Washington, D.C.

November 8, 1960

The above-entitled matter came on for oral argument before the Supreme Court of the United States.

APPEARANCES:

DONALD PAGE MOORE, ESQ., on behalf of the Petitioners.

SYDNEY R. DREBIN, ESQ., on behalf of the Respondents.

ORAL ARGUMENT OF PAGE

DONALD PAGE MOORE, ESQ.,,
on behalf of the Petitioners 3

SYDNEY R. DREBIN, ESQ.,,
on behalf of the Respondent 33

DONALD PAGE MOORE, ESQ.,,
On behalf of the Petitioners -- rebuttal 54

MR. MOORE:

Mr. Chief Justice, and may it please the Court. This case is here on a Writ of Certiorari to the U.S. Court of Appeals for the Seventh Circuit.

Petitioners are seeking reversal of the judgment of that court which affirmed a judgment of the District Court for the North District of Illinois dismissing Petitioner's Complaint for damages which alleged a violation of revised Statute Section 1979 which is a portion of the Civil Rights Act of April 20th, 1871. Section 1979 of course, provides that every person who, acting under color of law, state law, violates the Federal Constitutional rights of any other person within the jurisdiction of the United States shall be liable in an action of law suit in equity or any other proper proceeding for relief. We invoke that statute in our complaint. We invoke the jurisdiction of the district court under 28 U.S.C. Section 1343, Subsection 3, which explicitly confers original jurisdiction in the Federal District Courts for actions of the type defined by Revised Statute Section 1979.

The Defendants move to dismiss our complaint on the ground that it failed to state a cause of action. And the district judge allowed that motion, dismissed. The Court of Appeals affirmed.

The Petitioners in this case are James Monroe, his wife Flossie Monroe and their six children. Five of the children, I might add, are named Stevens. They are the step-children of James Monroe, the children of Flossie Monroe by a prior marriage. All six children, of course, are the children of Flossie Monroe.

The Defendants here are Deputy Chief of Detectives Frank Pape of the Chicago Police Department, the second ranking officer in the detective bureau of the Chicago Police Department, 12 John Does whose names we did not know at the time of filing of the complaint but whom we alleged were officers of the detective bureau acting under the orders of the detective bureau and of Deputy Detective Pape. Finally, the City of Chicago was named as a Party Defendant.

The Complaint, which, at least in its factual allegations, must be taken as true here, I suppose, alleges the following facts.

Mr. Moore, you may proceed.

MR. MOORE:

Thank you, Your Honor. Mr. Chief Justice, and may it please the Court.

Our Complaint in the District Court alleged the facts in Count 1 and it alleged the following facts:

On October 29, 1958, the Petitioner, James Monroe; his wife, who is also a Petitioner, Flossie Monroe; and their six children, who are also Petitioners here; were at home in their Chicago apartment asleep in their beds. And at 5:35 that morning the Respondent, Deputy Chief of Detectives Frank Pape and 12 other police officers from the Detective Bureau of the Chicago Police Department entered the Monroe home through the front and rear doors. Chief Pape and two other officers went down the corridor and entered the Monroe bedroom. At that point Mr. and Mrs. Monroe were asleep in their beds. Flashlights were shined on the faces of Mr. and Mrs. Monroe. One of the officers ordered Mr. Monroe to get out of bed. A gun was pointed at Mr. Monroe when this command was given. Mr. Monroe got out of bed, he had been sleeping with no clothes on, he was naked, he was told if he didn't move fast he would be shot and he was told to get into the living room.

QUESTION:

All we have in this case is the Complaint, the allegations in the Complaint?

MR. MOORE:

That is correct, Your Honor.

Mr. Monroe went into the living room. He stood in the middle of the living room at the command of the police. He was still naked. Immediately thereafter, another officer commanded Mrs. Monroe to get out of her bed. She said I don't want to do it because I don't have any clothes on. I'm paraphrasing the Complaint now. The officer insisted that she get up. He grabbed her by the arm and started to pull her out of the bed. As she was being pulled from the bed she grabbed a blanket from on top of the bed and drew it in front of her. And she was also compelled to go into the living room. At about the same time other officers were awakening the six Monroe children and herding them into the living room.

Meanwhile, still other officers began an exhaustive search of the premises. It commenced in the Monroe bedroom when one of the officers went into the closet there and he pulled all the clothes off the hangers, examined each one separately and threw each one on the floor. Still other officers went through the various chests of drawers and other pieces of furniture in the apartment. They pulled out the drawers, they dumped them on the floor and I suppose we may infer from the Complaint, even though it is not expressly stated, they then examined the various articles which had been dumped on the floor.

While the children were being herded into the living room, one of the officers, for reasons which are not stated in the Complaint, kicked James Monroe, Jr. who is a four-year-old child. Young Jimmy Monroe fell down and he started to cry. Pape was in the living room at this point and he was addressing questions to Mr. James Monroe. Pape had this flashlight in his hand that he had shone in the faces of the sleeping couple when he first entered the bedroom. And as the Deputy Chief of Detectives would ask the questions of Mr. Monroe, he was striking or punching the flashlight into the stomach of the naked man while his children and his wife looked on.

For reasons which are not alleged in the Complaint, one of the officers, I believe it was Deputy Chief Pape, had occasion to strike Robert Stevens, who is the step-child of James Monroe, knocking him to the floor and thereafter to push Houston Stevens, the brother of Robert Stevens, down to the floor in such a way that he fell across Robert's body.

The daughter in the Monroe family, Jacqueline Stevens, panicked and she rushed to the back door. An officer was standing near the back door, he stepped in front of Jacqueline. It is alleged in the Complaint that Jacqueline's intent at this time was to get out of the apartment into a hallway to reach a telephone so that she might call someone and get help. The officer near the back door stepped in front of her and pushed her down to the floor.

The officers then completed an exhaustive search of the premises. This included, among other things, taking razors and slitting open mattresses on the various beds in the apartment as well as the other incidents to the search that I had described.

After some time James Monroe was permitted to dress. Then his hands were cuffed together and he was led out to an automobile which was parked near the apartment. He was placed in the automobile. He was driven, eventually, to the Central Police Headquarters of the Chicago Police Department where he was taken up to a place of detention and he was there interrogated from time to time, subjected to intermittent interrogation, I believe is the way it was phrased in the Complaint, and from time to time he was placed on exhibition in police line-ups to which witnesses and other police officers come to view various individuals who are within the power of the police at that time.

After 10 hours Mr. Monroe was released from custody. He was not charged with a crime. He has never been charged with a crime from that day to this. It was alleged that during this 10-hour detention at the Central Police Headquarters, Mr. Monroe was refused permission to call his family. He was refused permission to call his attorney. No charges were placed against him. He was refused any information as to what charges would be placed against him. Of course, he could not, as we allege in the Complaint, make bail because no bail had been set because no charge had been filed.

