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| Long title | An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes |
|---|---|
| Nicknames | Civil Rights Act of 1871,[citation needed] Ku Klux Klan Act, Third Enforcement Act[1] |
| Enacted by | the42nd United States Congress |
| Citations | |
| Public law | 42−22 |
| Statutes at Large | ch. 22, 17 Stat. 13 |
| Legislative history | |
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| United States Supreme Court cases | |
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TheEnforcement Act of 1871 (17 Stat. 13), also known as theKu Klux Klan Act,Third Enforcement Act,[1]Third Ku Klux Klan Act,[2]Civil Rights Act of 1871, orForce Act of 1871,[3] is anAct of the United States Congress that was intended to combat the paramilitaryvigilantism of theKu Klux Klan. The act made certain acts committed by private persons federal offenses including conspiring to deprive citizens of their rights to hold office, serve on juries, or enjoy the equal protection of law. The Act authorized thePresident to deploy federal troops to counter the Klan and to suspend the writ ofhabeas corpus to make arrests without charge.[4][5]
The act was passed by the42nd United States Congress and signed into law by PresidentUlysses S. Grant on April 20, 1871. The act was the last of threeEnforcement Acts passed by Congress from 1870 to 1871 during theReconstruction era to combat attacks upon thesuffrage rights ofAfrican Americans. The statute has been subject to only minor changes since then, but has been the subject of voluminous interpretation by courts.
This legislation was asked for by President Grant and passed within one month of when he sent the request to Congress. Grant's request was a result of the reports he was receiving of widespread racial threats in theDeep South, particularly inSouth Carolina. He felt that he needed to have Congress delegate broader authority to the President before he could effectively intervene. After the act's enactment, the president had the power for the first time to both suppress state disorders on his own initiative and to suspend the writ ofhabeas corpus. Grant did not hesitate to use this authority on numerous occasions during his presidency, and as a result the KKK was completely dismantled (ending the "first Klan" era) and did not resurface in any meaningful way until the beginning of the 20th century.[6]
Several of the act's provisions still exist today ascodified statutes. Congress delegated to thefederal judiciary the authority to enforce violations of civil rights, with the most important of these enabling statutes being section 1979 of theRevised Statutes ('42 U.S.C. § 1983) entitled asCivil action for deprivation of rights'. It is the most widely usedcivil rights enforcement statute, allowing people to sue incivil court over civil rights violations.
H.R. 320 was brought to the floor of the US House for a vote on April 7, 1871. Four parties were present for the vote. Republicans voted 115 in favor, 0 against. Democrats voted 0 in favor, 91 against. Liberal Republicans voted 2 in favor 0 against. Independent Republicans voted 1 in favor, 0 against. 18 members did not vote.[7]
It then moved to the US Senate, where it was brought to a floor vote on April 14, 1871. Three parties were present for the vote. 44 Republicans voted in favor, 3 voted against. 0 Democrats voted in favor, 14 voted against. 1 Liberal Republican voted in favor, 2 voted against. 6 members did not vote.[8]
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In response to political violence by theKu Klux Klan and others during theReconstruction era following theAmerican Civil War, Congress passed threeEnforcement Acts giving the federal government broader powers to guarantee citizens' constitutional rights. The third of these acts, enacted in April 1871, gave the president the power to imprison people without a trial (known as suspending thewrit of habeas corpus) and to use the federal military on domestic soil to enforce constitutional rights, among other measures.[9]
In January 1871,Republican SenatorJohn Scott ofPennsylvania convened a congressional committee to hear testimony from witnesses ofKlan atrocities. In February, Republican CongressmanBenjamin Franklin Butler ofMassachusetts introduced his anti-Klan bill, intended to enforce both theFourteenth Amendment and theCivil Rights Act of 1866. Butler's bill was narrowly defeated in the House, whereupon RepublicanRep. Samuel Shellabarger, of Ohio, introduced a substitute bill, only slightly less sweeping than Butler's original. This bill brought a few holdout Republicans into line, and the bill narrowly passed the House, sailed through the Senate, and was signed into law on April 20 by President Grant.[10]
After the Civil War, President Ulysses S. Grant conducted an aggressive—and ultimately successful—campaign against the Ku Klux Klan and its offshoots (such as theKnights of the White Camellia) from the 1860s to the 1870s. Grant deployed federal soldiers to arrest Klan members, enlisted U.S. attorneys to try their cases, supported Congressional legislation like the Ku Klux Klan Act, and organized federal judges to oversee Klan trials.[11] Under the Klan Act during Reconstruction, federal troops, rather thanstate militias, were used to enforce the law, and Klansmen were prosecuted infederal court, where juries were sometimes predominantly black. Hundreds of Klan members were fined or imprisoned, andhabeas corpus was suspended in nine counties in South Carolina. These efforts were so successful that the Klan was destroyed in South Carolina and decimated throughout the rest of the former Confederacy, where it had already been in decline for several years. The Klan was not to exist again until its renewal in 1915. During its brief existence, however, the "first era" Klan did achieve many of its goals in the South, such as denyingvoting rights to Southern blacks.[10]
In its early history, under the Grant Administration, this act was used, along with the Force Act, to bring to justice those who were violating the Civil Rights of newly freed African Americans. After the end of the Grant Administration, and the dismantling of Reconstruction underRutherford B. Hayes, enforcement of the Act fell into disuse and few cases were brought under the statute for almost a hundred years.
