Monroe v. Pape/Concurrence Harlan

Mr. Justice HARLAN, whom Mr. Justice STEWART joins, concurring.

Were this case here as one of first impression, I would find the 'under color of any statute' issue very close indeed. However, in Classic and Screws this Court considered a substantially identical statutory phrase to have a meaning which, unless we now retreat from it, requires that issue to go for the petitioners here.

From my point of view, the policy of stare decisis, as it should be applied in matters of statutory construction and, to a lesser extent, the indications of congressional acceptance of this Court's earlier interpretation, require that it appear beyond doubt from the legislative history of the 1871 statute that Classic and Screws misapprehended the meaning of the controlling provision, before a departure from what was decided in those cases would be justified. Since I can find no such justifying indication in that legislative history, I join the opinion of the Court. However, what has been written on both sides of the matter makes some additional observations appropriate.

Those aspects of Congress' purpose which are quite clear in the earlier congressional debates, as quoted by my Brothers DOUGLAS and FRANKFURTER in turn, seem to me to be inherently ambiguous when applied to the case of an isolated abuse of state authority by an official. One can agree with the Court's opinion that:

'It is abundantly clear that one reason the legislation was     passed was to afford a federal right in federal courts      because, by reason of prejudice, passion, neglect,      intolerance or otherwise, state laws might not be enforced      and the claims of citizens to the enjoyment of rights,      privileges, and immunities guaranteed by the Fourteenth      Amendment might be denied by the state agencies *  *  * '

Without being certain that Congress meant to deal with anything other than abuses so recurrent as to amount to 'custom, or usage.' One can agree with any Brother FRANKFURTER, in dissent, that Congress had no intention of taking over the whole field of ordinary state torts and crimes, without being certain that the enacting Congress would not have regarded actions by an official, made possible by his position, as far more serious than an ordinary state tort, and therefore as a matter of federal concern. If attention is directed at the rare specific references to isolated abuses of state authority, one finds them neither so clear nor so disproportionately divided between favoring the positions of the majority or the dissent as to make either position seem plainly correct.

Besides the inconclusiveness I find in the legislative history, it seems to me by no means evident that a position favoring departure from Classic and Screws fits better that with which the enacting Congress was concerned than does the position the Court adopted 20 years ago. There are apparent incongruities in the view of the dissent which may be more easily reconciled in terms of the earlier holding in Classic.

The dissent considers that the 'under color of' provision of § 1983 distinguishes between unconstitutional actions taken without state authority, which only the State should remedy, and unconstitutional actions authorized by the State, which the Federal Act was to reach. If so, then the controlling difference for the enacting legislature must have been either that the state remedy was more adequate for unauthorized actions than for authorized ones or that there was, in some sense, greater harm from unconstitutional actions authorized by the full panoply of state power and approval than from unconstitutional actions not so authorized or acquiesced in by the State. I find less than compelling the evidence that either distinction was important to that Congress.

If the state remedy was considered adequate when the official's unconstitutional act was unauthorized, why should it not be thought equally adequate when the unconstitutional act was authorized? For if one thing is very clear in the legislative history, it is that the Congress of 1871 was well aware that no action requiring state judicial enforcement could be taken in violation of the Fourteenth Amendment without that enforcement being declared void by this Court on direct review from the state courts. And presumably it must also have been understood that there would be Supreme Court review of the denial of a state damage remedy against an official on grounds of state authorization of the unconstitutional action. It therefore seems to me that the same state remedies would, with ultimate aid of Supreme Court review, furnish identical relief in the two situations. This is the point Senator Blair made when, having stated that the object of the Fourteenth Amendment was to prevent any discrimination by the law of any State, he argued that:

'This being forbidden by the Constitution of the United     States, and all the judges, State and national, being sworn      to support the Constitution of the United States, and the      Supreme Court of the United States having power to supervise      and correct the action of the State courts when they violated      the Constitution of the United States, there could be no      danger of the violation of the right of citizens under color      of the laws of the States.' Cong. Globe, 42d Cong., 1st     Sess., at App. 231.

Since the suggested narrow construction of § 1983 presupposes that state measures were adequate to remedy unauthorized deprivations of constitutional rights and since the identical state relief could be obtained for state-authorized acts with the aid of Supreme Court review, this narrow construction would reduce the statute to having merely a jurisdictional function, shifting the load of federal supervision from the Supreme Court to the lower courts and providing a federal tribunal for fact findings in cases involving authorized action. Such a function could be justified on various grounds. It could, for example, be argued that the state courts would be less willing to find a constitutional violation in cases involving 'authorized action' and that therefore the victim of such action would bear a greater burden in that he would more likely have to carry his case to this Court, and once here, might be bound by unfavorable state court findings. But the legislative debates do not disclose congressional concern about the burdens of litigation placed upon the victims of 'authorized' constitutional violations contrasted to the victims of unauthorized violations. Neither did Congress indicate an interest in relieving the burden placed on this Court in reviewing such cases.

The statute becomes more than a jurisdictional provision only if one attributes to the enacting legislature the view that a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right. This view, by no means unrealistic as a common-sense matter, is, I believe, more consistent with the flavor of the legislative history than is a view that the primary purpose of the statute was to grant a lower court forum for fact findings. For example, the tone is surely one of overflowing protection of constitutional rights, and there is not a hint of concern about the administrative burden on the Supreme Court, when Senator Freling-huysen says:

'As to the civil remedies, for a violation of these     privileges, we know that when the courts of a State violate the provisions of the Constitution or the law of the      United States there is now relief afforded by a review in the      Federal courts. And since the 14th Amendment forbids any     State from making or enforcing any law abridging these      privileges and immunities, as you cannot reach the      Legislatures, the injured party should have an original      action in our Federal courts, so that by injunction or by the      recovery of damages he could have relief against the party      who under color of such law is guilty of infringing his      rights. As to the civil remedy no one, I think, can object.'     Id., at 501.

