Enforcement Act of 1871
   HOME

TheInfoList



OR:

The Enforcement Act of 1871 (), also known as the Ku Klux Klan Act, Third Enforcement Act, Third Ku Klux Klan Act, Civil Rights Act of 1871, or Force Act of 1871, is an
Act of the United States Congress An Act of Congress is a statute enacted by the United States Congress. Acts may apply only to individual entities (called private laws), or to the general public ( public laws). For a bill to become an act, the text must pass through both house ...
which empowered the President to suspend the writ of habeas corpus to combat the
Ku Klux Klan The Ku Klux Klan (), commonly shortened to the KKK or the Klan, is an American white supremacist, right-wing terrorist, and hate group whose primary targets are African Americans, Jews, Latinos, Asian Americans, Native Americans, and ...
(KKK) and other terrorist organizations. The act was passed by the
42nd United States Congress The 42nd United States Congress was a meeting of the legislative branch of the United States federal government, consisting of the United States Senate and the United States House of Representatives. It met in Washington, D.C. from March 4, 1871, ...
and signed into law by United States President
Ulysses S. Grant Ulysses S. Grant (born Hiram Ulysses Grant ; April 27, 1822July 23, 1885) was an American military officer and politician who served as the 18th president of the United States from 1869 to 1877. As Commanding General, he led the Union Ar ...
on April 20, 1871. The act was the last of three
Enforcement Acts The Enforcement Acts were three bills that were passed by the United States Congress between 1870 and 1871. They were criminal codes that protected African Americans’ right to vote, to hold office, to serve on juries, and receive equal protect ...
passed by the United States Congress from 1870 to 1871 during the
Reconstruction Era The Reconstruction era was a period in American history following the American Civil War (1861–1865) and lasting until approximately the Compromise of 1877. During Reconstruction, attempts were made to rebuild the country after the bloo ...
to combat attacks upon the suffrage rights of
African Americans African Americans (also referred to as Black Americans and Afro-Americans) are an ethnic group consisting of Americans with partial or total ancestry from sub-Saharan Africa. The term "African American" generally denotes descendants of ens ...
. 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 the
Deep South The Deep South or the Lower South is a cultural and geographic subregion in the Southern United States. The term was first used to describe the states most dependent on plantations and slavery prior to the American Civil War. Following the war ...
, particularly in South Carolina. He felt that he needed to have his authority broadened before he could effectively intervene. After the act's passage, the president had the power for the first time to both suppress state disorders on his own initiative and to suspend the writ of habeas 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. Several of the act's provisions still exist today as codified statutes. The most important of these is : ''Civil action for deprivation of rights''. It is the most widely used civil rights enforcement statute, allowing people to sue in civil court over civil rights violations.


History

In response to political violence by the
Ku Klux Klan The Ku Klux Klan (), commonly shortened to the KKK or the Klan, is an American white supremacist, right-wing terrorist, and hate group whose primary targets are African Americans, Jews, Latinos, Asian Americans, Native Americans, and ...
and others during the
Reconstruction era The Reconstruction era was a period in American history following the American Civil War (1861–1865) and lasting until approximately the Compromise of 1877. During Reconstruction, attempts were made to rebuild the country after the bloo ...
following the American Civil War, Congress passed three
Enforcement Acts The Enforcement Acts were three bills that were passed by the United States Congress between 1870 and 1871. They were criminal codes that protected African Americans’ right to vote, to hold office, to serve on juries, and receive equal protect ...
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 the '' writ of habeas corpus'') and to use the federal military on domestic soil to enforce constitutional rights, among other measures. In January 1871, Republican Senator
John Scott John Scott may refer to: Academics * John Scott (1639–1695), English clergyman and devotional writer * John Witherspoon Scott (1800–1892), American minister, college president, and father of First Lady Caroline Harrison * John Work Scott (180 ...
of Pennsylvania convened a congressional committee to hear testimony from witnesses of Klan atrocities. In February, Republican Congressman Benjamin Franklin Butler of Massachusetts introduced his anti-Klan bill, intended to enforce both the Fourteenth Amendment and the
Civil Rights Act of 1866 The Civil Rights Act of 1866 (, enacted April 9, 1866, reenacted 1870) was the first United States federal law to define citizenship and affirm that all citizens are equally protected by the law. It was mainly intended, in the wake of the Amer ...
. Butler's bill was narrowly defeated in the House, whereupon Republican Rep. 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.


Use during Reconstruction

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 the Knights 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. Under the Klan Act during Reconstruction, federal troops, rather than state militias, were used to enforce the law, and Klansmen were prosecuted in federal court, where juries were sometimes predominantly black. Hundreds of Klan members were fined or imprisoned, and habeas 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 denying voting rights to Southern blacks. 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 under Rutherford B. Hayes, enforcement of the Act fell into disuse and few cases were brought under the statute for almost a hundred years.


