Adickes v. S. H. Kress & Co.

Mr. Justice Douglas,

dissenting in part.

I

The statutory words “under color of any statute, ordinance, regulation, custom, or usage, of any State,” 42 TJ. S. C. § 1983, are seriously emasculated by today’s ruling. Custom, it is said, must have “the force of law” ; and “law,” as I read the opinion, is used in the Hamiltonian sense. 1

*179 The Court requires state involvement in the enforcement of a “custom” before that “custom” can be actionable under 42 U. S. C. § 1983 . That means, according to the Court, that “custom” for the purposes of § 1983 “must have the force of law by virtue of the persistent practices of state officials.” That construction of § 1983 is, to borrow a phrase from the first Mr. Justice Harlan, “too narrow and artificial.” Civil Rights Cases, 109 U. S. 3, 26 (dissenting opinion).

Section 1983 by its terms protects all “rights” that are “secured by the Constitution and laws” of the United States. There is no more basic “right” than the exemption from discrimination on account of race — an exemption that stems not only from the Equal Protection Clause of the Fourteenth Amendment but also from the Thirteenth Amendment and from a myriad of “laws” enacted by Congress. And so far as § 1983 is concerned it is sufficient that the deprivation of that right be “under color” of “any . . . custom ... of any State.” The “custom” to be actionable must obviously reflect more than the prejudices of a few; it must reflect the dominant communal sentiment.

II

The “custom ... of any State” can of course include the predominant attitude backed by some direct or indirect sanctions inscribed in law books. Thus in Garner v. Louisiana, 368 U. S. 157 , another restaurant case involving racial discrimination, there was no state law or municipal ordinance that in terms required segregation of the races in restaurants. But segregation was basic to the structure of Louisiana as a community as revealed by a mosaic of laws. Id., at 179-181 (concurring opinion).

The same is true of Mississippi in the present case.

In 1964, at the time of the discrimination perpetrated in this case, there were numerous Mississippi laws that were designed to continue a regime of segregation of *180 the races. The state legislature had passed a resolution condemning this Court's Brown v. Board of Education decisions, 347 U. S. 483 , 349 U. S. 294 , as “unconstitutional” infringements on States' rights. Miss. Laws 1956, c. 466, Senate Concurrent Resolution No. 125. Part of the Mississippi program to perpetuate the segregated way of life was the State Sovereignty Commission, Miss. Code Ann. § 9028-31 et seg. (1956), of which the Governor was chairman and which was charged with the duty “to do and perform any and all acts and things deemed necessary and proper to protect the sovereignty of the State of Mississippi . . . from encroachment thereon by the Federal Government ....'' Id., § 9028-35. Miss. Code Ann. §4065.3 (1956) required “the entire executive branch of the government of the State of Mississippi ... to prohibit by any lawful, peaceful, and constitutional means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state, by any branch of the federal government . . . .” Every word and deed of a state officer, agent, or employee that was connected with maintaining segregated schools in Mississippi was deemed to be “the sovereign act . . . of the sovereign State of Mississippi.” Id., § 4065.4 (Supp. 1968). It was unlawful for a white student to attend any school of high school or lower level that was also attended by Negro students. Id., § 6220.5. Separate junior college districts were established for blacks and whites. Id., § 6475-14 (1952). The Ellisville State School for the feeble-minded was required to provide for separate maintenance of blacks and whites. Id., § 6766. The State Insane Hospital was required to keep the two races separate, id., § 6883, as was the South Mississippi Charity Hospital. Id., § 6927. Separate entrances were required to be maintained at state hos- *181 pitáis for black and white patients. Id., § 6973. It was the responsibility of those in authority to furnish a sufficient number of Negro nurses to attend Negro patients, but the Negro nurses were to be under the supervision of white supervisors. Id., § 6974. It was unlawful for Negro and white convicts to be confined or worked together. Id., § 7913 (1956). County sheriffs were required to maintain segregated rooms in the jails. Id., § 4259. It was unlawful for taxicab drivers to carry black and white passengers together. Id., § 3499. Railroad depots in cities of 3,000 or more inhabitants were required to have separate “closets” for blacks and whites. Id., § 7848. And it was a crime to overthrow the segregation laws of the State. Id., § 2056 (7).

