Monroe v. Pape/Dissent Frankfurter

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

Abstractly stated, this case concerns a matter of statutory construction. So stated, the problem before the Court is denuded of illuminating concreteness and thereby of its far-reaching significance for our federal system. Again abstractly stated, this matter of statutory construction is one upon which the Court has already passed. But it has done so under circumstances and in settings that negative those considerations of social policy upon which the doctrine of stare decisis, calling for the controlling application of prior statutory construction, rests.

This case presents the question of the sufficiency of petitioners' complaint in a civil action for damages brought under the Civil Rights Act, R.S. § 1979, 42 U.S.C. § 1983, 42 U.S.C.A. § 1983. The complaint alleges that on October 29, 1958, at 5:45 a.m., thirteen Chicago police officers, led by Deputy Chief of Detectives Pape, broke through two doors of the Monroe apartment, woke the Monroe couple with flashlights, and forced them at gunpoint to leave their bed and stand naked in the center of the living room; that the officers roused the six Monroe children and herded them into the living room; that Detective Pape struck Mr. Monroe several times with his flashlight, calling him 'nigger' and 'black boy'; that another officer pushed Mrs. Monroe; that other officers hit and kicked several of the children and pushed them to the floor; that the police ransacked every room, throwing clothing from closets to the floor, dumping drawers, ripping mattress covers; that Mr. Monroe was then taken to the police station and detained on 'open' charges for ten hours, during which time he was interrogated about a murder and exhibited in lineups; that he was not brought before a magistrate, although numerous magistrate's courts were accessible; that he was not advised of his procedural rights; that he was not permitted to call his family or an attorney; that he was subsequently released without criminal charges having been filed against him. It is also alleged that the actions of the officers throughout were without authority of a search warrant or an arrest warrant; that those actions constituted arbitrary and unreasonable conduct; that the officers were employees of the City of Chicago, which furnished each of them with a badge and an identification card designating him as a member of the Police Department; that the officers were agents of the city, acting in the course of their employment and engaged in the performance of their duties; and that it is the custom of the Department to arrest and confine individuals for prolonged periods on 'open' charges for interrogation, with the purpose of inducing incriminating statements, exhibiting its prisoners for identification, holding them incommunicado while police officers investigate their activities, and punishing them by imprisonment without judicial trial. On the basis of these allegations various members of the Monroe family seek damages against the individual police officers and against the City of Chicago. The District Court dismissed the complaint for failure to state a claim and the Court of Appeals for the Seventh Circuit affirmed. 272 F.2d 365.

Petitioners base their claim to relief in the federal courts on what was enacted as § 1 of the 'Ku Klux Act' of April 20, 1871, 'An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.' 17 Stat. 13. It became, with insignificant rephrasing, § 1979 of the Revised Statutes. As now set forth in 42 U.S.C. § 1983, 42 U.S.C.A. § 1983, it is, in relevant part, as follows:

'Every person who, under color of any statute, ordinance,     regulation, custom, or usage, of any State *  *  * subjects, or      causes to be subjected, any citizen of the United States or      other person within the jurisdiction thereof to the      deprivation of any rights, privileges, or immunities secured      by the Constitution and laws, shall be liable to the party      injured in an action at law, suit in equity, or other proper      proceeding for redress.'

In invoking § 1979 (the old designation will be used hereafter), petitioners contend that its protection of 'rights, privileges, or immunities secured by the Constitution' encompasses what 'due process of law' and 'the equal protection of the laws' of the Fourteenth Amendment guarantee against action by the States. In this contention they are supported both by the title of the Act of 1871 and by its legislative history. See the authoritative statement of Mr. Edmunds, reporting the bill from the Senate Committee on the Judiciary, Cong. Globe, 42d Cong., 1st Sess. 568. See also id., at 332-334, App. 83-85, 310. It is true that a related phrase, 'any right or privilege secured * *  * by the Constitution or laws,' in § 241 of Title 18 U.S.C., 18 U.S.C.A. § 241, was said by a plurality of the Court in United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758, to comprehend only the rights arising immediately from the relationship of the individual to the central government. And see United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588. But this construction was demanded by § 241, which penalizes conspiracies of private individuals acting as such, while § 1979 applies only to action taken 'under color of any statute,' etc. Different problems of statutory meaning are presented by two enactments deriving from different constitutional sources. See the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. Compare United States v. Williams, supra, with Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. If petitioners have alleged facts constituting a deprivation under color of state authority of a right assured them by the Fourteenth Amendment, they have brought themselves within § 1979. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Hague v. C.I.O., 307 U.S. 496, 525-526, 59 S.Ct. 954, 968 969, 83 L.Ed. 1423 (Opinion of Stone, J.).

To be sure, Screws v. United States, supra, requires a finding of specific intent in order to sustain a conviction under the cognate penal provisions of 18 U.S.C. § 242, 18 U.S.C.A. § 242 -'an intent to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.' 325 U.S. at page 104, 65 S.Ct. at page 1037. Petitioners' complaint here alleges no such specific intent. But, for a number of reasons, this requirement of Screws should not be carried over and applied to civil actions under § 1979. First, the word 'willfully' in 18 U.S.C. § 242, 18 U.S.C.A. § 242, from which the requirement of intent was derived in Screws does not appear in § 1979. Second, § 1979, by the very fact that it is a civil provision, invites treatment different from that to be given its criminal analogue. The constitutional scruples concerning vagueness which were deemed to compel the Screws construction have less force in the context of a civil proceeding, and § 1979, insofar as it creates an action for damages, must be read in light of the familiar basis of tort liability that a man is responsible for the natural consequences of his acts. Third, even in the criminal area, the specific intent demanded by Screws has proved to be an abstraction serving the purposes of a constitutional need without impressing any actual restrictions upon the nature of the crime which the jury tries. The Screws opinion itself said that 'The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution.' 325 U.S. at page 106, 65 S.Ct. at page 1037. And lower courts in applying the statute have allowed inference of the requisite specific intent from evidence, it would appear, of malevolence alone. But if intent to infringe 'specific' constitutional rights comes in practice to mean no more than intent without justification to bring about the circumstances which infringe those rights, then the consequence of introducing the specific intent issue into a litigation is, in effect, to require fictional pleading, needlessly burden jurors with abstruse instructions, and lessen the degree of control which federal courts have over jury vagaries.

If the courts are to enforce § 1979, it is an unhappy form of judicial disapproval to surround it with doctrines which partially and unequally obstruct its operation. Specific intent in the context of the section would cause such embarrassment without countervailing justification. Petitioners' allegations that respondents in fact did the acts which constituted violations of constitutional rights are sufficient.

