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Mahone v. Waddle

filed: August 24, 1977.



Rosenn, Kalodner, and Garth, Circuit Judges. Gibbons, Rosenn, and Garth, Circuit Judges. Garth, Circuit Judge, dissenting in part and concurring in part.

Author: Rosenn

ROSENN, Circuit Judge

These appeals from an order of the United States District Court for the Western District of Pennsylvania present the recurring question whether municipalities can be held accountable in the federal courts for deprivation of citizens' constitutional rights through misuse of governmental authority by municipal police. Facets of this issue have received the attention of the federal courts in recent years. These appeals, however, not only focus attention on the underlying language of the fourteenth amendment to the United States Constitution, but also command particular scrutiny of the thirteenth amendment and its implementation in the Civil Rights Act of 1866.

The plaintiffs instituted this action against two police officers individually and against the City of Pittsburgh. The district court granted the City's motion to dismiss all claims against it and the plaintiffs appeal. We affirm in part, reverse in part, and remand to the district court.


Plaintiffs, two black citizens of the Pittsburgh area, claim that while driving motor vehicles on the public highways in the early morning of May 29, 1975, they were stopped without probable cause for a supposed traffic violation by the two individual defendants, Waddle and Ellway, police officers of the City of Pittsburgh. Plaintiffs allege that thereafter, because they were black, the police officers subjected them to racial epithets, verbal harassment, and physical abuse by hands, fists, and nightsticks. The police officers handcuffed the plaintiffs, threw them into a police van, and had them transported to a police station. Plaintiffs claim they were there charged with driving too fast for conditions and following too closely, although the police officers knew that these charges were false and unfounded in fact and in law. Plaintiffs were required to post a cash bond to obtain their release. Later in the day they were convicted in the city magistrate's court of the traffic violations, allegedly because the two policemen gave false testimony. They were sentenced to pay fines and costs.

Plaintiffs allege that the conduct of the two police officers was performed under color of state law, that the officers were "motivated by racial prejudice," and acted "with purpose of depriving Plaintiffs of equal protection and benefits of the law, equal privileges and immunities under the law, and due process . . . ." They claim that they sustained bodily injuries, mental anguish, and damage to their reputations as law abiding citizens by the actions of the two officers, and that the amount in controversy exceeds $10,000.

Plaintiffs brought their action in the district court against the individual defendants and against the City on the grounds that plaintiffs' rights under 42 U.S.C. §§ 1981, 1983, and 1985 and the United States Constitution were violated.

Three distinct grounds for relief were asserted against the City of Pittsburgh: (1) under the fourteenth amendment the City is liable on a respondeat superior basis for the misconduct of its officers; (2) under 42 U.S.C. § 1981 the City is liable on a respondeat superior basis for the misconduct of its officers; and (3) the City is liable directly for its alleged negligence or wanton recklessness in failing to train and supervise the two individual defendants and in permitting them to act as police officers notwithstanding the City's prior knowledge of their propensity to harass and mistreat black citizens. The first two grounds being federal, jurisdiction was asserted under 28 U.S.C. §§ 1331 and 1343. The third is based on state law and the federal court is asked to exercise derivative, pendent jurisdiction.

In dismissing the claims against the City, the learned district judge held that Congress' grant of immunity to municipalities in section 1983, Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), precluded any action against a municipality directly under the fourteenth amendment. He also held that on the facts alleged by plaintiffs, no relief could be granted under 42 U.S.C. § 1981, and, in addition, that the City was immune from liability under that section. The district court also dismissed the claims stated under Pennsylvania law, holding it could not exercise derivative, pendent jurisdiction since there was no basis for the exercise of federal question jurisdiction. The district court thereupon entered final judgment in favor of the City of Pittsburgh, finding "that there is no just reason for delay with respect to the entry of final judgment as to the City of Pittsburgh."


On reviewing the dismissal under Rule 12(b)(6) of plaintiffs' claims against the City of Pittsburgh for failure to state a claim upon which relief can be granted, we are constrained to accept all the uncontroverted allegations of the complaint as true. Curtis v. Everette, 489 F.2d 516, 518 (3d Cir. 1973). Our task at this point is to determine whether the plaintiffs could prevail if the facts alleged in their complaint were borne out at a trial on the merits. Central-Penn Nat'l Bank v. Portner, 201 F.2d 607 (3d Cir.), cert. denied, 346 U.S. 815, 74 S. Ct. 26, 98 L. Ed. 342 (1953).

For the purpose of this appeal, we assume, without deciding, that the conduct alleged does violate the guarantees of the Constitution and is actionable under 42 U.S.C. § 1983*fn1 against the two police officers. In other than section 1983 actions, their employer would ordinarily also be held liable under the doctrine of respondeat superior for their misconduct if it occurred during the performance of their duties and within the scope of their employment. The City of Pittsburgh, however, occupies a position different from that of an ordinary employer; as a municipality, it is not a "person" within the meaning of § 1983 and thus is absolutely immune from the reach of that section. Monroe v. Pape, supra. Plaintiffs concede that the City is immune from liability under section 1983 and they therefore seek relief (1) under the fourteenth amendment directly, and (2) under 42 U.S.C. § 1981 (1970).*fn2 We are thus faced with three major questions: First, can this action be maintained against the City directly under the provisions of the fourteenth amendment? Second, on the facts alleged, can relief be granted under section 1981? Third, if a claim for section 1981 relief has been stated, can the City be held liable for damages under that section? Our resolution of the pendent jurisdiction issue will turn on the answers to these questions.


