Monroe v. Pape

PETITIONER:James Monroe, et al.
RESPONDENT:Frank Pape, et al.
LOCATION:Circuit Court of Montgomery County

DOCKET NO.: 39
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 365 US 167 (1961)
ARGUED: Nov 08, 1960
DECIDED: Feb 20, 1961

Facts of the case

On October 29, 1958, thirteen police officers, including Frank Pape, arrived at James Monroe’s Chicago apartment at 5:45 A.M. The officers broke down the door, forced Monroe and his wife to stand naked in their living room, and ransacked the apartment. Afterwards, James Monroe was escorted to police quarters and held for ten hours on “open” charges while he was interrogated about a murder. The police did not have a warrant for the search or the arrest, and refused Monroe permission to call his attorney.

Monroe brought a complaint against each of the Chicago police officers individually and against the City of Chicago. The City of Chicago moved to dismiss the complaint on the ground that it was not liable under the Civil Rights Act nor for acts committed in performance of governmental functions. All defendants moved to dismiss, arguing that there was no cause of action under the Civil Rights Acts. The district court dismissed the complaint. The United States Court of Appeals for the 7th Circuit affirmed the district court’s dismissal.

Question

1. Does a person have a valid cause of action under the Civil Rights Act against police officers when the police officers violate that person’s due process?

2. Can municipalities be liable under the Civil Rights Act?

Earl Warren:

Mr. Moore, you may proceed.

Donald Page Moore:

Thank you Your Honor.

Mr. Chief Justice, may it please the Court.

Our complaint in the District Court alleged the facts in Count 1 and it alleged the following facts.

On October the 29th of 1958, the petitioner, James Monroe, his wife, who was also a petitioner, Flossie Monroe, and their six children, who were also petitioners here, were at home in their Chicago apartment asleep in their beds, and at 05:45 that morning, the respondent, Deputy Chief of Detectives, Frank Pape and 12 other police officers from the Detective Bureau of the Chicago Police Department entered their — entered the Monroe home through the front and rear doors.

Chief Pape and two other officers went down the corridor and entered the Monroe bedroom.

At that point Mr. and Mrs. Monroe were asleep in their beds.

Flashlights were shined on the faces of Mr. and Mrs. Monroe.

One of the officers ordered James Monroe to get out of bed.

A gun was pointed at Mr. Monroe when this command was given.

Mr. Monroe got out of bed.

He had been sleeping with no clothes on.

He was naked.

He was told if he didn’t move fast, he would be shot and he was told to get into the living room.

Potter Stewart:

And all we have —

Donald Page Moore:

Mr. —

Potter Stewart:

— in this case is the complaint, the allegations of the complaint?

Donald Page Moore:

That is correct Your Honor.

Mr. Monroe went into the living room.

He stood in the middle of the living at the command of the police, he was still naked.

Immediately thereafter, another officer ordered Mrs. Monroe to get out of her bed.

She said I don’t want to do it because I don’t have any clothes on.

I’m paraphrasing the complaint now.

The officer insisted that she get up.

He grabbed her by the arm and started to pull her out of the bed.

As she was being pulled from the bed, she — she grabbed a blanket off — off the top of the bed and drew it in front of her.

And she was also compelled to go into the living room.

At about the same time, other officers were awakening the six Monroe children and herding them into the living room.

Meanwhile, still other officers began an exhaustive search of the premises.

It commenced in the Monroe bedroom when one of the officers went into the closet there and he pulled all the clothes off the hangers, examined each one separately and threw each garment on the floor.

Donald Page Moore:

Still other officers went through the various chests of drawers and other pieces of furniture in the apartment.

They pulled out the drawers, they dumped them on the floor, and I suppose we may infer from the complaint although it is not expressly stated, they then examined the various articles which had been dumped on the floor.

While the children were being herded into the living room, one of the officers, for reasons which are not stated in the complaint, kicked James Monroe, Jr. who is a four-year-old child.

And young Jimmy Monroe fell down and he started to cry.

Pape was in the living room at this point and he was addressing questions to Mr. James Monroe.

Pape had this flashlight in his hand that had — he had shone in the faces of the sleeping couple when he first entered the bedroom.

And as the Deputy Chief of Detectives would ask these questions at Mr. Monroe, he was striking or punching this flashlight into the stomach of the naked man while his children and his wife looked on.

For reasons which are not alleged in the complaint, one of the officers, I believe it — it was Deputy Chief Pape, had occasion to strike Robert Stevens who was the stepchild of James Monroe knocking him to the floor and thereafter to — pushed Houston Stevens, the brother of Robert Stevens, down to the floor in such a way that he fell across Robert’s body.

The daughter in the Monroe family, Jacqueline Stevens, panicked and she rushed to the back door.

An officer was standing near the backdoor.

He stepped in front of Jacqueline.

It is alleged in the complaint that Jacqueline’s intent at this time was to get out into — out of the apartment into a hallway to reach a telephone so that she might call someone and get help.

The officer near the backdoor stepped in front of her and pushed her down to the floor.

The officers then completed an exhaustive search of the premises.

This included among other things, taking razorblades and slitting open the mattresses on the various beds in the apartment as well as the other incidents to the search that I have described.

After some time, James Monroe was permitted to dress, and then his hands were cuffed together and he was led out to an automobile which was parked near the apartment.

He was placed in the automobile.

He was driven eventually to the Central Police Headquarters of the Chicago Police Department where he was taken up to a place of detention.

And he was there interrogated from time to time, subjected to intermittent interrogation, I believe it is the way it was phrased in the complaint.

And from time to time, he was placed on exhibition in police line-ups to which witnesses and other police officers come to view various individuals who are within the power of the police at that time.

After 10 hours, Mr. Monroe was released from custody.

He was not charged with a crime.

He has never been charged with a crime from that day to this.

It was alleged that during this 10-hour detention at the Central Police Headquarters, Mr. Monroe was refused permission to call his family.

He was refused permission to call his attorney.

No charges were placed against him.

He was refused any information as to what charges would be placed against him.

Of course, he could not, as we alleged in the complaint, make bail because no bail had been set because no charge had been filed.

In short, the allegations make out a classic case of incommunicado detention.

It’s the same thing that happens in all of these cases that this Court has had before it so — so very often in the coerced confession situation.

Donald Page Moore:

We alleged that the officers never had any intent of bringing Mr. Monroe before a judge promptly and that he was not arrested for this purpose.

We further alleged that in the building where Mr. Monroe was held for this 10 hours, there were four branches of the Municipal Court of Chicago with jurisdiction to receive criminal complaints and admit prisoners to bail and that elsewhere in the city there were 16 other branches of the Municipal Court with similar jurisdiction, and we have identified each one of these branches by number in the complaint.

We contend that having alleged these facts, and specifically invoked Title 28, Section 1343 to support federal jurisdiction and Revised Statute Section 1979, which defines our cause of action.

Our complaint should not have been stricken but that the defendant should have been required to answer it and we should have proceeded to trial.

Earl Warren:

Mr. Moore, by what means did the police gain admission to the apartment?

Donald Page Moore:

The — the phrase in the complaint, Your Honor, and I believe that’s in paragraph 10 (a) of the complaint, which is the second paragraph on page 3 of the record, is that the defendant, “broke and entered the apartment”.

Now, that is all that the complaint itself says.

If I were to go in more detail, I would have to go outside the record.

As a matter of fact, one means was used at the front door and a different means was used at the back door.

I think it couldn’t prejudice the defendants if I informed the Court that the back door was not broken down.

It’s conceivable that the door was pounded on and someone came and that somebody said, “Police, let us in”, in the case of the back door.

Of course, that’s — that’s the words of the record but I don’t think it’s prejudicial to the city since it negates the inference that the back door was broken down.

We believe that we have alleged the three elements which are required by Revised Statute Section 1979 which are quite simple.

First of all, the plaintiff must be a citizen or other person within the jurisdiction of the United States and at page one of the record, paragraph 2 of Count 1 of the complaint, we alleged that the plaintiffs are citizens or other individuals within the jurisdiction of the United States.

So we believe that we have satisfied that requirement of the statute.

The statute requires that the acts complained of must be committed under color of a state law, statute, ordinance, regulation, custom or usage.

