Amicus Curiae Brief — Janice Hughes Barnes, Individually and as Representative of the Estate of Ashtian Barnes, Deceased, Petitioner v. Roberto Felix, Jr., et al.

No. 23-1239

IN THE

Supreme Court of the United States

JANICE HUGHES BARNES, INDIVIDUALLY

AND AS REPRESENTATIVE OF THE ESTATE OF

ASHTIAN BARNES, DECEASED,

Petitioner,

v.

ROBERTO FELIX, JR., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF A PPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR AMICUS CURIAE THE

SOUTHERN POVERTY LAW CENTER IN

SUPPORT OF PETITIONER AND REVERSAL

KRISTA A. DOLAN

SOUTHERN POVERTY

LAW CENTER

P.O. Box 10788

Tallahassee, FL 32302

A RTHUR AGO

Counsel of Record

SOUTHERN POVERTY

LAW CENTER

1101 17th Street, NW,

Suite 550

Washington, DC 20036

(202) 961-9325

arthur.ago@splcenter.org

Attorneys for Amicus Curiae

334224

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iv

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . .1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . .1

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

I.

VIOLENCE AGAINST BLACK PEOPLE

MOTIVATED THE PASSAGE OF 42

U.S.C. § 1983, BUT THE STATUTE WAS

VIRTUA LLY UNUSED BET WEEN

1871 AND 1961. . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

a.

Congress Passed Reconstruction Era

Legislation, Including Section 1983,

After Congressional Hearings on Terror

Experienced by Black People in Former

Confederate States . . . . . . . . . . . . . . . . . . . . .4

i.

Congress heard testimony on police

violence against Black people . . . . . . . . .4

ii. Congress passed the Ku Klux Klan

Act of 1871 after congressional

h e a r i n g s o n K l a n v i ol e n c e

and the failure of the states

to protect Black people . . . . . . . . . . . . . .7

ii

Table of Contents

Page

b.

Section 1983 Litigation Was Limited

from 1871 to 1961 . . . . . . . . . . . . . . . . . . . . .11

c.

Between 1871 and 1961, People Acting

8QGHU&RORURI/DZ&RQWLQXHGWR,QÁLFW

Violence on Black People . . . . . . . . . . . . . . .14

i.

Black people suffered severe physical

violence in the form of lynchings . . . . .14

ii. There was an economic motivation

for police violence against Black

people. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

II. EVEN AFTER 1961, 42 U.S.C. § 1983

NEV ER REACHED I TS FU LL

POTENTIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

D 4XDOLÀHG ,PPXQLW\ /LPLWHG )HGHUDO

Court Access Under Section 1983. . . . . . . .21

b.

Monell Established Limited Municipal

Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

c.

Lyons Severely Limited Injunctive

Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

d.

The Moment-of-the-Threat Doctrine

Further Limits Section 1983 . . . . . . . . . . . .26

iii

Table of Contents

Page

III. THERE IS A N ONGOING RACIAL

J U S T IC E C R I S I S I N L AW

ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . .28

a.

Police Violence Persists . . . . . . . . . . . . . . . .28

b.

The Connection Between Policing and

Economics Persists . . . . . . . . . . . . . . . . . . . .32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Alsaada v. City of Columbus,

536 F. Supp. 3d 216 (S.D. Ohio 2021) . . . . . . . . . . . . . 17

Barnes v. Felix,

91 F.4th 393 (5th Cir. 2024) . . . . . . . . . . . . . . . . . . . . .32

%HOOY:ROÀVK

441 U.S. 520 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

%RZPDQY&KLFDJR 1:5\&R

115 U.S. 611 (1885) . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Brawner v. Irvin,

169 F. 964 (C.C.N.D. Ga. 1909) . . . . . . . . . . . . . . .12, 13

&LW\RI/RV$QJHOHVY/\RQV

461 U.S. 95 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

*UDKDPY&RQQRU

490 U.S. 386 (1989). . . . . . . . . . . . . . . . . . . . . . . . .26, 27

+DJXHY&RPPIRU,QGXV2UJ

307 U.S. 496 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

+DUORZY)LW]JHUDOG

457 U.S. 800 (1982). . . . . . . . . . . . . . . . . . . . . . . . 22, 24

+ROWY,QGLDQD0IJ&R

176 U.S. 68 (1900) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

v

Cited Authorities

Page

0RQHOOY'HS·WRI6RF6HUYVRI&LW\RI1HZ<RUN

436 U.S. 658 (1978). . . . . . . . . . . . . . . . . . . . . . . . . .2, 25

Monroe v. Pape,

365 U.S. 167 (1961) . . . . . . . . . . . 2, 11, 13, 19, 20, 21, 23

1L[RQY)LW]JHUDOG

457 U.S. 731 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Pierson v. Ray,

386 U.S. 547 (1967). . . . . . . . . . . . . . . . . . . . . . . . .21, 22

5RFKLQY&DOLIRUQLD

342 U.S. 165 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

State v. Soto,

734 A.2d 350 (N.J. Sup. Ct. 1996). . . . . . . . . . . . . . . .30

Tennessee v. Garner,

471 U.S. 1 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

7XFKPDQY:HOFK

42 F. 548 (C.C.D. Kan. 1890) . . . . . . . . . . . . . . . . . . . .12

United States v. Classic,

313 U.S. 299 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

United States v. Place,

462 U.S. 696 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . .27

vi

Cited Authorities

Page

:LONLQVY0DU\ODQG6WDWH3ROLFH

Civ. No. MJG-93-468 (D. Md. 1993) . . . . . . . . . . . . . .30

Statutes and Other Authorities

U.S. Const. Amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . .26

U.S. Const. Amend. XIII . . . . . . . . . . . . . . . . . . . . . . . . . .4

U.S. Const. Amend. XIV . . . . . . . . . . . . . . . 3, 4, 6, 20, 26

U.S. Const. Amend. XV . . . . . . . . . . . . . . . . . . . . . . . . . . .4

8 U.S.C. § 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

42 U.S.C. § 1983 . . . . . . . . . . . 1-4, 12, 13, 19, 20, 23, 27, 34

17 Stat. 13 § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 13, 35

S. Ct. Rule 37.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13. . . . . . . . .3, 7

Act of May 31, 1870, ch. 114, § 8, 16 Stat. 142. . . . . . . . . .6

St. John Barned-Smith, Eric Dexheimer, 6SHHGLQJ

LQ 7H[DV" +HUH·V ZKHUH SROLFH SXOOHG RYHU

WKH PRVW SHRSOH HOUSTON CHRONICLE, May

13, 2022, https://w w w.houstonchronicle.

com /new s / i nve st ig at ions /a r t icle /t e x a s speed-traps-16395228.php. . . . . . . . . . . . . . . . . . . . . .33

vii

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Robin D. Barnes, %OXHE\'D\DQG:KLWHE\ N

QLJKW 5HJXODWLQJ WKH 3ROLWLFDO $IÀOLDWLRQV RI

Law Enforcement and Military Personnel,

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Zamir Ben-Dan, Deeply Rooted in American History

DQG 7UDGLWLRQ 7KH 86 6XSUHPH &RXUW·V

$E\VPDO7UDFN5HFRUGRQ5DFLDO-XVWLFHDQG

Equity, 15 A LA. C.R. & C.L.L. REV. 45 (2024) . . . . .15

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7KH&DVHRIWKH.X.OX[.ODQLQV2NODKRPD,

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Larry Buchanan, et al., %ODFN/LYHV0DWWHU0D\

EHWKH/DUJHVW0RYHPHQWLQ86+LVWRU\, N.Y.

Times, July 3, 2020, https://www.nytimes.com/

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([HFXWRU\ ,QWHUHVW $Q $QDO\VLV RI WKH

3UHHPSWLRQDQG5HYRFDWLRQRI%ODFN3URSHUW\

5LJKWV, 12 S.J. Pol’y & Just. 205 (2018) . . . . . . . . . . .18

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JUSTICE DEFERRED: R ACE AND THE SUPREME

COURT 226 (2021). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

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'LVSDULWLHVLQ7UDIÀF(QIRUFHPHQWZLWK/DUJH

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THE SUPREME COURT EMPOWERED THE POLICE

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THEODORE EISENBERG, CIVIL RIGHTS LEGISLATION:

CASES AND MATERIALS 86 (2d ed. 1987) . . . . . . . .13, 19

Cong. Globe, 42d Cong., 1st Sess. 244 (1871) . . . . . .7, 8, 9

&LYLO5LJKWV$FW(PHUJHQFHRIDQ$GHTXDWH

Federal Civil Remedy?, 26 IND. L.J. 361 (1951) . . . .12

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&RQWDFWV %HWZHHQ 3ROLFH DQG WKH 3XEOLF ,

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(Oct 2024), https:// bjs.ojp.gov/document/

cbpp22.pdf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

Eric Dexheimer, 'ULYHUV SD\ IRU  FRQVWDEOHV

to patrol Sam Ho usto n Tollway, even

ZKHQ WKHUH·V OLWWOH URDG WR FRYHU, HOUSTON

C H R ON ., Ma rch 18 , 2 0 2 4 , https: // w w w.

