Glenn R. Mahone and Harvey L. Mahone v. David S. Waddle, Albert B. Ellway, Jr. And the City of Pittsburgh

post quired to a cash bond to obtain their GIBBONS, Before ROSENN and day they release. Later were con- GARTH, Judges. Circuit city magistrate’s victed in the court of the violations, traffic allegedly because the two OF THE OPINION COURT policemen gave testimony. false They were ROSENN, Judge. Circuit to pay sentenced fines and costs.

These an appeals from order of the Unit- allege Plaintiffs the conduct of the ed States District Court for the Western police two officers was performed under District Pennsylvania present law, recur- color of state the officers were acted section. The district court also prejudice,” racial dismissed

“motivated Plaintiffs depriving Pennsylvania law, stated purpose “with claims under law, protection and benefits of equal holding derivative, it could exercise and immunities equal privileges there pendent since was no ba- They . . .” law, process due question juris- sis the exercise injuries, bodily they sustained claim thereupon diction. The district court en- reputa- damage their anguish, judgment City mental tered final in favor actions abiding by the citizens tions law Pittsburgh, finding just there “that is no officers, that the amount of the two delay respect to entry reason for $10,000. controversy exceeds judgment final as to the of Pitts- burgh.” brought action in the dis- Plaintiffs individual defend-

trict court grounds on the ants II. under 42 U.S.C. plaintiffs’ reviewing On the dismissal under the United and 1985 and §§ 12(b)(6) plaintiffs’ Rule of against claims were violated. States Constitution City Pittsburgh the of for failure to state a were grounds for relief Three distinct granted, upon claim which relief can be we (1) City Pittsburgh: the of against asserted the accept are constrained to all uncontro City the fourteenth amendment under the allegations complaint verted of the as true. respondeat superior basis for liable is on Everette, (3d v. 489 F.2d 518 Cir. Curtis officers; (2) 42 of under misconduct its 1973). deter point Our task this is to City respon- is liable on a U.S.C. § plaintiffs prevail mine could if whether of its basis for the misconduct superior deat complaint alleged the facts in their were officers; (3) directly is City liable trial borne out at a on the merits. Central- or reck- alleged negligence its wanton Portner, Penn Bank v. F.2d 607 Nat’l failing supervise to train lessness in Cir.), denied, (3d cert. permit- and in defendants two individual 98 L.Ed. 342 notwith- police act as officers ting them to City’s knowledge of their prior purpose this we standing appeal, For assume, mistreat black citi- to harass and propensity deciding, without the conduct federal, grounds being first two alleged zens. The guarantees does violate the under 28 U.S.C. was asserted jurisdiction Constitution and is actionable under third 1343. The is based on 1331 and against police §§ the two offi U.S.C. § asked to the federal court is state law and actions, cers. In other than section 1983 derivative, jurisdiction. pendent exercise ordinarily their employer would also be held respondeat su liable under the doctrine of City, dismissing claims if perior for their misconduct it occurred that Con judge held the learned district during of their duties performance municipalities immunity gress’ grant scope employment. within Pape, Monroe in section however, City Pittsburgh, occupies po L.Ed.2d 492 ordinary from that of an sition different municipality any action precluded employer; municipality, as a not a is directly the fourteenth amendment. under “person” meaning 1983 and within alleged the facts held on He also absolutely thus is immune from the reach granted be under no relief could plaintiffs, supra. 1981, and, addition, Pape, of that section. Monroe that the 42 U.S.C. City concede that is immune liability under that Plaintiffs City immune from any deprivation rights, privi- (1970) provides: thereof to the 1. U.S.C. leges, or immunities secured the Constitu- who, any Every person stat- under color of laws, party liable shall be custom, ordinance, usage, ute, regulation, or law, injured equity, suit in or an action at subjects, Territory, or causes State proceeding for redress. other subjected, citizen of the United to be person jurisdiction within the or other States they liability case, under section 1983 and In the therefore, from instant the district (1) jurisdiction seek under the four- therefore relief court’s over the srMect matter (2) directly, amendment under teenth of the claim against City is c. ar under (1970).2 oj We are thus faced section availability 1331.5 The First, major questions: this three can to entertain claims of con- municip City maintained di- stitutional violations by is a uities provisions under the rectly the four- principle settled e.g., City law. See Second, amendment? on Bruno, teenth the facts Kenosha 513-14, alleged, granted can relief be under section (1973) L.Ed.2d 109 Third, if a claim (remand 1981? for section 1981 jurisdictional consideration stated, relief has been can the be held satisfy amount require- section 1331 damages ments). Furthermore, liable for that section? Our in this case pendent jurisdiction resolution issue concedes that a federal court has section on the to these questions. will turn answers to try a claim against a

municipality based directly a fourteenth III. amendment violation. significant question plaintiffs is whether have stated a question presented The first upon granted. claim which relief can As the fourteenth amendment it whether claim source of such relief to rise cause gives self to a of action. theAs amendment, be the fourteenth the precise us, City correctly question informs issue which we are called to decide is definitely independent distinct is whether the fourteenth amendment can properly sue whether in independent serve as an source of af- an general jurisdic voked the federal question right firmative of against action City the the tion of district court under 28 U.S.C. for damages flowing from constitutional (1970).3 Hood, Bell In U.S. misconduct the City’s police. 773, 90 L.Ed. 939 Court Supreme held a federal City district The argues forcefully that the four- subject jurisdiction court has matter over teenth amendment cannot serve as an inde- pleadings allege case whenever the pendent matters source an right affirmative controversy arising in under Constitu City action. The believes that section tion or laws of the United interpreted by States. Bell also Supreme Court teaches, however, that question whether Monroe v. Pape, supra, completely bars jurisdiction a court has under 1331 is action damages resulting analytically distinct the question from from a deprivation of fourteenth amend- plaintiff whether the rights. stated a cause of ment Section 1983 manifests con- action which relief be granted.4 can gressional policy municipal liability, provides: Bell, plaintiffs 2. Section 1981 alleged agents In that FBI had violated persons fourth and fifth jurisdiction amendment All within the of the rights. The district court right dismissed for want of States shall have the same every question Territory prede- State and en- under to make and sue, contracts, parties, give cessor force be evi- section 1331. The dence, reversed, holding equal and to the full and benefit of all the district court had proceedings security per- laws for the under the section but property enjoyed by plaintiffs’ as is right depended sons citizens, white to recover on wheth- subject punish- and shall to like sup- er the fourth and fifth amendments would ment, taxes, pains, penalties, licenses, and port an affirmative cause action fed- every kind, and to exactions no other. eral officers. 1331(a) provides: 3. Section Insofar as the district court believed the issue (a) original The courts district shall have jurisdiction, disagree. one we Jurisdic- jurisdiction of civil all actions wherein tion was not the issue in the nor district court controversy matter exceeds the sum appeal. an is it issue on $10,000, value exclusive interest costs, Constitution, and arises under laws, or treaties the United States. the other amendments this court must City, Bill of asserts direct cause of by recognizing a Rights, applies per only circumvent se to the federal amendment. under the fourteenth See, government. e.g. Colorado, Wolf v. brief, City also contends its [25], U.S. L.Ed. [93 of the fourteenth amend section 5 Connecticut, Palko v. 1782] enforce the ment, power exclusive L.Ed. [82 288] Congress and that is vested in amendment (1937). Thus it was reasonable for the to redress viola powerless the courts court implement- Bivens to conclude that with guarantees the amendment’s tions of ing legislation by the national govern- Congress:5A supporting legislation out ment, power Rights whose the Bill of was the Fourteenth Amend- To infer that check, unnecessary. intended to a cause of action gives itself rise to ment Amendment, Fourteenth which applies to provisions of its damages for violations action, question state did not leave this language of ignore plain Section is to open. Section 5 of the amendment ex- a hold- the Amendment itself. Such 5 of reposes pressly power to surplus- 5 mere ing would make Section out its carry commands Further, such an inference age. prevail Plaintiffs can on their fourteenth usurpation a blatant courts would be claim if we determine .amendment Congress. vested in power [Footnote section 1983 holding does not bar us from omitted.] liable for the constitutional miscon hand, plaintiffs, on the other take officers, duct of its princi Bivens municipal liability view that the bar ple can be extended to the context of the preclude the courts in section 1983 does amendment, fourteenth and that section 5 remedy against fashioning a limit amendment does not the tradi amendment. under the fourteenth directly power tional of the courts to appro create 56 of that do not see in section Plaintiffs priate remedies for the vindication of con power on the any limit amendment rights. question stitutional whether courts, grant power Congress. only a ¡liability may imposed upon municipali strongest support find their plaintiffs directly ties under the fourteenth amend Agents Named Bivens v. Six Unknown cropped up on Bivens rationale Narcotics, ment of 403 the Federal Bureau of disap but exhibit a repeatedly cases 388, 1999, 91 29 L.Ed.2d 619 S.Ct. analysis. lack of Several decisions pointing contend that Bivens (1971). Plaintiffs expansive principle of federal using for an counsel fourteenth stands which this court jurisprudence under court to hold cities accountable for amendment affirmative reme- imply an See, is empowered e.g., Payne conduct. unconstitutional very proscrip- dy without more from Mertens, (N.D.Cal. 1355 F.Supp. v. 343 amendment. of the fourteenth tions Gravelle, 1972); F.Supp. Bennett v. 323 (D.Md.1971), grounds, aff’d on other 451 217 argu- Bivens response plaintiffs’ dismissed, (4th 1971), cert. F.2d 1011 Cir. ment, argues in its brief that sec- City 92 32 L.Ed.2d 692 407 U.S. S.Ct. pre- fourteenth amendment tion 5 of the hand, by far On the other extension of the rationale of that cludes an damage remedy cases, for a four- including to afford a number of three of greater case violation. decisions, amendment teenth either assume or leave own pur possibility that a direct open fourteenth Amendment whose en- The Fourth Bivens, will lie subject of like amendment action munici- forcement was the power enforce, Virginia, shall have Ex Parte 100 U.S. 25 5A. See by appropriate legislation, provisions 676 L.Ed. article. this pro- amendment 5 of the fourteenth 6. Section vides: 1024 analysis by a extended deavors to

pality.7 The structure a fourteenth amend- concept of a four- supports court circuit ment claim for the plaintiffs contending cause of action. Brault amendment teenth complaint alleges separate, inde- Milton, (2d Cir. 527 F.2d 730 v. Town pendent by conduct the defendants not ra- decision, however, was 1975). That vacated cially specific animated. The allegations to banc and the case was the court en by refers, which dissent Dissenting Opinion grounds. ultimately on other Id. decided n.30, however, at 1053 charge that de- “by fendants their actions under color law preju- State and motivated racial join We decline to in this de must deprived plaintiffs rights, dice” privileg- amendment, Bivens over a fourteenth bate es, and immunities secured the Constitu- holding in In view our remedy. type plaintiffs prove tion.7A If moti- racially case that have stated a cause deprivations vated of their under 42 of action U.S.C. they allege, section will 1981 afford them we conclude that fourteenth the redress in federal remedy they not be court which implied. amendment should Garth, however, in effort to reach seek. Bivens teaches Judge an existence of question, fourteenth amendment en- an effective and substantial federal statuto- 7A. 7. See Rotolo v. plaint reads as follows Cir. 902, Hanna gations similar to those of the instant Cir. (Winter, Pa.1974); Education, liams v. Maybanks F.Supp. Redev. Auth. of Cir. lege, 920 of L.Ed.2d 474 S.Ct. cf. Dist. Columbia Cox er 1975); ter 1975) v. Board of Junior and lated and tution A. Defendants insulted, brutalized, arrested, confined, leges following particulars; actions under because Plaintiffs are Black pose ed Roanoke; grounds, Paragraph Plaintiffs claim that (3d F.2d Memorial 1975), 1975); 1975); by 501 F.2d (Stevens, gave Cir. Singleton v. Stanton, racial of Brown, J., 34 L.Ed.2d 613 denying Drobnick, vacated on other Stephens v. Calvin (E.D.Tex.1974); 1976), immunities deprived Skehan v. false concurring 421 U.S. laws (6th Ingraham, prejudice IX Hosp., Borough color of 31 J.), F.2d Wilkes-Barre, 529 F.2d Cir. F.Supp. of testimony against (per stopped, of the United States in v. Colleges, 523 (3d Cir.), cert. Amen v. F.Supp. v. Plaintiffs Count Vance Conlisk, 514 F.2d L.Ed.2d 1976); Fitzgerald 523 F.2d 716 imprisoned, curiam); searched, Carter, Bloomsburg secured State depriving as denied, Defendants, by their (emphasis supplied); aforesaid, Charleroi, Grissom v. detained, abused, grounds, 155 F.Supp. One of the com- County Wil dissenting); City of law and motivat- 522 and for the vacated (1976); Hostrop (4th 409 U.S. (4th (W.D.Va.1972); McCullough (N.D.Ill.1975); F.2d 569 seized, rights, privi- F.2d 858 Plaintiffs (1976) Plano, F.2d 1 the prosecuted Cir. Cir. State Dearborn, Board Plaintiffs (6th (7th 532 Consti- County v. 1975); case); 1974) (E.D. beat, (alle F.2d Por pur- (7th (7th vio- oth Col Cir. Cir. the (3d v. judge inasmuch as violations which misconduct. teenth Amendment nonracial would rule these sion Fourteenth Amendment violations which were tions misconduct, senting opinion inall stance of their fourteenth amendment claim at “[njever The dissent’s Thirteenth and Fourteenth Amendments to We equal privileges cised their cured ments to prisoned Plaintiffs because law and due probable cause in violation of Plaintiffs’ ments to the Constitution of the United equal protection cured seized, arrested, States and 42 U.S.C. § 1983. States and 42 U.S.C. § searched, seized, arrested, confined C. Defendants rights tó be free from unreasonable searches Plaintiffs without a warrant and without B. Defendants permit racially of this court. Constitution in seizures would ^[*] doubt their §§ restricted] the surprised plaintiffs having the Fourth and Fourteenth Amend- motivated.” the First and Fourteenth Amend- 1981 and we doubt that plaintiffs the Constitution plaintiffs permit recovery upon proof ^[*] process complaint exclusively were at stopped, allegations and immunities under the abused, brutalized, beat, assertion argument to due and benefits of the confined to freedom of “any 1054, may ^[*] by Judge the United States and 42 1983; never discussed the sub- racially motivated,” to recover for First and law secured limitjed] Dissenting opinion 1983; district court ^[*] detained, process limited the were insufficient to constitutional Garth’s Plaintiffs be ^[*] district court the United imprisoned speech misleading of law se- searched, plaintiffs to racial ^[*] expres- allega- judge Four- exer- law, Dis- im- se- at An the obviates alternative basis on plaintiffs for the which we remedy ry remedy on affirm dismissal a court of imply constitutional need to district 407-11, 91 the fourteenth amendment claim behalf, provid is 403 U.S. plaintiffs’ by the in presence ed this case of pendent we J., concurring), and (Harlan, Flint, Gagliardi law claims.9 In state court’s the district affirm will therefore 112 (3d 1977), F.2d Cir. we reiterate set a amendment the fourteenth dismissal constitutional tled doctrine: course, express opinion, no We claims.8 Lavine, a fourteenth amend- Hagans whether on issue in may implied remedy or should ment holds that a have no plaintiffs may, where the usually cases federal court and indeed other should, statutory remedy. pendent, decide non-constitutional effective support fourth also in the estab amendment violation but also whether Our course finds principle alleged by asserted when a claim is lished some combination of the facts bases, statutory plaintiff might give and constitutional plain- on both a claim rise to question reached if should not be infringed constitutional tiff’s first amendment had been statutory dispositive. Ash See claim is agents, thereby conduct the state TVA,297 wander entitling plaintiff to relief under four- J., concurring). (1936) (Brandeis, L.Ed. 688 theory plain- teenth amendment on a which the Although reeognize reaches we tiff had never himself advanced. We do not four whereas the racial discrimination responsibility enlarge believe that it is our a applies to other dis as well amendment teenth litigant’s beyond parameters case he him- conduct, specific criminatory fourteenth self fixed. alleged the instant in amendment violations The dissent also criticizes our reliance on such, are and as are racial character case fully Hagans Ashwander and another reason. It statutory 1981. The actionable under advancing authority asserts without that a therefore, is, dispositive and case claim in this policy favoring avoidance constitutional is- Ashwander, supra, decision counsels application present sues has no case Hagans v. See also claim. constitutional since claim which we characterize Lavine, is, “statutory” reality, as “constitutional.” L.Ed.2d 577 claim, plaintiffs’ according Inherent persuaded the dissent that our We are not Garth, Judge question is the whether § Hagans is mis- on Ashwander reliance placed. it, apply as we as constitutional. Inasmuch Judge dissenting, contends Garth this constitutional “issue” was never raised though fourteenth amendment that even parties, Judge Garth must understood to plaintiff complains are ex- of which violations every suggest that a court is time faced character, clusively we also con- racial in must statute, the construction of a it must also sua possibility adduced that the evidence sider the sponte question raise both and resolve the might four- some non-racial at trial establish particular whether the statute constitutional Garth, Judge violation. teenth amendment applied. By reasoning, every statutory as words, us the district would have review other question would be transformed into a “consti- plaintiffs’ complaint not dismissal of court’s only principle tutional” issue and the enunciated in plaintiffs alleged but those facts which Hagans, Ashwander and name they but two of did not. A also on those facts cases, totally disintegrate. may point up illogic score would hypothetical case proposition. this novel expresses 9. The dissent concern that in affirm- suppose plaintiff files a section Let us that a ing the dismissal of the fourteenth amendment alleging complaint he member of is a claim, may inadvertently leave we agents Party, that state the Socialist Workers remedy they without if fail to out their make illegally Social- into his home and seized broke pendent negligence against state law claims of ist and documents violation literature however, City. Garth, Judge appre- fails to amendment, that, result, he has fourth significance holding ciate the of our that the deprived of fourth amendment been his may go section Even if forward. through applicable against the state as made plaintiffs should be unable to make out their incorporation into fourteenth amendment. the claims, pendent they will still have their section Suppose further district court dismiss- that the which, already have ex- claim as we alleged, finding complaint facts es on the the plained, with fourteenth co-extensive was violation of the fourth that there no they amendment claim on facts have al- appeal, what would be the On amendment. scope Thus, leged. affirming in dismissal of the Judge inquiry? we our As understand claim, we fourteenth do not de- amendment theory, required to deter- we be would Garth’s remedy they prive which court was whether the district mine already enjoy do not section 1981. under been that there had no correct in its conclusion doing so the can avoid dent law claim if court state after a jury claims verdict for of difficult constitutional is- plaintiff question decision and the us facing pendent This is true even if the sues. whether the district court had abused its standing beyond be alone would in exercising jurisdiction claims discretion over of the court. 415 jurisdiction Gagliardi federal that claim. We did not hold in 12-13, at 546-47 and nn. court U.S. district would abused have for this ex- only requirement its if it discretion had not pendent exercised jurisdiction over state pendent' jurisdiction. In case, ercise the instant on the hand, claims is that the federal constitu- law other the district court has dismissed claims not be so as to pendent insubstantial state together tional claims with the juris- incapable supporting various federal claims. Although we re verse district diction. court’s dismissal of the pendent claims so may reconsider Op. points at 114-15. As the Maj. dissent possible exercise pendent Hagans out, pendent itself involved a feder- in light of our decisions in this case and in statutory claim doctrine Hagans but al Gagliardi, we will not affirmatively order equal with force law to state claims. applies the district court to pendent juris exercise Co., v. Louisville & R. Nashville See Siler diction. Neither our Gagliardi decision in L.Ed. leading nor the two Supreme Court deci Mayor Philadelphia v. Education- Hagans v. Lavine and Siler Louis 605, 636-37, League, 415 Equality al sions— ville and Nashville R. mandatory Co. — are (White, (1974) J., in All nature. three decisions speak Thomas, dissenting); Frederick L. v. terms of the course a court “usually should” de- 1977). Our (3d 378 n.33 Cir. F.2d take, Maj. Op. Gagliardi, at us in course, binds Gagliardi, of cision terms of route a always court must case and dictates that we affirm the instant follow. of the the dismissal fourteenth amendment claim.10 Having affirmed the dismissal of the claim, fourteenth amendment we now turn points not raised in need Gagliardi Two plaintiffs’ to the merits of claim under 42 First, recognize here. be made we must U.S.C. § possibility may that a case arise in plaintiff which claims the relief available IV. state law is not with the under co-extensive available relief fourteenth claim right Plaintiffs to relief under the We amendment. do not now decide what (1970): final two clauses of 42 U.S.C. 1981 course would be in a situa- proper persons All within plaintiffs’ since counsel in the instant shall United States right the same expressly case invited the oral every state ... to the full and solely on the argument decide the case equal benefit of all proceedings laws and pendent state claims without basis of security for the of persons property reaching the fourteenth amendment claims. enjoyed by citizens, as is white and shall subject punishments, pains, to like point second we make con- would taxes, licenses, penalties, and exactions of posture cerns the difference between the kind, every and to no other. Gagliardi came to us and Gagliardi, case. the district meaning instant of these final causes on the judgment pen- had rendered we “equal court 1981—which shall refer to as the provides Gagliardi, 10. The mandate of also suf- turn not the fourteenth claim amendment Judge pendent answer to ficient Garth’s contention but if state claims. Even remedy may case, completely inapplicable not be co-extensive were to this remedy. argues, Gagliardi the fourteenth If amendment the dissent would still control Judge require pendent were do not Garth correct —and we be- would state law is, 8, supra Gagliardi that he see lieve note claims be decided rather than the fourteenth — properly the Court should then teaches issue. amendment