In paragraph 6 of the complaint on page 2 of the record, we allege that the defendants were acting under color of the statutes, ordinances, regulations, customs and usage of the State of Illinois, County Cook, City of Chicago.

And in support of that conclusion we have alleged in paragraph 3 on page 1 of the record and in paragraphs 4, 5 and 7 at page 2 of the record, that these officers were on duty, they were acting in the course of their official duty, they were acting subject to the orders of the Detective Bureau, that they were led by a Deputy Chief of Detectives, that they were acting in the name of the City of Chicago on behalf of the City of Chicago, that they were carrying official badges and identification cards which were furnished to them by the City of Chicago for the purpose of identifying them as the agents of the City of Chicago, that they were acting within the scope of their employment.

And we believe that this makes out a case of color of law as that statutory phrase was defined in Screws versus The United States, 325 U.S. and Williams versus The United States, 341 U.S. and we contend in the Classic case the decision of this Court in 1940 or 1941.

Screws held that if a person acts under pretense of law, then he has acted under color of law.

If he is a servant of the state going about the state’s business, he has acted under color of law even though his acts may be in violation of applicable statutes or constitutional provisions of the state.

Screws, of course, was a case where a Georgia sheriff beat a negro prisoner to death and it’s perfectly clear that such acts were a violation of Georgia law.

Nevertheless, the sheriff was held to have acted under color of law within the meaning of Title 18, Section 242.

Felix Frankfurter:

Because does — Screws — the Screws case arise under the statute we’re now considering?

Donald Page Moore:

No sir.

It arose under 18 U.S.C. Section 242 which was then, I believe, Section 20 of the old criminal code.

Byron R. White:

That’s a criminal.

Donald Page Moore:

That is correct, Your Honor.

It was a criminal prosecution.

However, the language of Section 242, which is where the Screws statute is now found in the Code, is very similar.

Felix Frankfurter:

Is it the same?

Donald Page Moore:

Not precisely, Your Honor.

For example, Section 242 does not require that the Act be done under color of state law, if memory serves me correctly.

It merely says under color of law.

This is not so with regard to Revised Statute Section 1979 where the word state is inserted.

However the — outside of that, I believe that the color of law phraseology of Section 242 is precisely the same.

If memory serves me correctly, there are two, its color of a statute, ordinance, regulation, custom, or usage.

And as this Court pointed out in the Screws case, the opinion of Mr. Justice Douglas, I believe it’s in a footnote at page 99 of 325 U.S., the two sections are modeled on each other.

I forget which one came first.

The Court of Appeals for the Third Circuit, Picking against Pennsylvania Railroad, the Court of Appeals for the Seventh Circuit, in Geach against Moynahan and a number of other Courts of Appeals have inferred from this footnote in the opinion of Justice Douglas in the Screws case that the two provisions are in pari materia at least on the color of law provision.

We can see no distinction between this case and Screws, between this case and Williams, which was a case where a special police officer of the State of Florida participated with several other individuals in beating a confession out of a criminal suspect and was then prosecuted and convicted.

This Court affirmed in 341 U.S.

Potter Stewart:

In Screws there had been a — an arrest which was perfectly lawful under the local state law, had there not?

Donald Page Moore:

That is correct, Your Honor.

But I don’t believe that — that this is a valid ground for distinguishing the cases.

It seems to me that it’s more shocking, not less, if an arrest is made without probable cause, and that the operative fact in each instance is the fact that the individual involved is acting in the course of his official duties.

Potter Stewart:

Well, I was only addressing myself to that issue.

You’re now discussing the meaning of that phrase under color of law.

And the arrest, at least, in Screws had been in conformity with state law.

Donald Page Moore:

That is correct, Your Honor.

I — I would assume, although I do not know, that the arrest that was involved, however, in Williams against the United States was without probable cause.

I — I seriously doubt that the law of Florida, which was the state in which the facts of Williams occurred, authorized special police officers and other individuals to arrest a person and instead of taking him to a jail or to a shed or to a police lock-up or to a judge, to take him to a shed on the premises of a private employer and there conduct a fair investigation.

Now, respondents have argued that Screws should be overruled.

I think that this would not be a good idea.

I would like to point out to the Court that in addition to what we have stated about Screws in our reply brief, that the Congress, in enacting the Civil Rights Act of 1960 at page — at Section 601 (a) of the Act, employed the color of law phraseology in defining the duties of voting referees.

One of the duties of a voting referee in the language of the statute is to report to the Federal District Court findings as to whether an individual has been, “deprived or denied under color of law the opportunity to register to vote”.

This seems to me to reinforce our contention that since the color of law holding in Screws and Williams is simply a matter of statutory interpretation, that Congress could have changed it had it wished to.

Congress did not.

Instead Congress used the very similar phrase that was defined in Screws and in Williams over again, just this year.

This seems to me a congressional ratification of this Court’s construction of that phraseology in Screws.

Felix Frankfurter:

What about the statute in — in Williams?

Donald Page Moore:

Same statute, Your Honor.

Felix Frankfurter:

It’s not the same statute.

Donald Page Moore:

Well, there were several statutes involved in Williams, Your Honor.

Felix Frankfurter:

Well, the Williams case to which you referred —

Donald Page Moore:

The Williams case to which our —

Felix Frankfurter:

— what was the — what was the statute?

Was that a statute of color of law or a state action?

Donald Page Moore:

Well, both, Your Honor.

Both elements —

Felix Frankfurter:

But it’s different.

They’re different phrases, with different history.

Donald Page Moore:

Unless my memory is playing tricks on me, Your Honor, in Williams against the United States it was Title 18, Section 242.

Now, in United States against Williams, it was Section 241 was involved.

And of course, I have no reference to that case because that involves conspiracy.

Felix Frankfurter:

I haven’t (Inaudible).

I was referring to your Williams case —

Donald Page Moore:

Yes, sir.

Felix Frankfurter:

— which was not a color of law but a state — involved that is something that’s state action and those were different concepts.

Donald Page Moore:

Well, Your Honor knows more about these cases than I do when I —

Felix Frankfurter:

Well you — you should’ve read them all recently.

William O. Douglas:

Well, the Williams that you’re referring to is the one on 341.

Donald Page Moore:

That’s correct Your Honor, 341 U.S. at about page 90.

William O. Douglas:

90 — 97 and we there did apply the color of law.

Donald Page Moore:

That’s correct but wasn’t that prosecution under Section 242, it was — it was —

William O. Douglas:

Yes.

Donald Page Moore:

— clearly my understanding that it was and therefore necessarily in holding that the — the conviction was proper.

This Court must have held that the action was under color of law.

As a matter of fact, there is some language about this action was under the aegis.

I recall that specific word in the majority opinion of state authority and it was part of – and that the special police officer involved there had a semblance of official authority under Florida law because he was in a different position from a private citizen under Florida law.

Donald Page Moore:

So, if my recollection is correct then the prosecution was under Section 242.

Felix Frankfurter:

Do you think there’s a difference between purporting to act under the authority of a statute to which maybe bad and purporting to act under color of law which has been defined from the state law?

Donald Page Moore:

Well, I would — I would say that there might be a difference but it’s a difference which is irrelevant given this course — Court’s holdings in Screws and Williams.

And I would urge that regardless of the opinion which anyone may have now as to the wisdom of the majority holdings in Screws and Williams nevertheless by failing to change the statute although this Court specifically suggested that if Congress disagreed, it could change the statute.

By failing to change it, Congress has in effect ratified the holding in Screws and by using the same terminology or something very closely akin to it in the Civil Rights Act of 1960, Congress has even more explicitly ratified or endorsed the holding in Screws.

Felix Frankfurter:

Do you think when we get a permission to Congress to change the law and they don’t accept our offer that shows they’ve rejected it, is that it?

Donald Page Moore:

Well, not necessarily Your Honor but — but the language that the court used in the Screws case is highly suggestive.

It said at pages 112 to 113, “We’re not dealing constitutional interpretations which throughout the history of the court and wisely remained flexible and subs — subject to frequent reexamination, the meaning which the Classic case gave to the phrase under color of any law involved only a construction of the statute.

Hence if it states a rule undesirable in its consequences, Congress can change it and our contention is Congress did not.

