AuthorDenny, Madeleine


In October of 1868, (1) Benjamin F. Randolph, a Black state senator in South Carolina, was shot dead by three white men as he was stepping off the train. (2) Though the assassination occurred in broad daylight with multiple witnesses, no one ever faced charges for the murder. D. Wyatt Aiken, a former Confederate colonel, was arrested in relation to the assassination, (3) but he was quickly released. (4) Aiken responded to his arrest by publishing a letter in the local paper alleging that his detention was felonious and harkened back to an "old regime" under which he could have successfully contested such a display of state authority. (5) In 1870, Congressional hearings uncovered the testimony of a man who claimed to have participated in the assassination of Randolph as part of his activities with a club headed by Aiken that was dedicated to "kill [ing] out [sic] the leaders of the Republican party and driving] them out of the state." (6) That club was the now-infamous Ku Klux Klan ("the Klan"), (7) and the assassination of Randolph was only one instance of a pattern (8) of increasing violence in the post-Civil War American South.

Although the Klan was not uniform in its actions or goals, its widespread use of terror tactics and infiltration of law enforcement agencies allowed the Klan to pose a serious threat to the order and stability of Southern states. (9) To combat this rising violence by white supremacists in the post-Civil War South, the Forty-Second Congress passed the Civil Rights Act of 1871. (10) This Act, now codified in part at 42 U.S.C. [section] 1983 and 42 U.S.C. [section] 1985(3), gave victims of discrimination a private cause of action for the deprivation of their constitutional rights. (11) Though the Civil Rights Act of 1871 was intended to encompass a broad range of discriminatory behavior, legislators expressed a particular concern for conspiracies enacted by members of law enforcement against minority populations. (12) The Civil Rights Act and the causes of action it created were largely ignored by the lower courts until the Supreme Court's decision in Griffin v. Breckenridge (13) revived the Act as a source of civil rights litigation. (14) Since this decision, provisions of the Civil Rights Act of 1871 have become central mechanisms for litigating and enforcing civil rights. (15)

However, within a decade of the Griffin ruling, conspiracy claims under the Civil Rights Act were again under threat--this time by the spread of an antitrust doctrine called the intracorporate conspiracy doctrine (ICD). (16) This doctrine arises from the notion that, under the law, the corporation is a singular and unified person; as such, different representatives of a corporation cannot conspire with each other, just as a natural person could not conspire with themselves. (17) The ICD effectively eliminates civil conspiracy liability when: (1) the conspirators share the same employer and (2) are operating within the scope of their employment. (18) The ICD was first applied to conspiracy claims under only one portion of the Civil Rights Act of 1871. (19) Because the Act provided an alternative means of relief, there was little practical effect. (20) Now, courts are beginning to expand the doctrine to encompass the remaining section of the Act, leaving plaintiffs with no alternative avenue to pursue conspiracy claims concerning civil rights. (21) As an effect of the expansion of the ICD, many police officers are immune from civil conspiracy charges while on the job, as their co-conspirators tend to be other officers with the same municipal employer. (22)

At a moment when police brutality, extremist violence, and white supremacy have come to dominate the headlines, (23) the time has never been more ripe to consider the history and modern-day application of the ICD to civil rights claims and to advocate for the abolishment of the doctrine in such a context. After this introduction in Part I, Part II will present the applicable provisions of the Civil Rights Act of 1871 and provide a definition of the ICD. Part III will look at the history of those concepts and at their original purposes. Part IV will trace the interactions of the ICD and the Civil Rights Act of 1871 and where they stand today. Part V will advocate for the abolishment of the ICD in the civil rights context. Part VI will propose two methods of abolishing the doctrine. The first of these methods imagines a legislative solution, while the second employs the courts. Part VII will consist of concluding remarks.


    This Note looks at the interplay of several different legal concepts. For the sake of clarity, definitions of these concepts will be provided in this section.

    1. Section 1985(3) and Section 1983

      The two sections of the Civil Rights Act of 1871 currently codified as 42 U.S.C. [section] 1983 and 42 U.S.C. [section] 1985(3) are distinguishable, but they share a common history and purpose. (24) Their treatment by the courts is inextricably linked, and decisions applied to one section of the Act would likely be applied to the other. Due to this historic and continuing entanglement, the definition and history of both sections will be presented and discussed, despite the fact that this Note will focus on the importance of preserving conspiracy causes of action under [section] 1983.

      Section 1983 is broader and creates a civil action for violations of constitutional rights by state actors. Section 1983 is often used in civil rights cases concerning topics from free speech to prisoner rights to police brutality. (25) However, the state actor requirement is a key limitation of [section] 1983 and the primary distinction between [section] 1983 and [section] 1985(3). (26) The text of [section] 1983 reads as follows:

      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction 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, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. (27) By comparison, [section] 1985(3) deals specifically with conspiracies to deprive another of civil rights. (28) Though less famous than the related [section] 1983, [section] 1985(3) remains a valuable tool within civil rights litigation. Importantly, courts have interpreted [section] 1985(3) to apply to private actors, (29) meaning that it is not subject to the same state action limitation as [section] 1983. The text of [section] 1985(3) reads in part:

      If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person ... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. (30) Though [section] 1983 does not specifically mention conspiracies, it can be used similarly to [section] 1985(3) by combining a claim under the statute with a claim for civil conspiracy. (31) As explained by the Sixth Circuit:

      A civil conspiracy is a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in the damage. (32) When the unlawful act is a violation of [section] 1983, the two legal concepts combine to form a claim for conspiracy to violate constitutional rights; (33) this is essentially the same claim established by [section] 1985(3).

    2. The Intracorporate Conspiracy Doctrine (ICD)

      As described above, a conspiracy requires the agreement of multiple parties. (34) However, because corporate personhood imagines the corporation as a single individual, "a corporate entity cannot conspire with itself because employees of a corporation are considered part of the corporate entity." (35) This idea is called the intracorporate conspiracy doctrine and it prohibits liability for a conspiracy when the conspirators are acting within the scope of their employment and all share the same employer. (36)

      The ICD is grounded in two legal fictions: (1) that the corporation is a legal "person" and (2) that corporations enjoy legal unity. (37) Legal unity is the concept that the corporation and its agents are one entity that always act toward a common goal. (38) Though the ICD originated in antitrust law, it has slowly been applied to more and more areas of the law. (39) At present, the doctrine has been adopted in criminal law, torts, and civil rights cases in some circuits. (40)


    After the Union won the American Civil War and abolished slavery, the Southern states began...

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