Use during and after presidency of Donald Trump

In December 2020, the
NAACP The National Association for the Advancement of Colored People (NAACP) is a civil rights organization in the United States, formed in 1909 as an interracial endeavor to advance justice for African Americans by a group including W. E.&nb ...
along with the Michigan Welfare Rights Organization and a group of Detroit voters sued U.S. President Donald Trump along with his presidential campaign and the Republican National Committee under the act as well as the Voting Rights Act. According to the lawsuit, President Trump and the Republican Party "coordinated conspiracy to disenfranchise Black voters" through legal actions intended to overturn the results of the 2020 presidential election in Michigan, Georgia and Pennsylvania via "intimidation and coercion of election officials and volunteers". In February 2021, the NAACP and law firm
Cohen Milstein Cohen Milstein is an American plaintiffs' law firm that engages in large-scale class action litigation. The firm filed a number of lawsuits against Donald Trump during and after his presidency, including a lawsuit which successfully blocked the Tr ...
filed another lawsuit invoking the act on behalf of U.S. Representative
Bennie Thompson Bennie Gordon Thompson (born January 28, 1948) is an American politician serving as the U.S. representative for since 1993. A member of the Democratic Party, Thompson has been the chair of the Committee on Homeland Security since 2019 and from ...
. Other congresspersons were to join the litigation as plaintiffs. The February suit was filed against former President Donald Trump,
Rudy Giuliani Rudolph William Louis Giuliani (, ; born May 28, 1944) is an American politician and lawyer who served as the 107th Mayor of New York City from 1994 to 2001. He previously served as the United States Associate Attorney General from 1981 to 198 ...
, the
Proud Boys The Proud Boys is an American far-right, neo-fascist, and exclusively male organization that promotes and engages in political violence in the United States.Far-right: * * Fascist: * * * * * Men only: * * * Political violence: * * * It has ...
, and the Oath Keepers. It alleges violations of the act pertaining to attempts to reject certification of the election results during the
2021 United States Electoral College vote count The count of the Electoral College ballots during a joint session of the 117th United States Congress, pursuant to the Electoral Count Act, on January 6–7, 2021, was the final step to confirm President-elect Joe Biden's victory in the 20 ...
, as well as alleging conspiracy to incite violence leading to the
2021 United States Capitol attack On January 6, 2021, following the defeat of then-U.S. President Donald Trump in the 2020 presidential election, a mob of his supporters attacked the United States Capitol Building in Washington, D.C. The mob was seeking to keep Trump in pow ...
. Following lawsuits filed by Thompson and Swalwell, the
Lawyers' Committee for Civil Rights Under Law The Lawyers' Committee for Civil Rights Under Law, or simply the Lawyers' Committee, is a civil rights organization founded in 1963 at the request of President John F. Kennedy. At the time, Alabama Governor George Wallace had vowed to resist cou ...
filed its complaint on behalf of seven officers working with United 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. 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 are Donald Trump Jr., Rudy Giuliani, former White House deputy chief of staff Dan Scavino, and former White House deputy communications director Julia Hahn.


Section 1 (42 USC § 1983)

Section 1 of the Act, which has since been amended and codified at
42 U.S.C. Title 42 of the United States Code is the United States Code dealing with public health, social welfare, and civil rights. Chapters * —The Public Health Service * —The Public Health Service, Supplemental Provisions * —Sanitation an ...
§ 1983 and is now known as "Section 1983", authorized monetary and injunctive relief against anyone who, acting under the authority of state law, deprived a person of their constitutional rights. Section 1983 is the most prominent and commonly-litigated civil rights statute. now reads: Section 1983 made relief—in the form of monetary damages—available to those whose constitutional rights ''had been violated'' by a person acting under State authority. Normally, constitutional rights violations are remedied by specific performance including injunctions by the courts. Thus, if a person's right to due process was violated by a prison 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 the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
articulated three purposes that underlie the statute: "1) 'to override certain kinds of state 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.' " A §1983 claim requires according to the United States Supreme Court in '' Adickes 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).Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) Now the statute stands as one of the most powerful authorities with which state and federal courts may protect those whose rights are deprived. Section 1983 of the 1871 Civil Rights Act provides a way individuals can sue to redress when their federally protected rights are violated, like the First Amendment rights and the
Due Process Clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except as ...
and the
Equal Protection Clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
of the Fourteenth Amendment. Section 1983 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. In some jurisdictions, § 1983 has been applied directly to private employers when litigants have sued under this act. It can also be applied in virtually all jurisdictions in a more indirect manner to private employers if they are acting under state or federal authority. For example, if an additional private security company is hired by the police for an event and are given authority by the police, and, during the event, the security company violates a participant's First Amendment right, they can be sued under § 1983.


Section 2 (42 USC § 1985)

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. It prohibited conspiracies to overthrow the federal government, levy war against the United States, steal federal property, and a number of other acts. 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 case ''
United States v. Harris ''United States v. Harris'', 106 U.S. 629 (1883), or the ''Ku Klux Kase'', was a case in which the US Supreme Court held that it was unconstitutional for the federal government to penalize crimes such as assault and murder in most circumstances. ...
'', and ultimately repealed by Congress. 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. 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. 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". 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. 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.


