied, 181 U.S.
621.
In
United States v. Mosley, supra, as is noted in the
text, the Court summarily disposed of the question of validity,
stating that the section's constitutionality "is not open to
question." 238 U.S. at
238 U. S. 386.
Cf. 325 U.S.
91fn2/17|>note 17. The Court was concerned with implied
repeal, but stated:
"But § 6 [the antecedent of § 19 in the Enforcement Act] being
devoted, as we have said, to the protection
of all Federal
rights from conspiracies against them. . . . Just as the
Fourteenth Amendment . . . was adopted with a view to the
protection of the colored race, but has been found to be equally
important in its application to the rights of all,
§ 6 had a
general scope and used general words that have become the most
important. . . . The section now begins with sweeping general
words. Those words always were in the act, and the present form
gives them a congressional interpretation. Even if that
interpretation would not have been held correct in an indictment
under § 6, which we are far from intimating, and if we cannot
interpret the past by the present, we cannot allow the past so far
to affect the present as to deprive citizens of the United States
of the general protection which on its face § 19 most reasonably
affords."
238 U.S. at
238 U. S.
387-388. (Emphasis added.) The dissenting opinion of Mr.
Justice Lamar raised no question of the section's validity. It
maintained that Congress had not included or had removed protection
of voting rights from the section, leaving only civil rights within
its coverage. 238 U.S. at
238 U. S.
390.
The cases holding that the Fourteenth Amendment and § 19 do not
apply to infractions of constitutional rights involving no state
action recognize, and often affirm the section's applicability to
wrongful action by state officials which infringes them:
United
States v. Cruikshank, 92 U. S. 542
(1876);
Hodges v. United States, 203 U. S.
1 (1906);
United States v. Powell, 212 U.S. 564
(1909),
see also 151 F. 648;
Ex parte Riggins,
134 F. 404 (1904),
dismissed, 199 U.
S. 547;
United States v. Sanges, 48 F. 78
(1891),
writ of error dismissed, 144 U.
S. 310;
Powe v. United States, 109 F.2d 147
(1940),
cert. denied, 309 U.S. 679.
See also United
States v. Hall, 26 Fed.Cas. 79, No. 15,282 (1871);
United
States v. Mall, 26 Fed.Cas. 1147, No. 15,712 (1871).
[
Footnote 2/23]
Cf. the authorities cited in notes
325 U.S.
91fn2/22|>22 and
325 U.S.
91fn2/25|>25;
United States v. Saylor, 322 U.
S. 385.
[
Footnote 2/24]
Sections 19 and 37 clearly overlap in condemning conspiracies to
violate constitutional rights. The latter, apparently, has been
more frequently used, at any rate recently, when civil, rather than
political, rights are involved. It goes without saying that, in
these cases, validity of the application of § 37, charging
conspiracy to violate § 20, depends upon the latter's validity in
application to infraction of the rights charged to have been
infringed.
[
Footnote 2/25]
Recent examples involving these and other rights are:
Culp
v. United States, 131 F.2d 93;
Catlette v. United
States, 132 F.2d 902;
United States v.
Sutherland, 37 F. Supp.
344;
United States v. Trierweiler, 52 F. Supp.
4.
In the
Culp case, the court said:
"That this section [§ 20] has not lost any of its vitality since
it was originally enacted is indicated by . . .
United States
v. Classic. . . . It is our opinion that a state law
enforcement officer who, under color of state law, willfully and
without cause, arrests and imprisons an inhabitant of the United
States for the purpose of extortion deprives him of a right,
privilege, and immunity secured and protected by the Constitution
of the United States, and commits one of the offenses defined in §
52."
131 F.2d at 98. Fourteenth Amendment rights were involved also
in the
Catlette case, and, in
United States v.
Trierweiler, supra, the court said:
"The congressional purpose, obviously, is to assure enjoyment of
the rights of citizens defined by the Fourteenth Amendment,
including the mandate that no state shall deprive any person of
life, liberty, or property without due process of law. . . ."
52 F. Supp. at 5.
United States v. Buntin, 10 F. 730, involved alleged
discrimination for race in denying the right to attend public
school. In
United States v. Chaplin, 54 F.
Supp. 926, the court ruled that a state judge, acting in his
judicial capacity, is immune to prosecution under § 37 for
violating § 20.
But cf. Ex parte Virginia, 100 U.
S. 339.
[
Footnote 2/26]
These have been the perennial objections, notwithstanding
uniform rejection in cases involving interference with both
political and civil rights.
Cf. the authorities cited in
notes
325 U.S.
91fn2/7|>7,
325 U.S.
91fn2/10|>10,
325 U.S.
91fn2/22|>22 and
325 U.S.
91fn2/25|>25.
[
Footnote 2/27]
Compare United States v. Chaplin, 54 F. Supp.
926 (
see 325 U.S.
91fn2/25|>note 25
supra),
with Ex parte
Virginia, 100 U. S. 339.
[
Footnote 2/28]
Cf. United States v. Buntin, 10 F. 730.
[
Footnote 2/29]
Cf. authorities cited in notes
325 U.S.
91fn2/7|>7,
325 U.S.
91fn2/10|>10,
325 U.S.
91fn2/22|>22 and
325 U.S.
91fn2/25|>25.
[
Footnote 2/30]
Cf. 325 U. S.
[
Footnote 2/31]
Compare the statute upheld in
Chaplinsky v. New
Hampshire, 315 U. S. 568,
315 U. S.
573-574;
Gorin v. United States, 312 U. S.
19,
312 U. S. 23-28;
Minnesota v. Probate Court, 309 U.
S. 270,
309 U. S. 274;
Old Dearborn Co. v. Seagram Corp., 299 U.
S. 183,
299 U. S. 196;
Bandini Petrolesum Co. v. Superior Court, 284 U. S.
8,
284 U. S. 18;
Whitney v. California, 274 U. S. 357,
274 U. S. 360,
274 U. S.
368-369;
Fox v. Washington, 236 U.
S. 273,
236 U. S.
277-278;
United States v. Keitel, 211 U.
S. 370,
211 U. S.
393-395.