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5DQGRPL]DWLRQDQGWKH)RXUWK$PHQGPHQW,

78 U. Chi. L. Rev. 80959 (201 . . . . . . . . . . . . . . . . . . .29

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EQUAL JUSTICE INITIATIVE, /\QFKLQJLQ$PHULFD

&RQIURQWLQJ WKH /HJDF\ RI 5DFLDO 7HUURU

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'DYLG+*DQV:H'R1RW:DQWWR%H+XQWHGµ

7KH5LJKWWR%H6HFXUHDQG2XU&RQVWLWXWLRQDO

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& L. 239 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

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3XEOLF 7RUWXUH /\QFKLQJV LQ 7ZHQWLHWK

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/HDVLQJ DQG WKH 7KLUWHHQWK $PHQGPHQW

A Re v i s i o ni s t Ac c o u n t, 9 4 N.Y.U. L .

Rev. 1465 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

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)LQLVK"7KH6ODYH3DWURODQG-LP&URZ2ULJLQV

 RI863ROLFLQJ, 46 Hum. Rts. 6 (2021) . . . . . . . . . . . 17

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Sher r ily n A . If ill, &UHDWLQJ $ 7U XWK DQG

5HFRQFLOLDWLRQ &RPPLVVLRQ IRU /\QFKLQJ,

21 LAW & INEQ. 263 (2003). . . . . . . . . . . . . . . . . . . . . .16

International Labor Defense Survey Reveals

)LI WHHQ /\QFKLQ JV LQ , N E W YOR K

A MSTERDAM NEWS (Feb. 22, 1941) . . . . . . . . . . . . . . . .16

David D. Kirkpatrick, et al., :K\ 0DQ\ 3ROLFH

7UDIÀF6WRSV7XUQ'HDGO\, N.Y. TIMES, Oct. 21,

2021, https://www.nytimes.com/2021/10/31/us/

 SROLFHWUDIÀFVWRSVNLOOLQJVKWPO . . . . . . . . . . . . . . . .31

0DSSLQJ 3ROLFH 9LROHQFH, A IRTA BLE , https://

a i r t a b l e . c o m / a p p zVz S e I N K 1 S 3 E V R /

shroOenW19l1m3w0H/tblxearKzw8W7ViN8

(last visited November 9, 2024) . . . . . . . . . . . . . . . . .30

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policeviolence.org/ (last visited November 9,

2024). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29

Mike McIntire & Michael H. Keller, 7KH'HPDQG

IRU0RQH\%HKLQG0DQ\3ROLFH7UDIÀF6WRSV,

N.Y. TIMES, Oct. 31, 2021, https://www.nytimes.

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Sheldon Nahmod, 6HFWLRQ'LVFRXUVH7KH0RYH

from Constitution to Tort, 77 Geo. L.J. 1719

(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

DAV ID M. O SHINSK Y, “WORSE THA N S LAV ERY ”:

PARCHMAN FARM AND THE ORDEAL OF JIM CROW

JUSTICE (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

Emma Pierson et al., $ /DUJHVFDOH $QDO\VLV RI

5DFLDO'LVSDULWLHVLQ3ROLFH6WRSV$FURVVWKH

United States, 4 NATURE HUMAN BEHAVIOUR

736 (2 0 2 0), https: //5ha rad.com /papers /

100M-stops.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

3RUWUDLWV LQ 2YHUVLJKW &RQJUHVV ,QYHVWLJDWHV

...9LROHQFH'XULQJ5HFRQVWUXFWLRQ, LEVIN

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Pub. L. 96-170, 93 Stat. 1284 (1979). . . . . . . . . . . . . . . . . .3

S. Rep. No. 42-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

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Harris County’s ‘contract deputies’ in the news?

HOUSTON CHRON., March 18, 2024, https://www.

houstonchronicle.com/news/investigations/

a r t i c l e /c o n s t a b l e - w h a t - i s - i t - h o u s t o n 18611636.php. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32

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JOANNA S CHWARTZ , SHIELDED: HOW THE POLICE

BECAME UNTOUCHABLE 75 (2023). . . . . . . . . . . . . 22, 24

Dan Sewell, &DVH $JDLQVW 2IILFHU :KR .LOOHG

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REV. 215 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

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0HDQLQJ +LVWRU\ DQG ,PSRUWDQFH RI WKH

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SD\PHQW SUREOHPV JRW OLWWOH UHOLHI IURP VWDWH

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 PLOOLRQ WUDIILF VWRSV DQG IRXQG EODFN

PRWRU LVWV DUH PRUH OLNHO\ WR EH SXOOHG

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Tiffany R. Wright et al., 7UXWKDQG5HFRQFLOLDWLRQ

7KH .X .OX[ .ODQ +HDULQJV RI  DQG

WKH *HQHVLV RI 6HFWLRQ , 126 Dick. L.

Rev. 685 (2022) . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11, 23

1

INTEREST OF AMICUS CURIAE

The Southern Poverty Law Center (“SPLC”)1 is a

QRQSURÀW F  FLYLOULJKWVRUJDQL]DWLRQDQGDFDWDO\VW

for racial justice in the South and beyond, working

in partnership with communities to dismantle white

supremacy, strengthen intersectional movements, and

advance the human rights of all people. SPLC aims to

reduce the incarcerated and detained population by

decriminalizing and decarcerating Black and Brown

people. SPLC has experience litigating 42 U.S.C. § 1983

cases and has served as counsel or amicus curiae before

the U.S. Supreme Court, federal appellate and district

courts, and state courts in its efforts to secure equal

treatment and opportunity for marginalized members of

society.

SUMMARY OF ARGUMENT

Petitioner Janice Hughes Barnes sought to hold

Respondent Roberto Felix, a Harris County constable,

accountable after he killed her son over unpaid tolls in

2016. Ms. Barnes sued Respondent under 42 U.S.C. § 1983

(“Section 1983”). But Ms. Barnes’ experience turned

LQWRWKDWRIWRRPDQ\SHRSOHVSHFLÀFDOO\WRRPDQ\%ODFN

people, who have sought a modicum of justice as victims

of police violence. A Texas federal district court dismissed

her case before she could present it to a jury, and the Fifth

&LUFXLWDIÀUPHGWKDWGLVPLVVDOXQGHULWVPRPHQWRIWKH

threat doctrine.

1. Pursuant to Rule 37.6, amicus curiae FHUWLÀHV WKDW QR

party or its counsel authored this brief in whole or in part or

made a monetary contribution intended to fund its preparation or

submission. Nor did any person other than amicus curiae make

such a monetary contribution.

2

The history of Section 1983 makes clear that this

doctrine should have no place in Section 1983 litigation.

Originally enacted as Section 1 of the Ku Klux Klan Act

of 1871, Section 1983 aimed to protect the constitutional

rights of emancipated Black people in the South. During

many congressional hearings between 1866 and 1871,

Congress took testimony from Black people about the

violence they experienced at the hands of those who sought

to preserve slavery and its vestiges, including violence

LQÁLFWHGE\SROLFHWKH.X.OX[.ODQDQGRWKHUVDFWLQJ

under color of law. This testimony formed the basis of and

reason for Section 1983.

)RULWVÀUVWQLQHW\\HDUV6HFWLRQZDVLQIUHTXHQWO\

used and, during this time, Black people in the South

suffered continued violence at the hands of those acting

under color of law. Federal courts struggled with whether

they had jurisdiction in a variety of Section 1983 cases.

The few Section 1983 cases from this period more often

concerned economic disputes than the suffering of Black

people under state sponsored violence—suffering like

being placed on chain gangs, lynched, or subjected to

convict leasing. Courts in this way lost sight of Section

1983’s objective for close to a century.

It was not until 1961 in Monroe v. Pape did the

Court recognize Section 1983’s true purpose. 365 U.S.

167 (1961), overruled by Monell v. Dep’t of Soc. Servs. of

&LW\RI1HZ<RUN, 436 U.S. 658 (1978). Yet, the promise of

Section 1983 was short-lived, and the Court soon limited

LWV UHDFK 'RFWULQHV OLNH TXDOLÀHG LPPXQLW\ PXQLFLSDO

liability, and injunctive relief in police violence cases have

hamstrung Section 1983. The result is evident: continued

police brutality, disproportionately felt by Black people,

3

IRUZKLFKYLFWLPVFDQÀQGQRIHGHUDOFRXUWUHPHG\7KH

moment-of-the-threat doctrine is yet another limitation

on Section 1983—one never legislated or intended by

Congress, and one that contradicts the Court’s precedent.

The Court should reverse the Fifth Circuit to preserve

what protections remain of Section 1983.

ARGUMENT

I.

V IO L E NC E AG A I N S T BL AC K PE O PL E

MOTIVATED THE PASSAGE OF 42 U.S.C. § 1983,

BUT THE STATUTE WAS VIRTUALLY UNUSED

BETWEEN 1871 AND 1961.

