District of Columbia v. Carter

PETITIONER:District of Columbia
RESPONDENT:Carter
LOCATION:Wisconsin Eastern U.S. District Courthouse

DOCKET NO.: 71-564
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 409 US 418 (1973)
ARGUED: Nov 06, 1972
DECIDED: Jan 10, 1973

ADVOCATES:
Richard W. Barton
Warren K. Kaplan – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – November 06, 1972 in District of Columbia v. Carter

Warren E. Burger:

We’ll hear argument next in 71-564, District of Columbia against Carter.

Mr. Barton you may proceed whenever you are ready.

Richard W. Barton:

Mr. Chief Justice and may it please the Court.

The question which is before the Court in this case is whether or not the District of Columbia, a congressionally created municipal corporation is a person within the meaning of the 1871 Civil Rights Act, 42 U.S.C. 1983.

The court below answered the question in the affirmative.

It is our contention that it should be answered in the negative.

In this respect, we rely upon the decision of this Court in Monroe versus Pape in a host of circuit court decisions elsewhere throughout the country and upon the legislative history of the 1871 Civil Rights Act.

We start with the proposition that is undisputed and that is, that if the District of Columbia and other municipal corporations are persons within the meaning of the 1871 Act, it is because and only because the Congress so intended.

Now, this Court in 1961 in Monroe versus Pape in a unanimous opinion on this point, an opinion authored by Mr. Justice Douglas, expressly held as we read the opinion that Congress did not intend municipalities to be included within the word person as used in the 1871 Act.

The court below held that notwithstanding Monroe versus Pape, the District of Columbia was a person within the meaning of that Act and it did so on two independent grounds.

First, that Monroe versus Pape did not hold that municipalities were not persons within the meaning of the Act but rather held that they were persons within the meaning of the Act, but that municipalities could not be held liable in damages under the Civil Rights Act to the extent that they were immune under local law.

Now, the court did not phrase it in quite that way, but that is the necessary effect of the court’s holding because it held that the Civil Rights Act, the word person as used in that the Act did encompass the District of Columbia which is indisputable a municipal corporation.

In reaching the decision that it did, the court relied upon the legislative history of the 1871 Civil Rights Act which was thoroughly explored by this Court in its opinion in Monroe.

It pointed out that one of the reasons, one of the principal reasons which led to the so-called Sherman Amendment or amendments, there were two of them, the second one is slightly watered-down version, indicated that many of the members of the Congress were then concerned with whether or not the Congress could consistent with the constitution imposed liability upon municipal corporations.

That issue was very hotly argued.

Some took the position that it could, others took the position that it could not, but when the Congress rejected that amendment, the Sherman Amendment, now the Sherman Amendment would have made municipalities liable for actions within their borders by persons riotously and tumultuously assembled together which was a clear reference to the Ku Klux Klan and similar organizations.

That amendment was rejected.

Some I think projected it because they were convinced that it was unconstitutional.

Others perhaps rejected it because they thought it was unwise.

Perhaps still others because they thought it was both unwise and unconstitutional, but the amendment was clearly rejected.

And as this Court unanimously concluded in Monroe versus Pape, that legislative history is so forceful as a reflection of the intent of Congress that it would just be impossible to conclude that the Congress intended to include municipalities within the meaning of the term person as it used it in that Act.

Now, one of the things that the court below relied upon was the argument which had been advanced to this Court in Monroe versus Pape but which is not referred to in its opinion and that is that, in light of the concern of Congress as to whether or not it could impose liabilities on municipalities when they were immune under local law, the court should limit the — its holding, the one that it eventually made in Monroe versus Pape to a holding that municipalities are liable under the Civil Rights Act only to the extent that they are liable under local law.

Now, the second basis for the lower court’s decision was a utilization of 1988 of Title 42.

Now, that is the statute which permits federal courts when they are administering federal laws and this would include 1983 to borrow provisions of state laws to assist the federal court in implementing a right which is given by a federal statute or the federal constitution.

But what the court below has done here is not utilized Section 1988 to implement a right, but rather to create a right which under this Court’s decision in Monroe versus Pape does not exist.

This Court said in Monroe versus Pape that there is no right to bring an action for damages against a municipality under 1983.

So the court made an end-run so to speak around that and said, “But you can borrow local law and if local law provides for liability then you can adopt that liability and use that to implement the nonexistent remedy that you have against the municipality under 1983.”

We submit that that is just not sound reasoning.