The first question presented is whether the fourteenth amendment by itself gives rise to a cause of action. As the City correctly informs us, this question is definitely distinct from the independent issue whether plaintiffs have properly invoked the general federal question jurisdiction of the district court under 28 U.S.C. § 1331 (1970).*fn3 In Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773 (1946), the Supreme Court held that a federal district court has subject matter jurisdiction over a case whenever the pleadings allege matters in controversy arising under the Constitution or laws of the United States. Bell also teaches, however, that the question whether a court has jurisdiction under § 1331 is analytically distinct from the question whether the plaintiff has stated a cause of action upon which relief can be granted.*fn4 In the instant case, therefore, the district court's jurisdiction over the subject matter of the claim against the City is clear under section 1331.*fn5 The availability of section 1331 jurisdiction to entertain claims of constitutional violations by municipalities is a settled principle of law. See, e.g., City of Kenosha v. Bruno, 412 U.S. 507, 513-14, 516, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973) (remand for consideration of jurisdictional amount to satisfy section 1331 requirements). Furthermore, the City in this case concedes that a federal court has section 1331 jurisdiction to try a claim against a municipality based directly on a fourteenth amendment violation. The significant question is whether plaintiffs have stated a claim upon which relief can be granted. As plaintiffs claim the source of such relief to be the fourteenth amendment, the precise issue which we are called upon to decide is whether the fourteenth amendment can serve as an independent source of an affirmative right of action against the City for damages flowing from constitutional misconduct by the City's police.

The City argues forcefully that the fourteenth amendment cannot serve as an independent source of an affirmative right of action. The City believes that section 1983, as interpreted by the Supreme Court in Monroe v. Pape, supra, completely bars any action against it for damages resulting from a deprivation of fourteenth amendment rights. Section 1983 manifests a congressional policy against municipal liability, asserts the City, which this court must not circumvent by recognizing a direct cause of action under the fourteenth amendment. In its brief, the City also contends that under section 5 of the fourteenth amendment, the exclusive power to enforce the amendment is vested in Congress and that the courts are powerless to redress violations of the amendment's guarantees without supporting legislation by Congress:*fn5a

To infer that the Fourteenth Amendment itself gives rise to a cause of action in damages for violations of its provisions is to ignore the plain language of Section 5 of the Amendment itself. Such a holding would make Section 5 mere surplusage. Further, such an inference by the courts would be a blatant usurpation of the power vested in Congress. [Footnote omitted.]

The plaintiffs, on the other hand, take the view that the bar on municipal liability in section 1983 does not preclude the courts from fashioning a remedy against the City directly under the fourteenth amendment. Plaintiffs do not see in section 5*fn6 of that amendment any limit on the power of the courts, only a grant of power to Congress. The plaintiffs find their strongest support in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). Plaintiffs contend that Bivens stands for an expansive principle of federal court jurisprudence under which this court is empowered to imply an affirmative remedy without more from the very proscriptions of the fourteenth amendment.

In response to plaintiffs' Bivens argument, the City argues in its brief that section 5 of the fourteenth amendment precludes an extension of the rationale of that case to afford a damage remedy for a fourteenth amendment violation.

The Fourth Amendment whose enforcement was the subject of Bivens, like the other amendments in the Bill of Rights, applies per se only to the federal government. See, e.g. Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, [93 L. Ed. 1782] (1949); Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, [82 L. Ed. 288] (1937). Thus it was reasonable for the Bivens court to conclude that implementing legislation by the national government, whose power the Bill of Rights was intended to check, was unnecessary. The Fourteenth Amendment, which applies to state action, did not leave this question open. Section 5 of the amendment expressly reposes in Congress the power to carry out its commands . . . .

Plaintiffs can prevail on their fourteenth amendment claim only if we determine that section 1983 does not bar us from holding the City liable for the constitutional misconduct of its officers, that the Bivens principle can be extended to the context of the fourteenth amendment, and that section 5 of the amendment does not limit the traditional power of the courts to create appropriate remedies for the vindication of constitutional rights. The question whether liability may be imposed upon municipalities directly under the fourteenth amendment on a Bivens rationale has cropped up repeatedly but the cases exhibit a disappointing lack of analysis. Several decisions counsel against using the fourteenth amendment to hold cities accountable for unconstitutional conduct. See, e.g., Payne v. Mertens, 343 F. Supp. 1355 (N.D. Cal. 1972); Bennett v. Gravelle, 323 F. Supp. 203, 217 (D. Md. 1971), aff'd on other grounds, 451 F.2d 1011 (4th Cir. 1971), cert. dismissed, 407 U.S. 917, 92 S. Ct. 2451, 32 L. Ed. 2d 692 (1972). On the other hand, by far the greater number of cases, including three of our own decisions, either assume or leave open the possibility that a direct fourteenth amendment action will lie against a municipality.*fn7 The only extended analysis by a circuit court supports the concept of a fourteenth amendment cause of action. Brault v. Town of Milton, 527 F.2d 730 (2d Cir. 1975). That decision, however, was vacated by the court en banc and the case was decided ultimately on other grounds. Id. at 732.