Instead it used the same phrase all over again in a new section of the same statute.

This certainly does not indicate any congressional hostility to the holding in Screws on that point.

Finally, the constitutional violation which is the third requisite to a cause of action under the statute, we believe is supplied by the allegation of the facts coupled with the allegation at record page 9, Count 1, paragraph 18 that the aforesaid acts of the defendants constitute a violation of the constitution and laws of the United States in that plaintiffs and each of them were deprived by the defendants in each of them of their right to be secure in their home against arbitrary unreasonable searches and seizures.

We invoke the unanimous holding of this Court in Wolf against Colorado which was reaffirmed, vigorously reaffirmed by a majority of this Court in the decision of last June, Elkins against United States and we further note that even the dissenters in Elkins, I do not repudiate Wolf rather, if memory serves me correctly, they — they thought Wolf meant a little different something but nobody indicated that Wolf should be overrule.

And Wolf, this Court held that an unreasonable search or seizure by a state officer, at least did the search or seizure violated the core of the Fourth Amendment was a violation of the due process clause of the Fourteenth.

And in Elkins of course, this Court said that in Wolf we unequivocally and unanimously held that, “unreasonable searches or seizures by state officers violates Fourteenth Amendment due process.”

Now, it — it seems to us that we have simple statute.

It lays out three things which we must allege.

We have alleged them all unless Screws and Williams are repudiated or unless Wolf and Elkins are repudiated then we have stated a cause of action against the individual officers.

Of course, we have gone further and we have alleged that the City of Chicago is liable.

We have – and they moved to dismiss on the grounds that — well, what happened here was simply something done in the course of — the performance of the governmental function and therefore as a matter of Illinois law and impliedly as a matter of federal law, we are immune from tort liability.

And this of course is — is the doctrine of sovereign immunity rearing its weathered head in this case.

We — we start with the premise that there is no question but what Congress has the power if it chooses to make a municipality liable for the Fourteenth Amendment violations of its police officers acting within the scope of their employment, on behalf of the municipality.

And in our brief, we invoked the opinion of Chief Justice Stone in United States against California, 297 U.S. and the opinion of Mr. Justice Frankfurter in California against the United States, 320 U.S. where it seems to us that this is implicit in those cases.

Indeed it is exquisite.

The first California case involved $100 statutory penalty under the Safety Appliance Act against the State of California for mis-running, one of its railroads in some particulars.

The second California case involved whether — the question whether the State of California was subject to the Shipping Act to 1916.

In each instance, the State of California said, “We’re a sovereign.

We’re immune.”

It further said, “We’re not specifically named in the statute therefore it doesn’t apply to us.”

The court aptly remarked that these were federal statutes that California was not the enacting sovereign.

Donald Page Moore:

There’s never been a presumption that a political subdivision is not to be included within a liability frame by a statute unless that political unit was the enacting sovereign.

And in each instance, it held that the State of California was subject to the statute.

Then we go on, assuming the congressional power to do this and we suggest to the court that in adopting the Act of April 20, 1871, Congress did make municipalities liable.

We suggest first that the doctrine of respondeat superior which is very old, which is very socially useful and which is something that — that lawyers absorbed into their bloodstreams with their first law school course in torts is implicit in the provisions of the Fourteenth Amendment and is implicit in the Civil Rights Act which was passed the Civil Rights Act of 1871 with the title, “An Act to enforce the provisions of the Fourteenth Amendment.”

The Fourteenth Amendment prohibits action by states.

Congress passed the Civil Rights Act of 1871 to enforce the Fourteenth Amendment.

I don’t — unless its — I don’t know that it follows QED but we suggest that therefore it make sense at least prima facie to hold that the Civil Rights Act to 1871 is applicable to the subdivisions, the corporate subdivisions of a state.

We go further, we — we point to the legislative history of the Act of 1871 and we point to the language of Representative Shellabarger who was the principal sponsor of the 1871 Act where he says that this Act is remedial, it’s an aid of human liberty, it is to be construed liberally.

That’s at page 23 of our brief.

Representative Shellabarger said the largest latitude consistent with the words employed is uniformly given in construing in effect such statutes as this.

This was the opening speech in the debate on the Civil Rights Act of 1871 by its sponsor.

Felix Frankfurter:

Is — is that all you found in the legislative history on this subject?

Donald Page Moore:

On — on this subject of —

Felix Frankfurter:

Under the specific question whether municipalities are to be made liable?

Donald Page Moore:

No, Your Honor.

We found —

Felix Frankfurter:

Is that all you found?

Donald Page Moore:

No, we found much more —

Felix Frankfurter:

Is that (Voice Overlap) —

Donald Page Moore:

— Your Honor.

This is all we found on the question of what the Congressman thought about whether this Act was remedial or penal.

Felix Frankfurter:

What I mean, specifically?

Donald Page Moore:

Specifically Your Honor, I — I would call your attention —

Felix Frankfurter:

You found detailed legislative history dealing with this various subject?

Donald Page Moore:

Yes, I did Your Honor and —

Felix Frankfurter:

Did you — did you set that forth in your brief?

Donald Page Moore:

Yes sir.

At —

Felix Frankfurter:

Where?

Donald Page Moore:

— pages 29 to 30 Your Honor.

Felix Frankfurter:

But did you set forth the origin, the original statute which had a provision in — then which — which was not concurred in by the House and all that?

Donald Page Moore:

Yes.

In the footnotes Your Honor at page 30, we discussed the Sherman Amendment to which you have reference and —

Felix Frankfurter:

That specifically granted?

Donald Page Moore:

Yes, but an entirely different situation.

In that footnote, we also explained why we think the Sherman Amendment is not relevant to this statute.

Felix Frankfurter:

Well, I — alright.

Donald Page Moore:

If — in the — the Sherman Amendment was an amendment which was thrown in at the last minute by Senator Sherman of Ohio after the Act of April 28th that had already passed the statute and as Congress was driving toward adjournment.

Senator Sherman sought to introduce, did introduce and the Senate adopted an amendment to the statute which provided that the victims of the mob violence of private individuals might have a remedy in action against “every city, county or parish” in which the damage occurred.

It could have a remedy against the city or county.

The Senate adopted this Amendment.

The House rejected it, refused to concur.

The Senate adopted it again.

The House again not concurred, whereupon a substitute measure which became Revised Statute Section 1981 was put in there.

Felix Frankfurter:

Leaving out all reference to municipalities.

Donald Page Moore:

That is correct Your Honor.

Felix Frankfurter:

And speeches against — even the constitutionality of that along the wisdom of imposing this.

Donald Page Moore:

But the —

Felix Frankfurter:

Is that true?

Donald Page Moore:

At least one speaker Your Honor and that is Representative or rather Senator Stevenson of Kentucky.

Felix Frankfurter:

But in the House, wasn’t there serious speeches against this liability?

Donald Page Moore:

Yes, Your Honor.

They — the speeches centered around the notion that — that some of the Representatives had that this would be a violation of governmental immunity to taxation.

However, most of the speeches were directed to the obvious unconstitutionality at least to some of the congressman, it was obvious, of giving a federal remedy under the Fourteenth Amendment to action — for damages suffered as result of action which was not state action but which was private action.

And some of the congressman I believe pointed out to the Fourteenth Amendment that it prohibited only state action.

The Fourteenth Amendment of course says no state shall and most of the barrage of criticism which the Sherman Amendment faced was based not only on this constitutional objection, but on — on the obvious injustice or what seemed to them the obvious injustice are subjecting the city to liability for actions, not of persons over whom the city had direction and control but over private individuals who were not the employees of the city and not subject to it’s disciplinary controls in the same sense that a police officer may make.

Felix Frankfurter:

And you think a general remarked by Congressman Shellabarger of — about construing this thing liberally is more controlling and more helpful to this Court to consider than the serious debates which referenced the municipal liability around — against it, not only on constitutional grounds but on grounds that followed it?

Donald Page Moore:

Well, I — Your Honor, yes, because I don’t believe what Your Honor has said quite correctly characterizes this serious debate.

I would point out first of all that the people who were up in arms about the Sherman Amendment.

And again the Sherman Amendment is a very different thing from Section 1 of that Act.

