HomeMy WebLinkAboutMINUTES - 03091993 - 2.3 2. 3
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on March 9, 1993 , by the following vote:
AYES: Supervisors Smith, Bishop, McPeak, Torlakson
NOES: None
ABSENT: Supervisor Powers
ABSTAIN: None
SUBJECT: Report on County Ordinance Regarding the Sale of Firearms
IT IS BY THE BOARD ORDERED that consideration of County
Counsel' s Report on a County Ordinance regarding the sale of firearms
is CONTINUED to March 23, 1993 .
1 hereby certify that this Is a true and correct copy of
an action taken and entered on the minutes of the
cc: County Counsel ilrmrd of Supervisors on the date shown.
Sheriff-Coroner ArTEs,ma 2-�- 6'. /y;9�
PHIL BATCHELOR,Clerk of the Board
of Supervisors and County Administrator
By '/JC ,Deputy
THE AMERICAN PRO-CONSTITUTIONAL ASSOCIATION
"AMPROCON"
1210 RUSSELMANN PARK RD. or P.O. BOX 486
CITY OF CLAYTON, CONTRA COSTA COUNTY, CA. 94517 510-672-3546
President: John Erickson, Lafayette, Ca,
Members - Board of Directors: Edgar M. Crump, Clayton, Ca.
Richard D. Starr, Talent, Oregon. Martin A. Easton, Clayton, Ca.
The primary and overriding thrust and purpose of THE AMERICAN
PRO-CONSTITUTIONAL ASSOCIATION (AMPROCON) is identical to the
oath of office of the Officers of the United States:
" . . . .preserve, protect and defend the Constitution of the United
States"
FROM: MARTIN A. EASTON - FOUNDER - EXECUTIVE VICE PRESIDENT
March 8, 1993
(Fred Bowles of Oakland, Alameda County, Ca. provided invaluable
research information for this letter) .
TO: The Board of Supervisors of Contra Costa County, California,
651 Pine St. , Martinez, 94553 . (510) 646-2371
C/O The Honorable Tom Torlakson, Chairman
and including the other four distinguished members thereof who
are being furnished individual copies of this letter under sepa-
rate covers:
The Hon. Sunne McPeak, Vice Chair. The Hon. Tom Powers
The Hon. Jeffry Smith The Hon. Gayle Bishop
AND EifW�_ *
VEL
TO: The Board of Supervisors of Alameda County, i1221 Oak St. , Oakland, 94612 . (510) 272-6693C O The Honorable Ed Cam bell President r:.':;�O/ P ;::0.
and including the other four distinguished members thereof who
are being furnished individual copies of this letter under sepa-
rate covers:
The Hon. Don Perata, Vice President. The Hon. Gail Steele
The Hon. Mary King The Hon. Keith Carson
Obviously the two adjoining Counties above described are
located in the State of California and derive their powers under
" color of law" from the •State Constitution which I transcribe in
relevant part from ARTICLE XI, SEC. 1 (a) : "The State is divided
into counties which are legal subdivisions of the State. "
Furthermore , the counties of the State contain cities which
derive their powers under "color of law" also granted by the
State Constitution through the State Legislature which I tran-
1
scribe from SEC. 2 (a) also of ARTICLE XI: "The Legislature shall
prescribe uniform procedures for city formation and provide for
city powers" .
Copies of the pages from which the preceding words were tran-
scribed are attached.
I now refer to the various "firearms" Resolutions enacted
or proposed -and unanimously approved by you in recent months .
These matters, if approved and followed through to the status of
law would infringe upon the rights of law-abiding people to
". .keep and bear Arms. . . . " stated in the "Bill of Rights" of the
United States Constitution as its "Second Amendment" .
Many well-meaning politicians feel that a large total
number of firearms in the hands of the "people" may be a leading
cause of crime. This has never been proven. These politicians
decry the "proliferation of weapons" .
But this "proliferation of weapons" has been for years and
for good reason the reaction of law-abiding non-violent people in
an attempt to gain protection against those who would harm them.
It has been estimated that up to one half of the homes in the
United States contain lawfully owned and used firearms and it is
quite likely that this estimate also applies to the Counties of
Alameda and Contra Costa and their cities.
It should be obvious that these lawful firearms in the
possession of the general public are more of a deterrent to crime
and more of an enhancement of public safety than any practical
number of police officers or volumes of laws printed and posted
in the city ordinance books.
Many people who do not own firearms, including some AMPRO-
CON members, realize that the many other residents of their
neighborhoods who do own them contribute greatly to the general
public safety.
As the founder of "AMPROCON" I believe strongly in the
"police power" of the "state" by due process (naturally this
means any constituted level of government) wherein those individ-
ual persons that are prone to violence against others must be
identified, isolated and/or punished.
However, no nation of "people", correctly calling itself a
constitutional democratic republic, as the United States is sup-
posed to be, has ever put its leaders into power and then dele-
gated to these same leaders the right to disarm the "people" as a
whole.
The needs and desires of weak and helpless people are
seldom taken seriously by persons in power over them, whether
these persons in power are government officials or criminals.
In my view, long held by many others before me, one of the
main concerns of the framers of the United States Constitution
was to prevent a "tyrannical majority" of citizens as voters, for
example, or through their elected representatives, from infring-
ing upon the normal and common rights of any rather numerically
small and weak "minority" .
To wit: I had an ancestor from Ireland. In the latter half
of our previous century if it had come to a secret vote by the
people of New England that all Irish immigrants would be immedi-
ately returned to Ireland this probably would have carried by a
large margin. The Constitution prevents this.
The Constitution makes unthinkable, for example, deporta-
2
tion of the freed slaves to their original nations under the
"Emancipation Proclamation" in 1863 , although a "tyrannical
majority" of voters might have approved.
It is therefore possible and in fact is now taking place
that the "tyrannical majority" is marshalling the legislative and
electoral clout to deprive , unconstitutionally, the smaller
number of citizens of the right to " . . . .keep and bear Arms. . . " .
The greatest factor guaranteeing that local officials will
maintain their positions of freely elected power is the prolifer-
ation of firearms among their known neighborhood law-abiding
constituents. Strength at the county and city level by citizens
guarantees that the higher powers in government will look with
respect at supervisors, mayors and councilpersons instead viewing
them as a weak group of followers.
All good and beneficial things seem to have some negative
side-effects and I know that there will always be a certain
irreducible minimum level of accidents and crimes involving
legally obtained firearms.
The effort to mitigate this involves the difficult and
time consuming teaching of judgment in all phases of living and
not lengthy time periods of firearms training.
Although AMPROCON has no activities involving the handling
of guns, we know from experience that it takes less time and
skill to learn everything necessary to disassemble, clean, reas-
semble, and fire safely any type of personal firearm under dis-
cussion today than it does to produce a 3 layer birthday cake; or
to change a flat tire and wheel on your car: or to sew a simple
blouse for your daughter with a sewing machine.
Many people of high intelligence own and use firearms
regularly, but the fact is that hand-held weapons are so simply
built that high intelligence and skill are by no means necessary.
Long, extended training time requirements are desired by
anti-constitutionalists to discourage, deter, and to infringe
upon people' s right to obtain firearms.
Surveys continually tend to show that the problems of
violence in general arise in large part from certain teen age
boys so this is where the corrective and educational efforts of
government should be concentrated.
Especially at the higher levels of government it is my
view that substantially all elected and appointed officials have
historically tried to increase their powers and influence ,
either by enhancing the sworn powers granted to them or by dimin-
ishing the powers of those constituents below them. This is only
human nature but is misguided.
Throughout history, as the people lose power the first
officials to suffer with them are at the local level.
While AMPROCON does not participate in the potentially
corrupting practice of handing money to politicians or political
parties, we do try to maintain contact with these officials from
our educational standpoint.
We attempt to enlighten and persuade rather than enter
these fund raising activities for candidates and political par-
ties and we have obtained some positive results.
Yet, in spite of our efforts, many local officials in the
guise of "crime control" or "public health issues" try to enact
firearms laws that will infringe upon the rights of their voting
supporters.
Who do you officeholders trust more - the neighbors that
3
Voted you into office or the higher level state and federal
people?
Criminals applaud this misguided legislation that will
disarm your local constituents!
Criminals will always have weapons and other "contraband"
as is evident every day in connection with drugs, alcohol, ille-
gal aliens, gambling, auto "chop shops", etc.
The ratio of uniformed peace officers to city and county
residents is usually about one officer per thousand citizens .
This means that each officer on shift is "responsible" for about
3-4 , 000 residents at any one moment.
The emergency authorities at all levels of government,
both nationwide and locally, warn everybody that in the event of
earthquake, hurricane, riot or other disaster that the people
must be prepared to take care of their own needs for at least 72
hours.
Therefore, during disasters there will be very little
law-enforcement, fire, and medical services and possibly extreme
shortages of food and utilities.
About half or more of the homes of your constituents now
have no guns to protect themselves ; and if the police can ' t
answer 911 , and if the National Guard may be delayed several
days; then you legislators that take any "depriving" steps in
your official capacities that interfere further with the self
protection of the community are doing an unconstitutional dis-
service.
Four or five police emergencies at the same moment would
certainly limit the ability of the Police or Sheriff's Department
to protect more than a tiny percentage of the population. No
sheriff or chief that I know of has ever guaranteed more than
diligence. No positive set of objective results can reasonably be
expected.
The need for citizens to have the means and abilities to
protect themselves is far from a "last resort" situation.
An 8. 3 Richter earthquake (as in San Francisco year 1906)
is the subject of many predictions. If the 1989 "Loma Prieta"
quake which did heavy damage and caused over 50 deaths in Oakland
and San Francisco had been 7 . 5 Richter instead of its 7 . 0 scale
there could well have been several thousand upset and desperate
people from some damaged Bay Area cities roaming other relative-
ly undisturbed neighborhoods in outlying areas.
In this instance the citizens themselves would have the
burden of keeping the peace and protecting their homes and fami-
lies. Firearms would be a very stabilizing influence.
It therefore is nonsense to consider and promote a stance
that decries "the proliferation of weapons" as contributing to
crime.
****************
The preceding may be moot, however, because many people
view the entire firearms field as having been "pre-empted" by the
state or federal government. It discredits you to act outside
your scope.
In the event that you officials , in considering this
restrictive legislation, have jurisdictional questions, I sug-
gest that an opinion from your Attorney be obtained, .if this has
not already been done.
4
I also feel that the Second Amendment to the U. S. Consti-
tution applies to your pending firearms decisions:
"A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms,
shall not be- infringed".
There should be no controversy on this Amendment today
and my view is that the Constitutional Founders wanted the people
to have arms in their everyday lives. This would tend to insure
their personal security and freedom and that when the armed
"people" gathered to form the "militia" that these "people" would
be familiar with the personal arms that they could "keep and
bear" all the time.
This right of the "common" people, who might be known as
peasants, subjects , serfs , colonists, citizens , etc. , to have
arms was hard won in history going back hundreds and thousands of
years. This right arises from the reflexive, instinctive, common
sense and common law need for freedom and security and was set
forth clearly by the Constitutional framers in the form of the
Second Amendment. No new law or novel interpretation of old law
can change this basic feeling in humans.
It is quite likely that possibly 25% or more of Americans
from colonial times up to the present have been uncomfortable
with the idea that the "people" as a whole can have firearms.
These citizens seem to prefer the impractical view that a "king"
or "dictator" type of leader should be supreme and protect all
his subjects.
The percentage of these "royalists" may now be signifi-
cantly greater than 25% and many of these people have found their
way into government positions including the court system.
This causes a distortion of the Second Amendment and
leads many anti-constitutional politicians and government offi-
cials to evade the true meaning of the words " . . . . the right of
the people to keep and bear Arms, shall not be infringed" by
"hedging" somewhat their weak sounding negative positions.
Apparently they are agreeing that the Second Amendment
does actually read that the people can have firearms but �� . . .
courts have held . . . .
11 that the people can not have them.
Any unbiased, literate person, with access to a dictionary
can not hold this unconstitutional position, as I see it.
********************
Another area of legal opinion that should be of interest
to the various counties and cities is that of a possible monetary
liability against powerful persons such as you are when "under
color of any statute, . . . . .of any State. . " you use this power to
deprive other Americans of their rights. This apparently still
exists as set forth in the year 1871 in Title 42 U. S. Code;
article 1983 .
The present text of this @ 1983 is here transcribed bold:
5
@1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regu-
lation, custom, or usage of any State or Territory or the Dis-
trict of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdic-
tion thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
I intend to enclose herewith for your convenience some
excerpts from Title 42 copied from the County library in Pleasant
Hill . I apologize for the poor quality of the copies . It is
difficult to place the large code books on the copying machine.
I also enclose a copy of a U.S. Supreme Court Decision of
November 5, 1991 called "Hager v. Melo et al".
It is tedious , but you may wish to read all the way
through the writings of this decision of several pages by Jus-
tice O'Connor to the final paragraph confirming the 8 to 0 unani-
mous vote of the justices that:
We hold that state officials, sued in their individual
capacities are "persons" within the meaning of @1983. The Elev-
enth Amendment does not bar such suits, nor are state officers
absolutely immune from personal liability under 01983 solely by
virtue of the "official" nature of their acts.
I am retired and I like to read, from my lay view, these
government codes and court decisions and contemplate their poten-
tial impact upon people who participate in passing and enforcing
laws that may restrict the rights of others.
This is quite easy for me because I devote the limit of my
energies to the preservation of people's rights; not their depri-
vation or infringement.
It is certainly understandable though that in reading
these codes and decisions that you leaders, and others in govern-
ment positions, who are contemplating enacting and enforcing a
law that can deprive and infringe innocent citizens of their
rights "secured by the Constitution and laws" , might not find
these legal quotes so relaxing.
Conversely, it is quite possible that you have extensive
knowledge of these potential liabilities (or lack thereof) and
that you can without a second thought proceed to act quickly.
It is also possible that legal opinion (the government
attorney or your personal lawyer) will guarantee you that you are
at little or no risk; that any such complaint against you would
be difficult to prove; that if you are a salaried city, county,
or state employee just "doing your job" that you might have the
right of indemnity against your superiors; that the monetary
liability to you personally would be insignificant; that your
governmental title does not mean that Justice Sandra Day O'Connor
of the ultimate court can call you a "state official" ; or that
there are many other cases in your favor wherein " . . .courts have
held. . . " .
Just as your UNANIMOUS official Board of Supervisors
decisions to pursue the infringement upon and deprivation of
6
rights by approval of the subject firearms restrictions speak a
clear message about your apparent disregard for your oath of
office to uphold the Constitution of the United States including
its Second Amendment (" . . . the right of the people to keep and
bear Arms, shall not be infringed. ") ---
---- so too by a rare UNANIMOUS vote did the United States
Supreme Court appear to put you on actual notice of the financial
risks you may possibly face.
I do not envy you. I am pleased that I am not and never
intend to come anywhere near the position you may find yourselves
occupying for the next few years should you work toward and
approve anything like the subject resolutions that infringe upon
firearms.
Maybe I missed it but frankly, I consider it strange that
I have heard no public discussion by your two county Boards of
Supervisors of this 1991 Sandra Day O ' Connor 8 to 0 decision
treatise under this 120 year old [42 U.S.Code @1983] law. When I
walked into our small local library the clerk upon my inquiry
went immediately to the rack and easily found the writing.
It seems that the O'Connor essay certainly should be of
more than casual interest to you or other legislators, or to
law enforcement, or to county and city employees (or their union
legal counsel) or anyone else in government that may have his/her
personal financial situation in any type of jeopardy due to
employment activities.
A look back into the history of all existing state and
local law with "Hager v.Melo et al" in mind might be reassuring
also. '
In fact, if anyone, public or private, wants to engage in
any activity anywhere that can remotely affect our physical envi-
ronment (air - fish - snakes - soil - etc. ) then an extensive
"Environmental Impact Statement " must be prepared.
Public money must be handled properly and therefore it
seems like all proposed legislation must be subject to a "Finan-
cial Impact Statement".
In my view all laws, regulations, rulings and the like
originating at the highest levels of the U. S. Government and
extending down through all layers to the lowest rank part-time
quasi public "district" should be subject to a
"CONSTITUTIONAL IMPACT STATEMENT"
by whatever lawyer will later prepare the approved form.
