At the beginning of Reconstruction, a small band of Confederate veterans joined together and founded a fraternal organization they called the Ku Klux Klan, after the Greek word kuklos, or circle. The KKK quickly adopted racist attitudes and violent tactics, using extrajudicial killings to preserve the waning sentiments of white supremacy. Local branches of the KKK, along with other regional white supremacist organizations, like Louisiana’s Southern Cross and Knights of the White Camelia, began to foment rebellion against the Radical Republican Reconstruction governorships. In response to the rise of these groups, Congress passed three Enforcement Acts between 1870 and 1871. These acts enabled the federal government to tackle intrastate branches of the Klan directly; for example, the third Enforcement Act, known as the Second Enforcement Act of 1871 (second of that year, third in the series) and the Ku Klux Klan Act of 1871, allowed President Grant to suspend habeas corpus in the South and directly crush Southern white rebellions. As a result, the Klan fell apart in 1871 and made no serious concerted return until the early 20th century.
The Second Enforcement Act of 1871 had important implications on American jurisprudence and law. Noted radical U.S. Representative Benjamin Butler drafted the first section of the act, also known as the Civil Rights Act of 1871, to enact into law the Fourteenth Amendment’s Equal Protection Clause, which stated that any person within the territory of the United States was entitled to equal protection under the law. Though the Constitution is the law of the land, legislative statutes authorizing enforcement are required for the executive branch to enforce the text of the Constitution. During Prohibition, for example, the Volstead Act provided for the enforcement of the Eighteenth Amendment. The relevant section of the Civil Rights Act reads:
That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States...
Codified in Title 42 of the United States Code, section §1983, the Act essentially states that every citizen, regardless of race, has the ability to sue a public employee of their state for damages for violation of constitutional rights. There are no exceptions for the type of employee, nor for the constitutional rights that are allegedly violated. For about a hundred years after its passage, no major jurisprudence existed on the law. Eventually, the Supreme Court, in Monroe v. Pape (1961), began to clarify the four major criteria for bringing a §1983 claim against a state actor. The criteria for bringing a claim are: the personhood of the employee of the state, whether employee’s action falls under the phrase “color of law”, whether the employee really caused the violation of constitutional rights and whether the employee bypassed procedural due process when depriving the person of his or her constitutional rights.
The first criteria of §1983 has needed the most clarification from the Supreme Court. The clause states: “That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State…” The definition of personhood, as mentioned in the statute, seemed to be defined in the Dictionary Act passed two months earlier in February 1871. The Dictionary Act stated that "in all acts hereafter passed... the word 'person' may extend and be applied to bodies politic and corporate... unless the context shows that such words were intended to be used in a more limited sense..." While §1983 is widely accepted to include individuals, such as police officers and court secretaries, the Supreme Court has continually carved away exceptions in the law. In Monroe, the Court dismissed a suit against the City of Chicago for violating the Monroe family’s Fourth Amendment right to protection against unreasonable search and seizure. A later case, Monell v. Department of Social Services (1978), overturned Monroe’s precedent and held local governments to be people under §1983. Using the Eleventh Amendment and its previous case law, and breaking with Monell’s precedent, the Court held in Will v. Michigan Department of State Police (1989) that states and state officials, acting in their official capacities -- in this case, the commissioner of state police -- had sovereign immunity from suits. As the law stands, “person,” under §1983, includes municipalities, their officials and their employees—and, solely state employees but neither the state itself nor its officials (leaving a grey area between employees and officials). While “under the color of the law” clearly encompasses state employees, in West v. Atkins (1988) the Court decided that private actors acting in a state capacity—in this case, a private physician commissioned for work in a state prison hospital—fell under §1983 criteria.
The second clause of §1983, “...shall subject, or cause to be subjected any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States,” is mostly a matter of explanation. Persons can be held to cause a violation of constitutional rights if that person directly violates a right, such as a search without a warrant. Municipalities can also be sued for alleged violation of this criteria if their policy seems to foster deliberate indifference in the training of officers with respect to constitutional rights, according to City of Canton v. Harris (1989). The “deprivation of any rights” is the vehicle by which constitutional rights are guaranteed at the state level. The claimant bringing the suit must prove that the defendant has bypassed the Due Process Clause to deprive the claimant of a constitutional right.
The greatest issue with §1983 jurisprudence as it stands is the judicial extension of immunity to §1983, including both qualified and absolute immunity. As outlined in Harlow v. Fitzgerald (1982), qualified immunity shields government employees from suits as long as the employee's conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Absolute immunity, on the other hand, has nearly no bounds in preventing §1983 suits. It is applied to a more select group of state officials; courts have ruled that judges receive immunity from §1983 suits while performing their judicial duty, legislators while performing their legislative duty and prosecutors while performing their prosecutorial duty. The practice of extending qualified and absolute immunities to certain state employees and officials is legislating from the bench. This extension is directly contrary to the original text of the law and intent of the lawmakers. The law is abundantly clear and carves no exceptions to the statement that “any person” is liable to suit. According to the Constitutional Accountability Center, the intent of Congress at the time of the law’s passage was similarly focused:
...such arbitrary results were not at all what the Reconstruction Congress intended when it passed Section 1983 of the Civil Rights Act, which provides the cause of action used to hold officials liable for constitutional rights violations. There is nothing in the text or history of Section 1983 to support absolute immunity for prosecutors—to the contrary, the drafters of the Civil Rights Act were specifically concerned with wrongful prosecutions of African Americans and abolitionists in the Civil War period and intended Section 1983 to provide a remedy for abuse of prosecutorial power.
The establishment of qualified and absolute immunity jurisprudence has led to gross inequities in the justice system. In Imbler v. Pachtman (1976), the extension of immunity to prosecutors meant that a man sentenced to nine years in jail could not sue for damages the prosecutor who knowingly used perjured testimony and withheld exculpatory evidence from the trial. In Van De Kamp v. Goldstein (2009), a man who was sentenced to and served 24 years in jail could not sue the prosecution in his case for withholding information regarding a suspect witness from the defense. The witness in question was a jailhouse informant who received reduced sentences and benefits for helping convict people, a relationship which may have cast doubt upon his testimony. The relationship of §1983 to the justice system is vital in understanding the application of §1983 to contemporary society.
The path of judicial recourse through §1983 is increasingly important in light of increased awareness over police brutality issues; these often have a racial component. Tenets of police brutality, such as excessive force, racial slurs and usage of lethal force, are justiciable under §1983 because they are violations of the Fifth and Fourteenth Amendment’s Due Process Clause and the Fourteenth Amendment’s Equal Protection Clause. Police searches without warrants are also subject to §1983 suits under the Fourth Amendment. However, police officers may be able to claim qualified immunity if courts decide that it would be unreasonable for a police officer to know the constitutional right violated in the particular case. Police officers usually are not constitutional scholars, meaning that the vague standard in Harlow creates a large grey area. The Supreme Court is likely to rule in favor of police officers given their history of expanding immunity. In the event a municipality poorly trains its officers in constitutional standards, the municipality may become the subject of its own §1983 suit. However, it is likely the officers would escape their §1983 suit for their transgression against constitutional rights under the doctrine of qualified immunity, a clear distortion of justice.