1027 Although clauses. clauses— Strauder offers little punishment” “like benefit” clauses, guidance construing the times it at modern been considered has not City’s least refutes the contention that the by Court or Supreme by the either deprivations right Act is to of the The confined appeals. courts of circuit the various to contract.13 1981 strenuously that section argues for a of action cause contemplate does Equal The Benefit more clause has alleged by plaintiffs. type of the injuries recently applied Presbyteri- been in Central it is im- Moreover, that City believes Front, Church Black an Liberation 303 liability what- from section mune (E.D.Mo.1969). F.Supp. 894 The court held hand, Plaintiffs, as- on the other soever. interruptions the defendants’ with- squarely action falls us sure had Sunday deprived Church’s services section, meaning of the plain right guar- church and its members immunity municipal find no hint they equal to anteed section 1981 benefit of or histo- language anywhere in the section’s security property. laws ry- case, In the third a black woman and her suit brought white husband a coun- A. alleging ty county police harassment of- directed parties Neither of Observing ficers. final clauses of construing equal single to a decision us “relegate[d] section would be to . of sec clauses punishment benefit like meaningless racially if moti- phraseology” has uncov own research 1981 and our police vated were held abuses not actionable only relevant cases.11 three ered provision, under the court denied Vir- county’s Raffety v. West motion to dismiss. earliest ease Strauder The George’s County, 423 (1879). F.Supp. Prince 25 L.Ed. 664 ginia, (D.Md.1976). held under R.S. Supreme The Court to identically predecessor worded an language Our own examination of the to persons entitled black were section section 1981 leads us to believe that its racially a by juries selected in tried is as these would indi- reach wide as cases de- manner. The Court nondiscriminatory The section takes the form of an cate. “[put] in the form clared section rights: right to enumeration of diverse substantially what had been statute contracts, right make and enforce by the amendment.” ordained sue, right party, right [fourteenth] to be L.Ed. 664.12 On U.S. at evidence, right and the “to the full and give basis, the statute concluded that the Court proceedings benefit of laws and equal all jury which blacks trial prohibited security persons property.” failed to The Court these persons guaranteed were excluded law. All are they enjoyed by 1977 on which as degree of section the same specify clauses provides mind statute persons. had in white then could it relied but it subject to the same persons that all shall punishment and like benefit equal case, possible in Valle v. contracts.” In one read our decision It is 1949), imply (3d Stengel, “on its face 176 F.2d 697 Cir. Court stated that section 1981 predecessor ing to section primarily that R.S. 1977 — a relates to racial discrimination in the as the instant to claims such making enforcing 1981 — extends of contracts.” Johnson interpretations one, are also but 454, 459, alternative Railway Express Agency, possible. L.Ed.2d interprets this casual observation evidently the reenact- referred to holding that 1981 can the Court as a section Rights Act of of the Civil ment section right reach no further than to contract. May the Act of 16 and sections however, believe, We do the Court codi- Stat. §§ ch. the other of section intended read clauses at 42 §§ fied we 1981 out existence and do not consider law under abundance of case 13. There is an by the ourselves bound Court’s dictum. deprivation dealing with claims guaranteed right “to and enforce make subject, subjected to were persons as white are I''’punishment officially inflicted “pun- persons, ishment, as white “pains” pains, penalties” the same other than [and] persons, and to “penalties” as white same those to persons which white subject. are “taxes, licenses and exactions the same In alleging that because they of their race persons, i as white and that no every kind” were arrested probable without cause or subject any punishment, V person shall warrant and that they were convicted tax, pain, penalty, I license or exaction other testimony false they of crimes did not com- persons than that to which white are sub- mit, plaintiffs charged effect that j ject. The can be read in no statute other City’s officers denied them the same way. language To read the of the statute “full equal and benefit . laws right to contract applying | proceedings and for the security persons ignores the clear and vital words of the 'j enjoyed as is persons.” white majority provisions. Despite of its I We therefore believe that the alleged facts precedent, sparsity i a natural and com- fall within the broad language of both reading compels of the statute monsense \ equal benefits punishment and like clauses 1the that 1981 has conclusion section broad of section 1981.14 right applicability beyond the mere to con- | 3tract. Our conclusion is buttressed evi enough It is not to know section contemporary dence understanding contract; beyond right 1981 extends Rights of the Civil Act of the Act specif we must also determine whether the from which section 1981 derives.15 In the alleged in the ic conduct instant case falls Congress, view of the Act complete was a statutory language. the ambit of the within statutory analog to the thirteenth amend again, we on the plain meaning Once focus ment. The Act was not intended to have words, language because “[i]f effect; merely rather, limited it was to clear is conclusive. There can be no eradicate all discrimination blacks nothing there is construction where to con and to secure for them full freedom and Hartwell, strue.” United States equality in civil rights.16 The sweep broad Wall.) (6 (1867). 18 L.Ed. 830 power of the Act recognized were opponents: bill’s one balefully warned alleged

Plaintiffs have the Act would bestow officers, the freed City’s police au clothed with the all slaves of free citizens.17 thority and the state and moti vetoing bias, (the the bill veto was verbally physically racial later overrid vated den), them, them, President falsely expressed Johnson abused arrested the fear the bill gave testimony prohibit false them. It would states from plaintiffs exercising any power seems to us that have in effect of discrimination be they alleged they that because are black tween the different races.18 thus Trumbull, 14. The in the instant case have 16. sponsor See remarks of Sen. prayed compensatory damages Rights and we note of the bill which became the Civil Act of damages passing appropriate reported Globe, Cong. Cong., 39th 1st Sess., (1866), reprinted in section 1981 cases. “An individual who es- 474-75 in Va. Comm’n Gov’t, tablishes a cause of action under section 1981 on Constitutional The Reconstruction relief, equitable legal (1967) is entitled to both Amendments’ Debates 121-22 [herein- and, including compensatory cir- certain after “Reconstruction Debates”]. cumstances, punitive damages.” Johnson Rwy. Express Agency, 421 U.S. Saulsbury, Cong. Globe, Remarks Senator Sess., S.Ct. Supreme Cong., (1866), reprinted 39th 1st 477-78 recently awarding affirmed the Debates, supra in Reconstruction note embarrassment, compensatory damages humiliation, anguish in a mental Runyon McCrary, 1981 action. Globe, Message, Cong. Cong., 18. Veto 39th 1st L.Ed.2d 415 Sess., (1866), reprinted 1679-80 in Reconstruc- Debates, supra note at 194. accompanying 24 infra and text. See note perceive 1866 ties.” We Rights Act of Civil fundamental distinc- believed discrimination, ap- prohibit precludes all racial application would an of the tion racially moti- type of including the parently and Runyon principles Johnson to cases govern- and misuse of physical abuse vated arising equal under the benefit and like in- in this alleged which is power mental punishment clauses. thus debates Congressional The stance.19 Act’s suc- the our conclusion support right The “to make and enforce 1981,20 its face to cessor, applies on section contracts” necessarily is with concerned re alleged discriminatory of conduct type the private lations between individuals. It js here.21 usually individual, with another not the state, person that a black would seek to meaning plain the of Weighing contract; make it is that other individu expansive view of that the section racially al’s motivated refusal to make a legislative history by the suggested section contract which harm can cause the con- black City’s that a broad the contention is n person. The “to right rise to a make and enforce give of 1981 will section struction can racially infringed contracts” thus be every by private action for cause of federal The private City points appropriate tort. individuals and it is pri motivated holdings Johnson v. Supreme Court’s vate individuals be held liable the for that in 454, 95 Agency, 421 U.S. Railway Express fringement. (1975), and The equal words “full and benefit McCrary,

Runyon of all laws and proceedings security for the private 49 L.Ed.2d persons property” (emphasis educa- 'of employment sup discrimination hand, the plied), suggest 1981 and on other is actionable under section a concern result of combin- the that the inevitable with relations between individual and reasons individuals, state, read- Runyon with a broad ing Johnson and between two punish- state, individual, benefit and like ing equal of The is the sole law, a section 1981 clauses will be only ment of acting source and it is state strikes a white man court whenever through agents, private its not the individu- brawl.22 a black a barroom al, capable denying which is to blacks the Thus, equal full and benefit law. danger. We see no such private while may impli discrimination first cases construed clause of contract section right 1981’senumerated section cated —the concept implicit state action We deal enforce contracts.” “to make and like equal punishment benefit clause. The right separate here the distinct .with may be same way. Only ^clause read in the laws and equal benefit of all “to full and “taxes, imposes requires state licens- security persons and for the proceedings n property” and es, prohibition against and exactions” and the maxim noscitur a with the pains penal- suggests “punishment, unequal “punishment, pains sociis that the [and] tenBroek, tenBroek, supra majority. generally Equal Under Law See at 201- See J. note Gressman, 1965). 37; (rev. Unhappy History ed. of Civil 181-91 Rights Legislation, 50 Mich.L.Rev. 1323 Rights Act is now 1 of the Civil 20. Section The fourteenth amendment intended to As 1981 and 1982. §§ codified 42 U.S.C. embody principles Act. See exclusively right 1982 deals with tenBroek, Thus, supra in- note 223-26. convey property our sole concern own and real terpretations fourteenth amendment which codifies the remain- with section 1981 might light meaning well shed some the Act. of section 1 of der 1866 Act. might our backward from We also reason Note, Regulate also Federal Power 22. See understanding amendment. of the fourteenth Private Discrimination: Revival of En- apparently enacted That amendment was Era forcement Clauses of Reconstruction long purpose giving term effect Amendments, 74 Colum.L.Rev. protecting principles them the 1866 subsequent Congressional of a from whims question to which the clause refers penalties” municipal liability under section [and] Moreover, the state. In the imposed we those find in section 1981 no course, case, complaint language does instant indicating whatsoever a congres- pun- Certainly like allege state action. sional intent that municipalities be held im- applies such action. We mune liability ishment clause violations more in this case. guarantees. need no section’s decide Secondly, we are not persuaded by the B. argument congressional that the policy mo- to the contention »We now turn tivating the passage of section 1983 in- the district City dissent formed Congress’ prior enactment of sec- City to hold the court has no tion Although their modern codifica- section 1981. We will consider liable under tion 42 may in Title it appear make City’s arguments first. section 1981 and section 1983 are pro- sister visions of single act of City entreats us to shield it from ought to be together, construed such is not liability by extending 1981 section to that the case. provision municipal “immunity” recog- nized in 42 U.S.C. 1983 and Monroe v. Section 1981 derives from the Civil 473, 167, Pape, 81 S.Ct. 5 365 U.S. L.Ed.2d Rights Act of 1866 and from the reenact (1961). justification 492 We can find no ment section 1 Act in sections 16 municipal immunity. such an extension of 31, 18 the Act of May 1870.23 Run The unanimous en banc decision of the yon McCrary, v. supra, 427 U.S. at 168-70 overruling Circuit its prior Ninth decision in 8, n. 96 S.Ct. 2586. its unusual Duetto Weldon, 469 Arunga v. F.2d 675 history, section fairly 1981 can be said to fully supports Sethy our conclusion. See rest only on the fourteenth amendment Dist., Co. Water 545 1157 Alameda F.2d but also on provided the foundation by the 1976) (en banc). (9th Cir. thirteenth 189, amendment. at Id. 96 S.Ct. First, (Stevens, Pape explic- J., the Court in Monroe v. 2586 concurring). See also itly holding ques- limited its to the narrow Tillman v. Wheaton-Haven Recreation “person” Ass’n, tion whether the word 431, 11, section 410 U.S. 439-40 n. 93 S.Ct. 1090, municipal corporations: 1983 includes 35 (1973); L.Ed.2d 403 Strauder v. ‘person’ Virginia, 303, 312, cannot believe that the word West 100 U.S. 25 “[W]e L.Ed. particular (1879); was used in this Act to include 664 Young v. Co., Int’l Tel. & Tel. 191, [municipalities].” 757, at (3d 438 F.2d 759 1971). Cir. As we (footnotes omitted) (emphasis at sup- noted, 486 have previously legislative histo plied). County ry See also Moor of Alame- Rights Civil Act of 1866 manifests da, 693, 709-10, 1785, 411 Congress’ purpose U.S. 36 to enact sweeping legis-' Note, Damage L.Ed.2d 596 Reme- lation implementing the thirteenth amend Against Municipalities dies for Constitu- ment to abolish all remaining badges Violations, 922, tional 89 Harv.L.Rev. 939- vestiges of the slavery system. Section 1983, “person” hand, Whereas the word on the other derives from the liability Rights 1871,24 section 1983 defines those on whom Civil Act of enacted to en visited, may “persons” the word in sec- force fourteenth amendment. “And it are protected long 1981 describes those who been recognized that ‘[different Maybanks v. Ingraham, problems statute. See statutory meaning present F.Supp. (E.D.Pa.1974) (Lord, J.). C. ed by deriving two enactments from differ ” Thus, holding municipal on Monroe’s liabili- ent constitutional sources.’ Dist. of Co ty wholly Carter, its inapplicable 418, terms lumbia v. 423, U.S. I, Rights Rights I, Civil ch. 24. Civil Act of ch. Stat. 27, reenacted, Rights Act Stat. Civil ch. 16 Stat. codified at 42 §§ §§ case, however, (1972), quoting pri- instant based not on 602, 605, 34 L.Ed.2d ' 205-06, 81 S.Ct. Vate acts violence but instead on official Pape, Monroe misconduct under color of state law J., dissenting). (Frankfurter, police Nothing .City’s legis officers. only differ not Acts two history lative of section indicates that scope: the debates but also derivation Congress’ liability with municipal concern Congress’ intent 1871 Act evidence municipal "under that section extended to of civil protection temper liability every prior civil under counter states with by the encroachment .rights agree act.26 We therefore cannot Moreover, of federalism.25 vailing concerns Congress’ rejection with the of 1871 is addressed the Act the Sherman Amendment shields acting color and to those state liability under the Act of ex the Act of 1866 authority state while Sethy 1866. See v. Alameda Co. Water private tends, respects, acts in some Dist., supra27 Mayer, v. Alfred H. Jones discrimination. We now turn to the somewhat more ab- 20 L.Ed.2d argument by Judge struse advanced Garth. Agen Railway Express v. (1968); Johnson it, argument, That as we is this: understand L.Ed.2d 454, 95 421 U.S. S.Ct. cy, (1) at the time the Since 1866 Act was Al supra. McCrary, v. (1975); Runyon jur- trial enacted federal courts had no is later Act recognize that though we rights isdiction to civil hear actions and language scope, broad limited in more since 1866 Act did itself vest the repealed has never been of 1866 of jurisdiction, courts such the 1866 Act it as writ apply we must and clearly contemplate rights did not Carter, supra, v. of Columbia ten. See Dist. pri- which it could be declared enforced 424-25, there- 602. at We 409 U.S. civil (2) vate actions in the courts. suggestion that section reject the fere potential civil private for actions under to the by reference interpreted must the 1866 Act was realized when Con- history of section’ 1983. legislative Rights enacted gress the Civil Act of 1871 in the vested courts find merit the federal with a limited also no We (3) an to hear civil jurisdiction 1983 constitutes suits. that section proposition action, therefore, of must Any insofar cause repeal § of section 1981 implied grant idea limits on the concerned. The be defined municipal liability is liability jurisdiction. (4) grant is of municipal Since 1983 bars that section rejection jurisdiction accompanied of the substantive Congress’ Senator based 1871 Act provisions to the Civil now codified proposed amendment Sherman’s since under which all 42 U.S.C. 1983 and 1983 does not § § Act of 1871 Rights against col extend to suits Mon- city municipalities, would have been of a inhabitants Pape, v. it supra, impliedly for a individual’s roe follows that lectively responsible single against granted blacks 1871 also does act violence which private against municipalities. Monroe not extend to city’s borders. suits within occurred Thus, 188-90, (5) since the limitation the 1871 81 S.Ct. Pape, grant must be read into the liability we believe section which provisions clear, in the impose City on the substantive it is § us to authorizes tenBroek, supra note See at 216. U.S. 36 L.Ed.2d 596 Damage Against Mu- Note, Remedies Violations, nicipalities for are collected Constitutional debates on section 1983 26. The Gov’t, Virginia (1976). Comm’n on Constitutional Harv.L.Rev. 929-42 Amendments Debates Reconstruction legislative his- For additional discussion passing City We note that the also has no Bruno, tory of Kenosha see immunity amend- claim to eleventh seq. 109 et L.Ed.2d County Alameda, See Moor v. ment. dissenting opinion (1973) (Appendix Alameda, County Douglas, J.); Moor dissent, have, according 1981 does shall exclusively of the courts of private right create a of action States, the several cognizance of all municipalities cognizable under the modern crimes and offenses committed against day jurisdictional 1871 Act’s successor to the act, provisions also, this con- (6) omponent 1343(3). c U.S.C. § currently with the circuit courts of the — 28 are immune lia municipalities from Since States, causes, of all civil and bility 1343(3) under a combina criminal, affecting persons who are de- tion, it the intent of Con would frustrate nied or cannot enforce in the courts or municipalities gress any to hold liable under judicial tribunals of the State or locality 1981 with the post-1871 combination of § they any where may be in 28 jurisdictional provisions codified secured them the first section of 1343(4). 1331 and 28 U.S.C. act; any and if or prosecution, suit criminal, civil or been or shall be Laboriously building analysis, its court, commenced in any State dissent a wall endeavors construct any person, any cause whatsoev- insulating consequences er, officer, or civil or mili- alleged its officers’ misconduct. The or tary, other person, arrest or attempts build must crum .wall imprisonment, trespasses, or wrongs done if ble even one of blocks which it or committed by virtue under color of Nevertheless, rests removed. we since authority derived from this act or the act every believe that step each establishing a Bureau for the relief of analysis flawed, we will discuss each seri Freedmen Refugees, and all acts atim. thereof, amendatory or for refusing to do (1) We the begin with dissent’s as- bold any upon act ground the that it would be that “the con- sertion 39th never act, inconsistent with this such defendant templated that 1 of Act section the 1866 right shall have the to remove such cause persons would enable aggrieved to initiate ” for trial to the proper district or circuit against anyone. suit in federal . court court prescribed by manner Dissenting This conclusion Op. at 1040. relating “act corpus to habeas regu- based, appears, it both on the dissent’s judicial lating proceedings in certain jaunt legislative history into errone- its cases,” approved three, eighteen March ous conclusion the federal en- courts and sixty-three; hundred and all acts joyed jurisdiction no over civil private amendatory thereof. problem actions until 1871. The with added.) (Emphasis part The italicized language, of the dissent is threefold: it us, it seems to vests the language overlooks the district courts very of both with Acts, jurisdiction the very civil 1866 and 1871 it attrib- over cases erroneously which Act, professes the dissent 1343(3) ig- utes the 1871 not to see.28 § nores by scores of decisions both the Su- Any possible question jurisdic- as to the preme and the lower federal courts. by vested section 3 of the 1866 Act is by a reading resolved close of Rights