In short, the allegations make out a classic case of Incommunicado Detention. It's the same thing that happens in all of these cases that this Court has had before it so very often in the coerced confession situation. We allege that the officers never had any intent of bringing Mr. Monroe before a judge promptly and that he was not arrested for this purpose. We further allege that in the building where Mr. Monroe was held for this 10 hours, there were four branches of the Municipal Court of Chicago with jurisdiction to receive criminal complaints and admit criminals to bail and that elsewhere in the city there were 16 other branches of the Municipal Court with similar jurisdiction, and we have identified each one of these branches by number in the Complaint.

We contend, that having alleged these facts, and specifically invoked Title A, Section 1343 to support federal jurisdiction and Revised Statute Section 1979, which defines our cause of action, our Complaint should not have been stricken but that the Defendants should have been required to answer it and we should have proceeded to trial.

QUESTION:

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

The phrase in the Complaint, Your Honor, and I believe that in paragraph I0A of the Complaint, which is the second paragraph on page three of the record, is that the Defendant, quote, broke and entered the apartment. Now, that is all that the Complaint itself says. If I were to go in more detail, I would have to go outside the record. As a matter of fact, one means was used at the front door and a different means was used at the back door. I think it couldn't prejudice the Defendants if I informed the Court that the back door was not broken down. It's conceivable that the door was pounded on and someone came and that somebody said, police, let us in, in the case of the back door. Of course, that dehorts the record but I don't think it's prejudicial to the city since it negates the inference that the back door was broken down. We believe that we have alleged the three elements which are required by Revised Statute Section 1979 which are quite simple. First of all, the Plaintiff must be a citizen or other person within the jurisdiction of the United States and at page one of the record, paragraph 2 of Count 1 of the Complaint, we allege that the Plaintiffs are citizens or other individuals within the jurisdiction of the United States. So we believe that we have satisfied that requirement of the Statute. The Statute requires that the acts complained of must be committed under color of a state law, statute, ordinance, regulation, custom or usage. In paragraph 6 of the Complaint on page 2 of the record we allege that the Defendants were acting under color of the statutes, ordinances, regulations, customs and usage of the State of Illinois, County of Cook, City of Chicago. And in support of that conclusion we have alleged in paragraph 3 on page I of the record and in paragraphs 4, 5 and 7 at page 2 of the record that these officers were on duty, they were acting in the course of their official duty, they were acting subject to the orders of the detective bureau, that they were led by a Deputy Chief of Detectives, that they were acting in the name of the City of Chicago, on behalf of the City of Chicago, that they were carrying official badges and identification cards that were furnished to them by the City of Chicago for the purpose of identifying them as the agents of the City of Chicago, that they were acting within the scope of their employment, and, we believe that this makes out a case of color of law as that statutory phrase was defined in Screws vs. The United States, 325 U.S. and Williams vs. The United States, 341 U.S. and, we contend, in the classic case the decision of this case in 1940 or '41. Screws held that if a person acts under pretenses of law, then he has acted under color of law. If he is a servant of the state going about the state's business, he has acted under color of law even though this act may be in violation of applicable statutes or constitutional provisions of the state. Screws, of course, was a case where a Georgia sheriff beat a negro prisoner to death, and it’s perfectly clear that such acts were a violation of Georgia law. Nevertheless, the sheriff was held to have acted under color of law within the meaning of Title 18, Section 242.

Does the Screws case arise out of the statute you are now considering?

No sir. It arose under 18 U.S.C. Section 242 which was then, I believe, Section 20 of the old criminal code.

The Criminal Code?

That is correct, Your Honor. It was a criminal prosecution. However, the language of Section 242, which is where the Screws statute is now found in the Code, it is very similar.

Is it the same?

Not precisely, Your Honor. For example, Section 242 does not require that the act be done under color of state law, if memory serves me correctly. It merely says under color of law. This is not so with regard Revised Statute Section 1979 where the word ‘state’ is inserted. However, outside of that, I believe that the color of law phraseology of Section 242 is precisely the same. If memory serves me correctly, there are two, it’s it’s color of a statute, ordinance, regulation, custom, or usage. And as this court pointed out in the Screws case, the opinion of Mr. Justice Douglas, I believe it's in a footnote at page 99 of 325 U.S., the two sections are modeled on each other. I forget which one came first. The Court of Appeals for the Third Circuit picking against Pennsylvania Railroad, the Court of Appeals for the Seventh Circuit in each against Moynihan and a number of other courts of appeals have inferred from this footnote in the opinion of Justice Douglas in the Screws case that the two provisions are in pari materia at least on the color of law provision. We can see no distinction between this case and Screws, between this case and Williams, which was a case where a special police officer of the State of Florida participated with several other individuals in beating a confession out of a criminal suspect and was then prosecuted and convicted. This Court affirmed in 341 U.S.

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

That is correct, Your Honor. But I don't believe that this is a valid ground for distinguishing a case. It seems to me that it's more shocking, not less, if an arrest is made without probable cause, and that the operative fact in each instance is the fact that the individual involved is acting in the course of his official duties.

Well, I was only addressing myself to the issue you're now discussing, the meaning of that phrase, under color of law. And the arrest, at least, in Screws had been in conformity with state law.

That is correct, Your Honor. I would assume, although I do not know, that the arrest that was involved, however, in Williams against the United States was without probable cause. I seriously doubt that the law of Florida, which was the state in which the facts of Williams occurred, authorized special police officers and other individuals to arrest a person and instead of taking him to a jail or to a sheriff or to a police lock-up or to a judge, to take him to a shed on the premises of a private employer and there conduct their investigation. Now, Respondents have argued that Screws should be overruled. I think that this would not be a good idea. I would like to point out to the Court that in addition to what we have stated about Screws in our reply brief, that the Congress, in enacting the Civil Rights Act of 1960 at Section 601 (A) of the Act, employed the color of law phraseology in defining the duties of voting referees. One of the duties of a voting referee in the language of the statute is to report to the Federal District Court findings as to whether an individual has been, quote, deprived or denied under color of law the opportunity to register to vote. This seems, to me, to reinforce our contention that since the color of law holding in Screws and Williams is simply a matter of statutory interpretation, that Congress could have changed it had it wished to; Congress did not. Instead Congress used the very similar phrase that was defined in Screws and in Williams over again, just this year, this seems to me a congressional ratification of this Court's instruction of the phraseology of Screws.

What statute in Williams?

Same statute, Your Honor.

It's not the same statute.

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

The Williams case to which you refer.

The Williams case to which...

What was the statute? Was that a statute of color of law or a state action?

Well, both, Your Honor. Both of them...