Felix Frankfurter:

(Voice Overlap) but it did deal with municipal liability.

Donald Page Moore:

Yes, it did.

Felix Frankfurter:

The subject was raised.

Donald Page Moore:

It certainly was, Your Honor.

Felix Frankfurter:

Objection was made to holding a municipal liable — municipality liable for anything.

Donald Page Moore:

That — that is correct Your Honor.

Felix Frankfurter:

Alright.

Donald Page Moore:

However, I would point out that the people who made this objection where people who were opposed to the civil rights bill as a whole altogether and I would point to the language of Justice Douglas for the court.

Felix Frankfurter:

But their objection prevailed and those who sponsored the Civil Rights Amendment yielded to those objections.

Donald Page Moore:

They yielded to —

Felix Frankfurter:

And still more significant, not less significant.

Donald Page Moore:

I think not Your Honor because — you know you can point to a particular statement by any one individual in that —

Felix Frankfurter:

But that’s what you did when quoted Shellabarger’s general remark.

Donald Page Moore:

Much more important than the remarks of a dissident democratic opponent of the Act Your Honor.

Felix Frankfurter:

Now what the dissident’s objections were yielded to?

Donald Page Moore:

They were yielded to with regard only to the Sherman Amendment which was directed at private action by private individuals.

We cannot look into the minds of the individuals who went along with the objections to the Sherman Amendment and assume that they picked up isolated statements by Senator Stevens — Stevenson and relied on nothing else in the entire debate because there were policy objections to municipal liability for private individuals.

There were all sorts of constitutional objections of which this was only one.

And it was not stressed into the debate nearly so much as the — as these other questions.

Felix Frankfurter:

Your reading of the debate — on your reading of the debate, would you deny that there were policy objections to holding the municipality at all.

Donald Page Moore:

I’m — I do not understand the question Your Honor.

Felix Frankfurter:

Do you — does your reading of the debates in both Houses not encounter objections to holding the municipality at all liable?

Donald Page Moore:

Yes, yes, we do encounter those objections most articulately stated by Senator Stevenson.

But, they weren’t everybody’s objections and they weren’t on Section 1 of the bill which is our section.

Now, I would suggest to Your Honor that the remarks of the opponents of a bill – well, we cited the Schwegmann Brothers case.

Now, that is not precisely applicable because here, the opponents did prevail on the amendment but that is a very different thing from assuming that Congress without saying so, met that there was to be no municipal — municipal liability anywhere.

No congressman for or against the bill ever said that there could be no municipal liability under Section 1 of the bill in spite of the fact that Representative Shellabarger who I supposed we must assume was more carefully listened to than any other congressman who —

Felix Frankfurter:

Pardon (Voice Overlap) —

Donald Page Moore:

— supported — sir?

Felix Frankfurter:

Why isn’t that?

Donald Page Moore:

Because he made the lead off speech and as you go through that legislative history, Shellabarger keeps popping up to answer questions.

Felix Frankfurter:

And he tried them by popping up to answer them.

Donald Page Moore:

Well, it’s — it’s possibly Your Honor.

I don’t suppose we can prove it one way or the other.

Felix Frankfurter:

That’s what I was suggesting.

Donald Page Moore:

I would however point out to the court that that Congress did one thing that the Congress as a whole articulated one thing just about seven weeks before it passed the Act of April 28, 1871 when it adopted on February the 25th, 1871, “An Act to prescribe the form of the enacting and resolving clauses of Acts of Congress and rules for the construction thereof.”

This statute among other things defines certain general terms.

It has been referred to on occasion as the Act of Congress in — in prescribing its own dictionary in the Article by Justice Frankfurter in 47 Columbia Law Review.

This dictionary statute said among other things that the word person maybe construed to apply to bodies corporate and politic unless the context otherwise indicates or unless the text otherwise indicated.

It’s a — the grandchild in that statute now says conte — context then it said text.

Now our basic position is this.

The Act makes every person liable.

The Congress said, a person maybe construed to include bodies politic and corporate everybody in 1871 who had any legal training whatsoever must have assumed that bodies politic and corporate meant cities in our Appendix D to this complaint.

We’ve listed a whole rap of the statutes, creating cities, we quoted one, creating Scottsboro, Alabama.

And we listed a whole rap of other ones and every single one of this statute says that the City of Chi — of Scottsboro shall be a body politic and corporate with power to sue and be sued.

When they used those words bodies politic and corporate they must have been thinking inter alia at least of cities.

And they used the word person in the Civil Rights Act of 1871.

Therefore clearly, this Court meant without doing violence, I suggest to the history of — of — that session in the Congress which happened 1871, hold that person here means body politic and corporate, i.e. cities.

City of Chicago was created as a bodies politic and corporate back in the 1830s.

It’s still a bodies politic and corporate.

Now, we have this and we have the further question which is more significant it seems to me which is raised by the prior holding of this Court in the Holmes against City of Atlanta and Douglas against the City of Jeannette, where implicit in those cases is a holding the municipal corporations can be made parties-defendant in an action under Revised Statute Section 1979.

Both of those cases were actions under Revised Statutes Section 1979, equity actions.

In both of those cases it was held explicitly in the opinion, Douglas against the City of Jeannette and by necessary implication in the Holmes case where this Court merely entered a short order affirming that a city was subject to the provisions of Revised Statute Section 1979.

That must mean that a city is within the phraseology every person because the Act makes every person liable to an action at law, suit in equity or other proper proceeding for redress.

If the defendant is not a person, you have no cause of action under the Act I would suggest.

And yet everyone has always assumed that a municipal corporation is liable — in an action in equity or an injunction under this section of the statute.

How can — it — its difficult for me to understand how you can hold that a city is a person in equity and not a person at law particularly difficult when we look back to what the sponsor said, the statute is remedial in its purpose to be construed liberally.

We are to give it the largest latitude consistent with the words employed.

Then we looked to the dictionary statute where Congress has expressly said that when we use this word unless the text of the statute indicates otherwise.

It may be construed to indicate a body politic and corporate.

Donald Page Moore:

View — viewed in conjunction — viewed in conjunction with the contemporary understanding of the word person which we have outlined, the — the first case so far as I know under this statute was North Western Fertilizing Company against the Village of Hyde Park in which a District Judge sitting right in Chicago held that a corporation was a person who can bring suit because otherwise it could not be a person for purposes of being a defendant.

And I might also point out that the defendant, the North Western Fertilizing Company was in fact a municipal corporation, it was the Village of Hyde Park which is of course now is part of Chicago but what it was then a village and that nobody even suggested that it wasn’t a — that it wasn’t a person for purposes of being a defendant in that action.

Again it was an action in equity and not law of course.

Now, all we’re suggesting here is that on the law — on the technical history of the phraseology of this Act, there is ambiguity that — that there is room here for this Court.

There is sufficient ambiguity, sufficient doubt so that this Court can look to the policy factors which inherent in a claim of sovereign immunity, a claim of immunity from a particular statute of the United States by the City of Chicago and we have gone on at some length for this reason on the policy issues which are at stake.

We have pointed out that this Court has consistently criticized the doctrine that every legal scholar publishing anywhere in this country today, there maybe exceptions but I don’t know of them, has attacked the doctrine because it’s unfair, because it works terrible injustice.

Because a — because a family like the family of James Monroe has no remedy that means anything unless it can sue the City of Chicago.

The civil damage provisions of that statute do not mean a thing unless there is a financially responsible defendant in the case, when as lawyers generally speaking will not represent clients unless they can make money doing it.

If a plaintiff’s lawyer can make money, bringing actions, a cause of actions can be an immense, an immensely effective tool of public policy.

One has to look only at the — at the Federal Employers’ Liability Act to see how plaintiff’s lawyers because they know they can hit for money have gone out, they’ve gone after these cases and they brought these actions and as a result to the verdicts they’re getting, the railroads have evolved immense safety programs.

Charles E. Whittaker:

What do you mean by they’ve gone after these cases?

Donald Page Moore:

What I mean Your Honor is that they — that they have sat in their offices and been alert when these cases came to them.

John M. Harlan II:

Sometimes they don’t sit in their offices.

