The opinion
SNEED, Circuit Judge
(concurring):
I concur in the decision to reject the argument that municipal immunity exists with respect to actions to recover damages with respect to a cause of action based on racial discrimination in employment pursuant to 42 U.S.C. § 1981 .
I do this, however, unconvinced that Congress intended by its enactment of the 1866 Civil Rights Act to impose such liability. Like Mr. Justice Stevens, I believe section 1 of the Civil Rights Act of 1866 was “intended only to guarantee all citizens the same legal capacity to make and enforce contracts, to obtain, own and convey property, and to litigate and give evidence.” Runyon v. McCrary, 427 U.S. 160 , 96 S.Ct. 2586, 2603 , 49 L.Ed.2d 415 (1976) (Stevens, J., concurring). Moreover, I continue to find incomprehensible the assertion that Congress, which in the Civil Rights Act of 1871 refused to accept an amendment which would have made local governments liable to suit thereunder, intended in 1866 to impose on municipalities liability for damages for violations of the Civil Rights Act of that year. 1
*1164 These views, however, are no longer proper. The Supreme Court has made clear that section 1 of the Civil Rights Act of 1866 does more than assure that all citizens enjoy the same legal capacity. See Jones v. Alfred H. Mayer Co., 392 U.S. 409 , 88 S.Ct. 2186 , 20 L.Ed.2d 1189 (1968); Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431 , 93 S.Ct. 1090 , 35 L.Ed.2d 403 (1973); Johnson v. Railway Express Agency, 421 U.S. 454 , 95 S.Ct. 1716 , 44 L.Ed.2d 295 (1975); Runyon v. McCrary, 427 U.S. 160, 189, 96 S.Ct. 2586 , 49 L.Ed.2d 415 (1976) (Stevens, J., concurring). Specifically, the court has recognized that 42 U.S.C. § 1981 permits a suit against a private employer for discrimination in employment, Johnson v. Railway Express Agency, supra, and that damages are a proper remedy for impairment of rights protected by 42 U.S.C. § 1982 . See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 , 90 S.Ct. 400 , 24 L.Ed.2d 386 (1969). In view of these actions, and the Court’s view that 42 U.S.C. § 1981 implements both the Thirteenth and Fourteenth Amendments, 2 only the obtuse or clairvoyant would contend that the Supreme Court would hold, when specifically confronted with the issue, that 42 U.S.C. § 1981 recognizes municipal immunity. I cannot bring myself to accept the first characterization and the second exceeds my pretensions.
I, therefore, concur.
EUGENE A. WRIGHT, TRASK and WALLACE, Circuit Judges, join in this opinion.
. Perhaps the most relevant passage in Congressional debates bearing on the intent of Congress in 1866 regarding municipal liability is the following exchange involving Representative Wilson who undoubtedly had a thorough understanding of the statute because he was chairman of the committee which reported the statute to the House.
MR. LOAN: Mr. Speaker, I desire to ask the chairman who reported this bill, why the committee limit the provisions of the second section to those who act under the color of law. Why not let them apply to the whole community where the acts are committed? (Emphasis added.)
MR. WILSON: That grows out of the fact that there is discrimination in reference to civil rights under the local laws of the States. Therefore we provide that the persons who under the color of these local laws should do *1164 these things shall be liable to this punishment.
MR. LOAN: What penalty is imposed upon other than officers who inflict these wrongs on the citizen? (Emphasis added.)
MR. WILSON: We are not making a general criminal code for the States.
MR. LOAN: Why not abrogate those laws instead of inflicting penalties upon officers who execute writs under them?
MR. WILSON: A law without a sanction is of very little force.
MR. LOAN: Then why not put it in the bill’ directly?
MR. WILSON: That is what we are trying to do.
Cong. Globe, 39th Cong., 1st Sess. 1120, as reproduced in The Reconstruction Amendment Debates, published by the Virginia Commission on Constitutional Government, 1967.
Clearly this passage speaks to several issues. It is consistent, however, with the intention not to create municipal liability.
. See Runyon v. McCrary, supra 427 U.S. 160 at 198 , 96 S.Ct. 2586 , 2608 n. 8 (White, J., dissenting).