A Distorted System of Constitutional Remedies

FIRST IN TWO-PART SERIES: Judge Richard Posner recently penned interesting and potentially important dicta regarding municipal liability under the civil rights statutes. "For reasons based on what scholars agree are historical misreadings (which are not uncommon when judges play historian)," he writes in Vodak v. City of Chicago 2011 WL 905727 (7th Cir. 2011), "the Supreme Court has held that municipalities are not liable for the torts of their employees under the strict-liability doctrine of respondeat superior, as private employers are."

When someone with Posner's stature introduces a subject by noting Supreme Court mistakes, followed by citation to four supporting scholarly articles and a dissent, it merits attention. Although proponents for change are likely short one vote, four dissenting justices in Board of County Cmm'rs v. Brown (1997) have already called for reexamining the issue, making it worth planting the seeds and thinking seriously about why correcting these mistakes makes for good law and public policy.

The Civil Rights Act of 1871, also called the "Ku Klux Klan Act," is the main civil rights statute under which the doctrine of municipal entity liability developed. Congress passed it after receiving evidence of abuses against former slaves and freemen in the Southern territories after the Civil War. Widespread abuse undermined the sweep of the significant post-bellum legal changes, such as enactment of the 13th and 14th Amendments. Ratified by the states, Congress had created rights, but not corollary remedies. The 1871 Act provided a remedy against persons who intentionally violated federally protected rights of another while acting "under color of law." Like the 13th and 14th Amendments, the statute was designed to apply universally to all persons.

Federal courts, though, were not ready for such sweeping change. In 1876, the 14th Amendment's privileges and immunities clause was eviscerated; in 1883, legislation that would have enforced equal access to public accommodations was invalidated; and, in 1896, "separate but equal" was found to satisfy equal protection.

Commensurately with these rulings, federal courts interpreted the 1871 Act restrictively, ruling that "under color of law" applied only when state actors enforced local laws, which facially derogated from federal rights. If the local sheriff, for example, tortured and killed a detainee, the sheriff probably was not - even though he was duly appointed and wearing a badge - acting "under color of law" because state law likely proscribed his conduct.

Cumulatively, such narrow rulings undermined Congress' grand design. The overarching legal framework became, instead, "Jim Crow." Over the next six decades, only a small handful of cases under the 1871 Act were even reported.

The sleeping giant finally, but only partially woke in Monroe v. Pape (1961), wherein an African-American family, abused by Chicago police officers, challenged the prior "under color of law" jurisprudence in federal courts. Against defendants' blue, the plaintiffs knew their skin color ensured that they would not get fair redress in the local county court. Revisiting the issue, the Warren Court got matters partially right.

In reinterpreting "under color of law" so as not to shield the state actor abusing another merely because state law prohibited the conduct, Justice Stephen Douglas added the most practical, defensible and best interpretation of the 1871 Act ever issued from the bench. Noting that, unlike its criminal analogues, the Act's statutory language omitted "wilful" misconduct, Justice Douglas asserted the statute "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions."

If all subsequent legal doctrine regarding this statute flowed from that sentence, we would have a well-balanced and functioning constitutional tort system that protects individuals and deters misconduct. It would have been fair - holding government institutions to the same legal standards as private institutions.

Regrettably, this moment of judicial clarity was short-lived. In Monroe's next section, the U.S. Supreme Court, misinterpreting the statute, held that Chicago was not liable. Seventeen years later, the Court would address its embarrassing research, such as failing to note the same 42nd Congress passed a "Dictionary Act," which expressly defined "person" to include municipal entities.