To show such violations, petitioners invoke primarily the Amendment's Due Process Clause. The essence of their claim is that the police conduct here alleged offends those requirements of decency and fairness which, because they are 'implicit in the concept of ordered liberty,' are imposed by the Due Process Clause upon the States. Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288. When we apply to their complaint that standard of a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,' which has been the touchstone for this Court's enforcement of due process, the merit of this constitutional claim is evident. The conception expressed in Wolf v. People of State of Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, that 'The security of one's privacy against arbitrary intrusion by the police * *  * is basic to a free society,' was not an innovation of Wolf. The tenet that there exists a realm of sanctuary surrounding every individual and infrangible, save in a very limited class of circumstances, by the agents of government, had informed the decision of the King's Bench two centuries earlier in Entick v. Carrington, 2 Wils, 275, had been the basis of Otis' contemporary speech against the Writ of Assistance, see Gray's notes in Quincy's Massachusetts Reports, App. I, at 471; Tudor, Life of James Otis (1823) 63, and has in the intervening years found expression not only in the Fourth Amendment to the Constitution of the United States, but also in the fundamental law of every State. Modern totalitarianisms have been a stark reminder, but did not newly teach, that the kicked-in door is the symbol of a rule of fear and violence fatal to institutions founded on respect for the integrity of man.

The essence of the liberty protected by the common law and by the American constitutions was 'the right to shut the door on officials of the state unless their entry is under proper authority of law'; particularly, 'the right to resist unauthorized entry which has as its design the securing of information to fortify the coercive power of the state against the individual.' Frank v. State of Maryland, 359 U.S. 360, 365, 79 S.Ct. 804, 808, 3 L.Ed.2d 877. Searches of the dwelling house were the special object of this universal condemnation of official intrusion. Night-time search was the evil in its most obnoxious form. Few reported cases have presented all of the manifold aggravating circumstances which petitioners here allege-intrusion en masse, by dark, by force, unauthorized by warrant, into an occupied private home, without even the asserted justification of belief by the intruders that the inhabitants were presently committing some criminal act within; physical abuse and the calculated degradation of insult and forced nakedness; sacking and disordering of personal effects throughout the home; arrest and detention against the background terror of threatened criminal proceedings. Wherever similar conduct has appeared, the courts have unanimously condemned police entries as lawless.

If the question whether due process forbids this kind of police invasion were before us in isolation, the answer would be quick. If, for example, petitioners had sought damages in the state courts of Illinois and if those courts had refused redress on the ground that the official character of the respondents clothed them with civil immunity, we would be faced with the sort of situation to which the language in the Wolf opinion was addressed: 'we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment.' 338 U.S. at page 28, 69 S.Ct. at page 1361. If that issue is not reached in this case it is not because the conduct which the record here presents can be condoned. But by bringing their action in a Federal District Court petitioners cannot rest on the Fourteenth Amendment simpliciter. They invoke the protection of a specific statute by which Congress restricted federal judicial enforcement of its guarantees to particular enumerated circumstances. They must show not only that their constitutional rights have been infringed, but that they have been infringed, 'under color of (state) statute, ordinance, regulation, custom, or usage,' as that phrase is used in the relevant congressional enactment.

Of course, if Congress by appropriate statutory language attempted to reach every act which could be attributed to the States under the Fourteenth Amendment's prohibition: 'No State shall * *  * ,' the reach of the statute would be the reach of the Amendment itself. Relevant to the enforcement of such a statute would be not only the concept of state action as this Court has developed it, see Nixon v. Condon, 286 U.S. 73, 89, 52 S.Ct. 484, 487, 76 L.Ed. 987, but also considerations of the power of Congress, under the Amendment's Enforcement Clause, to determine what is 'appropriate legislation' to protect the rights which the Fourteenth Amendment secures. Cf. United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. Still, in this supposed case we would arrive at the question of what Congress could do only after we had determined what it was that Congress had done. So, in the case before us now, we must ask what Congress did in 1871. We must determine what Congress meant by 'under color' of enumerated state authority.

Congress used that phrase not only in R.S. § 1979, but also in the criminal provisions of § 2 of the First Civil Rights Act of April 9, 1866, 14 Stat. 27, from which is derived the present 18 U.S.C. § 242, 18 U.S.C.A. § 242, and in both cases used it with the same purpose. During the seventy year which followed these enactments, cases in this Court in which the 'under color' provisions were invoked uniformly involved action taken either in strict pursuance of some specific command of state law or within the scope of executive discretion in the administration of state laws. The same is true, with two exceptions, in the lower federal courts. In the first of these two cases it was held that § 1979 was not directd to instances of lawless police brutality, although the ruling was not put on 'under color' grounds. In the second, an indictment charging a county tax collector with depriving one Ah Koo of a federally secured right under color of a designated California law, set forth in the indictment, was held insufficient against a demurrer. United States v. Jackson, C.C.D.Cal.1874, 26 Fed.Cas. p. 563, No. 15,459. The court wrote:

'The indictment contains no averment that Ah Koo was a     foreign miner, and within the provisions of the state law. If     this averment be unnecessary *  *  * the act of congress would      then be held to apply to a case of illegal extortion by a tax      collector from any person, though such exaction might be wholly unauthorized by the law      under which the officer pretended to act.

'We are satisfied that it was not the design of congress to     prevent or to punish such abuse of authority by state      officers. The object of the act was, not to prevent illegal     exactions, but to forbid the execution of state laws, which,      by the act itself, are made void *  *  *.

'It would seem, necessarily, to follow, that the person from     whom the tax was exacted must have been a person from whom,      under the provisions of the state law, the officer was      authorized to exact it. The statute requires that a party     shall be subjected to a deprivation of right secured by the      statute under color of some law, statute, order or custom;      but if this exaction, although made by a tax collector, has      been levied upon a person not within the provisions of the      state law, the exaction cannot be said to have been made      'under color of law,' any more than a similar exaction from a      Chinese miner, made by a person wholly unauthorized, and      under the pretense of being a tax collector.' Id., at pages      563-564.

Throughout this period, the only indication of this Court's views on the proper interpretation of the 'under color' language is a dictum in the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. There, in striking down other Civil Rights Act provisions which, as the Court regarded them, attempted to reach private conduct not attributable to state authority. Mr. Justice Bradley contrasted those provisions with § 2 of the Act of 1866: 'This (latter) law is clearly corrective in its character, intended to counteract and furnish redress against state laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified.' Id., 109 U.S. at page 16, 3 S.Ct. at page 25.