It's different. They're different phrases, they're different histories.

Unless my memory is playing tricks on me, Your Honor, in Williams against the United States it was Title 18, Section 242. Now, in United States against Williams it was Section 241 was involved. Of course, I have no reference to that case because that involves conspiracy.

I haven't either. I was referring to your Williams case.

Yes, Sir.

Which is not under color of law but involved with something of a state action, and those are different concepts.

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

You should have read them all completely.

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

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

97. And we there did apply the color of law.

That's correct. Wasn't that prosecution under Section 242?

Yes.

It was certainly my understanding that it was. And therefore necessarily in holding that the conviction was proper, this Court must have held that the action was under color of law. And as a matter of fact, there's some language about this action is under the aegis, I recall that specific word in the majority opinion, of state authority because it was part of and that the special police officer involved there had a semblance of official authority under Florida law because he was in a different position from a private citizen under Florida law. So, if my recollection is correct, the prosecution was under Section 242.

So do you think there's a difference according to acts under the authority of the statute, which may be bad and professing to act under color of law which has been defined as a state law.

Well, I would say that there might be a difference but it's a difference that is irrelevant given this Court's holdings in Screws and Williams. And I would urge that regardless of the opinion anyone may have now as to the wisdom of the majority holdings in Screws and Williams, nevertheless, by failing to change the statute, although this Court specifically suggested that if Congress disagreed it could change the statute, by failing to change it, Congress has in effect ratified the holding in Screws. And by using the same terminology or something very closely akin to it in the Civil Rights Act of 1960, Congress has even more explicitly ratified or endorsed the holding of Screws.

Do you think that when we get permission to come and change the law and they don't accept our offer, that shows a rejection of it. Is that correct?

Well, not necessarily, Your Honor. But the language that the Court used in the Screws case is highly suggestive. It said, at pages 112 and 113 , we are not dealing with Constitution interpretations which throughout the history of the Court have wisely remained flexible and subject to frequent reexamination. The meaning which the classic case gave to the phrase under color of any law involved only a construction of the statute. Hence if it states a rule undesirable in its consequences, Congress can change it. And our contention is, Congress did not. Instead it used the same phrase all over again in a new section of the same statute. This certainly does not indicate any congressional hostility to the holding of Screws on that point. Finally, the constitutional violation which is the third requisite to a cause of action under the statute, and we believe is supplied by the allegation of the facts coupled with the allegation at record page 9, Count 1, paragraph 18, that the aforesaid action of Defendants constituted a violation of the Constitution and laws of the United States in that Plaintiffs, and each of them, were deprived by the Defendants, and each of them, of their right to be secure in their home against arbitrary and unreasonable searches and seizures. We invoke the unanimous holding of this Court in Wolfe against Colorado which was reaffirmed, vigorously reaffirmed, by a majority of this Court in the decision of last June, Elkons against the United States, and we further note that even the dissenters in Elkons do not repudiate Wolfe. If memory serves me correctly, they thought Wolfe meant a little different something. But nobody indicated that Wolfe should be overruled. In Wolfe, this court held that an unreasonable search and seizure by a state officer, at least if the search and seizure violated the core of the Fourth Amendment, was a violation of the due process clause of the Fourteenth. In Elkons of course, this Court said, in Wolfe we unequivocally and unanimously held that, quote, unreasonable searches or seizures by state officers violates Fourteenth Amendment due process. Now, it seems to us that we have a simple statute. It lays out three things which we must allege. We have alleged them all. Unless Screws and Williams are repudiated or unless Wolfe and Elkons are repudiated, then we have stated a cause of action against the individual officers. Of course we have gone further and we have alleged that the City of Chicago is liable. And they move to dismiss on the grounds of, well, what happened here was simply something done in the course of the performance of the governmental function. And therefore, as a matter of Illinois law and impliedly as a matter of federal law, we are immune from tort liability. This, of course, is the doctrine of sovereign immunity rearing its weathered head in this case. We start with the premise that there's no question by what Congress has the power, if it chooses, to make a municipality liable for the Fourteenth Amendment violations of its police officers acting within the scope of their employment on behalf of the municipality. In our brief we invoked the opinion of Chief Justice Stone in United States against California, 297 U.S. and the opinion of Mr. Justice Frankfurter in California against the United States, 320 U.S. where it seems to us that this is implicit in those cases. Indeed it is explicit. The first California case involved a $100 statutory penalty under the Safety Appliance Act against the State of California for misrunning one of its railroads in some particulars. The second California case involved the question of whether the State of California was subject to the Shipping Act of 1916. In each instance the State of California said, we're sovereign, we're immune. It further said, we're not specifically named in the statute, therefore it doesn't apply to us. The Court aptly remarked that these were federal statutes, that California was not the enacting sovereign. It has never been a presumption that a political subdivision is not to be included within a liability frame by a statute unless that political unit was the enacting sovereign. And in each instance it held that the State of California was subject to the statute. Then we go on. Assuming the congressional power to do this, and we suggest to the Court, in adopting the Act of April 20th, 1871, congress did make municipalities liable. We suggest first that the doctrine of Respondeat Superior which is very old, which is very socially useful, and which is something that lawyers absorb into their bloodstreams with their first law school course in torts, is implicit in the provisions of the Fourteenth Amendment and is implicit in the Civil Rights Act of 1871, an act to enforce the provisions of the Fourteenth Amendment. The Fourteenth Amendment prohibits action by states. Congress passed the Civil Rights Act of 1871 to enforce the Fourteenth Amendment. I don't know that it follows QED but we suggest that therefore it makes sense at least prima facia to hold that the Civil Rights Act of 1871 is applicable to the subdivisions, the corporate subdivisions, of a state. We go further. We point to the legislative history of the Act of 1871 and we point to the language of Representative Shellaberger who was the principal sponsor of the 1871 Act where he says that, "this Act is remedial, it's in aid of human liberty. It is to be construed liberally." That's at page 23 of our brief. Representative Shellaberger said, "The largest latitude consistent with the words employed is uniformly given in construing in effect such statutes as this." This was the opening speech in the debate of the Civil Rights Act of 1871 by its sponsor.

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

On the subject of --

On the specific question whether municipalities would be liable?

No. Your Honor.

Is that all you found?

No, Your Honor, we found much more. This is all we found on the question of what the congressman thought about whether this act was remedial or penal.

I mean, specifically.

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

Did you find specific legislation history dealing with this subject?

Yes, I did, Your Honor.

Did you set that forth in your brief?

Yes, sir. On pages 29 to 30, Your Honor.

Did you set forth the origin in the original statute which had a position in there which was non-concurred of by the house in all that?

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

That specific amendment?