[
Footnote 2/32]
I think all this would be implied if "willfully" had not been
added to § 20 by amendment. The addition but reinforces the
original purpose.
Cf. 325 U.S.
91fn2/13|>note 13
supra. Congress, in this
legislation, hardly can be taken to have sought to punish merely
negligent conduct or honest error of judgment by state officials.
The aim was at grosser violations of basic rights and the supreme
law. Sensible construction of the language, with other
considerations, requires this view. The consistent course of the
section's application supports it.
[
Footnote 2/33]
See Flack, Adoption of the Fourteenth Amendment (1908)
22-3; Cong.Globe, 39th Cong., 1st Sess., 474-607, 1151 ff.
Senator Davis of Kentucky said that
"this short bill repeals all the penal laws of the States. . . .
The cases . . . the . . . bill would bring up every day in the
United States would be as numerous as the passing minutes. The
result would be to utterly subvert our Government. . . ."
Cong.Globe, 39th Cong., 1st Sess., 598.
[
Footnote 2/34]
Cf. 325 U.S.
91fn2/8|>note 8.
MR. JUSTICE MURPHY, dissenting.
I dissent. Robert Hall, a Negro citizen, has been deprived not
only of the right to be tried by a court, rather than by ordeal. He
has been deprived of the right to life itself. That right belonged
to him not because he was a Negro or a member of any particular
race or creed. That right was his because he was an American
citizen, because
Page 325 U. S. 135
he was a human being. As such, he was entitled to all the
respect and fair treatment that befits the dignity of man, a
dignity that is recognized and guaranteed by the Constitution. Yet
not even the semblance of due process has been accorded him. He has
been cruelly and unjustifiably beaten to death by local police
officers acting under color of authority derived from the state. It
is difficult to believe that such an obvious and necessary right is
indefinitely guaranteed by the Constitution or is foreign to the
knowledge of local police officers so as to cast any reasonable
doubt on the conviction under § 20 of the Criminal Code of the
perpetrators of this "shocking and revolting episode in law
enforcement."
The Constitution and § 20 must be read together inasmuch as § 20
refers in part to certain provisions of the Constitution. Section
20 punishes anyone, acting under color of any law, who willfully
deprives any person of any right, privilege or immunity secured or
protected by the Constitution or laws of the United States. The
pertinent part of the Constitution in this instance is § 1 of the
Fourteenth Amendment, which firmly and unmistakably provides that
no state shall deprive any person of life without due process of
law. Translated in light of this specific provision of the
Fourteenth Amendment, § 20 thus punishes anyone, acting under color
of state law, who willfully deprives any person of life without due
process of law. Such is the clear statutory provision upon which
this conviction must stand or fall.
A grave constitutional issue, however, is said to lurk in the
alleged indefiniteness of the crime outlawed by § 20. The rights,
privileges and immunities secured or protected by the Constitution
or laws of the United States are claimed to be so uncertain and
flexible, dependent upon changeable legal concepts, as to leave a
state official confused and ignorant as to what actions of his
might run afoul of the law. The statute, it is concluded, must be
set aside for vagueness.
Page 325 U. S. 136
It is axiomatic, of course, that a criminal statute must give a
clear and unmistakable warning as to the acts which will subject
one to criminal punishment. And courts are without power to supply
that which Congress has left vague. But this salutary principle
does not mean that, if a statute is vague as to certain criminal
acts but definite as to others, the entire statute must fall. Nor
does it mean that, in the first case involving the statute to come
before us, we must delineate all the prohibited acts that are
obscure and all those that are explicit.
Thus, it is idle to speculate on other situations that might
involve § 20 which are not now before us. We are unconcerned here
with state officials who have coerced a confession from a prisoner,
denied counsel to a defendant, or made a faulty tax assessment.
Whatever doubt may exist in those or in other situations as to
whether the state officials could reasonably anticipate and
recognize the relevant constitutional rights is immaterial in this
case. Our attention here is directed solely to three state
officials who, in the course of their official duties, have
unjustifiably beaten and crushed the body of a human being, thereby
depriving him of trial by jury and of life itself. The only
pertinent inquiry is whether § 20, by its reference to the
Fourteenth Amendment guarantee that no state shall deprive any
person of life without due process of law, gives fair warning to
state officials that they are criminally liable for violating this
right to life.
Common sense gives an affirmative answer to that problem. The
reference in § 20 to rights protected by the Constitution is
manifest and simple. At the same time, the right not to be deprived
of life without due process of law is distinctly and lucidly
protected by the Fourteenth Amendment. There is nothing vague or
indefinite in these references to this most basic of all human
rights. Knowledge of a comprehensive law library is unnecessary for
officers of the law to know that the right to murder
Page 325 U. S. 137
individuals in the course of their duties is unrecognized in
this nation. No appreciable amount of intelligence or conjecture on
the part of the lowliest state official is needed for him to
realize that fact; nor should it surprise him to find out that the
Constitution protects persons from his reckless disregard of human
life, and that statutes punish him therefor. To subject a state
official to punishment under § 20 for such acts is not to penalize
him without fair and definite warning. Rather, it is to uphold
elementary standards of decency, and to make American principles of
law and our constitutional guarantees mean something more than
pious rhetoric.
Under these circumstances, it is unnecessary to send this case
back for a further trial on the assumption that the jury was not
charged on the matter of the willfulness of the state officials, an
issue that was not raised below or before us. The evidence is more
than convincing that the officials willfully, or at least with
wanton disregard of the consequences, deprived Robert Hall of his
life without due process of law. A new trial could hardly make that
fact more evident; the failure to charge the jury on willfulness
was, at most, an inconsequential error. Moreover, the presence or
absence of willfulness fails to decide the constitutional issue
raised before us. Section 20 is very definite and certain in its
reference to the right to life as spelled out in the Fourteenth
Amendment quite apart from the state of mind of the state
officials. A finding of willfulness can add nothing to the clarity
of that reference.