It has been rejected by several circuit court decisions, two in the Seventh Circuit, one in the Ninth Circuit, since the decision in this case came down.

Those decisions are — the latest of those decisions is Moor versus Madigan the Ninth Circuit decision which discusses the two slightly earlier Seventh Circuit decisions that is — it was decided on April the 12th of this year and was reported in 458 Federal 2nd at 1217.

Richard W. Barton:

The second ground which the court below gave for holding that the —

William J. Brennan, Jr.:

Is that Moor cited in your brief?

Richard W. Barton:

No, Your Honor, it is not.

It was decided — it is 458 F 2nd at page 1217.

William J. Brennan, Jr.:

And the name?

Richard W. Barton:

Moor versus Madigan.

William J. Brennan, Jr.:

Thank you.

Lewis F. Powell, Jr.:

Did you say there was also anther case decided since your briefs were filed?

Richard W. Barton:

There are two Second Circuit Court — Seventh Circuit court decisions and those are both cited and referred to in the Moor versus Madigan case.

Those were decided in October and November of 1971.

The second independent ground that the court used for finding the District of Columbia amenable to suit under the Civil Rights Act was that the legislative history of the act indicated again that the Congress was primarily concerned with the constitutionality of imposing liability upon municipalities and that that reluctance to do so which the Congress gave into could not have applied to the District of Columbia.

That Congress under the constitution has plenary jurisdiction over the District of Columbia and it could not have been concerned with whether or not it could, had it chose to do so impose liability upon the municipal corporation of the District of Columbia.

That of course is quite true as far as it goes, clearly the Congress could have done that.

There is nothing in the legislative history that we have been able to find that even mentions the District of Columbia or indicates that Congress was in anyway concerned about the District of Columbia or the applicability of the Act to the district.

Potter Stewart:

Well, what you have just said leads me to inquire whether or not it is settled that Section 1983 applies to the District of Columbia at all quite apart from this now a question about liability of a municipality certainly by its legislative history with which I am reasonably familiar having written a couple of opinions in the area, indicates concern by Congress of what was being done in the individual states, particularly the states which had recently been — involved in the war between the states.

The statute talks about under the color of any statute of any state or territory I would suppose a legislative history would indicate certainly that Congress wasn’t concerned with the District of Columbia over which it had exclusive legislative and other control.

Is it settled?

Has it been settled that the District of Columbia for purposes of Section 1983 is a state or a territory?

Richard W. Barton:

There are cases that touch on that point.

I cannot say that it is settled, but our position would be that if Congress had given thought to this, it would perhaps have excluded the District of Columbia expressly.

Potter Stewart:

Well, is it included in that statutory language, do you understand it to be?

Richard W. Barton:

There are cases which hold and we do not challenge this point that insofar as the Act applies to employees, that is officers of the municipal corporation, it is operable within the District of Columbia.

William J. Brennan, Jr.:

That is against the police officer, for example, of the District —

Richard W. Barton:

Yes, Your Honor.

Potter Stewart:

There is no case in this Court is still holding, is it?

Richard W. Barton:

No, I do not think there is Your Honor but we have not challenged that aspect of the holding and we will not cross that here.

Potter Stewart:

As I read the holding and I have reread it just now, Judge Bazelon’s opinion, that isn’t an aspect of his holding.

He does not even discuss it, does he?

Richard W. Barton:

No, he does not.

His holding as we understand it is that because the Congress could not have been concerned about its authority to impose liability on the District of Columbia since it had plenary power of the District of Columbia, it intended the Act to apply to the District of Columbia, but the main purpose of the Act was to give a federal remedy in a federal court.

Potter Stewart:

As against state action?

Richard W. Barton:

Yes.

Potter Stewart:

And here we are talking about a federal government, one under the complete control of Congress, the government of the District of Columbia?

Richard W. Barton:

Yes, but the only court then in the District of Columbia was a federal court.

Potter Stewart:

Exactly.

Richard W. Barton:

So there was no need to give a federal remedy in a federal court.

If you had any remedy at all, if the Act applied in the District of Columbia, you would automatically have a remedy in a federal court.

Potter Stewart:

In other words before one even got to the question of the limits of if any of Monroe against Pape, I should think the preliminary question would be whether Section 1983 is applicable to the District of Columbia or its employees, officers or agents at all?

Richard W. Barton:

Yes and that issue was not —

Potter Stewart:

Not discussed by the Court of Appeals, it’s not discussed in either brief, as I understand it?

Richard W. Barton:

No, I do not think it is.