The roots of 42 U.S.C. § 1983 lie in Emancipation and

Reconstruction. Section 1983 was originally enacted as

Section 1 of the Ku Klux Klan Act of 1871 (“the Act”),

formally titled “An Act to enforce the Provisions of

the Fourteenth Amendment to the Constitution of the

United States, and for other Purposes.” 2 The statute was

UHFRGLÀHGDV5HY6WDW†  DJDLQDV86&

†  DQGÀQDOO\DV86&†   3 Though

6HFWLRQ  KDV EHHQ PRGLÀHG VOLJKWO\ VLQFH 4 its

purpose has remained the same for over 150 years: to

establish liability for any person who, under color of law,

“subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

2. Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13.

3. Unless otherwise articulated, amicus curiae uses “Section

1983” to refer to all versions of the statute.

4. (J Pub. L. 96-170, 93 Stat. 1284 (1979) (amending § 1983

to include the District of Columbia).

4

thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws.”5

Section 1983’s lofty goal was the result of Congress’s

thorough investigation of the violence suffered by

Black people in the South before and immediately after

(PDQFLSDWLRQ 2YHU WKH FRXUVH RI ÀYH \HDUV &RQJUHVV

heard compelling testimony about the Black experience,

and this testimony became the basis for all Reconstruction

Era legislation, including Section 1983. But in the ninety

years after its passage, federal courts did not follow

Congress’s intent or the legislative history of Section

1983. The statute went effectively unused, and during

this time the endemic violence against Black people in

the South persisted.

a.

Cong r e s s Pa s s e d R e c on st r uc tion Er a

Legislation, Including Section 1983, After

Congressional Hearings on Terror Experienced

by Black People in Former Confederate States.

i.

Congress heard testimony on police

violence against Black people.

Section 1983’s legislative history should be examined

in the context of the legislative histories of all major

Reconstruction Era laws. Between 1865 and 1870,

Congress ratified the Thirteenth, Fourteenth, and

Fifteenth Amendments, extending legal protections

to formerly enslaved people. Congress passed these

amendments against the backdrop of unrest in the South.

5. 42 U.S.C. § 1983.

5

In 1866, through a Joint Committee on Reconstruction,

Congress investigated conditions in the South. 6 The

committee heard testimony about violence, including

violence at the hands of law enforcement. It considered

descriptions of policemen who took “negroes, tied them

up by the thumbs, and whipped them unmercifully.” 7

Congress heard about a police sergeant who “brutally

wounded a freedman,” who was in his custody with his

arms tied, “by striking him on the head with his gun.”8

On the same day, this same sergeant whipped another

freedman so severely that “from his neck to his hips

his back was one mash of gashes.”9 In New Orleans, an

RIÀFHU ´ZHQW XS DQG GRZQ WKH VWUHHW NQRFNLQJ LQ WKH

head every negro man, woman, and child that he met.”10

Besides direct violence, the committee heard accounts

of law enforcement’s failure to intervene: “I state these

facts to show that the citizens will not take any steps to

arrest the murderers of negroes, and that you cannot

trust even the police organized under military orders

to do that work.”11 This testimony informed Congress’s

6. David H. Gans, ´:H 'R 1RW :DQW WR %H +XQWHGµ 7KH

5LJKW WR %H 6HFXUH DQG 2XU &RQVWLWXWLRQDO 6WRU\ RI 5DFH DQG

3ROLFLQJ, 11 COLUM. J. RACE & L. 239, 275 (2021).

7. Report of the Joint Committee on Reconstruction, H.R.

Rep. 39-30, pt. 2, at 185 (1866). See also Due Process Institute et

al. Cert.-Stage Amicus Br. 16-17.

8. Report of the Joint Committee on Reconstruction, H.R.

Rep. 39-30, pt. 2, at 209 (1866).

9. Id.

10. Id. pt. 4, at 80.

11. Id. pt. 2, at 185.

6

drafting of the Fourteenth Amendment12 as well as the

First Enforcement Act in 1870.13

Yet Congress’s investigative work did not end in

1870. To better ascertain the extent of racial violence

in the South, the Senate formed a Select Committee to

“Investigate Alleged Outrages in the Southern States.” As

a result of this investigation, Congress amended the First

Enforcement Act by passing the Second Enforcement Act

in February 1871.14 A few weeks later, the select committee

released its report in March 1871.15

Congress was not the only branch of government

concerned with conditions in the South. While Congress

took testimony, President Ulysses S. Grant urged it to

pass legislation to address these conditions:

A condition of affairs now exists in some States

of the Union rendering life and property

insecure and the carrying of the mails and the

collection of the revenue dangerous. . . . That

the power to correct these evils is beyond the

control of State authorities I do not doubt;

that the power of the Executive of the United

12. Gans, supra note 6, at 275.

13. Act of May 31, 1870, ch. 114, § 8, 16 Stat. 142.

14. Eliza Sweren-Becker & Michael Waldman, 7KH0HDQLQJ

+LVWRU\DQG,PSRUWDQFHRIWKH(OHFWLRQV&ODXVH, 96 WASH. L. REV.

997, 1044 (2021) (noting that Second Enforcement Act established

federal election administration, among other amendments).

15. Report on the Alleged Outrages in the Southern States,

S. Rep. No. 42-1 (1871).

7

States, acting within the limits of existing laws

LV LQVXIÀFLHQW IRU SUHVHQW HPHUJHQFLHV LV QRW

clear. Therefore, I urgently recommend such

legislation as in the judgment of Congress shall

effectually secure life, liberty, and property,

and the enforcement of law in all parts of the

United States. . . . There is no other subject

upon which I would recommend legislation

during the present session.16

President Grant’s exhortation coupled with the testimony

taken by the two committees ultimately led to Section

1983.

ii.

Congress passed the Ku Klux Klan Act of

1871 after congressional hearings on Klan

violence and the failure of the states to

protect Black people.

On Ma rch 2 8 , 1871, Represent at ive Sa mua l

6KHOODEDUJHU LQWURGXFHG WKH ÀUVW LWHUDWLRQ RI WKH .X

Klux Klan Act of 1871.17 Section 1 of the Act, which would

eventually become Section 1983, provided that any person

acting “under color of law” who deprived any person of

their constitutional rights would be liable in the United

States courts.18 Representative Shellabarger explained

that Congress had both the power and responsibility to

enact Section 1:

16. Cong. Globe, 42d Cong., 1st Sess. 244 (1871).

17. Id. at 317.

18. Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13.

8

[T]here can be no rational doubt, of the right

WRHQDFWWKHÀUVWVHFWLRQRIWKLVELOO7RVD\

in our Constitution that all our people in the

States shall be United States citizens . . . and

in it to say that State laws shall not be made

or enforced to abridge these rights of United

States citizens nor the States deny protection

of these rights under law, and that Congress

may enforce these provisions securing these

rights, and then to say that Congress can do

no such thing as to make any law so enforcing

these rights, nor open the United States courts

to enforce any such laws, but must leave all the

protection and law-making to the very States

which are denying the protection, is plainly and

grossly absurd.19

Representative Shellabarger thus echoed President

Grant’s expression of exigency in asking Congress to

pass the bill.

During debate on the bill, Congress acknowledged the

ÀQGLQJVRIWKH6HOHFW6HQDWHFRPPLWWHHUHSRUWQRWLQJWKDW

the evidence established the Ku Klux Klan’s “object was

the overthrow of the reconstruction policy of Congress

and the disfranchisement of the negro.”20 Representatives

noted that the Klan carried out violence against Black

people with impunity:

People of the South are murdered morning,

noon, and night . . . . The whole South . . . is

19. Cong. Globe, 42d Cong., 1st Sess. App. 68 (1871).

20. Cong. Globe, 42d Cong., 1st Sess. 320 (1871).

9

rapidly drifting into a state of anarchy and

bloodshed, which renders the worst Government

on the face of the earth respectable by way

of comparison. There is no security for life,

person, or property. The State authorities and

local courts are unable or unwilling to check

the evil or punish the criminals. 21

One representative found the details of the investigation

to be “absolutely shocking,” 22 and another suggested the

violence was worse than documented. “Anywhere and

everywhere a judicial investigation has been had, has it

not corroborated, has it not sustained the assertion? Has it

QRWDIÀUPHGWKHH[LVWHQFHRIWKHVHRXWUDJHV"$\VLULWKDV

gone far beyond what the papers have stated.” 23 Debate

over the bill lasted slightly more than two weeks and,

E\SDVVLQJ6HFWLRQ&RQJUHVVDIÀUPHGWKHIHGHUDO

JRYHUQPHQW·V ´SRZHU WR LQWHUFHGH ZKHQ VWDWH RIÀFLDOV

violated the federal constitution.” 24

3UHVLGHQW*UDQWUDWLÀHGWKHELOORQ$SULO 25

but Congress’s investigative work was not finished.