It may be possible that you were not aware of this court
decision or that you know about it and don't care.
I hope that you have considered clearly the ramifications
of putting your work, voice, and/or your signature into the
permanent public record domain in these proceedings and on other
firearms issues you may be asked to join. The record of your
action is not eraseable.
This letter is not designed to counter emotionally irra-
tional views or the views of those who want to disarm the "peo-
ple" as a whole regardless of reason or logic.
Sincerely
7
! • ; , # :; j::;.Wednesday:November 6.�'99I 'A•1 -r
_ _ ♦ f
• •�,.. - .'� :.�0+ �:��::'' a�.'3S',��;: � .. .._ .i'.t�:':.':�Gt!r i.'��''!-tib,.. t ,
C0, 1j"ri . says oinciaisc' an
Mel
r, b et e' :
r! :sona y� able'-
The Stu '%wahkVton Post Two years-ago, the court ruled
a � ..WASHINGTON -th e Su. ; that Section 1983 did not allow I
damage suits a ainst states or i
' preme Court ruled unanimously 8 8
yesterday that state officials can state officials sued in their:Offi- ;
be forced to a moneta d - cial capacities. Hafer, who Was ;
"•` r'
V
D rV =
;ages—ut�f their ownRockets_if + sued personally rather than-as
` their official actions�iolate Deft- auditor general, nevertheless
j
le s ri hts. ' -: _ argued that the ruling protecfed a
: .. :..;.. p ,.
court, ;voting 8-0, said her against liability for firing s
em to ees
state officials can be held liable � the p y because she was
under a key federal civil rights ! acting in her official capacit .
..law even .if .their actions Wereesterday, O'Connor said af- i
taken as part of their official er had misinterpreted the ear-.i
• , duties. Justice Clarence Thomas Ler ruling when she took i 'to .
:noi _ ::did not participate :in the case, mean she 'was shielded._if8m•
which was argued before he took i being sued. "The requirement of
- the bench.. .ar;t ��s:, t: •::�:e
action ander color of state-law
The decision, written by .Jus- means that Hafer may be liable.'
tice Sandra Day O'Connor, came for edwharging (the employees) :
y m a lawsuit against Pennsylvan- precisely because of her authori- .a }
is Auditor General Barbara Haf- ' ty as auditor general, she 4d.
-here it has be- er. Hafer, a Republican, was ac- We cannot accept the novel
la" for crimi- cused of firing Democratic em- proposition that this same offs- '
iding Oakland ployees after she was elected in ' cial authority insulates* Hafer I .
embers of the 1988 in retaliation for their po- !, from
who switched Aitical affiliation and support forO'Connor -:said Hafer's
•eral Vietnam- her opponent. - - proach "would absolutely '
The question in the case, Haf• size state officials from person-
the Wah Ching er vs. Melo, was whether mer = al liability for acts within &ir
e that saw at • cou be held personally liable authority and necessary tonful- ;
hers of both un er t e aw Hawn as filling governmental responsi- ;
lop To "is now Section 1 a , w is 1 o,us Na.►,e hilities" — something- that the
pally all of the "e er n" who, acting "un- court has refused to do and that, i
section rackets de co or of" state law, violates O'Connor said, would be ineon- i
the staff state- another's federally Dro e�ted sistent with the purpose oMe
rights. - law.•t: ':; :�:;�:c. : , r;- : i
•,:.�'Pi.,`K�.. �,t'1. ,. . ��i�w'�3��ti ri.et/�1',•:��.�T-'�'L�!. •'-•s,�l� ,j{* �-{ ��•��f.Xi}�.+i�j.+•rt2�? :-'—�,�� j'�"+ _ :'�. x
- i.j -.'3� ri . :'P1. ^ `'- ^�i• i 4' S" 7 ''si-:1� �. '�•— •. J��a+.'y ppii- Q 4
J .�
' � or �'
C.&v/
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NOTE: Where it is feasible,a syllabus(headnote) will be released,as is
being done in connection with this caac, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF T-H-E. UNNITEDSTATES
Syllabus ;
HAFER V. MELO ETA ;
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 90-681. Argued October 15, 1991—Decided November 5, 1991
After petitioner Hafer, the newly elected Auditor General of Pennsylva-
nia, discharged respondents from their jobs. in lien.office;"they sued
her for, inter alio, monetary damages under'42'U:'S. C: §1983. The
District Court dismissed the latter claims .under Will v."Michigan
Dept. of State Police,-,$91 U. S. 58, 71, 1n.which the Court held that
state officials "acting in-their official capacities" are outside the class
of"persons" subject to liability under § 1983. :In'reversing this ruling,
the Court of Appeals found that respondents sought`damages from
Hafer in her personal capacity and held that, .because.she- acted
under color of state law,respondents could maintain a g1983 individ-
ual-capacity'suit against her.' '
Held: State officers may.be.held .personalty liable for damages. under
§ 1983 based upon actions taken in their official :capacities. Pp. 3-10.
(a) The above-quoted language from Will,does.not establish that
Hafer may not be held personally liable under f1983 because she
"act[ed]" in her official capacity. The claims considered in Will were
official-capacity claims, and the phrase "acting in their official
capacities" is best understood as a reference to the capacity in which
the state officer is sued, not the capacity in which the officer inflicts
the alleged injuzy. Pp. 3--5.
(b) State. officials, sued in their indivi i,.1al capacities, are "persons"
wi%JM the" meaning of § 1983. Unlike official-capacity defen-
dants—who are not "persons"because they assume the identity of the
government that employs them, Will, supra, at 71--officers sued in
their personal capacity come to the court as individuals and thus fit
comfortably within the statutory term "person," cf. 491 U. S., at 71,
n. 10. Moreover, § 1983's authorization of suits to redress depriva-
tions of civil rights by persons acting "under color of" state law
B172 Cited 52 CCH S. Ct. Bull. p.
HAFER u. MELO
Syllabus
means that Hafer may be liable for discharging respondents precisely
because of her authority as Auditor General. 'Her assertion tnat-acts
that are both within the official's authority and necessary to the _
performance of governmental functions (including the employment
decisions at issue) should be considered acts of the State that cannot
give rise to a personal-capacity action is unpersuasive. That conten-
tion ignores this Court's holding that § 1983 was enacted to enforce
provisions of the Fourteenth Amendment against those who carry a
badge of a State and represent it in some capacity, whether they act
in accordance with their authority or misuse it. Scheuer v. Rhodes,
416 U. -S. 232, 243. Furthermore, Hafer's theory would absolutely
immunize state officials from personal liability under § 1983.solely by
virtue of the "official nature of their acts, in contravention of this
Court's immunity decisions:= See, e..9., Scheuer, supra. Pp. 54.
(c) The Eleventh AXnenclment does not bar § 1983 personal-capacity
suits against state officials in federal court. Id.,.at 237,-238., Will's
language concerning suits against state officials cannot. be read as
establishing the limits of liability under the Amen-'. e`nt, since Will
arose from a suit in state court and considered the Amendment only
because the fact that Congress did not intend :to., override state
immunity when it enacted § 1983 was relevant to statutory construc-
tion. 491 U. S., at 66. Although imposing personal liability on state
officers may hamper their pgrforriiance ofpul?lic duties, such concerns
are properly addressed within the framework 'of this Court's personal
immunity jurisprudence. "Pp: 8-10.
j: .
912 F. 2d 628, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in .which all other
Members joined, except THOMAS, J., who took no part in the'-consider-
ation
he co_ nsider-
ation or decision of the case. .
- 1
Cited 52 CCH S. Ct. Bull. p. 8173
N*?00014 pod
SUPREME COURT OF THE UNITED STATES
No. 90-681
BARBARA HAFER,. PETITIONER
JAMES C.,MELO, JR., ET'AL:;,
.ON WRIT OF ,CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT'
[November 5, 19911
JUSTICE O'CONNOR delivered the opinion 'of the Court.
In Will v. Michigan Dept. of State Police, 41. 91�U. S. '58
(1989), we held that state officials "acting.in their official
capacities are outside, the class of. .persons ., subject, to
liability under 42 U. S. C. §1983. 491 U. S., at 7.1: -Peti-
tioner takes this. language to mean. that §1983 does not
f.
authorize suits againsl�state officers, for damages:arising
from official acts. . We ,reject this. reading of Will and hold
that state .officials sued in their individual capacities are
"persons" for purposes of §1983.
In 1988, petitioner\ Barbara Hafer sought.election -to'the
post. of Auditor General of Pennsylvania: ..' Respondents
allege that during the. campaign -United.States :Attorney
James West gave Hafer a list of 21 ;employees''Mn the
Auditor General's Office who secured,their jobs',through
payments to a former employee of the office: App: 10.
They further allege that Hafer publicly_ promised.to,fire all
employees on,.the list if elected. • b.id. _; ,
Hafer won.the election. ' Shortly after,becoming Auditor
General, she , dismissed 18 employees, including ..named
respondent James Melo, Jr., on the basis that they "bought"
their jobs'. Melo and -seven other terminated employees
sued Hafer nd Westin Federal District Court. " They*as-
A�
HAFER v. MELO
serted state and federal claims, including a claim under
§1983, and sought monetary damages. Carl Gurley and
the remaining respondents in this. case also lost their
jobs with the Auditor General soon after Hater'took office.
These respondents allege that Ha!er discharged them be-
cause of their Democratic political _affiliation .and.support
for her opponent .in the 1988 election.'.,`IId.;.,'at 28, 35, 40.
They too filed suit against Hafer, seeking monetary dam-
ages and reinstatement under §1983.
After consolidating the Melo - and_ Gurley actions, the
District Court dismissed all claims. In relevant part, the
court held that the §1983 claims against Haferm' ere barred
because, under Will, she could not be.16ld' liable. for em-
ployment decisions.made in her official capacity as Auditor
General.
The Court of Appeals for the Third Circuit. 'reversed this
portion of the District Court's decision. 912Y.F. 2d 628
(1990). . As to claims for reinstatement 'brought against
Hafer in her official capacity, the court-rested on our
statement in Will that state officials sued' for injunctive
relief in their official capacities are "persons" subject to
liability ,%under . §1983.— See.,Will,. supra, , at 71, n. 10.
Turning td respondents' monetary..claims,'the*court found
that six members of the Gurley group had expressly sought
damages from Hafer in her personal capacity: The remain-
ing plaintiffs "although not as explicit, signified a similar
intent." 912 F. 2d,. at 636.* The court found this critical.
*The Third Circuit looked to the proceedings below to determine
whether certain respondents brought their claims"for damages against
Hafer in her official capacity or her personal capacity. 912 F. 2d 628,
635-636 (1990). Several other Courts of Appeals adhere to this practice.
See Conner v.Reinhard, 847 F. 2d 384, 394, n. 8 (CA7),'cert. denied, 488
U. S. 856 (1988); Houston v. Reich, 932 F. 2d. 883, 885 .(CA10 1991);
Lundgren v.McDaniel, 814 F. 2d 600, 603-604(CA111987). Still others
impose a more rigid pleading requirement. See Wells v. Brown, 891
F. 2d 591, 592 (CA6 1989) (§1983 plaintiff'must specifically plead that
suit for damages is brought against state cfficial in individual capacity);
, /7S
HAFER v. MELO
While Hafer's power ; to hire and fire derived from her
position as Auditor General, -it said, �a' suit for 'damages
based on the exercise of this authority could be brought
against Hafer in her personal capacity. Because Hafer .
acted under color of state law; respondents could maintain
a §1983 individual-capacty'suit against her.
' We granted certiorarii
, 498 •Lr: S:, (1991), to address
the question whether state'officers may be held personally
liable for damages*under §1983 based upon actions taken
in their official capacities. `
In Kentucky V. Grciham; 473 U. S. 169'(1985), the Court
sought to eliminate lingering confusionabout the distinction
between personal-' and official=capacity'suit_s: ' -We empha-
sized that official-capacity suits "`generally represent only
another' way of pleading an` action `against - an'entity of
.which an officer is an agent."' Id.-, at-165 (quoting Monell
v.• New York City Dept. of Social= Servs.,- 436 U. S. -658,
690, n. 55 (1978)). A suit against--.4 state official in her
r
official capacity 4hereforel"should i: be- treated as a suit
against the State. 473 U. S., at 166.._ Indeed, when an of-
ficial sued in this capacity in federal. court dies 'or leaves
office, her successor automatically. assumes her role in the
litigation.- See Fed. Rule Civ. Proc. 25(d)(1); Fed. Rule App.
.Proc. 43(c)(1); this Court's Rule. 35.3. ._„Because the real
party in interest in an official-capacity suit is .the govern-
mental entity and not ;the named -.official, ."the entity's
`policy or custom' must have. played a part in the violation
of-federal law." Graham, supra, *at 166 (quoting 'Monell,
.Nix v. Norman, 879 F. 2d 429, 431 (CA8 1989) (same). Because this
issue is not properly before us, we simply reiterate the Third Circuit's
view that "[i]t is obviously preferable for the plaintiff to be specific in the
first instance to avoid any ambiguity.” 912 F. 2d, at 636, n. 7. See this
Court's Rule 14.1(a) ("Only the questions.set forth'in the petition, or
fairly includAd fliprPln %%,11 [1P rnnc;riarPrj by t}iP rn,,T n
HAFER u. MELO
supra, at 694). For the same reason, the: only immunities
available to the defendant in an official-capacity action are
those that the governmental.entity possesses. , 473 :U. S., ,
at 167.
Personal-capacity suits, on the other hand, seek to impose
individual liability upon a govern ment-rofficer for actions
taken .under color of state law.... Thus-lo]n:the merits, to
establish personal liability in a §1983, action, -it is .enough
to show that the official, acting under color of state law,
caused the deprivation of a federal right."...>Id., at 166.
While the plaintiff in a personal-capacity suit need not
establish a connection to governmental "policy or custom,"
officials.sued intheir personal capacities, unlike those sued
in their official, capacities, may; assert personal- immunity
defenses such,as objectively reasonable reliance on existing
♦tt+iAAi 1*1ri •iftl �Mrarey�taNr it , 1f e;l:.H ►its• cri.,: �. .t t ..,
Our decision in Will v. Michigan Dept.; of $tate-Police,
491 U. S.,58 (1989), turned in part on these. differences be-
tween personal- and official-capacity_actions. .The. principal
issue* in Will was whether States are "persons";-subject to
suit under §1983. Section 1.983 provides, in relevant part:
"Every.person who, under color of any 'statute, ordi-
nance,regulation, custom, or 'usage,= of any State . .
subjects, or causes to be subjected, any' citizen of the
United States or other person within' the jurisdiction
thereof to the deprivation 7of any rights, privileges,- or
immunities secured by the"Constitution and laws, shall
be liable to the party injured
The Court held that interpreting the words "[elvery person"
to exclude the States accorded with the most natural
reading of the law, with its legislative history, and with the
rule that Congress_must clearly state_its intention to alter
,1
"`the federal balance"' when it seeks .to.�do so. Will, supra,
at 65 (quoting United States-v.".,Bacss, .404,U. .S. 336, ,349
(1971))•
The Court then addressed the related question:whether
HAFER u: MELO
state officials, sued for monetary relief.,in their official
capacities, are persons under,§1983.- We held that they are
not. Although "state officials literally- 'are - persons,"- an
official-capacity suit against a state,'officer ' 'is not a suit
againet the official but rather is a suit fgginst the official's
office. . As such'it is no differentfrom'a'. suit against the
State itself." 491 U. S., at 71 (citation-omitted).
Summarizing our holding, we said: "[N)either a State nor
its officials acting in their official capacities are `persons'
under §1983." Ibid. Hafer relies on this,-recapitulation
for the proposition that she may not be held personally lia-
ble under §1983 for discharging respondents because' she
is
act[ed]" in her--official capacity as"Auditor General 'of
Pennsylvania: Of course, the claims considered 'in -Will
were official-capacity claims; the:phirase%"acting in 'their
official capacities"-is best understood'as' a-reference tolhe
capacity in which the state officer issued, not the capacity
in which the officer inflicts the `alleged injury. To the ex-
tent that Will allows the construction' Hafer suggests, how-
ever, we now eliminate that ambiguity.