A sharp change from this uniform application of seventy years was made in 1941, but without acknowledgment or indication of awareness of the revolutionary turnabout from what had been established practice. The opinion in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, accomplished this. The case presented an indictment under § 242 charging certain local Commissioners of Elections with altering ballots cast in a primary held to nominate candidates for Congress. Sustaining the sufficiency of the indictment in an extensive opinion concerned principally with the question whether the right to vote in such a primary was a right secured by the Constitution, Mr. Justice Stone wrote that the alteration of the ballots was 'under color' of state law. This holding was summarily announced without exposition; it had been only passingly argued. Of the three authorities cited to support it, two did not involve the 'under color' statutes, and the third, Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423, was a case in which high-ranking municipal officials claimed authorization for their actions under municipal ordinances (here held unconstitutional) and under the general police powers of the State. All three of these cases had dealt with 'State action' problems, and it is 'State action,' not the very different question of the 'under color' clause, that Mr. Justice Stone appears to have considered. (I joined in this opinion without having made an independent examination of the legislative history of the relevant legislation or of the authorities drawn upon for the Classic construction. Acquiescence so founded does not preclude the responsible recognition of error disclosed by subsequent study.) When, however, four years later the Court was called on to review the conviction under § 242 of a Georgia County Sheriff who had beaten a Negro prisoner to death, the opinion of four of the six Justices who believed that the statute applied merely invoked Classic and stare decisis and did not reconsider the meaning which that case had uncritically assumed was to be attached to the language, 'under color' of state authority. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. The briefs in the Screws case did not examine critically the legislative history of the Civil Rights Acts. The only reference to this history in the plurality opinion, insofar as it bears on the interpretation of the clause 'under color of * *  * law,' is contained in a pair of sentences discounting two statements by Senators Trumbull and Sherman regarding the Civil Rights Acts of 1866 and 1870, cited by the minority. The bulk of the plurality opinion's treatment of the issue consists of the argument that 'under color' had been construed in Classic and that the construction there put on the words should not be abandoned or revised. 325 U.S. at pages 109 113, 65 S.Ct. at pages 1039-1041. The case of Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774, reaffirmed Screws and applied it to circumstances of third-degree brutality practiced by a private detective who held a special police officer's card and was accompanied by a regular policeman.

Thus, although this Court has three times found that conduct of state officials which is forbidden by state law may be 'under color' of state law for purposes of the Civil Rights Acts, it is accurate to say that that question has never received here the consideration which its importance merits. That regard for controlling legislative history which is conventionally observed by this Court in determining the true meaning of important legislation that does not construe itself has never been applied to the 'under color' provisions; particularly, there has never been canvassed the full record of the debates preceding passage of the 1871 Act with which we are concerned in this case. Neither Classic nor Screws nor Williams warrants refusal now to take account of those debates and the illumination they afford. While we may well decline to re-examine recent cases which derive from the judicial process exercised under its adequate safeguards documenting briefs and adequate arguments on both sides as foundation for due deliberation-the relevant demands of stare decisis do not preclude considering, for the first time thoroughly and in the light of the best available evidence of congressional purpose, a statutory interpretation which started as an unexamined assumption on the basis of inapplicable citations and has the claim of a dogma solely through reiteration. Particularly is this so when that interpretation, only recently made, was at its inception a silent reversal of the judicial history of the Civil Rights Acts for three quarters of a century.

'The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible.' Hertz v. Woodman, 218 U.S. 205, 212, 30 S.Ct. 621, 622, 54 L.Ed. 1001. It is true, of course, that the reason for the rule is more compelling in cases involving inferior law, law capable of change by Congress, than in constitutional cases, where this Court-although even in such cases a wise consciousness of the limitations of individual vision has impelled it always to give great weight to prior decisions-nevertheless bears the ultimate obligation for the development of the law as institutions develop. See, e.g., Smith v. All-wright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987. But the Court has not always declined to re-examine cases whose outcome Congress might have changed. See Mr. Justice Brandeis, dissenting, in Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-407, note 1, 52 S.Ct. 443, 447, 76 L.Ed. 815. Decisions involving statutory construction, even decisions which Congress has persuasively declined to overrule, have been overruled here. See Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084, overruling United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889, United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302, and United States v. Bland, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319; see also Commissioner of Internal Revenue v. Estate of Church, 335 U.S. 632, 69 S.Ct. 322, 337, 93 L.Ed. 288, overruling May v. Heiner, 281 U.S. 238, 50 S.Ct. 286, 74 L.Ed. 826.

And with regard to the Civil Rights Acts there are reasons of particular urgency which authorize the Court-indeed, which make it the Court's responsibility-to reappraise in the hitherto skimpily considered context of R.S. § 1979 what was decided in Classic, Screws and Williams. This is not an area of commercial law in which, presumably, individuals may have arranged their affairs in reliance on the expected stability of decision. Compare National Bank of Genesee v. Whitney, 103 U.S. 99, 26 L.Ed. 443; Vail v. Territory of Arizona, 207 U.S. 201, 28 S.Ct. 107, 52 L.Ed. 169; Walling v. Halliburton Oil Well Cementing Co., 331 U.S. 17, 67 S.Ct. 1056, 91 L.Ed. 1312; United States v. South Buffalo R. Co., 333 U.S. 771, 68 S.Ct. 868, 92 L.Ed. 1077. Nor is it merely a minerun statutory question involving a narrow compass of individual rights and duties. The issue in the present case concerns directly a basic problem of American federalism: the relation of the Nation to the States in the critically important sphere of municipal law administration. In this aspect, it has significance approximating constitutional dimension. Necessarily, the construction of the Civil Rights Acts raises issues fundamental to our institutions. This imposes on this Court a corresponding obligation to exercise its power within the fair limits of its judicial discretion. 'We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable * *  * .' Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604.

Now, while invoking the prior decisions which have given 'under color of (law)' a content that ignores the meaning fairly comported by the words of the text and confirmed by the legislative history, the Court undertakes a fresh examination of that legislative history. The decision in this case, therefore, does not rest on stare decisis, and the true construction of the statute may be thought to be as free from the restraints of that doctrine as though the matter were before us for the first time. Certainly, none of the implications which the Court seeks to draw from silences in the minority reports of congressional committees in 1956, 1957, and 1960, or from the use of 'under color' language in the very different context of the Act of May 6, 1960, 74 Stat. 86, 42 U.S.C.A. § 1974 et seq.-concerned, in relevant part, with the preservation of election records and with the implementation of the franchise-serves as an impressive bar to re-examination of the true scope of R.S. § 1979 itself in its pertinent legislative setting.

This case squarely presents the question whether the intrusion of a city policeman for which that policeman can show no such authority at state law as could be successfully interposed in defense to a state-law action against him, is nonetheless to be regarded as 'under color' of state authority within the meaning of R.S. § 1979. Respondents, in breaking into the Monroe apartment, violated the laws of the State of Illinois. Illinois law appears to offer a civil remedy for unlawful searches; petitioners do not claim that none is available. Rather they assert that they have been deprived of due process of law and of equal protection of the laws under color of state law, although from all that appears the courts of Illinois are available to give them the fullest redress which the common law affords for the violence done them, nor does any 'statute, ordinance, regulation, custom, or usage' of the State of Illinois bar that redress. Did the enactment by Congress of § 1 of the Ku Klux Act of 1871 encompass such a situation?