Section 3 of the Civil of 1866 Act 1 of Rights 1871 Civil provides part: in Act: enacted, Sec. 3. And be it by further Be it enacted the Senate and House of That courts Representatives district of the United of the United States of States, districts, respective assembled, within their in Congress America That any language 28. The dissent construes the italicized made Senator Trumbull which the dis- right creating only heavily only speak to remove to federal ques- sent relies to certain court, court actions commenced in state raised tions President Johnson’s veto mes- original sage concerning scope over in pro- actions initiated of the removal visions, Judge Cong. Cong., federal court itself. Garth’s construc- Globe 39th 1st Sess. tion, however, square question inter- does with the 1679-80 not the whether sec- pretation provides original jurisdiction. text ac- of the Court. See tion 3 civil 29A, companying note infra. The remarks Id. at 1759. law, any civil actions who, color stat- in the federal under of courts. The person custom, us- regulation, or ute, ordinance, plain language of the 1866 Act combined State, subject, or cause age shall of this evidence of the contempo- almost person within subjected, any to be Congressional raneous understanding of States to jurisdiction of United language more than adequately re- or any rights, privileges, of deprivation futes the dissent’s assertion that the 1866 of secured the Constitution immunities Act did not include a cause action and a States, law, shall, any such the United grant co-extensive with the ordinance, custom, statute, regulation, or rights which it declared. contrary not- to the usage of the State equally An fundamental flaw in in- withstanding, party be liable argument the dissent’s is its assertion that law, equity, suit in jured in 1343(3) U.S.C. derives § redress; proceeding proper or other Act —an assertion which serves as the 1.871 prosecuted in proceedings to such basis for its contention that a 1981 action § courts of the circuit several district alleging jurisdiction 1343(3) under § must States, subject with and provisions be limited the substantive error, appeal, review same (now Act found in like cases provided remedies other 1983). However, genesis 1343(3) § courts, provisions in such is not the 1871 Act but the 1866 Act: hun- April, eighteen ninth of act 1343(3)] is derived from R.S. [Section “An act entitled sixty-six dred which, turn, originated in 3 United States persons protect all 9, 1866, Rights April Act of Civil rights, and furnish their civil 14 Stat. as reenacted ; oth- vindication” and the of their means 31, 1870, 16 Rights Act May Civil Stat. laws of the United States er remedial 1 of and referred to in the Civil applicable in their nature Rights April Stat. 13. cases. CIO, Hague v. 508 n. added.) preceding language (Emphasis (1939) (Opinion 83 L.Ed. 1423 semi-colon, now codified in the first Roberts, J.). Lynch See also House- action; creates cause U.S.C. § Corp., hold Finance 543-44 n. es- following the first semi-colon language jurisdiction. Accord- concomitant tablishes Bodensteiner, Federal Court Jurisdiction of dissent, marks the ing language to the Against Depriva- Suits “Non-Persons" for jurisdiction of federal court very grant first Rights, tion Constitutional Val.Rev. dissent, how- rights civil actions. over (1974).28A 229-34 The dissent’s asser- unambigu- ever, express the overlooks 1343(3) derives tion that from the 1871 § above, reference, to “like emphasized ous isAct thus unfounded and its conclusion provisions of . under the . . cases provisions of that the substantive the 1871 Rights Act of Civil 1866].” [the 1983) (§ scope Act somehow limit the contemplated by “proceedings” Since 1981 action'is erroneous. § civil private the 1871 Act 1 of Section Judge theory the enumerated Garth’s alternative deprivations of for actions actions), no cause that 1981 creates of action even (now rights § § familiar jurisdiction if it must also be under the 1866Act does vest to “like cases” reference excerpts rejected. Interesting as his from Congress understood the 1871 shows that private legislative history may we giving rise to be—and do as also the 1866 Act Judge 398 U.S. (1970), L.Ed.2d that Garth’s assertion 28A. We believe dissent, Dissenting by Opinion provision cited jurisdictional sec- codified in that obviously speaks quite n. 1343(3) 2 of Act at 1048 from derives section tion of 42 1983 rather than 28 § derivation U.S.C. Section deals is not credible. of 1866 1343(3). sanctions, jurisdiction. U.S.C. § not with criminal Co., language quoted Kress & from Adickes they provide States, an accurate subject not concede with and of the entire debate —the conten- summary rights same appeal, error, review (and 1982 which is also provided § § and other remedies in like cases Act) courts, section derived under provisions completely of action is fore- Rights no cause Civil create Act of [the 1866]— adjudicated closed the scores cases with the language presently found in 28 theretofore non-existent language Act must now with the next from the 1871 guendo the dissent’s erroneous contention well as the contention that § our that it was the action. The first reason is that we believe limits action.29 federal common law the cases ion contention that nent of the 1871 Act somehow breathed life into the 1866 tion —the all cause above that concerning § §§ A 1343(3) these cases have been 1981-82 and the proper cursory Act. of action and co-extensive (2) In view of our determination (3) —we or Judge former now codified in 42 concern must still be with the Even if we were to § comparison the 1866 Act created both commentary. finds Act step 1343(3), Act, must be read into jurisdictional component Garth’s novel absolutely we still could not (and somehow also, basis, Dissenting Opin- jurisdictional compo not with latter reject vested § analysis § first 1982) 1981 action as 1343(3) brought gave no every jurisdictional time.30 the dissent’s theory support accept —that 28 U.S.C. causes of life jurisdic derives agree on a 1871 Congress providing to a ar of Whereas the 1871 sent jurisdiction over correct cal interest. Assuming rivation of zens.” theoreti- sions is of more than historical or brought under that Act’s substantive provi- sions only for reveals that broader of the 1871 “in component of the 1871 Act was codified U.S.C. The difference regulation, Constitution privilege (3) To isdiction of law to be commenced by any person: or of any substantially suggests. (now 1893), # district courts Act of § (Emphasis is stating grant of citizens redress the 1343(3)— “such proceedings,” Act. The two ^[*] State custom or § Dissenting Opinion at 1049. immunity 1343(3) represents actions identical form” as jurisdiction civil action between the two the United States or supplied.) secured ^[*] Act creates law, shall have deprivation, equal rights providing usage, statute, ordinance, . ^[*] provisions secured by “any redress the 1343(3) .; Judge than authorized jurisdictional of any right, original i.e., ^[*] for section Garth is a much extends are not actions Act of of citi- provi- equal ^[*] dep- jur- dis- col- language of the 1871 Act— in Revised 563(12) Statutes see proceeding prosecuted to be in the Dissenting Op. at 1, 1037-1038 n.

several district or circuit courts of the provisions those ultimately replaced were See, e.g., terms, moreover, McDonald v. Santa Fe Trail 30. Even on its own this as- Co., 273, Transp. 2574, pect opinion 427 U.S. dissenting disregards the (1976); McCrary, Runyon principle L.Ed.2d 493 Judge v. quite correctly Garth in- 160, 2586, (1976); U.S. 96 S.Ct. 49 L.Ed.2d 415 opinion jurisdic- vokes elsewhere in his —that Inc., Railway Express Agency, Johnson v. tion and a cause of action are two different 1716, 454, (1975); 44 L.Ed.2d 295 things, the existence of one of which neither Ass’n, Tillman v. Wheaton-Haven Recreation implies establishes nor the existence of the Inc., 1090, 431, 35 L.Ed.2d 403 Op. Dissenting other. See at 1056. See also (1973); Mayer Co., Jones v. Alfred H. Flint, Gagliardi supra, Op. Majority v. at 115 of by 564 F.2d n. 3. The vested the Meyers Pennypack Ownership Woods Home Act could not create a cause of action Association, (3d 1977); F.2d Cir. where there had been none before. Co., Young (3d v. Int’l Tel. Tel. F.2d & 1971). Cir. stands, express require- ous the which, now state action 1843(3) as it by section 1343(3) the Act of law of section is positive into ment irrelevant was enacted June Thus, it is the Act of 25,1948.31 If June section 1981 claim. the courts are not construe, not the we must 1948 which the permitted express read state action jurisdictional provi- narrowly drawn more 1343(3) requirement section into section long been have the Act which of sions see how we or why we cannot could repealed.32 since read into that section an argu- we should ably implied 1343(3). condition of section repeal of the 1871 Notwithstanding the any the of explanation absence of these provisions and jurisdictional Act’s limited dissent, cases we believe of a substantive- day enactment modern grant Supreme Runyon, of Court’s decisions John- very broader much ly distinct son, evidently strongly against Jones militate this Judge would Garth jurisdiction, 1343(3) Judge theory. the limitations aspect all Garth’s into imply those limita- in turn read Act and the 1871 5) (4, limits contending After action. With 1981 cause of into the § tions Act somehow made part the 1871 are of a that such an we believe respect, all due action, 1981 cause of section dissent 1343(3) neither con- is interpretation scope to shift its concern from the seems of that statute language with sistent the section 1981 cause of action to the history. of its accurately reflective nor 1343(3) jurisdiction. bounds of section another, serious flaw even more There it, argument, as we understand is that since argument that the limits of in the dissent’s apply 1871 Act not to was actions jurisdiction must be read into 1343(3) municipalities, it follows that sec- In con- cause of action. section 1981 every 1343(3) provides jurisdiction over tion no as im- perceives he an centrating on what against municipalities. civil actions 1343(3)limiting its of section plied condition against non-municipal to suits application agree Judge We Garth that defendants, apparently Judge has Garth Pape, supra, teaches that Monroe express clause section overlooked apply 1871 Act was not intended to to suits restricting to claims its reach 1343(3) municipalities but we are not con . un- . discriminatory state action —“. relevance to vinced that statute, ordinance, law, color of state der day based on section present . . .” usage regulation, custom First, above, 1343(3). we as demonstrate 1343(3) primarily derives from sec section has ex- Inasmuch Act, the 1866 not from section 1 of tion of that sections 1981 and plicitly held Act; may limits the 1871 whatever discrimination, see, e.g., private apply to therefore, Act, part the 1871 v. Rail- been McCrary, supra; Johnson Runyon Inc., germane to a section 1981 action under it is obvi- not Agency, supra, way Express (a) jurisdictional provision United States Code. —The matter set section 1 of 31. The of the Code of Laws of forth edition Revised Statutes 1871 Act as codified 629(16) repealed time shall 563(12) sec- United States current were together supplement, 24(14) replaced by then current if with the 297 and any, prima 3, 1911, establish facie laws ch. 36 Stat. of March States, permanent general provisions the 1911 Act nature, day preceding repealed force section 39 of were themselves following commencement of session 62 Stat. ch. Act of June legislation positive last of which includ- 1343(3) into session the enacted Section Provided, however, Act, titles ed: That whenever 62 Stat. 869. the 1948 law Code shall have been enacted into legal positive law text thereof shall provides: 204(a) (1970) which 1 32. See U.S.C. contained, of the laws therein in all evidence tribunals, courts, public offices all States, the several the courts of abroad, States, home or at the United States, pos- and insular and the Territories State, Columbia, each Ter- and of District [Emphasis of the United States. sessions possession ritory, of the United or insular added.] States— dis- Secondly, as we also 1343(3). non-pendent section parties.33 Neither Bruno cor- above, Judge Garth were even if cuss nor Aldinger involved a section 1981 claim 1343(3) to the section tracing rect in and neither decision offers guidance to still be with Act, concerns would proper our judice. us the case sub 1343(3), language of section day the modern For reasons, these we persuaded are not obsolete and very than the different rather that the district court lacked 1343(3) section of the 1871 Act. provision repealed jurisdiction over the section 1981 claims accept the dissent’s view also cannot We against City. has that sec- Supreme Court held that the (6) Assuming arguendo Judge Garth brought 1343(3) jurisdiction over suits tion were correct in his conclusion that section than 1983 is other section provisions under 1343(3) provide jurisdiction cannot non-municipal defendants. for limited an action against of Keno- a Judge municipality Garth maintains under section 1981, . “held . that 28 sha v. Bruno U.S.C. we perceive still logic no extending' jurisdiction 1343 did not furnish municipal immunity to section 1981 suits against municipality.” suit a Dissenting Op. brought under 28 (enacted U.S.C. (emphasis added). n. 12 We have 1875) or 28 1343(4) (enacted “holding,” for this but we searched vain 1957). perceive We logic neither nor legal nothing in Bruno the hold- find more than basis for the dismissal complaint of a ing complaint against a a section 1983 states a cause of action under the Civil municipality scope does not fall within the Rights Act of alleges 1866 and jurisdiction 1343(3) jurisdiction. reason, of section provisions under enacted in 1875 and 1957 course, jurisdic- is that section vests legislative on basis of the history of an only tion over “civil authorized action[s] unrelated 1871 Congress. Act of against law” whereas a section action Bruno, of Kenosha v. supra, on municipal clearly a defendant is “autho- which the dissent so heavily, relies law.”32A fully rized supports our view. After holding that sec- 1, Aldinger Howard, 427 U.S. 1343(3) did not provide jurisdiction 49 L.Ed.2d 276 nothing adds over the section 1983 action against to our concern in the case sub relevance municipal defendants, the Court remanded judice. 1343(3) It teaches that since section the case for possible consideration of section provide jurisdiction federal question cannot jurisdiction. Bruno no sug- contains against over a section 1983 action a munici- gestion that 1343(3) unavailability pality, neither can support section section 1343(3) jurisdiction jurisdiction pendent necessarily state law jur- over claims defeats city only a section is isdiction where 1983 the over claims municipalities ground of federal relief asserted under section 1331 as well.34 hand, significance perforce 32A. also The dissent attaches a “civil action authorized holding 1343(3) in Bruno section law” holding does to which the in Bruno is com- -type pletely inapposite. provide a for Bivens four- against municipali- teenth amendment claim a expressly 33. The ques- Court noted the limited ty, although Dissenting section 1331 does. tion before it: Opinion holding, at 1051. The basis for this [W]e decide here the issue however, of so-called simply fourteenth amend- “pendent party” jurisdiction respect against municipality ment “civ- claim is not a brought 1343(3) a claim under §§ law,” Supreme il action authorized statutory grants alignments Other and other having expressly Court declined to hold that parties might and claims call differ- such a fourteenth amendment action will lie. ent result. Ingraham Wright, See U.S. 427 U.S. at 96 S.Ct. at 2422. 51 L.Ed.2d n. Mt. Healthy City Doyle, School Dist. Bd. of Ed. v. Congressional 34. We also note that deter- 274, 277-278, L.Ed.2d 1343(3) mination make a section (1977); Aldinger Howard, alleging private unavailable in actions discrimi- n. prompted An nation never brought jurisdictional the other or this court to hold that other