Donald Page Moore:

Well that is correct Your Honor but I think — we submit that injury suffered by railroad workers as a result of the negligence of his employer are no more important, no more hurtful socially than injury suffered by innocent individuals as a result of the unconstitutional acts of local police officers.

The — the lawyers —

Potter Stewart:

It make no difference — does it make any difference where they’re innocent or not?

Donald Page Moore:

Well, it makes this very practical difference Your Honor and — and I think this is important.

A guilty defendant at least in many insistencies has a forum in which he try out the question of right in their home law in is area of procedural due process as it respects actions of police officers is made in cases mostly where defendants are guilty that they’re trying to suppress evidence, they’re trying to suppress confessions.

At least and I think this, a not inconsiderable value, at least a murderer from whom a confession is extorted has the satisfaction, if his lawyer is good and his trial is fair of — of having someone say what has been done to him is wrong.

Having it said formally and officially.

I — I believe Professor Carl talks about the sense of justice which is important and which is satisfied by a formal official determination (Inaudible) an innocent person doesn’t.

An innocent person is bereft of any practical remedy because — if as usually happens, he’s poor, he can’t get a lawyer.

If he is poor, the states attorney, the prosecuting authorities are not going to pay much attention to him usually.

And he is not charged with anything.

There is nothing to suppress.

If this family has no remedy here, and this means an effective remedy.

Then for practical purposes it has no remedy at all.

Now I think there is sufficient ambiguity in the background of the statute so that this Court may without engaging in broad side legislation which of course he cannot do.

So that it may consider these policy factors.

It has certainly considered them in other cases for example in United States against the AMP Trucking Company, this Court considered policy factors when it read respondeat superior into a criminal statute.

Donald Page Moore:

Although respondeat superior was not written in the language of the statute and it used — it used as part of the support for its reasoning and imposing what the dissenters called vicarius criminal liability as part of its support, it referred again to this dictionary statute.

Now, it seems to me that if in encouraging employers to police their employees is this important in the area of complying with the Interstate Commerce Act, it is this important in the area of protecting the fundamental civil liberties of four individuals who are not going to get protected under other circumstances.

And it seems to me I again that this Court can’t — has enough leeway in the background of the statute so that it can consider this policy considerations.

I would like if the Court please to save 5 minutes for —

Earl Warren:

You may.

Donald Page Moore:

— rebuttal.

Earl Warren:

You may.

Mr. Drebin.

Sydney R. Drebin:

Mr. Chief Justice, members of the Court.

If we were to take final argument of counsel at its face value, I would presume that I have already confessed error in this particular case that he has already secured a judgment against Pape and that unfortunately he cannot collect the judgment and that is all there is to this case.

But, I don’t think that the problem is quite that simple.

I think there is more to it than merely a confession in this case.

The Civil Rights Act has been on the books since 1871 and then all that time there have only been four cases before this Court involving the Civil Rights Act, true enough, there have been other statutes but there have only been four cases in 1871 involving the Civil Rights Act.

And in none of those cases has this Court had occasioned to test or to examine or to determine the constitutionality of the Revised Statutes of 187 — of 1979.

The last time that this case was before this Court was in 1951, that involved an equity proceedings to restrain the introduction of illegally seized evidence in the state criminal action.

And this Court through Mr. Justice Frankfurter discussed the Wolf case that counsel has discussed today and said that all legal seized evidence although contrary to the Fourteenth Amendment is not admissible or rather it is up to the state court to determine whether it is admissible.

I think that it is necessary at this time.

Counsel asked in his petition for certiorari that you grant this petition to test the constitutional right of freedom from arbitrary police invasions of the home.

Let us examine this statute and let us determine whether or not it is constitutional.

Let us determine for — the Fourteenth Amendment let us see how it does apply to this particular statute.

Section 1 of the Fourteenth Amendment says, “No state shall make any law nor shall any state deprive any person of life, liberty or property.”

Way back in the olden days, way back in 1875, this Court in a case, United State versus Cruikshank, first interpreted in language in the Fourteenth Amendment and at that time this Court determined that the only obligation resting upon the United States it to see that the states do not deny the right.

This — the Amendment guarantees but no more the power of the National Government is limited to the enforcement of this guarantee.

And then we have the Civil Rights case in which of the same language was expressed.

And this Court has always had heard — adhered — adhered to the general principles laid down in these two cases.

Mr. Justice Black in Screws versus United States which is the subject which is so much discussed in this case said the fact that a prisoner is assaulted, injured or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the constitutional laws of the United States.

The Fourteenth Amendment did not alter the basic relations between the states and the National Government.

Our National Government is one of delegated powers alone.

Under our national system the administration of criminal justice rest with the states except as Congress acting within the scope of those delegated powers have created offenses against the Unites States.

And Mr. Justice Frankfurter has also expressed the same thought and that United States versus Williams, the first one, 341 United States 70.

Sydney R. Drebin:

So that I do think that the general principles as to the delegation of power by the National Government and to Congress has agreed upon by every member of this Court, it is only when we come into the twilight zone.

It is only when we find these certain principles to specific facts that we come into difficulty.So that brings us to the question of this Civil Rights Act.

Counsel has misquoted, I’m sorry to state, the language of the Civil Rights Act.

He said the Act provides that there is a violation of any right.

That is not true.

The Act provides that if there is any deprivation of any right and there is whole of a difference in the world for — between a violation and a deprivation.

And also there is a whole difference in the world between old Section 20 of the Criminal Code and the present Civil Rights Act.

In the first place, the old Criminal Code, Section 20 uses the word willfully, it gives a specific intent.

The Civil Rights Act does not contain the word willfully.

There is no specific intent.

The old Criminal Code provided according to the constitution and laws of the United States are surprisingly and I say surprisingly, our present Civil Rights Act does not tell us what constitution and what law — right — laws must be violated.

It does not say of the United States.

It merely says the constitution and the laws.

What constitution and what laws are we are to violate.

Are we to violate the laws of every one of the states?

Is that what constitution had in mind or the territory as it says.

We surely cannot imply that is a violation of the Fourteenth Amendment or any other Amendment or statutes passed by the Congress.

As — this question was discussed in great detail in the Screws case here.

There, Mr. Justice Frankfurter decided that this Section 20 containing the words will —

Felix Frankfurter:

I didn’t decide — I didn’t decide anything on that.

Sydney R. Drebin:

No, no.

Pardon me.

I’m sorry.

Mr. — Mr. Justice Douglas decided.

That the words willfully —

William O. Douglas:

I had — I had some help in that case.

Sydney R. Drebin:

I did not hear you.

William O. Douglas:

I had some help.

Sydney R. Drebin:

Yes, I — I know that.

And it was a very difficult case.

Sydney R. Drebin:

As a matter of fact, it were stalemated and that’s — in a particular case, four-to-four, a very, very interesting case.

However, in that particular case Your Honor discussed the question of willfully and determined that that was a specific definition of specific intent because looked — hooked up with that was the phrase, the constitution and laws of the United States.

The dissenting opinion in which Mr. Justice Frankfurter took part — took issue with the question of willfully and stated that in — there is — in their opinion a specific intent of willfully, take it in and of itself is non-sufficient.

If such is the situation in the Screws case involving the criminal section, what is the situation in this case where two of the linking words in the Screws case is missing in the present, mainly, willfully, and the fact of violation of the constitution and the laws of the United States.

I claimed that Section 8 — 1979 is unconstitutional.

First, because it is an unlawful deligation of rights and secondly because it is so vague and indefinite, it is unenforceable because of these two provisions.

The Civil Rights Act is not corrective.

It is not prohibitive legislation.

It does not deal with state action but rather with the individual action unsupported by any state laws or rights.

It is primary and direct.

It gives one individual a cause of action against another, and it is my contention that Congress does not have that power under the Fourteenth Amendment.

Then we come to the specific question of whether or not, the acts of Frank Pape were under the color of any statute or ordinance.

It is admittedly, the constitution and statutes of the State of Illinois and the ordinances of the City of Chicago prohibit unreasonable search and seizures and assault and unreasonable detention.

So that Pape, although he was a police officer of the City of Chicago, neither acted nor purported to act under color of any statute or ordinance.

Rather, he acted in direct violation of the state constitution and the state statutes and the ordinances of the City of Chicago.