We must decline to join in this debate over a fourteenth amendment, Bivens-type remedy. In view of our holding in this case that plaintiffs have stated a cause of action against the City under 42 U.S.C. § 1981, we conclude that a fourteenth amendment remedy should not be implied. Judge Garth, however, in an effort to reach the fourteenth amendment question, endeavors to structure a fourteenth amendment claim for the plaintiffs contending that their complaint alleges separate, independent conduct by the defendants not racially animated. The specific allegations to which the dissent refers, Dissenting Opinion at 1034 n.30, however, charge that the defendants "by their actions under color of State law and motivated by racial prejudice" deprived plaintiffs of rights, privileges, and immunities secured by the Constitution.*fn7A If plaintiffs prove the racially motivated deprivations of their rights which they allege, section 1981 will afford them the redress in federal court which they seek. Bivens teaches that the existence of an effective and substantial federal statutory remedy for the plaintiffs obviates the need to imply a constitutional remedy on the plaintiffs' behalf, 403 U.S. at 407-11 (Harlan, J., concurring), and we will therefore affirm the district court's dismissal of the fourteenth amendment claims.*fn8 We express no opinion, of course, on the issue whether a fourteenth amendment remedy may or should be implied in other cases where the plaintiffs have no effective federal statutory remedy.

An alternative basis on which we affirm the dismissal by the district court of the fourteenth amendment claim is provided by the presence in this case of pendent state law claims.*fn9 In Gagliardi v. Flint, 564 F.2d 112 (3d Cir. 1977), we reiterate a settled constitutional doctrine:

Hagans v. Lavine, 415 U.S. 528, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974), holds that a federal court may, and indeed usually should, decide pendent, non-constitutional claims if by doing so the court can avoid the decision of difficult constitutional issues. This is true even if the pendent claims standing alone would be beyond the jurisdiction of the federal court. 415 U.S. at 546-47 and nn.12-13. The only requirement for this exercise of pendent jurisdiction over state law claims is that the federal constitutional claims not be so insubstantial as to be incapable of supporting federal jurisdiction.

564 F.2d at 114-15. As the dissent points out, Hagans itself involved a pendent federal statutory claim but the Hagans doctrine applies with equal force to state law claims. See Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 53 L. Ed. 753, 29 S. Ct. 451 (1909); Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 636-37, 39 L. Ed. 2d 630, 94 S. Ct. 1323 (1974) (White, J., dissenting); Frederick L. v. Thomas, 557 F.2d 373, n.33 (3d Cir. 1977). Our decision in Gagliardi, of course, binds us in the instant case and dictates that we affirm the dismissal of the fourteenth amendment claim.*fn10

Two points not raised in Gagliardi need to be made here. First, we must recognize the possibility that a case may arise in which a plaintiff claims the relief available under state law is not co-extensive with the relief available under the fourteenth amendment. We do not now decide what the proper course would be in such a situation since plaintiffs' counsel in the instant case expressly invited the Court at oral argument to decide the case solely on the basis of the pendent state claims without reaching the fourteenth amendment claims.

The second point we would make concerns the difference between the posture in which Gagliardi came to us and that of the instant case. In Gagliardi, the district court had rendered judgment on the pendent state law claim after a jury verdict for the plaintiff and the question facing us was whether the district court had abused its discretion in exercising jurisdiction over that claim. We did not hold in Gagliardi that the district court would have abused its discretion if it had not exercised pendent jurisdiction. In the instant case, on the other hand, the district court has dismissed the pendent state claims together with the various federal claims. Although we reverse the district court's dismissal of the pendent claims so that it may reconsider the possible exercise of pendent jurisdiction in light of our decisions in this case and in Gagliardi, we will not affirmatively order the district court to exercise pendent jurisdiction. Neither our decision in Gagliardi nor the two leading Supreme Court decisions - Hagans v. Lavine and Siler v. Louisville and Nashville R. Co. - are mandatory in nature. All three decisions speak in terms of the course a court "usually should" take, Gagliardi, at 114, not in terms of the route a court must always follow.

Having affirmed the dismissal of the fourteenth amendment claim, we now turn to the merits of plaintiffs' claim under 42 U.S.C. § 1981.


Plaintiffs claim a right to relief under the final two clauses of 42 U.S.C. § 1981 (1970):

All persons within the jurisdiction of the United States shall have the same right in every state . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishments, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

The meaning of these final clauses of section 1981 - which we shall refer to as the "equal benefit" and "like punishment" clauses - has not been considered in modern times either by the Supreme Court or by any of the various circuit courts of appeals. The City argues strenuously that section 1981 does not contemplate a cause of action for injuries of the type alleged by plaintiffs. Moreover, the City believes that it is immune from any section 1981 liability whatsoever. Plaintiffs, on the other hand, assure us that their action falls squarely within the plain meaning of the section, and they find no hint of municipal immunity anywhere in the section's language or history.