1037 c. First, important I respects. several do not believe that a cause of action 42 under reasons, that we hold foregoing the For against can be asserted U.S.C. 1981 § cause complaint states a plaintiffs’ Second, municipality. I we believe that the is not 1981 and that under question cannot avoid the troublesome liability under that section. immune from the whether Fourteenth Amendment it- we the district Accordingly, will reverse damages self furnishes a cause of action for the section 1981 claim dismissal of court’s be employed against municipal- which can City. against the ity under circumstances. I would reach question, that I and would hold that munici- V. palities subject are not to such suits. Final- plaintiffs contend that their state I ly, would hold that the district court did negligence is

law claim the dismissing plaintiffs’ pendent not err in the the court under that cognizable in district state City. claims the I ac- would pendent jurisdiction. Because the court’s cordingly the judgment affirm of the dis- it no federal believed had district court trict court. jurisdiction any of the claims question over pen- To City, agree it to exercise the extent that I that the plain- declined tiffs’ plaintiffs’ state law Fourteenth Amendment claims must jurisdiction over dent holding plain- (albeit be dismissed that light of our for reasons differ claims. In directly majority’s), relief from the I concur. In all a claim for other tiffs have stated respects, I 1981, also remand the dissent. we will under section to the district pendent question

court for its further consideration. I. dis- judgment of district court Claims under 42 U.S.C. 1981 § amendment claim missing the fourteenth affirmed, of the other the dismissal will be flaw in majority’s fundamental reversed, will and the case claims will be analysis of 42 1981 its U.S.C. is refusal § proceedings consistent with remanded for recognize scope cause opinion. this action created that section must in- terpreted light legislative history in GARTH, Judge, dissenting part in Circuit “Ku Klux Klan Act” of 1871. While concurring part. true, notes, majority it is 42 I dissent because am U.S.C. 1981 derives from section respectfully § must I 1866,1 Rights majority has erred in Civil Act it was not until convinced that See, e.g., Section 16 of as well. Sullivan Fourteenth Amendments. are foreclosed bases 238, Park, 229, 1870, 31, Hunting May Act v. Little the Enforcement Act 400, 1870, 114, 140, repeated essentially Jones v. 24 L.Ed.2d 386 ch. 16 Stat. 409, 2186, Mayer, language H. Alfred same which had been included (1968); Young v. Tel. Int’l & addition, 20 L.Ed.2d Act. § § 1 of 18 of Co., 757, 1971). (3d Jur- F.2d Cir. Tel. entirety Act in its stated Act was found on 28 in these cases U.S.C. isdiction was reenacted. When the Revised Statutes of 1343(4). 1343(4) jurisdiction present, If § § 1874, United States were enacted also must be. § it follows placed essence of 1 of the 1866 Act was R.S. 1977 and 1978. For a more detailed de- of 42 U.S.C. 1981 was first 1. The substance scription process, Runyon this see Rights 1 of Civil Act of 1866. enacted as McCrary, n. 168-69 April c. 14 Stat. Both ITT, (1976); Young congressional opponents 1866 Act 1971); Note, (3d Dis- F.2d Cir. Racial Johnson, who Andrew vetoed the and President Employment crimination the Civil bill, argued that Thirteenth Amendment Rights Act 619- 36 U.Chi.L.Rev. power given to enact had finally R.S. entered the Therefore, after the Four- a measure. States Code as ratified, Congress re- was teenth Amendment opin- throughout Since reference made in 1870 in order to insure the 1866 Act enacted predecessors supported the various of 42 U.S.C. the Thirteenth ion to both 1 of the law that This section § Act became is the 1871 the basis of the whole bill. effectively converted into The other provisions was a 1866 Act of the bill contain the necessary a civil cause machinery furnished of to provision give effect to what are federal courts. to rights in the As declared be the cognizable action all persons in the legis- result, necessary to look to the first section. it is Act, as does history, not lative Globe, Cong. Cong., 39th 1st Sess. 474 legislative but to majority, rather (1866). He also observed: Act in to deter- of the 1871 order history first section will amount [T]he to noth- subject intended to Congress mine whether ing more than the declaration of the Con- liability to when it created municipalities stitution itself we unless have the ma- plain- action asserted cause of chinery to carry it into effect. A law is this case. tiffs in good nothing without a penalty, with- it,

out sanction to and that is to be found in the other sections of the bill. A. Globe, Cong. 39th Cong., 1st Sess. 475 quite Congress, the 39th It is clear 1866, Rights the Civil Act of which enacted Section 2 provided principal weapon contemplated never enforcing the rights enumerated in sec- private cause of Act would furnish a Section made it a crime for any- In cognizable in federal court. order to acting one under color of law deprive to the 1866 Act what section understand person any another rights of those be- it, Congress which enacted it meant cause of race previous or condition of servi- necessary to examine the 1866 Act as tude. Senator Trumbull commented: whole.2 This is the valuable section of the bill so Section 1 of the Act—which ultimately far protecting as of freedmen became U.S.C. 1981 and 1982—was §§ concerned. proponents of the described measure as a When it comes be understood in all enforceable the ma declaration parts of the United States that per- up remaining

chinery set in the sections of son who deprive shall another of any example, Lyman Act. For Senator right subject punishment him in Ill.), (Rep. the Chairman of the Trumbull consequence of color or his race will ex- Judiciary spon Committee and the pose Senate himself to imprisonment, fine and I Act, the 1866 said of section 1: sor of think such acts soon will cease. 1343(3), may § § 1983 and 28 U.S.C. it be them in the 1871 Act. In the 1940 edition of helpful Code, summarize evolution well. 24(14) the United States § of the Judicial originated What is now 42 U.S.C. 1911, § in 41(14). Code of § became U.S.C. Fi- 1871, April § of Ku Klux Klan Act of Act nally, 1948, Congress in enacted a revised ver- 20, 1871, 22, c. Stat. 13. When Revised 28, 646, sion of Title June Act c. Statutes were enacted substance of provision rephrased Stat. 869 which this was provision placed this in R.S. 1979. R.S. designated 1343(3). as 28 U.S.C. § designated 1979 was as 42 U.S.C. 1983 in the majority claims that these statutes had their United States Code. origin Rights §in 3 of the Civil Act of 1866. 1343(3) origi- What is now 28 also U.S.C. dissent, For the reasons discussed this I nated in the Ku Klux Klan Act of disagree. Statutes, provision In the Revised was in- tracing the evolution 42of U.S.C. §§ 1981 corporated separate into sections. One two 1343(3), I have not section, 563(12), jurisdiction concerned the R.S. changes phraseolo- mentioned the numerous courts, other, of the district and the R.S. gy may which have occurred. While some 629(16), original jurisdiction concerned the significance contexts, in other none seems circuit In 1911 courts. enacted a important here. Code, new Act March ch. Judicial original Rights 36 Stat. which eliminated the April The Civil Act circuit courts. Under c. entirety 14 Stat. is set out in its Code, 24(14) of that the district courts re- appendix opinion. to this originally granted tained necessary go “any will cause under I think slaveholding States and sub- provisions into the late of this act.” one or imprisonment two ject to fine short, provided In the 1866 Act for the State, prominent ones I and the most ain of enforcement the enumerated in that, up this to break at hope should prosecutions, section 1 means of criminal whole business. state by the removal of suits to federal Globe, Cong. 39th added.) (Emphasis court, and, necessary, military if force. (1866).3 475 Cong., 1st Sess. actions in federal court were not Private impor- two the Act contained 3 of Section weapons Congress among supplied by the “conferred exclu- The first provisions. tant the rights for the enforcement of enumerat- of for violations sive criminal ined l.5 § Casper, the courts.” federal upon the Act proposal On the to contrary, a add a Clio, and Con- Bemused Mayer: v. Jones authorizing private such provision actions 89, 104. The Muse, Sup.Ct.Rev. 1968 fused rejected was the advanced and House of rights under claiming persons “gave second 1866, 8, Representatives. March On while to have civil or opportunity the the Act being the 1866 Act debated in the against them re- proceedings state criminal House, the a motion was made to send Act Id.4 re- courts.” the federal moved to Judiciary Repre- back the Committee. to in this set out arguments the to sponse Bingham (Rep. Ohio) John A. sentative 3 of dissent, majority contends the by adding amended motion instructions the feder- also conferred the 1866 committee for the private over original jurisdiction al court to out of bill parts strike all said the reasons Act. For claims under which authorize criminal penal, infra, I am satisfied explained part IC to proceedings, give in lieu thereof its majority erred in thesis. the injured by all denial or violation citizens appre- the through 4 8 concerned Sections of of other secured or the persons who prosecution of had hension and protected by said act an action empowered section 2. 9 violated Section with United States courts double costs in of employ part “to President regard recovery, all of without to cases States, land naval of the United or forces damages. of amount militia, necessary pre- of shall Globe, (Emphasis added.) Cong. 39th Cong., vent the violation and enforce due (1866). this final 1st Sess. 1271 The motion recom- execution of Act.” And the sec- tion, 10, permitted appeal section an the mit bill to the Judiciary Committee Cases, Wells, Similarly, Rights (No. 17,386) (C.C.D.La. 109 U.S. Civil 29 Fed.Cas. 633 3, 18, 16, 25, 1878) (criminal prosecution 27 835 3 S.Ct. L.Ed. of blacks and white “really Republicans); Fowlkes, described 2 of the 1866 Act as Court Southern Fowlkes v. 9 interpreta- part (No. the law.” For 5,005) effective of (C.C.W.D.Va.1875) 621 Fed.Cas. see Screws v. United (civil blacks); tions of Gaines, action Texas v. 1031, States, U.S. 65 S.Ct. 89 L.Ed. 1495 13,847) (No. (C.C.D.Tex.1874) Fed.Cas. Classic, (1945); United States v. (criminal (Bradley, J.) prosecution black). (1941). 85 L.Ed. 1368 contemporary judicial explanation 5. For a scope whole, 1866 Act as a 3 of 1866 Act also contained the see 4. Section Rhodes, present v. United States 42 U.S.C. Fed.Cas. forerunner (No. 16,151) description scope (C.C.D.Ky.1866) J.). (Swayne, of 42 U.S.C. For a For Alameda, County commentary Act, scope see Moor modem Fairman, History 36 L.Ed.2d U.S. see C. States, attempted of the United vol. in a 6: Reconstruction 3 was num- Removal Reunion, 1864-88, following part period during one 1169-72 ber cases See, La., Clio, (1971); Casper, Mayer: e.g., Jones v. Dubuclet U.S. Be Civil War. Muse, (civil Sup.Ct.Rev. (1880) mused and Confused 26 L.Ed. 504 Rives, 89, 194; Bickel, Original black); Understanding 25 L.Ed. Va. black); (criminal Decision, (1879) prosecution Segregation Straud- and the Harv.L.Rev. Va., (1879) L.Ed. er v. W. parte black); (criminal prosecution Ex Bingham’s minority attempted instruction was defeated racial enforce 1§ Id. of 53 to 45. civil

a vote means action in federal court. proposed Bingham’s instructions While it seems clear members obviously would have been Committee 39th contemplated never already provided meaningless if the Act had section 1 of the 1866 Act would be enforced cognizable in private cause of action for a by means courts, of civil suits in the federal Bing- the defeat of court. And they must have private realized that actions proposal suggests that the House did ham’s in state courts could used to enforce that such a cause of action not desire to create provision. noted, As I have the 1866 Act at that time. private itself did not a create cause of ac- tion. But prevented that would not have a Undoubtedly principal why reason plaintiff civil in state court raising from never Congress the members of the 39th claims under that Act if he could fit his 1 of the 1866 Act contemplated claims into one of the pre-existing common filing authorize the civil actions would law forms of action. is that there no the federal courts was jurisdictional basis which the federal The itself, Act, Constitution like the 1866 courts of 1866 could have entertained such did expressly private create causes of granting provision the fed suits. first designed to enforce its guarantees. rights ac jurisdiction eral courts over civil Nevertheless, plaintiffs civil had successful- 1871,6 gen tions was not enacted until ly raised constitutional claims in the state question was not eral federal by fitting courts those claims into one Diversity created until 1875.7 the ancient Hill, forms of action. Constitu- have been a would also unavailable for Remedies, tional 1109,1133 69 Colum.L.Rev. number reasons.8 (1969). As one commentator has written: [Ajfter few federal cases decided under sec- Eng- centuries evolution land, between 1866 and 1871 reflect Con- litigation 1 had become synonymous gress’s understanding of the meaning with the forms of action Common Law 1 during that section. Section was enforced Equity. bills in way, What safer by prosecution, then, criminal period United of raising a question constitutional Rhodes, 16,- (No. v. 27 Fed.Cas. by States 785 than trespass an action of quare clau- 151) (C.C.D.Ky.1866), means of ha- fregit, ejectment, sum replevin in the Turner, corpus, detinue, In re 24 cepit, trover, beas Fed.Cas. 337 case, action on the (No. 14,247) (C.C.D.Md.1867). However, covenant, or special assump- indebitatus sit, there no evidence that member a a equitable bill for relief? 20, 1871, 22, 1, 94-95, April J., (Field, 6. Act c. 17 dissenting); Stat. 13. 21 L.Ed. 394 Ex Va., parte 339, 364-65, 100 U.S. 25 L.Ed. 676 1875, 137, 3, 1, 7. March c. 470. Stat. (Field, J., dissenting). diversity Even after the obstacles ato First, right blacks to invoke the diversi- deprived suit a black of his civil ty jurisdiction of the federal courts was appear would to have been formidable. In the until made clear the Fourteenth Amendment majority vast of instances in which there were was enacted in 1868. In the infamous case suit, grounds filing diversity citizenship Sandford, (19 How.) Scott v. 60 U.S. [Dred] probably addition, did not exist. (1856), Taney $500 15 L.Ed. 691 Chief Justice controversy requirement amount had held native-born blacks whose ancestors Sept. met. Act country ch. Stat. had entered as slaves were not entitled to of citizens of the States, Finally, including right bring it should be di- noted that until Cowles versity County, (7 Wall.) 118, v. It Mercer actions federal court. was not 74 U.S. decided, until of the Fourteenth be- L.Ed. 86 Amendment it was not clear holding diversity jurisdiction came law in 1868 that was defini- the federal courts’ Bickel, tively Morality A. overruled. reached suits citizens of one state (1975). Slaughter-House municipal corporations See also Consent created another Cases, (16 36, 72-73, Wall.) 21 L.Ed. state. (Miller, J., (1872) Court); for the id. at Revision, declaratory 21 Va. statute is of the common Jaffin, Procedural Federal (1935) (footnotes law, omit- it to as I understand now exist in 525-26 L.Rev. as- ted). the 1866 Act were Rights under this state. suits in the civil in state

serted also Norwood 46 N.W. at See v. Moody, v. See, e.g., Smith way. same Galveston, Ry. Co., H. & S.A. 12 Tex.Civ. note); (1866) (action promissory Ind. App. S.W. Carter, 327, Am.Rep. Cory 48 Ind. important points It me two seems to Greenhow, Carter (1874) (mandamus); First, emerge the discussion above. (1884) L.Ed. 202 contemplated never since the 39th case). In those states (action on 1866 Act would that section 1 of the enable re- pleading had been common law initiate suit in federal aggrieved persons proce- of civil placed by simplified code legislative against anyone, history court dure, could achieve the same plaintiff no provide guidance Act can of that into the by fitting his claims form result respect private whether a action under See, Ward e.g., law tort action. a common 1981 can now be maintained 42 U.S.C. § Flood, Am.Rep. 48 Cal. Second, against municipality. pri- since case process is well illustrated the This could vate actions under the be Gies, N.W. 82 Mich. Ferguson courts, in the state all that was initiated in a who was ex- which black way for needed to clear the the mainte- dining room of a restau- cluded from the nance of in the such actions federal courts against brought proprietor suit rant practicable jurisdic- awas basis of federal Michigan guaranteed statute which under a suits be under could enter- to but equal public access accommodations a Congress tained. furnished such basis of provided a criminal sanction. Su- jurisdiction in 1871.8a federal Michigan wrote: preme Court of [argued] is the defendant’s [I]t B. gives right that this statute no counsel Congress practicable furnished a basis of damages, penal that it action for civil is a private federal claims under statute; right plain- and that the when enacted 1 of the Ku the 1866 Act is confined to a criminal tiff under it That provision Klux Klan Act was . . The law prosecution. common predecessor the current this before col- as it existed in state 1343(3). As the Revised Statutes of 1874 a our ored man became citizen under it, the district and circuit courts phrased laws, to white gave constitution and given jurisdiction over were all suits remedy against any unjust a dis- man “brought any person dep- to redress the public the citizen in crimination to all rivation, law, ordinance, any color of under that, places. It when must considered custom, usage any regulation, or State of man, planted, this suit was the colored any right, privilege, immunity secured state, the laws of this was entitled under Constitution the United States” or rights privileges public same in 563(12) certain federal statutes. R.S. §§ as white man and places must 629(16). there; his and that treated same provi- injuries arising Obviously one of the effects of this right any of action for permit sion was to federal courts to unjust an discrimination brought to vin- just in the entertain common law suits perfect is as and sacred him guaranteed by the 1866 Act. any rights This as that of other citizen. dicate courts contending jurisdictional I follows am district 8a. The discussion court support- “jurisdiction” argument lacked to hold the no than an liable constitutes more give recognize, ing my major- does under I as not does contention ity, municipality “jurisdiction” a distinction between action rise to a cause of mean, granted” damages. “claims which relief can be It not once for tort does F.2d, found opinion p. is to exist. majority states at 1030 of 564 trespass wrong-doer vi et If, example, an action of the Federal Penn- brought courts, been armis could have any and that without limit what- prior to 1871 to redress a sylvania courts soever as the amount in controversy. enumerated in violation one deprivation may slightest be of the Act,9 after same then 1871 that the 1866 character, conceivable damages could be maintained action of any may estimation sensible man fact, once 1871 Act And courts. cents; be five or even five they dollars enacted, 1 of the private claims under § may lawyers be what call merely nominal 1866 Act were asserted in the federal courts jurisdic- damages; yet by See, difficulty. e.g., Berton- without given tion of that civil is Directors, 3 Fed.Cas. 294 neau Board being prose- Federal courts instead of its (No. 1,361) (C.C.D.La.1878); Ho Kow v. Ah cuted as now in the courts of the States. Nunan, (No. (C.C.D. 6,546) 12 Fed.Cas. 252 certainly I denying am favor of Cal.1879); M’Conway Torley Fraser v. & who deprived unlawfully man Co., (C.C.D.Pa.1897). short, 82 F. right, his privilege, his or his immunity, Congress when enacted section 1 of the Ku Constitution the United Act, step Klux Klan it took the last needed States, every that redress to which man is to transform section of the 1866 Act into violated; entitled whose I but provision which could be enforced by do think that impolitic provi- it is most of private means cause of action in feder- sion, that in may effect transfer the hear- instructive, therefore, al court. It ing of all such causes into the Federal precisely determine what had in courts. mind when it effected this transformation. My objections briefly to this section are congressional debates on the 1871 it, first, object these: I because of the Act of show that members both Houses centralizing tendency transferring of all profound- realized that of that measure suits, private mere punish- as well as the ly “the relationship altered between the offenses, ment of from the State into the respect States and the Nation with to the Federal courts. protection federally rights,” created place, In the next I object to it because Foster, 225, 242, Mitchum U.S. is really, it may whatever be said about L.Ed.2d 705 and it, a disparagement of the State courts. “opened up that it the federal courts” to This bill embraces the whole United previously suits which could be brought States; say and to that every man who only in state tribunals. Id. at may injured, slightly, however in his example, 2151. For an opponent rights, privileges, or immunities as a citi- measure, (Dem. Allen Senator G. Thurman zen of the United can go States Ohio), judge Supreme former on the Federal courts for redress is say, to Ohio, Court of said of 1:§ effect, that judiciary the States is wholly This section relates to civil suits. worthy being not trusted. I for one It creates no new cause of action. Its unwilling say am to . that. give whole effect is to to the Federal For these it reasons does seem to me Judiciary belong that which now does not grant that this to the Fed- may that to it —a be consti- actions, eral courts to entertain these it, tutionally upon grant, conferred I but without limit whatsoever as to the yet upon has never been conferred that controversy, amount is impolitic any person It it. authorizes who is de- unwise. privilege, prived right, or immuni- ty Cong. Globe, Cong., Sess., to app. secured him the Constitution of 42d 1st States, bring (Emphasis added.) the United an action Philadelphia forcibly portion RR Co. Cf. West Chester and removed from of railroad car Miles, (1867) (ac- whites). 55 Pa. Am.Dec. reserved for trespass tion initiated black who was Bruno, did dis- of the 1871 Act of Kenosha v. Proponents permit (1973),12 fact that would pute previous- taught, to hear suits which courts enactment of section 1 of federal brought only in the state courts. Act intended to make ly could be munici- subject it Instead, they palities maintained that was both to suit in federal court on give the fed- civil claims. it necessary was the constitutional Since enact- example, Rep- ment of power. that For eral courts which Kan.) way for (Rep. P. Lowe stat- cleared the civil resentative David actions federal Act, court under the it that the follows that ed those cannot suits be maintained tribunals are records [state] municipalities. The 42d Congress under- evidence of searched vain for effective stood that section 1 1871 Act would rights]. . . federally secured redress [of permit private suits under the 1866 Act to less than this 1 of the 1871 What [section filed in federal court. It considered the remedy? adequate will afford an Act] arguments in favor of and taking cannot serve a The Federal Government it step, such a decided enact section upon Executives writ of mandamus State time, rejected At the it same the idea of compel them to courts State subjecting municipalities to such suits. It rights, privileges immuni- protect seems me that we are bound . . . The case has ties citizens. decision. . . when Federal arisen agen- resort to its own must Government I am aware some courts and com into authority execu- carry