That section, it has been noted, was patterned on the similar criminal provision of § 2, Act of April 9, 1866. The earlier Act had as its primary object the effective nullification of the Black Codes, those statutes of the Southern legislatures which had so burdened and disqualified the Negro as to make his emancipation appear illusory. The Act had been vetoed by President Johnson, whose veto message describes contemporary understanding of its second section; the section, he wrote,

'seems to be designed to apply to some existing or future law     of a State or Territory which may conflict with the      provisions of the bill *  *  *. It provides for counteracting     such forbidden legislation by imposing fine and imprisonment      upon the legislators who may pass such conflicting laws, or      upon the officers or agents who shall put, or attempt to put,      them into execution. It means an official offense, not a common crime committed against law upon the persons or property     of the black race. Such an act may deprive the black man of     his property, but not of the right to hold property. It means     a deprivation of the right itself, either by the State      judiciary or the State Legislature.'

And Senator Trumbull, then Chairman of the Senate Judiciary Committee, in his remarks urging its passage over the veto, expressed the intendment of the second section as those who voted for it read it:

'If an offense is committed against a colored person simply     because he is colored, in a State where the law affords him      the same protection as if he were white, this act neither has      nor was intended to have anything to do with his case,      because he has adequate remedies in the State courts; but if      he is discriminated against under color of State laws because      he is colored, then it becomes necessary to interfere for his      protection.'

Section 2 of the 1866 Act was re-enacted in substance in 1870 as part of 'An Act to enforce the Right of Citizens * *  * to vote in the several States *  *  * ,' 16 Stat. 140, 144. The following colloquy on that occasion is particularly revealing:

'MR. SHERMAN. * *  * My colleague cannot deny that we can by      appropriate legislation prevent any private person from      shielding himself under a State regulation, and thus denying      to a person the right to vote *  *  *.

'MR. CASSERLY. I should like to ask the Senator from Ohio how     a State can be said to abridge the right of a colored man to      vote when some irresponsible person in the streets is the      actor in that wrong?

'MR. SHERMAN. If the offender, who may be a loafer, the     meanest man in the streets, covers himself under the      protection or color of a law or regulation or constitution of      a State, he may be punished for doing it.

'MR. CASSERLY. Suppose the State law authorizes the colored     man to vote; what then?

'MR. SHERMAN. That is not the case with which we are dealing. * *  * This bill only proposes to deal with offenses committed      by officers or persons under color of existing State law,      under color of existing State constitutions. No man could be     convicted under this bill reported by the Judiciary Committee      unless the denial of the right to vote was done under color      or pretense of State regulation. The whole bill shows that. *     *  * (T)he first and second sections of the bill *  *  * simply      punish officers as well as persons for discrimination under      color of State laws or constitutions; and it so provides all      the way through.'

The original text of the present § 1979 contained words, left out in the Revised Statutes, which clarified the objective to which the provision was addressed:

'That any person who, under color of any law, statute,     ordinance, regulation, custom, or usage of any State, shall      subject, or cause to be subjected, any person within the      jurisdiction of the United States to the deprivation of any      rights, privileges, or immunities secured by the Constitution      of the United States, shall, any such law, statute,      ordinance, regulation, custom, or usage of the State to the      contrary notwithstanding, be liable to the party injured *  *      * .'

Representative Shellabarger, reporting the section, explained it to the House as 'in its terms carefully confined to giving a civil action for such wrongs against citizenship as are done under color of State laws which abridge these rights.' Senator Edmunds, steering the measure through the Senate, found constitutional sanction for it in the Fourteenth Amendment, explaining that state action may consist in executive nonfeasance as well as malfeasance, so that any offenses against a citizen in a State are susceptible of federal protection 'unless the criminal who shall commit those offenses is punished and the person who suffers receives that redress which the principles and spirit of the laws entitle him to have.' And James A. Garfield supported the bill in the House as 'so guarded as to preserve intact the autonomy of the States, the machinery of the State governments, and the municipal organizations established under State laws.'

Indeed, the Ku Klux Act as a whole encountered in the course of its passage strenuous constitutional objections which focused precisely upon an assertedly unauthorized extension of federal judicial power into areas of exclusive state competence. A special target was § 2 of the bill as reported to the House, providing criminal penalties:

'if two or more persons shall, within the limits of any     State, band, conspire, or combine together to do any act in violation of the rights, privileges, or immunities      of any person, to which he is entitled under the Constitution      and laws of the United States, which, committed within a      place under the sole and exclusive jurisdiction of the United      States, would, under any law of the United States then in      force, constitute the crime of either murder, manslaughter,      mayhem, robbery, assault and battery, perjury, subornation of      perjury, criminal obstruction of legal, process (sic) or      resistance of officers in discharge of official duty, arson,      or larceny *  *  * .'

In vain the proponents of this section argued its propriety, seeking to support it by argument ex necessitate from the complete failure of state judicial and executive organs to control the depredations of the Klan. Even in the Reconstruction Congress, the majority party split. Many balked at legislation which they regarded as establishing a general federal jurisdiction for the protection of person and property in the States. Only after a complete rewriting of the section to meet these constitutional objections could the bill be passed. Yet almost none of those who had decried § 2 as undertaking impermissibly to make the national courts tribunals of concurrent jurisdiction for the punishment of state-law offenses expressed similar objections to § 1, later § 1979. One of the most vehement of those who could find no constitutional sanction for federal judicial control of conduct already proscribed by state law, and who therefore opposed original § 2 as reaching beyond the limits of congressional competence, expressly supported § 1 as affording 'further redress for violations under State authority of constitutional rights.'

The general understanding of the legislators unquestionably was that, as amended, the Ku Klux Act did 'not undertake to furnish redress for wrongs done by one person upon another in any of the States * *  * in violation of their laws, unless he also violated some law of the United States, nor to punish one person for an ordinary assault and battery *  *  * .' Even those who opposing the constitutional objectors-found sufficient congressional power in the Enforcement Clause of the Fourteenth Amendment to give this kind of redress, deemed inexpedient the exercise of any such power: 'Convenience and courtesy to the States suggest a sparing use, and never so far as to supplant the State authorities except in cases of extreme necessity, and when the State governments criminally refuse or neglect those duties which are imposed upon them.' Extreme Radicals, those who believed that the remedy for the oppressed Unionists in the South was a general expension of federal judicial jurisdiction so that 'loyal men could have the privilege of having their causes, civil and criminal, tried in the Federal courts,' were disappointed with the Act as passed.