Neither of the parties has directed us to a single decision construing the equal benefit and like punishment clauses of section 1981 and our own research has uncovered only three relevant cases.*fn11

The earliest case is Strauder v. West Virginia, 100 (10 Otto) U.S. 303, 25 L. Ed. 664 (1879). The Supreme Court held that under R.S. § 1977, an identically worded predecessor to section 1981, black persons were entitled to be tried by juries selected in a racially nondiscriminatory manner. The Court declared that section 1977 "[put] in the form of a statute what had been substantially ordained by the [fourteenth] amendment." 100 U.S. at 312.*fn12 On this basis, the Court concluded that the statute prohibited trial by a jury from which blacks were excluded by law. The Court failed to specify the clauses of section 1977 on which it relied but it could only have had in mind the equal benefit and like punishment clauses. Although Strauder offers little guidance in construing the clauses, it at least refutes the City's contention that the Act is confined to deprivations of the right to contract.*fn13

The Equal Benefit clause has more recently been applied in Central Presbyterian Church v. Black Liberation Front, 303 F. Supp. 894 (E.D. Mo. 1969). The court held that the defendants' interruptions of the Church's Sunday services had deprived the church and its members of the right guaranteed by section 1981 to equal benefit of the laws for the security of property.

In the third case, a black woman and her white husband brought suit against a county alleging harassment by county police officers. Observing that the final clauses of section 1981 would be "relegate[d] to . . . meaningless phraseology" if racially motivated police abuses were held not actionable under the provision, the court denied the county's motion to dismiss. Raffety v. Prince George's County, 423 F. Supp. 1045 (D. Md. 1976).

Our own examination of the language of section 1981 leads us to believe that its reach is as wide as these cases would indicate. The section takes the form of an enumeration of diverse rights: the right to make and enforce contracts, the right to sue, the right to be a party, the right to give evidence, and the right "to the full and equal benefit of all laws and proceedings for the security of persons and property." All persons are guaranteed these rights to the same degree as they are enjoyed by white persons. The statute then provides that all persons shall be subject to the same punishment as white persons are subject, to the same "pains" as white persons, to the same "penalties" as white persons, and to the same "taxes, licenses and exactions of every kind" as white persons, and that no person shall be subject to any punishment, pain, penalty, tax, license or exaction other than that to which white persons are subject. The statute can be read in no other way. To read the language of the statute as applying only to the right to contract ignores the clear and vital words of the majority of its provisions. Despite the sparsity of precedent, a natural and commonsense reading of the statute compels the conclusion that section 1981 has broad applicability beyond the mere right to contract.

It is not enough to know that section 1981 extends beyond the right to contract; we must also determine whether the specific conduct alleged in the instant case falls within the ambit of the statutory language. Once again, we focus on the plain meaning of the words, because "if the language be clear it is conclusive. There can be no construction where there is nothing to construe." United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396, 18 L. Ed. 830 (1867).

Plaintiffs have alleged that the City's police officers, clothed with the authority of the City and the state and motivated by racial bias, verbally and physically abused them, falsely arrested them, and gave false testimony against them. It seems to us that plaintiffs have in effect alleged that because they are black they were subjected to officially inflicted "punishment, pains, [and] penalties" other than those to which white persons are subject. In alleging that because of their race they were arrested without probable cause or warrant and that they were convicted by false testimony of crimes they did not commit, plaintiffs have in effect charged that the City's officers denied them the same "full and equal benefit of . . . laws and proceedings for the security of persons . . . as is enjoyed by white persons." We therefore believe that the facts alleged fall within the broad language of both the equal benefits and like punishment clauses of section 1981.*fn14

Our conclusion is buttressed by evidence of the contemporary understanding of the Civil Rights Act of 1866, the Act from which section 1981 derives.*fn15 In the view of Congress, the Act was a complete statutory analog to the thirteenth amendment. The Act was not intended to have merely limited effect; rather, it was to eradicate all discrimination against blacks and to secure for them full freedom and equality in civil rights.*fn16 The broad sweep and power of the Act were recognized by the bill's opponents: one warned balefully that the Act would bestow upon the freed slaves all the rights of free citizens.*fn17 In vetoing the bill (the veto was later overridden), President Johnson expressed the fear that the bill would prohibit states from exercising any power of discrimination between the different races.*fn18 Congress thus believed that the Civil Rights Act of 1866 would prohibit all racial discrimination, apparently including the type of racially motivated physical abuse and misuse of governmental power which is alleged in this instance.*fn19 The Congressional debates thus support our conclusion that the Act's successor, section 1981,*fn20 applies on its face to the type of discriminatory conduct alleged here.*fn21

Weighing against the plain meaning of section 1981 and the expansive view of that section suggested by the legislative history is the City's contention that a broad construction of section 1981 will give rise to a federal cause of action for every racially motivated private tort. The City points to the Supreme Court's holdings in Johnson v. Railway Express Agency, 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975), and Runyon v. McCrary, 427 U.S. 160, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976), that private discrimination in employment and education is actionable under section 1981 and reasons that the inevitable result of combining Johnson and Runyon with a broad reading of the equal benefit and like punishment clauses will be a section 1981 action in federal court whenever a white man strikes a black in a barroom brawl.*fn22

We see no such danger. The Supreme Court cases have construed only the first of section 1981's enumerated rights - the right "to make and enforce contracts." We deal here with the distinct and separate right "to full and equal benefit of all laws and proceedings for the security of persons and property" and with the prohibition against unequal "punishment, pains [and] penalties." We perceive a fundamental distinction which precludes an application of the Johnson and Runyon principles to cases arising under the equal benefit and like punishment clauses.