cies to its own argued Supreme mentators have open the Hence this bill throws tion. Pape, supra, Court erred in Monroe v. when the United States courts to those doors of Congress opposed concluded the 42d rights under Constitution whose municipal liability all forms of on civil impaired. denied or However, rights claims.13 it seems to me Globe, Cong., Cong. 42d 1st Sess. 374-76 question is not (1871).10 free to decide. The Court has repeatedly interpreta reaffirmed Monroe’s weighed competing argu- these legislative history of the 1871 “basic alter- decided to make the ments and Howard, Aldinger Act. system”11 which 1 of ation in our 2413, (1976); 49 276 S.Ct. L.Ed.2d of pro- It that Act entailed. enacted the 1871 Bruno, Kenosha v. 93 1 of thereby transformed section S.Ct. vision and 109 County L.Ed.2d Moor v. a statute which could the 1866 into Alameda, private a suit in fed- of by means of enforced However, interpreta time that' L.Ed.2d 596 Until that the same eral court. repudiated is important policy Court, deci- it Congress made that addition, sion, scope appears of the binds this Court. it to limit it decided making significant that there is a sound basis for changes it was in one Monroe’s interpretation. propose I do Pape, As Monroe v. While to respect. judgment pass validity 187-92, L.Ed.2d Mon- Bruno, injunc- supra, summary remarks to held that an action for a additional 10. For Foster, supra, against municipality see tive relief a could same effect Mitchum not be n.31, also See U.S. at 240-41 & maintained under 42 U.S.C. 1983 and that Sess., Globe, (Rep. Cong., app. Cong. 1st 42d U.S.C. 1343 did furnish Garfield); (Rep. (Rep. Perry); app. p. against municipality. suit a See 59 in- Dawes). fra. Foster, supra, 407 U.S. at 11. Mitchum Comment, E.g., Municipal State and Toward at 2160. Liability Damages Equal for Denial of Racial Protection, 57 Calif.L.Rev. 1164-69 held a of action for dam- 12. Monroe cause ages as- 1983 could not be municipality. a Kenosha serted intent, congressional governmental assessment of it make responsi- roe's local units note interesting is to the conclusion reached deprivations ble for those so recent, study question: detailed the community as a whole would that, It should ... be noted while share responsibility allowing such a sweep- Civil Bill Rights was to situation exist. Yet the Rep- House of ing scope, it was be a considered to overwhelmingly resentatives defeated the step prin- enforcement of amendment, first apparently on the basis that ciples of the fourteenth amendment. pro- milder course of action —that of point emphasized by was Represent- This ceeding directly against individuals— Coburn. He stated that ative it was should be followed first. proponents of the belief fourteenth legislation amendment and this This Congress willing was to end “states’ Congress the power literally had to set rights” by penalizing state officers and governments aside state over take other individuals to state, sought who violate the functions but the principles of the fourteenth amend- yet remedies were not drastic needed. It ment, it view, but showed no inclination preferable in his to was and that of bill, interfere “simpler directly governmental of the the drafters remedy” against persons individual units at this time. undertaking any tried before direct inter- (Emphasis added.) (Footnotes omitted.) governments. Thus, state ference with it Nowak, Scope Congressional Power proponents would seem that to Create Causes of Action Against State provide civil bill intended and criminal Governments, and History Elev- sanctions individuals who en- Amendments, enth and Fourteenth 75 Co- designed deprive

gaged activities lum.L.Rev. (1975).14 1467-68 rights guaranteed individuals of the some thought amendment and it advisa- C. provisions to see these ble if were effec- In response arguments set out determining tive before whether above, the majority argues against governmental sanction bodies was 1866 Act conferred upon the federal courts needed in order enforce the amend- original private to entertain ment. claims under that It me, Act. appears easy When seen in this context however, that the evidence to the contrary why understand the House of Represent- overwhelming. proposal atives defeated the which Sena- portions together tor Sherman had relevant introduced the Sen- marginal with the municipalities printed control of governments some local the Act including attached to Ku Klux Klan and the lack of enforce- dissent as an appendix.) I have subdi- ment of the fourteenth amendment vided the portions quoted to make those areas. Senator Sherman wanted to reference more convenient. First, party injured

14. See also may Senator Sherman’s reaction to the sue proposed defeat of his money amendment: courts of the United States for dam- ages. Disguised Whom? outlaws. remedy you What do offer the victims and (Emphasis added.) Globe, Cong. Cong., 42d 1st you punishment with what do threaten Sess. 820 guilty? (a) enacted, And be it courts That the district Sec. further Courts have, States, districts, exclusively respective within their shall United States juris-

to have States, crimes and cognizance of all the courts of the several diction of act, of this provisions offences committed offences under this act. (b) also, concurrently with the criminal, causes, af- States, civil of all circuit courts the United or in the courts enforce cannot are denied or fecting persons who bemay any locality they where tribunals of the or judicial State act; of this the first section secured to them (C) or any prosecution, if suit Suits com-

menced in State court, State criminal, any be commenced has been or shall civil or may courts whatsoever, any or offi- any for cause any such against cer, person, removed on defendant's arrest or imprisonment, or or other for military, person, civil motion. or color committed virtue or wrongs done trespasses, for the a Bureau establishing act act or the derived from this authority thereof, or 1865,ch. 99. amendatory and all acts Refugees, Freedmen and relief of xiii, p. 507. Vol. incon- that would ground any act to do refusing remove act, right have the shall such defendant sistent with this man- or circuit court district proper for trial to the such cause and regulating habeas corpus “Act relating by the prescribed ner three, cases,” eighteen March in certain approved judicial proceedings amendatory all acts thereof. sixty-three, hundred and May just enacted that “subsection majority maintains over one upon the original b” conferred Rights month after the Civil Act of 1866 forerun- that it was the courts and became law. Thus the members of Con- 1343(3). disagree. I 28 U.S.C. § ner of approved gress who 3 of the 1866 Civil Rights meaning recognized Act must me that the true that the It seems when it is fairly b” obvious procedures “subsection for the removal cases under provisions together with the other viewed governed by that section would be the soon- permitted defend- c” 3. “Subsection amending to-be enacted measure the 1863 rights in not enforce their ants who could Act. proceedings to remove the state court amendment, As modified the 1866 pro- to federal court. It also against them Act permitted removal cases under removal were procedures vided that 3 of the 1866 Civil Rights Act in three as those set out in the same to be First, circumstances. time after en- Act of Corpus Suspension Habeas appearance tering prior his but to the em- c. 12 Stat. of March jury, panelling of the a defendant could file petition in the state court a verified stating addition, be noted that a bill it should grounds for removal. The court state procedures established to amend obligated proceed would then be no fur- Suspension Act15 had Corpus 1863 Habeas ther with the case and to forward the rec- Trumbull introduced been Senator to appropriate ord federal court. the Civil Congress while pending was Second, the defendant could remove the consideration. Rights Act of 1866was under appropriate Act was in fact case to the federal circuit court amending the 1863 That bill May 11, 1866, (1866). Act of 14 Stat. 46 conflict, judgment against was in entry after of final direct and the case would post-trial removal was party him. Such not therefore rise in which a was appel- to a federal equivalent appeal of an tested, discriminated until it was Finally, trial from a state court. late court and then if the discrimination was held to a court refused remove case if the state right he to remove it valid would have a court, docket to the defendant could federal a Federal to court. court, in federal and the federal case (Emphasis added.) compel plaintiff then to court would Id. words, In said, other Trumbull a de- or suffer a default proceed federal court fendant could remove his case judgment.16 entry court after the of judgment against of “subsection b” of the Civil purpose if judgment him that was based on discrim- give the federal Rights Act of 1866 was ination. Trumbull continued: all jurisdiction cases under that courts —or, undertaking if to enforce his court Act which reached federal right in a court State he was denied that were, by Such cases these three methods. right, then go he could into the Federal definition, cases in which the defendant court. enforce his in state court. could not words, observed, Id. other Trumbull if a suggest strongly that “subsec- The evidence defendant undertook to “right enforce his provide jurisdic- tion b” no more than to did to remove” his case to federal court but was cases of this sort. tion for court, right by denied that the state “then The members of who debated go court,” he could into the Federal and the little devoted attention would proceed case as if it had been re- it (That strongly suggests itself did moved from the state court. Trumbull con- original a new type jurisdic- not create cluded: Indeed, tion.) expla- authoritative it but no means every follows that was given by nation of person right would have a in the first Trumbull. Senator Trumbull stated go instance to to the Federal court be- 3, “jurisdiction is given to the Fed- cause there on the was statute book of person affecting eral courts a case the State a discriminating against law against.” Cong. is discriminated him, the presumption being that Globe, Cong., 39th 1st He Sess. court, judge of the when he came to act explained: then case, would, in obedience to the Now, he necessarily is not discriminat- paramount States, law of hold may ed because there a cus- against, the State statute to be invalid. community discriminating tom in It seems to me that Trumbull’s authorita- him, Legislature nor because explanation tive 3 is utterly irreconcila- may passed discriminating a statute ble with the majority’s thesis. him; validity that statute is of no I will not set out in text all the with a other if it comes conflict statute States; evidence which majority’s and it to be refutes the the United is not inter- pretation of section 3 as a presumed any judge grant original of a court State jurisdiction. However, hold that dis- would a statute a State seems me that criminating against person persuasive there is additional account evidence re- futing majority’s of color was valid when there stat- interpretation in the itself,17 language ute of United States with which it legislative Congress’s very language 16. On removal 17. The use of of “subsection b” belies during majority’s interpretation. civil enforce the Reconstruction “Subsection b” era, Kutler, S. Judicial Power Recon- see furnishes federal for certain “caus- Wiecek, es, added.) (Emphasis struction Politics 143-60 civil and criminal.” Power, parallel of Federal Judicial Reconstruction This treatment of civil and criminal 1863-1875, Am.J.Leg.Hist. perfect 338-42 cases makes sense if “subsection b”

1047 Act,20 Act,18 history the 1871 in the absence and in recent history of the 1866 original juris- Supreme scholarly civil and invoking Court cases21 corn- cases reported Act,19 legislative mentary in on the 1866 Act.22 the that diction by state from the courts in the to cases removed writ of [i.e. refers by courts, could error or and in the civil criminal cases certiorari lower courts both and since sense, however, post-trial if removal under 3 of the 1866 § makes little Act]. removed. It be original jurisdiction, b” refers to And since the fourteenth amendment forbids “subsection suggest making enforcing b” “subsection that that would State or law because jurisdiction original abridging privileges criminal these and immunities conferred however, know, , party injured that We . the federal courts. should have an original gave courts, original courts a” the federal “subsection action in our Federal so that prosecutions vio- injunction for jurisdiction by by recovery damages of all criminal or Act, to is difficult see party the 1866 lations he have relief who could original type of criminal guilty infringing what other under color of such law is granted b.” “subsection rights. have been could his remedy one, think, to civil no I As can ' speech, Trumbull’s three to Sen. In addition object. history legislative events other Frelinghuysen’s per- Senator observation that majority’s inter- militate 1866 Act deprived of their civil “should sons have pretation. original an action in our Federal courts” cer- Saulsbury (Dem. Del.), First, Willard Senator tainly they suggests he that did believe that Act, opponent intemperate dis- an had such an at time. 29, 1866, January gave illus- 3 on cussed § by Representative The remarks made Samuel to the ex- he be of what considered trations Ohio) introducing Shellabarger (Rep. 1§ pro- would which that section treme results Shellabarger revealing. the House also ob- Globe, Cong. Cong., 1st Sess. 479 39th duce. served: examples involved re- All of his My inquiry first is as warrant which pro- or criminal civil to federal court of moval ceedings enacting we have for such a this. section as in state blacks initiated The model for it will found second by predicting courts, § that 3 and he concluded April section of act of known as from the state result in the removal would provides the “civil act.” That section which the defendants all cases in courts of proceeding identically criminal same Id. If it had been understood were blacks. remedy provides case as this one a civil a new § conferred the 39th type (Emphasis added.) original jurisdiction upon the federal If section 3 of the 1866 were the forerunner Act courts, significant it seems doubtful that 1, Shellabarger certainly of section almost step escaped comment Senator have would mentioned that fact while discuss- would have ing Saulsbury. relationship of section to the 1866 Act Second, President Johnson vetoed when enacting “warrant ... Act, Saulsbury’s prediction that he echoed section.” in the removal 3 would result § in some states noted, Finally oppo- I some of were in which 'defendants of all actions during of the 1871 Act claimed the de- nents Globe, Sess., Cong. Cong. 1st 39th black. type that the of federal creat- bates sug- Johnson also failed President unprecedented § ed 1 was and unconstitu- type gave gest the federal courts a new 3§ pp. supra. Many of tional. See 1041-1043 jurisdiction. original Id. supporters of the Ku Klux Klan Act had pro- Finally, Act to the 1866 the amendment Therefore, 3 of also voted the 1866Act. if § Bingham by Representative would have posed original the 1866 Act had created a basis Act had if 3 of the 1866 made little sense jurisdiction, it would seem natural for one of 1343(3). See of 28 U.S.C. been a forerunner responded to the criticism 1§ them have supra. pp. of this dissent 38-39 by pointing juris- out that the p. supra. 19. See provision precedent diction created had 3 of the earlier Act. None §in did. Act, During Senator debate on the See, Lynch Corp., e.g. N.J.) v. Household Finance (Rep. Frelinghuysen stated: Frederick n.7, 543-44 remedies] are three classes [of There (1972) (traces history of U.S.C. L.Ed.2d government [by applied might the federal Rachel, 1343(3)); Georgia remedies, rights]: protect civil crimi- civil (traces (1966) histo- 16 L.Ed.2d public national relief. nal remedies 1443(1) (2) ry of 1866 of U.S.C. violation of these remedies for a to civil As Act). privileges, when the courts of know that we provisions of the Constitu- a State violate Fairman, 1170-71; supra at Cas- note there is 22. C. of the United States tion or the law Note, 104; Developments supra per, note in the Federal review now relief afforded 1048 arguments advanced The majority to the also Lynch

I turn now cites v. House thesis. The support in its majority 538, hold Finance Corp., 405 U.S. 543 — 44 first, relies, language in upon n.7, majority 1113, 92 S.Ct. provided the 1871 Act support 1 of its thesis that 1343(3) 28 U.S.C. § initiated under that the civil actions origin had its in 3 of § the 1866 Act. however, section were: Lynch, provides no support for the appeal, majority’s argument. re- to the same subject portion Lynch The error, pro- majority refers, remedies to which the upon and other view states: ¡ike courts, in such in cases vided This Court has traced the origin of of the ninth of provisions of the act jurisdictional 1983 and its counterpart § sixty-six, en- eighteen hundred and April, e., 1343(3)] 28 U.S.C. § the Civil [i. protect persons all “An act to titled 1866, Rights Act of 14 Stat. 27. Adickes rights, their civil and to in United States Co., 144, 162-163, v. Kress & 398 U.S. 90 vindication”; the means of furnish 1598, 1611-1612, 142; 26 L.Ed.2d the other remedial laws the Unit- 167, Monroe v. Pape, 171, 183- appli- States which are in their nature ed 5 L.Ed.2d 492.7 cable in such cases. Section of the 1866 Act was model for Rights 1 of Civil § ofAct 17 Stat. 13. added.) (Emphasis n.9, 1343(3) See infra. Sections 1983 and as majority then reasons follows: direct descendants of 1 of § the Act of 1871. “proceedings” contemplated Since private Section 1871 Act are While the sentence in appears text on first deprivations civil actions for the enu- glance support majority’s position, (now familiar as merated § footnote 7 and the citations to Adickes and actions), to “like un- the reference cases” Monroe quickly disclose der the 1866 Act shows that the 1871 Court has 1343(3) traced 28 U.S.C. § Congress understood the 1866 Act as also quite 1866 Act in a different sense from giving private civil actions in the rise that which the majority suggests. What courts. obviously the Court Lynch meant was Maj. Op. at 1033. 3 of the 1866 Act conferred § original jurisdiction similar to that created seems to me the conclusion It drawn 1 of the Act but that § § majority wholly unwarranted. Act, the criminal provision, Congress which enacted 1871 Act model for 1 of the 1871 Act. While the § have known that civil must actions had majority quarrels my assertion that been removed from the state to the federal Act, of the 1866 Act § was the model for 1 of courts under the 1866 and it obviously § the 1871 (Maj. Op. at 1033-1034 & “rights appeal, intended that the review n.28A), regards error, assertion as in upon applicable and other remedies” credible, nevertheless applied precisely in those cases be as well in civil what Lynch actions initiated in federal courts under said footnote 7 of on the phrase pages the 1871 Act. Thus the “like cases” referenced in Adickes and undoubtedly Representative in 1 of the 1871 Act refers to Monroe.23 Shellabarger § civil cases removed to —not initiated in— first made this introducing observation in federal court under the 1866 Act. the 1871 supra. Act. See n.20 Federalism, provision language in the Law —Section nal that also contained person Harv.L.Rev. 1147-49 that forbade certain acts “un- law, statute, ordinance, regu- der color of lation, custom,” 23. Adickes stated: 14 Stat. 27. (footnote 398 U.S. at 90 S.Ct. at 1598 omit What is now 42 § 1983 came into ted). pages The relevant 1 of the Ku Klan Act Monroe are also existence Klux showing April relationship devoted to 17 Stat. 13. The Chairman of between the House Select Committee which drafted 1 of Act and 2 — not 3 — of legislation 183-85, 1§ described as modeled after Act. 365 U.S. at 81 S.Ct. 473. Rights 2 of the Civil Act of 1866 —a crimi- relies footnote 10 fication of a majority also statute substantially identi CIO, opinion Hague legislative cal Roberts’ form makes the history of Justice of its n.10, predecessors L.Ed. irrelevant is a novel one that understandably That footnote states not (1939). supported by any 1423 au 1911, thority. Code of The 24(14) expressed by of the Judicial notion the ma § 1343(3), jority we only of derived that should look 28 U.S.C. predecessor § 1948 all due Act to contrary virtually every 3 of the 1866 Act. With ease from in § volving century that that footnote the nineteenth respect, rights I do not believe civil weight. par It very Supreme was dicta acts which the carries much this Court opinion years. in an endorsed decided excellence in recent Three exam opinion in ples two Justice Stone’s will suffice. In Aldinger Howard, Justices. 1, 24(14) 17 n.12, 96 427 same case indicated that U.S. derived S.Ct. 49 § L.Ed.2d (1977), of the 1871 Act. 307 276 Lynch instead from 1 U.S. Household § Finance No 525, 527-31, subsequent Corp., 954. at 405 92 U.S. S.Ct. 31 (1972), case has traced 28 Supreme Court U.S.C. L.Ed.2d 424 the Court consulted the Act, 1343(3) legislative to 3 of the 1866 while history of the 1871 Act in § § con it to 1871 Act. struing 1343(3), several have traced 28 U.S.C. which as § majority observes was enacted in 1948. Bodensteiner, Finally, majority cites Georgia Rachel, And 86 Against Jurisdiction of Suits Federal Court 1783, 16 L.Ed.2d 925 the Court Deprivation of Constitu- “Non-Persons” the legislative history consulted of 1866 215, 229- Rights, Valparaiso L.Rev. tional 8 construing 1443(1) Act in 28 U.S.C. § However, (1974). Professor Bodenstein- 34 (2) though even provi the substance entirely based on ex- argument er’s positive sion had been enacted into law in Hague cerpts Lynch discussed three other occasions since above.24 sum, therefore, it to me that the seems weight is overwhelmingly of the evidence E. position. arrayed against majority’s