Will 'itself'makes clear that -the distinction between
official-capacity suits and personal-capacity suits is more
than "a mere'pleading device"-' -•Ibid.'; State officers sued
for damages in their official capacity are not."persons" for
purposes of the suit because they assume the identity of the
government that employs them. -Ibid. -By--contrast, officers
sued in"t'heir personal capacity come to court as individuals.
A- government official, in the role of personal-capacity de-
fendant thus fits comfortably - within, the =statutory term
"person." U id., at 71, n. 10 ("[AI .state official in his or
her official capacity, when sued for injunctive relief, would
be a person under §1983 because `official-capacity actions
for prospective relief are not treated as actions against the
State"') (quoting Graham, 473 U. S., at 167, n. 14).
Hafer seeks to overcome the distinction between official-
HAFER u. MELO
and personal-capacity suits by arguing that §1983 liability
turns not on the capacity in which state officials are sued,
but on the capacity in which,they.acted when,injuring the
plaintiff. Under Will, she asserts,- state -officials may, not
be held liable in their personal rapacity-for actions they
take in their official capacity.', .Although . one :Court of
Appeals has endorsed this view,, see Cowacn v. University
of Louisville School of Medicine;` 900 F. 2d 936; 942-943
(CA6 1990), we find it both unpersuasive as an interpreta-
tion of §1983 and foreclosed by. our prior decisions.
Through §1983, Congress sought ."to.,:.give a remedy to
parties deprived of constitutional.;rights,-'.privileges and
immunities by an official's abuse of-his position." Monroe
v: Pape, 365 •,J... S. 167; 172 (1961). Accordingly, it autho-
rized suits to.redress deprivations of civil.rights by-persons
acting "under color of any [state] statute,�ordinance, regula-
tion, custom,-or usage." : 42 U.,.S._ C_ . §1983.-. The require-
ment of action under color of, state law means that Hafer
may be liable for discharging respondents precisely because
of her authority as Auditor General. . We..cannot accept the
novel.proposition that this same official authority insulates
Hafer from suit. ;
In an effort to limit the.scope of her. argument,' Hafer
distinguishes between two categories -of-acts taken under
color of state law: those outside the-official's authority or
not essential to the operation of state: government,".and
those both within the official's authority and necessary to
the performance of governmental functions. Only the
former, group, she - asserts, -can subject .state officials to
personal liability under §1983; the latter. group (including
the employment decisions at issue in;this case) should be
considered . acts of the State that'-cannot give rise to a
personal-capacity action.
The distinction Hafer urges finds no support in the broad
language.of §1983. -To the contraryJt ignores our holding
that Congress enacted §1983 a"•.`to.enforce provisions of the
Fourteenth Amendment against those who carry a badge of
HAFER v. MELO
authority of a State and represent it in some capacity,
whether they act in accordance, with their •authority ' or
misuse it."' Scheuer v.-Rhodes, 416 U. S. 232, 243 (1974)
(quoting Monroe v. Pape, supra, at 171-172). ,Because of
that intent, we have held that in §1983 actions the statu-
tory requirement of action "under ,color 'of state law is
just as broad as the Fourteenth Amendment's "state action"
requirement. Lugar v. Edmondson Oil Co., 457 U. S. 922,
929 (1982).
Furthermore, Hafer's distinction cannot be reconciled
with our decisions regarding immunity " of government
officers otherwise personally liable for acts done in the
course of their official duties.' Her theory would absolutely
immunize state`officials from personal , liability for acts
within their .authority and,necessary:to fulfilling govern-
mental responsibilities. - Yet our cases do not extend-ab-
solute
xtend-ab-
solute immunity to all officers who engage in necessary
official acts. Rather, immunity from �suit. under §1983 is
"predicated upon a considered inquiry-into the immunity
historically accorded the relevant official at common law
and the interests behind it,"Imbler. v. Pachtman, 424 U. S.
409, 421`(1976);and officials seeking- absolute immunity
must show that such immunity is justified for the govern-
mental function at issue, Burns v.Reed, 500 U. S. ,
(1991) (slip op., at 6).
This Court has refused to extend absolute immunity be-
yond a very limited class of officials, including the President
of the United States, legislators carrying out their legisla-
tive functions, and judges carrying out their judicial func-
tions; "whose special functions or-constitutional status re-
quires complete protection from suit."- Harlow v. Fitzgerald,
457 U. S. 800, 807 (1982). State executive officials are
not entitled to absolute immunity for. their official actions.
Scheuer v. Rhodes, supra. In several instances, moreover,
we have concluded that no more than a qualified immunity
attaches to administrative employment *decisions, even if
the same official has absolute immunity when nerforminz
HAFER v. MELO
other functions. ; See Forrester v.. White, 484 U. S. - 219
(1988) (dismissal of court employee by state judge); Harlow
v. Fitzgerald, supra (uischs:ge ' of Air, -F.orce '.employee,
allegedly orchestrated by senior White House aides) (Bivens
action); Davis v. Passman, 442 U.'S. 223 (1979):(dismissal
of congressional aide) (Bivens action), tThat•-Hafer may
assert personal immunity. within ..they framework of- these
cases in no way supports her argument here.
B
Hafer further asks us to read Will's language, concerning
suits against state officials as establishing- the- limits of
liability under the Eleventh Amendment.-; She asserts that
imposing personal lidbility on officeholders.:may infringe on
state sovereignty by rendering.government ,less .I effective;
thus, she argues, the Eleventh Amendment forbids person-
al-capacity,suits against state officials-in federaL.court. ,
Most.certainly, Will's holding does not rest.directly on the
Eleventh Amendment. Whereas the Eleventll Amendment
bars suits: in federal court "by private parties;seeking :to
impose- a:liability whicl�_must be: paid. from .public- funds
in the state, trea§ur�;"Edelman v. Jordan;:415:U;JS. .651,
663 (1974), Will arose from a suit in state;court. Ne con-
sidered the Eleventh Amendment in Will only because the
fact that Congress did not intend to override. _state im-
munity when it enacted §1983- was relevant -to statutory
construction: "Given that a principal purpose ,behind the
enactment of §1983 was to provide a federal forum for civil
rights claims,'. Congress' failure to-authorize, suits against
States in federal courts suggested that i o also did not intend
to authorize such claims in. state courts.., Will,,.491 U. S.,
at 66.. - .To the extent - that _Hafer. argues from -.the Eleventh
Amendment itself, she makes a claim that failed.in Scheuer
v. Rhodes, supra., In Scheuer, personal .representatives of
the estates of three students who died at.Hent .State Uni-
versity.in May 1970 sought damages from the Governor of
HAFER v. MELO
Ohio and other state officials.-The.District Court dismissed
their complaints on the theory that the suits, although
brought against state officials in their. personal.capacities, 1
were in substance actions against the State. of Ohio and.
therefore barred by the Eleventh Amendment.
We rejected this view. "[S)ince Ex.parte Young, 209 U. S.
123 (1908))" we said, "it has been settled that.the Eleventh
Amendment provides!no shield for a state official confronted,
by a claim that he had deprived another of a federal right
under the color of state law." Scheuer, 416 U. S., at 237.
While the doctrine of Ex pante Young does not apply where
a plaintiff'seeks damages from the public treasury, damages
awards against individual defendants in federal courts "are
a permissible remedy in some circumstances notwithstand-
ing the fact that they hold public office." 416 U. S., at 238.
That is, the Elelenth Amendment does not erect a barrier
against suits to impose "individual and personal liability"
on state officials under §1983. Ibid.
To be sure, imposing personal liability on state officers
may hamper their performance of public duties. But such
concerns,.are preperfy'addrIbssed within the framework of
our personal` immunity jurisprudence. See Forrester v.
White, supra, at 223. Insofar as respondents seek damages
against Hafer personally, the Eleventh Amendment does
not restrict their ability to sue in federal court.
We hold that state officials, sued in their individual ca-
pacities, are "persons" within the meaning of §1983. The
Eleventh Amendment does not bar such suits, nor are state
officers absolutely immune from personal liability under
§1983 solely by virtue of the "official" nature of their acts.
The judgment of the Court of Appeals is
Affirmed.
JUS'T'ICE THOMAS took no part in the consideration or
decision of this case.
Art. XI, § 2 CONSTITUTION OF CALIFORNIA 149
[Article not Preempting or Superseding Other Protective Closures]
SEC. 15. This article does not preempt or supersede any other clo-
sures to protect ar_y other wildlife, including sea otters, whales, and
shorebirds. [New section adopted November 6, 1990. Initiative mea-
sure.]-
[Se
ea-
sure.]-[Se verabili ty)
SEC. 16. If any provision of this article or the application thereof to
any person or circumstances is�heYd invalid, that invalidity shall not af-
fect other provisions or applications of this article which can be given
effect without the invalid provision or application, and to this end the
provisions of this article are severable. [New section adopted November
6, 1990. Initiative measure.]
ARTICLE XI. [Repealed June 2, 1970. See Article XI, below.]
i, ARTICLE XI
LOCAL COVERNMENT
SECTION 1. [Repealed June 2, 1970. See Section 1, below.]
Counties—formation, Boundaries, County Seat, Officers, and Governing Body]
!.SEC. 1. (a) The State is divided into counties which are legal sub-
divisions of toe State. Thc9 Legislature shall prescribe uniform proce-
dure Ifor countyformation, consolidation, and boundary change. For-
mation or consolidation requires approval by a majority of electors
voting on the question in each affected county. A boundary change re-
quires approval by the governing body of each affected county. No
county seat shall be removed unless two-thirds of the qualified electors
of the county, voting on the proposition at a general election, shall vote
in favor of such removal. A proposition of removal shall not be submit-
ted in the same county more than once in four years.
(bj "The Legislature shall provide for county powers, an elected
county sheriff, an elected district attorney, an elected assessor, and an
elected governing body in each county. Except as provided in subdi-
vision (b) of Section 4 of this article, each governing body shall pre-
scribe by ordinance the compensation of its members, but the ordi-
nance prescribing such compensation shall be subject to referendum.
The Legislature or the governing body may provide for other officers
whose compensation shall be prescribed by the governing body. The-
governing body shall provide for the number, compensation, tenure,
and appointment of employees. [As amended June 7, 1988.]
SE(-,. 2. (Revealed Jude 2 1970. See Section 9 below.1
150 CONSTITUTION OF CALIFORNIA Art. XI, ¢2
[Cities—Formotion, Powers] '
i
...)P- SEC. 2. (a) The Legislature shall prescribe uniform procedure' for
city formation and provide for city powers.
(b) Except with approval by a majority of its electors voting on the
question, a city may not be annexed, to or consolidated into another.
[Nein section adopted June 2, 1970.]
SEC. 3. [Repealed June 2, 1970. See Section 3, below.]
[County or City--Charters]
SEC. 3. (a) For its own government, a county or city may adopt a
charter by majority vote of its electors voting on the question. The
charter is effective when filed with the Secretary of State. A charter
may be amerided, revised, or repealed in the same manner. A charter,
amendment, revision, or repeal thereof shall be published in the official
State statutes:"Qounty charters adopted pursuant to this section shall su-
persede any existing charter and all laws inconsistent therewith. The
provisions of a charter are the law of the State and have the force and
effect of legislative enactments.
(b) The governing body or charter commission of a county or city
may propose a charter or revision. Amendment or repeal may be pro-
poged by initiative ar'by thy.governing body.
(c) `An election to determine whether to draft or revise a charter
and elect a charter commission may be required by initiative or by the
governing body.
(d) If provisions of 2 or more measures approved at the same elec-
tion conflict, those of the measure receiving the highest affirmative
vote shall prevail. [As amended November 5, 1974.]
SEC. 4. [Repealed June 27, 1933. See Section 4, below.]
[County Charters—Provisions]
SEC. 4' County charters shall provide for:
(a) A governing body of 5 or more members, elected (1) by district
or, (2) at large, or (3) at large, with a requirement that they reside in
a district. Charter counties are subject. to statutes that relate to appor-
tioning population of governing body districts.
(b) The compensation, terms, and removal of members of the gov-
erning body. If a county charter provides for the Legislature to pre-
scribe the salary of the governing body, such compensation shall be
1 prescribed by the governing body by ordinance.
(c) An elected sheriff, an elected district attorney, an elected asses-
sor, other officers, their election or appointment, compensation, terms
and removal.
(d) The performance of functions required by statute.
D 1981 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 878 Page 377
SEC. ty of the Nation and the health and living standards PART II—IWLn•
2000h4- Construction of provisions not to affect of its people require the realization as soon as feasible
authority of Attorney General,etc..to of the goal of a decent home and a suitable living envi• 83c. 201. Each e
institute or intervene in actions or ronment for every American family;and subject to this order
proceedings. WHEREAS discriminatory policies and practices dent's Committee c
2000h-4. Construction of provisions not to ex- based upon race, color, creed, or national origin now established purauan
clude operation of State laws and not operate to deny many Americans the benefits of hous- after sometimes ref,
to invalidate consistent State laws. ing financed through Federal assistance and as a con- thirty days from th
2000h-5. Authorization of appropriations. sequence prevent such assistance from providing them lining all current pr
2000h-8. Separability of provisions. with an alternative to substandard, unsafe, unsanJ- are affected by this,
Cnmrm RErEeRED To IN OTHER SECTIONS Lary,and overcrowded housing:and Sil:c. 202. Each suc
WHEREAS such discriminatory policies and prac- Primarily responsib)
This chapter is referred to in section 11111 of this tices result In segregated patterns of housing and nec- the purposes of this
title. mama administered `
essarily produce other forms of discrimination and With the Committee.
SUBCHAPTER I—GENERALLY segregation which deprive many Americans of equal law,such informatio
opportunity in the exercise of their unalienable rights In the performance c
11981.Equal rights under the law to life,liberty,and the pursuit of happiness.and at such intervals as t
WHEREAS the executive branch of the Govern- Srx. 203, Each sur
All persons within the jurisdiction Of the ment, in faithfully executing the laws of the United within thirty days fr
United States shall have the same right in States which authorize Federal financial assistance, such rules and regulf
every State and Territory to make and enforce directly or indirectly. for the provision, rehabilitation. policies, and make su
contracts, to sue, be parties, give evidence, and and operation of housing and related facilities, is any be consistent wi,
to the full and equal benefit of all laws and pro- charged with an obligation and duty to assure that ate to effectuate the
ceedings for the security of persons and proper- those laws are fairly administered and that benefits department and ager
ty as is enjoyed by white citizens, and shall be thereunder are made available to all Americans with- suttee in order to ac
subject to like punishment, pains, penalties, out regard to their race, color, creed, or national 1OrmitY as may be fee
taxes,licenses,and exactions of every kind, and origin: PART)
to no other. NOW, THEREFORE, by virtue of the authority
vested h. me as President of the United States by the 8sc.301.The Coma
(R.S. $ 1977.) Constitution and laws of the United States. It is or- and any officer or ea
Live department or a!
