Shielded

Chapter 1

How We Got Here

In the early hours of October 29, 1958-sixty years before Captain Cody and his team invaded Onree Norris's home-James Monroe, his wife, Flossie, and their six children woke to the sounds of men breaking into their basement apartment on the West Side of Chicago. The intruders were twelve police officers and Frank Pape-the department's chief of detectives, who was known for taking pictures of himself with the corpses of men he killed and whom local newspapers referred to, with reverence, as "Chicago's Toughest Cop." A few hours earlier, a white woman, who claimed her husband had been killed by two Black men, picked James Monroe's photo out of a pile of mug shots. As it happened, James had nothing to do with the crime: the woman had persuaded her lover to murder her husband, hoping to cash in on his $25,000 life insurance policy. But even if the officers had had the right man, their actions on the morning of October 29 were unconscionable.

The officers entered the Monroes' home-without a warrant-and ordered Flossie and James out of bed at gunpoint, threatening to shoot if they didn't move quickly. Both were forced to stand in the center of their living room, naked, while the officers ransacked their home, dumping the Monroes' possessions out of their closets and drawers and slitting their mattresses top to bottom with razor blades. Frank Pape repeatedly struck James in the stomach with a flashlight, yelling accusations about the murder interspersed with odious racial slurs. When the children screamed and cried, they were assaulted as well. An officer tripped the Monroes' four-year-old boy as he tried to run to his parents. Detective Pape hit two of James's teenage stepchildren, knocking them to the floor.

That horrific morning marked the seventeenth birthday of Flossie Monroe's eldest son, Houston. More than sixty years later, Houston recalled that he and his brothers and sisters yelled at the tops of their lungs to alert the neighbors that officers had broken into their home. He believes that noise might have saved his stepfather's life. "Those were killer cops that raided us," Houston remembered. "If it wasn't for the kids, they probably would have killed him."

James was taken from the apartment and held at the station house for ten hours without being allowed to see a judge or call a lawyer. He was released when the white woman who accused him of murder couldn't pick him out of a lineup. The woman's lover later confessed to the murder and testified against her; he received a life sentence and she was sentenced to sixty years in prison. James was never charged with any crime.

The Monroes decided to sue. An attorney at the Illinois branch of the ACLU agreed to represent them. The Monroes could have filed a lawsuit alleging assault and battery against the officers in Illinois state court-the same type of case that James could have brought against a neighbor who punched him during a backyard birthday party. But such a case brought by a poor Black family against white law enforcement officers, heard by a state court judge in Chicago-or by a state court judge anywhere else, for that matter-was considered at that time destined to fail. As the Monroes' attorney, Donald Page Moore, later explained, "I suspect that any realistic trial lawyer with experience in this kind of litigation anywhere in the country would tend to agree with me that when a penniless Negro family attempts to sue a politically potent high ranking police officer who is white, he is more likely to obtain a fair and impartial trial of his case from a federal judge."

So, Moore and the Monroes pursued a novel legal strategy. They filed the lawsuit in federal court and argued that a rarely used statute enacted by Congress almost a century earlier, in the wake of the Civil War, allowed the Monroes to sue Frank Pape and the other Chicago police officers for violating their constitutional rights. The Supreme Court agreed, and its decision in Monroe v. Pape, issued in 1961, breathed new life into that statute-42 U.S.C. § 1983, now commonly referred to as Section 1983. Monroe v. Pape also resurrected a long-standing debate about how much power Section 1983 should have.

Periodically over the past 150 years, courts and legislatures have made it easier to bring lawsuits against police and other government officials, in recognition that such suits are critically important tools for accountability and justice. But each time the judicial and legislative scaffolding behind the right to sue has been strengthened, it has thereafter been whittled away by powerful (if unsupported) claims that the federal courts are overreaching, that police can manage themselves, and that public safety will be imperiled by too much oversight. Only by understanding how this debate has been waged in the Supreme Court, in federal and state legislatures, and within public discourse over the past century and a half will it become clear why the power to sue government has waxed and waned, why there are so many limits on the right to sue today, and how, almost exactly sixty years after the Supreme Court recognized the right to sue police for violating the Constitution in Monroe v. Pape, a case like Onree Norris's could be kicked out of court.