It is an illusion to say that the real issue in this case is the
alleged failure of § 20 fully to warn the state officials that
their actions were illegal. The Constitution, § 20, and their own
consciences told them that. They knew that they lacked any mandate
or authority to take human life unnecessarily or without due
process of law in the course of their duties. They knew that their
excessive and abusive
Page 325 U. S. 138
use of authority would only subvert the ends of justice. The
significant question, rather, is whether law enforcement officers
and those entrusted with authority shall be allowed to violate with
impunity the clear constitutional rights of the inarticulate and
the friendless. Too often, unpopular minorities such as Negroes are
unable to find effective refuge from the cruelties of bigoted and
ruthless authority. States are undoubtedly capable of punishing
their officers who commit such outrages. But where, as here, the
states are unwilling for some reason to prosecute such crimes, the
federal government must step in unless constitutional guarantees
are to become atrophied.
This necessary intervention, however, will be futile if courts
disregard reality and misuse the principle that criminal statutes
must be clear and definite. Here, state officers have violated with
reckless abandon a plain constitutional right of an American
citizen. The two courts below have found and the record
demonstrates that the trial was fair and the evidence of guilt
clear. And § 20 unmistakably outlaws such actions by state
officers. We should therefore affirm the judgment.
MR. JUSTICE ROBERTS, MR. JUSTICE FRANKFURTER and MR. JUSTICE
JACKSON, dissenting.
Three law enforcement officers of Georgia, a county sheriff, a
special deputy and a city policeman, arrested a young Negro charged
with a local crime, that of stealing a tire. While he was in their
custody and handcuffed, they so severely beat the lad that he died.
This brutal misconduct rendered these lawless law officers guilty
of manslaughter, if not of murder, under Georgia law. Instead of
leaving this misdeed to vindication by Georgia law, the United
States deflected Georgia's responsibility by instituting a federal
prosecution. But this was a criminal homicide only under Georgia
law. The United States could not prosecute the petitioners for
taking life. Instead,
Page 325 U. S. 139
a prosecution was brought, and the conviction now under review
was obtained under § 20 of the Criminal Code, 18 U.S.C. § 52.
Section 20, originating in § 2 of the Civil Rights Act of April 9,
1866, 14 Stat. 27, was put on the statute books on May 31, 1870,
but, for all practical purposes, it has remained a dead letter all
these years. This section provides that
"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 and laws of the
United States . . . shall be fined not more than one thousand
dollars, or imprisoned not more than one year, or both."
Under § 37 of the Criminal Code, 18 U.S.C. § 88, a conspiracy to
commit any federal offense is punishable by imprisonment for two
years. The theory of this prosecution is that one charged with
crime is entitled to due process of law, and that that includes the
right to an orderly trial of which the petitioners deprived the
Negro.
Of course, the petitioners are punishable. The only issue is
whether Georgia alone has the power and duty to punish, or whether
this patently local crime can be made the basis of a federal
prosecution. The practical question is whether the States should be
relieved from responsibility to bring their law officers to book
for homicide by allowing prosecutions in the federal courts for a
relatively minor offense carrying a short sentence. The legal
question is whether, for the purpose of accomplishing this
relaxation of State responsibility, hitherto settled principles for
the protection of civil liberties shall be bent and tortured.
I
By the Thirteenth Amendment, slavery was abolished. In order to
secure equality of treatment for the emancipated, the Fourteenth
Amendment was adopted at the
Page 325 U. S. 140
same time. To be sure, the latter Amendment has not been
confined to instances of discrimination because of race or color.
Undoubtedly, however, the necessary protection of the new freedmen
was the most powerful impulse behind the Fourteenth Amendment. The
vital part of that Amendment, § 1, reads as follows:
"All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection
of the laws."
By itself, this Amendment is merely an instrument for striking
down action by the States in defiance of it. It does not create
rights and obligations actively enforceable by federal law.
However, like all rights secured by the Constitution of the United
States, those created by the Fourteenth Amendment could be enforced
by appropriate federal legislation. The general power of Congress
to pass measures effectuating the Constitution is given by Art. I,
§ 8, cl. 18 -- the Necessary and Proper Clause. In order to
indicate the importance of enforcing the guarantees of Amendment
XIV, its fifth section specifically provides: "The Congress shall
have power to enforce, by appropriate legislation, the provisions
of this article."
Accordingly, Congress passed various measures for its
enforcement. It is familiar history that much of this legislation
was born of that vengeful spirit which to no small degree envenomed
the Reconstruction era. Legislative respect for constitutional
limitations was not at its height and Congress passed laws clearly
unconstitutional.
See Civil Rights Cases, 109 U. S.
3. One of the laws of this period was the Act of May 31,
1870, 16 Stat. 140. In its
Page 325 U. S. 141
present form, as § 20, it is now here for the first time on full
consideration as to its meaning and its constitutionality,
unembarrassed by preoccupation both on the part of counsel and
Court with the more compelling issue of the power of Congress to
control State procedure for the election of federal officers. If §
20 were read as other legislation is read, by giving it the meaning
which its language in its proper setting naturally and
spontaneously yields, it is difficult to believe that there would
be real doubt about the proper construction. The unstrained
significance of the words chosen by Congress, the disclosed purpose
for which they were chosen and to which they were limited, the
always relevant implications of our federal system, especially in
the distribution of power and responsibility for the enforcement of
the criminal law as between the States and the National Government,
all converge to make plain what conduct Congress outlawed by the
Act of 1870 and what, impliedly, it did not.
The Fourteenth Amendment prohibited a State from so acting as to
deprive persons of new federal rights defined by it. Section 5 of
the Amendment specifically authorized enabling legislation to
enforce that prohibition. Since a State can act only through its
officers, Congress provided for the prosecution of any officer who
deprives others of their guaranteed rights and denied such an
officer the right to defend by claiming the authority of the State
for his action. In short, Congress said that no State can empower
an officer to commit acts which the Constitution forbade the State
from authorizing, whether such unauthorized command be given for
the State by its legislative or judicial voice, or by a custom
contradicting the written law.
See Nashville, C. & St.L. R.
Co. v. Browning, 310 U. S. 362,
310 U. S. 369.
The present prosecution is not based on an officer's claim that
that for which the United States seeks his punishment was commanded
or authorized by the law of his State. On the contrary,
Page 325 U. S. 142
the present prosecution is based on the theory that Congress
made it a federal offense for a State officer to violate the
explicit law of his State. We are asked to construe legislation
which was intended to effectuate prohibitions against States for
defiance of the Constitution, to be equally applicable where a
State duly obeys the Constitution, but an officer flouts State law
and is unquestionably subject to punishment by the State for his
disobedience.