dered as follows:
CODIFICATION hold such hearings,
R.S. 11977 derived from act May 31, 1870, ch. 114, PART I—PREVENTION OF DISCRIMINATION tee, department, or C
{ IB, 18 Stat. 144. Compliance,enforcem•
Section was formerly classified to section 41 of Ttt)o SECTION 101. I hereby direct all departments and 81{C.302•Tf any exec
agencies In the executive branch of the Federal Gov ject to this order eor
S.Aliens and Nationality. ernment,insofar as their functions relate to the provi- (including but not lin
SHORT TITLE Or 1976 AMENDMENT slon, rehabilitation, or operation of housing and relat• ship.association,trust
ed facilities, to take all action necessary and appropri- JOW public agency h:
Pub. L. 94-559, which amended section 1988 of this ate to prevent discrimination because of racecolor,re or procedure issued or
, ,
title. is known as "The Civil Rights Attorney's Fees or any nondlacrimins
Awards Act of 1916", see note set out under section ligion(creed),sex or national origin— agreement or contract
1988 of this title. (s)in the sale,leasing,rental,or other disposition of ulation, or procedure,
restdentlRl property and related facilities (Including remedy such violatior
SECTION REFERRED TO IN OTHER SECTIONS land to be developed for residential use),or in the use Conference,concilfatlo
This section is referred to in section 1988 of this or occupancy thereof, if such property and related fa- efforts made by an,
title. cilities are— agency have been un
(i) owned or operated by the Federal Government, des. regulations, Pr(
0 1982.Property rights of citizens or adopted by it pursuant
(it) provided in whole or In part with the aid of went or agency may to
All citizens of the United States shall have loans, advances, grants, or contributions hereafter priate under its govern
the Same right, in every State and Territory, as agreed to be made by the Federal Government,or ]ted to,the following:
It may—
is enjoyed by white citizens thereof to inherit, (iii) provided in whole or in part by loans hereafter (a)cancel or termina,
purchase, lease, sell, hold, and convey real and insured. guaranteed, or otherwise secured by the went or contract with
personal property. credit of the Federal Government,or local public agency pro
(R.S. 11978.) (tv) provided by the development or the redevelop- bution, or other Feder
ment of real property purchased, leased, or otherwise commission or fee;
CODIFICATION obtained from a State or local public agency receiving (b) refrain from ext
R.S. 11978 derived from act Apr. 9, 1866,ch. 31, 1 1, Federal financial assistance for alum clearance or any program administ,
urban renewal with respect to such real property order until it in satin
14 Stat.Z7. under a loan of grant contract hereafter entered into; firm, or State or local
Section was formerly classified to section 42 of Title and the rules,regulations.r
S.Aliens and Nationality. ed pursuant to this or,
(b) In the lending practices with respect to residen• provisions included In a
Ex.ORD.No.11063.EQUAL OPPORTUNITY IN HOUSING tial property and related facilities (including land to (c) recuse ta
be developed for residential use) of lending institu• pp
Ex. Ord. No. 11063. Nov. 20, 1982. 27 F.R. 11527, as other (ender as a bene
amended by Ex. Ord.No. 12259,Dec. 31, 1980,46 F.R. tions, Insofar as such practices relate to loans hereaf• mbniatered by it whit)
ter insured or guaranteed by the Federal Government. approval if
1253,provided: revoke such
WHEREAS the granting of Federal assistance for SEC. 102. I hereby direct the Department of Housing Sac.303.In appropris
the provision, rehabilitation, or operation of housing and Urban Development and all other executive de- and agencies shall refer
and related facilities from which Americans are ex- partments and agencies to use their good offices and tions of any rules,regu'
cluded because of their race, color, creed, or national to take other appropriate action permitted by law,In. adopted pursuant to tl
origin Is unfair, unjust, and inconsistent with the cluding the institution of appropriate litigation, If re- nondiscrlmbnation prov
public policy of the United States as manifested in its quired,to promote the abandonment of discriminatory went or contract, for s
Constitution and laws:and practices with respect to residential property and re- he may deem appropri
WHEREAS the Congress in the Housing Act of 1949 lated facilities heretofore provided with Federal finan• authorized to furnish
[see Short Title note set out under section 1441 of this cial assistance of the types referred to in Section order to the Commitee
title)has declared that the general welfare and securi- 101(a)(il),(iii),and(iv). agency requesting such
r
ti _
Page 378 Page 377 TITLE 42—THE PUBLIC HEALTH AND WELFARE 01983
id living standards PART II—IKKJMUNTATION sY DEPARTMENTS nim Sec.304.Any executive department or agency affect-
as soon as feasible AGENCIES ed by this order may also invoke the sanctions provid-
>uitable living envi- -Sec. 201. Each executive department and agency ed In Section 302 where any person or firm. Including
and subject to this order is directed to submit to the Presl- a lender, has violated the rules, regulations, or proce-
:ies and practices dent's Committee on Equal Opportunity in Housing dures Issued or adopted pursuant to this order, or the
,atlonal origin now established pursuant to Pan IV of this order (herein- nondiscrimination provisions Included in any agree-
,e benefits of hour- after sometimes referred to as the Committee),within went or contract, with respect to any Program affect-
ante and as a con thirty days from the date of this order, a report out- ed by this order administered by any other executive
am providing them lining all current programs admliatered by it which department or agency.
d unsafe, rani- are affected by this order. PART IV—ESTAaLISMMfT or TNz PRESrDeNT'S
Sec.202.Each such department and agency shall be
primarily responsible for obtaining compliance with COsutlTra ON FAIIAL OPPORTUNITY IN HOUSING
policies and prat- the purposes of this order as the order applies to pro- (Revoked.Ex.Ord.No. 12259,Dec.31, 1980,46 F.R.
.f housing and nec• grams administered by it:and is directed to cooperate 1253.1
J:acrimination and with the Committee, to furnish it, in accordance with
,mericans of equal law,such information and assistance as it may request PART V—POWMS AND DUTIES OF THE PRESIDENT'S
unalienable rights in the performance of its functions,and to report to It CommiTTee ON EQUAL OPPORTVNI7Y IN HOUSING
.ppiness;and at such intervals as the Committee may require. Sac,501.(Revoked.Ex.Ord.No. 12259,Dec.31. 1980,
h of the Govern- SEC. 203. Each such department and agency shall, 46 F.R. 1253.1
aws of the United within thirty days from the date of this order, issue SEC.602.(a)The Committee shall take such steps as
nancial assistance, such rules and regulations,adopt such procedures and It deems necessary and appropriate to promote the co-
ion, rehabilitation. policies, and make such exemptions and exceptions as ordination of the activities of departments and agen-
lated facilities, is may be consistent with law and necessary or appropri- cies under this order.In so doing,the Committee shall
;ty to assure that ate to effectuate the purposes of this order.Tach such consider the overall objectives of Federal legislation
and that benefits department and agency shall consult with the Com-
relating to housing and the right of every individual to
.
11 Americans with- fortuity as may be feasible.mittee In order to achieve such consistency and uni• participate without discrimination because of racee,
creed, or national color,religion(creed),sex or national origin in the ul-
PART III—ENPORCIMIENT timate benefits of the Federal programs subject to
of the authority this order.
ted States by the Sac.301.The Committee,any subcommittee thereof. (b)The Committee may confer with representatives
ci
At States, it is heor- and any officer or employee designated by any execu• Of any department or agency. State or local public
five department or agency subject to this order may agency, civic, Industry, or labor group, or any other
hold such hearings, public or private, as the Commit- group directly or indirectly affected by this order; ex-
Lee, department, or agency may deem advisable for amine the relevant rules,regulations,procedures,poll-
RIMINATION compliance,enforcement,or educational purposes.
SEC.302.If any executive department or agency sub- cies, and practices of any department or agency sub-
departments and ject to this order concludes that any person or firm jest to this order and make such recommendations as
f the Federal Gov- (including but not limited to any Individual. partner- may be necessary or desirable to achieve the purposes
relate to tale provi- ship,association,trust,or corporation)or any State or of this order.
housing and relat- local public agency has violated any rule, regulation, (c)The Committee shall encourage educational pro-
sarY and appropri- or procedure issued or adopted pursuant to this order, grains by civic, educational, religious, industry, labor,
se of race,color,re- or any nondiscrimination provision Included in any and other nongovernmental groups to eliminate the
agreement or contract pursuant to any such rule, reg- basic causes of discrimination In housing and related
Ither disposition of ulation, or procedure, it shall endeavor to end and facilities provided with Federal assistance.
acilities (including remedy such violation by informal means, Including SEC.503.(Revoked.Ex.Ord.No. 12259,Dec.31,1980,
use),or in the use conference,conciliation, and persuasion unless similar 46 F.R. 1253.1
Tty and related Is- efforts made by another Federal department or PART VI—)lirscEZLANsotrs
agency have been unsuccessful. In conformity with
deral Government, rules, regulations, procedures, or policies issued or Sec. 601. As used in this order, the term "depart,-
adopted by it pursuant to Section 203 hereof,a depart- menta and agencies" includes any wholly-owned or
't with the aid of ment or agency may take such action as may be appro- mixed-ownership Government corporation, and the
ibutions hereafter prlate under Its governing laws,including,but not lira- term "State" includes the District of Columbia, the
Ited to,the following: Commonwealth of Puerto Rico, and the territories of
overrlment,or It may— the United States.
by loans hereafter (a)cancel or terminate in whole or in part any agree- Sac. 602. This order shall become effective immedl-
e secured by the , meat or contract with such person, firm, or State or ately.
)r local public agency providing for a loan, grant,contri-
t or the redevelop- button, or other Federal aid, or for the payment of a CRoss RerzamcEs
eased, or otherwise commission or fee: Third party tort liability to United States for hospl-
iic agency receiving (b) refrain from extending any further aid under wand medical care, see section 2651 et seq. of this
m le.
sluclearance or any program administered by It and affected by this
uch real property order until it is satisfied that the affected person, tit
rafter entered lett; firm, or State or local public agency will comply with SecrloN Rtrnlasn To IN Oriizst SEcrloxs
the rules, regulations,and procedures issued or adopt-
ed pursuant to this order, and any nondiscrimination This section Is referred to In sections 1988, 3608 of
respect to residers- provisions included in any agreement or contract; this title.
(including land to (c) refuse to approve a lending institution or any
of lending institu- other lender as a beneficiary under any program ad- 01983.Civil salon for deprivation of rights
Lie to loans hereaf- ministered by It which to affected by this order or
rderal Government. revoke such approval if previously given. Every person who, under color of any statute,
atment of Housing SEC.303.In appropriate cases executive departments ordinance, regulation, custom, Or usage, of any
)they executive de- and agencies shall refer to the Attorney General viola- State or Territory or the District of Columbia,
it good offices and tions of any rules,regulations,or procedures issued or subjects, or causes to be subjected, any citizen
:rmitted by law, in- adopted pursuant to this order, or violations of any of the United States or other person within the
ate litigation. If re- nondiscrimination provisions included in any agree- jurisdiction thereof to the deprivation of any
it of discriminatory ment or contract, for such civil or criminal action as rights, privileges, or immunities secured by the
a1 property and re- he may deem appropriate. The Attorney General is Constitution and laws, shall be liable to the
with Federal finan• authorized to furnish legal advice concerning this
rred to in Section order to the Committee and to any department or party injured in an action at law,suit In equity,
agency requesting such advice. or other proper proceeding for redress. For the
_ 2 -3
COUNTY COUNSEL'S OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: March 2, 1993
To: Board of Supervisors
From: Victor J. Westman, County Counsel V�,
By: Kevin T. Kerr, Deputy County Counsel
Re: Report on County Ordinance Regarding the Sale of Firearms
On January 27 , 1993, several members of the Board of Supervisors
requested a report with respect to a gun ordinance similar to an
ordinance presently under consideration in Alameda County. A copy of
the ordinance under consideration in Alameda County is attached.
We have checked with Alameda County regarding its introduced
ordinance. Alameda County has not yet passed the ordinance because
it is apparently waiting to see if cities in Alameda County are
interested in collectively passing similar gun ordinances, in order
to have uniformity in the county. Moreover, Alameda County is
apparently watching State Senator Petris ' recently introduced
legislation, Senate Bill 247 , which is similar to the proposed
Alameda County ordinance. Senate Bill 247 would require the taking
of a photograph and fingerprints of a potential firearm purchaser or
transferee before a firearms dealer could deliver a firearm to the
purchaser or transferee.
Based on our brief review, if Contra Costa County were to pass an
ordinance similar to Alameda County' s ordinance, serious concerns
could be advanced about preemption by state law if there was a legal
challenge.
At this time, one option would be to wait and see how Senate Bill
247 progresses, and then pursue the adoption of a gun ordinance in
the County and among the cities of the County if Senate Bill 247 does
not pass and become law. On the other hand, if the Board of
Supervisors wishes the County Counsel' s Office to begin to prepare a
form of ordinance along the lines of the Alameda County ordinance
for introduction before it, please so advise. If the Board further
desires , we could attempt to draft such an ordinance in coordination
with the pending efforts in Alameda County..
Your instruction in this matter would be appreciated.
KTK/jh
cc: County Administrator' s Office
J-15:a:\firearms.f
Apptoved os to Form
KELVJN H. OTY,JR.,County Counsel
By, c�---
ORDINANCE NO.
AN ORDINANCE AMENDING Cf kVMR 6 OF THELE 3 OF TRE ALAMMA
COUNTY ORDINANCE CODE BY ADDING ARTICLE 4—A REGARDING THE SALE
OF FIREARMS
The Board of Supervisors of the County of Alameda ordains as follows:
SECTION I
Chapter 6 is hereby amended by adding Article 4 — A to read as follows:
k
Article 4 — A -- 'Sale of Firearms
3-118.0 Findings.
The Board of Supervisors of the County of Alameda does hereby find and declare as follows:
1. The fight against crime in both the incorporated and unincorporated areas of
Alameda County has always been,and shall forever be,a top priority of the County of Alameda;
2. While a firearm alone cannot commit a crime, it is an unfortunate truth that the
commission of crime is often advanced through the use of firearms;
3. The County of Alameda is committed to pursuing available methods of regulating
the possession of firearms in a manner that will deny access of firearms to those individuals who
are not legally entitled to possess them.
3-118.1 Definitions.
1. As used in this Article, "person' means an individual, partnership, corporation,
association or any other group or entity, regardless of how it was created.
2. As used in this Article, "licensed firearm dealer"means a person who has a federal
firearms license, any business license required by the state or a local governmental entity and a
seller's permit issued by the State Board of Equalization.
3-118.2 License Required.
1. Pursuant to Section 12071 of the California Penal Code, the Sheriff of the County
of Alameda, as a duly constituted licensing authority of the County of Alameda, is authorized to
accept applications for, and may grant licenses permitting the retail sale of firearms within the
unincorporated area of Alameda County;
2. No firearms dealer license shall issue in the absence of compliance with all
applicable state and county laws and applicable procedures as determined by the Alameda County
Sheriff s Department. .
3-118.3 Evidence of Identity
In addition to compliance with each of the provisions of Penal Code Section 12071 no
firearm shall be delivered to a prospective purchaser or transferee until the prospective purchaser
or transferee has reported to the Alameda County Sheriffs Department for photographing and
fingerprinting and has presented to the licensed firearms dealer documentation issued by the
Sheriffs Department reflecting compliance with this section: The precise location or locations
for, and hours of availability for, photographing and fingerprinting shall be supplied to licensed
dealers by the Alameda County Sheriffs Department for dissemination to prospective purchasers
and transferees.
3--118.4 Revocation of License.
The Sheriff of the County of Alameda may revoke for good cause any license issue under this
Article. Violation of any of the laws of the United States or of the State of California,or of any
of the provisions of this Article, is good cause for revocation and termination of any licensed
issued under this Article.
3-118.5 Severability.
If any provision of this ordinance or the application thereof to any person or circumstance is held
Invalid that invalidity shall not effect other provisions or applications of the act which can be
given effect without the invalid provision or application,and to this end the provisions of this act
are severable.
SEC'T'ION II
This ordinance shall take effect and be in force thirty (30) days from and after the date of
passage, and before the expiration of fifteen (15) days after its passage, shall be published once
. with the names of the members voting for and against the same in the Inter—City Express, a
newspaper published in the said County of Alameda.
Adopted by the Board of Supervisors of the County of Alameda, State of California, on
this day of __. by the following called vote:
AYES: Supervisors
NOES: Supervisors
EXCUSED: Supervisors
PRESIDENT OF THE BOARD OF SUPERVISORS,
a County of Alameda, State of California
ATTEST: WILLIAM MEHRWEIN, Clerk
of the Board of Supervisors,
County of Alameda, State of California
By:
j�:9/17'/91
��1\yun2.ord '
J.C. SMITH RECEIVE®
1249 Dewing Lane
Walnut Creek, CA 94595 MAR - 8 1993
Telephone 510-944-1420
CLERK BOARD OF SUPERVISORS
CONTRA COSTA CO.
March 5, 1993
Supervisor Tom Torlakson
651 Pine St .
Martinez, CA 94553
Dear Supervisor Torlakson:
I am writing to express my opposition to the extreme measures
being proposed by supervisors Powers and Smith for controlling
firearms and ammunition.