Pape who was merely a private trespasser and this Court has long held that the violation of a state law does not create a federal cause of action under the Fourteenth Amendment.

We start with the only old case of Barney versus the City of New York, a 193 U.S. 430 decided in 1903 in which the Court held that the federal courts under the Fourteenth Amendment do not have jurisdiction over state action.

And then we have this Snowden versus Hughes case, an Illinois case, 321 U.S. 1 decided in 1943.

That was a case in which the State Canvassing Board refused to certify one who had been nominated as a state representative and he filed a suit under the Civil Rights Act.

And this Court held that he did not have a cause of action.

And Mr. Justice Frankfurter, in concurring in this particular opinion stated, the question whether action of State Canvassing Board is state action, that is the question.

It is not to be resolved by abstract considerations such as the fact that every official who purports to ill power conferred by a state in pro tanto, the state otherwise, any illegal discrimination of a policeman on the beat with the state action for purposes of suit in a federal court, hiding that language is very (Inaudible) in this particular case.

Otherwise every illegal discrimination by a policeman on the beat would be state action for purposes of suit in a federal court.

I would like to discuss in great detail Screws versus United States which apparently is the basis for complaint of the petitioners.

And in that case, Mr. Justice Douglas said, “We are not dealing here with a case where an officer not authorized to act nevertheless takes action.

Here, the state officers were authorized to act — to make an arrest and to take such steps as when necessary to make the arrest effective.

He acted without authority only in the sense that they used excessive force in making the arrest effective.”

That is not the situation in the case at bar.

In the case at bar, every act of Captain Pape and every other one of the officials was the illegal furnishing section.

They did not have a search warrant.

Sydney R. Drebin:

They did not have a warrant for arrest.

They arbitrarily went in there and seized these people.

So therefore, the Screws case is not an authority for the facts in the case at bar.

The Screws case was a criminal case under a criminal act.

It involved the United States Government.

It was a suit between the United States and a criminal.

The cause of action in the case at bar is private between individuals.

In the Screws case, they acted under color of law.

It had a warrant for his legal arrest.

They did not act under color of law.

He did not have a warrant.

His conduct did not come within the statute.

Hugo L. Black:

Was he without power to arrest without a warrant?

Sydney R. Drebin:

What?

Hugo L. Black:

Does he have power as anything that indicates whether he has the power not to arrest without a warrant?

Sydney R. Drebin:

He does not have —

Hugo L. Black:

(Voice Overlap) —

Sydney R. Drebin:

— the power.

The statutes and constitution and the ordinance specifically provide that he must have a warrant before he can arrest except when the act — the criminal act is in view or except in those cases where a crime has been committed and he has reason to believe that this individual is the one who committed the crime.

Those are the only instances in which —

Earl Warren:

Has there been a crime committed in this case?

Sydney R. Drebin:

There — there had been, yes.

Earl Warren:

And were they seeking to connect this man up with it?

Sydney R. Drebin:

Yes.

Right.

He was put —

Earl Warren:

Oh, I suppose they would claim they had probable cause, wouldn’t they, that he was there?

Sydney R. Drebin:

Well, that is not in the record.We filed — we filed a motion to strike his complaint.

Earl Warren:

But if they did have the probable cause, they could’ve gone in there, could they?

Sydney R. Drebin:

That is right.

Sydney R. Drebin:

Because a — a murder had been committed, the wife of the murdered man pointed Monroe out as the criminal who killed his wife — or husband.

That is not in the record and we are taking the record as we find it and we contend that in this particular case, he had no warrant and therefore, it was not justifiable.

Also, their Section 20 as I said creates an offense against the United States.

The Civil Rights Act creates an offense by one individual against another individual and his action was not an offense against the United States.

The United States is not a party in this particular case and that is the large — the great distinction between the Williams case and the Screws case and the case at bar.

Earl Warren:

Are the officer — are the officers amenable to this act?

Sydney R. Drebin:

What?

Earl Warren:

Are the officers amenable to this act?

Sydney R. Drebin:

What act?

Earl Warren:

One where we have under review here?

Sydney R. Drebin:

In my opinion, they’re not.

Earl Warren:

Pape is not — they’re not subject to it.

Sydney R. Drebin:

Under the Civil Rights Act?

Earl Warren:

Yes.

Sydney R. Drebin:

In my opinion, he is not.

In my opinion, he — he is not acting under any color of law.

He is not acting under any statute.

He is not — he is merely a tortfeasor.

He is in no different position than every stranger around the street.

He came up to —

(Voice Overlap)

Charles E. Whittaker:

You want to describe the — that the color of state law to mean acting legally?

Sydney R. Drebin:

I mean, not legally.

I mean that — that the Fourteenth Amendment had in mind in Section 1979 which is a Civil Rights Act should be construed to mean that the only time an individual has a cause of action is when the police officer or if when the state has a passed an act contrary to the Constitution and when the State has passed an act contrary to the Constitution and contrary to the Fourteenth Amendment, then the state comes into play.

Charles E. Whittaker:

If that is your — if it is your view, (Inaudible) that one is not acting under color of state law unless he is acting within the law?

Sydney R. Drebin:

That is right.

Charles E. Whittaker:

Then — then how do you explain — what meaning do you give to color of state law?

Sydney R. Drebin:

Color of state law is custom and usage.

That’s where custom and usage comes in.

In my opinion, you talk of violation of a statute or color of law.

Sydney R. Drebin:

That is custom and usage where although there is no written law, certain things take place within the state.

We must bear in mind that the Civil Rights Act was enacted shortly after in the freedom of the displaced.

And that all these legislations that we are talking about, is in order to protect the free slave as a United State citizen.

And it seems to me from the cases are that it was directed primarily to the southern states.

It is only in the last few years that the lawyers in Chicago and other northern cities had begun to spread the theory of the Civil Rights Act to incidence occurring in the north and where color is not a question.

I do not believe that is the basic theory under which this original Civil Rights Act was passed.

John M. Harlan II:

In other words, what you’re really arguing is that the Civil Rights Act —

Sydney R. Drebin:

I cannot — I cannot hear you Mr. —

John M. Harlan II:

— in your view — what you’re really arguing isn’t the Civil Rights Act under your view is limited to the racial issue, is that it?

Sydney R. Drebin:

I do not — that is what — no, that was the purpose of this enactment and — but the Civil Rights Act is directed for the Fourteenth — let’s put it this way, I think the Civil Rights Act is unconstitutional because it’s in violation of the Fourteenth Amendment because the Fourteenth Amendment goes only to action by the State.

The Civil Rights Act —

John M. Harlan II:

Well assuming — assuming for a moment that the Act is constitutional, could you give us an illustration of what would be reached by this Act or something that we’d reached by this Act under your view, how should you interpret it?

Sydney R. Drebin:

Yes.

Let us presume for the sake of argument at the State of Illinois passed the statute legalizing searches and seizures where the — even though they are unreasonable, then that statute would be unconstitutional in violation of the Fourteenth Amendment.

The Fourteenth Amendment according to the early cases is merely prohibitive.

The state must act first and if the state acts in contravention of the Fourteenth Amendment, then the Act, the state act is unconstitutional and can be corrected by the Federal Government.

Charles E. Whittaker:

Isn’t this what you’re really saying, if I understand you, you’re saying that a state or its provisions may not be held liable for the act of an officer unless he is acting within the course and scope of his power.

Sydney R. Drebin:

That is right, as — as long as that supplements the —

Charles E. Whittaker:

In other words, to make for liability, he must be acting within the law.

Sydney R. Drebin:

That is right.

Charles E. Whittaker:

Then why I would like to hear you saying, would Congress then say or use the phrase color of state law rather than in obedience to state law?

Sydney R. Drebin:

I — I thought, Mr. Justice Whittaker that I had explained it.

If not, I’m sorry.

Charles E. Whittaker:

Perhaps did you now?

I — I just want to understand this, your — your argument, I guess.

Sydney R. Drebin:

In the north, there was not such a thing as custom or usage.

As we understand it pertaining to violations of personal rights.

In the olden days shortly after —

William O. Douglas:

Well, that’d be a matter of proof, wouldn’t it?