The right "to make and enforce contracts" necessarily is concerned with relations between private individuals. It is usually with another individual, not the state, that a black person would seek to make a contract; it is that other individual's racially motivated refusal to make a contract which can cause harm to the black person. The right "to make and enforce contracts" can thus be infringed by private individuals and it is appropriate that private individuals be held liable for that infringement.

The words "full and equal benefit of all laws and proceedings for the security of persons and property" (emphasis supplied), on the other hand, suggest a concern with relations between the individual and the state, not between two individuals. The state, not the individual, is the sole source of law, and it is only the state acting through its agents, not the private individual, which is capable of denying to blacks the full and equal benefit of the law. Thus, while private discrimination may be implicated by the contract clause of section 1981, the concept of state action is implicit in the equal benefit clause. The like punishment clause may be read in the same way. Only the state imposes or requires "taxes, licenses, and exactions" and the maxim noscitur a sociis suggests that the "punishment, pains [and] penalties" to which the clause refers are those imposed by the state. In the instant case, of course, the complaint does allege state action. Certainly the like punishment clause applies to such action. We need decide no more in this case.


We now turn to the contention by the City and by the dissent that the district court has no jurisdiction to hold the City liable under section 1981. We will consider the City's arguments first.

The City entreats us to shield it from section 1981 liability by extending to that provision the municipal "immunity" recognized in 42 U.S.C. § 1983 and Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). We can find no justification for such an extension of municipal immunity. The unanimous en banc decision of the Ninth Circuit overruling its prior decision in Arunga v. Weldon, 469 F.2d 675 (1972), fully supports our conclusion. See Sethy v. Alameda Co. Water Dist., 545 F.2d 1157 (9th Cir. 1976) (en banc).

First, the Court in Monroe v. Pape explicitly limited its holding to the narrow question whether the word "person" in section 1983 includes municipal corporations: "We cannot believe that the word 'person' was used in this particular Act to include [municipalities]." 365 U.S. at 191 (footnotes omitted) (emphasis supplied). See also Moor v. County of Alameda, 411 U.S. 693, 709-10, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973); Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv. L. Rev. 922, 939-42 (1976). Whereas the word "person" in section 1983 defines those on whom liability may be visited, the word "persons" in section 1981 describes those who are protected by the statute. See Maybanks v. Ingraham, 378 F. Supp. 913 (E.D. Pa. 1974) (Lord, C.J.). Thus, Monroe's holding on municipal liability is by its terms wholly inapplicable to the question of municipal liability under section 1981. Moreover, we find in section 1981 no language whatsoever indicating a congressional intent that municipalities be held immune from liability for violations of the section's guarantees.

Secondly, we are not persuaded by the argument that the congressional policy motivating the passage of section 1983 informed Congress' prior enactment of section 1981. Although their modern codification in Title 42 may make it appear that section 1981 and section 1983 are sister provisions of a single act of Congress which ought to be construed together, such is not the case.

Section 1981 derives from the Civil Rights Act of 1866 and from the reenactment of section 1 of that Act in sections 16 and 18 of the Act of May 31, 1870.*fn23 Runyon v. McCrary, supra, 427 U.S. at 168-70 n.8. Due to its unusual history, section 1981 can fairly be said to rest not only on the fourteenth amendment but also on the foundation provided by the thirteenth amendment. Id. at 189 (Stevens, J., concurring). See also Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 439-40 n.11, 35 L. Ed. 2d 403, 93 S. Ct. 1090 (1973); Strauder v. West Virginia, 100 U.S. 303, 312, 25 L. Ed. 664 (1879); Young v. Int'l Tel. & Tel. Co., 438 F.2d 757, 759 (3d Cir. 1971). As we have previously noted, the legislative history of the Civil Rights Act of 1866 manifests Congress' purpose to enact sweeping legislation implementing the thirteenth amendment to abolish all the remaining badges and vestiges of the slavery system. Section 1983, on the other hand, derives from the Civil Rights Act of 1871,*fn24 enacted to enforce the fourteenth amendment. "And it has long been recognized that ' different problems of statutory meaning are presented by two enactments deriving from different constitutional sources.'" Dist. of Columbia v. Carter, 409 U.S. 418, 423, 34 L. Ed. 2d 613, 93 S. Ct. 602 (1972), quoting Monroe v. Pape, 365 U.S. at 205-06 (Frankfurter, J., dissenting).