While I support tougher penalties for misuse of firearms (or any
violent crime for that matter) , it seems that the laws we already
have are not being fully prosecuted, nor are penalties on
conviction as stiff as they could be.
The last thing we need is more laws which will have little effect
on the criminals at the expense of honest citizens. Many of
these "gun ban" laws are actually turning otherwise law abiding
gun owners into criminals as was the case when the vast majority
of owners of the so-called "assault rifles" simply refused to
register them as required by the CA state Roberti-Roose bill that
passed a couple years ago.
I am also in favor of educating school age children on the
dangers of firearms, but we don' t need more taxes to do that .
The Eddie Eagle gun safety program ( for which I am an instructor)
is free to all schools and law enforcement agencies. This is a
program that takes no position on whether guns are good or bad.
It leaves that up to the families and their beliefs. What it
does do is recognize that there are firearms in over half the
homes in the country, and not all adults are storing them in a
responsible manner. It teaches this simple message: If you find
a gun, #1 DON'T TOUCH, #2 LEAVE THE AREA, #3 TELL AN ADULT. It
is broken up into programs for K-2 & 3-5 . All materials are
donated by the National Rifle Association, and all instructors
are local parents who donate their time. Once again I stress
that this is a non-judgmental program. It is intended to
increase child safety without inflaming either side of the gun
control debate.
t�tsre�t�uTlosr
..-V Rn���± ivombers �tDv�t�
— Cou:lty Administrator
._ Hcc.,itii Services
Ccmmunity Development
/'Pu,:)!i^;:corks
;'^ County Counsel
One last thing. I have no idea what kind of public response is
coming into your office, or what other supervisors are saying
their response is, but I would be skeptical of information put
out by Powers & Smith. When I called their offices, I expressed
essentially the same thing I have in this letter . While I stated
that I agreed with keeping guns from criminals, tougher penalties
and education, I made it very clear that this should not be done
at the expense of honest gun owners. When I finished stating my
opinion, one of the ladies in the office said, "I ' ll let the
supervisor know you called, thank you for supporting our
position. " They definitely put the check mark in the wrong
column.
Thanks for your time. Feel free to call me if you have any
questions about Eddie Eagle.
Sincerely yours,
J.C. Smith
THE AMERICAN PRO-CONSTITUTIONAL ASSOCIATION
AMPROCON
1210 RUSSELMANN PARK RD.
CLAYTON, CA. 94517 510-672-354� e ®M�
MARTIN A. EASTON - FOUNDER
,9
The Honorable Tom Torlakson, President March 10, 1993
Contra Costa County Board of Supervisors
300 East Leland Rd.
Pittsburg, Ca. 94565 (510) 427-8138
Dear Supervisor Torlakson,
I previously sent to the Clerk of the Board a copy for
you of my March 8, 1993 letter to the full Boards of Supervisors
of this County and of Alameda County regarding some of my objec-
tions to legislation now under consideration by you regarding
firearms.
Each of the above office holders was furnished an individ-
ual copy.
I am hoping that you are inclined to consider my views
before any further action toward your passage of any County
legislation of this type can take place.
I would be pleased if you take any necessary and vigorous
steps to cancel, table or withdraw this Anti- Constitutional
legislation of yours and convince your fellow Board members and
those of Alameda County to do the same.
The reasons that I set forth in my March 8 letter should
be clear and overwhelming.
You may recall from our telephone conversation last year
in May (1992) just before your June primary election win, that I
explained that I had just recently started AMPROCON to promote
the Constitution with emphasis on the "right to keep and bear
Arms" .
Please also recall that I had previously mailed written
information to you about the firearms views of "AMPROCON" before
I made a specific request to you in this telephone conversation
for a meeting between you and our interview team. You refused and
referred me to your staff because this was a "controversial
subject" .
Your staff was very cordial in the several follow up calls
that I initiated but they were determined to and did succeed in
putting me off.
I must say that I am therefore not surprised but I am dis-
appointed that you have joined your voice in the Board resolu-
tion of January 19 to consider one of the most restrictive and
draconian Anti-Constitutional proposals ever contemplated in the
United States. However, I have not seen your actual signature on
this proposal along with those of Supervisors Thomas Powers and
Dr. Jeffry V. Smith.
I am hoping that this lack of a signature on the resolu-
tion means that you would be amenable to reversing fully your
present Anti-Constitutional position.
I want to assure you that my position on any matters of
our mutual interest does not arise due to a personal dislike for
you. The situation is quite the contrary. I have always been
appreciative of the opportunity you gave me to do public service
by the appointment to the Marsh Creek Fire Commission.
I remember with pleasure the Fire Commission dinner at Zeo
Fredo's Restaurant in Pleasant Hill in 1984 when you .gave me the
plaque for the four years that I served.
It was my feeling at that time that you could be a success
at whatever career you might have chosen.
Furthermore, AMPROCON does not have any position on taxes,
foreign policy, garbage dumps, airports, etc. and the like. We
are focussed on the history leading to the Constitutional 2nd
Amendment in particular and with some present concern with the
1st Amendment.
Nevertheless, it is the position I established in forming
"AMPROCON" that a person in a standing of public service or
influence such as that which you occupy can not in any way be
good enough on other matters to offset such a divergent view on
firearms.
There are many qualifying or for that matter "disqualify-
ing" factors connected with holding public office.
Almost everyone would agree that there could be factors
regarding age, residency, and citizenship, for examples. AMPROCON
believes that the statement that " . . . the right of the people to
keep and bear Arms, shall not be infringed" can not be disregard-
ed for individual law-abiding citizens without disqualifying the
person holding that disregard.
We intend to analyze this situation quickly.
Sincerely,
Martin A. Easton
THE AMERICAN PRO-CONSTITUTIONAL ASSOCIATION
"AMPROCON"
1210 RUSSELMANN PARK RD. or P.O. BOX 486
CITY OF CLAYTON, CONTRA COSTA COUNTY, CA. 94517 510-672-3546
President: John Erickson, Lafayette, Ca,
Members - Board of Directors: Edgar M. Crump, Clayton, Ca.
Richard D. Starr, Talent, Oregon. Martin A. Easton, Clayton, Ca.
The primary and overriding thrust and purpose of THE AMERICAN
PRO-CONSTITUTIONAL ASSOCIATION (AMPROCON) is identical to the
oath of office of the Officers of the United States:
" . . . .preserve, protect and defend the Constitution of the United
States"
FROM: MARTIN A. EASTON - FOUNDER - EXECUTIVE VICE PRESIDENT
March 8, 1993
(Fred Bowles of Oakland, Alameda County, Ca. provided invaluable
research information for this letter) .
TO: The Board of Supervisors of Contra Costa County, California,
651 Pine St. , Martinez, 94553 . (510) 646-2371
C/O The Honorable Tom Torlakson, Chairman
and including the other four distinguished members thereof who
are being furnished individual copies of this letter under sepa-
rate covers:
The Hon. Sunne McPeak, Vice Chair. The Hon. Tom Powers
The Hon. Jeffry Smith The Hon. Gayle Bishop
AND RECEIVED
TO: The Board of Supervisors of Alameda County, al fornia$ i990
1221 Oak St. , Oakland, 94612 . (510) 272-6693
CLERK BOARD 05 SUPERVISORS.
C/O The Honorable Ed Campbell, President, CONTRA COSTA CO.
and including the other four distinguished members thereof who
are being furnished individual copies of this letter under sepa-
rate covers:
The Hon. Don Perata, Vice President. The Hon. Gail Steele
The Hon. Mary King The Hon. Keith Carson
Obviously the two adjoining Counties above described are
located in the State of California and derive their powers under
" color of law" from the State Constitution which I transcribe in
relevant part from ARTICLE XI, SEC. 1 (a) : "The State is divided
into counties which are legal subdivisions of the State. "
Furthermore, the counties of the State contain cities which
derive their powers under "color of law" also granted by the
State Constitution through the State Legislature which I tran-
1
scribe from SEC. 2 (a) also of ARTICLE XI: "The Legislature shall
prescribe uniform procedures for city formation and provide for
city powers" .
Copies of the pages from which the preceding words were tran-
scribed are attached.
I now refer to the various "firearms" Resolutions enacted
or proposed and unanimously approved by you in recent months.
These matters, if approved and followed through to the status of
law would infringe upon the rights of law-abiding people to
" . .keep and bear Arms. . . . " stated in the "Bill of Rights" of the
United States Constitution as its "Second Amendment" .
Many well-meaning politicians feel that a large total
number of firearms in the hands of the "people" may be a leading
cause of crime. This has never been proven. These politicians
decry the "proliferation of weapons" .
But this "proliferation of weapons" has been for years and
for good reason the reaction of law-abiding non-violent people in
an attempt to gain protection against those who would harm them.
It has been estimated that up to one half of the homes in the
United States contain lawfully owned and used firearms and it is
quite likely that this estimate also applies to the Counties of
Alameda and Contra Costa and their cities.
It should be obvious that these lawful firearms in the
possession. of the general public are more of a deterrent to crime
and more of an enhancement of public safety than any practical
number of police officers or volumes of laws printed and posted
in the city ordinance books.
Many people who do not own firearms, including some AMPRO-
CON members, realize that the many other residents of their
neighborhoods who do own them contribute greatly to the general
public safety.
As the founder of "AMPROCON" I believe strongly in the
"police power" of the "state" by due process (naturally this
means any constituted level of government) wherein those individ-
ual persons that are prone to violence against others must be
identified, isolated and/or punished.
However, no nation of "people" , correctly calling itself a
constitutional democratic republic, as the United States is sup-
posed to be, has ever put its leaders into power and then dele-
gated to these same leaders the right to disarm the "people" as a
whole.
The needs and desires of weak and helpless people are
seldom taken seriously by persons in power over them, whether
these persons in power are government officials or criminals.
In my view, long held by many others before me, one of the
main concerns of the framers of the United States Constitution
was to prevent a "tyrannical majority" of citizens as voters, for
example, or through their elected representatives, from infring-
ing upon the normal and common rights of any rather numerically
small and weak "minority".
To wit: I had an ancestor from Ireland. In the latter half
of our previous century if it had come to a secret vote by the
people of New England that all Irish immigrants would be immedi-
ately returned to Ireland this probably would have carried by a
large margin. The Constitution prevents this.
The Constitution makes unthinkable, for example, deporta-
2
tion of the freed slaves to their original nations under the
"Emancipation Proclamation" in 1863 , although a "tyrannical
majority" of voters might have approved.
It is therefore possible and in fact is now taking place
that the "tyrannical majority" is marshalling the legislative and
electoral clout to deprive, unconstitutionally, the smaller
number of citizens of the right to " . . . .keep and bear Arms. . . " .
The greatest factor guaranteeing that local officials will
maintain their positions of freely elected power is the prolifer-
ation of firearms among their known neighborhood law-abiding
constituents. Strength at the county and city level by citizens
guarantees that the higher powers in government will look with
respect at supervisors, mayors and councilpersons instead viewing
them as a weak group of followers.
All good and beneficial things seem to have some negative
side-effects and I know that there will always be a certain
irreducible minimum level of accidents and crimes involving
legally obtained firearms.
The effort to mitigate this involves the difficult and
time consuming teaching of judgment in all phases of living and
not lengthy time periods of firearms training.
Although AMPROCON has no activities involving the handling
of guns, we know from experience that it takes less time and
skill to learn everything necessary to disassemble, clean, reas-
semble, and fire safely any type of personal firearm under dis-
cussion today than it does to produce a 3 layer birthday cake; or
to change a flat tire and wheel on your car: or to sew a simple
blouse for your daughter with a sewing machine.
Many people of high intelligence own and use firearms
regularly, but the fact is that. hand-held weapons are so simply
built that high intelligence and skill are by no means necessary.
Long, extended training time requirements are desired by
anti-constitutionalists to discourage, deter, and to infringe
upon people's right to obtain firearms.
Surveys continually tend to show that the problems of
violence in general arise in large part from certain teen age
boys so this is where the corrective and educational efforts of
government should be concentrated.
Especially at the higher levels of government it is my
view that substantially all elected and appointed officials have
historically tried to increase their powers and influence,
either by enhancing the sworn powers granted to them or by dimin-
ishing the powers of those constituents below them. This is only
human nature but is misguided.
Throughout history, as the people lose power the first
officials to suffer with them are at the local level.
While AMPROCON does not participate in the potentially
corrupting practice of handing money to politicians or political
parties, we do try to maintain contact with these officials from
our educational standpoint.
We attempt to enlighten and persuade rather than enter
these fund raising activities for candidates and political par-
ties and .we have obtained some positive results.
Yet, in spite of our efforts, many local officials in the
guise of "crime control" or "public health issues" try to enact
firearms laws that will infringe upon the rights of their voting
supporters.
Who do you officeholders trust more - the neighbors that
3
Voted you into office or the higher level state and federal
people?
Criminals applaud this misguided legislation that will
disarm your local constituents!
Criminals will always have weapons and other "contraband"
as is evident every day in connection with drugs, alcohol, ille-
gal aliens, gambling, auto "chop shops" , etc.
The ratio of uniformed peace officers to city and county
residents is usually about one officer per thousand citizens.
This means that each officer on shift is "responsible" for about
3-4 , 000 residents at any one moment.
The emergency authorities at all levels of government,
both nationwide and locally, warn everybody that in the event of
earthquake, hurricane, riot or other disaster that the people
must be prepared to take care of their own needs for at least 72
hours.
Therefore, during disasters there will be very little
law-enforcement, fire, and medical services and possibly extreme
shortages of food and utilities.
About half or more of the homes of your constituents now
have no guns to protect themselves ; and if the police can ' t
answer 911 , and if the National Guard may be delayed several
days; then you legislators that take any "depriving" steps in
your official capacities that interfere further with the self
protection of the community are doing an unconstitutional dis-
service.
Four or five police emergencies at the same moment would
certainly limit the ability of the Police or Sheriff' s Department
to protect more than a tiny percentage of the population. No
sheriff or chief that I know of has ever guaranteed more than
diligence. No positive set of objective results can reasonably be
expected.
The need for citizens to have the means and abilities to
protect themselves is far from a "last resort" situation.
An 8. 3 Richter earthquake (as in San Francisco year 1906)
is the subject of many predictions. If the 1989 "Loma Prieta"
quake which did heavy damage and caused over 50 deaths in Oakland
and San Francisco had been 7 . 5 Richter instead of its 7 . 0 scale
there could well have been several thousand upset and desperate
people from some damaged Bay Area cities roaming other relative-
ly undisturbed neighborhoods in outlying areas.
In this instance the citizens themselves would have the
burden of keeping the peace and protecting their homes and fami-
lies. Firearms would be a very stabilizing influence.
It therefore is nonsense to consider and promote a stance
that decries "the proliferation of weapons" as contributing to
crime.
The preceding may be moot, however, because many people
view the entire firearms field as having been "pre-empted" by the
state or federal government. It discredits you to act outside
your scope.
In the event that you officials , in considering this
restrictive legislation, have jurisdictional questions, I sug-
gest that an opinion from your Attorney be obtained, if this has
not already been done.
4
I also feel that the Second Amendment to the U. S. Consti-
tution applies to your pending firearms decisions:
"A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms,
shall not be- infringed".
There should be no controversy on this Amendment today
and my view is that the Constitutional Founders wanted the people
to have arms in their everyday lives. This would tend to insure
their personal security and freedom and that when the armed
"people" gathered to form the "militia" that these "people" would
be familiar with the personal arms that they could "keep and
bear" all the time.
This right of the "common" people, who might be known as
peasants, subjects, serfs, colonists, citizens, etc. , to have
arms was hard won in history going back hundreds and thousands of
years. This right arises from the reflexive, instinctive, common
sense and common law need for freedom and security and was set
forth clearly by the Constitutional framers in the form of the
Second Amendment. No new law or novel interpretation of old law
can change this basic feeling in humans.
It is quite likely that possibly 25% or more of Americans
from colonial times up to the present have been uncomfortable
with the idea that the "people" as a whole can have firearms .
These citizens seem to prefer the impractical view that a "king"
or "dictator" type of leader should be supreme and protect all
his subjects.