Sydney R. Drebin:

No, I presume you’re right there.

Sydney R. Drebin:

But let us presume for the sake of argument that that is true.

Earl Warren:

Mr. Drebin, I think you should stand close to the microphone —

Sydney R. Drebin:

I’m sorry.

Earl Warren:

— so that everyone could hear you better.

Sydney R. Drebin:

I’m sorry.

Now —

William O. Douglas:

Oh, you come down, you could — you think Williams — the Williams case, that 341 was wrong, wrongly decided?

Sydney R. Drebin:

The majority opinion, yes.

William O. Douglas:

Yes.

Sydney R. Drebin:

I — I must say —

William O. Douglas:

You — your — your line of thought follows the line of thought in the dissents as I —

Sydney R. Drebin:

That is right.

William O. Douglas:

And I read your brief because nothing that they could do to extort a confession could be done in accordance with the law of Illinois therefore it could not be in — within the color of law of Illinois because any Illinois court would have — have rejected the confession therefore you say under color of law means in accordance with the law.

Sydney R. Drebin:

Also in the course of a custom.

Charles E. Whittaker:

Well, the custom was the same thing, it — I assume that using what this common law sense that has so long existed, it’s the common law of place.

Sydney R. Drebin:

That’s right.

But also there is this distinction, Mr. Justice Douglas, in regard to the Screws case, the Screws case was a criminal case.

The United States was a party.

The Civil Rights Act gives the cause of action for — to one individual against another.

Charles E. Whittaker:

Why may not that be done under Congress’ power to implement the Fourteenth Amendment?

Sydney R. Drebin:

Because the Fourteenth Amendment states that no state shall — the Fourteenth Amendment is prohibitive.

Now, when you say the Fourteenth Amendment says no state, no state, no state, it is — it is a prohibitive provision and as this Court has so often said, the — the courts may — must wait until the state has acted illegally under the Fourteenth Amendment before it connect but when it does then the Federal Government can act and not before that.

Charles E. Whittaker:

So that is not, as I understand your argument, that the state merely put long inquisition to act under color of this law because he must act to the act in obedience to this law.

Sydney R. Drebin:

That is right.

That is — that is my contention.

Earl Warren:

You don’t contend that city action is not state action, do you?

Sydney R. Drebin:

No.

We — I never thought of it just that way, Mr. Chief Justice.

Of course, the city is a subdivision and a creation of the state.

Earl Warren:

Yes.

Earl Warren:

Well I say you don’t make any distinction between —

Sydney R. Drebin:

No.

Earl Warren:

— city action and state action?

Sydney R. Drebin:

No sir.

Counsel argues the Wolf case and says that the Wolf case along with the Elkins case was controlling in this particular case.

I do not believe that is so.

I think that he’s only half quoted the Wolf case.

True, that Wolf said, the Wolf case said that unlawful — unreasonable search and seizures come within the purview of the Fourteenth Amendment and that there he stops, he — he proceeds no further.

But the Court went on to say that being so still it is within the power of the state whether or not this illegally seized evidence will be admitted in evidence.

So therefore in my opinion, neither the Wolf case nor the Elkins case have any weight in the situation that we are now discussing.

I would also like to discuss the question of the City of Chicago liability.

I would like to call Your Honors’ attention to the fact that in Illinois, we have a statute Section 1-15 of the Illinois Revised Cities and Villages Act which defines the liability of the City of Chicago as far as the initial — as far as liability for wrongful acts or for negligent act, not awful, from negligent acts that the police officer during the scope of his employment.

And in the case of Gaca versus the City of Chicago, in 411 Ill.141, the Illinois Supreme Court held that statute constitutional and therefore it declared the public policy of the State of Illinois in regard to the liability of the City of Chicago insofar as his police officers.

And it’s a case of indemnity and it’s a case of indemnity only where there is negligence and there is no liability on behalf of the city where the action of the officer maybe lawful.

And then to — after they got the case, there was a case of Karas versus Snell, 11 Ill.2d 233 which is further construed, Section 1-15.

And there, a police officer who is off duty and drinking in a bar, attempted to arrest someone.

He pulled his gun, shot him and blinded him for life.

Karas filed a suit against Snell and the City of Chicago.

On motion, the City of Chicago was dismissed.

And by the way, originally the acquisitions of — the allegations of the complaint was lawful conduct on behalf of Snell.

When the city was dismissed from the action, they amended their complaint to one of simple negligence, and by agreement, a judgment was entered in favor of Karas against Snell for $169,000.

At which time, Karas then sued the City of Chicago under Section 1-15 of the Indemnity Clause and we contended in a motion to strike that complaint that we were not liable unless the policeman was on duty and he was not negligent.

The trial court denied our motion and judgment was entered for over $200,000 including interest.

The Illinois Supreme Court reversed that judgment and said that Section 1-15 is a statute of indemnity.

It’s not one of first liability upon the City of Chicago and that therefore, the City of Chicago had the right to go to trial and to prove, number one, that Snell was not a police officer and — I mean, that Snell was not on duty at the time he committed the acts and further that the acts were done willfully.

So that in Illinois today, the City of Chicago is not liable for the willful conduct of a police officer.

And the allegations of the complaint in this particular case are one of willfulness.

Charles E. Whittaker:

Now may ask you in that connection (Inaudible).

Is that because of the willfulness or because of the governmental immunity?

It’s Irrespective — the Court says that it’s irrespective of the liability of the police officer.

Charles E. Whittaker:

In other words, we — the police officers re — presumed.

That he realized that irrespective of his liability but is the city’s immunity borne of the fact that the police officer’s conduct was willful or is it borne of sovereign immunity?

The city’s exemption is liable?

Sydney R. Drebin:

You mean in the Karas case or in the case at bar?

Charles E. Whittaker:

I — I thought you were talking about the Karas case.

Sydney R. Drebin:

I am talking about the Karas case.

Charles E. Whittaker:

Well, that’s — that’s right.

Sydney R. Drebin:

In the Karas case, in my opinion, the liability of the city created by statute is not based upon governmental immunity.

It is based upon a direct relationship between the police officer and the city.

That is the reason that the State of Illinois held the act constitutional.

They said that it was in fact additional compensation to the police officer.

So that under the Karas case today in Illinois even though a governmental immunity, the City of Chicago cannot be liable for the negligent acts of a police officer unless the police officer has been acting within the scope of his authority and unless the police officer was negligent in performing his duties.

In summary —

Charles E. Whittaker:

Do you — do your really mean that — you really mean that a police officer in Chicago acting within the course and scope of his authority commits a wrong that the City of Chicago is liable?

Sydney R. Drebin:

Not today.

Charles E. Whittaker:

Is —

Sydney R. Drebin:

It is not —

Charles E. Whittaker:

As I —

Sydney R. Drebin:

It — it only is liable by way of the statute.

It is not liable under the common law today.

Now the (Inaudible) case is one that the counsel discusses but we do not accept that (Inaudible) case and then further it only abided or directed or respectively in the future and not in the past.

In conclusion, I would like to impress upon Your Honor that this is a good time to review the constitutionality of the Civil Rights Act to determine whether or not it is in violation of the Fourteenth Amendment and then to whether it is vague and unworkable, because it is lacking the words willfulness and with — does not tell us what constitution and what laws are being violated such as in Section 20.

And then two, I would like to have Your Honors determine, first, if you determine the way I hope you will determine the issue and decide that color of law and statute as set forth in the Civil Rights Act, applies to violation of the state action and state statutes only be in light of Section 14th — Amendment Fourteenth and therefore, there is no cause of action declared.

William O. Douglas:

If I had — if I have misunderstood, you would hold this with the proper cause of action, properly alleged even with complaint of Negroes against a southern municipality or southern state or is it?

Isn’t that what you meant to imply?

Sydney R. Drebin:

No sir.

Mr. Justice, (Inaudible) —

William O. Douglas:

But you were going to say that the color of law meant something different up north than it’s there in the south.

Sydney R. Drebin:

I was trying to explain the purpose of the passage of the Civil Rights Act.

I’ve tried to point out that the Civil Rights Act, the first original Civil Rights Act, the Enforcement Act and the present Civil Rights Act enacted in 1871.