So to read § 20 disregards not merely the normal function of
language to express ideas appropriately. It fails not merely to
leave to the States the province of local crime enforcement, that
the proper balance of political forces in our federalism requires.
It does both heedless of the Congressional purpose, clearly evinced
even during the feverish Reconstruction days, to leave undisturbed
the power and the duty of the States to enforce their criminal law
by restricting federal authority to the punishment only of those
persons who violate federal rights under claim of State authority,
and not by exerting federal authority against offenders of State
authority. Such a distortion of federal power devised against
recalcitrant State authority never entered the minds of the
proponents of the legislation.
Indeed, we have the weightiest evidence to indicate that they
rejected that which now, after seventy-five years, the Government
urges. Section 20 of the Criminal Code derived from § 2 of the
Civil Rights Act of 1866, 14 Stat. 27. During the debate on that
section, Senator Trumbull, the Chairman of the Senate Judiciary
Committee, answered fears concerning the loose inclusiveness of the
phrase "color of law." In particular, opponents of the Act were
troubled lest it would make criminals of State judges and officials
for carrying out their legal duties. Senator Trumbull agreed that
they would be guilty if they consciously helped to enforce
discriminatory State
Page 325 U. S. 143
legislation. Federal law, replied Senator Trumbull, was directed
against those, and only against those, who were not punishable by
State law precisely because they acted in obedience to
unconstitutional State law, and by State law justified their
action. Said Senator Trumbull,
"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."
Cong.Globe, 39th Cong., 1st Sess., p. 1758. And this language
applies equally to § 17 of the Act of May 31, 1870, 16 Stat. 140,
144 (now § 20 of the Criminal Code), which reenacted the Civil
Rights Act.
That this legislation was confined to attempted deprivations of
federal rights by State law, and was not extended to breaches of
State law by its officials, is likewise confirmed by observations
of Senator Sherman, another leading Reconstruction statesman. When
asked about the applicability of the 1870 Act to a Negro's right to
vote when State law provided for that right, Senator Sherman
replied,
"That is not the case with which we are dealing. I intend to
propose an amendment to present a question of that kind. 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. My honorable friend from California has not
read this bill with his usual care if he does not see that that
runs through the whole of the provisions of the first and second
sections of the bill, which
Page 325 U. S. 144
simply punish officers as well as persons for discrimination
under color of State laws or constitutions, and so it provides all
the way through."
Cong.Globe, 41st Cong., 2d Sess., p. 3663. The debates in
Congress are barren of any indication that the supporters of the
legislation now before us had the remotest notion of authorizing
the National Government to prosecute State officers for conduct
which their State had made a State offense where the settled custom
of the State did not run counter to formulated law.
Were it otherwise, it would indeed be surprising. It was natural
to give the shelter of the Constitution to those basic human rights
for the vindication of which the successful conduct of the Civil
War was the end of a long process. And the extension of federal
authority so as to guard against evasion by any State of these
newly created federal rights was an obvious corollary. But to
attribute to Congress the making overnight of a revolutionary
change in the balance of the political relations between the
National Government and the States without reason is a very
different thing. And to have provided for the National Government
to take over the administration of criminal justice from the States
to the extent of making every lawless act of the policeman on the
beat or in the stationhouse, whether by way of third degree or the
illegal ransacking for evidence in a man's house (
see Gouled v.
United States, 255 U. S. 298;
Byars v. United States, 273 U. S. 28;
Brown v. Mississippi, 297 U. S. 278;
Chambers v. Florida, 309 U. S. 227), a
federal offense would have constituted a revolutionary break with
the past overnight. The desire for such a dislocation in our
federal system plainly was not contemplated by the Lyman Trumbulls
and the John Shermans, and not even by the Thaddeus Stevenses.
Regard for maintaining the delicate balance "between the
judicial tribunals of the Union and of the States" in
Page 325 U. S. 145
the enforcement of the criminal law has informed this Court, as
it has influenced Congress,
"in recognition of the fact that the public good requires that
those relations be not disturbed by unnecessary conflict between
courts equally bound to guard and protect rights secured by the
Constitution."
Ex parte Royall, 117 U. S. 241,
117 U. S. 251.
Observance of this basic principle under our system of Government
has led this Court to abstain, even under more tempting
circumstances than those now here, from needless extension of
federal criminal authority into matters that normally are of State
concern, and for which the States had best be charged with
responsibility.
We have reference to § 33 of the Judicial Code, as amended, 28
U.S.C. § 76. That provision gives the right of removal to a federal
court of any criminal prosecution begun in a State court against a
revenue officer of the United States "on account of any act done
under color of his office or of any such [revenue] law." Where a
State prosecution for manslaughter is resisted by the claim that
what was done was justifiably done by a United States officer, one
would suppose that this Court would be alert to construe very
broadly "under color of his office or of any such law" in order to
avoid the hazards of trial, whether through conscious or
unconscious discrimination or hostility, of a United States officer
accused of homicide, and to assure him a trial in a presumably more
impartial federal court. But this Court long ago indicated that
misuse of federal authority does not come within the statute's
protection.
Tennessee v. Davis, 100 U.
S. 257,
100 U. S.
261-262. More recently, this Court, in a series of
cases, unanimously insisted that a petition for removal must show
with particularity that the offense for which the State is
prosecuting resulted from a discharge of federal duty.
"It must appear that the prosecution of him, for whatever
offense, has arisen out of the acts done by him under color of
federal authority and in enforcement of federal law, and
Page 325 U. S. 146
he must, by direct averment, exclude the possibility that it was
based on acts or conduct of his not justified by his federal duty.
. . . The defense he is to make is that of his immunity from
punishment by the State, because what he did was justified by his
duty under the federal law and because he did nothing else on which
the prosecution could be based."
Maryland v. Soper (No. 1), 270 U. S.
9,
270 U. S. 33.
And see Maryland v. Soper (No. 2), 270 U. S.
36;
Maryland v. Soper (No. 3), 270 U. S.