In December 2020, theNAACP along with the Michigan Welfare Rights Organization and a group of Detroit voters suedU.S. President Donald Trump along with his presidential campaign and theRepublican National Committee under the act as well as theVoting Rights Act.[12][13][14] According to the lawsuit, President Trump and the Republican Party "coordinated conspiracy to disenfranchise Black voters" throughlegal actions intended to overturn the results of the 2020 presidential election inMichigan,Georgia andPennsylvania via "intimidation and coercion of election officials and volunteers".[13]
In February 2021, the NAACP and law firmCohen Milstein filed another lawsuit invoking the act on behalf of U.S. RepresentativeBennie Thompson.[15] Other congresspersons were to join the litigation as plaintiffs.[16][17] The February suit was filed against former President Donald Trump,Rudy Giuliani, theProud Boys, and theOath Keepers.[18] It alleges violations of the act pertaining to attempts to reject certification of the election results during the2021 United States Electoral College vote count, as well as alleging conspiracy to incite violence leading to the2021 United States Capitol attack.[19][20] Following lawsuits filed by Thompson and Swalwell, theLawyers' Committee for Civil Rights Under Law filed its complaint on behalf of seven officers working withUnited States Capitol Police accusing Trump,Roger Stone, Proud Boys, Stop the Steal, Oath Keepers and other persons who conspired to attack the Capitol under the same act and the D.C. Bias-Related Crimes Act.[21] On February 2, 2022, Vindman sued several Trump allies, alleging that they intimidated and retaliated against him while he testified in Congress, and thereby violated the Ku Klux Klan Act of 1871. The defendants in the lawsuit areDonald Trump Jr., Rudy Giuliani, former White House deputy chief of staffDan Scavino, and former White House deputy communications director Julia Hahn.[22]
In 2021, plaintiffs involved in theTexas Trump Train incident during the 2020 Biden-Harris Presidential Campaign sued the City of San Marcos, Texas, and several individual defendants under the Ku Klux Klan Act in the U.S. District Court for the Western District of Texas. In 2023, San Marcos and two individual defendants settled with the plaintiffs. On September 23, 2024, a jury found one of the remaining six defendants liable for $30,000 in punitive damages to be split among the three plaintiffs and awarded $10,000 in compensatory damages to the bus driver.[23] The Austin American Statesman noted that "[t]he verdict marks the first time in the modern era that a jury has found a defendant liable under the support-or-advocacy clauses of the 1871 Klan Act...."[24]
Section 1 of the Act, which has since been amended and codified as section 1979 of the Revised Statutes (42 U.S.C. § 1983) and is also known simply as "Section 1983", authorized monetary and injunctive relief against anyone who, acting under the authority of state law, deprived a person of rights guaranteed by the U.S. Constitution or federal law.[25]Section 1983 is the most prominent and commonly-litigated civil rights statute.[26]
Section 1979 of the Revised Statutes now reads:[27]
Every person who under color of any statute, ordinance, regulation, custom, or usage, of anyState orTerritory or theDistrict of Columbia, subjects, or causes to be subjected, anycitizen of the United States or other person within thejurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by theConstitution andlaws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Section 1983 made relief—in the form of monetary damages—available to those whose constitutional rights and lawshad been violated by a person acting underState authority. Normally, constitutional rights and laws violations are remedied by specific performance including injunctions by the courts.[citation needed] Thus, if a person's right to due process was violated by aprison guard who was said to be acting under the authority of the state, under § 1983, that person could bring suit for monetary damages against the prison guard. Without § 1983, that person would have to seek an injunction by the courts for the due process violation. The problem with such an action by the court is that injunctions, which instruct a party on penalty of contempt to perform or refrain from performing some action, cannot apply to past harm, only future harm. So, essentially the person would have an actionable cause—the constitutional violation—with no adequate remedy. Most § 1983 claims are brought against prison officials by prisoners, but prisoner claims are usually dismissed as being without merit. Claims can be brought by anyone stating a proper cause of action.