The percentage of these "royalists" may now be signifi-
cantly greater than 25% and many of these people have found their
way into government positions including the court system.
This causes a distortion of the Second Amendment and
leads many anti-constitutional politicians and government offi-
cials to evade the true meaning of the words " . . . . the right of
the people to keep and bear Arms, shall not be infringed" by
"hedging" somewhat their weak sounding negative positions.
Apparently they are agreeing that the Second Amendment
does actually read that the people can have firearms but " . . .
courts have held . . . . " that the people can not have them.
Any unbiased, literate person, with access to a dictionary
can not hold this unconstitutional position, as I see it.
Another area of legal opinion that should be of interest
to the various counties and cities is that of a possible monetary
liability against powerful persons such as you are when "under
color of any statute, . . . . .of any State. . " you use this power to
deprive other Americans of their rights. This apparently still
exists as set forth in the year 1871 in Title 42 U. S. Code;
article 1983 .
The present text of this @ 1983 is here transcribed bold:
5
@1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regu-
lation, custom, or usage of any State or Territory or the Dis-
trict of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdic-
tion thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
I intend to enclose herewith for your convenience some
excerpts from Title 42 copied from the County library in Pleasant
Hill . I apologize for the poor quality of the copies . It is
difficult to place the large code books on the copying machine.
I also enclose a copy of a U.S. Supreme Court Decision of
November 5, 1991 called "Hager v. Melo et al" .
It is tedious , but you may wish to read all the way
through the writings of this decision of several pages by Jus-
tice O'Connor to the final paragraph confirming the 8 to 0 unani-
mous vote of the justices that:
We hold that state officials, sued in their individual
capacities are "persons" within the meaning of @1983 . The Elev-
enth Amendment does not bar such suits, nor are state officers
absolutely immune from personal liability under @1983 solely by
virtue of the "official" nature of their acts.
I am retired and I like to read, from my lay view, these
government codes and court decisions and contemplate their poten-
tial impact upon people who participate in passing and enforcing
laws that may restrict the rights of others.
This is quite easy for me because I devote the limit of my
energies to the preservation of people's rights; not their depri-
vation or infringement.
It is certainly understandable though that in reading
these codes and decisions that you leaders, and others in govern-
ment positions, who are contemplating enacting and enforcing a
law that can deprive and infringe innocent citizens of their
rights "secured by the Constitution and laws" , might not find
these legal quotes so relaxing.
Conversely, it is quite possible that you have extensive
knowledge of these potential liabilities (or lack thereof) and
that you can without a second thought proceed to act quickly.
It is also possible that legal opinion (the government
attorney or your personal lawyer) will guarantee you that you are
at little or no risk; that any such complaint against you would
be difficult to prove; that if you are a salaried city, county,
or state employee just "doing your job" that you might have the
right of indemnity against your superiors; that the monetary
liability to you personally would be insignificant; that your
governmental title does not mean that Justice Sandra Day O'Connor
of the ultimate court can call you a "state official" ; or that
there are many other cases in your favor wherein " . . .courts have
held. . . " .
Just as your UNANIMOUS official Board of Supervisors
decisions to pursue the infringement upon and deprivation of
6
rights by approval of the subject firearms restrictions speak a
clear message about your apparent disregard for your oath of
office to uphold the Constitution of the United States including
its Second Amendment (" . . . the right of the people to keep and
bear Arms, shall not be infringed. ") ---
---- so too by a rare UNANIMOUS vote did the United States
Supreme Court appear to put you on actual notice of the financial
risks you may possibly face.
I do not envy you. I am pleased that I am not and never
intend to come anywhere near the position you may find yourselves
occupying for the next few years should you work toward and
approve anything like the subject resolutions that infringe upon
firearms.
Maybe I missed it but frankly, I consider it strange that
I have heard no public discussion by your two county Boards of
Supervisors of this 1991 Sandra Day O ' Connor 8 to 0 decision
treatise under this 120 year old [42 U.S.Code @1983] law. When I
walked into our small local library the clerk upon my inquiry
went immediately to the rack and easily found the writing.
It seems that the O'Connor essay certainly should be of
more than casual interest to you or other legislators, or to
law enforcement, or to county and city employees (or their union
legal counsel) or anyone else in government that may have his/her
personal financial situation in any type of jeopardy due to
employment activities.
A look back into the history of all existing state and
local law with "Hager v.Melo et al" in mind might be reassuring
also.
In fact, if anyone, public or private, wants to engage in
any activity anywhere that can remotely affect our physical envi-
ronment (air - fish - snakes - soil - etc. ) then an extensive
"Environmental Impact Statement " must be prepared.
Public money must be handled properly and therefore it
seems like all proposed legislation must be subject to a "Finan-
cial Impact Statement".
. In my view all laws, regulations, rulings and the like
originating at the highest levels of the U. S. Government and
extending down through all layers to the lowest rank part-time
quasi public "district" should be subject to a
"CONSTITUTIONAL IMPACT STATEMENT"
by whatever lawyer will later prepare the approved form.
It may be possible that you were not aware of this court
decision or that you know about it and don't care.
I hope that you have considered clearly the ramifications
of putting your work, voice, and/or your signature into the
permanent public record domain in these proceedings and on other
firearms issues you may be asked to join. The record of your
action is not eraseable.
This letter is not designed to counter emotionally irra-
tional views or the views of those who want to disarm the "peo-
ple" as a whole regardless of reason or logic.
Sincerely, ���r��
wep-61 :V : ov"ember 8.991' ..I# 7-!A.13 -r-
'i .t_���.� -1 �,,.. ' _- .,,.fit ..: a.•:iS:.. 1ILI,
o ' l
Cdu' rt . saysicy ascan ;
NA
114 j
a persona able
y
The wssAirgrorr Post Two years ago the court ruled
that Section 1983 did not avow 1
WASHINGTON he Su- r
preme Court ruled unanimously : damage suits against states_or i
yesterday that state officials can state officials sued in their
tial capacities. Hafer, who Was
r:: be forced to a moneta d P '
., ,. ny ry �-
r + sued rsonall rather than-as
ages�ut�f their own pock�_if Pe y
their official actionolaauditor general, nevertheless
Ple
'sFri hts. ' _'t y f argued that the ruling proteufed a
i. v.
court, ' . her a ainst liability for firing
gg , t
the em employees
state officials can be held liable because she_was ; !
under a key federal civil rights . acting in her official capacit . x
' Maw even if their actions wereesterday, O'Connor said laf- i
-taken as part of their official er bad misinterpreted the ear-_i
• " ; duties. Justice Clarence Thomas lier ruling when she took a to
:nol did not participate in the case, `:mean she was -shielded _fr6m'
being sued. "The '
.which was argued before betookg requirement of �
the bench.. e! t,!3_1action ander-�f:� s: �: + t
color of state,taw
The decision, written by .Jus- . means that Hafer may be liable' i
I1- tice Sandra Day O'Connor, came for eischarging (the employees)' i
y in a Iawsuit against Pennsylvan- precisely because of her authori-
ia Auditor General Barbara Haf-
here it has be- -; ty as auditor general," she 4d. ;
er. Hafer, a Republican, was ac- - We cannot accept the novel �
P
la" for crimi- cused of firing Democratic em- proposition that this same -offi- •
iding Oakland ployees after she was elected in "' tial authority insulates IIafer. l
embers of the 1988 in retaliation ,for their po- f' fromsnit."_ .,. ;.__.:_w:__.;:.,...:
who switched itical affiliation and support for O'Connor -:said Hafer'sAp-
•eral Vietnam- her opponent. • - -' proach "would absolutely "u- "
.The question in the case, Haf- nize state officials from person-
the Wah Ching er vs. Melo, was whether Fier al liability for acts within their 1
e that saw at _ • cobe held personally li'a�bre authority and necessary toaful- ;
bers of both under t e a aw nown as filling governmental responsi-
lop To "is now Section 1 a , wait 1 oluS aiaua2 hilities" something' that the
sally all of the `ae er a n" who, acting "un- court has refused to do and that,
section rackets der-color of" state law, violates O'Connor said, would be ineon- j
the staff state- ' another's federally oro jrctad sistent with the purpose oMhe
+:�
rights. 4�. .
law.'.= ,s ;�:c. :: �• � •_ jfs
• ►' _' r � .� e. •:,moi c:zy.� 'j ' - _i,
;1i� •}i. I :P, 9�`~ •/•'- itt =moi. '.��•.�{�• _jL�(. .'_� yn''' •' �y a
•''- �`,�. `��;�, .- �.�• qr.NL►'��ti_ri.eSY l�':•".I� ��-$' .,-�'' • ? r` `':�f. jy t� � `!.. __- i_ F�• " t 5" ;•�. l
i. . -•M. v I.F. i' � • •^ S•'" r .tr� _ >
sated sz CCH S. Ct.Bti1I Y07 041i
NOTE:Where it is feasible,a syllabus(headnote)will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE. UNNITED STATES
Syllabus
HAFER V. MELO ETA ;
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 90-681. Argued October 15, 1991--Decided November 5, 1991
After petitioner Hafer, the newly elected Auditor General of Pennsylva-
nia, discharged respondents from their jobs. in her office,-"they sued
her for, inter alia, monetary damages under'42 U 'S. C:`§1983. The
District Court dismissed the latter claims.'under Will` v.`Michigan
Dept. of State Police;.491 U. S. 58, 71', in_which the Court field that
state officials "acting in`their official capacities" are outside the class
of"persons" subject to liability under § 1983. :In reversing this ruling,
the Court of Appeals found that respondents sought`damages from
Hafer in her personal capacity and held 'that, :because. she acted
under color of state law; respondents could maintain a § 1983 individ-
ual-capacity suit against her.':
Held: State officers may to,held.personalty liable for damages under
§ 1983 based upon actions taken in.their official:capacities. Pp. 3-10.
(a) The above-quoted language from Will,does.not establish that
Hafer may not be held personally liable under § 1983 because she
"act[ed]" in her official capacity. .The claims considered in Will were
official-capacity claims, and the phrase "acting in their official
capacities" is best understood as a reference to the' ca parity in which
the state officer is sued, not the capacity in which the officer inflicts
the alleged injury. Pp. 3-5.
(b) State officials, sued in their indivi_�,lal capacities, are "persons"
within the' meaning of § 1983. Unlike official-capacity defen-
dants—who are not "persons"because they assume the identity of the
government that employs them, Will, supra, at 71—officers sued in
their personal capacity come to the court as individuals and thus fit
comfortably within the statutory term "person," cf. 491 U. S., at 71,
n. 10. Moreover, § 1983's authorization of suits to redress depriva-
tions of civil rights by persons acting "under color of" state law
B172 Cited 52 CCH S. Ct. Bull. p.
HAFER u. MELO
Syllabus
means that Hafer may be liable for discharging respondents precisely
because of her authority as Auditor General. 'Her assertion that-acts
that are both within the official's authority and necessary to the
performance of governmental functions (including the employment
decisions at issue) should be considered acts of the State that cannot
give rise to a personal-capacity action is unpersuasive. That conten-
tion ignores this Court's holding that § 1983 was enacted to enforce
provisions of the Fourteenth Amendment against those who carry a
badge of a State and represent it in some capacity, whether they act
in accordance with their authority or misuse it. Scheuer v. Rhodes,
416 U. -S. 232, 243. Furthermore, Hafer's theory. would!absolutely
immunize state officials from personal liability under §:1983 solely by
virtue of the "official". nature of their acts, iri contravention of.this
Court's immunity decisions: See, e. g., Scheuer, supra. Pp. . 5-8.
(c). The Eleventh Axnendinent does not bar § 1983 personal-capacity
suits against state officials in federal court. Id., .at 237,-238., Will's
language concerning suits against state o$icials cannot.be read as
establishing the limits of liability under the Amenc',ment, since Will
arose from a suit in state court and considered.,the Amendment only
because the fact that Congress did .not intend.:to. override- state
immunity when it enacted § 1983 was relevant to statutory construc-
tion .491 U. S., at 66. Although imposing personal liability on state
officers may.hamper.their pIrforriiance ofTublic duties, such'concerns
are properly addressed within the framework of this Court's personal
immunity jurisprudence. Pp: 8=10. '
912 F. 2d 628, affirmed.
O'CONNOR, J., delivered the opinion of the Court, in`.which all other
Members joined, except THOMAs, J., who took no part in the consider-
ation or decision of the case.
Cited 52 CCH S. Ct. Bull: p. 8173
kt
SUPREME COURT OF THE UNITED STATES
No. 91M81
BARBARA. HAFER,. PETITIONER u.
JAMES C...MELD,.JR.,,_ET
.ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT'`
[November 5, 19911
JUSTICE O'CONNOR delivered the opinion d the Cou_ rt.
In Will v. Michigan. Dept. of State Police, 49f U. S. 58
(1989), we held that state officials acting in,their_official
capacities are .outsides the: class of: persons t, subject to
liability under 42 U. S: C. §1983. 491 U. S.;-at _71:- Peti-
tioner takes this . language. to mean.. that §1983 does not
authorize suits against state ..officers for damages, arising
from official acts. . We. reject .this. reading of Will'and hold
that state officials .sued in their individual capacities are
"persons" for purposes of.§1983.
In 1988, petitioner Barbara Hafer sought,election .to'the
post of Auditor General of Penns lvania �t
p y . :,� Respondents
allege that during the campaign ;United.States -Attorney
James. West gave Hafer a list of 21 employees "iii .the
Auditor General's Office who secured",their jobs-,through
payments to a former employee of the office: App: 10.
They further allege that Hafer publicly_.promised.to.fire all
employees on,lhe list if elected. Ibid.
Hafer won.the election.: ' Shortly after,becoming Auditor
General, : She ? dismissed- 18 employees, including,-.named
respondent James Melo, Jr., on the basis that they "bought"
their jobs: ' Melo and .seven other terminated empl6yees
sued Hafer ..nd West in' Federal District. Court. They,as-
oco Al
HAFER• v. MELO
serted state and federal claims,, including a claim under
§1983, and sought monetary damages. Carl Gurley and
the reinaining respondents in this. case also lost their
jobs with the Auditor General soon after Hafer'took office.
These respondents allege that H rer discharged them be-
cause of their Democratic political .affiliation -and-support
for her opponent .in the 1988 election. ,,`Id.;.at 28, 35, 40.
They too filed suit against Hafer, seeking monetary dam-
ages and reinstatement under §1983.
After consolidating the Melo ..and. Gurley. actions, .the
District Court dismissed all claims. In relevant part, the
court held that the §1983 claims against Hafer;were barred
because, under Will, she could not be.'held liable. for em-
ployment decisions.pade in her official'capacity as Auditor
General;
The Court of Appeals for the Third Circuit. 'reversed this
portion of the District Court's decision. 1912 .F. 2d 628
(1990). As to claims for reinstatement .brought against
Hafer in her official capacity, .the court rested on our
statement in Will that state officials sued` for injunctive
relief in. their official capacities are "persons" subject to
liability -under . §1983.-,--- See %Will,- supra, . at 71, n. 10.
Turning to `respondents' monetary.claims '.the�court found
that six members of the Gurley group_ . had expressly sought
damages from Hafer in. her personal capacity: The remain-
ing plaintiffs "although not as explicit, signified a similar
intent." 912 F. 2d, at 636.* The court found this critical.
*The Third Circuit looked to the prnceedings below to determine
whether certain respondents brought their claims`for damages against
Hafer in her official capacity or her personal capacity:: 912 F. 2d 628,
635--636 (1990). Several other Courts of Appeals adhere'.to.this practice.
See Conner v.Reinhard, 847 F. 2d 384, 394, n. ,8.(CA7);;cert..denied, 488
U. S. 856 (1988); Houston v. Reich, 932.F. 2d. 8834,885 _(CA10 1991);
Lundgren v.McDaniel, 814 F. 2d 600, 603-604(CA11 1987). Still others
impose a more rigid pleading requirement. See Wells v. Brown, 891
F. 2d 591, 592 (CA6 1989) (§1983 plaintiff must specifically plead that
suit for damages is brought against state official in individual capacity);
.. .. ._.._ , .. v.. ... .. .. v_ :-4;.r�:vu:».•.n.+x....swP.x{;.".:aw Via.....+g9ess+:urea —�.ra."9�ec^`.
co
HAFER v. MELO
While Hafer's ' power; to hire and fire derived from her
position as Auditor General, 'it said, 'a' suit for damages
based on the exercise of this authdrity�:could be brought
against Hafer in her personal capacity. Because Hafer
acted under color of state law; respondents could maintain
a §1983 individual-
capacity'suit against her.