The situation was thus similar to that which existed in Garner . Although there was no law that in terms required segregation of the races in restaurants, it was plain that the discrimination was perpetrated pursuant to a deeply entrenched custom in Louisiana that was “at least as powerful as any law.” Garner v. Louisiana, supra, at 181 (concurring opinion); cf. Robinson v. Florida, 378 U. S. 153, 156 .

Ill

The “custom ... of any State,” however, can be much more pervasive. It includes the unwritten commitment, stronger than ordinances, statutes, and regulations, by which men live and arrange their lives. Bronislaw Malinowski, the famed anthropologist, in speaking of the “cake of custom” of a Melanesian community “safeguarding life, property and personality” said: 2

“There is no religious sanction to these rules, no fear, superstitious or rational, enforces them, no *182 tribal punishment visits their breach, nor even the stigma of public opinion or moral blame. The forces which malee these rules binding we shall lay bare and find them not simple but clearly definable, not to be described by one word or one concept, but very real none the less. The binding forces of Melanesian civil law are to be found in the concatenation of the obligations, in the fact that they are arranged into chains of mutual services, a give and take extending over long periods of time and covering wide aspects of interest and activity. To this there is added the conspicuous and ceremonial manner in which most of the legal obligations have to be discharged. This binds people by an appeal to their vanity and self-regard, to their love of self-enhancement by display. Thus the binding force of these rules is due to the natural mental trend of self-interest, ambition and vanity, set into play by a special social mechanism into which the obligatory actions are framed.”

This concept of “custom” is, I think, universal and as relevant here as elsewhere. It makes apparent that our problem under 42 U. S. C. § 1983 does not make our sole aim the search for “state action” in the Hamiltonian sense of “law.”

That restricted kind of a search certainly is not compelled by grammar. “Of” is a word of many meanings, one of which indicates “the thing or person whence anything originates, comes, is acquired or sought.” 7 Oxford English Dictionary (definition III). The words “under color of any . . . custom ... of any State” do no more than describe the geographical area or political entity in which the “custom” originates and where it is found.

The philosophy of the Black Codes reached much further than the sanctions actually prescribed in them. Federal judges, who entered the early school desegrega *183 tion decrees, often felt the ostracism of the community, though the local “law” never even purported to place penalties on judges for doing such acts. Forty years ago in Washington, D. C., a black who was found after the sun set in the northwest section of the District on or above Chevy Chase Circle was arrested, though his only “crime” was waiting for a bus to take him home after caddying at a plush golf course in the environs. There was no “law” sanctioning such an arrest. It was done “under color” of a “custom” of the Nation’s Capital.

Harry Golden 3 recently wrote:

“Southerners drew a line and prohibited Negroes crossing it. They doomed themselves to a lifetime of guarding that line, fearing it would be breached. Because the white Southerner must forever watch that line, the Negro intrudes upon the white at every level of life.”

Is not the maintenance of that line by habit a “custom?”

Title 42 U. S. C. § 1983 was derived from § 1 of the “Ku Klux Klan Act” of 1871, 17 Stat. 13 . The “under color of” provisions of § 1 of the 1871 Act, in turn, were derived from § 2 of the Civil Rights Act of 1866, 14 Stat. 27 . The meaning of “under color of . . . custom” in the context of the 1866 Act is therefore relevant to the meaning of that phrase as it is used in § 1983, for, as the Court states, the “under color of” provisions mean the same thing for § 1983 as they do for 18 U. S. C. § 242 , the direct descendant of § 2 of the 1866 Act. 4 Ante, at 152 n. 7.