Although Court has never D. directly addressed the issue whether mu- nicipalities subject suit to under 42 astonishing argu- majority’s rather The opinions the Court’s U.S.C. Moor § history legislative ment that the Alameda, v. County supra, longer relevant because 28 Act is no U.S.C. Bruno, suggest Kenosha v. supra, 1343(3) positive into law enacted § would not countenance such suits. 1034-1035) (Maj. Op. requires little Moor, case, majority point does like comment. The not the instant was a civil any language rights against municipal in the 1948 enactment which corpora- suggests authorized suits allegedly unconstitutional acts by brought municipality for tort its law enforcement officials. In the Su- Hence, Court, history damages. legislative preme plaintiffs’ principal argu- is, Act as I have discussed and as ment was permitted U.S.C. § found, highly relevant. them sue the county directly other cases under 42 concept provides that the reenactment or reeodi- 1983. 42 U.S.C. § key portion Lynch Corp., Bodensteiner’s article v. Household Finance [, states: U.S. 543-44 n.7 Hague L.Ed.2d See also origin 424] v. Com 1343(3) is now also has its What Organization, mittee for Rights Industrial Civil 3 of the the 1866 Act.106 Section [, gave 508 n.10 83 L.Ed. Act the district and circuit courts 1423] brought over civil actions en (Some Bodensteiner, omitted). provisions language footnotes 1. Similar su- force pra, appeared Rights of the Civil at 232 & n.106. then of 1871. rights municipal the federal civil acts do der corporations when liable to feder- al civil claims under a federal “furnish suitable remedies” not the law state in may apply court S.Ct. at 1794. same is it sits “so far as the literally, Taken the Court’s words seem to dispose with the Constitution and laws the case at subject inconsistent hand. “[T]o County federal court suit on a feder- ar- the United States.” claim,” wrote, al civil the Court law did “furnish suit- gued to be “would seem less than consistent permit because it did not remedies” able prior holding Pape Court’s Monroe v. against municipal corporations. They suits . .” Justice Marshall also observed contended that the District Court therefore that: the Northern District California for intend, Congress did not as a matter applied law should California law, impose federal liability vicarious liability municipalities. for vicarious municipalities for violations of federal rights by employees. civil Supreme rejected theory Court this in (Emphasis original omitted). Id. 710 at held, first, two reasons. The Court that n.27, addition, 93 at 1796. S.Ct. In it should indepen- an 42 U.S.C. 1988 did not create § be noted that Justice Marshall must have cause of action and that therefore that dent possibility had the of an against action a plaintiffs did not authorize the municipality under 42 1981 mind U.S.C. § Second, county. Court sue noted when he opinion wrote Court’s Moor. 42 permits that U.S.C. 1988 federal courts § plaintiffs’ complaint in that case as- 1981, serted claims under 42 look to state law when that law but “is U.S.C. § chose not to press those claims inconsistent with the Constitution Supreme in the Court.25 411 at 696 U.S. States,” of the United it observed: laws n.4, 93 1785.26 we were law to look to California [I]f The implication in Moor against that suits upon imposing liability vicarious munici- municipalities cannot be maintained under do, petitioners would have us palities, 42 1981 was § U.S.C. echoed in subject be to effectively the result would Kenosha v. Bruno. Both Justice Rehn- County to federal court suit on a quist’s opinion for the (412 Court at U.S. civil a claim. result Such 513, 2222) 93 S.Ct. and Justice Brennan’s seem to be less than consistent would opinion (id. 516, dissenting 2222) at 93 S.Ct. holding in Monroe prior Court’s state that 28 U.S.C. provide 1343 cannot § 187-191, U.S., Pape, v. at 81 S.Ct. jurisdiction for an against action a munici- 473, Congress pality27 1343(3) to ren- did not intend Since U.S.C. in- § was interesting complaint It 25. is reasoning to note that the der 42 1982. § U.S.C. Similar would Pape, supra, employed Monroe v. also asserted claims provide have to be for 42 remedies against municipalities under 42 U.S.C. 1981. § McCrary Runyon, U.S.C. 1981. See § v. However, case, Moor, plaintiff in that as in 1082, (4th 1975) aff’d, (en banc), F.2d Cir. press appeal. not to chose those claims on 427 U.S. 49 L.Ed.2d 415 n.1, 81 S.Ct. 473. (1976); Sethy County v. Alameda Dis- Water trict, (9th 1976). 545 F.2d Cir. How- plaintiffs’ Moor 26. militates and the ever, held that 42 Moor § U.S.C. 1988 cannot majority’s interpretation 1981 in § of 42 U.S.C. supply damage remedy against municipal a a way. additional like 42 an U.S.C. § corporation. Thus if 42 U.S.C. 1981 does § specify U.S.C. 1982 and §§ does provide against municipali- a cause action a types of relief which a court can award. In ty, it is a cause action which is not aided Weir, (3d Basista 340 F.2d 85-88 Cir. (42 1988) normally § statute U.S.C. 1965), necessary this Court found it to look to supplies remedies for violations nine- 42 U.S.C. 1988 in order to determine the § century teenth civil acts. types damages which could be awarded un- der U.S.C. 1983. In Sullivan v. Little § Nevertheless, Park, 229, 239-40, Sethy Hunting County 27. Alameda District, Supreme (9th Water 545 F.2d Cir. concluding 1976), precedent § relied U.S.C. 1988 in most authoritative for the compensatory damages position, majority’s apparently could be awarded un- countenanced a bring any holding quite clear. establish a basis for Bruno right “to tended the federal Rights Civil action in 1343(3) authorized 1983 and 28 42 U.S.C. courts',”28 implication clear that ac- from 1 of the 1871 Act. Mon- both derive municipalities under 42 U.S.C. tions supra, Pape, roe v. found not authorized. 1981 are municipalities to exclude lia- intended Therefore, bility under the Court that 28 majority argues rejoinder were also municipalities has concluded 1343(3) can furnish U.S.C. § jur- grant reference “by excluded provided against municipality an action Aldinger v. 1343(3).” not under under § the claims isdiction asserted Howard, This Maj. Op. 1035-1036. U.S.C. § Kenosha is untenable. In

argument 49 L.Ed.2d Bruno, Court, holding supra, without short, although the Court has stated, action did hold a cause of case, posed the issue in this not decided 1331 provides that 28 U.S.C. § that it would not given every indication Amendment -type Bivens Fourteenth for a municipality un- permit an that 28 against municipality, but claim der 42 U.S.C. § This, course, does not. U.S.C. § majority’s City of the assertion that

refutes Bruno, nothing more v. did F. Kenosha supra, complaint hold “that a section 1983 than to argued that it can that I realize municipality fall within a does not against I developments which have summarized 1343(3) jurisdiction.” scope of section 1343(3) that § above show U.S.C. at 1036. Maj. Op. provide for an action cannot majority attempts explain the ba- to municipality a under U.S.C. against v. holding in Kenosha City for the sis (enacted in that 28 U.S.C. 1331 1981 but § § Bruno, by supra, stating that 1343(4) (enacted in 1875) 28 U.S.C. § a claim a fourteenth amendment such suits. 1957) furnish can municipality is not a “civil action autho- me, it to is to position, seems To take law,” having Supreme Court rized Congress. the intent of frustrate such a expressly declined hold that to Congress converted 1 of the When § will lie. amendment action fourteenth pri- a furnished provision Act into a which Ingraham Wright, 430 U.S. e.g., See cognizable in the feder- of action vate cause 1401, 711 n. 3 51 L.Ed.2d courts, it made a decision al considered Healthy Dist. Bd. Mt. School municipalities such suits. exempt 275-278, 274, Doyle, Ed. v. U.S. not decision in Congress did reconsider that 568, (1977); Aldinger L.Ed.2d 1875, it of 28 predecessor enacted the when Howard, 3, 4 n. it enacted 28 when U.S.C. § L.Ed.2d An action 1343(4). § U.S.C. under on the other brought hand, a perforce “civil action authoriz- of 28 1331 was predecessor U.S.C. § law,” holding which in Bruno ed in 1875 without substantive enacted completely inapposite. Levin, Original & Jur- Chadbourn debate. Questions, Federal 90 U.Pa.L. isdiction of I do n. While at 1036 32A. Maj. Op. nothing 639-45 There is major- Rev. the distinction which understand make, Congress suggest it me that the reconsidered ity seeks seems to (4th Craig, employment-discharge 505 F.2d n.11 a 28. Blue 835-37 § Cover, added), quoting 1974) (emphasis county “nonperson” jurisdiction based on Cir. opinion upon Establishing Federal in Actions relied Jurisdiction § 28 U.S.C. That Statutory (Federal) Rights employment predi- Brought to Vindicate cases Rights holding a No Violations of its on Amendment When Constitutional cated analysis Thirteenth L.Rev., Clearinghouse Alleged, Feb.-March with a but minimum of discussion. Are 1969 at 5-6. scope proper private cause of action claims because I damage do believe that by 42 1981 at time. furnished U.S.C. § arising directly claims from the Fourteenth did tiffs’ they govern officers der could be sued under 42 U.S.C. 1981 first and that such § municipality. scope Court erwise. rence) ual pocket” still tensibly the Civil fying individual sion, Congress ceived News 1975-76. See mained without I would Nor In juries provision not § years since officers; H.R.Rep.No. binds question U.S.C. sum, of 42 claims in a decided in Monroe were do govern defendant; involved The same to award last time in 1871. It Rights suits ^[1957] policy affirm us as I see § U.S.C. also the here in an action today. could be maintained did not reevaluate the the 1343(4), Just as these considerations could the of whether officers; wide-ranging present considerations dictate oth- change extent In the in this case damages context, decision immunity policy it, Congress considering not be maintained. dismissal of the Code that decision has re- 85th which was added the difficulty when the applicable; considerations Cong. Cong., no more should City against accordingly it Pape municipalities unwillingness (/.e. was not enacted the decided significance. brought considered individual under 42 & Admin. against no Supreme 1st Sess. that individ- proper identi- deter- provi- plain- “deep then per- un- os- no a guaranteed by denied them the rationale is that respondeat superior. Finally, that City. They alleged that asserted Fourteenth Amendment violations under three the race. They alleged directly under the Fourteenth Amendment. plaintiffs’ complaint and Amendment can ever be declined its substantial all the results on remand. claims under 42 municipality. cers rior. lice officers had abused them because of of these and it creates a real Eighth Amendments. laws City was U.S.C. Op. at In their complaint, the plaintiffs asserted holding negligently discipline due process clause, City. First, the the City recklessly and very Second, The plaintiffs claims raised claims, they pendent City liable for 1981 furnishes an certain the doctrine different sets address this issue. instead federal statutory remedy” for based the plaintiffs asserted claims that the was liable for the officers’ the defendant officers and In failed to state my view, equal First, the majority, alleged maintained that possibility the plaintiffs. Maj. police actions claims the Fourth, Sixth, asserted They maintained protection of the incorporated into of claims 1981. In respondeat and negligently train, including those legal precedent, theory City “effective and misreading however, the officers had It has based against majority’s supervise, recklessly aga'inst plaintiffs asserted support unjust supe- offi- and the po- continued to employ those officers even II. though it “knew . should have known that . posed . . a [the officers] the Directly Claims Under Fourteenth great danger threat and to people, par- Amendment ticularly Black people . . Appen- A. dix agree majority

I with the that the dis- plaintiffs The facts which the would have plaintiffs’ missal of prove Fourteenth Amend- on recover each of these sets of City ment claims be should af- claims are by no means identical. Plain- firmed, but I disagree the basis claims, tiffs’ example, would for the majority has reached that conclu- require proof that defendant officers would sion. I affirm dismissal of those acted with racial animus. McDonald v. Co., let nally, suppose us facts show Transportation Fe Santa U.S. 285-86, L.Ed.2d 493 negligent reckless or City Inc., Express v. Railway Agency, Johnson facts, these I take it way. Under L.Ed.2d plaintiffs could recover under Plaintiffs’ Fourteenth Amend- 42 U.S.C. since officers’ conduct pendent claims and their state claims ment a prejudice, would not due to racial sine be Similarly, plaintiffs’ not. pendent would non a 1981 cause of action. Nor qua require reck- proof state claims would pendent recover on their plaintiffs could part negligence lessness or on the claims, since the had not been state City; plaintiffs’ other claims would not. suppose, I would negligent. reckless or The district court dismissed all of the however, plaintiffs could recover plaintiffs' majority claims. The has re- Amendment claims —if on their Fourteenth portion versed that of the district court’s Court had not affirmed the dismissal of this plaintiffs’ order which dismissed the Court has affirmed those claims. Since this City, it has claims remand- claims, however, of those no the dismissal ed those claims district court recovery possible. would be This result the dismissal of trial. It also reversed and unfair. clearly be unwarranted would claims, it state plaintiffs’ pendent proved would have facts es- plaintiffs the district court on remand has instructed had tablishing agents vio- decision to dismiss those to reconsider its the Fourteenth lated their affirming plain- claims. In dismissal Amendment; I though even do not believe claims the tiffs’ Fourteenth Amendment Amendment claims that direct Fourteenth unnecessary to decide majority has found against municipality, can asserted plaintiffs’ Amend- whether Fourteenth that issue Court would not have determined against municipality could ment claims merits; on nevertheless a motion under Fed.R.Civ.P. survive recovering would barred from 12(b)(6) no claims were asserted. A if other claims. Fourteenth Amendment illustrate the un- hypothetical example will advanced None of the reasons just majority’s which the rationale results justify disposi may produce majority begin on remand. even well can capable a result. producing suppose that the facts which come Let us first, that we need not majority argues, prove this case out at trial I have hypothetical example consider the officers searched arrested defendant complaint plaintiffs’ the posed because flagrant violation of plaintiffs the alleges violations “motivated constitutional standards, they Fourth Amendment 1024), not Op. at (Maj. racial by prejudice” faith,29 they no in bad but that made acted the defendant not “independent by conduct plaintiffs’ to race reference whatsoever racially argument Id. This is animated.” and, despite allegations some of the in the pleading war rules estab at liberal were not ra- plaintiffs’ complaint, fact by Rules of Proce lished the Federal Civil suppose us cially motivated. Let also plaintiffs’ portion An dure. illustrative regularly disclose that the officers facts persons regardless complaint of race. Fi- out a footnote below.30 I brutalized is set Rhodes, detained, searched, Compare stopped, 29. B. Scheuer Defendants seized, arrested, imprisoned confined and 247 — without a warrant and without Plaintiffs complaint plaintiffs’ alleges in One of Count probable cause in violation of Plaintiffs’ part: rights be free unreasonable searches to Defendants, by their Plaintiffs claim process law due se- seizures of State law and motivat- actions under color by Amend- cured and Fourteenth Fourth aforesaid, by prejudice vio- racial ed United ments Constitution of rights, privi- deprived Plaintiffs lated leges 1983; States and U.S.C. § by the Consti- and immunities secured beat, brutalized, abused, C. Defendants searched, States in and laws of tution seized, arrested, and im- confined following particulars: judge also, . doubt whether district court See Hagans Lavine, allegations would rule that these were in 528, 543, permit plaintiffs to recover sufficient L.Ed.2d 577 (Emphasis added.) or viola for First Fourteenth Amendment Maj. 1025 n. Op. at racially tions which were not motivated. clear, It however, seems the doctrine Moreover, point at no in their and at brief majority invoked inapplicable is plaintiffs did the no time before this Court this case. Ashwander and Hagans apply their Fourteenth ever restrict limit plaintiff when a single claims that a set of argument to constitutional vio Amendment facts entitles him to recover on two or more racially which were motivated. lations separate theories, legal one of which does constitutional violations not motivat Since require not the resolution of a substantial prejudice are fairly ed racial raised question. case, constitutional In this each plaintiffs’ pleadings, we must consider legal of the three alleged theories appeal.31 those violations in this advanced plaintiffs requires proof of a different set majority observes next: Therefore, of facts. none of the three theo- prove racially motivated If plaintiffs “dispositive,” ries is and accordingly Ash- which rights they of their deprivations Hagans wander and inapplicable. 1981 will afford them the allege, Moreover, it is inconsistent to character- they seek. in federal court redress plaintiffs’ ize 1981 claims as “statutory” Maj. atOp. statement, 1024. This while (and nonconstitutional) thus and at true, obviously begs question. If the plaintiffs’ same to characterize time Bivens- prove they deprived were claims as type ques- “constitutional.” prove but fail that dep- tion of whether or an implied cause of motivated, racially rivation was will action under the Fourteenth Amendment them not afford redress. Their Fourteenth not, recognized should be in the first claim, by us, Amendment if sustained instance, a question. “constitutional” As in would. Bivens, question is not whether requires the Constitution federal courts majority argues: also recognize such a cause of action but wheth- support course also finds Our er appropriate it is them to do so. Bi- principle that a claim established when vens v. Unknown Federal Six Narcotics statutory asserted on both and constitu Agents, supra, bases, U.S. at question tional the constitutional quite plaintiffs’ It is true that statutory should be reached if the Bivens -type dispositive. recognized claims cannot be claim is See Ashwander v. without TVA, deciding least one ques- constitutional j. J., tion, (1936) (Brandeis, e., L.Ed. concurring) power whether the to enforce the prisoned 26) allegations Plaintiffs because Plaintiffs exer- reveals the factual which are speech incorporated my example (see e.g. cised their to freedom of se- n. 29 addition, supra). hypothetical Amend- cured First Fourteenth I have posed given majority (Maj. ments the Constitution —unlike Op. 8) . legal States and 42 1983 . at n. 1025 not raise theories —does plaintiffs which the not did raise themselves. majority 31. that I would have the The claims My hypothetical simply recognizes example Court “review the district court’s dismissal of possibility plaintiffs may be unable to only plaintiffs’ complaint not on those facts prove every they fact which have indeed as- plaintiffs alleged which the but also those appeal serted. This case is before us on they Maj. Op. facts which did not.” at 1025 n. granting City’s an order of district court majority my position. 8. I The misstates do 12(b)(6). motion to dismiss under Fed.R.Civ.P. suggest that we should consider whether stage proceedings, At this we must de- plaintiffs’ complaint can be sustained on any termine whether combination those they allege. hypotheti- facts which did not The plaintiffs pleaded facts which the have would posed I cal which does not contain legal entitle them to recover under allege. facts which the did not Even they theories which have raised. cursory reading complaint (App. 16-