The other side I think does cite two cases in which they say hold that the District of Columbia is a territory within the meaning of the 1871 Civil Rights Act.

Potter Stewart:

There are two decisions what of the Court of Appeals of the District of Columbia?

Richard W. Barton:

I do not remember the source of those opinions.

They are cited in the brief of respondent I believe.

Warren E. Burger:

Well the District of Columbia is surely something more of a federal instrumentality than a new territory, isn’t that?

Richard W. Barton:

Yes it is, of course.

Under the plenary jurisdiction of the Congress and any remedy that a person would have and any court to which a person would go would be a federal court in the District of Columbia, certainly in 1871.

So that is one of the reasons why we contend that notwithstanding the fact that the Congress knew that it could have had it thought about it make the Act expressly applicable to the District of Columbia or applicable by implication.

It would not have done so had it thought about it because there would have been no need to do so insofar as the District of Columbia.

William J. Brennan, Jr.:

Well, apart from that Mr. Barton, I thought the District of Columbia was sui generis, unique in our structures of governmental entity?

Richard W. Barton:

It is, however —

William J. Brennan, Jr.:

A federal on clave isn’t it, territory — you can’t carve states of the district, can you —

Richard W. Barton:

No, not without the constitutional amendment.

It is —

William J. Brennan, Jr.:

But you can’t carve states of the territory as we used to know it?

Richard W. Barton:

Yes.

But I think it was proposed — again just yesterday in the paper that District of Columbia or most of it be given back to the State of Maryland, but it is the present governmental entity.

The District of Columbia is a municipal corporation created about a hundred years ago by the Congress and which does have the power to sue and be sued.

William J. Brennan, Jr.:

But doesn’t the 18th Clause of Article 1, deal expressly with congressional authority to regulate the affairs of the District of Columbia?

Richard W. Barton:

Yes.

William J. Brennan, Jr.:

So that gave us a rather different status from out of an ordinary territory?

Richard W. Barton:

Well, I say we have not explored the question.

I would be like —

William J. Brennan, Jr.:

Well, I gather you haven’t [Attempt to Laughter] contested the applicability of 1983, I think you told us in an action brought under it against a police officer for example?

Richard W. Barton:

No, we did not bring here the question as to whether or not 1983 was applicable to police officers as distinguished from the District of Columbia and that is perhaps why I am not prepared to answer on that, but if the Court would like a supplemental memo on that issue we would be glad to supply it.

Warren E. Burger:

It has already been pointed out that the compelling reasons for the 1983 as with the Fourteenth Amendment itself was to protect individuals against state action, not against federal action in this context, isn’t that true?

Richard W. Barton:

Yes.

But —

Warren E. Burger:

And the District of Columbia, acts of the District of Columbia are federal acts, are they not?

Richard W. Barton:

Yes they are, all applicable law here.

There is no such things as criminal offense against the District of Columbia, it is against the United States, and of course the laws of the District of Columbia, those enacted by the Federal Congress.

William H. Rehnquist:

You do have a DC code though that is different from the United States code?

Richard W. Barton:

Oh yes.

Many of the — by the laws are enacted by the Congress, it enacts certain legislation applicable exclusively to the District of Columbia.

Those laws are codified as District of Columbia, in the District of Columbia code. Of course, there are many other laws that are applicable to the District of Columbia as well as throughout the country.

Warren E. Burger:

Would that partly derives from the fact that the Congress would have no power to enact a great many of the laws in the District of Columbia code and make them applicable to the states, is that not so?

Richard W. Barton:

Yes.

Warren E. Burger:

Because it has a speed limit for Iowa or California or many of the other criminal acts?

Richard W. Barton:

Yes.

The plenary power which the Congress enjoys over the District of Columbia is extremely broad just about absolute.

It can do just about anything it wants to consistent with the constitution for the District of Columbia.

It is of course limited as to what it can be elsewhere with the interior operation of municipalities or states.

The other side contends here that Monroe versus Pape should be well in effect overruled by this Court.

And its argument in support of that is that a number of other lower federal courts have notwithstanding Monroe versus Pape applied it in cases seeking injunctive relief and that is true there are four circuits which I have held that notwithstanding Monroe versus Pape, you can seek injunctive relief against a state municipality.

There are a number of other cases that hold to the contrary.

Those states that have done so have relied upon footnote 50 in this Court’s opinion in Monroe versus Pape.

Several commentators have suggested that they have completely rewritten or misunderstood that footnote 50.