And Senator Carpenter reflected a similar belief that the protection granted by the statute was to be very different from the relief available on review of state proceedings:

'The prohibition in the old Constitution that no State should     pass a law impairing the obligation of contracts was a      negative prohibition laid upon the State. Congress was not     authorized to interfere in case the State violated that      provision. It is true that when private rights were affected     by such a State law, and that was brought before the      judiciary, either of the State or nation, it was the duty of      the court to pronounce the act void; but there the matter      ended. Under the present Constitution, however, in regard to     those rights which are secured by the fourteenth amendment,      they are not left as the right of the citizen in regard to      laws impairing the obligation of contracts was left, to be      disposed of by the courts as the cases should arise between      man and man, but Congress is clothed with the affirmative      power and jurisdiction to correct the evil.

'I think there is one of the fundamental, one of the great,     the tremendous revolutions effected in our Government by that      article of the Constitution. It gives Congress affirmative power to protect the rights of the     citizen, whereas before no such right was given to save the      citizen from the violation of any of his rights by State      Legislatures, and the only remedy was a judicial one when the      case arose.' Id., at 577.

In my view, these considerations put in serious doubt the conclusion that § 1983 was limited to state-authorized unconstitutional acts, on the premise that state remedies respecting them were considered less adequate than those available for unauthorized acts.

I think this limited interpretation of § 1983 fares no better when viewed from the other possible premise for it, namely that state-approved constitutional deprivations were considered more offensive than those not so approved. For one thing, the enacting Congress was not unaware of the fact that there was a substantial overlap between the protections granted by state constitutional provisions and those granted by the Fourteenth Amendment. Indeed one opponent of the bill, Senator Trumbull, went so far as to state in a debate with Senators Carpenter and Edmunds that his research indicated a complete overlap in every State, at least as to the protections of the Due Process Clause. Thus, in one very significant sense, there was no ultimate state approval of a large portion of otherwise authorized actions depriving a person of due-process rights. I hesitate to assume that the proponents of the present statute, who regarded it as necessary even though they knew that the provisions of the Fourteenth Amendment were self-executing, would have thought the remedies unnecessary whenever there were self-executing provisions of state constitutions also forbidding what the Fourteenth Amendment forbids. The only alternative is to disregard the possibility that a state court would find the action unauthorized on grounds of the state constitution. But if the defendant official is denied the right to defend in the federal court upon the ground that a state court would find his action unauthorized in the light of the state constitution, it is difficult to contend that it is the added harmfulness of state approval that justifies a different remedy for authorized than for unauthorized actions of state officers. Moreover, if indeed the legislature meant to distinguish between authorized and unauthorized acts and yet did not mean the statute to be inapplicable whenever there was a state constitutional provision which, reasonably interpreted, gave protection similar to that of a provision of the Fourteenth Amendment, would there not have been some explanation of this exception to the general rule? The fact that there is none in the legislative history at least makes more difficult a contention that these legislators were in fact making a distinction between use and misuse of state power.

There is a further basis for doubt that it was the additional force of state approval which justified a distinction between authorized and unauthorized actions. No one suggests that there is a difference in the showing the plaintiff must make to assert a claim under § 1983 depending upon whether he is asserting a denial of rights secured by the Equal Protection Clause or a denial of rights secured by the Due Process Clause of the Fourteenth Amendment. If the same Congress which passed what is now § 1983 also provided remedies against two or more non-officials who conspire to prevent an official from granting equal protection of the laws, see 42 U.S.C. § 1985, 42 U.S.C.A. § 1985, then it would seem almost untenable to insist that this Congress would have hesitated, on the grounds of lack of full state approval of the official's act, to provide similar remedies against an official who, unauthorized, denied that equal protection of the laws on his own initiative. For there would be no likely state approval of or even acquiescence in a conspiracy to coerce a state official to deny equal protection. Indeed it is difficult to attribute to a Congress which forbad two private citizens from hindering an official's giving of equal protection an intent to leave that official free to deny equal protection of his own accord.

We have not passed upon the question whether 42 U.S.C. § 1985, 42 U.S.C.A. § 1985, which was passed as the second section of the Act that included § 1983, was intended to reach only the Ku Klux Klan or other substantially organized group activity, as distinguished from what its words seem to include, any conspiracy of two persons with 'the purpose of preventing or hindering the constituted authorities of any State * *  * from giving or securing to all persons within such State *  *  * the equal protection of the laws *  *  * .' Without now deciding the question, I think it is sufficient to note that the legislative history is not without indications that what the words of the statute seem to state was in fact the meaning assumed by Congress.

These difficulties in explaining the basis of a distinction between authorized and unauthorized deprivations of constitutional rights fortify my view that the legislative history does not bear the burden which stare decisis casts upon it. For this reason and for those stated in the opinion of the Court, I agree that we should not now depart from the holdings of the Classic and Screws cases.

Mr. Justice FRANKFURTER, dissenting except insofar as the Court holds that this action cannot be maintained against the City of Chicago.