1055 plaintiffs’ (i. granted exclu- “constitutional” e. Amendment Fourteenth Amend- Congress by 5 of that sively to claims should be dismissed Bivens-type) power is shared or whether ment this case be remanded to should token, plain- But the same courts. pendent the district court for trial on the under 42 1981 cannot claims U.S.C. § tiffs’ view, the my majority state claims. has deciding without at least one recognized First, Hagans. Hagans erroneously applied question upon which the Su- constitutional progeny hold that under certain and its expressly reserved decision Court preme circumstances constitutional claims should has Moor: “whether Monroe not be reached. Those cases do not hold municipalities make liable power to the constitutional claims must be dis that violate the civil its officers acts of missed, they provide any nor do basis for 191, at 81 individuals.” U.S. rights of Lavine, Hagans v. dismissing such claims. 486; 709, 93 at 411 U.S. at S.Ct. S.Ct. 543, 1372; supra, 415 U.S. at S.Ct. She a claims plaintiffs’ Because 1785.32 251, 258, Vialpando, v. 416 U.S. S.Ct. 94. claims both involve -type their Bivens 1746, (1974); 40 L.Ed.2d Wood v. Hagans does not questions, constitutional 308, 314, Strickland, 992, 420 U.S. S.Ct. to determine majority’s failure justify the -type claim can be assert- 43 L.Ed.2d 214 Massachusetts v. a Bivens whether municipality. Westcott, 323, 1755, ed 97 S.Ct. U.S. Second, as I have al L.Ed.2d 349 writes: majority also noted, ready Hagans inapplicable to this on which we affirm alternative basis An plaintiffs’ pendent case because state claims by the district court of the dismissal proof necessitate of facts which differ dra provided amendment claim is fourteenth pendent in this case of presence matically required by from those their Bi claims. result, state law -type vens claims. As a it is obvious plaintiffs’ state claims are pendent argues majority Op. at Maj. “dispositive.”33 543, Lavine, 415 U.S. supra, at v. that, Hagans argument dispositive, majority properly contends that the District Court did not every statutory con- transform issue of would reach the constitutional issue . . . Ha- question, be- into a “constitutional” gans .”) struction (emphasis added); v. . Lavine . . required sponte sua the court would be cause Strickland, 308, 314, v.Wood 420 U.S. 95 S.Ct. question to resolve the to raise and both 992, 997, (1975) (White, J., 43 L.Ed.2d 214 construction of the statute whether the Court) (“the immunity question involves may adopted is constitutional. This it has statute, the construction of a federal and our prophetic prove and real fear some to be practice possibly dispositive is to deal with However, present context where cases. statutory questions reaching issues before turn- presented question is not the constitutional ing on a construction of the Constitution. Cf. contributed to the defeat of the one which .”) Hagans (emphasis v. Lavine . . add- (Monroe Pape, Amendment su- Sherman ed); Westcott, Massachusetts v. 473) pra, at 81 S.Ct. but was also 52 L.Ed.2d 349 See also Supreme expressly Court in reserved Beal, (3d 1977) White v. Cir. F.2d Moor, majority’s argu- I think the Monroe and (involving pendent statutory claim). and irrelevant. ment is flawed Contra, Thomas, Frederick L. v. 557 F.2d (3d 1977) (dictum). also be noted that to date the It should n. 33 Cir. carefully limited the hold- why At least some the reasons the Su pendent Hagans involving ing feder- to cases preme from ex Court has thus far refrained Lavine, supra, Hagans v. See al claims. tending Hagans pendent state claims seem J., (Powell, dissent- 94 S.Ct. 1372 U.S. ing); First, readily fully apparent. Hagans were if Mayor Philadelphia Educational claims, applicable pendent it would state Equality League, U.S. frequently come into direct conflict with the J., (White, (1974) L.Ed.2d 630 Gibbs, admonition in United Mine Workers (“if pendent dissenting) claim were a feder- one, statutory issue should the constitutional al not entertain that federal courts should statutory claim was dis- reached if the not be positive”) pendent relevant state claims when the state added); Vialpan- (emphasis Shea v. v. law is unclear or unsettled. See Moor Coun 1746, 1752, 251, 258, do, 40 94 S.Ct. 416 U.S. 716, Alameda, ty supra, 411 U.S. at 93 S.Ct. J., Court) (1974) (Powell, for the L.Ed.2d 120 (“Finding Indeed, may that exist in conflict the statutory pendent claim the federal 1056 ture are claims majority apparently recognizes “arising under” The federal law

this, “plaintiffs’ they counsel and that have a observes modicum of substance. but expressly Lavine, instant case invited v. Hagans supra, See 415 U.S. at decide case argument 536-37, at oral 94 respect Court S.Ct. 1372. With pendent state on the solely question basis at real issue here —whether reaching fourteenth without plaintiffs’ claims Fourteenth damage Amendment Maj. Op. at 1026. amendment claims." against upon claims claims However, added.) plaintiffs’ (Emphasis be granted Supreme which relief can —the the Court to affirm never invited counsel expressly Court has reserved decision on at those Unless the claims. the dismissal during least four occasions the past year. formally appeal withdraw 651, 3, Ingraham Wright, v. 430 654 U.S. n. Bivens-type of their the dismissal 1401, (1977); 97 S.Ct. 51 711 Mt. L.Ed.2d claims, no choice but to address we have Healthy City School District Board of Edu- Hildebrant, issue. Jones 432 Cf. v. 274, 275-278, Doyle, cation v. 429 97 U.S. 183, 189, 2283, 53 U.S. L.Ed.2d 568, (1977); Aldinger L.Ed.2d S.Ct. J., (White, dissenting). (1977) 3, Howard, 1, 2413, v. 4 n. U.S. S.Ct. therefore, 49 L.Ed.2d 276 of Charlotte to consider v. proceed, I will 283, Firefighters court was Local the district n. question of whether dismissing plaintiffs’ -type Bivens S.Ct. 48 L.Ed.2d 636 correct City. claims is Supreme It true that both the Court other long federal courts have assumed B. equitable directly relief based on the municipality whether is considering In granted Fourteenth Amendment can be aris- damages claims subject suit for municipalities nonper- and other ing directly from the Fourteenth Amend- See, g., sons. e. Griffin v. County School ment, it to note at the outset important is Board, 218, 232-34, 377 U.S. Supreme Court nor this that neither the However, these that question. has decided Court holdings appear to be of little significance present purposes. questions No one Supreme Court has determined ability of federal courts enforce the has under 28 a district court through injunctive Fourteenth Amendment to entertain Fourteenth against municipal relief directed against municipalities. claims officials in Amendment Bruno, supra, capacity, Supreme 412 U.S. their official and the City of Kenosha 513-14, 516, recently recognized at S.Ct. 2222. But Court that relief of holding type injunctive means that claims of that na- is tantamount relief case, Pennsylvania only recently

present onciling majority’s interpretation since Gibbs immunity, Ayala governmental Hagans. abolished Bd. Educ., (1973), majority’s interpretation may 453 Pa. 305 A.2d 877 Hagans of Pub. Pennsylvania plain- produce law and the relevant also unfortunate results in another re- hardly spect. particular claim, state law tiffs’ claims well-settled. It A federal such as noteworthy Moor, claims, plaintiffs’ -type may court ques- district Bivens plaintiffs’ validity “wholly state tort dismissed claims tionable tial,” but not so insubstan- County Patterson, Bailey because those claims would required (1962), “obviously court have “to resolve difficult L.Ed.2d 512 frivolous,” Distilling Baltimore, questions of law which state California Hannis Co. v. legion.” Ma- court decisions are Rundle v. 54 L.Ed. (N.D.Cal.1971). deprive digan, F.Supp. juris- 495 n. as to the federal courts always joined affirmed that decision. diction. If such a claim were 715-17, g., state 411 U.S. at 93 S.Ct. 1785. In related law claim —e. state case, majority required present has not tort claim —the federal claim could be used plaintiffs’ pendent again again purpose creating court to entertain the sole district leaving jurisdiction. court dis- state claims thus free to otherwise non-existent Op. majority’s interpretation Hagans, (Maj. those claims under Gibbs. Under the miss this, validity might 1026, 1037). of the federal claim itself cases such as district will a difficult time rec- be reached. courts indeed in never City ing court, the case to the municipality itself. district we sug- against 660, supra, Firefighters gested Local the court had v. Charlotte Thus, plaintiffs’ n. 2036.34 entertain the claims against at 284 against a injunctive college relief under 28 award of U.S.C. but not enforcing 1343(3). purpose 501 F.2d at municipality words, wholly unre- In other we did precisely Amendment is what Fourteenth Supreme City Court did in of Kenosha v. markable.35 Bruno, supra. argued strenu- in this case recognized McCullough Redevelopment In v. already has Author- ously that this Court (3d 1975), ity, mu- 522 F.2d 858 Cir. damage against plain- claims validity of statutory the Four- tiffs advanced a host of directly upon and con- nicipalities based believe, however, against I stitutional claims Amendment. numerous individ- teenth than defendants several gone municipal corpo- has no further ual this Court v. Board of rations. While it is true that Supreme Court. Skehan we enter- Trustees, (3d 1974), plaintiffs’ vacated F.2d 31 Cir. tained Fourteenth Amend- grounds, ment claims the municipal corpora- on other U.S. and remanded tions,. First, two facts must be noted. (3d 1976), plaintiffs sought we va- remand, only declaratory Cir. 538 F.2d and in- junctive entered relief. which had been Since officials of the judgment mu- cated nicipalities were defendants, and the board also named as defendants against individual college. In remand- it was immaterial whether of a state or not the trustees relief City by Supreme by Firefighters Local 660 v. Court See also writ of certiorari. 1975); Charlotte, (4th courts, n. 3 Cir. hand, 518 F.2d The federal district on the other Project City Housing Farmworkers deprivation cannot redress the of a constitu- Beach, (5th 1974). Delray 493 F.2d Cir. right tional unless a federal cause of action exists. Unless one assumes that there is a Supreme suggested also been It has every federal cause of action for violation, constitutional municipalities recognized that Court subject Supreme holdings Court’s law cause takings suit on a federal common by provide cases reviewed writ of certiorari no damages resulting from of action for private guidance respect question at issue property violate the Fourteenth which Supreme in this case. And the Court has not See, Note, Damage g., Reme- e. Amendment. assumed one-to-one correlation between con- Against Municipalities for Constitutional dies stitutional and federal causes action. Violations, 922, 950 n. 145 89 Harv.L.Rev. See Bivens v. Six Unknown Federal Narcotics disagree. I Agents, supra. Supreme has decided in numerous Court It is true that some lower federal courts have takings particular violated the state cases permitted plaintiffs who claimed that See, g., Griggs e. Fourteenth Amendment. Allegheny property unconstitutionally had been County, taken (1962); Chicago the state to maintain suits in B. & R.R. v. federal court with L.Ed.2d 585 Q. City Chicago, predicated 28 U.S.C. § 1331. See, g., County Angeles, those cases reached the L.Ed. 979 But e. Miller v. of Los Supreme (9th of certiorari or error to 1965); writ Court F.2d 964 Detroit, Cir. Foster v. circumstances, Under those (6th state courts. Supreme 1968). 405 F.2d 138 Cir. How- had no occasion to consider ever, Court acknowledged almost none of these cases cause of action there exists a federal whether problems implication created aof damages Amendment for the Fourteenth under resulting damages federal cause of action for takings. Nor from unconstitutional municipality. could be asserted would that the can one assume Judge Renfrew’s decision in Dahl simply recognize cause of action such a federal Alto, F.Supp. (N.D.Cal.1974), Palo has held that various state because the Court exception, the rare and the case facts of that interpreted incorrectly court decisions up questionable validity point of this entire guarantee Fourteenth Amendment’s takings really line of cases. Are the federal courts just compensation. Su- without every open property case in which a owner preme review a state court decision Court can zoning claims that a local ordinance constitutes “right whenever a . . of certiorari writ taking an unconstitutional when that —even the Constitution claimed under property bypasses owner available state ad- the United States.” 28 judicial ministrative and forums? words, every right 1257(3). In other U.S.C. guaranteed can be enforced the Constitution 1058 the munici- against permit the district court to plaintiff was awarded “to

requested Second, municipal jurisdictional de- allegations amend in as well. those palities parts plaintiffs’ complaint of his argued that refer never fendants Borough allege jurisdiction of Charleroi” to claims could not Amendment Fourteenth Supreme under 28 U.S.C. 1331. 532 As the F.2d at 922. them. asserted Skehan, Again, inas we did no more noted, question “the as to than recently Court Supreme City Court did in a claim for Kenosha stated [plaintiff] whether v. Bruno. under 1331 nonperson] [against relief sort which the jurisdictional

not of Other circuits have reached the question motion.” Mt. on its own raises damage of whether claims munici- of Edu- District Board Healthy City School palities directly can be asserted under the 279, 97 429 U.S. at Doyle, supra, cation v. Fourteenth Amendment.37 Unfortunately, addition, has In as this Court S.Ct. at 572. very analysis none has devoted much to this observed, brought ‘neither “Questions question. ruled upon, the court nor attention of having been so are not to be considered C. ”36 precedents.’ as to constitute decided inap- I have concluded that it would be Charleroi, Borough In 532 Rotolo v. recognize for us to propriate claims for (3d 1976), F.2d 920 the district court Cir. damages directly asserted under the Four- 1983 complaint dismissed a which asserted Although opinion teenth Amendment. municipality and appears claims several presume of the Court in Bivens complaint individual The al- appropriate defendants. it is federal courts to leged jurisdiction recognize damage under 28 U.S.C. claims asserted directly instructing provisions We vacated and remanded while guar- Constitution 303, Soyka (3d Alldredge, Davis, Crosley v. 481 F.2d 306 listed those articles are: v. Fall, 1973), quoting Cir. 507, 511, Webster v. 266 U.S. F.Supp. (E.D.Pa.1977); Raffety 426 389 v. 148, (1925). 69 L.Ed. 411 George’s County, F.Supp. Prince (D.Md.1976); Livingood 423 1045 Townsend, v. 422 Circuit, banc, sitting 37. The Fifth en has refus F.Supp. (D.Minn.1976); 24 Pitrone v. Merca- recognize Ingraham ed to such claims. v. dante, F.Supp. (E.D.Pa.1976). 420 1384 909, Wright, (5th 1975) (en 525 F.2d 912 Cir. commentary question The on this is exten banc), aff’d, 651, 1401, See, Comment, g., Implying Damage sive. e. (1977) (Supreme L.Ed.2d Court did not Remedy Against Municipalities Directly Under question). reach The Sixth and Seventh Cir Congressional the Fourteenth Amendment: Ac claims, permitted they ap cuits have but tion as an Obstacle Extension of the Bivens pear proceeded upon to have the erroneous Doctrine, (1976); Note, 36 Md.L.Rev. 123 Rem assumption question purely that the one of “Special See, edies for Counselling Constitutional Torts: Factors jurisdiction. g., e. Amen v. of Dear Hesitation,” born, 554, 1976); (6th 9 Ind.L.Rev. 441 Host 532 F.2d Cir. (1976); Note, 515, Damage Against College rup Remedies Mu Junior Dist. No. Board of Conlisk, (7th 1975); nicipalities Violations, F.2d 577 1, Cir. Calvin v. for Constitutional (7th 1975); Bosely City Hundt, (1976); 520 F.2d Euclid, Cir. Suing Harv.L.Rev. Munici (6th 1974). 496 F.2d Cir. The palities Directly Under the Fourteenth Amend Second, Ninth, and District of Columbia Cir ment, Note, (1975); 70 Nw.U.L.Rev. 770 Mu question. cuits have decision on this reserved nicipal Liability Damages for Violations of See, York, g., e. Fine v. of New 529 F.2d Rights Fashioning Constitutional a Cause of — (2d 1975); 76 n.13 Brault v. Town Cir. Directly Action from the Constitution — Brault Milton, (2d 1975) (en 527 F.2d Cir. Milton, (1975). v. Town of 7 Conn.L.Rev. 552 banc); Howard, Aldinger v. F.2d Court, Monaghan, See also (9th 1975); Wilson, Apton 1257 n.1 Cir. Law, Term — Forward: Constitutional Common U.S.App.D.C. 506 F.2d (1975); Dellinger, Rights 89 Harv.L.Rev. 1 Of Circuit, Circuit, appar The Fourth like this Sword, and Remedies: The Constitution As a ently decided ex Hill, (1972); 85 Harv.L.Rev. 1532 Constitution Stanton, (4th ists. Cox v. 529 F.2d 50-51 Remedies, al Katz, 69 Colum.L.Rev. 1110 1975). Cir. Jurisprudence of Remedies: Consti opinions question The district court on this Legality tutional and the Law of Torts Bell v. Compila- are far too numerous to list here. Hood, 117 U.Pa.L.Rev. 1 tions those cases are included the articles very Among the listed below. recent cases not anteeing rights, individual the Court was (Emphasis original.) else, If nothing sec- to note that in that case there were tion 5 strongly careful counsels against judicial al- hesitation.” “special counselling factors no teration scheme of enforcement de- particu- veloped by Congress. lar, noted that the Court factor second “counselling hesita- explicit congressional have here no we tion” in case is the enactment Con- statute, persons injured a fed- declaration gress of a which creates a federal violation the Fourth