Shortly after its signing, and in recognition of the need

to further examine the Ku Klux Klan, Congress formed

21. Id. at 321.

22. Id. at 270.

23. Id. at 180-81.

24. Tiffany R. Wright et al., 7UXWKDQG5HFRQFLOLDWLRQ7KH

.X.OX[.ODQ+HDULQJVRIDQGWKH*HQHVLVRI6HFWLRQ,

126 DICK. L. REV. 685, 686 (2022).

25. Cong. Globe, 42d Cong., 1st Sess. 838 (1871).

10

a Joint Select Committee to “inquire into the condition

of the late insurrectionary States.” Over eight months,

the committee held the “Ku Klux Klan hearings,” taking

testimony from 586 witnesses that resulted in more than

8,000 transcribed pages bound into thirteen volumes.26 The

hearings were one of the “most extensive congressional

investigations in American history and remain the federal

government’s closest attempt to impanel a post-slavery

truth and reconciliation commission.” 27

The testimony recounted familiar instances of violence

outlined in both the reports of the Joint Committee on

Reconstruction and the Senate Select Committee to

Investigate the Alleged Outrages. The witnesses revealed

common themes: “The details differed, but the general

stories were sickeningly similar: White terrorists—

sometimes high-placed members of Southern society—

violently raped, murdered, and assaulted Black people

without reproach from state governments.” 28 Those who

WHVWLÀHGGLGVRDWJUHDWULVNRIUHWDOLDWLRQDQGUHFRXQWHG

gruesome, personal details of the violence against them—

including sexual assault, torture, and murder. 29

Though the hearings took place after the Act’s

passage, they covered the violence that preceded it. By

26. 3RUWUDLWV LQ 2YHUVLJKW &RQJUHVV ,QYHVWLJDWHV ...

9LROHQFH 'XULQJ 5HFRQVWUXFWLRQ, LEVIN CENTER, https://www.

levin-center.org/congress-investigates-kkk-violence-duringreconstruction/; see also Wright et al., supra note 24, at 704-05.

27. Wright et al., supra note 24, at 691–92.

28. Id. at 705.

29. Id. at 705-06.

11

the end of 1867, there were about 550,000 Ku Klux Klan

members in the South. By 1868, the Klan had a presence in

every former Confederate state and Kentucky. 30 Between

1866 and mid-1867, the Klan murdered 197 people and

committed 548 aggravated assaults in just two states. 31

In passing Section 1983, Congress provided a remedy

not just against Klan members themselves, but “against

those who representing a State in some capacity were

unable or unwilling to enforce a state law.”32 The decision

to expand the remedy beyond just Klan members “was

undoubtedly informed by evidence linking [them] to state

law enforcement or when Klansmen acted without fear of

state prosecution.” 33

b.

Section 1983 Litigation Was Limited from 1871

to 1961.

In federal courts, Congress’s intent to remedy the

YLROHQFHLQÁLFWHGRQ%ODFNSHRSOHWKURXJK6HFWLRQ

was not realized for close to a century. There was no

notable reliance on Section 1983 as a litigation tool; to the

FRQWUDU\ OLWLJDQWV UDUHO\ XVHG 6HFWLRQ  LQ WKH ÀUVW

ninety years of its existence. It was not until after 1961,

when the Court decided Monroe did the legal landscape

of Section 1983 change. 365 U.S. at 167.

30. Id. at 709.

31. Id. at 710.

32. Id. at 711 (quoting Monroe, 365 U.S. at 175-76).

33. Wright, et al., supra note 24, at 711–12.

12

Between 1871 and 1920, appellate courts decided

only twenty-one Section 1983 cases. 34 Many of those

cases revolved around economic and property rights and

QRW SROLFH YLROHQFH LQÁLFWHG RQ %ODFN SHRSOH 6HH HJ

%RZPDQY&KLFDJR 1:5\&R., 115 U.S. 611 (1885)

(considering dispute over railway company’s refusal to

transport goods); +ROWY,QGLDQD0IJ&R., 176 U.S. 68

(1900) (considering dispute over personal income tax); and

7XFKPDQY:HOFK, 42 F. 548 (C.C.D. Kan. 1890) (deciding

dispute over sale of alcohol). In the non-economic contexts,

plaintiffs used Section 1983 to challenge infringements

on other constitutional rights. 6HHHJ+DJXHY&RPP

IRU,QGXV2UJ., 307 U.S. 496 (1939) (examining alleged

violations of freedom of speech and assembly). Many of

these early cases examined the question of what were

the “rights, privileges, or immunities secured by the

Constitution,” 35 and thus struggled with whether there

was federal jurisdiction in various Section 1983 cases.

In the rare instances plaintiffs used Section 1983 to

pursue remedies for police abuse, courts similarly declined

to reach the merits. Brawner v. Irvin, 169 F. 964 (C.C.N.D.

Ga. 1909), is illustrative. There, a Black woman alleged

a Georgia police chief arrested her and “maliciously and

cruelly assaulted and beat her with a whip, cutting her

ÁHVK LQ VFDUV FDXVLQJ KHU PXFK SDLQ DQG VXIIHULQJ DOO

without fault on her part.” Id. at 965. The federal court

refused to allow the woman’s case to proceed under Section

1983, holding that it did not have jurisdiction because “[i]

t does not appear from the declaration in this case that

34. See &LYLO5LJKWV$FW(PHUJHQFHRIDQ$GHTXDWH)HGHUDO

Civil Remedy? 26 IND. L.J. 361, 363-64 (1951).

35. 17 Stat. 13; 42 U.S.C. § 1983.

13

the defendant has deprived the plaintiff of any rights,

privileges, or immunities secured by the Constitution and

laws of the United States.” Id. at 966.

To this extent, Section 1983 litigation strayed from

LWV OHJLVODWLYH URRWV VSHFLÀFDOO\ WKH WHVWLPRQ\ RI %ODFN

southerners that compelled Congress to pass the statute.

This testimony was the reason Congress passed Section

1983, explicitly establishing federal jurisdiction in cases

where police and others acting under color of state law

harmed Black people. 36 Courts considering Section 1983

cases immediately lost sight of this.

Because federal courts struggled with whether police

abuse violated a Black person’s federal rights, the number

of cases brought under Section 1983 remained low for its

ÀUVW QLQHW\ \HDUV ´>$@V UHFHQWO\ DV  LQ WKH HQWLUH

country, only 287 civil rights suits against state and local

JRYHUQPHQWVDQGWKHLURIÀFHUVZHUHÀOHGLQRUUHPRYHG

to, federal court.” 37 All that changed with this Court’s

decision in Monroe, but until then, violence against Black

people remained pervasive.

36. 17 Stat. 13 § 1 (1871) (“[A]ny action [under this act] …

to be prosecuted in the several district or circuit courts of the

United States.”).

37. ERW IN C HEMERINSK Y, P RESUMED G UILT Y : HOW THE

SUPREME COURT EMPOWERED THE POLICE AND SUBVERTED CIVIL

RIGHTS 133 (2021) (citing T HEODORE EISENBERG, CIVIL RIGHTS

LEGISLATION: CASES AND M ATERIALS 86 (2d ed. 1987)).

14

c.

Between 1871 and 1961, People Acting Under

&RORURI/DZ&RQWLQXHGWR,QÁLFW9LROHQFHRQ

Black People.

i.

Black people suffered severe physical

violence in the form of lynchings.

Without access to federal courts under Section

1983, Black people who experienced violence at the

hands of those acting under color of law were unable

to seek remedies between 1871 and 1961. State court

doors remained locked to them, 38 and law enforcement

was either ineffectual against or complicit in the abuses

LQÁLFWHGRQWKHP7KHSUREOHPRIODFNRIUHPHGLHVZDV

not just theoretical. Those ninety years witnessed some

RIWKHZRUVWUDFHEDVHGYLROHQFHVSHFLÀFDOO\LQWKHIRUP

of lynchings, in the nation’s history.

Lynching predated Emancipation and was not

geographically bound. 39 But by the 1870s, when the

number of lynchings dropped in most of the country, the

“exception to this national trend was the Southern states,

where rates increased rather than decreased. These

divergent trends continued, so that by 1890 the institution

38. See Theodore Eisenberg, 6HFWLRQ  'RFWULQDO

Foundations and an Empirical Study, 67 CORNELL L. REV. 482,

485 (1982) (discussing states’ “inability or unwillingness to deal

with Klan” violence).

39. David Garland, 3HQDO ([FHVV DQG 6XUSOXV 0HDQLQJ

3XEOLF 7RUWXUH /\QFKLQJV LQ 7ZHQWLHWK&HQWXU\ $PHULFD, 39

LAW & SOC’Y REV. 793, 801 (2005) (“Up until the last decades of the

nineteenth century, American lynchings were typically instances

of vigilante justice occurring in frontier areas, with a geographical

spread that included western, northern, and southern states.”)