That it does not hold as several of the circuit courts concluded hold that they were limiting, the court was limiting its holding in Monroe versus Pape only the actions for damages.

And that you could still bring an action for injunctive relief under 1983 notwithstanding Monroe versus Pape.

Richard W. Barton:

That would appear to be completely inconsistent with the reasoning on Monroe versus Pape because if a municipality is not a person within the meaning of the Act as this Court held, then it would not be a person either for injunctive relief or court damages.

But as a recent District Court in Delaware pointed out perhaps all this is de minimis because in none of the cases in which the courts have granted injunctive relief under 1983 has the municipality been the only entity.

In every other case, in every case there has been governmental officials, members of the school board, the city council, the mayor, the police department or what not are members.

If they are amenable to injunctive action under the Act, it does not really add very much to say — to add the municipality too.

Because the municipality of course can act only through its agents.

If you enjoin its agents the members of the school board, the city council, the Chief of Police, you are not really adding anything else if you enjoin the municipality on top of that.

So those cases while we submit are not soundly decided, they do not militate against the soundness of Monroe versus Pape as we see it.

Thank you Your Honors.

Warren E. Burger:

Thank you, Mr. Barton.

Mr. Kaplan.

Warren K. Kaplan:

Mr. Chief Justice, may it please the Court.

Several years ago in a law review article written on the subject of Police External Review Boards, a then judge of the circuit Court of Appeals for the District of Columbia made mention of the omnipresent of review mechanisms at every level of our complex form of government, even at the level of judiciary.

He said, “Given the Supreme Court is not fully immune for in common with all judges they are at the mercy of the most cold blooded external review ever devised by man.”

I refer to the law professors who spent six months doing an autopsy on an appellate opinion often written under pressure in four or five days.

Mr. Chief Justice I do not know what case, if any, you had in mind when you wrote those words but it is certainly applicable to Monroe versus Pape.

For under 12 years that have elapse since that decisions of Printers Inc. and particularly in the two or three years, there has been a continuing barrage of criticism in the law reviews aimed at that portion of the decision which held that a city is not a person within the meaning of Section 1983.

The latest addition to that volume of criticism appeared too recently bring conclusion in our brief and I would like to cite the court to it at this time.

It is a comment in the University of Virginia law review, volume 58 commencing at page 143 which takes as it’s text the decision of the Court of Appeals in this case and which is entitled perhaps somewhat over enthusiastically Carter versus Carlson the Monroe Doctrine at Bay.

Potter Stewart:

Page 143.

Warren K. Kaplan:

Yes sir.

Now the essence of these several law review articles which are cited in our brief is essentially three-fold.

In the first place, it has been pointed out that the historical analysis which underlay this Court’s decision in Monroe, misconstrued the significance of the legislative history of the Sherman Amendment.

Secondly, it has been pointed out that in the subsequent cases of the lower courts and indeed of this Court, the Monroe holding has been departed from, has been eroded by the many cases which have granted equitable relief against municipalities and finally it has been pointed out and we concur in this suggestion that if it is open for the Court to reexamine its holding in Monroe, then all of the relevant policy considerations militate toward a different finding and that is, that a city is a person within the meaning of 1983.

Now if the Court — I should come back to those points in just a moment, if this Court notwithstanding these considerations should decline to reexamine its holding in Monroe at this time then we say that nevertheless decision of the court below should be affirmed because Monroe is distinguishable for the various reasons that were set forth in the opinion of the court below.

That is the rational of Monroe is inapplicable to municipalities which are not immune under local law and secondly that the District of Columbia is a unique entity.

But those arguments I would prefer to leave for my brief.

They have been dealt with extensively there and in the opinion of the court below and I would like to discuss at this time the reasons for reexamining Monroe as a whole.

Let me respond first to the question raised by Mr. Justice Stewart a few moments ago as to whether the District of Columbia is in fact involved in Section 1983.

I think that this Court disposed of that question in Hurd versus Hodge which was a 1947 decision.

It was a companion case to Shelley versus Kraemer, and it held that the district was a state of territory within the meaning of Section 1983.

Warren K. Kaplan:

I don’t believe that there has been any question about that in any case since that time.

There had been a couple of lower court cases which have repeated that statement since then one is Sewell versus Pegelow a Forth Circuit case found a 291 F.2d, page 196.

Warren E. Burger:

Is the Hurd case cited in your brief?

Warren K. Kaplan:

No, it is not Your Honor.

Warren E. Burger:

Give us that citation again?