Yes. But an entirely different situation. In that footnote we also explain why we take the Sherman Amendment. It is not relevant to this statute. The Sherman Amendment was an Amendment which was thrown in at the last minute by Senator Sherman of Ohio after the Act of April 20th had already passed the statute and as Congress was driving towards adjournment, Senator Sherman sought to introduce, did introduce, and the Senate adopted an Amendment to the Statute which provided that the victims of mob violence of private individuals might have a remedy in action against, quote, every city, county or parish, close quote, in which the damage occurred. It could have a remedy against the city or county. The Senate adopted this Amendment. The House rejected it, refused to concur. The Senate adopted it again. The House again non-concurred, whereupon the substitute measure which became Revised Statute Section 1981 was put in there.

Leaving out all reference to -

That is correct, Your Honor.

And speeches against even the constitutionality, let alone the wisdom of imposing it. Is that true?

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

But in the House are there speeches against this liability?

Yes, Your Honor. The speech is centered around the notion that some of the Representatives held that this would be a violation of governmental immunity to taxation. However, most of the speeches were directed to the obvious unconstitutionality -- at least to some of the congressmen it was obvious -- of giving a federal remedy under the Fourteenth Amendment to action for damages suffered as a result of action which was not state action but which was private action. Some of the congressmen, I believe, pointed out that the Fourteenth Amendment prohibited only state action. The Fourteenth Amendment, of course, says no state shall. Most of the barrage of criticism which the Sherman Amendment faced was based not only on this constitutional objection but on the obvious injustice, or what seemed to them as the obvious injustice, of subjecting a city to liability for actions not of persons over whom the city had direction and control but over private individuals who were not the employees of the city and not subject to the disciplinary controls in the same sense that a police officer would be.

Do you think a general remark like Senator Shellaberger of construing this liberally is moral controlling or more helpful for this Court to consider than a serious debate which references municipality liability raised against it, not only on constitutional grounds but on grounds of politics?

Well, Your Honor, yes, because I don't believe that what Your Honor has said quite correctly characterizes this serious debate. I would point out first of all that the people who are up in arms about the Sherman Amendment -- and again, the Sherman Amendment is a very different thing from Section I of the Act.

But it didn't deal with municipal liability.

Yes, it did.

The subject was raised.

It certainly was, Your Honor.

The objection was made to holding the municipality liable for anything.

That is correct Your Honor. However, I would point out that the people who made this objection were people who were opposed to the Civil Rights Bill as a whole altogether. And I would point to the language of Justice Douglas for the Court -

A fair objection prevails. And those who sponsored the Bill of Rights Amendment yielded to those objections.

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

That's what you did when you called it Shellaberger's general remark.

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

Not just the dissident objections were yielded to.

They were yielded to with regard only to the Sherman Amendment which was directed at private action by private individuals. We cannot look into the minds of the individuals who went along with the objections to the Sherman Amendment and assume that they picked up isolated statements by Senator Stephenson and relied on nothing else in the entire debate because there were policy objections to municipal liability for private individuals. There were all sorts of constitutional objections of which this was only one. And it was not stressed in the debate nearly so much as these other questions.

In your reading of the debate, are you denying that there were policy objections to holding a municipality at all?

I did not understand the question, Your Honor.

Does your reading of the debate in both Houses not encounter objections to holding municipalities at all liable?

Yes, yes. We do encounter those objections most articulately stated by Senator Stephenson. But they weren't everybody's objections. And they weren't on Section I of the Bill which is our Section. I would suggest to Your Honor that the remarks of the opponents of a Bill - well, we cited the Schwigman Brothers case. Now, that is not precisely applicable because, sure, the opponents did prevail on the Amendment, but that is a very different thing from assuming that Congress, without saying so, meant that there was to be no municipal liability anywhere. No congressmen for or against the Bill ever said that there could be no municipal liability under Section I of the Bill, in spite of the fact that Representative Shellaberger who I suppose we must assume was more carefully listened to than any other congressman who supported -

Why do you say that?

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

(Inaudible.)

Well, it's possible, Your Honor. I don't suppose we can prove it one way or the other.

That's what I was suggesting.

I would, however, point out to the Court that Congress did one thing, that the Congress as a whole articulated one thing. Just about seven weeks before it passed the Act of April 20th, 1871, when it adopted on February 25, 1871 an Act to prescribe the form of the enacting and resolving clauses of acts of Congress and rules for the construction thereof, this statute, among other things, defines certain general terms. It has been referred to on occasion as the act of Congress in prescribing it's own dictionary in the article by Justice Frankfurter in 47 Columbia Law Region. This dictionary statute said, among other things, that the word person may be construed to apply to bodies corporate and politic unless the context otherwise indicates -- or unless the text otherwise indicates. The grandchild of that statute now says context, then it said text. Now, our basic position is this: The Act makes every person liable. The Congress said person may be construed to include bodies politic or corporate. Everybody in 1871 who had any legal training whatsoever must have assumed that bodies politic or corporate meant cities. In our Appendix D to this Complaint we've listed a whole raft of statutes creating cities. We quoted one creating Scotsborough, Alabama and we listed a whole raft of other ones. Every single one of these statutes says that the City of Scotsborough shall be a body politic or corporate with power to sue and be sued. When they used those words, body politic or corporate, they must have been thinking inter alia at least of cities. And they used the word person in the Civil Rights Act of 1871. Therefore, clearly, this Court may, without doing violence, I suggest, to the history of that session of the Congress which sat in 1871, hold that person here means body politic or corporate, i.e. city. The City of Chicago was created as a body politic or corporate back in the 1830's. It's still a body politic or corporate. Now, we have these and we have the further question which is most significant, it seems to me, which is raised by the prior holdings of this Court in Holmes against the City of Atlanta, and Douglas against the City of Jennette where implicit in those cases is a holding that municipal corporations can be made parties defendant in an action under Revised Statute Section 1979. Both of those cases were actions under Revised Statute Section 1979, equity actions. In both of those cases it was held explicitly in the opinion of Douglas against the City of Jennette and by necessary implication in the Holmes case where this Court merely entered a short Order affirming, that a city was subject to the provisions of Revised Statute Section 1979. That must mean that a city is within the phraseology every person because the Act makes every person liable to an action at law sued in equity or other proper proceedings for redress. If the defendant is not a person, you would have no cause of action under the Act, I would suggest. And yet everyone has always assumed that a municipal corporation is liable in an action in equity for an injunction under this Section of the Statute. How can -- it's difficult for me to understand how you can hold that a city is a person in equity and not a person at law, particularly difficult when we look back to what the sponsors said the statute is remedial in its purpose to be construed liberally, we are to give it the largest latitude consistent with the words employed. Then we look to the dictionary statute where Congress has expressly said that when we use this word, unless the text of the statute indicates otherwise, it may be construed to indicate a body politic or corporate. Viewed in conjunction with the contemporary understanding of the word person which we have outlined, the first case so far as I know under this statute was Northwestern Fertilizing Company against the Village of Hyde Park in which a District Judge sitting right in Chicago held that a corporation was a person that could bring suit because otherwise it could not be a person for purposes of being a Defendant. I might also point out that the Defendant in the Northwestern Fertilizing Company was in fact a municipal corporation, it was the Village of Hyde Park, which of course now is part of Chicago but was then a village and that nobody even suggested that it wasn't a person for purposes of being a Defendant in that action. Again, it was an action in equity and now in law, of course. Now, all we're suggesting here is that on the law, on the technical history of the phraseology of this Act, there is ambiguity that there is room here for this Court -- there is sufficient ambiguity, sufficient doubt, so that this Court can look to the policy factors which in here, in a claim of sovereign immunity, a claim of immunity from a particular statute of the United States by the City of Chicago - and we have gone on in some length for this reason - on the policy issues which are at stake. We have pointed out that this Court has consistently criticized the doctrine, that every legal scholar publishing anywhere in this country today -- there may be exceptions but I don't know of them -- has attacked the doctrine because it's unfair, because it works terrible injustice, because a family like the family of James Monroe has no remedy that means anything unless it can sue the City of Chicago. The civil damage provisions of that Statute do not mean a thing unless there is a financially responsible Defendant in the case. Lawyers, generally speaking, will not represent clients unless they can make money through them. If a Plaintiffs lawyer can make money bringing actions, a cause of action can be an immense -- an immensely effective tool of public policy. One has to look only at the Federal Employers' Liability Act to see how Plaintiff's lawyers, because they know they can hit for money, they've gone after these cases and they've brought these actions. And as a result of the verdicts they're getting, the railroads have evolved immense safety programs.