*184 A “custom” of the community or State was one of the targets of the Civil Rights Act of 1866. Section 1, which we upheld in Jones v. Alfred, H. Mayer Co., 392 U. S. 409 , provided a civil remedy for specified private acts of racial discrimination. Section 2 of that Act provided criminal sanctions for acts done “under color of any” custom of a State. A Congress that in 1866 was not bent only on “the nullification of racist laws,” id., at 429 , was not restricting itself strictly to state action; it was out to ban racial discrimination partly as respects private actions, partly under state law in the Hamiltonian sense, and partly under the color of “custom.”

Of course, § 2 of the 1866 Act did not cover purely private actions as did § 1 of the Act, and that was the point of our discussion of § 2 in Jones v. Alfred H. Mayer Co. But the Court does not come to grips with the fact that actions taken “under color of any . . . custom” were covered by § 2 of the 1866 Act quite apart from *185 actions taken under “color of any statute, ordinance, [or] regulation” — in other words, quite apart from actions taken under “color of law” in the traditional sense. Instead, the Court seems to divide all actions into two groups — those constituting “state action” and those constituting purely “private action” — with coverage of § 2 limited to the former. While § 2 did not reach “private violations,” it did reach discrimination based on “color of custom,” which is far beyond the realm of a mere private predilection or prejudice. And, despite the Court’s suggestion to the contrary, the use of the term “under color of law” by the Court in Jones v. Alfred H. Mayer Co. was merely a shorthand reference for all the “under color of” provisions in § 2 and had no relevance to the specific problem of defining the meaning of “under color of . . . custom.” 5

Section 2, like § 1, involved in Jones v. Alfred H. Mayer Co., was bottomed on the Thirteenth Amendment, for it was enacted before the Fourteenth Amendment was adopted. As we stated in Jones v. Alfred H. Mayer Co.:

“Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the *186 authority to translate that determination into effective legislation.” Id., at 440.

While the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment are each protective of the individual as against “state” action, the guarantees of the Thirteenth Amendment and various laws of the United States are not so restricted. And § 1983 protects not only Fourteenth Amendment rights, but “any rights ... secured by the Constitution and laws.” With regard to § 1983's scope of protection for violations of these rights, Congress in § 1983 aimed partly at “state” action and it was with that aspect of it that we were concerned in Monroe v. Pape, 365 U. S. 167 .

If the wrong done to the individual was under “color” of “custom” alone, the ingredients of the cause of action were satisfied. 6 The adoption of the Fourteenth Amend *187 ment expanded the substantive rights covered by § 1 of the 1871 Act vis-á-vis those covered by § 2 of the 1866 Act. But that expanded coverage did not make “state action” a necessary ingredient in all of the remedial provisions of § 1 of the 1871 Act. Neither all of § 1 of the 1871 Act nor all of its successor, § 1983, was intended to be conditioned by the need for “state” complicity.

Moreover, a majority of the Court held in United States v. Guest, 383 U. S. 745, 761, 774 , 782 and n. 6, that § 5 of the Fourteenth Amendment enables Congress to punish interferences with constitutional rights “whether or not state officers or others acting under the color of state law are implicated.” Id., at 782. There the statute involved ( 18 U. S. C. § 241 ) proscribed all conspiracies to impair any right “secured” by the Constitution. A majority agreed that in order for a conspiracy to qualify it need not involve any “state” action. By the same reasoning the “custom ... of any State” as used in § 1983 need not involve official state development, maintenance, or participation. The reach of § 1983 is constitutional rights, including those under the Fourteenth Amendment; and Congress rightfully was concerned with their full protection, whoever might be the instigator or offender.