Finally, it is significant that the opponents of the Act, exhausting ingenuity to discover constitutional objections to every provision of it, also construed § 1 as addressed only to conduct authorized by state law, and therefore within the admitted permissible reach of Fourteenth Amendment federal power. 'The first section of this bill prohibits any invidious legislation by States against the rights or privileges of citizens of the United States,' one such opponent paraphrased the provision. And Senator Thurman, who insisted vociferously on the absence of federal power to penalize a conspiracy of individuals to violate state law ('that is a case of mere individual violence, having no color whatsoever of authority of law, either Federal or State; and to say that you can punish men for that mere conspiracy, which is their individual act, and which is a crime against the State laws themselves, punishable by the State laws, is simply to wipe out all the State jurisdiction over crimes and transfer it bodily to the Congress'), admitted without question the constitutionality of § 1 ('It refers to a deprivation under color of law, either statute law or 'custom or usage' which has become common law').

The Court now says, however, that 'It was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this 'force bill." Of course, if the notion of 'unavailability' of remedy is limited to mean an absence of statutory, paper right, this is in large part true. Insofar as the Court undertakes to demonstrate-as the bulk of its opinion seems to do-that § 1979 was meant to reach some instances of action not specifically authorized by the avowed, apparent, written law inscribed in the statute books of the States, the argument knocks at an open door. No one would or could, deny this, for by its express terms the statute comprehends deprivations of federal rights under color of any 'statute, ordinance, regulation, custom, or usage' of a State. (Emphasis added.) The question is, what class of cases other than those involving state statute law were meant to be reached. And, with respect to this question, the Court's conclusion is undermined by the very portions of the legislative debates which it cites. For surely the misconduct of individual municipal police officers, subject to the effective oversight of appropriate state administrative and judicial authorities, presents a situation which differs toto coelo from one in which 'Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress,' or in which murder rages while a State makes 'no successful effort to bring the guilty to punishment or afford protection or redress,' or in which the 'State courts * *  * (are) unable to enforce the criminal laws *  *  * or to suppress the disorders existing,' or in which, in a State's 'judicial tribunals one class is unable to secure that enforcement of their rights and punishment for their infraction which is accorded to another,' or 'of *  *  * hundreds of outrages *  *  * not one (is) punished,' or 'the courts of the *  *  * States fail and refuse to do their duty in the punishment of offenders against the law,' or in which a 'class of officers charged under the laws with their administration permanently and as a rule refuse to extend (their) protection.' These statements indicate that Congress-made keenly aware by the post-bellum conditions in the South that States through their authorities could sanction offenses against the individual by settled practice which established state law as truly as written codes-designed § 1979 to reach, as well, official conduct which, because engaged in 'permanently and as a rule,' or 'systematically,' came through acceptance by law-administering officers to constitute 'custom, or usage' having the cast of law. See Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254. They do not indicate an attempt to reach, nor does the statute by its terms include, instances of acts in defiance of state law and which no settled state practice, no systematic pattern of official action or inaction, no 'custom, or usage, of any State,' insulates from effective and adequate reparation by the State's authorities.

Rather, all the evidence converges to the conclusion that Congress by § 1979 created a civil liability enforceable in the federal courts only in instances of injury for which redress was barred in the state courts because some 'statute, ordinance, regulation, custom, or usage' sanctioned the grievance complained of. This purpose, manifested even by the so-called 'Radical' Reconstruction Congress in 1871, accords with the presuppositions of our federal system. The jurisdiction which Article III of the Constitution conferred on the national judiciary reflected the assumption that the state courts, not the federal courts, would remain the primary guardians of that fundamental security of person and property which the long evolution of the common law had secured to one individual as against other individuals. The Fourteenth Amendment did not alter this basic aspect of our federalism.

Its commands were addressed to the States. Only when the States, through their responsible organs for the formulation and administration of local policy, sought to deny or impede access by the individual to the central government in connection with those enumerated functions assigned to it, or to deprive the individual of a certain minimal fairness in the exercise of the coercive forces of the State, or without reasonable justification to treat him differently than other persons subject to their jurisdiction, was an overriding federal sanction imposed. As between individuals, no corpus of substantive rights was guaranteed by the Fourteenth Amendment, but only 'due process of law' in the ascertainment and enforcement of rights and equality in the enjoyment of rights and safeguards that the States afford. This was the base of the distinction between federal citizenship and state citizenship drawn by the Slaughter-House Cases, 16 Wall. 36, 21 L.Ed. 394. This conception begot the 'State action' principle on which, from the time of the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, this Court has relied in its application of Fourteenth Amendment guarantees. As between individuals, that body of mutual rights and duties which constitute the civil personality of a man remains essentially the creature of the legal institutions of the States.

But, of course, in the present case petitioners argue that the wrongs done them were committed not by individuals but by the police as state officials. There are two senses in which this might be true. It might be true if petitioners alleged that the redress which state courts offer them against the respondents is different than that which those courts would offer against other individuals, guilty of the same conduct, who were not the police. This is not alleged. It might also be true merely because the respondents are the police-because they are clothed with an appearance of official authority which is in itself a factor of significance in dealings between individuals. Certainly the night-time intrusion of the man with a star and a police revolver is a different phenomenon than the night-time intrusion of a burglar. The aura of power which a show of authority carries with it has been created by state government. For this reason the national legislature, exercising its power to implement the Fourteenth Amendment, might well attribute responsibility for the intrusion to the State and legislate to protect against such intrusion. The pretense of authority alone might seem to Congress sufficient basis for creating an exception to the ordinary rule that it is to the state tribunals that individuals within a State must look for redress against other individuals within that State. The same pretense of authority might suffice to sustain congressional legislation creating the exception. See Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676. But until Congress has declared its purpose to shift the ordinary distribution of judicial power for the determination of causes between co-citizens of a State, this Court should not make the shift. Congress has not in § 1979 manifested that intention.

The unwisdom of extending federal criminal jurisdiction into areas of conduct conventionally punished by state penal law is perhaps more obvious than that of extending federal civil jurisdiction into the traditional realm of state tort law. But the latter, too, presents its problems of policy appropriately left to Congress. Suppose that a state legislature or the highest court of a State should determine that within its territorial limits no damages should be recovered in tort for pain and suffering, or for mental anguish, or that no punitive damages should be recoverable. Since the federal courts went out of the business of making 'general law,' Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, such decisions of local policy have admittedly been the exclusive province of state lawmakers. Should the civil liability for police conduct which can claim no authority under local law, which is actionable as common-law assault or trespass in the local courts, comport different rules' Should an unlawful intrusion by a policeman in Chicago entail different consequences than an unlawful intrusion by a hoodlum? These are matters of policy in its strictly legislative sense, not for determination by this Court. And if it be, as it is, a matter for congressional choice, the legislative evidence is overwhelming that § 1979 is not expressive of that choice. Indeed, its precise limitation to acts 'under color' of state statute, ordinance or other authority appears on its face designed to leave all questions of the nature and extent of liability of individuals to the laws of the several States except when a State seeks to shield those individuals under the special barrier of state authority. To extend Civil Rights Act liability beyond that point is to interfere in areas of state policymaking where Congress has not determined to interfere.