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

What I mean, Your Honor, is that they have sat in their offices and been alert when these cases came to them. But I think, we submit, that injury suffered by a railroad worker as a result of the negligence of his employer are no more important, no more hurtful socially, than injuries suffered by innocent individuals as a result of the unconstitutional acts of local police officers.

Does it make any difference whether they're innocent or not?

Well, it makes this very practical difference, Your Honor, and I think this is important. A guilty Defendant, at least in many instances, has a forum in which he can try out the question of right and the whole law in this area of procedural due process as it respects actions of police officers is made in cases mostly where Defendants are guilty, they're trying to suppress evidence, they're trying to suppress confessions. At least, and I think this a not inconsiderable value, at least a murderer from whom a confession is extorted has the satisfaction if his lawyer is good and his trial is fair, of having someone say what has been done to him is wrong, having it said formally and officially. I believe Professor Carl talks about a sense of justice which is important and which is satisfied by a formal official determination. An innocent person doesn't. An innocent person is bereft of any practical remedy because if, as usually happens, he's poor, he can't get a lawyer. If he's poor, the state's attorney, the prosecuting authorities, are not going to pay much attention to him usually. He's not charged with anything; there's nothing to suppress. If this family has no remedy here -- this means an effective remedy -- then, for practical purposes, it has no remedy at all. Now, I think there is sufficient ambiguity in the background of the Statute so that this Court may, without engaging in broadside legislation, which of course it cannot do, so that it may consider these policy factors. It has certainly considered them in other cases. For example, in United States against the A&P Trucking Company, this Court considered policy factors when it read respondeat superior into a criminal statute although respondeat superior was not written in the language of the Statute. And it used as part of the support for its reasoning in imposing what the dissenters called vicarious criminal liability. As of its support, it referred again to this dictionary statute. Now, it seems to me that if in encouraging employers to police their employees is this important in the area of complying with the Interstate Commerce Act, it is this important in the area of protecting the fundamental civil liberties of more individuals who are not going to get protected under other circumstances. And it seems to me, again, that this Court has enough leeway in the background of the Statute so that it can consider these policy considerations. I would like, if the Court please, to save five minutes for rebuttal.

Mr. Chief Justice, members of the Court, if we were to take final argument of Counsel at its face value, I would presume that I have already confessed error in this particular case, that he has already secured a judgment against Pape and that, unfortunately, he cannot collect the judgment, and that is all there is to this case. But I don't think that the problem is that simple. I think there's more to it than merely a confession in this case. The Civil Rights Act has been on the books since 1871. In all that time there have only been four cases before this Court involving the Civil Rights Act. True enough, there have been other Statutes but there have only been four cases since 1871 involving the Civil Rights Act. And in none of those cases has this Court had occasion to test or to examine or to determine the constitutionality of the Revised Statutes of 1979. The last time that this case was before this Court was in 1951. That involved an equity proceeding to restrain the introduction of illegally seized evidence in the state criminal action. And this Court, through Mr. Justice Frankfurter, discussed the Wolfe case that counsel has discussed today and said that all legal seized evidence, although contrary to the Fourteenth Amendment, is not admissible, or rather it is up to the State Court to determine whether it is admissible. I think that it is necessary at this time -- Counsel asked in his Petition for Certiorari that you grant this Petition to test the constitutional right of freedom from arbitrary police invasions of the home. Let us examine the Statute and let us determine whether or not it is constitutional. Let us determine for the Fourteenth Amendment and see how it does apply to this particular Statute. Section I of the Fourteenth Amendment says no state shall make any law nor shall any state deprive any person of life, liberty or property. Way back in the olden days, way back in 1875, this Court in the case of United States versus Crewchek first interpreted the language in the Fourteenth Amendment. And at that time this Court determined that the only obligation resting against the United States is to see that the states do not deny the right. This the Amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guarantee. And then we have the Civil Rights case in which the same language was expressed. And this Court has always adhered to the general principles laid down in these two cases. Mr. Justice Black in Screws versus United States, which is so much discussed in this case, said the fact that a prisoner is assaulted, injured or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States. The Fourteenth Amendment did not alter the basic relations between the states and the national government. Our national government is one of delegated powers alone. Under our national system, the administration of criminal justice rests with the states except as Congress acting within the scope of those delegated powers have created offenses against the United States. Mr. Justice Frankfurter has also expressed the same thought in The United States versus Williams, the first one, 341 U.S 70. So that I do think that the general principles as to the delegation of power to the national government and to congress is agreed upon by every member of this Court. It is only when we come into the twilight zone, it is only when we apply these general principles to specific facts that we come into difficulty. So that brings us to the question of this Civil Rights Act. Counsel has misquoted, I'm sorry to state, the language of the Civil Rights Act. He said the act provides that if there is a violation of any right. That is not true. The Act provides that if there is any deprivation of any right. And there is all the difference in the world between a violation and a deprivation. And also, there is all the difference in the world between Old Section 20 of the Criminal Code and the present Civil Rights Act. In the first place, the Old Criminal Code Section 20 uses a word willfully, it gives a specific intent. The Civil Rights Act does not contain the word willfully. There is not specific intent. The Old Criminal Code provided according the constitution and laws of the United States. Surprisingly, and I say surprisingly, our present Civil Rights Act does not tell us what constitution and what laws must be violated. It does not say of the United States. It merely says the constitution and the laws. What constitution and what laws are we to violate? Are we to violate the laws of every one of the states? Is that what the constitution had in mind? Or the territory, as it says? We surely cannot imply that it is a violation of the Fourteenth Amendment or any other Amendment or Statute as by the Congress. This question was discussed in great detail in the Screws case. There Mr. Justice Frankfurter decided that this Section 20 containing the words --

I didn't decide anything in that case.

