The Scholar: St. Mary's Law Review on Race and Social Justice


Alan W. Clarke


Modern civil rights litigation stems from the Ku Klux Klan Act, otherwise known as the Civil Rights Act of 1871. Congress codified this Act in the United States Code under Section 1983 of Title 42. No other law is more central to present day police and correctional officer accountability. The Civil Rights statute effectuates broad constitutional protections set in place in the aftermath of the Civil War. Congress designed this Act to change over time and intertwine with a continuing history of expanding rights. Section 1983 provides a remedy to any person who experienced another person, acting under the color of state law or custom, abridge their federally protected rights. These notions, however, are ever-changing. This Act went through a massive expansion during the Civil Rights era in the 1960s. One cannot fully understand police and correctional officer liability without at least some understanding of the Ku Klux Klan Act’s history. The Act’s original intention sought to make effective the constitutional changes wrought by the Reconstruction Era for the South. The Compromise of 1877 essentially sent the Civil Rights statute into temporary retirement. Before the Civil Rights era, no law enforcement liability existed for even the worst misconduct. Federal liability for local governmental wrongdoing revolutionized policing and corrections. The consequence became application of constitutional rights to criminal procedure as well as jails and prisons. Constitutional restrictions increasingly restrained and regulated discretionary police and corrections officers’ conduct. These changes continue to regulate official misconduct and remain important for the foreseeable future.

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St. Mary's University School of Law