Warren K. Kaplan:

I’m sorry Your Honor I don’t remember the citation.

Warren E. Burger:

What’s the title again?

Warren K. Kaplan:

Hurd versus Hodge, 1947 and followed, it was the very next case in the US reports after Shelley versus Kraemer.

Lewis F. Powell, Jr.:

It is stated in the opinion of Judge Bazelon and appears on the foot note on 3A of the appendix to the petition.

Warren K. Kaplan:

Oh, thank you, Your Honor.

Lewis F. Powell, Jr.:

334 U.S 24.

Warren K. Kaplan:

Thank you.

Potter Stewart:

And what was the other citation?

Warren K. Kaplan:

The other case is Sewell versus Pegelow a decision of the Fourth Circuit 291 F. 2nd, page 196.

Potter Stewart:

291 F. 2nd, 196.

Warren K. Kaplan:

Yes sir.

Potter Stewart:

I think your brother said that there were couple of citations in your brief but I didn’t —

Warren K. Kaplan:

I do not recall that there were in that point because if had ever been raised.

Finally I turn briefly to the legislative history which I think is very important in this case.

This Court predicated its holding in Monroe virtually exclusively on the legislative history of 1983 and the Sherman Amendment.

Subsequent research has indicated that historical analysis misconstrued the significance of the Sherman Amendment and of the matters that were put forth in debate in the Sherman Amendment.

Now if one reads the legislative, the Congressional Globe of 1971 and the measure which is here onto discussion that is 1983 and its amendments takes up virtually the entire first session of the 42nd Congress more than some 500 pages of 6 point, type 3 columns to the page.

If one reached through that considerable literature, one comes to two rather significant conclusions.

The first is that when the Congress was debating what is now Section 1983 itself, it never mentioned municipal liability.

And the second is that when it discussed the Sherman Amendment in which context it did discussed municipal liability it was talking about something very different from what was involved into 1983 and the principal objections to the Sherman Amendment are not applicable to the consideration of municipal liability under 1983.

Now 1983 was first discussed on March 25, 1871 and I must take a moment to go into this history in some detail.

This was pursuant to a message from President Grant that was received on March 23 of that year urging the Congress to enact some effectual legislation to vindicate Fourteenth Amendment rights.

From March 25 for a period of several days, approximately 10 days from March 25, 1983 itself was discussed a great length in the house and it was finally passed in the house with no mention whatever of municipal liability.

It then went to the senate t here it was again discussed for several days with no mention of municipal liability.

On April 15, just before the vote came in the senate, the so-called Sherman Amendment which would have imposed riot damage liability on municipalities without fault, that amendment was added just before the vote came there was no debate root came there was no debate and the amendment — the Sherman Amendment and 1983 itself was passed by the senate.

Warren K. Kaplan:

So that on April 15, after nearly 20 days of debate, 1983 without the Sherman Amendment in the house, with the Sherman Amendment in the senate had been passed by both branches without any debate whatever on municipal liability.

It was only after that point when it went back to the house that there ensued the vigorous debate over the Sherman Amendment and the essence of the opposition to the Sherman Amendment was not any hostility to the idea of municipal liability per se.

Rather it was hostility to the idea of municipal liability without fault.

Representative Kerr one of the most articulate opponents of the Sherman Amendment made it very clear on April 19 at page 788 of the Congressional Globe when he said of course in effect, that of course there would be no objection to the this Bill if it merely imposed liability for a breach of a duty which a municipality had and he pointed to examples which existed at the time of municipal liability for failure to repair streets or bridges, whether it was a duty.

In fact, he even said there would be no objection to municipal liability for riot damage if there were some fault involved, if it were required and he — and there were other statutes in existence at this time, of this nature in New York, Maryland and Pennsylvania.

If they were fault on the part of the municipal officials, the Maryland Statute at the time I believe provided that there will be liability for riot damage if the municipal authorities had noticed that the riot was going to occur and had it within their power to prevent it and did nothing.

In that situation, municipal liability would have been alright and in fact on April 20 when 1983 was finally passed in the house it was with a substitution for the Sherman Amendment which was consistent with Representative Kerr’s feelings.

That substitution is now Section 1986, the so called “Passive Accomplice Provision” which provides that if anyone is aware that a deprivation of Civil Rights is going to take place and takes no steps to prevent it, but has it in its power to prevent it or aid in preventing it then he too is liable.