Sydney R. Drebin:

It was enacted shortly after the prohibition of slavery.

And that the cases tell us that the purpose and the intent of those Acts were to guarantee to the Southern Negro the right do the same as a white citizen be in the south.

And then I went on to say that the purpose of the original enactment of these statutes did not apply to the northern states because in the northern states, we do not have many of the custom and usages that were prevalent in the southern states immediately after slavery.

Today, I have (Voice Overlap) —

Felix Frankfurter:

(Voice Overlap) applied all in the northern state?

Sydney R. Drebin:

What?

Felix Frankfurter:

I mean, this — does this statute only applies (Inaudible)?

Sydney R. Drebin:

No sir.

But the purpose — what I’m driving at is the purpose of the Act.

What was the purpose of it?

And it seems to me that when I read the cases, the purpose was to give equal citizenship, to all citizens of the United States.

Felix Frankfurter:

Let me ask you a question.

Suppose that the legislature of Illinois passed a statute which set forth in detail what was done in this Court, was charged in the complaint had said any police officer may do the following acts and then set forth what was done in that complaint.

Then the police officer go there and acts under that statute, is that somewhere in the statute?

Sydney R. Drebin:

Yes, it would’ve.

Yes it would.

In my — in my opinion, there would be a state statute, a direct violation of the Fourteenth Amendment.

It is — in my opinion, it will be not — be necessary for this Court to come to the question of whether or not the City of Chicago is liable if they decide that the trial — the trial court and the Circuit Court of Appeals properly dismissed the complaint.

Thank you.

Earl Warren:

Mr. Moore.

Donald Page Moore:

Mr. Chief Justice, may it please to Court.

I will not respond to any of the contentions of — of the respondents.

I think that underlying the — the issues in this case of course is an issue of federalism of — of federal state relations and I think basically an issue of judicial philosophy.

I — and on these two basic issues, I would like to suggest what I have thought about in the — almost two years we’ve been working on this case.

It — it seems to me first of all that on the federalism issue, it ought to be noted that the position for which we are contending is not a position which if taken will violate or detract from any legitimate public interest of any state.

Indeed, if the states are able to secure the assistance of federal judges and federal juries in supporting their articulated public policies, I am sure that they will be happy and not unhappy because every state constitution forbids what has occurred here.

Secondly, I — I would like to stress — we so often think that — I so often think, that of a person who goes into a court and argues for a civil liberties position is — is often thinking — thought of a person who — who is going in and pleading for a kind of judicial activism, for judicial conduct which is really policy making, which is legislating, which is imposing the — the subjective preferences of the judges upon the rest of society.

I would like to emphasize that our whole position here is not one which calls for this kind of judicial activity but is — we are pleading here, it seems to me, on the most important issues in the case were judicial self-restraint.

We are saying whatever you may think of this statute or of the philosophy which called this statute into being, nevertheless, Congress did make the decision, and this congressional will should be respected and it seems to me that insofar as we are calling for what must be called legislation in this case, we are calling for interstitial legislation.

We are calling for the Court to make a decision on this issue of municipal liability where Congress has not expressly stated anything one way or the other and where whichever way this issue was decided.

Donald Page Moore:

Legislation will be done, law will be made and we can only point to the Congress which enacted the bill to the tradition in which that Congress acted.

And ask the Court as it was of course has been often asked in the past, to feel in terms of our case the thrust of that tradition.

Now, if the suggestion of course is that that tradition was anti-southern or pro-Negro or something like that.

I’d like to call the Court’s attention to our Appendix B, subsection 1.

We anticipated the argument in which we’ve laid out about 15, maybe not that many, maybe only 10 quotes in the legislative history on this precise issue.

I’d like to call the Court — Court’s attention to the tradition that must have been felt by — by Representative Beckley the initial quote in that subsection.

When he said this bill is not to protect Republicans only in their property rights, liberties and applies with Democrats as well, not the colored only but the white also.

Yes, even women and children and all classes will be benefited the like because we are simply contented for good government and righteous law and down the line it goes.

Felix Frankfurter:

Righteous law, that’s a very simple thing to apply automatically, you can always know where a law is righteous, is it?

Donald Page Moore:

Well, Your Honor, we know what that Congress thought was righteous.

Felix Frankfurter:

You do?

Donald Page Moore:

Surely we do because they told us —

Felix Frankfurter:

Are you really —

Donald Page Moore:

— Your Honor.

Felix Frankfurter:

— a party who — but they told — to my reading they told just the opposite.

To my reading of the legislative history, they said that color of law means in defiance of an enactment or a customary practice of the state, means in defiance — not in defiance of it but in obedience to it.

Are you — why do you make this case simpler than it is Mr. Moore?

Why do you make this case simpler than it is?

How can anybody with all respect read the legislative history of this statute and not at the lowest say that Congress did not mean to give right from the federal court where a person acts in of — in defiance of a state law.

There is an overwhelming body of legislative history to that — to that conclusion.

Why do you make this thing simpler and make it appear that all we have to do is just read the statute and all is — all is well.

Donald Page Moore:

I’d love to answer that que — I’m dying to answer that question, Your Honor —

Felix Frankfurter:

(Voice Overlap)

Donald Page Moore:

— but my light is on.

Felix Frankfurter:

Well, the Chief Justice will decide.

Earl Warren:

Well, if it doesn’t take too long to answer it.

Donald Page Moore:

Well, it’s — it — it’s hard to — to describe the whole history of these enactments and —

Felix Frankfurter:

If I may say so, you haven’t set it forth in your brief.

Donald Page Moore:

That’s my quote, however, Your Honor not —

Felix Frankfurter:

(Voice Overlap) —

Donald Page Moore:

— of Congress.

Felix Frankfurter:

I’m simply stating historic facts that you have not set forth the history which showed this great momentum behind this legislation that there were to be no right except when there is the im– the matter of state action, of state laws, of state practice behind it.

Donald Page Moore:

Your —

Felix Frankfurter:

You read it one way and I read it the other way.

All I’m suggesting is that you make this case much too simple.

Donald Page Moore:

I think — I think Your Honor with all respect that I do not.

Felix Frankfurter:

Alright.

Donald Page Moore:

I — I point to the (Voice Overlap) —

Felix Frankfurter:

(Voice Overlap) it’s much simpler for me.

Donald Page Moore:

Well, hear me out Your Honor.

I point to the legislative history of this statute which historically has been labeled a Ku Klux Klan Act, an Act against mass bands of violent men, and I asked you how any congressman could have possibly thought that any state in this nation would ever authorize by its laws, the actions of this mobs and yet obviously, at least where there were some collaboration between officers of the state and this mass bands obviously Congress intended to hit that.

Felix Frankfurter:

Yes, but don’t — the law has a colloquial name and the fact that it’s called a Ku Klux Klan, the Ku Klux statute doesn’t mean that it was concerned merely with mob rule.

Donald Page Moore:

Not merely with mob rule Your Honor but in part, it was also Your Honor directed and some of its people said so, some of it supporters said so.

Felix Frankfurter:

It was directed against the Black Codes.

That was the stimulus to the legislation.

Donald Page Moore:

Your Honor, with all respect, I believe that that is not an accurate characterization of the legislative history of the Act of April 28th, 1871.

We must turn to the globe of course.

Felix Frankfurter:

I — I didn’t say it was restricted to that.

I said the impulse to it was the Black Code statutes enacted doing all sorts of things and it was deemed that it will act under those then you can bring action against it and have ultimately this Court hold that the legislation under which you seek shelter is unconstitutional.

Donald Page Moore:

Your — Your Honor, with all respect and I hate to disagree with Your Honor.

Felix Frankfurter:

Why shouldn’t you.

Donald Page Moore:

But — but —

Felix Frankfurter:

That’s a —

Donald Page Moore:

This is not —

Felix Frankfurter:

What is it counsel?

Donald Page Moore:

This is not a correct characterization —

Felix Frankfurter:

(Inaudible)

Donald Page Moore:

— of the legislative history of the statute.

Felix Frankfurter:

I’m sure we can dispose of it until (Voice Overlap) —

Earl Warren:

Oh, sure enough.

Earl Warren:

I could (Inaudible)

Donald Page Moore:

Thank you Your Honor.