44;
Colorado v. Symes, 286 U.
S. 510. To the suggestion that such a limited
construction of the removal statute enacted for the protection of
the United States officers would restrict its effectiveness, the
answer was that, if Congress chose to afford even greater
protection and to withdraw from the States the right and duty to
enforce their criminal law in their own courts, it should express
its desire more specifically.
Maryland v. Soper (No. 2),
270 U. S. 36,
270 U. S. 42,
270 U. S. 44. That
answer should be binding in the situation now before us.
The reasons which led this Court to give such a restricted scope
to the removal statute are even more compelling as to § 20. The
matter concerns policies inherent in our federal system and the
undesirable consequences of federal prosecution for crimes which
are obviously and predominantly State crimes, no matter how much
sophisticated argumentation may give them the appearance of federal
crimes. Congress has not expressed a contrary purpose, either by
the language of its legislation or by anything appearing in the
environment out of which its language came. The practice of
government for seventy-five years likewise speaks against it. Nor
is there a body of judicial opinion which bids us find in the
unbridled excess of a State officer, constituting a crime under his
State law, action taken "under color of law" which federal law
forbids.
Only two reported cases considered § 20 before
United States
v. Classic, 313 U. S. 299. In
United States v. Buntin,
Page 325 U. S. 147
10 F. 730, a teacher, in reliance on a State statute, refused
admittance to a colored child, while in
United States v.
Stone, 188 F. 83, election supervisors who acted under a
Maryland election law were held to act "under color of law." In
neither case was there a patent violation of State law, but rather
an attempt at justification under State law.
United States v.
Classic, supra, is the only decision that looks the other way.
In that case, primary election officials were held to have acted
"under color of law" even though the acts complained of as a
federal offense were likewise condemned by Louisiana law. The truth
of the matter is that the focus of attention in the
Classic case was not our present problem, but was the
relation of primaries to the protection of the electoral process
under the United States Constitution. The views in the
Classic case thus reached ought not to stand in the way of
a decision on the merits of a question which has now, for the first
time, been fully explored, and its implications for the workings of
our federal system have been adequately revealed.
It was assumed quite needlessly in the
Classic case
that the scope of § 20 was coextensive with the Fourteenth
Amendment. Because the weight of the case was elsewhere, we did not
pursue the difference between the power granted to Congress by that
Amendment to bar "any State" from depriving persons of the newly
created constitutional rights and the limited extent to which
Congress exercised that power, in what is now § 20, by making it an
offense for one acting "under color of any law" to deprive another
of such constitutional rights. It may well be that Congress could,
within the bounds of the Fourteenth Amendment, treat action taken
by a State official even though in defiance of State law and not
condoned by ultimate State authority as the action of "a State." It
has never been satisfactorily explained how a State can be said to
deprive a person of liberty or property without
Page 325 U. S. 148
due process of law when the foundation of the claim is that a
minor official has disobeyed the authentic command of his State.
See Raymond v. Chicago Traction Co., 207 U. S.
20,
207 U. S. 40,
207 U. S. 41.
Although action taken under such circumstances has been deemed to
be deprivation by a "State" of rights guaranteed by the Fourteenth
Amendment for purposes of federal jurisdiction, the doctrine has
had a fluctuating and dubious history.
Compare Barney v. City
of New York, 193 U. S. 430,
with Raymond v. Chicago Traction Co., supra; Memphis v.
Cumberland Telephone Co., 218 U. S. 624,
with Home Tel. & Tel. Co. v. Los Angeles, 227 U.
S. 278.
Barney v. City of New York, supra,
which ruled otherwise, although questioned, has never been
overruled.
See, for instance, Iowa-Des Moines Bank v.
Bennett, 284 U. S. 239,
284 U. S.
246-247, and
Snowden v. Hughes, 321 U. S.
1,
321 U. S. 13.
*
But assuming unreservedly that conduct such as that now before
us, perpetrated by State officers in flagrant defiance of State
law, may be attributed to the State under the Fourteenth Amendment,
this does not make it action under "color of any law." Section 20
is much narrower than the power of Congress. Even though Congress
might have swept within the federal criminal law any action that
could be deemed within the vast reach of the Fourteenth Amendment,
Congress did not do so. The presuppositions of our federal system,
the pronouncements of the statesmen who shaped this legislation,
and the normal meaning of language powerfully counsel against
attributing to Congress intrusion into the sphere of criminal law
traditionally
Page 325 U. S. 149
and naturally reserved for the States alone. When due account is
taken of the considerations that have heretofore controlled the
political and legal relations between the States and the National
Government, there is not the slightest warrant in the reason of
things for torturing language plainly designed for nullifying a
claim of acting under a State law that conflicts with the
Constitution so as to apply to situations where State law is in
conformity with the Constitution and local misconduct is in
undisputed violation of that State law. In the absence of clear
direction by Congress, we should leave to the States the
enforcement of their criminal law, and not relieve States of the
responsibility for vindicating wrongdoing that is essentially local
or weaken the habits of local law enforcement by tempting reliance
on federal authority for an occasional unpleasant task of local
enforcement.
II
In our view, then, the Government's attempt to bring an
unjustifiable homicide by local Georgia peace officers within the
defined limits of the federal Criminal Code cannot clear the first
hurdle of the legal requirement that that which these officers are
charged with doing must be done under color of Georgia law.
Since the majority of the Court do not share this conviction
that the action of the Georgia peace officers was not perpetrated
under color of law, we, too, must consider the constitutionality of
§ 20. All but two members of the Court apparently agree that,
insofar as § 20 purports to subject men to punishment for crime, it
fails to define what conduct is made criminal. As misuse of the
criminal machinery is one of the most potent and familiar
instruments of arbitrary government, proper regard for the rational
requirement of definiteness in criminal statutes is basic to civil
liberties. As such, it is included in the constitutional guaranty
of due process of law. But four
Page 325 U. S. 150
members of the Court are of the opinion that this plain
constitutional principle of definiteness in criminal statutes may
be replaced by an elaborate scheme of constitutional exegesis
whereby that which Congress has not defined the courts can define
from time to time, with varying and conflicting definiteness in the
decisions, and that, in any event, an undefined range of conduct
may become sufficiently definite if only such undefined conduct is
committed "willfully."