We granted certiorari, 4981U: S', (1991), to address
the question whether state officers maybe held personally
liable for damages'under §1983 based upon actions taken
in their official capacities.
In Kentucky v. Graham, 473:U. S, 159(1985), the Court
sought to elhni`nate lingering confusion�about�the distinction
between personal- and official-,capacitysuits: ' Ne empha-
sized that official-capacity suits "`generally represent only
another' way of pleading an, action:"against an"entity of
which an officer is an agent."' Id. at-.165 (quoting Monell
V.- New York City Dept. of Social= Servs:, 436 U. S. -658,
690, n. 55 (1978)). A suit against--a`-state official in her
official capacity -therefQre -should': be: treated- as a 'suit
against the State. 473 U. S.., at 166._ Indeed, when an of-
ficial sued in this capacity in federal. court dies 'or leaves
office, her successor automatically assumes her role in the
litigation..- See Fed. Rule Civ. Proc..25(dxl); Fed. Rule App.
Proc. 43(c)(1); this Court's Rule. 35.3. _,Because the real
. party in interest in .an official-capacity.suit is ,the govern-
mental entity and not .the named -official, "the entity's
`policy or custom' must have played a part in the violation
of federal law." Graham, 'supra; at 166 (quoting `Monell,
^E , .
Nix v. Norman, 879 F. 2d 429, 431 (CA8 1989) (same). . Because this
issue is not properly before us, we simply reiterate the Third Circuit's
view that "[i It is obviously preferable for the plaintiff to be specific in the
first instance to avoid any ambiguity." 912 F. 2d, at 636, n. 7. See this
Court's Rule 14.1(a) ("Only the questions.set forth'in the petition, or
fairiv included tliprPin. will hP rnns;idPrPr by the
,, wea Y.aV:u :,h;i 'c,rva».ts••.4�:..,,,,.'•:,.:-,.;....:;..._ yf'". .. ... .. ...ft"T•:. .. .
HAFER v. MELO
supra, at 694). For the same.reason, the: only immunities
available to the defendant in an�offIcial-capacity action are
thosethat the governmental, entity possesses.; 473 -U. S.,
at 161/76
Personal-capacity suits, on the other hand, seek to impose
individual liability upon a government-,officer for actions
taken .under: color of state law.., Thus,;"[o]n;the merits, to
establish personal liability in a §1983, action, ,it is :enough
to show that the official, acting, under..color of state law,
caused the deprivation of a federal.right.". at 166.
While the plaintiff in a personal-capacity suit need not
establish a connection to governmental "policy or custom,"
officials.sued in their personal capacities, unlike those sued
in their official- capacities, may; assert personal- immunity
defenses such as objectively reasonable reliance on existing
fir i �1►�rI W�f IM1Mti`yrw+l , df +,e1:,til ►44*,..ti:,: :: s t :
Our decision in Will v. Michigan. Depto of State-Police,
491 U. S.-58 (1989), turned in part on these, differences be-
tween personal- and official-capacy:.actions. :The principal
issue' in Will was whether States. are persons",subject to
suit under §1983.: Seetion 1. 83 provides, in relevant part:
"Every. person who, under color 'of any 7statute, ordi-
nance,+regulation, custom, or 'usage,`:of any State
subjects, or causes to be subjected, any citizen of the
United States or other person within, the jurisdiction
thereof to the deprivation 7of=any rights, 'privileges; or
immunities secured by the-�Cons"titution°and laws, shall
be liable to,the party injured'. -.
The Court held that interpreting the words '[elvery person"
to exclude the States accorded with the most natural
reading of the law, with its legislative_history, and with the
rule that Congress_must clearly estate its intention to alter
"`the federal balance"' when it seeks .to,do so. Will, supra,
at 65 (quoting United States ,.v.: Bass,'-404 'U. .S. 3361 ',349
(1971)).
The Court then addressed the related question:whether
.. - 'iriLa::x; it t, •aw l.._.M. _x. �v we"�Y iaaaY �. ..-.,,.•_.`.:a ..•......-w..w e,....- •. .•_ .a.«......Vr�'^aR°^eziYe'a.
HAFER v: MELO
state officials, sued for monetary` relief, in their official
capacities, are persons under*§1983.; We held that they are
not. Although "state officials literally. are ' persons,"' an ;
official-capacity suit against a state,'officer '"is not a suit
against the official but rather its-a 6 it against the official's
office. -' As such' it is'. no different' froze'a suit against the
State itself." 491 U. S., at 71 (citation omitted).
Summarizing our holding, we said: "[N]either a State nor
its officials acting in their official capacities are `persons'
under §1983." Ibid. Hafer relies on this: recapitulation
for the proposition that she may not be held personally lia-
ble under §1983 for discharging respondents because' she
"act[ed]" in her-official capacity-- as-'Auditor General 'of
Pennsylvania::*` Of course,1 the ' claimg considered -in.,Will
were official-capacity claims;- the'.phrase" . acting in 7their
official capacities"-is best-understood'as' A'refer ence to'the
capacity in which 'the state officer issued, not the capacity
in which the officer inflicts the alleged injury. To the ex-
tent that Will allows the construction Hafer suggests, how-
ever, we now eliminate that airibiguity. :t';.
Will 'itself'makes clear that Ahe distinction between
official-capacity suits and personal-capacity suits is more
than "a mere'pleading device"':-,Ibid.T� State officers sued
for damages in their official capacity are not�"persons" for
purposes of the suit because they assume the identity of the
government that employs them. -Ibid. -.By-"contrast, officers
sued in't'heir personal capacity come to court as individuals.
A- government official, in the Tole of!personal-capacity de-
fendant thus fits comfortably - within the =statutory term
"person." Cf: id., at 71, n. 10 ("[A] state official in his or
her official capacity, when sued for injunctive relief, would
be a person under §1983 because `official-capacity actions
for prospective relief are not treated as actions against the
State"') (quoting Graham, 473 U. S:, at.167, n. 14).
�1Hafer seeks to overcome I the distinction between official-
kke�' 1a y y +ma.ri
HAFER v. MELO
and personal-capacity suits by arguing that §1983 liability
turns not on the capacity in which state officials are sued,
but on the capacity in which,they..acted when.injuring the
plaintiff. Under Will, she asserts;- state -officials may. not ;
be held liable in their personal capacity for" actions they
take in their official capacity.,- Although one ..Court of
Appeals has endorsed this view,_ see Cowan v. University
of Louisville School of Medicine;', 900 F. 2d 936, 942-943
(CA6 1990), we find it both unpersuasive-as an interpreta-
tion of §1983 and foreclosed by. our prior decisions.
Through
§1983, Congress,sought ,"to.,..give a remedy to
parties deprived of constitutional..T rights,;..privileges and
immunities by an official's abuse of-his position. Monroe
v, Pape, 365 • T, S. 167; 172 (1961).,- :Accordingly; it. autho-
rized suits to redress deprivations of civil:rights by-persons
acting "under color of any [state] statute;ordinance, regula-
tion, custom,-or usage." : 42 U.I.S.- C.. §1983.:. The require-
ment of action under color. of, state law::means that Hafer
may be liable for discharging respondents precisely because
of her authority as Auditor General. . 'We.cannot accept the
novel.proposition that this same official authority insulates
Hafer from sV it. z
In an effort to limit the.scope .df her: argument,' Hafer
distinguishes between two categories -ofacts 'taken under
color of state law: those outside the.-official's authority or
not essential to the operation of state:govern m ent,".and
those both within the official's authority and necessary to
the performance of governmental functions. Only the
former, group, she , asserts, -can subject :state officials to
personal liability under §1983; the latter: group (including
the employment decisions at issue:in;this 'case) should be
considered acts of the State- that cannot give rise to a
personal-capacity action.
The distinction Hafer urges finds no support in the broad
language.of §1983. ,To the contrary;.it ignores our holding
that Congress enacted §198V..`to:enforce provisions of the
: .Fourteen-th Amendment against those who carry a badge of
Citid'S2 CCH 8. Ci-:btffl.0:
HAFER u.'MELO
authority of a State and represent it in some capacity,
whether they act in accordance, with their - authority ' or
misuse it."' Scheuer v.-Rhodes, 416 U. S. 232, 243 (1974)
(quoting Monroe v. Pape, supra, at 171-172).: Because of
that intent, we have held that in §1983 actions the statu-
tory requirement of action "under ,color 'of'. state law is
just as broad as the Fourteenth Amendment's "state action"
requirement. Lugar v. Edmondson Oil Co., 457 U. S. 922,
929 (1982).
Furthermore, Hafer's distinction cannot be reconciled
with oi_r decisions regarding i ' wunity . of government
officers otherwise personally liable for acts done in the
course of their official duties. Her theory would absolutely
immunize state"officials from- personal , liability for acts
within their .authority authority and"necessary-to fulfilling govern-
mental
mental respons�bilities. Yet `our cases do not extend;ab-
solute immunity to all officers who ,engage in. necessary
official acts. Rather, immunity from --sui.t. under §1983 is
"predicated upon a considered inquiry-into "the immunity
historically accorded the relevant official at common law
and the interests behind it," Imbler. v. Pachtman, 424 U. 'S.
409, 421-(1976)'P"--'Md officials seeking- absolute immunity
must show that such immunity is justified for the govern-
mental function at issue, Burns v.Reed; 500 U. S. ,
(1991) (slip op., at 6).
This Court has refused to extend absolute immunity be-
yond a very limited class of officials, including the President
of the United States; legislators carrying out-their legisla-
tive functlons, .and judges'carrying out their judicial func-
tions '"whose special functions or constitutional status re-
quires complete protection from suit."- Harlow v. Fitzgerald,
457 U. S. 800, 807 (1982). State executive officials are
not entitled to absolute immunity for their official actions.
Scheuer v. Rhodes, supra. In several 'instances, moreover,
we have concluded that no'more than a qualified immunity
attaches to administrative employment 'decisions, even if
t.hP same ciffical has absolute immunity when nerforminar
cohi
HAFER v. MELO
other functions. ; See Forrester v.- White, 484 U.' S. , 219
( 1958) (dismissal of court employee by.state judge); Harlow
v. Fitzgerald, supra (di scha;ge . of Air Force ' employee,
allegedly orchestrated by senior White. House aides)(Bivens
action); Davis v. Passman, 442 U."S. 223 (1979):(dismissal
of congressional aide) (Bivens action): �That,.-.Hafer may
assert personal immunity. within_,thee framework of, these
cases in no way supports her argument here.
B
Hafer further asks us to read. Will's language, concerning
suits against state officials as establishing the-'limits of
liability.under,the Eleventh Amendment._: She. asserts that
imposing personal liAbility on officeholders..-may infringe on
state sovereignty, by rendering.government ,less.:effective;
thus, she argues, .thea Eleventh Amendment forbids person-
al-capacity,suits against state officials -in :federal-.court.
Most certainly, Will's holding does not rest directly on.the
Eleventh Amendment. Whereas the Eleventa Amendment
bars suits, in federal court "by private parties.seeking ,to
impose- a:liability which,,raust be;paid. from public funds
in the state treasury 'I_Edelnwm v":;Jordan; 415;U:;S. _651,
663 (1974), Will atose from a suit in state;court. Ne con-
sidered the Eleventh Amendment in Will. only because the
fact that Congress did not intend to, override: _state im-
munity when it :enacted §1983.; was relevant-to statutory
construction: '"Given that a principal purposebehind the
enactment of §1983 was to provide a federal forum for civil
rights claims PCongress' failure to_authorize. suits against
States in federal courts suggested that i t.also did not intend
to authorize such _claims in._ state courts.-, Will,,.491.U. S.,
at 66.
To the extent - that ._Hafer, argues from -.the . Eleventh
Amendment itself, she makes a claim that failed in Scheuer
v. Rhodes; supra., In Scheuer, personal_representatives of
the. estates of three students who died at•Kent .State. Uni-
versity.in May 1970 sought damages from the Governor of
Cited 52 CCH $:'Ci.-Bull. P. Eg'Yf�ii Y
goCDAJ
HAFER u. MELO
Ohio and other state officials._The District Court dismissed
their complaints on the theory that the suits, although
brought against state officials in their personal.capacities, I
were in substance actions against the State. of Ohio and
therefore barred by i,he Eleventh Amendment.
We rejected this view. "[S)ince Ex•pazrte'Young, 209 U. S.
123 (1908)," we said, "it has been settled that.the Eleventh
Amendment provides no shield for a state official confronted..
by a claim that he had deprived another.of a federal right
under the color of state law." Scheuer, 416 U. S., at 237.
While the doctrine of Ex parte Young does not apply where
a plaintiff seeks damages from the public treasury, damages
awards against individual defendants in federal courts "are
a permissible remedy in some circumstances notwithstand-
ing the fact that they hold public office." 416 U. S., at 238.
That is, the Elelenth Amendment does not erect a barrier
against suits to impose "individual and personal liability"
on state officials under §1983. Ibid.
To be sure, imposing personal liability on state officers
may hamper their performance of public duties. But such
concerns are properfyaddressed within the framework of
our personal immunity jurisprudence. See Forrester v.
White, supra, at 223. Insofar as respondents seek damages
against Hafer personally, the Eleventh Amendment does
not restrict their ability to sue in federal court.
We hold that state officials, sued in their individual ca-
pacities, are "persons" within the meaning of §1983. The
Eleventh Amendment does not bar such suits, nor are state
officers absolutely immune from personal liability under
§1983 solely by virtue of the "official" nature of their acts.
The judgment of the Court of Appeals is
Affirmed.
JUSTICE THo" took no part in the consideration or
decision of this case.
I�MP�'CcaJ
Art. XI, § 2 CONSTITUTION OF CALIFORNIA 149
[Article not Preempting or Superseding Other Protective Closures]
SEC. 15. This article does not preempt or supersede any other clo-
sures to prop.,... -n_n_y other wildlife, including sea otters, whales, and
shorebirds. [New section adopted November 6, 1990. Initiative mea-
su re.
I
[Severability]
SEC. 16. If any provision of this article or the application thereof to
any person or circumstances is held invalid, that invalidity shall not af-
fect other provisions or applications of this article which can be given
effect without the invalid provision or application, and to this end the
provisions of this article are severable. [New section adopted November
6, 1990. Initiative measure.]
ARTICLE XI. [Repealed June 2, 1970. See Article XI, below.)
ARTICLE XI
LOCAL GOVERNMENT
SECTION 1. [Repealed June 2, 1970. See Section 1, below.]
Counties—formation, Boundaries, County Seat, Officers, and Governing Body]
.,SEC. 1. (a) The State is divided into counties which are legal sub-
divisions of toe. StNT6. The Legislature shall prescribe uniform proce-
durelor county formation; consolidation, and boundary change. For-
mation or consolidation requires approval by a majority of electors
voting on the question in each affected county. A boundary change re-
quires approval by the governing body of each affected county. No
county seat shall be removed unless two-thirds of the qualified electors
of the county, voting on the proposition at a general election, shall vote
in favor.of such removal. A proposition of removal shall not be submit-
ted in. the same county more than once in four years.
(b)r AThe Legislature shall provide for county powers, an elected
county sheriff, an elected district attorney, an elected assessor, and an
elected governing body in each county. Except as provided in subdi-
vision (b) of Section 4 of this article, each governing body shall pre-
scribe by ordinance the compensation of its members, but the ordi-
nance prescribing such compensation shall be subject to referendum.
The Legislature or the governing body may provide for other officers
whose compensation shall be prescribed by the governing body. The--
governing body shall provide for the number, compensation, tenure,
and appointment of employees. [As amended June 7, 1988.]
Sy-(-. 2. f Ret)erlle(1'Jil l7e 2; `-1:970:" See Section 2belote.l
,
150 CONSTITUFION OF CALIFORNIA Art. XI, ¢2
[Cities—formation, Powers] y
.�.�. SEC. 2. (a) The Legislature shall prescribe uniform procedure:for
city formation and provide for city powers.