The two Acts differ not only in derivation but also in scope: the debates on the 1871 Act evidence Congress' intent to temper the protection of civil rights against encroachment by the states with countervailing concerns of federalism.*fn25 Moreover, the Act of 1871 is addressed only to the state and to those acting under color of state authority while the Act of 1866 extends, in some respects, to acts of private discrimination. Jones v. Alfred H. Mayer, 392 U.S. 409, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968); Johnson v. Railway Express Agency, 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975); Runyon v. McCrary, supra. Although we recognize that the later Act is more limited in scope, the broad language of the Act of 1866 has never been repealed by Congress and we must apply it as written. See Dist. of Columbia v. Carter, supra, 409 U.S. at 424-25. We therefore reject the suggestion that section 1981 must be interpreted by reference to the legislative history of section 1983.

We also find no merit in the proposition that section 1983 constitutes an implied repeal of section 1981 insofar as municipal liability is concerned. The idea that section 1983 bars municipal liability is based on Congress' rejection of Senator Sherman's proposed amendment to the Civil Rights Act of 1871 under which all the inhabitants of a city would have been collectively responsible for a single individual's private act of violence against blacks which occurred within the city's borders. Monroe v. Pape, 365 U.S. at 188-90. The liability which we believe section 1981 authorizes us to impose on the City in the instant case, however, is based not on private acts of violence but instead on official misconduct under color of state law by the City's police officers. Nothing in the legislative history of section 1983 indicates that Congress' concern with municipal liability under that section extended to municipal liability under every prior federal civil rights act.*fn26 We therefore cannot agree with the City that Congress' rejection of the Sherman Amendment in 1871, shields the City from liability under the Act of 1866. See Sethy v. Alameda Co. Water Dist., supra.*fn27

We now turn to the somewhat more abstruse argument advanced by Judge Garth. That argument, as we understand it, is this: (1) Since at the time the 1866 Act was enacted the federal trial courts had no jurisdiction to hear civil rights actions and since the 1866 Act did not itself vest the courts with such jurisdiction, the 1866 Act clearly did not contemplate that the rights which it declared could be enforced by private civil actions in the federal courts. (2) The potential for private civil actions under the 1866 Act was realized only when Congress enacted the Civil Rights Act of 1871 and vested the federal courts with a limited jurisdiction to hear civil rights suits. (3) Any § 1981 cause of action, therefore, must be defined by the limits on the 1871 grant of jurisdiction. (4) Since the 1871 grant of jurisdiction accompanied the substantive provisions of the 1871 Act now codified in 42 U.S.C. § 1983 and since § 1983 does not extend to suits against municipalities, Monroe v. Pape, supra, it impliedly follows that the jurisdiction granted in 1871 also does not extend to suits against municipalities. (5) Thus, since the limitation of the 1871 grant of jurisdiction must be read into the substantive provisions of § 1981, it is clear, according to the dissent, that § 1981 does not create a private right of action against municipalities cognizable under the modern day successor to the 1871 Act's jurisdictional component - 28 U.S.C. § 1343(3). (6) Since municipalities are immune from liability under a § 1981 and § 1343(3) combination, it would frustrate the intent of Congress to hold municipalities liable under any combination of § 1981 with the post-1871 jurisdictional provisions codified in 28 U.S.C. § 1331 and 28 U.S.C. § 1343(4).

Laboriously building its analysis, the dissent endeavors to construct a wall insulating the City from the consequences of its officers' alleged misconduct. The wall which it attempts to build must crumble if even one of the blocks upon which it rests is removed. Nevertheless, since we believe that each and every step in the analysis is flawed, we will discuss each seriatim.

(1) We begin with the dissent's bold assertion that "the 39th Congress never contemplated that section 1 of the 1866 Act would enable aggrieved persons to initiate suit in federal court against anyone. . . ." Dissenting at 1041. This conclusion is based, it appears, both on the dissent's jaunt into legislative history and its erroneous conclusion that the federal courts enjoyed no jurisdiction over private civil rights actions until 1871. The problem with this part of the dissent is threefold: it overlooks the very language of both the 1866 and 1871 Acts, it erroneously attributes § 1343(3) to the 1871 Act, and it ignores scores of decisions by both the Supreme Court and the lower federal courts.

Section 3 of the Civil Rights Act of 1866 provides in part:

Sec. 3. And be it further enacted, That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act ; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any such person, for any cause whatsoever, or against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a Bureau for the relief of Freedmen and Refugees, and all acts amendatory thereof, or for refusing to do any act upon the ground that it would be inconsistent with this act, such defendant shall have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the "act relating to habeas corpus and regulating judicial proceedings in certain cases," approved March three, eighteen hundred and sixty-three; and all acts amendatory thereof.

(Emphasis added.) The italicized language, it seems to us, vests the district courts with the very jurisdiction over civil cases which the dissent professes not to see.*fn28

Any possible question as to the jurisdiction vested by section 3 of the 1866 Act is resolved by a close reading of section 1 of the 1871 Civil Rights Act:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceedings to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six entitled "An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication "; and the other remedial laws of the United States which are in their nature applicable in such cases.