William J. Brennan, Jr.:

I don’t like to interrupt your argument, but I have just been looking at Hurd and Hodge, that doesn’t involve 1983.

Thurgood Marshall:

1978?

William J. Brennan, Jr.:

It involves — it involves with a very different section, 1978 which is a present 1982 I think?

Richard W. Barton:

Excuse, excuse me, I believe it does, but I think that the — I think Your Honor it is correct, it is 1982.

William J. Brennan, Jr.:

Well and there is no holding in this Court that 1983 includes district —

Richard W. Barton:

Well I don’t know why 1982 —

William J. Brennan, Jr.:

There is no holding of this Court that 1983 includes a District of Colombia, isn’t it?

Richard W. Barton:

I guess that is correct Your Honor, but I would suppose if the district were includable in 1982, it also going to be included within 1988.

William J. Brennan, Jr.:

Alright, it doesn’t necessarily follow.

Potter Stewart:

Surely it doesn’t.

Why would that follow?

Richard W. Barton:

Well, I think that they’re both the same.

Potter Stewart:

1982, we held in Jones against Mayer was an act of Congress authorized by the Thirteenth Amendment which abolished slavery throughout the entire United States and every state and every territory and in the District of Columbia.

1983 by contrast has quite a different legislative history and shows a concern with the action of state officers in those states which, to use Congress’ rather tactless words in those days, have lately been in rebellion against the Union.

And why would in the light of that legislative history would 1983 apply to the District of Columbia which is entirely under the aegis, supervision and power of the Congress of the United States?

Richard W. Barton:

Well, I think Your Honor that the objectives of the all the sections of the Civil Rights Act are sufficiently common so as to apply to the District of Columbia as other state or territorial subdivisions.

Certainly, it would be an anomalous result if a citizen who is assaulted by a policeman across the district line in Montgomery county had a constitutional cause of action and his brother lives just across the line here in the District of Columbia, did not for a similar —

William O. Douglas:

But I don’t think in 1983, in Monroe rested upon any constitutional dimensions at all, did we?

Richard W. Barton:

Well, we —

William O. Douglas:

We did not say that it was unconstitutional to allow municipalities to be sued, did we?

Richard W. Barton:

No.

William O. Douglas:

It’s purely a question of statutory construction?

Richard W. Barton:

Yes Your Honor, yes Your Honor.

Of course 1983 itself was aimed that vindicating the Fourteenth Amendment Rights.

It was passed pursuant to Section 5 of Fourteenth Amendment.

William H. Rehnquist:

I don’t quite see the anomaly that you describe Mr. Kaplan saying that it would be a anomaly if in a state a man had an action, a cause of action based on an act of Congress that was designed to prevent states from depriving people of constitution rights, but he didn’t have the same cause of action here in the district where Congress is the sole legislative body?

Richard W. Barton:

While Congress is the sole legislative body, the police here are essentially locally controlled just as they are in the Montgomery country or Fairfax county?

William H. Rehnquist:

Well, what that has got to do with the anomaly under a statute like 1982?

Richard W. Barton:

Well, I suppose Your Honor that what I am saying, to put it in another way is that it would be small consolation through the citizen of the district who finds himself the victim of police brutality to know that he does not have a cause of action against his assailant unlike his neighbor who lives across the district line simply because the district is a federal entity.

William H. Rehnquist:

Well, the —

Thurgood Marshall:

Why would he (Inaudible) by his right to vote —

Richard W. Barton:

Well —

Thurgood Marshall:

(Inaudible)

Richard W. Barton:

Well, that’s not involved in this case of course.

Potter Stewart:

He might have all sorts of rights in the District of Columbia under that law of the District of Columbia, under the federal common law, statutory law against the policeman or the policeman’s superior, but the question is here is the applicability of a statute that was denied to curb actions under color of state law —

Richard W. Barton:

Well —

Potter Stewart:

— and to give and to confer federal jurisdiction upon such actions.

Now here in the District of Columbia all the courts are federal courts?

Richard W. Barton:

Well Your Honor, I would respond to that only by saying that in the message to Congress from President Grant on March 23 in which he requested them to act this sort of legislation, he said “I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty and property and the enforcement of law in all parts of the United States.

He was not restricting the impact of this legislation.

Potter Stewart:

The question is the legislation with which Congress responded to that message, that is where — that is what we have to try to follow?