15

of lynching had become a predominantly Southern one,

and its victims overwhelmingly black.”40 Between 1889

and 1929, a Black person was lynched every four days.41

The Equal Justice Initiative documented “4,084 racial

terror lynchings in twelve Southern states between the

end of Reconstruction in 1877 and 1950.”42 And there can

be no doubt that lynching was race-based: between 1882

and 1889, the ratio of Black lynching victims to white

lynching victims was four to one; between 1890 and 1900,

it was more than six to one; and after 1900, it was more

than seventeen to one.43

The act of lynching was vigilante justice —an

extrajudicial killing for suspected crimes. Nearly 25% of

lynching victims were accused of sexual assault, nearly

30% were accused of murder, and “[h]undreds more Black

people were lynched based on accusations of far less

serious crimes like arson, robbery, non-sexual assault, and

vagrancy, many of which were not punishable by death if

convicted in a court of law.”44 Suspicion of a crime was by

no means required, and white people too often killed Black

40. Id. (citations omitted).

41. Zamir Ben-Dan, Deeply Rooted in American History

DQG7UDGLWLRQ7KH866XSUHPH&RXUW·V$E\VPDO7UDFN5HFRUG

RQ 5DFLDO -XVWLFH DQG (TXLW\, 15 A LA . C.R. & C.L.L. REV. 45,

88–89 (2024).

42. E QUA L JUSTICE I NITIATI V E , /\QFKLQJ LQ $PHULFD

&RQIURQWLQJWKH/HJDF\RI5DFLDO7HUURU 4 (3d ed. 2017), https://

eji.org/wp-content/uploads/2005/11/lynching-in-america-3ded-110121.pdf.

43. Id. at 27.

44. Id. at 29.

16

people simply for a perceived lack of respect, including

for a perceived lack of respect for the police themselves.45

Law enforcement too frequently either ignored,

supported, or participated in lynchings. To be sure, there

ZHUH SROLFH RIÀFHUV ZKR ´UHVLVWHG WKH HIIRUWV RI O\QFK

mobs and vigorously protected black suspects held in

their custody,” sometimes placing themselves in danger.46

But the police often did not interfere with lynchers and,

after a person was lynched, refused to participate in

their prosecution.47 For example, in Oklahoma, “[i]n many

LQVWDQFHVODZHQIRUFHPHQWRIÀFHUVZRUNHGLQFRQMXQFWLRQ

with Klan members, and often they were Klan members.

That cooperation between law enforcement and the Klan

most frequently took the form of administering extralegal punishments . . . .”48 Across the nation, the Klan

´LQÁLFWHGµ WKHLU ´DWURFLWLHV ZLWK LPSXQLW\ EHFDXVH

MXGJHV SROLWLFLDQV DQG ODZ HQIRUFHPHQW RIÀFHUV ZHUH

fellow Klansmen and loyal sympathizers.”49 At the

45.  (J., International Labor Defense Survey Reveals

)LIWHHQ /\QFKLQJV LQ , NEW YORK A MSTERDAM NEWS , p. 8

(Feb. 22, 1941) (describing killing of Black teenager in Alabama

IRUSHUFHLYHGGLVUHVSHFWWRZDUGZKLWHSROLFHRIÀFHUV 

 6KHUULO\Q$,ÀOO&UHDWLQJ$7UXWKDQG5HFRQFLOLDWLRQ

&RPPLVVLRQIRU/\QFKLQJ, 21 LAW & INEQ. 263, 299–300 (2003).

47. Id. at 300.

48. Alfred L. Brophy, 1RUPV /DZ DQG 5HSDUDWLRQV

7KH &DVH RI WKH .X .OX[ .ODQ LQ V 2NODKRPD, 20 H ARV.

BLACK LETTER L.J. 17, 31 (2004).

49. Robin D. Barnes, %OXHE\'D\DQG:KLWHE\ N QLJKW

5HJXODWLQJ WKH 3ROLWLFDO $IÀOLDWLRQV RI /DZ (QIRUFHPHQW DQG

Military Personnel, 81 IOWA L. REV. 1079, 1099 (1996).

17

beginning of the twentieth century, Klan “violence and

terrorist activities were all but openly endorsed by many

JRYHUQPHQWRIÀFLDOVµLQFOXGLQJODZHQIRUFHPHQW50

ii.

There was an economic motivation for

police violence against Black people.

The violent exploitation of Black labor during slavery

continued after Emancipation. Before Emancipation,

formal policing in the South took its early form in slave

patrols. The role of slave patrols was to chase down and

apprehend enslaved people, to spread “organized terror”

to deter revolts, and to discipline enslaved workers.

Alsaada v. City of Columbus, 536 F. Supp. 3d 216, 227

(S.D. Ohio 2021) (citations omitted).

By the end of the [18th] century, every slave

state had slave patrols. . . . [They] were a

‘government-sponsored force [of about 10

people] that was well organized and paid to

SDWURO VSHFLÀF DUHDV WR SUHYHQW FULPHV DQG

insurrection by slaves against the white

community’ in the antebellum South. . . . After

the Civil War ended, the slave patrols developed

into southern police departments.”51

Because slave patrols were arms of the state, the violence

and terror they inflicted on Black people was state

sponsored.

50. Id.

51. Connie Hassett-Walker, +RZ<RX6WDUW,V+RZ<RX)LQLVK"

7KH6ODYH3DWURODQG-LP&URZ2ULJLQVRI863ROLFLQJ, 46 HUM.

RTS. 6, 6-7 (2021).

18

After Emancipation, Southern policing continued its

connection to the violent economic exploitation of Black

people through chain gangs and convict leasing. “In a

region where dark skin and forced labor went hand in

hand, leasing would become a functional replacement

for slavery, a human bridge between the Old South and

the New.”52 State governments, assisted by police, forced

Black people convicted of crimes onto chain gangs they

controlled, or leased them to private entities for forced

labor. 53 Chain gangs and convict leasing, under conditions

as severe as slavery, rebuilt southern roads, prisons, and

plantations destroyed during the Civil War.54 After the

war, “essentially free black labor was safely returned to its

place at the foundation of state revenue and infrastructure

development for southern states like Alabama, Georgia,

North Carolina, Florida, South Carolina, and Louisiana.”55

Because of courts’ restrictive view of Section 1983

from 1871 to 1961, the remedies that should have been

provided to Black people in federal court were unavailable.

And although Black people continued to disproportionately

suffer violence at the hands of those acting under color

of law, the doors of federal courts opened—albeit never

fully—after 1961.

52. DAVID M. OSHINSKY, “WORSE THAN SLAVERY ”: PARCHMAN

FARM AND THE ORDEAL OF JIM CROW JUSTICE 57 (1996).

53. Shaytonna V. Bullock, Fee Simple Subject to Executory

,QWHUHVW$Q$QDO\VLVRIWKH3UHHPSWLRQDQG5HYRFDWLRQRI%ODFN

3URSHUW\5LJKWV, 12 S.J. POL’Y & JUST. 205, 216 (2018).

54. Id.; James Gray Pope, Mass Incarceration, Convict

/HDVLQJDQGWKH7KLUWHHQWK$PHQGPHQW$5HYLVLRQLVW$FFRXQW,

94 N.Y.U. L. Rev. 1465, 1501-03 (2019).

55. Bullock, supra note 53, at 213.

19

II. EVEN AFTER 1961, 42 U.S.C. § 1983 NEVER

REACHED ITS FULL POTENTIAL.

In 1961, the Court finally established that police

abuse was actionable in federal court under Section 1983.

Before 1961, Section 1983 jurisprudence was frequently

concerned with whether certain rights, privileges, or

immunities were covered by the statute, and therefore

whether federal courts had jurisdiction to hear Section

1983 cases. 56 That changed with Monroe. 365 U.S. at

167. After 1961, the number of civil rights lawsuits grew

H[SRQHQWLDOO\ 0RUH WKDQ  ODZVXLWV ZHUH ÀOHG LQ

1977, more than 36,000 in 1985, more than 57,000 in 1995,

and more than 60,000 in 2019. 57

Monroe ushered in a new era of Section 1983 litigation

by shifting focus away from examining “rights, privileges,

RULPPXQLWLHVµDQGWRZDUGWKHGHÀQLWLRQRI´XQGHUFRORU

of law.” Until 1961, the Supreme Court “had always

assumed that ‘under color of law’ was limited essentially

to the small number of cases where a state law itself was

unconstitutional.”58 But the Court in Monroe held that “[m]

isuse of power, possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the

authority of state law, is action taken ‘under color of’ state

law.’” 365 U.S. at 184 (quoting United States v. Classic,

313 U.S. 299, 326 (1941)).

56. See supra Section I.b.

57. Chemerinsky, supra note 37, at 133 (citing A DMINISTRATIVE

OFFICE OF U.S. COURTS, A NNUAL REPORT OF THE DIRECTOR (2019)).

58. OLIVER VERNON BUTLER AND A RMAND DERFNER, JUSTICE

DEFERRED: RACE AND THE SUPREME COURT 226 (2021).

20

In Monroe, the Court recognized “Congress has the

power to enforce provisions of the Fourteenth Amendment

against those who carry a badge of authority of a State

and represent it in some capacity, whether they act in

accordance with their authority or misuse it.” 365 U.S. at

171–72. The Court thus “gave life to § 1983 in holding that

§ 1983 provides a remedy for persons deprived of their

)RXUWHHQWK$PHQGPHQWULJKWVE\DVWDWHRIÀFLDO·VDEXVH

of his position.”59 Monroe opened the federal courthouse

GRRUVWRWKRVHZKRVRXJKWWRVXHVWDWHRIÀFLDOVOLNHWKH

police for violations of state law under the Fourteenth

Amendment. 365 U.S. at 187.