Section 6 (42 USC § 1986)

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. 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".


Other provisions

Section 3 authorized the president to use the military to suppress domestic violence and conspiracies to deprive people of their constitutional rights. Section 4 authorized the president to suspend the writ of habeas corpus to suppress a rebellion. This section expired after one year. 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. 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".


Jurisprudence

Although some provisions were ruled unconstitutional in 1883, the 1870 Force Act and the 1871 Civil Rights Act have been invoked in later civil rights conflicts, including the 1964
murders of Chaney, Goodman, and Schwerner The murders of Chaney, Goodman, and Schwerner, also known as the Freedom Summer murders, the Mississippi civil rights workers' murders, or the Mississippi Burning murders, refers to events in which three activists were abducted and murdered in ...
; the 1965 murder of Viola Liuzzo; and in '' Bray 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 of ''
Tinker v. Des Moines ''Tinker v. Des Moines Independent Community School District'', 393 U.S. 503 (1969), was a landmark decision by the United States Supreme Court that defined First Amendment rights of students in U.S. public schools. The ''Tinker'' test, also k ...
''. 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 the Fourth Amendment's protection against unreasonable search and seizure. Such lawsuits concern false arrest and
police brutality Police brutality is the excessive and unwarranted use of force by law enforcement against an individual or a group. It is an extreme form of police misconduct and is a civil rights violation. Police brutality includes, but is not limited to, ...
, most notably in the Rodney King case. The rise of the Black 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. The Act was invoked in the 2010 '' Robbins 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. The 2019 Supreme Court case ''
Nieves v. Bartlett ''Nieves v. Bartlett'', 587 U.S. 391 (2019), was a civil rights case in which the Supreme Court of the United States decided that probable cause should generally defeat a retaliatory arrest claim brought under the First Amendment, unless officer ...
'' ruled that in general when probable cause for an arrest exists it overrides a First Amendment
retaliatory arrest A retaliatory arrest or retaliatory prosecution is an arrest or prosecution undertaken in retaliation for a person's exercise of their civil rights. It is a form of prosecutorial misconduct. United States In ''Hartman v. Moore'' in 2006, t ...
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. Also in 2019, the Court held that the 3-year statute of limitations for a fabrication of evidence civil lawsuit under section 1983 of the Civil Rights Act begins to run when the criminal case ends in the plaintiff's favor. In June 2020 the United States Court of Appeals for the Fourth Circuit rejected qualified immunity for five Police officers in West Virginia who had kicked, beaten, tased, and finally killed
Wayne A. Jones Wayne may refer to: People with the given name and surname * Wayne (given name) * Wayne (surname) Geographical Places with name ''Wayne'' may take their name from a person with that surname; the most famous such person was Gen. "Mad" Anth ...
, by shooting him 22 times. On February 16, 2021, the Act was asserted in an action in the District Court, D.C., by Rep. Bennie G. Thompson (D, MS2), chair of the
House Homeland Security Committee The U.S. House Committee on Homeland Security is a standing committee of the United States House of Representatives. Its responsibilities include U.S. security legislation and oversight of the Department of Homeland Security. Role of the commit ...
(in his personal capacity) against former President Donald Trump (in his personal capacity), Trump's attorney
Rudolph Giuliani Rudolph William Louis Giuliani (, ; born May 28, 1944) is an American politician and lawyer who served as the 107th Mayor of New York City from 1994 to 2001. He previously served as the United States Associate Attorney General from 1981 to 198 ...
and ( far-right "militia" groups)
Proud Boys The Proud Boys is an American far-right, neo-fascist, and exclusively male organization that promotes and engages in political violence in the United States.Far-right: * * Fascist: * * * * * Men only: * * * Political violence: * * * It has ...
and Oath Keepers. The Thompson v. Trump., et al. case was followed by a subsequent action filed August 26, 2021, by seven Capitol Police officers, reportedly against the same defendants.


See also

* Antebellum South Carolina *
Kirk–Holden War The Kirk–Holden war was a police operation taken against the white supremacist organization Ku Klux Klan by the government in the state of North Carolina in the United States in 1870. The Klan was using murder and intimidation to prevent rece ...
, an 1870 struggle against the Klan in North Carolina


References


Works cited

*
PDF
* *
PDF
*
PDF
*
PDF
*
PDF
* * *


External links




Text of Enforcement Act of 1871 as codified- 42 U.S. Code 21 §§1983, 1988


is "the criminal analog of 1983." {{Ulysses S. Grant, state=collapsed 1871 in American law Anti-discrimination law in the United States History of African-American civil rights Reconstruction Era legislation Civil Rights Acts United States federal criminal legislation United States federal sovereign immunity case law 42nd United States Congress * Ku Klux Klan Political crimes