Nor will such interference be negligible. One argument urged in Screws in favor of the result which that case reached was the announced policy of self-restraint of the Department of Justice in the prosecution of cases under 18 U.S.C. § 242, 18 U.S.C.A. § 242. See 325 U.S. at pages 159-160, 65 S.Ct. at pages 1062-1063. Experience indicates that private litigants cannot be expected to show the same consideration for the autonomy of local administration which the Department purportedly shows.

Relevant also are the effects upon the institution of federal constitutional adjudication of sustaining under § 1979 damage actions for relief against conduct allegedly violative of federal constitutional rights, but plainly violative of state law. Permitting such actions necessitates the immediate decision of federal constitutional issues despite the admitted availability of state-law remedies which would avoid those issues. This would make inroads, throughout a large area, upon the principle of federal judicial self-limitation which has become a significant instrument in the efficient functioning of the national judiciary. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971, and cases following. Self-limitation is not a matter of technical nicety, nor judicial timidity. It reflects the recognition that to no small degree the effectiveness of the legal order depends upon the infrequency with which it solves its problems by resorting to determinations of ultimate power. Especially is this true where the circumstances under which those ultimate determinations must be made are not conducive to the most mature deliberation and decision. If § 1979 is made a vehicle of constitutional litigation in cases where state officers have acted lawlessly at state law, difficult questions of the federal constitutionality of certain official practices-lawful perhaps in some States, unlawful in others-may be litigated between private parties without the participation of responsible state authorities which is obviously desirable to protect legitimate state interests, but also to better guide adjudication by competent record-making and argument.

Of course, these last considerations would be irrelevant to our duty if Congress had demonstrably meant to reach by § 1979 activities like those of respondents in this case. But where it appears that Congress plainly did not have that understanding, respect for principles which this Court has long regarded as critical to the most effective functioning of our federalism should avoid extension of a statute beyond its manifest area of operation into applications which invite conflict with the administration of local policies. Such an extension makes the extreme limits of federal constitutional power a law to regulate the quotidian business of every traffic policeman, every registrar of elections, every city inspector or investigator, every clerk in every municipal licensing bureau in this country. The text of the statute, reinforced by its history, precludes such a reading.

In concluding that police intrusion in violation of state law is not a wrong remediable under R.S. § 1979, the pressures which urge an opposite result are duly felt. The difficulties which confront private citizens who seek to vindicate in traditional common-law actions their state-created rights against lawless invasion of their privacy by local policemen are obvious, and obvious is the need for more effective modes of redress. The answer to these urgings must be regard for our federal system which presupposes a wide range of regional autonomy in the kinds of protection local residents receive. If various common-law concepts make it possible for a policeman-but no more possible for a policeman than for any individual hoodlum intruder-to escape without liability when he has vandalized a home, that is an evil. But, surely, its remedy devolves, in the first instance, on the States. Of course, if the States afford less protection against the police, as police, than against the hoodlum-if under authority of state 'statute, ordinance, regulation, custom, or usage' the police are specially shielded- s 1979 provides a remedy which dismissal of petitioners' complaint in the present case does not impair. Otherwise, the protection of the people from local delinquencies and shortcomings depends, as in general it must, upon the active consciences of state executives, legislators and judges. Federal intervention, which must at best be limited to securing those minimal guarantees afforded by the evolving concepts of due process and equal protection, may in the long run do the individual a disservice by deflecting responsibility from the state lawmakers, who hold the power of providing a far more comprehensive scope of protection. Local society, also, may well be the loser, by relaxing its sense of responsibility and, indeed, perhaps resenting what may appear to it to be outside interference where local authority is ample and more appropriate to supply needed remedies.

This is not to say that there may not exist today, as in 1871, needs which call for congressional legislation to protect the civil rights of individuals in the States. Strong contemporary assertions of these needs have been expressed. Report of the President's Committee on Civil Rights, To Secure These Rights (1947); Chafee, Safeguarding Fundamental Human Rights: The Tasks of States and Nation, 27 Geo.Wash.L.Rev. 519 (1959). But both the insistence of the needs and the delicacy of the issues involved in finding appropriate means for their satisfaction demonstrate that their demand is for legislative, not judicial, response. We cannot expect to create an effective means of protection for human liberties by torturing an 1871 statute to meet the problems of 1960.

Of an enactment like the Civil Rights Act, dealing with the safeguarding and promotion of individual freedom, it is especially relevant to be mindful that, since it is projected into the future, it is ambulatory in its scope, the statute properly absorbing the expanding reach of its purpose to the extent that the words with which that purpose is conveyed fairly bear such expansion. But this admissible expansion of meaning through the judicial process does not entirely unbind the courts and license their exercise of what is qualitatively a different thing, namely, the formulation of policy through legislation. In one of the last writings by that tough-minded libertarian, who was also no friend of narrow construction, Professor Zechariah Chafee, Jr., he admonished against putting the Civil Rights Act to dubious new uses even though, as a matter of policy, they might be desirable in the changed climate nearly a hundred years after its enactment: 'At all events, we can be sure of one thing. If federal protection be desirable, we ought to get it by something better than a criminal statute of antiquated uncertainties and based on the out-moded Privileges and Immunities Clause of the Fourteenth Amendment. * *  * It is very queer to try to protect human rights in the middle of the Twentieth Century by a left-over from the days of General Grant.' Id., at 529. It is not a work for courts to melt and recast this statute. 'Under color' of law meant by authority of law in the nineteenth century. No judicial sympathy, however strong, for needs now felt can give the phrase-a phrase which occurs in a statute, not in a constitution-any different meaning in the twentieth. Compare Mr. Justice Holmes' varying approaches to construction of the same word in a statute and in the Constitution, Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158, 62 L.Ed. 372, and Eisner v. Macomber, 252 U.S. 189, 219, 40 S.Ct. 189, 197, 64 L.Ed. 521 (dissenting).

This meaning, no doubt, poses difficulties for the case-by-case application of § 1979. Manifestly the applicability of the section in an action for damages cannot be made to turn upon the actual availability or unavailability of a state-law remedy for each individual plaintiff's situation. Prosecution to adverse judgment of a state-court damage claim cannot be made prerequisite to § 1979 relief. In the first place, such a requirement would effectively nullify § 1979 as a vehicle for recovering damages. In the second place, the conclusion that police activity which violates state law is not 'under color' of state law does not turn upon the existence of a state tort remedy. Rather, it recognizes the freedom of the States to fashion their own laws of torts in their own way under no threat of federal intervention save where state law makes determinative of a plaintiff's rights the particular circumstance that defendants are acting by state authority. Section 1979 was not designed to cure and level all the possible imperfections of local common-law doctrines, but to provide for the case of the defendant who can claim that some particular dispensation of state authority immunizes him from the ordinary processes of the law.