Circumstances changed in 1961 when theSupreme Court of the United States articulated three purposes that underlie the statute: "1) 'to override certain kinds ofstate laws'; 2) to provide 'a remedy where state law was inadequate'; and 3) to provide 'a federal remedy where the state remedy, though adequate in theory, was not available in practice.' "[28][29] A §1983 claim requires according to the United States Supreme Court inAdickes v. S. H. Kress & Co. (1970) two elements for recovery: (1) the plaintiff must prove that the defendant has deprived him of a right secured by the, "constitution and laws," of the US, and (2) the plaintiff must show that the defendant deprived him of this constitutional right 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory' (under color of law).[30]
Now the statute stands as one of the most powerful authorities with which state and federal courts may protect those whose rights are deprived.[31] Section 1979 of the Revised Statutes (42 U.S.C. 1983) provides a way individuals can sue to redress when their federally protected rights are violated, like theFirst Amendment rights and theDue Process Clause and theEqual Protection Clause of theFourteenth Amendment. Section 1979 can be used to redress violated rights based on the federal Constitution and federal statutes, such as the prohibition of public sector employment discrimination based on race, color, national origin, sex, and religion.
Targeted directly at the Klan and containing some two dozen clauses, Section 2 was longer than Section 1 and received more attention from Congress during debates.[32]It prohibited conspiracies to overthrow the federal government, levy war against the United States, steal federal property, and a number of other acts.[33]
Section 2 originally provided for both criminal and civil liability, but the criminal component was later found unconstitutional by the Supreme Court in the 1883 caseUnited States v. Harris, and ultimately repealed by Congress.[34]The civil liability portion of Section 2 survived with amendments later codified at 42 U.S.C. § 1985, known as "Section 1985". Section 1985 authorizes lawsuits against people who conspire to commit certain prohibited acts, such as interfering with government, obstructing justice, or depriving a person of equal protection under the law.[35]
Section 1985(1) covers conspiracies to violently prevent a public official from taking office or to "molest, interrupt, hinder, or impede" the discharge of official duties, among other acts.[36]Section 1985(2) addresses conspiracies to harm or threaten witnesses and jurors in federal courts, or to otherwise interfere with court proceedings, "with intent to deny to any citizen the equal protection of the laws".[37]
In a reference to the Klan's practice of wearing face-covering hoods, Section 1985(3) prohibits two or more people from traveling in disguise or otherwise conspiring to deprive a person or class of people of equal protection of the law or other legal rights.[38]In addition, Section 1985(3) contains the "support-or-advocacy clauses", which cover conspiracies to harm citizens because of their support or advocacy for a federal candidate for public office.[39]
Section 6 of the Act, now codified at 42 U.S.C. § 1986 and known as "Section 1986", imposes civil liability upon persons who know of a violation of Section 1985 or a planned violation of Section 1985, and who are in a position to prevent it, but who fail to prevent it, fail to attempt to prevent it, or fail to assist in its prevention.[40]While the other sections create a remedy against conspirators who deprived people of their rights, Section 1986 creates a remedy against persons whose acquiescence make such conspiracies possible. Legislators recognized that the Klan's political violence could not continue without tacit approval from local community leaders, and sought to stop the Klan by making community leaders financially responsible for terrorist acts they knowingly fail to prevent. This section of the Act has been rarely invoked since its enactment, but is used to combat terrorism in modern times by providing a "disincentive to those who would protect or foster conspiratorial terrorist acts".[41]
Section 3 authorized the president to use the military to suppress domestic violence and conspiracies to deprive people of their constitutional rights.[42]
Section 4 authorized the president to suspend thewrit ofhabeas corpus to suppress a rebellion.[43]This section expired after one year.[44]
Section 5 barred persons violating the Act from sitting as jurors in any proceeding under the Act, and imposed an oath upon jurors not to violate the Act.[45]
Section 7 provided, "nothing herein contained shall be construed to supersede or repeal any former act or law except so far as the same may be repugnant thereto", and that prosecutions "shall be continued and completed, the same as if this act had not been passed, except so far as the provisions of this act may go to sustain and validate such proceedings".[46]
Although some provisions[which?] were ruled unconstitutional in 1883,[47] the 1870Force Act and the 1871 Civil Rights Act have been invoked in later civil rights conflicts, including the 1964murders of Chaney, Goodman, and Schwerner; the 1965 murder ofViola Liuzzo; and inBray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993), in which the court ruled that "The first clause of 1985(3) does not provide a federal cause of action against persons obstructing access to abortion clinics."
