Held to a Lower Standard
It’s 1871, race tensions remain high, particularly in the south during reconstruction. The recently formed Ku Klux Klan began terrorizing freed slaves and their allies through assassination and intimidation. Klan groups spread to such an extent that president Grant signed multiple Enforcement Acts to provide new federal powers to target the Klan and eventually bring about its demise.
The Third Enforcement Act of 1871 remains relevant for today (Section 1983), as it explicitly provides legal redress against anyone who deprives another person of their rights. In other words, if your rights are deprived of you, you can sue whomever deprived you of those rights — including government officials.
This interpretation was held up in Supreme Court cases such as Monroe v. Pape in 1961, where Chicago police made a family of 8 “stand naked in the living room” while they “ransacked every room” to look for evidence, and arrested and detained the father for a murder investigation, all without a warrant. While the city of Chicago was not held liable, the officers themselves were.
This precedent provided some incentive to limit police abuse. Even if police were not held criminally for such actions, individuals could file claims against officers and receive compensation.
Unfortunately, it didn’t take long after Monroe v. Pape for the Supreme Court to effectively reverse its decision in two steps.
The first step came in the 1967 Pierson v. Ray case, which introduced the concept of “qualified immunity.” In this case, a group of clergymen— both blacks and whites — peacefully sat at a segregated bus station in Mississippi. The police claimed (contrary to eyewitness testimony) that their actions had incited an angry mob and thus they were arrested for breaching the peace. The clergymen sued under Section 1983, but the court found the police to be immune because the unconstitutional arrests were made under good faith.
The second step began in 1968, during LBJ’s presidency, when Ernest Fitzgerald testified before Congress regarding a $2.3 billion cost overrun and technical difficulties related to a Lockheed contract. Under the subsequent Nixon administration, Fitzgerald was fired during departmental reorganization. He sued Nixon claiming that he was fired as retaliation for whistle-blowing. The suit led to counter suits…