To repeat, § 1983 was “one of the means whereby Congress exercised the power vested in it by § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment.” Monroe v. Pape, supra, at 171 . Yet powers exercised by Congress may stem from more than one constitutional source. McCulloch v. Maryland, 4 Wheat. 316, 421 ; Veazie Bank v. Fenno, 8 Wall. 533, 548-549 ; Edye v. Robertson, 112 U. S. 580, 595-596 ; United States v. Gettysburg Electric R. Co., 160 U. S. 668, 683 . Moreover, § 1983 protects “any rights” that are “secured” by “the Constitution and laws” *188 of the United States, which makes unmistakably clear that § 1983 does not cover, reach, protect, or secure only Fourteenth Amendment rights. The Thirteenth Amendment and its enabling legislation cover a wide range of “rights” designed to rid us of all the badges of slavery. And, as I have said, the phrase “under color of any . . . custom” derives from § 2 of the 1866 Act w 7 hich rested on the Thirteenth Amendment whose enforcement does not turn on “state action.” 7 The failure of the Court to come to face with those realities leads to the regressive decision announced today.

It is time we stopped being niggardly in construing civil rights legislation. It is time we kept up with Congress and construed its laws in the full amplitude needed to rid their enforcement of the lingering tolerance for racial discrimination that we sanction today.

The Federalist, No. 15:

“It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms.”

B. Malinowski, Crime and Custom in Savage Society 66-67 (1932).

Book Guide, Boston Sunday Herald Traveler, February 22, 1970, p. 2.

Section 2 of the 1866 Act, which we discussed in Jones v. Alfred H. Mayer Co., 392 U. S. 409 , 42A-426, made it a criminal offense for any person “under color of any law, statute, ordinance, regulation, or custom” to subject any inhabitant of “any State or Territory to the *184 deprivation of any right secured or protected by this act.” The direct descendant of § 2 is 18 U. S. C. § 242 , which, in an earlier form, was before the Court in United States v. Classic, 313 U. S. 299 , and Screws v. United States, 325 U. S. 91 . Section 242 provides:

“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both.” (Emphasis added.)

Section 1983 of 42 U. S. C. provides a civil remedy. It reads:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” (Emphasis added.)

The meaning of “under color of . . . custom” was not before the Court in Jones v. Aljred H. Mayer Co., and language from the Court’s opinion in that case, taken out of context, can be highly misleading. For example, the language quoted in n. 26 of the Court’s opinion in this case distinguished “private violations” covered by § 1 of the 1866 Act from “deprivations perpetrated ‘under color of law’ ” covered by § 2 of the Act. The Court here interprets that use of the phrase “under color of law” to exclude actions taken “under color of . . . custom” sans state action. A more realistic interpretation of the quoted language, however, is that “under color of law” was merely being used by the Court as a shorthand phrase for “under color of any statute, ordinance, regulation, custom, or usage, of any State,” and that the Court, without in any way addressing the question of the meaning of “custom,” was merely using the phrase to distinguish purely private violations.

The trial court restricted the evidence on custom to that which related to the specific practice of not serving white persons who were in the company of black persons in public restaurants. Such evidence was necessarily limited, as the Court points out, by the fact that it was only after the Civil Rights Act of 1964 went into effect that blacks could be served in “ ‘white’ restaurants” in Mississippi at all. Although I agree with my Brother Black that the evidence introduced under this narrow definition of custom, as outlined in his opinion, was sufficient to require a jury trial on that question, I also agree with the Court’s conclusion that the definition employed by the trial court was far too restrictive. Petitioner argued that the relevant custom was the custom against integration of the races, and that the refusal to serve a white person in the company of blacks was merely a specific manifestation of that custom. I think that petitioner’s definition of custom is the correct one. There is abundant evidence in the record of a custom of racial segregation in Mississippi, and in Hattiesburg in particular. In fact the trial judge conceded, “I certainly don’t dispute that it could be shown that there was a custom and usage of discrimination in the past. . . . It is certainly a way of life so far as the people in Mississippi were concerned.”

This case concerns only the meaning of “custom ... of any State” as those words are used in § 1983. It does not involve the question whether under certain circumstances “custom” can constitute state action for purposes of the Fourteenth Amendment. See Garner v. Louisiana, supra, at 178-179 (concurring opinion).