It follows that federal courts in actions at law under § 1979 would have to determine whether defendants' conduct is in violation of, or under color of, state law often with little guidance from earlier state decisions. Such a determination will sometimes be difficult, of course. But Federal District Courts sitting in diversity cases are often called upon to determine as intricate and uncertain questions of local law as whether official authority would cloak a given practice of the police from liability in a state-court suit. Certain fixed points of reference will be available. If a plaintiff can show that defendant is acting pursuant to the specific terms of a state statute or of a municipal ordinance, § 1979 will apply. See Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281. If he can show that defendant's conduct is within the range of executive discretion in the enforcement of a state statute, or municipal ordinance, § 1979 will apply. See Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423. Beyond these cases will lie the admittedly more difficult ones in which he seeks to show some "custom or usage' which has become common law.'

My Brother HARLAN'S concurring opinion deserves separate consideration. It begins by asking what is its essential question: Why would the Forty-second Congress, which clearly provided tort relief in the federal courts for violations of constitutional rights by acts of a policeman acting pursuant to state authority, not also have provided the same relief for violations of constitutional rights by a policeman acting in violation of state authority? What, it inquires, would cause a Congress to distinguish between the two situations? Examining a first possible differentiating factor-the differing degrees of adequacy of protection of person and property already available in the state courts-it reasons that this could not have been significant in view of Congress' purpose in 1871, for that purpose was not to enact a statute having 'merely a jurisdictional function, shifting the load of federal supervision from the Supreme Court to the lower courts and providing a federal tribunal for fact findings.' Examining the other possible distinction-the difference between injuries to individuals from isolated acts of abuse of authority by state officers and injuries to individuals from acts sanctioned by the dignity of state law-it finds that this, too, could not have been important, especially to a Congress which was aware of the existence of state constitutional guarantees of protection to the individual, and which enacted the conspiracy statute which became R.S. § 1980 and is now 42 U.S.C. § 1985, 42 U.S.C.A. § 1985.

To ask why a Congress which legislated to reach a state officer enforcing an unconstitutional law or sanctioned usage did not also legislate to reach the same officer acting unconstitutionally without authority is to abstract this statute from its historical context. The legislative process of the post-bellum Congresses which enacted the several Civil Rights Acts was one of struggle and compromise in which the power of the National Government was expanded piece by piece against bitter resistance; the Radicals of 1871 had to yield ground and bargain over detail in order to keep the moderate Republicans in line. This was not an endeavor for achieving legislative patterns of analytically satisfying symmetry. It was a contest of large sallies and small retreats in which as much ground was occupied, at any time, as the temporary coalescences of forces strong enough to enroll a prevailing vote could agree upon. To assume that if Congress reached one situation it would also have reached another situation involving not dissimilar problems-assuming, arguendo, that the problems, viewed in intellectual abstraction, are not dissimilar-ignores the temper of the times which produced the Ku Klux Act. This approach would be persuasive only if the two situations, that of a state officer acting pursuant to state authority and that of a state officer acting without state authority, were so entirely similar that they would not, in 1871, have been perceived as two different situations at all. In view of the fierce debate which occupied the Forty-second Congress as to whether the Fourteenth Amendment had been intended to do more than invalidate state legislation offensive on its face, this supposition must be ruled out. Contrariwise, it is historically persuasive that the Forty-second Congress, which was not thinking in neat abstract categories, designed a statute to protect federal constitutional rights from an immediate evil perceived to be grave-the evil described by the statute's sponsor, Mr. Shellabarger, 'such wrongs * *  * as are done under color of State laws which abridge these rights,' -but did not, by the same measure, seek to control unconstitutional action abusive of a state authority which did not, itself, 'abridge these rights.'

Moreover, even under the most rigorous analysis the two situations argumentatively deemed not dissimilar are indeed dissimilar, and dissimilar in both of the two relevant aspects. As to the adequacy of state-court protection of person and property, there seems a very sound distinction, as a class, between injuries sanctioned by state law (as to which there can never be state-court redress, if at all, unless (1) the state courts are sufficiently receptive to a federal claim to declare their own law unconstitutional, or (2) the litigant persists through a tortuous and protracted process of appeals, after a state trial court has found the facts, through the state-court system to this Court) and injuries not sanctioned by state law. To make this line of distinction determine the incidence of Civil Rights legislation serves to cover the bulk of cases where federal judicial protection would be needed. To be sure, this leaves certain cases unprotected, namely, the few instances of federal constitutional violations not authorized by state statute, custom or usage and which concern interests wholly unrecognized by state statute or common law. But the cost of ignoring the distinction in order to cover those cases-the cost, that is, of providing a federal judicial remedy for every constitutional violation-involves pre-emption by the National Government, in the larger class of cases in which rights secured by the Fourteenth Amendment relate to interests of person and property having a state-law origin, of matters of intimate concern to state and local governments. One of the most persistently recurring motifs in the legislative history of the Ku Klux Act is precisely a reluctance to invade these regions of state and local concern except insofar as absolutely necessary for effective assurance of the Fourteenth Amendment's guarantees. Therefore, the line of distinction between state-authorized and unauthorized actions, as a line of compromise among positions concerning which the legislative evidence is clear that Congress wanted to, and did, compromise, is the most probable for the Act's draftsmen to have selected.

To attribute significance to this line of distinction is not to reduce the Ku Kluz Act to having 'merely a jurisdictional function, shifting the load of federal supervision from the Supreme Court' to an original federal tribunal. First, there are certain classes of cases where § 1979, construed as reaching only unconstitutional conduct authorized by state law, will accord 'substantive' relief that would not have been available through the means of state-law, state-court litigation subject to the commands of the Supremacy Clause and to Supreme Court review. This would be the case, for example, if a Negro were to bring an action for damages against a state election official who had denied him the right to vote pursuant to discriminatory state franchise provisions in a State which did not recognize a common-law action for deprivation of the right to vote. Similarly, one whose home had been searched by state police acting under a state statute, regulation, custom or usage which authorized an unconstitutional intrusion could recover by a § 1979 action a measure of relief determined, as a 'substantive' matter, by federal law, whereas Supreme-Court-reviewed state-court suit might have availed him only damages for technical trespass. And, second, with reference to the more numerous classes of cases in which the redress which a federal trial court might give would be approximately the same, 'substantively,' as that which could be recovered by state-court suit, the theory that the Reconstruction Congress could not have meant § 1979 principally as a 'jurisdictional' provision granting access to an original federal forum in lieu of the slower, more costly, more hazardous route of federal appeal from fact-finding state courts, forgets how important providing a federal trial court was among the several purposes of the Ku Klux Act. One may agree that in one sense § 1979 is not 'merely' jurisdictional-not jurisdictional in the sense, for example, that § 3 of the 1866 Civil Rights Act was jurisdictional. Section 1979 does create a 'substantive' right to relief. But this does not negative the fact that a powerful impulse behind the creation of this 'substantive' right was the purpose that it be available in, and be shaped through, original federal tribunals.