(Emphasis added.) The language preceding the first semicolon, now codified in 42 U.S.C. § 1983, creates a cause of action; the language following the first semi-colon establishes concomitant jurisdiction. According to the dissent, this language marks the very first grant of federal court jurisdiction over civil rights actions. The dissent, however, overlooks the express and unambiguous reference, emphasized above, to "like cases . . . under the provisions of [the Civil Rights Act of 1866]."

Since the "proceedings" contemplated by Section 1 of the 1871 Act are private civil actions for deprivations of the enumerated rights (now familiar as § 1983 actions), the reference to "like cases" under the 1866 Act shows that the 1871 Congress understood the 1866 Act as also giving rise to private civil actions in the federal courts. The plain language of the 1866 Act combined with this evidence of the almost contemporaneous Congressional understanding of that language more than adequately refutes the dissent's assertion that the 1866 Act did not include a cause of action and a grant of jurisdiction co-extensive with the rights which it declared.

An equally fundamental flaw in the dissent's argument is its assertion that 28 U.S.C. § 1343(3) derives only from the 1871 Act - an assertion which serves as the basis for its contention that a § 1981 action alleging jurisdiction under § 1343(3) must be limited by the substantive provisions of the 1871 Act (now found in 42 U.S.C. § 1983). However, the genesis of § 1343(3) is not the 1871 Act but the 1866 Act:

[Section 1343(3)] is derived from R.S. 563, § 12, which, in turn, originated in § 3 of the Civil Rights Act of April 9, 1866, 14 Stat. 27, as reenacted by § 18 of the Civil Rights Act of May 31, 1870, 16 Stat. 144, and referred to in § 1 of the Civil Rights Act of April 20, 1871, 17 Stat. 13.

Hague v. CIO, 307 U.S. 476, 508 n.10 83 L. Ed. 2d 1423, 59 S. Ct. 954 (1939) (Opinion of Roberts, J.). See also Lynch v. Household Finance Corp., 405 U.S. 538, 543-44 n.7, 31 L. Ed. 2d 424, 92 S. Ct. 1113 (1972); Bodensteiner, Federal Court Jurisdiction of Suits Against "Non-Persons" for Deprivation of Constitutional Rights, 8 Val. L. Rev. 215, 229-34 (1974).*fn28A The dissent's assertion that § 1343(3) derives from the 1871 Act is thus unfounded and its conclusion that the substantive provisions of the 1871 Act (§ 1983) somehow limit the scope of the § 1981 action is erroneous.

Judge Garth's alternative theory that § 1981 creates no cause of action even if it does vest jurisdiction must also be rejected. Interesting as his excerpts from the legislative history may be - and we do not concede that they provide an accurate summary of the entire debate - the contention that § 1981 (and § 1982 which is also derived from section 1 of the 1866 Act) create no cause of action is completely foreclosed by the scores of adjudicated cases concerning § 1981 (and § 1982) causes of action.*fn29 Judge Garth's novel theory that all these cases have been brought on a federal common law basis, Dissenting Opinion at 1037, finds absolutely no support in the cases or commentary.

(2) In view of our determination above that the 1866 Act created both a cause of action and co-extensive jurisdiction - the former now codified in 42 U.S.C. §§ 1981-82 and the latter in 28 U.S.C. § 1343(3), we must also reject the dissent's contention that the jurisdictional component of the 1871 Act somehow breathed life into the 1866 Act for the first time.*fn30

(3) Even if we were to accept arguendo the dissent's erroneous contention that it was the jurisdictional component of the 1871 Act which somehow gave life to a theretofore non-existent § 1981 action as well as the contention that § 1343(3) derives from the 1871 Act, we still could not agree with the next step in the analysis - that the limits on the jurisdiction vested by the 1871 Act must now be read into every § 1981 action. The first reason is that we believe our proper concern must still be with the language of § 1343(3), not with that of the 1871 Act.

A cursory comparison of the jurisdictional language of the 1871 Act -

such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of [the Civil Rights Act of 1866] -

with the language presently found in 28 U.S.C. § 1343(3) -

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens . . .;

reveals that § 1343(3) represents a much broader grant of jurisdiction than section 1 of the 1871 Act. The two provisions are not "in substantially identical form" as the dissent suggests. Dissenting opinion at 1041. Whereas the 1871 Act creates jurisdiction only for "such proceedings," i.e., actions brought under that Act's substantive provisions (now § 1983), section 1343(3) extends jurisdiction over actions to redress the deprivation of rights secured by " any Act of Congress providing for equal rights of citizens." (Emphasis supplied.)

The difference between the two provisions is of more than historical or theoretical interest. Assuming that Judge Garth is correct is stating that the jurisdictional component of the 1871 Act was codified in Revised Statutes § 563(12) and § 629(16), see Dissenting op. at 1037-38 n.1, those provisions were ultimately replaced by section 1343(3) which, as it now stands, was enacted into positive law by the Act of June 25, 1948.*fn31 Thus, it is the Act of June 25, 1948 which we must construe, not the more narrowly drawn jurisdictional provisions of the 1871 Act which have been long since repealed.*fn32

Notwithstanding the repeal of the 1871 Act's limited jurisdictional provisions and the modern day enactment of a substantively distinct and very much broader grant of jurisdiction, Judge Garth would evidently imply into § 1343(3) all the limitations of the 1871 Act and in turn read those limitations into the § 1981 cause of action. With all due respect, we believe that such an interpretation of § 1343(3) is neither consistent with the language of that statute nor accurately reflective of its history.