I'm sorry. Mr. Justice Douglas decided that the words willfully --

I had some help in that case.

Yes, I know that. And it was a very difficult case. As a matter of fact, they were stalemated in that particular case, four to four. A very, very interesting case. However, in that particular case Your Honor discussed the question of willfully and determined that that was a specific definition of specific intent because hooked up with that was the phrase, the constitution and laws of the United States. The dissenting opinion, in which Mr. Justice Frankfurter took part, took issue with a question of willfully and stated that, in their opinion, a specific intent of willfully taken in and of itself is not sufficient. If such is the situation in the Screws case involving the criminal section, what is the situation in this case where two of the linking words in the Screws case is missing in the present, namely willfully and the fact that violation of the Constitution and the laws of the United States. I claim that Section 8, 1979 is unconstitutional. First, because it is unlawful delegation of rights. And secondly, because it is so vague and indefinite, it is unenforceable because of these two provisions. The Civil Rights Act is not corrective. It is not prohibitive legislation. It does not deal with state action but rather with individual action, unsupported by any state laws or actions. It is primary and direct. It gives one individual a cause of action against another. And it is my contention that Congress does not have that power under the Fourteenth Amendment. Then we come to the specific question of whether or not the acts of Frank Pape were under the color of any statute or ordinance. It is, admittedly, the constitution and statutes of the State of Illinois and the ordinances of the City of Chicago prohibit unreasonable search and seizures and assault and unreasonable detention. So that Pape, although he was a police officer of the City of Chicago, neither acted nor purported to act under color of any statute or ordinance. Rather, he acted in direct violation of the state constitution and the state statutes and the ordinances of the City of Chicago. Pape was merely a private trespasser. And this Court has long held that the violation of a state law does not create a federal cause of action under the Fourteenth Amendment. We start with the old case of Barney versus the City of New York, 193 U.S. 430 decided in 1903 in which the Court held that the federal courts under the Fourteenth Amendment do not have jurisdiction over state actions. Then we have this Noden versus Hughes case, an Illinois case, 321 U.S. I decided in 1943. That was a case in which the state canvassing board refused to certify one who had been nominated as a State Representative. And he filed a suit under the Civil Rights Act. And this Court held that he did not have a cause of action. Mr. Justice Frankfurter, in concurring in this particular opinion, stated the question whether the action of the state canvassing board is state action, that is a question, is not to be resolved by abstract considerations such as the fact that every official who purports to yield power conferred by a state is pro tanto the state. Otherwise any illegal discrimination of a policeman on the beat would be state action for purposes of suit in a federal court. I think that language is very apropos in this particular case. Otherwise every illegal discrimination by a policeman on the beat would be state action for purposes of suit in a federal court. I would like to discuss in great detail Screws versus United States which apparently is the basis for the claims of the Petitioners. In that case Mr. Justice Douglas said, we are not dealing here with a case where an officer not authorized to act nevertheless takes action. Here the state officers were authorized to act, to make an arrest and to take such steps as were necessary to make the arrest effective. They acted without authority only in the sense that they used excessive force in making the arrest effective. That is not the situation in the case at bar. In the case at bar, every act of Captain Pape and every other one of the officials was illegal from its inception. They did not have a search warrant; they did not have a warrant for arrest. They arbitrarily went in there and seized these people. So therefore, the Screws case is not an authority for the fact in the case at bar. The Screws case was a criminal case, a criminal act. It involved the United States government. There was a suit between the United States and a criminal. The cause of action in the case at bar is private, between individuals. In the Screws case they acted under color of law and had a warrant for his legal arrest. Pape did not act under color of law. Pape did not have a warrant. His conduct did not come within the statute.

Did he have the power? This does not indicate. Does he have the power to arrest without a warrant?

He does not have the power. The statutes and the constitution and the ordinance specifically provide that he must have a warrant before he can arrest except when the act, the criminal act, is in view or except in those cases where a crime has been committed and he has reason to believe that this individual is the one who committed the crime. Those are the only instances --

Was there a crime committed in this case?

There had been, yes.

Were they thinking to connect this man with that crime?

Yes, that's right.

I suppose they would claim that they had cause, wouldn't they, to go in there?

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

But if they did have probable cause, they could have gone in there.

That is right. Because a murder had been committed. The wife of the murdered man pointed out Monroe as the person who killed her husband. That is not in the record. And we are taking the record as we find it. And we contend that in this particular case he had no warrant and, therefore, it was not justifiable. Also Section 20, as I said, creates an offense against the United States. The Civil Rights Act creates an offense by one individual against another individual. And Pape's action was not an offense against the United States. The United States is not a party in this particular case. And that is the great distinction between the Williams case and the Screws case and the case at bar.

Are the officers amenable to this Act?

What Act?

The one we have under review.

In my opinion, they're not.

Pape is not subject to it?

Under the Civil Rights Act?

Yes.

No. In my opinion, he is not. In my opinion he is not acting under any color of law. He is not acting under any statute. He is merely a tortfeasor. He is in no different position than if a stranger on the street came up to --

You understand under color of state law to mean acting legally?

I mean -- not legally. I mean that the Fourteenth Amendment had in mind in Section 1979, which is the Civil Rights Act, should be construed to mean that the only time an individual has a cause of action is when the police officer -- or is when the state has passed an Act contrary to the Constitution. And when the state has passed an Act contrary to the Constitution and contrary to the Fourteenth Amendment, then the state comes into play.

If that is your view, then one is not actually under color of state law unless he is acting within the law.

That is right.

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

Color of state law is custom and usage. That's where custom and usage comes in. In my opinion, you talk of violation of a statute or a color of law. That is custom and usage where although there is not written law, certain things take place within the state. You must bear in mind that the Civil Rights Act was enacted shortly after the freedom of the slaves and that all this legislation that we are talking about is in order to protect the free slave as a United States citizen. And it seems to me from the cases that it was directed primarily to the southernmost states. It is only in the last few years that the lawyers in Chicago and other northern cities have begun to spread the theory of the Civil Rights Act to incidents occurring in the north and where color is not in question. I do not believe that is the basic theory under which this original Civil Rights Act was passed.