But beg inning just si x years after the Court

recognized that the scope of Section 1983 covered state

police abuse, the Court started contracting that scope.

First, in 1967, the Court introduced the doctrine of

TXDOLÀHGLPPXQLW\6HFRQGWKH&RXUWLQWURGXFHGDOLPLWHG

version of municipal liability of police departments and

the ability to recover damages from them. Finally, the

Court severely restricted the ability to obtain injunctive

relief from police departments. These three limitations

constrained Section 1983’s strength in ways never

intended by Congress. The Fifth Circuit’s moment-of-thethreat doctrine is yet another way Section 1983 is eroded,

to the disproportionate harm of Black people across the

country.

59. Sheldon Nahmod, 6HFWLRQ'LVFRXUVH7KH0RYHIURP

Constitution to Tort, 77 GEO. L.J. 1719, 1722 (1989).

21

D 4XDOLÀHG ,PPXQLW\ /LPLWHG )HGHUDO &RXUW

Access Under Section 1983.

Just six years after Monroe, the Court started to

limit Section 1983’s reach through its creation of the

TXDOLÀHGLPPXQLW\GRFWULQH4XDOLÀHGLPPXQLW\·VURRWV

lie in Pierson v. Ray, 386 U.S. 547, 549 (1967), in which

ÀIWHHQ%ODFNDQGZKLWHFOHUJ\PHPEHUVWULHGWRXVHWKH

white section of a segregated bus terminal in Jackson,

Mississippi, in 1961. On an interstate pilgrimage “to

promote racial equality and integration,” these clergy

members tried to enter the terminal’s segregated area,

and police arrested them when they refused to disperse.

Id. at 552–53. The clergy members sued the police under

Section 1983, and the Court ultimately considered the

question of whether the police had a good faith defense:

if the police in good faith believed in the validity of the

law under which they arrested the clergy members, even

if the law was later determined to be unconstitutional,

FRXOG WKH SROLFH RIÀFHUV QHYHUWKHOHVV EH OLDEOH IRU IDOVH

arrest under Section 1983? Id. at 555. In holding that

WKHRIÀFHUVFRXOGEHLPPXQHIURPOLDELOLW\XQGHUWKRVH

circumstances, the Court created a doctrine that would

limit the ability of victims of police misconduct to recover

under Section 1983.

2QO\ÀIWHHQ\HDUVDIWHUPierson, the Court expanded

DQG UHVKDSHG TXDOLÀHG LPPXQLW\ LQWR WKH IRUP LW KROGV

today. Pierson did not require Section 1983 claims be

DXWRPDWLFDOO\GLVPLVVHGLIDSROLFHRIÀFHUKDGDJRRGIDLWK

GHIHQVH5DWKHUWKH&RXUWUXOHGWKDWRIÀFHUVFRXOGSUHVHQW

that defense at a new trial. Id. at 557–58. At minimum,

post Pierson, plaintiffs claiming police misconduct could

present their cases to a jury.

22

That changed in 1982 when the Court altered and

H[SDQGHG TXDOLÀHG LPPXQLW\ IXUWKHU OLPLWLQJ 6HFWLRQ

1983’s power. In +DUORZ Y )LW]JHUDOG, the Court

considered a government employee’s Section 1983 claim

WKDW KH ZDV LOOHJDOO\ ÀUHG  86    FLWLQJ

1L[RQ Y )LW]JHUDOG, 457 U.S. 731 (1982)). Siding with

WKHRIÀFLDOVZKRÀUHGWKHHPSOR\HHWKH&RXUWKHOG´WKDW

JRYHUQPHQWRIÀFLDOVSHUIRUPLQJGLVFUHWLRQDU\IXQFWLRQV

generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.” Harlow, 457 U.S. at 818. The

Court thus changed the PiersonTXDOLÀHGLPPXQLW\WHVW

from whether someone acting under color of law had a

good faith defense to the test courts apply today, which

is whether that person violated clearly established law.

Critically, the Court also changed the moment

ZKHQ TXDOLÀHG LPPXQLW\ PLJKW EH UDLVHG DQG GHFLGHG

6SHFLÀFDOO\ WKH &RXUW KHOG WKDW D 6HFWLRQ  FODLP

can be dismissed “without resort to trial” because of

WKH ´JHQHUDO FRVWV RI VXEMHFWLQJ RIÀFLDOV WR WKH ULVNV RI

WULDO³GLVWUDFWLRQ RI RIÀFLDOV IURP WKHLU JRYHUQPHQWDO

duties, inhibition of discretionary action, and deterrence

of able people from public service.” Id. at 813, 816. The

Court in this way shifted the concern from the harm

suffered by people at the hands of the police and other

JRYHUQPHQWRIÀFLDOVWRWKHEXUGHQVWKRVHRIÀFLDOVPLJKW

face if forced to defend themselves at trial. Even police

RIÀFHUVDFWLQJLQEDGIDLWKFRXOGHVFDSHOLDELOLW\EHFDXVH

they no longer needed to testify thanks to the expansion

RITXDOLÀHGLPPXQLW\60 In establishing and strengthening

60. JOANNA SCHWARTZ, SHIELDED: HOW THE POLICE BECAME

UNTOUCHABLE 75 (2023).

23

TXDOLÀHGLPPXQLW\´WKH&RXUWVLPSO\WXUQHGDEOLQGH\H

to Congress’s decision to create a federal cause of action

WRHQDEOHLQGLYLGXDOVYLFWLPL]HGE\VWDWHRIÀFHUVWRREWDLQ

redress in the federal courts [under Section 1983].”61

b.

Monell Established Limited Municipal

Liability.

Since 1961, the Court also limited the ability of police

abuse victims to recover from the municipalities, police

departments, and police supervisors that employed the

offending police officers. Monroe itself absolved the

employing municipalities entirely, holding that “Congress

did not undertake to bring municipal corporations within

the ambit of” Section 1983. 365 U.S. at 187. Seventeen

years later, the Court overruled Monroe, stating that “[o]

ur analysis of the legislative history of the Civil Rights Act

of 1871 compels the conclusion that Congress did intend

municipalities and other local government units to be

included among those persons to whom § 1983 applies.”

Monell, 436 U.S. at 690 (emphasis in original).

But Monell was not the panacea for municipal liability

WKDWLWDSSHDUVWREHDWÀUVWJODQFH0XQLFLSDOLWLHVSROLFH

departments, and police supervisors are only subject

to liability if they adopt a custom or policy that “is

responsible for a deprivation of rights protected by the

Constitution.” Id. at 690–91. Municipalities and police

departments are emphatically not subject to liability on a

respondeat superior theory. Id. at 691. And as a practical

matter, “local governments do not usually adopt policies

61. Wright et al., supra note 24, at 716 (quoting Gans, supra

note 6, at 329).

24

that are unconstitutional on their face—a policy requiring

RIÀFHUVWRXVHH[FHVVLYHIRUFHIRUH[DPSOHµ62 Without

the ability to proceed under vicarious liability, and with

the low chance that a police department adopted an

unconstitutional policy, victims of police abuse who wish

to hold a police department or supervisor liable have an

exceedingly narrow path for relief under Section 1983.

c. Lyons Severely Limited Injunctive Relief.

One year after Harlow, the Court established yet

another limitation on Section 1983 claims. Through City

RI /RV $QJHOHV Y /\RQV, 461 U.S. 95 (1983), the Court

erected an additional obstacle, this time related to

injunctive relief.

In the case, Lyons alleged that Los Angeles police

officers placed him in a chokehold pursuant to an

unconstitutional police department policy. Id. at 98.

He sought not only monetary relief but also, central to

the Court’s consideration, preliminary and permanent

injunctions that would ban the police from using these

holds. Id. In an echo of early Section 1983 jurisprudence,

the Court decided Lyons on jurisdictional grounds. It

found that Lyons’ standing to seek an injunction “depended

on whether he was likely to suffer future injury from the

XVHRIWKHFKRNHKROGVE\SROLFHRIÀFHUVµId. at 105. The

Court created a near-impossible burden:

In order to establish an actual controversy in

this case, Lyons would have had not only to

allege that he would have another encounter

62. Schwartz, supra note 60, at 103.

25

with the police but also to make the incredible

assertion either, (1) that allSROLFHRIÀFHUVLQ/RV

Angeles always choke any citizen with whom

they happen to have an encounter . . . or, (2) that

WKH&LW\RUGHUHGRUDXWKRUL]HGSROLFHRIÀFHUV

to act in such manner.

Id. at 105–06 (emphasis in original). It is no surprise the

&RXUWIRXQG/\RQVXQDEOHWRPHHWKLVEXUGHQDQGDIÀUPHG

the dismissal of the case. Id. at 109.