In truth, to deprecate the purposes of this 1871 statute in terms of analysis which refers to 'merely * *  * jurisdictional' effects, to 'shifting the load of federal supervision,' and to the 'administrative burden on the Supreme Court,' is to attribute twentieth century conceptions of the federal judicial system to the Reconstruction Congress. If today Congress were to devise a comprehensive scheme for the most effective protection of federal constitutional rights, it might conceivably think in terms of defining those classes of cases in which Supreme Court review of state-court decision was most appropriate, and those in which original federal jurisdiction was most appropriate, fitting all cases into one or the other category. The Congress of 1871 certainly did not think in such terms. Until 1875 there was no original 'federal question' jurisdiction in the federal courts, and the ordinary mode of protection of federal constitutional rights was Supreme Court review. In light of the then prevailing notions of the appropriate relative spheres of jurisdiction of state and federal courts of first impression, any allowance of Federal District and Circuit Court competence to adjudicate causes between co-citizens of a State was a very special case, a rarity. To ask why, when such a special case was created to redress deprivations of federal rights under authority of state laws which abridged those rights, a special case was not also created to cover other deprivations of federal rights whose somewhat similar nature might have made the same redress appropriate, disregards the dominant jurisdictional thought of the day and neglects consideration of the fact that redress in a federal trial court was then to be very sparingly afforded. To extend original federal jurisdiction only in the class of cases in which, constitutional violation being sanctioned by state law, state judges would be less likely than federal judges to be sympathetic to a plaintiff's claim, is a purpose quite consistent with the 'overflowing protection of constitutional rights' which, assuredly, § 1979 manifests.

Finally, it seems not unreasonable to reject the suggestion that state-sanctioned constitutional violations are no more offensive than violations not sanctioned by the majesty of state authority. Degrees of offensiveness, perhaps, lie largely in the eye of the person offended, but is it implausible to conclude that there is something more reprehensible, something more dangerous, in the action of the custodian of a public building who turns out a Negro pursuant to a local ordinance than in the action of the same custodian who turns out the same Negro, in violation of state law, to vent a personal bias? Or something more reprehensible about the public officer who beats a criminal suspect under orders from the Captain of Detectives, pursuant to a systematic and accepted custom of third-degree practice, than about the same officer who, losing his temper, breaks all local regulations and beats the same suspect? If it be admitted that there is a significant difference between the situation of the individual injured by another individual and who, although the latter is an agent of the State, can claim from the State's judicial or administrative processes the same protection and redress against him as would be available against any other individual, and the situation of one who, injured under the sanction of a state law which shields the offender, is left alone and helpless in the face of the asserted dignity of the State, then certainly, it was the latter of these two situations-that of the unprotected Southern Negroes and Unionists-about which Congress was concerned in 1871.

Again, an analysis which supposes that Congress, by §§ 1 and 2 of the Ku Klux Act, was attempting to provide comprehensive coverage of a single problem and, therefore, may not be supposed to have left any aspect of the problem unprovided for, ignores that these two sections were in fact designed to cope with two wholly different problems-two wholly diverse evils. Section 2 was newly drafted in 1871, not, like § 1, taken over from the 1866 Act. It was both civil and criminal, not, like § 1, merely civil. It aimed exclusively at conspiracies, as § 1 did not. And, most important, it sought to protect only the federal right of equal protection, not, like § 1, all Fourteenth Amendment rights. Because of its limited scope in this latter respect, those who drafted it and voted for it thought that it could constitutionally be made to reach instances of action having more tenuous connection with the lawfully asserted authority of the State than could a statute which also reached due process violations. For the same reason, it does not reach isolated instances of misuse of state authority, but only such as possess the character of 'purposeful discrimination' which amounts to a denial of equal protection. The evil that § 2 meant to stamp out was the evil of conspiracy-more particularly, the evil of the Klan, 'a conspiracy, so far-flung and embracing such numbers, with a purpose to dominate and set at naught the 'carpetbag' and 'scalawag' governments of the day,' that it appeared 'able effectively to deprive Negroes of their legal rights and to close all avenues of redress or vindication.' Collins v. Hardyman, 341 U.S. 651, 662, 71 S.Ct. 937, 942, 95 L.Ed. 1253. The enormity and the power of this organization were what made it dangerous. Section 1 aimed at another evil, the evil not of combinations dedicated to purposeful and systematic discrimination, but of violation of any rights, privileges, or immunities secured by the Constitution through the authority, enhanced by the majesty and dignity, of the States. Here it was precisely this authorization, this assurance that behind a constitutional violation lay the whole power of the State, that was the danger. One can agree that these two statutory sections may overlap unevenly rather than dovetail, but surely it is more plausible to regard this uneven overlap as a result of the diverse origins and purposes of the sections than to derive from it the justification for a construction of § 1979 which distorts the section by stretching it to cover a class of cases presenting neither the evil with which § 1, nor the evil with which § 2, of the Ku Klux Act was designed to cope.

The present case comes here from a judgment sustaining a motion to dismiss petitioners' complaint. That complaint, insofar as it describes the police intrusion, makes no allegation that that intrusion was authorized by state law other than the conclusory and unspecific claim that 'During all times herein mentioned the individual defendants and each of them were acting under color of the statutes, ordinances, regulations, customs and usages of the State of Illinois, of the County of Cook and of the defendant City of Chicago.' In the face of Illinois decisions holding such intrusions unlawful and in the absence of more precise factual averments to support its conclusion, such a complaint fails to state a claim under § 1979.

However, the complaint does allege, as to the ten-hour detention of Mr. Monroe, that 'it was, and it is now, the custom or usage of the Police Department of the City of Chicago to arrest and confine individuals in the police stations and jail cells of the said department for long periods of time on 'open' charges.' These confinements, it is alleged, are for the purpose of interrogating and investigating the individuals arrested, in the aim of inducing incriminating statements, permitting possible identification of suspects in lineups, holding suspects incommunicado while police conduct field investigations of their associates and background, and punishing the arrested persons without trial. Such averments do present facts which, admitted as true for purposes of a motion to dismiss, seem to sustain petitioners' claim that Mr. Monroe's detention-as contrasted with the night-time intrusion into the Monroe apartment-was 'under color' of state authority. Under the few relevant Illinois decisions it is impossible to say with certainty that a detention incommunicado for ten hours is unlawful per se, or that the courts of that State would hold that the lawless circumstances surrounding Mr. Monroe's arrest made his subsequent confinement illegal. On this record, then, petitioners' complaint suffices to raise the narrow issue of whether the detention incommunicado, considered alone, violates due process.

Since the majority's disposition of the case causes the Court not to reach that constitutional issue, it is neither necessary nor appropriate to discuss it here.