It was also used in the 1969 case ofTinker v. Des Moines. By the time Beth Tinker was in school, the law had expanded to make school boards liable if they stood in the way of people's federally protected rights.
Today, the 1871 Civil Rights Act can be invoked whenever a state actor violates a federally guaranteed right. The most common use today is to redress violations of theFourth Amendment's protection againstunreasonable search and seizure.[citation needed] Such lawsuits concernfalse arrest andpolice brutality, most notably in theRodney King case. The rise of theBlack Lives Matter movement along with smart phone video cameras have made Section 1983 lawsuits easier to obtain because of technological advances, including bodycams worn by law enforcement.[citation needed]
The Act was invoked in the 2010Robbins v. Lower Merion School District case, where plaintiffs charged two suburban Philadelphia high schools secretly spied on students by surreptitiously and remotely activating webcams embedded in school-issued laptops the students were using at home, violating their right to privacy. The schools admitted to snapping over 66,000 webshots and screenshots secretly, including webcam shots of students in their bedrooms.[48][49]
The 2019 Supreme Court caseNieves v. Bartlett ruled that in general when probable cause for an arrest exists it overrides a First Amendmentretaliatory arrest claim arising under section 1983, but that there are some narrow exceptions to this. Because officers can exercise their discretion in making arrests for warrantless misdemeanor crimes, a plaintiff can succeed on a section 1983 claim if they can present objective evidence that other similarly situated individuals who were not engaged in protected speech had not been arrested.[50]
Also in 2019, the Court held that the 3-year statute of limitations for a fabrication of evidence civil lawsuit undersection 1983 of the Civil Rights Act begins to run when the criminal case ends in the plaintiff's favor.[51]
On February 16, 2021, the Act was asserted in an action[52] in theDistrict Court, D.C., byRep. Bennie G. Thompson (D, MS2), chair of theHouse Homeland Security Committee (in his personal capacity) againstformer President Donald Trump (in his personal capacity), Trump's attorneyRudolph Giuliani and (far-right "militia" groups)Proud Boys andOath Keepers.[53]
TheThompson v. Trump., et al. case[52] was followed by a subsequent action filed August 26, 2021, by sevenCapitol Police officers, reportedly against the same defendants.[54]
Acting as the military, or paramilitary, arm of the Democratic Party, organizations such as the Ku Klux Klan mounted violent campaigns against blacks who sought to vote or hold office, as well as their white Republican allies. In 1870 alone, hundreds of freedmen were killed, and many more badly hurt, by politicized vigilante violence...The national government did not stand by idly. In May 1870, stretching the limits of its constitutional powers, congress passed an Enforcement Act that made interference with voting a federal offense...This first enforcement act was followed by others including the Ku Klux Klan Act, which, among its provisions, authorized the president to deploy the army to protect the electoral process.
White vigilante groups intervened on the side of white employers to keep down wages and reduce the share of the crop claimed by black tenant farmers. Black schoolhouses were burned, and across the South hundreds of Republican activists were killed in the years 1868-71. Republicans in Congress responded to this wave of terrorist intimidation by passing civil rights legislation backed up by federal force in 1870 and 1871. The so-called Ku Klux Klan Act of 1871 empowered the president and army to crack down on the Klan; the suspension of habeas corpus and use of Federal Cavalry led to the arrest of thousands of Klansmen.
prepared forBallard Spahr (LMSD's counsel), May 2010