eral officer’s cause of for damages action for violations money may Amendment recover statute, the Amendment. That must in- damages agents, from the but course, and, 42 U.S.C. § as the remedy, be remitted to another stead Supreme Court held in Pape, Monroe v. Congress. effective in the view of equally supra, Congress chose municipali- to make ties exempt from suit under that provision. also at 2005. Bivens Id. at See For the federal courts to create a Agents, cause Unknown Federal Narcotics v. Six directly action under 398-411, (Harlan, J., Fourteenth supra, at 91 S.Ct. 1999 for the purpose Amendment sole of overrul- concurring). ing Congress’s decision to exempt munici- “spe four this case there are at least In palities suit from is hardly the deference to counselling factors hesitation” cial congressional choice which section 5 of the me that the cause of action assert persuade Fourteenth Amendment demands. I recog- rejected. must be ed nize that those who favor a judge-made First, it seems clear that the framers of the cause of the Fourteenth to confer Amendment intended Fourteenth argue Amendment that Monroe Pape Congress pri the courts —the —not concluding erred in that the Congress which responsibility developing appropri for mary predecessor enacted the of 42 U.S.C. 1983 ate measures to enforce the Amendment. exempt intended to municipalities. How- five of the Fourteenth Amendment Section ever, above, as I have noted I accept cannot power “Congress shall have provides argument. enforce, by appropriate legislation, pro of this article.” None of first “counselling visions third factor hesitation” provi Congress Amendments contains a similar is the failure of eight bring munici- Compare palities Bivens v. Unknown the scope Six within of 42 sion. U.S.C. 1983 (implied sixteen Agents, supra during years Narcotics since Federal Monroe v. Amendment); Pape Although cause action under Fourth was decided. the campaign (3d Prade, v. La 524 F.2d Cir. to end the exclusion of municipalities Paton (First Amendment); States ex of 42 1975) scope been Koelzer, (3d Cir. vigorous, rel. Moore 457 F.2d sustained and “Congress, which (Fifth 1972) Amendment). rule, easily change yet could has not seen fit to intervene.” Canada Packers parte Ex 345- Virginia, In Atchison, Topeka Co., & Santa Fe Railway L.Ed. 676 182, 184, 359, 360, U.S. of section 5: said L.Ed.2d 281 judicial power is not said the It soon Pape Almost as as Monroe v. was government to en- general shall extend decided, Congress impose urged forcing prohibitions protecting and to liability upon municipalities. its guaranteed. and immunities annual report United States govern- is not said that branch of It on Rights Commission Civil recommended: shall declare void ment be authorized to Congress That advisability action of a State violation consider the Congress amending power It is the section 1983 of title 42 prohibitions. Congress is enlarged. which has been United States Code to make any prohibitions county government, city government, to enforce the authorized or legislation. governmental other appropriate entity local that em- persons of deprive officers who statutes. When the ploys Supreme Court deter- section, jointly mined protected attorney’s fees could not be to victims of such liable with the officers awarded in such actions in the absence of a special authorizing officers’ misconduct. statute proof of bad sion ommendation (1961). The Commission reiterated U.S. Comm’n ment and Administration of forcement and that “civil also studied Force cy.” President’s Comm’n on Law Enforce- Equal Protection in the Law Rights, 1963 at The President’s Commission on Law stimulating Comm’n on Civil Report on Civil Report: litigation this Enforcement —A proper on Civil The Police 32 Administration of Justice problem, subsequent years. is an awkward method U.S. Comm’n law enforcement Rights, 1961 Commis- Rights Rights, Report South but it concluded —Justice (1967). Justice, Report this rec- on Task Civil poli- En- See 93-588, U.S.C. 94-559, No. torney’s faith (Alyeska Pipeline Service Co. v. Wil- quickly enacted a U.S.Code agents can sue the United States. See 28 waiving sovereign immunity deprived of Congress award of ^[1976] derness 94-1011, U.S.Code Society, 93d Fees Awards Act of has also 2680(h) (Supp.1976); attorney’s Cong. L.Ed.2d (Oct. 19, 1976). constitutional Cong., 94th Cong. & Admin.News 2790-91. responded statute Cong., 2d Sess. fees. Civil & Admin.News 5908. (1975)), rights by 2d Sess. authorizing See also S.Rep. so that to Bivens (1973) S.Rep. Rights persons (1976) ^[1974] P.L. No. At- light factors, In of these I think it is fair recommendations, to these In addition say that Congress has chosen not to end Congress may have taken also notice of the the exemption municipalities which now en- campaign protracted to have Monroe cir- joy from federal actions claiming damages cumvented the courts38 and the innu- for Fourteenth Amendment violations. For legal merable articles written on this sub- the federal courts to eliminate that exemp- ject.39 tion would not be spirit consistent with the Pape Bills to overrule Monroe v. were 5 of the Fourteenth Amendment. 2983, Congress introduced in in 1962. S. The final factor “counselling hesitation” (1962); 10120, Cong., 87th 2d H.R. Sess. in this case is that the implied need for an Cong., (1962); 10951, 2d 87th Sess. H.R. cause of action is far less in this case than it Cong., 87th 2d Sess. Similar bills Bivens, Prade, was in in Paton v. La supra, steady in a g., have followed stream. E. S. or in United Koelzer, States ex rel. Moore v. 1215, Cong., (1963); 88th 1st Sess. H.R. supra. cases, In all of those the defendants Cong., (1963); 88th 1st Sess. H.R. officers, were federal it seemed unlike Cong., (1963); 88th 1st Sess. H.R. ly would be able Cong., (1963); to col 88th 1st H.R. Sess. damages lect anyone if implied Cong., (1963); 88th 1st Sess. H.R. causes of action which Cong., (1965); they asserted were 89th 1st H.R. Sess. acknowledged. not As Justice Cong., 90th 1st Brennan rec Sess. H.R. Bivens, ognized in Cong., 93d 1st the difficulties Sess. None of involved suing significant agent made a federal progress. these bills How- state court were ever, while has formidable. 403 shown little inter- U.S. at 91 S.Ct. 1999. eliminating est the restriction And direct actions the agents’ em Pape placed upon ployer, States, Monroe v. remedies were possible not actions, Congress available in at that time because the United States had responded to other court limiting yet decisions sovereign waived immunity for the remedies which can be awarded in case, suits claims of this nature. In this century under the nineteenth civil rights plaintiffs were able to sue the officers in supra. 39. See note 20 an of the various 38. For account skirmishes in Hundt, supra campaign, see note 778-79.

federal court under 1981 and ry damages §§ are de minimus we are not addition, they In had the option persuaded that, in the judicial interest of suing the officers in state economy, expediency claim and fairness Ayala v. Board of Public court. See Educa- parties to all should be retained tion, (1973) (abol- 453 Pa. 305 A.2d 877 as a pendent party. (1) In fact confusion units of ishing immunity govern- local (2) of the issues questions unsettled ment). of state law were the two reasons ex- pressly approved by the Supreme Court sum, me that it appears would be as a sound basis for refusing to retain the courts, highly inappropriate for the federal county pendent as a party Moor. The legislature, distinct from the to hold mu- City’s motion to dismiss shall therefore be nicipalities damages liable for tort on civil granted. (Citations omitted.) (App. at recognizing an implied claims directly 8-10.) arising cause of action from the Fourteenth Amendment. While I therefore I am convinced that the district court majority plaintiffs’ that the agree acted correctly. has consistently been “[I]t Fourteenth Amendment claims must be dis- recognized pendent is a missed, so, ground I do not on the which has discretion, doctrine of plaintiff’s e., majority plain- that the attracted —i. right. . . . . . [and] [i]f tiffs’ claims subsume their Four- federal claims are dismissed trial, before ,

teenth Amendment but rather on claims — even though not jurisdic insubstantial in a ground that no Fourteenth Amendment sense, tional the state claims should be dis damages cause of action for is available missed as well.” United Mine Workers v. city. against a Gibbs, 715, 726, 16 L.Ed.2d 218 See also Broderick

III. Hospital Associated Service of Philadel Pendent State Claims phia, (3d 1976); F.2d 8 n.25 Cir. Kavit Co., v. A.L. Stamm & 491 F.2d question posed by appeal The final is (2d 1974). Cir. Since I have concluded that whether the district court erred in dismiss- plaintiffs’ against federal claims the City ing plaintiffs’ pendent state claims were properly trial, dismissed before I be City. against the The district court stated: lieve that the dismissal of the pendent state finally request Plaintiffs that we exer- claims was also called for Gibbs. pendent cise City over the regard with to their state which claims Not only does the district court’s determi- grounded on the tort-related theories comport nation discretionary stan- respondeat superior negli- and direct Gibbs, dard of but in light of the foregoing gence . analysis which precludes a Fourteenth Amendment part scope giv-

In because of the broad cause of action against (see City pp. en district court’s discretion in such 1052-1061 supra), pendent matters the Third Circuit has indicated over the state law claims would approve that it will a lower court’s not be exer- available Aldinger Howard, under of joining cise state claims when the cir-

cumstances warrant. . . . Aldinger, rationale of [T]he Court has its doubts as to whether the held that the jurisdic- district court had no City punitive damages would be for liable tion to entertain a state pendent law claim alleged because of the wrongs perpetrat- to a (a 1983 claim against county police its . . ed officers non-person) just applicable to the situ- [W]e plaintiffs’ against here, read direct claim ation where pen- a state law claim is which, City sounding as one in negli- dent to a Fourteenth Amendment cause of gence, could punitive not be asserted for against action City. Having deter- damages. plaintiffs’ counsel con- Since mined that no such cause of action ceded oral argument compensato- available, at “joinder of a mu- Corporation purposes view, ... ent reasons. nicipal my plaintiffs’ asserting complaint a state-law claim not within asserts direct Fourteenth jurisdiction, is without the diversity Amendment claims whether or not “racial statutory jurisdiction implicated. of the district court.” motivation” is I would dismiss omitted.) (Footnote those claims because there are “special four counselling factors at 2421. hesitation” which dic- tate that result and none which counsel First, IV. otherwise. section five of the Four- teenth Amendment conferred Con- first: I would affirm the up, To sum courts, gress, not the the primary responsi- claims plaintiffs’ dismissal bility developing remedies for violations I have 42 U.S.C. Second, of that amendment. Congress ex- because I believe that conclusion reached municipalities cluded from liability under 42 Ku Klux Klan Act was not until the that it Third, Congress U.S.C. has failed Congress effec- in 1871 that was enacted in overruling Monroe to show interest 1 of the 1866 Act —from tively converted § Pape’s interpretation despite pro- 1981 derives —into a which 42 vigorous sustained and campaign to achieve by private which could be enforced vision And, fourth, that result. victims of Four- At the same time suit in federal court. teenth Amendment violations have other significant step, it took civil remedies which may afford them re- scope its decided to limit the dress. important respect: one determined that municipalities subject should not be to suit Finally, I would affirm the dismissal of plaintiffs’ in federal court on civil claims. pendent state claims because I do Congress has never reversed that de- Since not believe that the district court abused its cision, it still binds us. discretion in doing so.

Second, majority, as would the I too I would therefore affirm in its entirety plaintiffs’ affirm the dismissal would the order of the district dismissing court all direct Fourteenth Amendment claims plaintiffs’ claims the City of Pitts- completely against City, burgh. but for differ-

APPENDIX Aci Eights April of of Civil 31,14 Stat. oh. April 9,1866. in the United States all Persons Act to protect CHAP. XXXI. —An their the Means and Rights, Civil in their of furnish Vindication. Who are citi- Representatives House by Be and it enacted Senate zens of the assembled, all persons America in Congress That United States of United States, ex- any foreign power, to in and not subject born the United States citizens of taxed, to be are declared hereby Indians not cluding color, re- States; citizens, and without race every and such United servitude, involuntary or slavery condition of any to gard previous been shall have the party for whereof as a crime except punishment Territory and convicted, in State right, every same shall duly contracts, sue, be parties, to States, to make and enforce in the United obligations. and hold, lease, sell, convey and inherit, evidence, give purchase, and to laws of all benefit and equal full and to property, real and personal is enjoyed and property, security of person and for the proceedings and pains, punishment, like citizens, to subject and shall be by white ordinance, or other, law, statute, any regulation, none and to penalties, custom, notwithstanding. contrary Penalty for enacted, who, under any That person be it And 2. Sec. further depriving person any custom, statute, ordinance, or shall sub- law, regulation, any color of any protected right Territory by or any inhabitant of State any be subjected, or cause to ject, by this act, act, by or reason of color secured or any right protected to the deprivation &c. or race, on account of such person or pains, penalties punishment, different slavery involuntary held in a condition or been any time having servitude, for crime whereof the shall party as a punishment except race, convicted, color or than pre- of his or reason duly have been shall be deemed guilty persons, white for the punishment scribed and,- conviction, fine shall be misdemeanor, punished dollars, or one imprisonment exceeding thousand one exceeding of the court. both, discretion in the year, or enacted, And be Courts of the That district courts of the Sec. 3. further States United States, districts, have, United within their respective shall exclusively juris- to have States, diction of courts of several cognizance of all crimes and of- offences under act, fences committed of this provisions also, concur- this act. circuit courts rently States, with the of the United causes, all civil criminal, affecting persons who are denied or cannot enforce the be or tribunals of the or judicial courts State locality may where they secured them any act; first section of this criminal, prosecution, if suit or any or civil been or shall Suits com- State menced in court, any any person, commenced State for cause any may courts whatsoever, officer, or any military, or or removed on civil other person, defendant’s or or imprisonment, wrongs arrest or com- trespasses, done motion. or under derived or authority mitted virtue color of from this act a Bureau of Freedmen the act for the relief establishing Refugees, thereof, acts to do amendatory refusing with this and all or act upon 1865, ch. Vol. p. S07. xiii, act, that it would be inconsistent such defendant ground cause for trial to the right shall have to remove such district proper prescribed circuit court manner “Act relating cases,” corpus regulating proceedings habeas certain judicial three, acts sixty-three, March hundred and and all approved eighteen ch. Vol. p. xii, and criminal matters amendatory civil thereof. Jurisdiction conferred on the and circuit courts of the hereby district United States be enforced according to the conformity be exercised and enforced the laws of shall laws United States, States, carry far as such into so laws suitable the same or the common effect; adapted in all cases where such laws are not the object, but to &c. law, furnish reme- necessary or deficient to suitable provisions are law, law, effences the common as dies and modified punish of the State by and constitution and statutes wherein the changed criminal, cause, held, far civil or so having jurisdiction court as Constitution and of is not inconsistent with the laws the same States, and said courts in the trial govern shall be extended to United nature, cause, and, criminal if of a of such and disposition guilty. on the found party of infliction punishment enacted, 4. And be That attorneys, district Sec. further District At- torneys, &c., to States, marshals, and marshals of the United commissioners deputy pro- institute States, circuit and territorial courts of the by the appointed United ceedings against violating all this act. or arresting, imprisoning, bailing with of offenders powers States, the officers and of agents the Freedmen’s laws of the United Bureau, other every may specially by officer who empowered and States, be, they and hereby, of the United shall are spe- President authorized and dally required, States, expense the United to institute all proceedings against and every person who shall violate act, of this provisions and cause him or them to be arrested and bailed, be, or as the case imprisoned, of the United may for trial before such court or States territorial as by court this act cognizance of the offence. And awith view to reasonable affording protection to all in their constitutional persons law, equality before the color, of race distinction or or previous without involuntary condition of or slavery servitude, as a except crime, punishment whereof the convicted, been duly shall have and party to the prompt discharge act, it shall be the duties this the duty of the circuit courts and courts superior United States of the Territories of the United Number of States, time, to to from time increase the commissioners, number of commissioners appointed circuit and so as afford a and speedy to convenient means for the arrest and charged act; examination persons violation of this such territorial courts and increased; to be hereby commissioners are authorized and to required exercise dis- and authority. act, all and and charge the same duties conferred on them this powers act, to are regard they duties with offences created as by this authorized the to exercise with regard law to other offences laws United States. &c., Marshals, Sec. 5. And be it That it shall be the duty all enacted. further- obey all marshals obey marshals execute all deputy warrants precepts this act. act, precepts issued under the of this when to them di- provisions Penalty for rected; should marshal refusal, deputy marshal refuse receive &c. such tendered, warrant or other or to all process when use proper same, shall, means thereof, execute the he diligently to conviction dollars, be fined in the sum of one thousand to the use of the person Commissioners upon whom the accused is committed alleged have And offence. may appoint persons the better to enable the said commissioners to execute their duties execute warrants. faithfully United States and the efficiently, in conformity with the Constitution of the act, of this requirements they are hereby authorized and within their empowered, counties respectively, to ap- hands, under their point, writing, any one or more suitable persons, time, from time to to execute all such warrants and other as process may be issued them in the lawful performance their respective duties; and so to execute persons appointed any warrant or process Authority of as aforesaid shall authority to summon and call to their aid the persons. bystanders or comitatus of the posse proper county, or such portion States, the land or naval forces of the militia, or the may necessary performance duty with which they charged, and to insure a faithful observance of the clause of the Con- stitution which prohibits slavery, conformity with the provisions act; and said warrants shall run and be executed officers said Warrants to run where. anywhere in the State or Territory within which they are issued. Penalty for enacted, Sec. 6. And be it That person who shall further obstructing process under obstruct, hinder, and knowingly wilfully officer, or prevent any or act; this other person charged with execution of any warrant or process issued under provisions act, of this or any person or persons lawfully them, him assisting or from arresting any person for whose apprehension such warrant or process may have issued, been or shall rescue or to attempt rescue such person from the custody of the rescue, &c.; for officer, other or person persons, or those lawfully as assisting afore- said, when so arrested pursuant to the authority herein given and aid, abet, or any person assist so declared, arrested as afore- or shall aiding for escape; to to from the said, indirectly, escape custody directly or of the officer aforesaid, authorized as or or legally shall harbor person or other conceal harboring, for &c. for whose or arrest warrant any process shall person aforesaid, as so to his prevent discovery as been issued and arrest after of the fact that a warrant has knowledge been notice or issued for the shall, for either person, offences, of such of said apprehension be sub- dollars, fine not and ject exceeding imprisonment one thousand months, by six indictment and conviction before exceeding of the United in of- district court for the district which said States committed, fence been may have or before the court of criminal proper if committed within of the Territories jurisdiction, any organized one of the States. United enacted, it attorneys, 7. And be That the district Fees of district Sec. further attorneys, mar- marshals, said terri- and the clerks of the district and deputies, shals, clerks, commissioner, like bemay torial courts shall be for their services the fees as paid &c.; cases; for similar in other in all cases allowed them services and commissioner, are he shall be where the to a fee of ten dollars before a entitled proceedings case, in full in each for his services inclusive of all or incident to such and person services arrest examination. The authorized to execute the to be persons process issued such provisions commissioners for the arrest of offenders this a' fee of for. each person act shall be entitled to five dollars he or they aforesaid, before such commissioner as may any arrest and take with be may such fees as deemed reasonable such other commissioner necessarily as bemay for such other additional services performed examination, them, attending him such as at the or keeping pris- him food and providing oner and with his custody, lodging during commissioner, in detention, final such until the determination of and for and such as bemay other duties general performing required conformity to be made up such fees usually the fees premises; paid to be from officers courts of within charged by trict justice dis- proper treasury the the United near as may as be county, practicable, paid out of the or States, and to on the certificate of of the United States Treasury district judge of the recoverable be defendant from made, the arrest is and to be within which recoverable convicted. when as case of part judgment defendant conviction. enacted, it And be That whenever the President may Sec. further President judge, direct shall have reason to States believe that offences have attend, to&c., to be likely been committed provisions act for the &c., speedy more district, him, it shall judicial be lawful for any discretion, within his persons trial charged with marshal, and district judge, attorney to direct such district to violating this district, within the place attend at such designate, sons and for such may time as he act; purpose for the more arrest speedy and trial of per- act; violation of this shall charged with it be the duty officer, or other every when such judge requisition shall be re- him, to attend at the place ceived the time desig- therein nated. may enforce enacted, it And be That it shall be for the lawful Sec. further act with the States, or such as he person may empower President of the United military power. naval employ part of the land or forces of purpose, naval militia, necessary prevent shall States, or of the the United act. of this the due execution enforce the violation enacted, all questions Appeal That And Sec. further supreme court final appeal of this aact cause under the provisions arising law of the United States. States. the United Court of be taken may ate to make notes civilly liable in the Stat- utes at Throughout Large, (As under this section. are set the de- out below. noted earlier, bates the entire worried about text of the Rights Civil

Case Details

Case Name: Glenn R. Mahone and Harvey L. Mahone v. David S. Waddle, Albert B. Ellway, Jr. And the City of Pittsburgh

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 24, 1977

Citation: 564 F.2d 1018

Docket Number: 76-1377/8

Court Abbreviation: 3rd Cir.