Richard W. Barton:

Well, as Your Honor, as it was pointed out there has never been any question raised in this case as to whether it was applicable to district —

Potter Stewart:

Right, pointing out that Judge Bazelon has assumed it and cited Hurd against Hodge which on examination doesn’t stand (Inaudible)

Warren K. Kaplan:

As Mr. Barton volunteered I too would volunteer if the Court wishes supplementary memorandum on this point.

William O. Douglas:

Have there been any attempts since Monroe and Pape to get the statute amended to include municipalities?

Warren K. Kaplan:

The Civil Rights Commission Your Honor in 1966 I believe did suggest, the US Commission on Civil Rights did suggest that legislation should be passed so as to make municipalities liable for 1983 deprivations.

I do not that know that there has been any action on the part of Congress to do that, but of course as this Court has pointed out on various occasions —

William O. Douglas:

This is just a matter of curiosity, I wonder if there have been actual bills introduced or hearings in Congress?

Warren K. Kaplan:

I am not aware of any, Your Honor, but since the exemption of municipalities came about as a result of a judicial decision by this Court I would think that the reinstatement of municipalities as proper defendants could come about by the same route.

Although legislation would certainly be welcome I do not think that in this case it would be necessary.

Well, I would like to come back just for a moment to the legislative history and what is now Section 1986 which was the substitution for the Sherman Amendment.

We have a statute which imposes liability where there is fault, where there is knowledge that a deprivation is going to occur and the defendant is in a position where he could aid or he could prevent or aid in preventing the deprivation and there is their liability.

Warren K. Kaplan:

That meets the objection to the Sherman Amendment that Representative Kerr felt was so important.

So that the — that substitution is I think consistent with the notion that there should be liability where there is fault.

It is consistent with the notion that in municipality maybe a person within the meaning of Section 1983.

Since this Court’s decision in Monroe as counsel has pointed out, there have been several circuits, the Fourth, the Fifth, the Seventh, the Tenth which have notwithstanding the very clear mandate of this Court in footnote 50 to Monroe which has stated that “a municipality may nevertheless be a person for 1983 purposes where equitable relief is sought.”

This Court has in fact indicated its approval of that distinction in the subsequent cases of Turner versus City of Memphis, Tinker versus Des Moines that McNeese versus Board of Education in which without discussing the point, the Court implicitly approved the granting of equitable relief against the state subdivisions.

I think that the attempts made by some commentators to rationalize this distinction between the granting of equitable relief and the granting of damages cannot withstand close analysis.

Now the rationalization that is most often put forth is that equitable relief involves a lesser threat to the municipal treasury, and therefore, a municipality maybe a person for equitable purposes where it would not be if the claim were for damages, but the problem with that distinction, the problems are three-fold.

First of all, it is inconsistent with 1983 itself which expressly says that “Where there is — where you have a person who is depriving another person of his Fourteenth Amendment Rights, he shall be liable in an action for damages or equitable relief or any other proper proceeding.

Secondly, it is inconsistent with the facts of the matter, the fact of the matter being, an equitable relief may frequently involve the expenditure of very large sums of money, much more than are ought to be involved in an action for damages.

For example, in the case of Harkless versus Sweeney Independent School, which came before this term — before this Court last term in which the Court denied certiorari.

That — there was an action by ten black school teachers for reinstatement and back pay under Section 1983.

They have been out of work for some five years and the Fifth Circuit granted reinstatement and back pay under the guise of granting equitable relief.

Although the payment of some — several hundred thousand dollars was potentially involved.

In the case of Griffin versus Prince Edward County, I don’t believe that came up under 1983, but it was an example of the granting of equitable relief at enormous cost to the state subdivision where this Court ordered the Prince Edward County Schools to be reopened.

Finally, this distinction between equitable relief and legal relief is inconsistent with the statements of this Court in the Bevins case decided last term in which the Court indicated that where there is jurisdiction to grant equitable relief there ought also to be jurisdiction to grant legal relief.

I think that the proposition that we are contending for that is that the court upon reexamining its holding in Monroe should conclude that a municipality is or maybe a person within the meaning of 1983 is consistent not only with the legislative history and not only with the subsequent post Monroe cases granting equitable relief.

It is also consistent with the overall purpose of 1983 as expressed by President Grant and with contemporary notions of social justice.

We no longer believe as people did 200 years ago in the case of Russell versus Men of Devon that it is better for an individual to suffer an injury than for the public to suffer something inconvenience.

Contemporary notions of risk spreading are so well entrenched that just within the last dozen years, since Monroe, in some 27 jurisdictions, the doctrine of sovereign immunity has been partially or wholly abrogated either judicially or through legislation.

