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A 143-year-old law that was meant to curb violence from the Ku Klux Klan might be last line of legal defense for the families of Michael Brown, the Ferguson, Mo., teenager who was shot and killed by police officer Darren Wilson, and Eric Garner, who died following a chokehold placed on him by a NYPD officer, according to legal experts.

In both cases, a grand jury elected not to press criminal charges.

The law was passed in 1871, when some white Americans were not very happy about life. The Confederate loss in the Civil War a few years prior had brought the federal government's Reconstructionist policies to much of the American South. While the policies gave rise to a newly empowered class of African-Americans, it was paralleled by the emergence of the Klan, a notorious terrorist organization.


Violence from the Klan against blacks and some whites had become such an epidemic that the federal government decided to take action to stop it. The 42nd Congress passed what would become known as the Ku Klux Klan Act, an expansive law giving the federal government the authority to send federal forces to combat Klan violence, and also to designate certain crimes as federal offenses.

Parts of the Act have since been stricken by courts as unconstitutional, but one section — Section 1983 — is still considered one of most powerful civil-rights statutes on the books today.


Specifically, Section 1983 offers protection from the "deprivation of any rights, privileges, or immunities secured by the Constitution."

"It was meant to stop public officials, police officers, and others in the South from killing blacks," St. Louis University political science professor, and Section 1983 expert Kenneth Warren, told Fusion. "Smart lawyers rediscovered the hardly used section in the 1950s and 60s, and started using it very successfully during the Civil Rights era."


According to Warren, there is "no question that [officer] Wilson will be seeing one of these suits" in the coming months, possibly connected to a wrongful death claim from Brown's family. The family's lawyer has hinted at one of these claims, and said that the family will "pursue all the legal avenues" that it can.

Former Ferguson police officer Darren Wilson in an undated photo handout


And on Wednesday, shortly after a grand jury declined to press charges against the officer who put Eric Garner in a chokehold when Garner was allegedly caught selling loose cigarettes, the Justice Department announced a civil-rights investigation into that case.

Though it's unclear if either case will make its way to court, Section 1983 is revered by civil-rights attorneys for its multiple applications— it has been used in everything from the Rodney King civil trial to a case of a high school district spying on kids by remotely activating school-issued webcams. But if not for its own dramatic successes in the 20th century, it might have been even stronger than it is today.


A few decades after civil-rights attorneys rediscovered the law, some cities found themselves with a major problem: the payouts associated with abuses were becoming unsustainable for some local governments. This was happening because often the municipality is the one who 'indemnifies'— or picks up the tab if you will— the monetary damages given to an officer or other government employee. Since the law allows for the plaintiff to collect both punitive and attorneys fees, the damages can be astronomical.

"Some municipalities had their insurance cancelled by insurance companies," said Warren. "And across the river from St. Louis in East St. Louis, we saw the city almost bankrupted from one of these suits."


Around this time, some communities began lobbying Congress to amend the law, since they were hurting so badly from the payouts. Congress was apprehensive of making any changes, "because it would look blatantly racist to do so," said Warren.

But the Supreme Court effectively did the same by adopting what is called the "clearly established standard," for governmental conduct with a handful of rulings in the early and mid-80s. Earlier this year, the Supreme Court upheld that standard in two cases on the same day.


Memorial for Michael Brown seen on November 19, 2014 in Ferguson, Mo. Photo by Getty Images

The Supreme Court's rulings effectively made it harder for plaintiffs to prove their cases.


"The standard used to be that the person knew or should have known [they were violating someone's civil rights]," said Warren. "Now, the petitioner has to prove that the rights were clearly established, and that's harder to prove, so it's a tougher threshold to prevail with."

By that definition, it might mean that 80 percent of the officers in a police department know that a certain action is a violation of civil rights, said Warren. In a separate case with a separate action, it might mean 20 percent of the department would have to know. Either way, it makes it more difficult to predict the outcome— and harder for the plaintiff to the reach that threshold when they are presenting the case to the court.


"I have no clue how the [Brown] case would play out," Sheldon Nahmod, Section 1983 expert and professor of law at the Illinois Institute of Technology Chicago-Kent College of Law, told Fusion. "The grand jury failed to indict with the evidence they had, but you've still got a lesser burden of proof with a civil case. The officer could conceivably settle with the family. I wouldn't want to hazard a guess."

"It's also possible that the city, and not the officer, could be sued under Section 1983, under the failure to train theory," Nahmod said. That theory holds that if a violation was committed because of improper training of a government official, the government entity could be held liable.


Or, he posited, there could be a federal prosecution for violating the deprivation of rights under color of law statute, which is the criminal counterpart to Section 1983. That route seems unlikely, he said.

"Section 1983 is probably the most used and famous civil-rights statute out there," he said. "Whenever you have a police brutality case, or whenever you have a case where someone says a police officer infringed his rights, you've generally got a Section 1983. This is the statutory vehicle for redressing those violations."


Separately, the Department of Justice is conducting a "patterns and practices" investigation into the Ferguson Police Department, which would look not only at Brown's case, but the overall tactics and data of the police department. That process could take years to yield any fruit for those who feel justice has not yet been served.

"This thing is not over," concluded Nahmod. Far from it.

Daniel Rivero is a producer/reporter for Fusion who focuses on police and justice issues. He also skateboards, does a bunch of arts related things on his off time, and likes Cuban coffee.