Congress first enacted the law that became Section 1983 during the bloody years of Reconstruction. In the five years after the Civil War ended, between 1865 and 1870, Congress passed and the states ratified three constitutional amendments intended to guarantee the freedoms and civil rights of formerly enslaved people: the Thirteenth, ending slavery; the Fourteenth, prohibiting states from denying people due process and equal protection of the laws; and the Fifteenth, prohibiting states from denying people the right to vote on the basis of race, color, or previous condition of servitude. Between 1866 and 1875, Congress also enacted a slew of statutes that created civil and criminal penalties for violations of these Reconstruction Amendments. One of those statutes was the Civil Rights Act of 1871, also known as the Ku Klux Klan Act. At the time, Black people across the South were being tortured and killed by the newly formed Ku Klux Klan and other white supremacist groups, and local law enforcement officials were either participating in the violence or standing idly by. Section 1 of the Ku Klux Klan Act-what would become Section 1983-permitted people to sue in federal court if their constitutional rights were violated by people acting “under color” of state law.

Congressmen who spoke in favor of the Ku Klux Klan Act recounted stories that sound eerily familiar to the Monroes', of Black men and their wives and children being pulled from their beds in the dead of night and brutally assaulted, if not raped or killed. These families could theoretically file lawsuits against Klan members in state court, alleging assault, battery, and false arrest. But the congressmen knew that state courts were hostile places for Black people; in many state court cases, they were not even allowed to testify. Vitally important then-just as it was almost a century later, when the Monroes filed their lawsuit-the Ku Klux Klan Act would allow Black people to bring their cases in federal court and have them heard by federal judges and juries, who supporters of the Act considered more independent and "able to rise above prejudices or bad passions or terror more easily."

The Ku Klux Klan Act also had critics. Congressmen opposed to the Act did not frame their objections as an endorsement of racial violence or resistance to civil rights. Instead, they said they opposed the Act because it gave too much power to the federal courts to resolve disputes that should be left to states. Indiana representative Michael Kerr described the Act as a "covert attempt to transfer a large portion of jurisdiction from the State tribunals, to which of right it belongs, to those of the United States." Congressmen predicted that lawyers would abuse that expansive federal jurisdiction to weasel their way into federal court with exaggerated claims that their clients' constitutional rights had been violated. Senator Allen G. Thurman of Ohio, speaking against the Act, warned that a constitutional violation "may be of the slightest conceivable character, the damages in the estimation of any sensible man may not be five dollars or even five cents . . . and yet by this section jurisdiction of that civil action is given to the Federal courts instead of its being prosecuted as now in the courts of the States."

After heated debate, Congress passed the Ku Klux Klan Act and President Ulysses S. Grant signed it into law. But almost a century passed before the Supreme Court acknowledged, in the Monroes' case, that Section 1983 could be used to sue police officers for violating the rights enshrined in the U.S. Constitution. It was the Supreme Court's decisions that rendered Section 1983 largely powerless for its first ninety years of existence.

In 1873, just two years after the Ku Klux Klan Act became law, the Supreme Court interpreted the Fourteenth Amendment narrowly to protect only rights related to federal citizenship-such as the right to vote for federal office, or to assemble and petition the federal government for redress of grievances. By this view, the Fourteenth Amendment could not be used to contest the very torture and killing of Black people that had inspired its creation. Then, in a handful of decisions in the 1870s and 1880s, the Supreme Court held that the Fourteenth and Fifteenth Amendments granted Congress authority only to address civil rights abuses by state actors-which meant that the laws passed by Congress to give teeth to the Reconstruction Amendments could not be used to combat private actors' violence and discrimination. In 1896, in Plessy v. Ferguson, the Supreme Court ruled that the Fourteenth Amendment did not prohibit racial segregation so long as the available facilities were "separate but equal." Congress didn't push back against any of these decisions-instead, in 1894, southern Democrats who had regained control of the House and Senate, and the presidency, repealed most of the Reconstruction-era statutes that remained. With this decisive retreat from the federal enforcement of civil rights, Jim Crow laws pervaded the South, Black people were disenfranchised, Klan violence resurged, and the federal government did little to intervene.