There is another, even more serious flaw in the dissent's argument that the limits of § 1343(3) jurisdiction must be read into every section 1981 cause of action. In concentrating on what he perceives as an implied condition of section 1343(3) limiting its application to suits against non-municipal defendants, Judge Garth has apparently overlooked the express clause of section 1343(3) restricting its reach to claims of discriminatory state action - ". . . under color of state law, statute, ordinance, regulation, custom or usage . . . ."

Inasmuch as the Supreme Court has explicitly held that sections 1981 and 1982 apply to private discrimination, see, e.g., Runyon v. McCrary, supra; Johnson v. Railway Express Agency, Inc., supra, it is obvious that the express state action requirement of section 1343(3) is irrelevant to a section 1981 claim. If the courts are not permitted to read the express state action requirement to section 1343(3) into section 1981, we cannot see how we could or why we should read into that section an arguably implied condition of section 1343(3). In the absence of any explanation of these cases by the dissent, we believe that the Supreme Court's decisions in Runyon, Johnson, and Jones militate strongly against this aspect of Judge Garth's theory.

(4, 5) After contending that the limits of the 1871 Act are somehow made a part of a section 1981 cause of action, the dissent seems to shift its concern from the scope of the section 1981 cause of action to the bounds of section 1343(3) jurisdiction. The argument, as we understand it, is that since the 1871 Act was not to apply to actions against municipalities, it follows that section 1343(3) provides no jurisdiction over civil rights actions against municipalities.

We agree with Judge Garth that Monroe v. Pape, supra, teaches that the 1871 Act was not intended to apply to suits against municipalities but we are not convinced that this has any relevance to present day jurisdiction based on section 1343(3). First, as we demonstrate above, section 1343(3) derives primarily from section 3 of the 1866 Act, not from section 1 of the 1871 Act; whatever limits may have been a part of the 1871 Act, therefore, are not germane to a section 1981 action under section 1343(3). Secondly, as we also discuss above, even if Judge Garth were correct in tracing section 1343(3) to the 1871 Act, our proper concerns would still be with the modern day language of section 1343(3), rather than the very different, obsolete and repealed provision of the 1871 Act.

We also cannot accept the dissent's view that the Supreme Court has held that section 1343(3) jurisdiction over suits brought under provisions other than section 1983 is limited to non-municipal defendants. Judge Garth maintains that City of Kenosha v. Bruno "held . . . that 28 U.S.C. § 1343 did not furnish jurisdiction for any suit against a municipality." Dissenting op. at 1043 n.12 (emphasis added). We have searched in vain for this "holding," but we find nothing more in Bruno than the holding that a section 1983 complaint against a municipality does not fall within the scope of section 1343(3) jurisdiction. The reason, of course, is that section 1343 vests jurisdiction only over "civil actions authorized by law" whereas a section 1983 action against a municipal defendant is clearly not "authorized by law."*fn32a

Aldinger v. Howard, 427 U.S. 1, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976), adds nothing of relevance to our concern in the case sub judice. It teaches that since section 1343(3) cannot provide federal question jurisdiction over a section 1983 action against a municipality, neither can section 1343(3) support pendent jurisdiction over state law claims against a city where section 1983 is the only ground of federal relief asserted against the non-pendent parties.*fn33 Neither Bruno nor Aldinger involved a section 1981 claim and neither decision offers any guidance to us in the case sub judice.

For these reasons, we are not persuaded that the district court lacked section 1343(3) jurisdiction over the section 1981 claims against the City.

(6) Assuming arguendo that Judge Garth were correct in his conclusion that section 1343(3) cannot provide jurisdiction for an action against a municipality under section 1981, we still perceive no logic in extending municipal immunity to section 1981 suits brought under 28 U.S.C. § 1331 (enacted in 1875) or 28 U.S.C. § 1343(4) (enacted in 1957). We perceive neither logic nor legal basis for the dismissal of a complaint which states a cause of action under the Civil Rights Act of 1866 and alleges jurisdiction under provisions enacted in 1875 and 1957 on the basis of the legislative history of an unrelated 1871 Act of Congress.

City of Kenosha v. Bruno, supra, on which the dissent relies so heavily, fully supports our view. After holding that section 1343(3) did not provide jurisdiction over the section 1983 action against the municipal defendants, the Court remanded the case for consideration of possible section 1331 jurisdiction. Bruno contains no suggestion that the unavailability of section 1343(3) jurisdiction necessarily defeats jurisdiction over claims against municipalities under section 1331 as well.*fn34


For the foregoing reasons, we hold that plaintiffs' complaint states a cause of action under section 1981 and that the City is not immune from liability under that section. Accordingly, we will reverse the district ...

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