In subjecting to punishment "deprivation of any rights,
privileges, or immunities secured or protected by the Constitution
and laws of the United States," § 20, on its face, makes criminal
deprivation of the whole range of undefined appeals to the
Constitution. Such is the true scope of the forbidden conduct. Its
domain is unbounded, and therefore too indefinite. Criminal
statutes must have more or less specific contours. This has
none.
To suggest that the "right" deprivation of which is made
criminal by § 20 "has been made specific either by the express
terms of the Constitution or by decisions interpreting it" hardly
adds definiteness beyond that of the statute's own terms. What
provision is to be deemed "specific" "by the express terms of the
Constitution," and what not "specific"? If the First Amendment
safeguarding free speech be a "specific" provision, what about the
Fourth? "All unreasonable searches and seizures are absolutely
forbidden by the Fourth Amendment."
Nathanson v. United
States, 290 U. S. 41,
290 U. S. 46.
Surely each is among the "rights, privileges, or immunities secured
or protected by the Constitution," deprivation of which is a crime
under § 20. In any event, what are the criteria by which to
determine what express provisions of the Constitution are
"specific" and what provisions are not "specific"? And if the terms
of § 20, in and of themselves, are lacking in sufficient
definiteness for a criminal statute, restriction within the
framework of "decisions interpreting"
Page 325 U. S. 151
the Constitution cannot show the necessary definiteness. The
illustrations given in the Court's opinion underline the
inescapable vagueness due to the doubts and fluctuating character
of decisions interpreting the Constitution.
This intrinsic vagueness of the terms of § 20 surely cannot be
removed by making the statute applicable only where the defendant
has the "requisite bad purpose." Does that not amount to saying
that the black heart of the defendant enables him to know what are
the constitutional rights deprivation of which the statute forbids,
although we, as judges, are not able to define their classes or
their limits, or, at least, are not prepared to state what they are
unless it be to say that § 20 protects whatever rights the
Constitution protects?
Under the construction proposed for § 20, in order for a jury to
convict, it would be necessary "to find that petitioners had the
purpose to deprive the prisoner of a constitutional right,
e.g., the right to be tried by a court, rather than by
ordeal." There is no question that Congress could provide for a
penalty against deprivation by State officials "acting under color
of any law" of "the right to be tried by a court, rather than by
ordeal." But we cannot restrict the problem raised by § 20 to the
validity of penalizing a deprivation of this specific
constitutional right. We are dealing with the reach of the statute,
for Congress has not particularized as the Court now
particularizes. Such transforming interpolation is not
interpretation. And that is recognized by the sentence just quoted,
namely, that the jury, in order to convict under § 20, must find
that an accused "had the purpose to deprive" another "of a
constitutional right," giving this specific constitutional right as
"
e.g.," by way of illustration. Hence, a judge would have
to define to the jury what the constitutional rights are
deprivation of which is prohibited by § 20. If that is a legal
question as to which
Page 325 U. S. 152
the jury must take instruction from the court, at least the
trial court must be possessed of the means of knowing with
sufficient definiteness the range of "rights" that are
"constitutional." The court can hardly be helped out in determining
that legal question by leaving it to the jury to decide whether the
act was "willfully" committed.
It is not conceivable that this Court would find that a statute
cast in the following terms would satisfy the constitutional
requirement for definiteness:
"Whoever WILLFULLY commits any act which the Supreme Court of
the United States shall find to be a deprivation of any right,
privilege, or immunity secured or protected by the Constitution
shall be imprisoned not more than, etc."
If such a statute would fall for uncertainty, wherein does § 20,
as construed by the Court, differ, and how can it survive?
It was settled early in our history that prosecutions in the
federal courts could not be founded on any undefined body of
so-called common law.
United States v.
Hudson, 7 Cranch 32;
United
States v. Gooding, 12 Wheat. 460. Federal
prosecutions must be founded on delineation by Congress of what is
made criminal. To base federal prosecutions on the shifting and
indeterminate decisions of courts is to sanction prosecutions for
crimes based on definitions made by courts. This is tantamount to
creating a new body of federal criminal common law.
It cannot be too often emphasized that as basic a difference as
any between our notions of law and those of legal systems not
founded on Anglo-American conceptions of liberty is that crimes
must be defined by the legislature. The legislature does not meet
this requirement by issuing a blank check to courts for their
retrospective finding that some act done in the past comes within
the contingencies and conflicts that inhere in ascertaining the
content of the Fourteenth Amendment by "the gradual process of
Page 325 U. S. 153
judicial inclusion and exclusion."
Davidson v. New
Orleans, 96 U. S. 97,
96 U. S. 104.
Therefore, to subject to criminal punishment conduct that the court
may eventually find to have been within the scope or the
limitations of a legal doctrine underlying a decision is to satisfy
the vital requirement for definiteness through an appearance of
definiteness in the process of constitutional adjudication which
every student of law knows not to comport with actuality. What the
Constitution requires is a definiteness defined by the legislature,
not one argumentatively spelled out through the judicial process
which, precisely because it is a process, cannot avoid
incompleteness. A definiteness which requires so much subtlety to
expound is hardly definite.
It is as novel as it is an inadmissible principle that a
criminal statute of indefinite scope can be rendered definite by
requiring that a person "willfully" commit what Congress has not
defined but which, if Congress had defined, could constitutionally
be outlawed. Of course, Congress can prohibit the deprivation of
enumerated constitutional rights. But if Congress makes it a crime
to deprive another of any right protected by the Constitution --
and that is what § 20 does -- this Court cannot escape facing
decisions as to what constitutional rights are covered by § 20 by
saying that, in any event, whatever they are, they must be taken
away "willfully." It has not been explained how all the
considerations of unconstitutional vagueness which are laid bare in
the early part of the Court's opinion evaporate by suggesting that
what is otherwise too vaguely defined must be "willfully"
committed.
In the early law, an undesired event attributable to a
particular person was punished regardless of the state of mind of
the actor. The rational development of criminal liability added a
mental requirement for criminal culpability, except in a limited
class of cases not here relevant. (
See United States v.