Lyons’ impact on plaintiffs’ ability to effect police

policy improvements was immediately apparent. When

Lyons was decided, scholars observed that the “majority’s

unprecedentedly high case-or-controversy threshold may

constitute a major obstacle for civil rights plaintiffs.”63

Fur ther more, the Cour t’s standing requi rement

contradicted Congress’s explicit intent to allow injunctive

relief in Section 1983 cases, further restricting its scope.64

The impact of Lyons compounded the Court’s limitations

on relief—not only would people suing the police have

GLIÀFXOW\VHFXULQJLQGLYLGXDOUHOLHIEHFDXVHRITXDOLÀHG

immunity and Monell, but they also would face an added

obstacle to systemic change post-Lyons.

63. 6WDQGLQJWR6HHN(TXLWDEOH5HOLHI, 97 H ARV. L. REV. 215,

220 (1983).

64. 17 Stat. 13 § 1 (allowing recovery “in any action at law,

suit in equity, or other proper proceeding for redress”) (emphasis

added).

26

d.

The Moment-of-the-Threat Doctrine Further

Limits Section 1983.

The moment-of-the-threat doctrine is yet another

restriction on Section 1983, and one contradicted by the

Court’s precedent. In 1989, the Court shifted analysis of

Section 1983 cases from the Fourteenth Amendment to the

Fourth Amendment. With this critical change, the Court

established that its longstanding Fourth Amendment

totality-of-the-circumstances test should apply in Section

1983 cases—a test inconsistent with the Fifth Circuit’s

moment-of-the-threat doctrine.

Until 1989, courts evaluated excessive police force

cases under the Fourteenth Amendment Due Process

Clause. 6HHHJ5RFKLQY&DOLIRUQLD, 342 U.S. 165, 172

(1952) (evaluating excessive force in criminal cases under

Fourteenth Amendment). In *UDKDP Y &RQQRU, 490

U.S. 386 (1989), the Court altered that jurisprudential

underpinning: “We hold that [excessive police force] claims

are properly analyzed under the Fourth Amendment’s

‘objective reasonableness’ standard, rather than under a

substantive due process standard.” Id. at 383. The Court’s

change of the constitutional basis for Section 1983 claims

is critical to the analysis of this case. By changing the

excessive police force focus to the Fourth Amendment in

1989, the Court adopted a Fourth Amendment analysis

for future Section 1983 cases.

That analysis makes clear that this Court should

disregard the Fifth Circuit’s moment-of-the-threat

doctrine. *UDKDP recognized that the Fourth Amendment

demands a “totality of the circumstances” examination

in excessive force cases. Id. at 396 (citing Tennessee

27

v. Garner, 471 U.S. 1 (1985)). That test, when applied

to Section 1983 excessive force cases, as in all Fourth

$PHQGPHQWFDVHVLV´QRWFDSDEOHRISUHFLVHGHÀQLWLRQRU

mechanical application.” *UDKDP, 490 U.S. at 396 (quoting

%HOOY:ROÀVK, 441 U.S. 520, 559 (1979)). The Court ruled

that factors such as the severity of an alleged crime, the

immediate threat to public safety, whether a person is

UHVLVWLQJDUUHVWRUÁHHLQJWKHQDWXUHDQGTXDOLW\RIWKH

Fourth Amendment intrusion, and the governmental

LQWHUHVWWKDWMXVWLÀHVWKDWLQWUXVLRQVKRXOGDOOEHFRQVLGHUHG

under this test. *UDKDP, 490 U.S. at 396; United States v.

Place, 462 U.S. 696, 703 (1983). The moment-of-the-threat

doctrine does not require consideration of these factors

and, moreover, might preclude consideration of many of

them, depending on the case facts. Most importantly,

the moment-of-the-threat doctrine is inconsistent with

WKHÁH[LELOLW\WKDW*UDKDP and other precedent demand

when examining police use of force in Section 1983 cases.

The additional restriction that the moment-of-thethreat doctrine imposes on Section 1983 has real world

consequences. Police violence against Black people today

LVQRWWKHVDPHDVLWZDVIURPWKURXJKWKHÀUVWKDOI

of the twentieth century.65 But police violence continues to

exist at high rates 150 years after the enactment of Section

1983 and continues to disproportionately impact Black

people. The ability of victims of police violence to obtain

relief under Section 1983 would be further narrowed

unless this Court reverses the Fifth Circuit.

65. See supra Sections I.a and I.c.

28

III. THERE IS AN ONGOING RACIAL JUSTICE

CRISIS IN LAW ENFORCEMENT.

a.

Police Violence Persists.

The police killings of George Floyd and Breonna

Taylor in 2020 brought the enduring problem of policing

and racial justice into the national consciousness. These

killings sparked what is considered the largest movement

for justice in United States history—tens of millions of

people participated in racial justice demonstrations across

more than 40% of United States counties.66

Although it is clearly no longer the late nineteenth

or ea rly t went iet h centu r y, t he pol ice v iolence

GLVSURSRUWLRQDWHO\ LQÁLFWHG RQ %ODFN SHRSOH SHUVLVWV

In 2016, the year Respondent killed Ashtian Barnes,

police killed another 1,066 people in the United States,

280 of whom were Black.67 In Texas, Mr. Barnes was one

of twenty-one Black people whom police killed in 2016,

at a rate of 6.1 Black people killed per million people

compared with 3.45 white people killed per million.68 In

66. Larry Buchanan, et al., %ODFN/LYHV0DWWHU0D\EHWKH

/DUJHVW 0RYHPHQW LQ 86 +LVWRU\, N.Y. Times, July 3, 2020,

KWWSVZZZQ\WLPHVFRPLQWHUDFWLYHXVJHRUJHÁR\G

protests-crowd-size.html.

67. MAPPING POLICE VIOLENCE, https://mappingpoliceviolence.

org/ (last visited November 9, 2024) [hereinafter Police Violence].

68. Id. See also &LYLOLDQV6KRW, TEXAS JUSTICE INITIATIVE,

https://texasjusticeinitiative.org/datasets/civilians-shot (last

YLVLWHG1RYHPEHU  ÀOWHUE\´\HDUµ´µ´&LYLOLDQ5DFHµ

“Black,” and “Civilian Died” “Death”) (reporting 20 police killings

of Black people in 2016) [hereinafter Texas Justice].

29

the eight years since, conditions have not improved. To

date in 2024, police have killed 1,097 people in the United

States, 260 of whom were Black.69 Moreover, in the United

States between January and September 2024, police killed

seventeen more Black people than in the same period of

2023.70 In Texas, Black people are 2.3 times more likely

to be killed by police than white people; nationwide, that

ÀJXUHLQFUHDVHVWRWLPHVPRUHOLNHO\71

3ROLFHYLROHQFHRFFXUVIUHTXHQWO\WKURXJKWUDIÀFVWRSV

a subset of police violence most relevant to this case. In

LQWKH86WUDIÀFVWRSVZHUHWKHPRVWFRPPRQW\SH

of police-initiated contact with those sixteen or older,

amounting to more than sixteen million encounters that

year.72 An extensive body of literature has long made

clear that police do not stop or investigate all community

members equally.735DFLDODQGHWKQLFGLVSDULWLHVLQWUDIÀF

69. Police Violence, supra note 67.

70. Id.

71. Id.

72. &RQWDFWV%HWZHHQ3ROLFHDQGWKH3XEOLF, DEPT. OF

JUSTICE BUREAU OF JUSTICE STATISTICS (Oct 2024), https://bjs.ojp.

gov/document/cbpp22.pdf (publishing data that showed police had

contact with 12,446,800 drivers and 3,817,800 passengers during

WUDIÀFVWRSVLQ 

73. 6HH HJ, CHARLES R. EPP ET AL., P ULLED O VER: HOW

POLICE STOPS DEFINE RACE AND CITIZENSHIP (2014); Bernard E.

Harcourt & Tracey L. Meares, 5DQGRPL]DWLRQDQGWKH)RXUWK

Amendment, 78 U. C HI . L. R EV. 809, 854– 59 (2011) (citing

QXPHURXVVWXGLHVSURYLGLQJHYLGHQFHRIUDFLDOSURÀOLQJ (PPD

Pierson et al., $/DUJHVFDOH$QDO\VLVRI5DFLDO'LVSDULWLHVLQ

3ROLFH6WRSV$FURVVWKH8QLWHG6WDWHV, 4 NATURE HUMAN BEHAVIOUR

736 (2020), https://5harad.com/papers/100M-stops.pdf.

30

stops have persisted for decades,74 despite evidence

indicating that white drivers commit moving violations

at equal or higher rates than other racial groups.75 Not

surprisingly, the police disproportionately kill Black

SHRSOHGXULQJWUDIÀFVWRSV6LQFH&DPSDLJQ=HUREHJDQ

collecting data for its Mapping Police Violence Database in

SROLFHKDYHNLOOHGSHRSOHGXULQJWUDIÀFVWRSV

nearly a third of them Black.76

0DQ\VWRSVEHJDQZLWKFRPPRQWUDIÀFYLRODWLRQVOLNH

broken taillights or running a red light; relative to the

population, Black drivers were overrepresented among

those killed. The recurrence of such cases and the rarity of

convictions both follow from an overstatement, ingrained

in court precedents and police culture, of the danger that

YHKLFOHVWRSVSRVHWRRIÀFHUV&ODLPLQJDVHQVHRIPRUWDO

peril—whether genuine in the moment or only asserted

74. In the 1990s, for example, litigation in New Jersey

and Maryland provided irrefutable statistical evidence of racial

SURÀOLQJLQWUDIÀFVWRSVDAVID A. H ARRIS, PROFILES IN INJUSTICE

60–62 (2003) (discussing State v. Soto, 734 A.2d 350 (N.J. Sup.