And in some nine other jurisdictions, municipalities maybe liable in action to damages where they have insurance and all that has occurred just almost entirely since this Court’s decision in Monroe.

Finally, municipal liability is essential if we are to achieve the two-fold objectives of deterrence of police misconduct and compensation for that misconduct when it occurs.

Police misconduct as was pointed out by the US Commission on Civil Rights in 1961 has been and continues to be a very serious problem in this country.

In fact just a few weeks ago there came across my desk in American Bar Association Report, the tentative draft of standards relating to the urban police function which says, “The continuing failure to devise and implement necessary procedures and sanctions to deal with police abuses is one of the most critical problems now confronting our society.”

And that is not the American Civil Liberties Union talking or the US Commission on Civil Rights, that is the American Bar Association.

Warren E. Burger:

But aren’t they concerned to not report that with improving the practice procedure, they are not concerned with rights of third persons, are they?

Warren K. Kaplan:

Well I think not.

I believe they are Your Honor concerned with the rights of third person (Inaudible)

Warren E. Burger:

They are not talking about rights in the sense, we are talking about here the right to recover.

They are talking about improve police practices so that people’s rights will be respected in the broad sense, aren’t they?

Warren K. Kaplan:

Well I believe they are concerned with that too, but I think it is clear that they are also concerned with Tort liability to third persons because they go on to urge that sovereign immunity should be abrogated by judicial decision where it still remains.

Warren K. Kaplan:

I think they are concerned with all of those purposes.

Of course as far as compensation is concerned there can be no meaningful compensation for victims of police brutality without municipal liability.

This Court in Mapp versus Ohio and the Fourth Circuit in Lankford versus Gelstonin and other courts in other cases have taken judicial notice of the fact that policeman are notoriously unsatisfactory defendants.

That they are habitually and incorrigibly judgment proof.

When they can be found and this case presents to another example of why they are unsatisfactory defendants, for in this case, the defendant John Carlson who on August 19th put on a pair of brass knuckles and beat the plaintiff’s face into a bloody pulp has not even been found for service of process.

So that there frequently can be no compensation for victims of police brutality without municipal liability and that has been pointed out by a vast number of commentators.

Well, I would say finally that another reason for imposing the municipal liability is that which is put forth by Judge Nickels in his concurring opinion in this case.

And that is to give some protection to the policeman so that the policeman will know that he does not any longer stand alone, that he has a municipality on his side to provide a defense for him.

I believe that all of these relevant — all of the relevant policy considerations point unequivocally to the imposition of municipal liability.

I see that my time has all but expired and I would like to leave the court with one further thought and that is this.

In the — for more than a century now the paper promises of the Fourteenth Amendment have for very many of our citizens in many parts of this country and in many aspects of your lives, particularly where police misconduct is concerned, have remained essentially that, that is paper promises.

In this case at this time this Court has a rare opportunity, the first such opportunity since Monroe v. Pape was argued 12 years ago this week, to transform those paper promises into meaningful reality.

Now I know that Mr. Carter, the respondent in this case who sits in the back of this room today has not fully understood all of the dialog that has just transpired filled as it unavoidably was will legal, with complex abstractions and jargon of our profession.

But he and the hundreds of Melvin Caters across this land will understand the impact of this Court’s decision and it is on his and their behalf that I most earnestly and respectfully urge this Court not to let this opportunity putting teeth into the Fourteenth Amendment pass, to pass un-exercised.

Thank you very much.

Warren E. Burger:

Mr. Kaplan.

Mr. Barton do you have it any further?

Richard W. Barton:

The respondent asked this Court to reexamine Monroe as Mr. Justice Douglas, the author of Monroe just stated, It was not decided on constitutional grounds, but upon the intent of Congress and this Court has said over and over again that absent clearly showing if error it will not reexamine non-constitutional questions.

In response to Mr. Justice Stewart’s question a little while ago, to me Hurd versus Hodge and Sewell versus Pegelow were the two cases I had in mind.

Hurd as Mr. Justice Brennan said did not involve the 1983, but it was cited by Judge Sobeloff in Sewell versus Pegelow for that proposition and Judge Bazelon in this case has picked that up too.

Thank you, Your Honors.

Warren E. Burger:

Gentleman, I think it might be useful in this case in view of some of the developments that occurred during oral argument for you to submit supplemental memos if you would like, covering these factors that you have referred to in the Hurd and the Sewell case.

It might help us unravel the situation.

The case is submitted.