In the early twentieth century, in the wake of the courts' and Congress's abandonment of the goals of Reconstruction, civil rights groups including the NAACP began to form, and they protested, lobbied, and litigated against discriminatory laws and practices. This same period marked the beginning of the Great Migration as millions of Black Americans made their way north to escape the Klan and police violence. In fact, sixteen years before Flossie and James Monroe were pulled out of their bed at gunpoint in Chicago, Flossie-along with her first husband and their infant son, Houston-was run out of Opelika, Alabama, by the town's sheriff. Flossie's then husband was accused of throwing popcorn at a white man from the balcony of a segregated movie theater, and he punched the usher who ejected him from the theater. The sheriff and his posse arrested Flossie's husband and took him back behind the jailhouse. Flossie's sister, who had also been at the theater, ran to get Flossie's husband's father, who was, in Houston's words, a "well-respected" and "important person around town." Flossie's father-in-law raced to the jailhouse to beg the sheriff for his son's life, and the sheriff told him that Flossie's husband had to leave town by sundown. So Flossie's husband boarded the Illinois Central that day and headed to Chicago. Flossie and Houston soon followed. As Houston later described it, his family "escaped from behind the Cotton Curtain. That was fascism living in the South."

When Black people arrived in places like Chicago, New York City, and Detroit, they quickly came to learn that the South did not have a monopoly on discrimination, mob violence, and police abuse. In the summer of 1919, after a seventeen-year-old Black boy's raft veered into the "whites only" part of Lake Michigan, a white beachgoer pelted him with rocks until he fell off his raft and drowned. Chicago erupted into violence, with Black people suffering the lion's share of injuries and death. When the Chicago Commission on Race Relations investigated the Chicago riot, they found Black people's distrust of the police was widespread and well earned; as Maclay Hoyne, Cook County state's attorney, testified before the commission, police had "shut their eyes to offenses committed by white men while they were very vigorous in getting all the colored men they could get."

The first federal government report documenting widespread police misconduct was published in 1931. In 1929, President Herbert Hoover had convened the National Commission on Law Observance and Enforcement, known as the Wickersham Commission, to examine the impact of Prohibition on police tactics. Two years later, the commission issued a report called Lawlessness in Law Enforcement that concluded, based on evidence from more than a dozen cities across the country, that "the third degree-that is, the use of physical brutality, or other forms of cruelty, to obtain involuntary confessions or admissions-is widespread." Following uprisings in Harlem and Detroit in the 1930s and 1940s, investigations found that police were regularly and egregiously violating Black people's rights. During this same period, and particularly as Black men were returning home after serving in World War II, there were growing calls to end segregation, discrimination in employment, and police abuse.

As the civil rights movement began to pick up steam, the Supreme Court came to revisit its narrow interpretation of the Fourteenth Amendment and the Civil Rights Acts. A key decision marking that shift and setting the stage for the revitalization of Section 1983 was Screws v. United States, issued in 1945, which forced the Supreme Court to confront the gravity of police violence and the need for federal intervention.

Sheriff M. Claude Screws of Baker County, Georgia, along with a policeman and deputy, arrested thirty-year-old Robert Hall at his home late one night for allegedly stealing a tire. After driving Hall to the courthouse, Sheriff Screws and the officer and deputy beat Hall with their fists and a two-pound blackjack until he was unconscious, then dragged him through the courthouse yard to the jail floor. Hall was taken by ambulance to the hospital, where he died. The sheriff and officers on the scene offered an excuse that sounds all too familiar today: they claimed that they had beaten Hall only after he had reached for a gun. But this explanation hardly made sense given that Hall was handcuffed the whole time.

Although Georgia prosecutors declined to bring charges against Sheriff Screws or the officers, federal prosecutors-part of the newly formed Civil Rights Section of the Department of Justice-pursued a case under a criminal law also enacted during Reconstruction. The federal indictment charged that the men, "acting under color of the laws of Georgia, 'willfully' caused Hall to be deprived of 'rights, privileges, or immunities secured or protected' to him by the Fourteenth Amendment." A jury found them guilty.