Balint, 258 U. S. 250.)
That requisite
Page 325 U. S. 154
mental ingredient is expressed in various forms in criminal
statutes, of which the word "willfully" is one of the most common.
When a criminal statute prohibits something from being "willfully"
done, "willfully" never defines the physical conduct or the result
the bringing of which to pass is proscribed. "Willfully" merely
adds a certain state of mind as a prerequisite to criminal
responsibility for the otherwise proscribed act. If a statute does
not satisfy the due process requirement of giving decent advance
notice of what it is which, if happening, will be visited with
punishment, so that men may presumably have an opportunity to avoid
the happening (
see International Harvester Co. v.
Kentucky, 234 U. S. 216;
Collins v. Kentucky, 234 U. S. 634;
United. States v. Cohen Grocery Co., 255 U. S.
81;
Cline v. Frink Dairy Co., 274 U.
S. 445), then "willfully" bringing to pass such an
undefined and too uncertain event cannot make it sufficiently
definite and ascertainable. "Willfully" doing something that is
forbidden, when that something is not sufficiently defined
according to the general conceptions of requisite certainty in our
criminal law, is not rendered sufficiently definite by that
unknowable having been done "willfully." It is true also of a
statute that it cannot lift itself up by its bootstraps.
Certainly these considerations of vagueness imply
unconstitutionality of the Act, at least until 1909. For it was not
until 1909 that the word "willfully" was introduced. But the
legislative history of that addition affords no evidence whatever
that anybody thought that "willfully" was added to save the statute
from unconstitutionality. The Joint Committee of Congress on the
Revision of Laws (which sponsored what became the Criminal Code)
gives no such indication, for it did not propose "willfully"; the
reports in neither House of Congress shed any light on the subject,
for the bill in neither House proposed that "willfully" be added;
no speech by anyone in charge of the
Page 325 U. S. 155
bill in either House sheds any light on the subject; the report
of the Conference Committee, from which "willfully" for the first
time emerges, gives no explanation whatever, and the only reference
we have is that to which the Court's opinion refers (43 Cong.Rec.
p. 3599). And that is an unilluminating remark by Senator Daniel of
Virginia, who had no responsibility for the measure and who made
the remark in the course of an exchange with Senator Heyburn of
Idaho, who was in charge of the measure and who complained of an
alleged attitude on the part of Southern members to filibuster
against the bill because of the retention of Reconstruction
legislation.
All this bears not merely on the significance of "willfully" in
a presumably otherwise unconstitutionally vague statute. It also
bears on the fact that, for the purpose of constitutionality, we
are dealing not with an old statute that goes back to the
Reconstruction days, but only to 1909.
Nor can support be found in the opinions of this Court for the
proposition that "willfully" can make definite prohibitions
otherwise indefinite.
In
Omaechevarria v. Idaho, 246 U.
S. 343, the Court sustained an Idaho statute prohibiting
any person having charge of sheep from allowing them to graze "upon
any range usually occupied by any cattle grower." The statute was
attacked under the Due Process Clause in that it failed to provide
for the ascertainment of the boundaries of a "range" or for
determining what length of time is necessary to constitute a prior
occupation a "usual" one within the meaning of the Act. This attack
upon the Idaho statute was rejected and for the following
reasons:
"Men familiar with range conditions and desirous of observing
the law will have little difficulty in determining what is
prohibited by it. Similar expressions are common in the criminal
statutes of other [grazing] States. This
Page 325 U. S. 156
statute presents no greater uncertainty or difficulty, in
application to necessarily varying facts, than has been repeatedly
sanctioned by this court."
246 U.S. at
246 U. S.
348.
Certainly there is no comparison between a statute employing the
concept of a western range and a statute outlawing the whole range
of constitutional rights, unascertained if not unascertainable.
To be sure, the opinion of Mr. Justice Brandeis also brought to
its support § 6314 of Revised Codes of Idaho, which provided that,
"[i]n every crime or public offense there must exist a union, or
joint operation, of act and intent, or criminal negligence." But
this is merely an Idaho phrasing of the conventional saw in text
books and decisions dealing with criminal law that there must be a
mens rea for every offense. In other words, a guilty state
of mind is usually required before one can be punished for an
outlawed act. But the definition of the outlawed act is not derived
from the state of mind with which it must be committed. All that
Mr. Justice Brandeis meant by "indefiniteness" in the context of
this statute was the claim that the statute did not give enough
notice as to the act which was outlawed. But notice was given by
the common knowledge of what a "range" was, and, for good measure,
he suggested that, under the Act, a man would have to know that he
was grazing sheep where he had no business to graze them. There is
no analogy between the face of this Idaho statute and the face of
our statute. The essential difference is that, in the Idaho
statute, the outlawed act was defined; in § 20, it is
undefined.
In
Hygrade Provision Co. v. Sherman, 266 U.
S. 497, New York punished the misrepresentation of meat
as "kosher" or as satisfying "orthodox Hebrew religious
requirements." Here, too, the objection of indefiniteness was
rejected by this Court. The objection bordered on the frivolous. In
this case, too, the opinion of the Court, as is the way of
opinions, softened the blow by saying that
Page 325 U. S. 157
there was no danger of anyone's being convicted for not knowing
what he was doing, for it required him to have consciousness that
he was offering meat as "kosher" meat when he knew very well that
it was not.
Thus, in both these cases, this Court was saying that the
criminal statutes under scrutiny, although very specific, did not
expose any innocent person to the hazards of unfair conviction,
because not merely did the legislation outlaw specifically defined
conduct, but guilty knowledge of such defined criminality was also
required. It thereby took the legislation outside the scope of
United States v. Balint, 258 U. S. 250, in
which the Court sustained the prosecution of one wholly innocent of
knowledge of the act, commission of which the statute explicitly
forbade.
This case does not involve denying adequate power to Congress.
There is no difficulty in passing effective legislation for the
protection of civil rights against improper State action. What we
are concerned with here is something basic in a democratic society,
namely, the avoidance of the injustice of prohibiting conduct in
terms so vague as to make the understanding of what is proscribed a
guess-work too difficult for confident judgment even for the judges
of the highest Court in the land.