Ct. 1996), and :LONLQVY0DU\ODQG6WDWH3ROLFH, Civ. No. MJG93-468 (D. Md. 1993)).

75. See William Cai et al., 0HDVXULQJ 5DFLDO DQG (WKQLF

'LVSDULWLHVLQ7UDIÀF(QIRUFHPHQWZLWK/DUJHVFDOH7HOHPDWLFV

Data, 2022 PNAS NEXUS 1, https://academic.oup.com/pnasnexus/

article/1/4/pgac144/6652221.

76 . 0D S S LQ J 3ROL F H 9L RO H Q F H, A I R T A B L E , ht t p s: //

airtable.com/appzVzSeINK1S3EVR/shroOenW19l1m3w0H/

WEO[HDU.]Z:9L1 ODVW YLVLWHG 1RYHPEHU    ÀOWHU E\

´HQFRXQWHUW\SHµLV´WUDIÀFVWRSµDQG´UDFHµLV´%ODFNµ Vee also

Texas Justice, supra QRWH ÀOWHUE\´&LYLOLDQ5DFH%ODFNµDQG

“Civilian Died” (reporting that since September 2015, police have

shot 439 Black civilians, killing more than half of them).

31

ODWHU³KDVRIWHQVKLHOGHGRIÀFHUVIURPDFFRXQWDELOLW\IRU

using deadly force.77

Behind these numbers are people with family and

friends. They include Eddie Irizarry, shot by Philadelphia

police six times as he was trying to get out of his parked

car and away from the police after they claimed he drove

erratically.78 They also include Ronnell Foster, a 33-yearold father shot by police in Vallejo, California, after being

stopped because his bicycle had no lights and because

KHZDVZHDYLQJLQDQGRXWRIWUDIÀF79$QGÀQDOO\WKH\

include Sam DuBose, a 43-year-old man shot in the head

DIWHUEHLQJSXOOHGRYHUE\D&LQFLQQDWLSROLFHRIÀFHUIRUD

missing front license plate. 80 Like Ashtian Barnes, police

NLOOHGWKHVHLQGLYLGXDOVGXULQJWUDIÀFVWRSV 81

77. David D. Kirkpatrick, et al., :K\0DQ\3ROLFH7UDIÀF

Stops Turn Deadly, N.Y. T IMES , Oct. 21, 2021, https://www.

Q\WLPHVFRPXVSROLFHWUDIÀFVWRSVNLOOLQJVKWPO

78. Remy Tumin, 3KLODGHOSKLD 3ROLFH 2IÀFHU &KDUJHG LQ

)DWDO6KRRWLQJ, N.Y. TIMES, Sept. 8, 2023, https://www.nytimes.

com/2023/09/08/us/philadelphia-eddie-irizarry-police-shooting.

html.

79. Cheryl W. Thompson, )DWDO 3ROLFH 6KRRWLQJV 2I

8QDUPHG%ODFN3HRSOH5HYHDO7URXEOLQJ3DWWHUQV, NPR, Jan.

25, 2021, https://www.npr.org/2021/01/25/956177021/fatal-policeshootings-of-unarmed-black-people-reveal-troubling-patterns.

80. Dan Sewell, &DVH$JDLQVW2IÀFHU:KR.LOOHG8QDUPHG

Motorist Is Dropped, A SSOCIATED PRESS, July 18, 2017, https://

www.usnews.com/news/us/articles/2017-07-18/prosecutor-toannounce-plans-in-fatal-ohio-police-shooting.

81. Kirkpatrick et al., supra note 77 (describing how police

NLOOXQDUPHGPRWRULVWVDWWHPSWLQJWRÁHHVHYHQW\ÀYHSHUFHQWRI

time).

32

b.

The Connection Between Policing and

Economics Persists.

Aside from being demonstrative of the enduring

police violence against Black people, this case also is

emblematic of the enduring connection between policing

and economics. We are no longer in an era of slave patrols

and convict leasing,82 but the economic connection persists.

Respondent, a Harris County constable, stopped Mr.

Barnes because of unpaid tolls. Barnes v. Felix, 91 F.4th

393, 395 (5th Cir. 2024).

The Houston Chronicle found that Texas constables

like Respondent spent most of their time on traffic

infractions and minor disturbances. 83 In 2020, 190

constables patrolled Texas toll roads, with 75% of them

patrolling a single tollway surrounding Houston.84,QÀVFDO

year 2022, the four Texas toll entities generated $1 billion,

$800 million, $500 million, and $175 million in revenue,

respectively. 85 And a 2019 study found Texas to be one of

82. See supra Section I.c.ii.

83. Neena Satija et al., :KDW LV D FRQVWDEOH DQG ZK\

DUH +DUULV &RXQW\·V ¶FRQWUDFW GHSXWLHV· LQ WKH QHZV" HOUSTON

CHRON., March 18, 2024, https://www.houstonchronicle.com/news/

investigations/article/constable-what-is-it-houston-18611636.php.

84. Eric Dexheimer, 'ULYHUVSD\IRUFRQVWDEOHVWRSDWURO

6DP +RXVWRQ 7ROOZD\ HYHQ ZKHQ WKHUH·V OLWWOH URDG WR FRYHU,

HOUSTON CHRON., March 18, 2024, https://www.houstonchronicle.

com/news/investigations/article/constables-toll-roads-18656133.

php.

85. Francisco Uranga, Texas drivers vexed by toll road

SD\PHQWSUREOHPVJRWOLWWOHUHOLHIIURPVWDWHODZPDNHUV, TEXAS

TRIBUNE, Aug. 18, 2023, https://www.texastribune.org/2023/08/18/

texas-toll-roads-payment-problems/.

33

the country’s top states in terms of communities reliant on

WUDIÀFÀQHVIRUWKHLUEXGJHWV86 Last year, constables made

DERXWWUDIÀFVWRSVDLQFUHDVHIURP 87

Cities and municipalities throughout the country also

rely on revenue generated from tickets and court fees to

fund government services. 88 This dependence creates a

SHUYHUVHLQFHQWLYHWRRYHUSROLFHPLQRUWUDIÀFLQIUDFWLRQV

at least twenty states measure police performance using

WUDIÀF VWRSV SHU KRXU 89 Black drivers are about 20%

more likely to get pulled over than white drivers,90 and

thus bear the brunt of these economic incentives. And

because these encounters, as in Mr. Barnes’ case, often

turn fatal,91 this economic incentive contributes to a cycle

of enforcement that prioritizes revenue over life. When

WKH SROLFH WDNH VRPHRQH·V OLIH GXULQJ D WUDIÀF VWRS WKH

moment-of-the-threat doctrine should not prevent their

86. St. John Barned-Smith, Eric Dexheimer, 6SHHGLQJ LQ

7H[DV"+HUH·VZKHUHSROLFHSXOOHGRYHUWKHPRVWSHRSOHHOUSTON

CHRONICLE, May 13, 2022, https://www.houstonchronicle.com/

news/investigations/article/texas-speed-traps-16395228.php.

87. Dexheimer, supra note 84.

88. Mike McIntire & Michael H. Keller, 7KH 'HPDQG IRU

0RQH\ %HKLQG 0DQ\ 3ROLFH 7UDIÀF 6WRSV, N.Y. TIMES, Oct. 31,

2021, https://w w w.nytimes.com/2021/10/31/us/police-ticketquotas-money-funding.html.

89. Id.

90. AJ Willingham, 5HVHDUFKHUVVWXGLHGQHDUO\PLOOLRQ

WUDIÀFVWRSVDQGIRXQGEODFNPRWRULVWVDUHPRUHOLNHO\WREHSXOOHG

over, CNN, March 21, 2019, https://www.cnn.com/2019/03/21/us/

police-stops-race-stanford-study-trnd/index.html.

91. See supra note 81.

34

family from presenting their case to a jury in federal court

under Section 1983.

CONCLUSION

The legislative history of 42 U.S.C. § 1983, the history

of police violence borne disproportionately by Black people

in the United States, and this Court’s precedent compel

one result. The Court should reverse the Fifth Circuit

and preserve what remains of Section 1983.

Respectfully submitted,

KRISTA A. DOLAN

SOUTHERN POVERTY

LAW CENTER

P.O. Box 10788

Tallahassee, FL 32302

A RTHUR AGO

Counsel of Record

SOUTHERN POVERTY

LAW CENTER

1101 17th Street, NW,

Suite 550

Washington, DC 20036

(202) 961-9325

arthur.ago@splcenter.org

Attorneys for Amicus Curiae