In other words, what you're really arguing is that the Civil Rights Act --

I cannot hear you.

What you're really arguing is that the Civil Rights Act under your view is limited to the racial issue. Is that it?

No, that was the purpose of this enactment. The Civil Rights Act is directed -- or let's put it this way. I think the Civil Rights Act is unconstitutional because it's in violation of the Fourteenth Amendment because the Fourteenth Amendment goes only to action by the state.

Assuming for a moment that the Act is constitutional, could you give us an illustration of what would be reached by this Act, if something could be reached by this Act under your view, how we should interpret it.

Yes. Let us presume for the sake of argument the State of Illinois passed a statute legalizing searches and seizures even though they are unreasonable. Then that statute will be unconstitutional in violation of the Fourteenth Amendment. The Fourteenth Amendment, according to the early cases, is merely prohibitive. The state must act first. And if the state acts in contravention of the Fourteenth Amendment, then the Act, the state Act, is unconstitutional and can be corrected by the federal government.

You're saying a state or its provisions may not be held liable for the act of an officer unless he is acting within the course and the scope of his authority.

That is right.

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

That is right.

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

I thought, sir, Mr. Justice Whitaker, that I had explained it.

Yes, sir, you have, I just don't understand it.

In the north there's not such a thing as custom or usage, as we understand it, pertaining to violations of personal rights. In the olden days shortly after --

Well, that would be a matter of proof, wouldn't it?

Well, I presume you're right there. But let us presume for the sake of argument that that is true.

Could you stand closer to the microphone, we want everyone to hear you better.

I'm sorry.

You think the Williams case at 341 was wrongly decided.

The majority opinion, yes.

Your line of thought follows the line of thought in this incident.

That is right.

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

Therefore, you say under color of law means in accordance with the law.

Also in accordance with custom.

Well, custom is the same thing. I assume, you're using the common law sense because it's so long existing, it's the common law place.

That's right. But also there's this distinction, Mr. Justice Douglas, in regard to the Screws case. The Screws case was a criminal case. The United States was a party. The Civil Rights Act gives a cause of action to one individual against another.

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

Because the Fourteenth Amendment states that no state shall. The Fourteenth Amendment is prohibitive. The language of the Fourteenth Amendment says no state, no state, no state. It is a prohibitive provision. And as this Court has so often said, the courts must wait until the state has acted illegally under the Fourteenth Amendment until it can act. But when it does, then the federal government can act but not before.

It's not enough, as I understand your argument, that the state really put one in a position to act under color of this law, he must actually act in obedience to this law.

That is right. That is my contention.

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

No. I've never thought of it in just that way, Mr. Chief Justice. Of course, the city is a subdivision and a creation of the state.

Yes. Well, I say, you don't make any distinction between city action and state action?

No, sir. Counselor used the Wolfe case and says that the Wolfe case, along with the Elkons case, is controlling in this particular case. I do not believe that is so. I think that he's only half quoted the Wolfe case. True, the Wolfe case said that unlawful, unreasonable search and seizures come within the purview of the Fourteenth Amendment. And there he stops. He proceeds no further. But the Court went on to say, that being so, still it is within the power of the state whether or not this illegally seized evidence will be admitted into evidence. So therefore, in my opinion, neither the Wolfe case nor the Elkons case have any weight in the situation that we are now discussing. I would also like to discuss the question of the City of Chicago liability. I would like to call Your Honors' attention to the fact that in Illinois we have a Statute Section 1- 15 of the Illinois Revised Cities Performances Act which defines the liability of the City of Chicago as far as liability for wrongful acts -- or for negligent acts not for wrongful acts, negligent acts, as a police officer during the scope of his employment. And in the case of Gaffer versus the City of Chicago in 411 Illinois 141, the Illinois Supreme Court held that Statute constitutional. And therefore, it declared the public policy of the State of Illinois in regard to the liability of the City of Chicago insofar as its police officers. And it's a case of indemnity. And it's a case of indemnity only where there is negligence. And there is no liability on behalf of the city where the action of the officer may be willful. And after the Gaffer case, there is a case of Kerris versus Snell, 11 Illinois 2nd, 233 which further construed Section 1-15. There a police officer who was off duty and drinking in a bar attempted to arrest someone. He pulled his gun, shot him and blinded him for life. Kerris filed suit against Snell and the City of Chicago. On motion, the City of Chicago was dismissed. By the way, originally the allegations of the Complaint was willful conduct on behalf of Snell. When the City was dismissed from the action, they amended their Complaint to one of simple negligence. And by agreement, a judgment was entered in favor of Kerris and against Snell for $169,000. At which time Kerris then sued the City of Chicago under Section 1- 15 of the indemnity clause. And we contended in a motion to strike that Complaint that we were not liable unless the policeman was on duty and he was not negligent. The Trial Court denied our Motion and judgment was entered for over $200,000 including interest. The Illinois Supreme Court reversed that judgment and said that Section 1- 15 is a statute of indemnity. It is not one of personal liability upon the City of Chicago and that, therefore, the City of Chicago had the right to go to trial and to prove, number one, that Snell was not on duty at the time he committed the acts and that the acts were done willfully. So that in Illinois today, the City of Chicago is not liable for the willful conduct of a police officer. And the allegations of the Complaint in this particular case are one of willfulness.

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

It's irrespective. The Court says that it's irrespective of the liability of the police officer. In other words, police officers presume --

I realize it's irrespective of his liability. But is the city's immunity barring off the fact that the police officer's conduct was willful or is it barring off sovereign immunity?

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

I thought you were talking about the Kerris case.

I am talking about the Kerris case.

That's what I want to know.

In the Kerris case, in my opinion the liability of the city created by statute is not based upon governmental immunity. It is based upon a direct relationship between the police officer and the city. That is the reason that the State of Illinois held the act constitutional. They said that it was in effect additional compensation to the police officer. So that under the Kerris case today in Illinois, even though a governmental immunity, the City of Chicago cannot be liable for the negligent acts of a police officer unless the police officer has been acting within the scope of his authority and unless the police officer was negligent in performing his duties.

You really believe that? You really believe police officer in Chicago acting within the course and commits a wrong, that the City of Chicago is liable?