III
By holding, in this case, that State officials who violate State
law nevertheless act "under color of" State law, and by
establishing as federal crimes violations of the vast, undisclosed
range of the Fourteenth Amendment, this Court now creates new
delicate and complicated problems for the enforcement of the
criminal law. The answers given to these problems, in view of the
tremendous scope of potential offenses against the Fourteenth
Amendment, are bound to produce a confusion detrimental to the
administration of criminal justice.
The Government recognizes that "this is the first case brought
before this Court in which § 20 has been applied
Page 325 U. S. 158
to deprivations of rights secured by the Fourteenth Amendment."
It is not denied that the Government's contention would make a
potential offender against this act of any State official who as a
judge admitted a confession of crime, or who as judge of a State
court of last resort sustained admission of a confession, which we
should later hold constitutionally inadmissible, or who as a public
service commissioner issued a regulatory order which we should
later hold denied due process or who as a municipal officer stopped
any conduct we later should hold to be constitutionally protected.
The Due Process Clause of the Fourteenth Amendment has a content
the scope of which this Court determines only as cases come here
from time to time, and then not without close division and
reversals of position. Such a dubious construction of a criminal
statute should not be made unless language compels.
That such a pliable instrument of prosecution is to be feared
appears to be recognized by the Government. It urges three
safeguards against abuse of the broad powers of prosecution for
which it contends. (1) Congress, it says, will supervise the
Department's policies and curb excesses by withdrawal of funds. It
surely is casting an impossible burden upon Congress to expect it
to police the propriety of prosecutions by the Department of
Justice. Nor would such detailed oversight by Congress make for the
effective administration of the criminal law. (2) The Government
further urges that, since prosecutions must be brought in the
district where the crime was committed, the judge and jurors of
that locality can be depended upon to protect against federal
interference with State law enforcement. Such a suggestion would,
for practical purposes, transfer the functions of this Court, which
adjudicates questions concerning the proper relationship between
the federal and State governments, to jurors whose function is to
resolve factual questions. Moreover,
Page 325 U. S. 159
if federal and State prosecutions are subject to the same
influences, it is difficult to see what need there is for taking
the prosecution out of the hands of the State. After all, Georgia
citizens sitting as a federal grand jury indicted and other Georgia
citizens sitting as a federal trial jury convicted Screws and his
associates, and it was a Georgia judge who charged more strongly
against them than this Court thinks he should have.
Finally, the Department of Justice gives us this assurance of
its moderation:
"(3) The Department of Justice has established a policy of
strict self-limitation with regard to prosecutions under the civil
rights acts. When violations of such statutes are reported, the
Department requires that efforts be made to encourage state
officials to take appropriate action under state law. To assure
consistent observance of this policy in the enforcement of the
civil rights statutes, all United States Attorneys have been
instructed to submit cases to the Department for approval before
prosecutions or investigations are instituted. The number of
prosecutions which have been brought under the civil rights
statutes is small. No statistics are available with respect to the
number of prosecutions prior to 1939, when a special Civil Rights
Section was established in the Department of Justice. Only two
cases during this period have been reported:
United States v.
Buntin, 10 Fed. 730 (C.C. S.D. Ohio), and
United States v.
Stone, 188 Fed. 836 (D.Md.). Since 1939, the number of
complaints received annually by the Civil Rights Section has ranged
from 8,000 to 14,000, but in no year have prosecutions under both
Sections 20 and 19, its companion statute, exceeded 76. In the
fiscal year 1943, for example, 31 full investigations of alleged
violations of Section 20 were conducted, and three cases were
brought to trial. In the following fiscal year, there were 55 such
investigations, and prosecutions were instituted in 12 cases. "
Page 325 U. S. 160
"Complaints of violations are often submitted to the Department
by local law enforcement officials who, for one reason or another,
may feel themselves powerless to take action under state law. It is
primarily in this area, namely, where the official position of the
wrongdoers has apparently rendered the State unable or unwilling to
institute proceedings, that the statute has come into operation.
Thus, in the case at bar, the Solicitor General of the Albany
Circuit in the State of Georgia, which included Baker County,
testified (R. 42):"
"There has been no complaint filed with me in connection with
the death of Bobby Hall against Sheriff Screws, Jones, and Kelley.
As to whom I depend for investigation of matters that come into my
Court, I am an attorney, I am not a detective, and I depend on
evidence that is available after I come to Court or get into the
case. . . . The sheriffs and other peace officers of the community
generally get the evidence, and I act as the attorney for the
state. I rely on my sheriffs and policemen and peace officers and
private citizens also who prosecute each other to investigate the
charges that are lodged in court."
But such a "policy of strict self-limitation" is not accompanied
by assurance of permanent tenure and immortality of those who make
it the policy. Evil men are rarely given power; they take it over
from better men to whom it had been entrusted. There can be no
doubt that this shapeless and all-embracing statute can serve as a
dangerous instrument of political intimidation and coercion in the
hands of those so inclined.
We are told local authorities cannot be relied upon for
courageous and prompt action, that often they have personal or
political reasons for refusing to prosecute. If it be significantly
true that crimes against local law cannot be locally prosecuted, it
is an ominous sign indeed. In any event, the cure is a
reinvigoration of State responsibility. It is not an undue
incursion of remote federal
Page 325 U. S. 161
authority into local duties with consequent debilitation of
local responsibility.
The complicated and subtle problems for law enforcement raised
by the Court's decision emphasize the conclusion that § 20 was
never designed for the use to which it has now been fashioned. The
Government admits that it is appropriate to leave the punishment of
such crimes as this to local authorities. Regard for this wisdom in
federal State relations was not left by Congress to executive
discretion. It is, we are convinced, embodied in the statute
itself.
*
Iowa-Des Moines Bank v. Bennett, supra, illustrates
the situation where there can be no doubt that the action
complained of was the action of a State. That case came here from a
State court as the ultimate voice of State law authenticating the
alleged illegal action as the law of the State. Cases of which
Lane v. Wilson, 307 U. S. 268, is
an illustration are also to be differentiated. In that case,
election officials discriminated illegally against Negroes not in
defiance of a State statute, but under its authority.