CHAPTER 7.

FEDERAL CIVIL REMEDIES

Federal criminal remedies, discussed in the preceding chapter, have been utilized primarily in cases involving alleged violence by private persons or officials. In other cases, where officials have failed to carry out their duty to protect Negroes or civil rights workers (as described in Chapter 3), or where they have refused to respect constitutional rights to demonstrate (as described in Chapter 4), the Federal Government or the affected individuals have brought special civil proceedings in Federal court to vindicate Federal rights.

The purpose of these special proceedings has been to bring the case to the attention of a Federal court at an early stage without the delays involved in waiting for the termination of appeals in the State courts and final appeal to the United States Supreme Court. Although these proceedings have been generally more successful in securing protection than Federal criminal prosecutions, their effectiveness has been limited by various legal doctrines designed to minimize friction between State and Federal courts. The problem has been to secure Federal rights with minimum interference with the administration of State criminal law.

EQUITABLE REMEDIES

The power of a Federal court to grant equitable relief, such as an injunction, is the broadest and the most flexible Federal civil remedy available for preventing or halting local interference with the exercise of federally protected rights. If a court finds that local officials have failed to prevent interference by private citizens with civil rights activity, it may order local police to protect civil rights demonstrators or it may instruct private individuals or public officials not to obstruct, harass, intimidate, or arrest per

sons engaged in the protected activity.' The court may also enjoin the enforcement of unconstitutional State statutes.2 These court orders may be enforced by civil or criminal contempt proceedings. Thus, a person who violates a court order may be cited for civil contempt and imprisoned until he complies or he may be cited. for criminal contempt and sentenced to pay a fine or to imprisonment for a fixed term. In view of the potential effectiveness of this remedy, it is thus not surprising that there have been a large number of suits requesting equitable relief in civil rights cases, both by the Federal Government and by private citizens.3

Federal Government

The Attorney General has broad authority to seek equitable relief in Federal court in civil rights cases. The Civil Rights Act of 1957 authorizes the Attorney General to seek equitable relief to combat discriminatory denials of the right to vote; his powers were broadened further in this area by the Voting Rights Act of 1965.5 The Civil Rights Act of 1964 authorizes the Attorney General to institute proceedings to compel nondiscriminatory treatment in places of public accommodation, public facilities,' education, and employment. In addition, it has been held that the Government has general powers-absent any statutory authorization-to sue to prevent discrimination in interstate commerce. The Civil Rights Act of 1964 also authorized the Attorney General to intervene in privately instituted civil rights cases.

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1 See e.g., Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965); Kelly v. Page, 335 F. 2d 114 (5th Cir. 1964); United States v. U.S. Klans, 194 F. Supp. 897 (M.D. Ala. 1961).

2

See Dombrowski v. Pfister, 380 U.S. 479 (1965).

3

3 See Note, Section 1983: A Civil Remedy for the Protection of Federal Rights, 39 N.Y.U.L. Rev. 839 (1964).

4 42 U.S.C. § 1971 (1964). Prior to the 1957 statute, only private individuals could

bring suit in cases of voting denials. See also note 22 infra, and accompanying text.

Title IX of the Act," provides that the Attorney General may intervene in any case of general public importance brought in Federal court where relief is sought "from the denial of equal protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, or national origin. . . ." When the Government intervenes, it is entitled to the same relief from the court "as if it had instituted the action.'

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Pursuant to the provisions of Title IX, the Government intervened in private suits to uphold the right of hundreds of persons to march from Selma to Montgomery, Alabama, to protest voting denials,13 and to compel officials of Bogalusa, Louisiana, to protect from attack persons attempting to picket, assemble peaceably and advocate civil rights for Negroes." The Government has also intervened in several private school desegregation suits.15 It should be noted, however, that the Government's statutory power to intervene is limited to cases involving denials of equal protection based on race, color, religion, or national origin, and does not extend to cases involving denials of due process. Thus, the Government may not intervene in many demonstration cases where only denials of 1st amendment rights—a due process claim-are involved.16

When the Civil Rights Act of 1964 was first proposed, it contained a provision under which the Attorney General would have been authorized to institute suit, not only to remedy denials of

13 Williams v. Wallace, supra note 1.

14 Hicks v. Knight, Civil No. 15,727, E.D. La., July 10, 1965.

15

See e.g., Singleton v. Jackson Municipal Separate School District, Civil No. 22,527, 5th Cir., June 22, 1965.

16

See e.g., Guyot v. Pierce, Civil No. 22,676, 5th Cir., June 15, 1965 (injunction granted pending appeal), involving arrests of civil rights demonstrators in Jackson, Mississippi, for failure to obey the city parade ordinance. Demonstration cases may in some instances raise equal protection problems. A clear showing of discriminatory enforcement of a valid parade ordinance would, for example, constitute a denial of equal protection as well as infringement upon freedom of speech and assembly. See e.g., Cox v. Louisiana, 379 U.S. 536 (1965).

equal protection, but also denials of due process." While this provision was still being considered by the House Judiciary Committee, the Attorney General appeared before the Committee and requested that the Government not be given the broad injunctive authority proposed.18 He stated that the proposed statute would inject the Government "into some areas which are not its legitimate concern and vests the Attorney General with broad discretion in matters of great political and social concern." He added:

To illustrate: Which types of disputes should the Attorney General make a matter of Federal concern? Should he exempt disputes involving reading of the Bible in classrooms? If so, on what basis? What criteria should he adopt to determine whether to intervene in a particular case of an arrest for investigation, for example, or the banning of a movie as obscene, or a claim that the rate set by a State public utility commission is unreasonably low? 19 As a result of the Attorney General's opposition, the proposal was dropped from the legislation. Although intervention was authorized by Title IX, this provision is quite limited-the Attorney General may not institute suits and may only intervene in cases involving denials of equal protection.

Private Individuals

The primary source of Federal equity jurisdiction in private civil rights cases is section 1983 of title 42 of the United States Code.20 That section authorizes Federal courts to grant legal or

17 In 1963 the United States Commission on Civil Rights recommended that Congress empower the Attorney General "to initiate civil proceedings to prevent denials to persons of any rights, privileges or immunities secured to them by the Constitution or laws of the United States." 1963 Report of the U.S. Commission on Civil Rights 124.

18

Hearings Before the House Committee on the Judiciary, 88th Cong., 1st Sess., ser. 4, pt. 4, at 2659 (1963).

19 Id. at 2658.

20 This provision originated in the Civil Rights Act of 1871, and is the civil counterpart of 18 U.S.C. § 242, discussed supra, pp. 107-09. The two sections have been read consistently as coextensive in their reach of acts "under color" of State authority; to that extent they have been construed in pari materia. Geach v. Moynahan, 207 F. 2d 714, 717 (7th Cir. 1953); McShane v. Moldovan, 172 F. 2d 1016, 1020 (6th Cir. 1949); Burt v. City of New York, 156 F. 2d 791, 792 (2d Cir. 1946); Picking v. Pennsylvania R.R., 151 F. 2d 240, 48 (3d Cir. 1945), cert. denied, 332 U.S. 776 (1947). See also Monroe v. Pape, 365 U.S. 107, 183-85.(1961).

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