Not today. It only is liable by way of the statute. It is not liable under the common law today. Now the Monitor case is one that the Counsel discusses, but we do not accept the Monitor case. Further it only abided retroactive, respectively, in the future and not in the past. In conclusion, I would like to impress upon Your Honor that this is a good time to review the constitutionality of the Civil Rights Act to determine whether or not it is in violation of the Fourteenth Amendment. And then too whether it is not vague and unworkable. Because it is lacking in the words willfulness and it does not tell us what constitution and what laws are being violated such as in Section 20. And then too I would like to have Your Honors determine first, if you determine the way I hope you will determine the issue, and decide that color of law and statute as set forth in the Civil Rights Act applies to violation of state action and state statutes only in light of Section 14 -- Amendment 14, and therefore there is no cause of action declared.

If I haven't misunderstood you, all this would be a proper cause of action, properly alleged, if it was a Plaintiff negro against a southern municipality, a southern state. Isn't that what you meant to imply?

No, sir. Mr. Justice --

I thought you were trying to say that color of law meant something different up north than it does down south.

I was trying to explain the purpose of the passage of the Civil Rights Act. I tried to point out the Civil Rights Act, the first original Civil Rights Act, the Enforcement Act, and the present Civil Rights Act enacted in 1871 was enacted shortly after the prohibition of slavery and that the cases tell us that the purpose and the intent of those Acts were to guarantee to the southern negro the right to do the same as a white citizen in the south. And then I went on to say that the purpose of the original enactment of these statutes did not apply to the northern states because in the northern states we do not have many of the customs and usages that were prevalent in the southern states immediately after slavery.

This statute only applies south of the Mason Dixon line?

No, sir. But the purpose -- what I'm driving at is the purpose of the Act. What was the purpose of it. And it seems to me that when I read the cases, the purpose was to give equal citizenship to all citizens of the United States.

Let me ask you a question. Suppose that the legislature of Illinois passed a statute which set forth in detail what was done in this Court was charged in the Complaint and said any police officer may do the following acts and then set forth what was done in that Complaint. (Inaudible.)

Yes, it would. In my opinion there would be a state statute in direct violation of the Fourteenth Amendment. In my opinion, it would not be necessary for this Court to come to the decision of whether or not the City of Chicago is liable if they decide that the trial court and the Circuit Court of Appeals properly dismissed the Complaint. Thank you.

Mr. Moore.

MR. MOORE:

Mr. Chief Justice, and may it please the Court. I will not respond to many of the contentions of the Respondents. I think that underlying the issues in this case, of course, is an issue of federal, state relations, and I think basically, an issue of judicial philosophy. On these two basic issues I would like to suggest what I have thought about in the almost two years that I've been working on this case. It seems to me, first of all, that on the federalism issue, it ought to be noted that the position for which we are contending is not a position which, if taken, will violate or detract from any legitimate public interest of any state. Indeed, if the states are able to secure the assistance of federal judges and federal juries in supporting their articulated public policy, I am sure that they will be happy and not unhappy because every state constitution forbids what has occurred here. Secondly, I would like to stress, we so often think -- I so often think of a person who goes into a Court and argues for a civil liberties position is often thought of as a person who is going in and pleading for a kind of judicial activism, for judicial conduct which is really policymaking, which is legislating, which is imposing the subjective preferences of judges upon the rest of society. I would like to emphasize that our whole position here is not one which calls for this kind of judicial activity but we are pleading here, it seems to me, on the most important issues in the case for judicial self restraint. We are saying that whatever you may think of this statute or the philosophy that called this statute into being, nevertheless Congress did make the decision and this Congressional will should be respected. And it seems to me that insofar as we are calling for what must be called legislation in this case, we are calling for interstitial legislation. We are calling for the Court to make a decision on this issue of municipal liability where Congress has not expressly stated anything one way or the other. And whichever way this issue is decided, legislation will be done, law will be made. And we can only point to the Congress which enacted the bill, to the tradition in which that Congress acted and ask the Court as it has been, of course, often asked in the past, to feel in terms of our case the thrust of that tradition. Now, the suggestion, of course, is that that tradition was anti-southern or pro-negro or something like that. I'd like to the call the Court's attention to our Appendix B, Sub-Section I -- we anticipated the argument -- in which we laid out 15, maybe not that many, maybe only 10 quotes in the legislative history on this precise issue. I would like to call the Court's attention to the tradition that must have been felt by Representative Buckley, the initial quote in that sub-section, when he said this Bill is not to protect republicans only in their property rights, liberties and lives, but democrats as well, not the colored only but the white also, yes, even women and children and all classes will be benefited alike because we are simply contending for good government and righteous law. And down the line it goes.

Righteous law. That's a very simple thing to apply. Automatically they know that the law is righteous.

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

You do?

Surely we do because they told us, Your Honor.

To my reading they told us just the opposite. To my reading of the legislative history they said, the color of law means in defiance of an enactment or a customary practice. Not in defiance of it but in obedience to it. Why do you make this case simpler than it is, Mr. Moore? Why do you make this case simpler than it is? How can anybody, with all due respect, read the legislative history of this statute and not, at the lowest say that Congress did not need to give rights in the federal court where a person acts in defiance of a state law? There is an overwhelming body of legislative history to that conclusion. Why do you make this thing simpler and make it appear that all we have to do is just read the statute and all is well?

I'd love to answer that question. I'm dying to answer that question, Your Honor, but my light is on.

Well, if it doesn't take too long, answer it.

Well, it's hard to describe the whole history of these enactments.

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

That's my fault, however, Your Honor, not the fault of Congress.

I'm simply stating a solid fact that you have not set forth the history which shows the great momentum behind this legislation that there was to be no right except when there is the (inaudible) of state action, of state laws, of state practice behind it. You read it one way and I read it the other way. All I'm suggesting is that you make this case much too simple.

I think, Your Honor, with all respect, that I do not. Hear me out, Your Honor. I point to the legislative history of this statute which historically has been labeled a Ku Klux Klan Act, an act against a mass band of violent men. And I ask you how any congressman could have possibly thought that any state in this nation would ever authorize by its laws the actions of these mobs. And yet, obviously, at least where there was some collaboration between officers of the state and these masked men, obviously Congress intended to hit that.

Yes, but the law has a colloquial name and the fact that it's called the Ku Klux Klan Statute doesn't mean it was concerned merely with mob rules.

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

It was directed against the black code. That was the stimulus of the legislation.

Your Honor, with all respect, I believe that that is not an accurate characterization of the legislative history of the Act of April 20th 1871. We must turn to the globe, of course --

I didn't say it was restricted to that. I said the impulse to it was a black code. Statutes enacted doing all sorts of things and it was deemed that if you act under those, then you can bring action against it and have ultimately this Court hold that the legislation under which you seek shall be unconstitutional.

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

Why should you?

This is not a correct characterization of the legislative history of this Statute.

I'm sure we can't dispose of it in two minutes.

I'm sure not. Thank you, Your Honor.

(Whereupon, the case in the above-entitled matter was submitted)