(b) Except with approval by a majority of its electors voting on the
question, a city may not be annex6d, to or consolidated into another.
[New section adopted June 2, 1970.]
SEC. 3. [Repealed Ju tie 2, 1970. See :lection 3, below.]
[County or City—Charters]
SEC. 3. (a) For its own government, a county or city may adopt a
charter by majority vote of its electors voting on the question. The
charter is effeeiive when filed with the Secretary of State. A charter
may be amended, revised, or repealed in the same manner. A charter,
arnendment, revision, or repeal thereof shall be published in the official
State statutes:"Qounty charters adopted pursuant to this section shall su-
persede any existing charter and all laws inconsistent therewith. The
provisions of a charter are the law of the State and have the force and
effect of legislative enactments.
(b) The governing body or charter commission of a county or city
may propose a charter or revision. Amendment or repeal may be pro-
poged by initiative or-by the:governing body.
(c) An election to determine whether to draft or revise a charter
and elect a charter commission may be required by initiative or by the
governing body.
(d) If provisions of 2 or more measures approved at the same elec-
tion conflict, those of the measure receiving the highest affirmative
vote shall prevail. [As amended November 5, 1974.]
SEC. 4. [Repealed June 27, 1933. See Section 4, below.]
[County.Charters—Provisions]
SEC. 4 County charters shall provide for:
(a) A governing body of 5 or more members, elected (1) by district
or, (2) at large, or (3) at large, with a requirement that they reside in
a district. Charter counties are subject to statutes that relate to appor-
tioning population of governing body districts.
(b) The compensation, terms, and removal of members of the gov-
erning body. If a county charter provides for the Legislature to pre-
scribe the salary of the governing body, such compensation shall'be
prescribed by the governing body by ordinance.
(c) An elected sheriff, an elected distiict attorney, an elected asses-
sor, other officers; their election or appointment, compensation, terms
and removal.
(d) The performance of:functions-.,require
d :
-
Y:
. . , /`/1L3C7 F14&E— 3orrcw
61981 TITLE 42—THE PUBLIC HEALTH AND WELFARE Page 376 Page 377
&-C. ty of the Nation and the health and living standards PART II—MPLa.
2000h-3. Construction of provisions not to affect of its People require the realization as soon an feasible
authority of Attorney General.etc.,to of the goal of a decent home and a suitable living envi- Sac. 201, Each e
institute or intervene in actions or ronment for every American family;and subject to this order
proceedings. WHEREAS discriminatory policies and practices dent's Committee c
2000h-4. Construction of provisions not to ex- based upon race, color, creed, or national origin now
established Pursuan
elude operation of State laws and not operate to deny many Americans the benefits of hous- after sometimes ref,
to invalidate consistent State laws. ing financed through Federal assistance and as a con- thirty days from th,
2000h-5. Authorization of appropriations. sequence prevent such assistance from providing them HILL" all current pr
2000h-8. Separability of provisions with an alternative to substandard, unsafe, unsani- are affected by this,
CHAPTER REFERRED TO IN OTHER SECTIONS tary,and overcrowded housing;and �` SBC. 202.Each suc
WHEREAS such discriminatory policies and prat- Primarily responsibi
This chapter is referred to in section 11111 of this tices result in segregated patterns of housing and nec- the purposes of this
title. essarlly produce other forms of discrimination and grans administered '
SUBCHAPTER I—GENERALLY segregation which deprive many Americans of equal with
hstheuch informaCommittee.
opportunity in the exercise of their unalienable rights In the Performance :
§1981. Equal rights under the law to life,liberty,and the pursuit of happiness:and at such intervals as t;
WHEREAS the executive branch of the Govern- SEC. 203. Each sue
All persons within the jurisdiction of the ment. In faithfully executing the laws of the United within thirty days f,
United States shall have the same right in States which authorize Federal financial assistance, such rules and reguli
every State and Territory to make and enforce directly or Indirectly, for the provision,rehabilitation, Policies, and make su
contracts, to sue, be parties, give evidence, and and operation of housing and related facilities, is may be consistent wi,
to the full and equal benefit of all laws and pro- charged with an obligation and duty to assure that ate to effectuate the
ceedings for the security of persons and proper- those laws are fairly administered and that benefits department and ager
ty as is enjoyed by white citizens, and shall be thereunder are made available to all Americans with- mlttee in order to ac
subject to like punishment, pains, penalties, out regard to their race, color, creed, or national f0rmity as may be fes
taxes, licenses, and exactions of every kind, and origin: PART THEREFORE, by virtue of the authority PART)
to no other. vested Ii. me as President of the United States by the Sac.301.The Coma
(R.S. § 1977.) Constitution and laws of the United States, it is or- a and any officer or em
dered as follows: tive department or a,
CODIFICATION hold such hearings, p
R.S. § 1977 derived from act May 31, 1870, ch. 114, PART I—PREVENTION OF DISCRIMINATION tee, department, or i
§ 16, 16 Stat. 144. Compliance,enforcers,
Section was formerly classified to section 41 of Tit)#, SECTION 101. I hereby direct all departments and SEC.302.If any exec
8.Aliens and Nationality. agencies in the executive branch of the Federal Gov- lett to this order Cor
ernment,insofar as their functions relate to the provi- (including but not lin
SHORT TITLE OF 1976 AMENDMENT Sion, rehabilitation,or operation of housing and relat- ship,association,trust
ed facilities, to take all action necessary and appropri- local public agency h:
Pub. L. 94-559, which amended section 1988 of this ate to prevent discrimination because of race,color,re- or procedure Issued or
title, is known as "The Civil Rights Attorney's Fees or any nondiscrlmina
Awards Act of 1976", see note set out under section ligton(creed),sex or national origin— agreement or contract
1988 of this title. (a)in the sale,leasing,rental,or other disposition of ulation, or procedure,
residential property and related facilities (including remedy such violatfor
SECTION REFERRED TO IN OTHER SECTIONS land to be developed for residential use), or in the use conference,conciliation
This section is referred to in section 1988 of this or occupancy thereof, if such property and related fa- efforts made by an,
title. cillties are— agency have been un.
(1) owned or operated by the Federal Government, Hiles, regulations, Pr(
8 1982.Property rights of citizens or adopted by it pursuant
(ii) provided in whole or in part with the aid of merit or agency may to
All citizens of the United States shall have loans, advances, grants, or contributions hereafter Prfate under its govern
the same right, in every State and Territory, as agreed to be made by the Federal Government,or Ited to,the following:
It may—
is enjoyed by white citizens thereof to inherit, (111) provided in whole or in part by loans hereafter (a)Cancel or termtna+
purchase, lease, sell, hold, and convey real and insured, guaranteed, or otherwise secured by the ment or contract with
personal property. credit of the Federal Government.or local public agency pro
(R.S. § 1978.) (iv) provided by the development or the redevelop- bution, or other Peder:
ment of real property purchased, leased, or otherwise commission or fee:
CODIFICATION obtained from a State or local public agency receiving (b) refrain from ext
Federal financial assistance for slum clearance or any Program administ,
R.S. § 1978 derived from act Apr. 9, 1866, ch. 31, 4 1, urban renewal with respect to such real property order until it is Batts;
14 Stat. 27.
Section was formerly classified to section 42 of Title under a loan of grant contract hereafter entered into; firm, or State or local
8.Aliens and Nationality.
and the rules,regulations,a
(b) In the lending practices with respect to residen- ed Pursuant to this ore'
Ex.ORD.NO. 11063.EQUAL OPPORTUNITY IN HOUSING tial property and related facilities (including land to Provisions included in al
(c) refuse to approv(
Ex. Ord. No. 11063. Nov. 20, 1962, 27 F.R. 11527, as be developed for residential use) of lending instltu- other lender as a bene:
amended by Ex. Ord. No. 12259,Dec. 31, 1980, 46 F.R. tions, insofar as such practices relate to loans hereaf- ministered by 1t whicl:
ter insured or guaranteed by the Federal Government.
1253,provided: revoke such approval if
WHEREAS the granting of Federal assistance for SEC. 102. I hereby direct the Department of Housing Sac.303In approprta
the provision, rehabilitation, or operation of housing and Urban Development and all other executive de- and agencies shall refer
and related facilities from which Americans are ex- partments and agencies to use their good offices and tions of any rules,regul
eluded because of their race, color, creed, or national to take other appropriate action permitted by law,in- adopted pursuant to tl-
origin is unfair, unjust, and inconsistent with the eluding the Institution of appropriate litigation, if re- ` nondiscrimination prov
public policy of the United States as manifested in its quired,to promote the abandonment of discriminatory went or contract, for s,
Constitution and laws;and practices with respect to residential property and re- he may deem appropri;
WHEREAS the Congress in the Housing Act of 1949 lated facilities heretofore provided with Federal finan- authorized to furnish
(see Short Title note set out under section 1441 of this cial assistance of the types referred to In Section order to the Committe
title]has declared that the general welfare and securl- 101(a)(10,(ill),and(iv), agency requesting such i
MEN
Page 376 Page 377 TITLE 42—THE PUBLIC HEALTH AND WELFARE 01983
nd living standards PART II—IMPLEMENTATION 6Y DEPARTMENTS AND SEC.304.Any executive department or agency affect-
as soon as feasible AGENCIES ed by this order may also invoke the sanctions provid-
suitable living envi- -SEC. 201. Each executive department and agency ed in Section 302 where any person or firm, including
and subject to this order is directed to submit to the Presi- a lender, has violated the rules, regulations, or proce-
:ies and practices dent's Committee on Equal Opportunity in Housing dures issued or adopted pursuant to this order,or the
,ational origin now established pursuant to Part IV of this order (herein- nondiscrimination provisions included in any agree-
.,e benefits of hour- after sometimes referred to as the Committee),within ed b or contract, with respect to any program affect-
.,e
and as a con- thirty days from the date of this order, a report out- de a this order administered by any other executive
am providing them lining all current programs admhiistered by it which department or agency.
d, unsafe, unsani- are affected by this order. PART IV—EsTAsLIBHMENT OF THE PRESIDENT'S
SEc. 202.Each such department and agency shall be COMMITTEE ON EQUAL OPPORTUNITY IN HOUSING
1 policies and prat- primarily responsible for obtaining compliance with
the purposes of this order as the order applies to pro- [Revoked. Ex.Ord. No. 12259, Dec. 31, 1980, 46 F.R.
,f housing and nec- grams administered by it; and is directed to cooperate 1253.1
discrimination and with the Committee, to furnish it, in accordance with
americans of equal law,such information and assistance as it may request PART V—POWERS AND DUTIES OF THE PRESIDENT'S
unalienable rights in the performance of its functions,and to report to it COMMITTEE ON EQUAL OPPORTUNITY IN HOUSING
;:ppiness;and at such intervals as the Committee may require. SEC.501.[Revoked.Ex.Ord.No. 12259,Dec.31, 1980,
h of the Govern- SEC. 203. Each such department and agency shall, 46 F.R. 1253.1
laws of the United within thirty days from the date of this order, issue SEC.502. (a)The Committee shall take such steps as
Mancial assistance, such rules and regulations, adopt such procedures and it deems necessary and appropriate to promote the co-
.,ion, rehabilitation, policies, and make such exemptions and exceptions as ordination of the activities of departments and agen-
Aated facilities, is may be consistent with law and necessary or appropri- cies under this order.In so doing,the Committee shall
:uty to assure that ate to effectuate the purposes of this order.Each such consider the overall objectives of Federal legislation
i and that benefits department and agency shall consult with the Com- relating to housing and the right of every individual to
Al Americans with- mittee in order to achieve such consistency and uni-
formity as may be feasible. participate without discrimination because of race,
creed, or national color,religion(creed),sex or national origin in the ul-
PART III—ENFORCEMENT timate benefits of the Federal programs subject to
of the authority Sac.301.The Committee,any subcommittee thereof, this order.
jilted States by the (b)The Committee may confer with representatives
,ed States, it is or- and any officer or employee designated by any execu- of any department or agency. State or local public
five department or agency subject tthis order may agency, civic, industry, or labor group, or any other
hold such hearings, public or private,, as the Commit- group directly or indirectly affected by this order; ex-
.:RIMINATION compliance,enforcement,or educational purposes.
tee, department, agency may deem advisable for amine the relevant rules, regulations,procedures,poli-
SEc. 302. If any executive department or agency sub- cies, and practices of any department or agency sub-
,1 departments and ject to this order concludes that any person or firm Jett to this order and make such recommendations as
.,f the Federal Gov- (including but not limited to any individual, partner- may be necessary or desirable to achieve the purposes
relate to tete provi- ship,association,trust,or corporation)or any State or of this order.
housing and relat- local public agency has violated any rule, regulation. (c)The Committee shall encourage educational pro-
ssary and appropri- or procedure issued or adopted pursuant to this order, grams by civic, educational, religious, industry, labor,
:se of race,color,re- or any nondiscrimination provision included in any and other nongovernmental groups to eliminate the
agreement or contract pursuant to any such rule, reg- basic causes of discrimination in housing and related
other disposition of ulation, or procedure, it shall endeavor to end and facilities provided with Federal assistance.
facilities (including remedy such violation by informal means, including SEC.503.(Revoked.Ex.Ord.No. 12259,Dec.31,1980,
.I use), or in the use conference, conciliation, and persuasion unless similar 46 F.R. 1253.1
,e.rty and related fa- efforts made by another Federal department or PART VI—MISCELLANEOUS
have been unsuccessful. In conformity with
::deral Government, rules, regulations, procedures, or policies issued or SEC. 601. As used in this order, the term "depart-
adopted by it pursuant to Section 203 hereof,a depart- menta and agencies" includes any wholly-owned or
t with the aid of ment or agency may take such action as may be appro- mixed-ownership Government corporation, and the
:rt
with hereafter priate under its governing laws,including,but not lim- term "State" includes the District of Columbia, the
ited to,the following: Commonwealth of Puerto Rico, and the territories of
iovernment,or It may— the United States.
t by loans hereafter (a)cancel or terminate in whole or in part any agree- SEC. 602. This order shall become effective immedi-
se secured by the , ment or contract with such person, firm, or State or ately.
or local public agency providing for a loan, grant,contri-
;it or the redevelop- bution, or other Federal aid, or for the payment of a CROSS REFERENCES
leased, or otherwise commission or fee; Third party tort liability to United States for hospi-
:.lic agency receiving (b) refrain from extending any further aid under and medical care, see section 2651 et seq. of this
slum clearance or any program administered by it and affected by this
such real property order until it is satisfied that the affected person, ta
title.
reafter entered into; firm, or State or local public agency will comply with SECTION REFERRED TO IN OTHER SECTIONS
the rules,regulations, and procedures issued or adopt-
ed pursuant to this order, and any nondiscrimination This section is referred to in sections 1988, 3608 of
ii respect to residen- provisions included in any agreement or contract; this title.
s (including land to (c) refuse to approve a lending institution or any
of lending institu- other lender as a beneficiary under any program ad- 01983.Civil action for deprivation of rights
late to loans hereaf- ministered by it which is affected by this order or
ederal Government. revoke such approval if previously given. Every person who, under color of any statute,
,artment of Housing SEC.303.In appropriate cases executive departments Ordinance, regulation, custom, or usage, of any
other executive de- and agencies shall refer to the Attorney General viola- State or Territory or the District of Columbia,
.eir good offices and tions of any rules,regulations,or procedures issued or subjects, or causes to be subjected, any citizen
,,ermitted by law, in- adopted pursuant to this order, or violations of any of the United States or other person within the
iate litigation, if re- nondiscrimination provisions included in any agree.
ment or contract, for such civil or criminal action as jurisdiction thereof to the deprivation of any.
_al of discriminatory rights, privileges,,ial property and re- he may deem appropriate. The Attorney General Is g P g s, or immunities secured by the
.i with Federal finan- authorized to furnish legal advice concerning this Constitution and laws, shall be liable to the
erred to in Section order to the Committee and to any department or party injured in an action at law, suit in equity,
agency requesting such advice. or other proper proceeding for redress. For the