Civil Rights Actions and Reparations for the 1921 Tulsa Riot
Talk Delivered August 9, 1999
Tulsa Race Riot Commission, Greenwood Cultural Center
Professor Alfred L. Brophy
Oklahoma City University School of Law
405-521-5422
abrophy@law.ua.edu

I have focused on two issues-civil rights claims arising from the riot and legislative reparations in analogous cases.

I. Civil Rights Actions
    I've looked at Civil Rights Actions for two reasons.
    First, primarily as a way of thinking about liability and how we might apportion blame. I think that one good guide to apportioning blame is how a court would approach the tragedy if it happened today.
    Second-and substantially less importance-is to see whether a law suit could be a way of achieving reparations. For procedural reasons I'll elaborate soon, law suits are realistically foreclosed-due primarily to the requirement that suits be filed within a few years of the harm.

    The basic civil rights statute that's used in suits against state and municipal officials and government officers was law in 1921-it was passed in 1871 as part of the Ku Klux Klan Act. It's popularly referred to as section 1983 (and that's what I'll be calling it). 1983 makes "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE, REGULATION, OR CUSTOM . . ." DEPRIVES OTHERS "OF ANY RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION" liable to suit. 42 U.S.C. sec. 1983.

    There are a couple of key principles here-(1) person can mean either an individual officer or a municipality-the city of Tulsa is considered a person for section 1983 purposes.
    (2) acts under color of law requires in the case of individuals that they be clothed with some authority from the state; in the case of municipalities, there must be some "official policy."

    There are three (3) groups that I want to talk about-individual officers; the city and state; and insurance companies. I'm leaving out of my discussion individual rioters-proof problems are so great at this point and that anyone with any major role would be at least close to 100 years old and statute of limitations problems that plague suits against the city are even more problematic against individuals. Of course, in 1921 if one could have located individual rioters and proven their role, there were potential claims.

    (1) Suits against individual officers - Scott Ellsworth's book, Death in a Promise Land, details the close connections between the hastily deputized white officers and the riot. In the Oklahoma Supreme Court's opinion in Redfearn v. American Central Insurance Company, 243 P.2d 929 (1926), what I think is the closest thing we have to an official Oklahoma state report on the riot, Justice Ray summarized the connection between "officers" and "THE EVIDENCE SHOWS THAT A GREAT NUMBER OF MEN ENGAGED IN ARRESTING THE NEGROES FOUND IN THE NEGRO SECTION WORE POLICE BADGES OR BADGES INDICATING THEY WERE DEPUTY SHERIFFS." Ray acknowledges that the people wearing badges then set fire to some buildings.

    Section 1983 provides a clear remedy against those officers-in what is called their individual capacity. That is, a plaintiff needs to look to those officers' own pockets for a recovery. Unfortunately, there are the same problems of proof that I spoke about with individual rioters-probably impossible to identify, if that ever could have been discovered. Important to remember the role of people clothed with badges of authority in apportioning liability-and in arresting and disarming Greenwood residents, so that the property was left defenseless.

    All of which brings us to the City....

(2) Suit against the City of Tulsa
   The key principle in municipal liability is that the action that deprives victims of their rights must "implement or execute a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body's officers." Monnell v. Dept. Social Services, 436 U.S. 658 (1978). Which means that there must be some action by the people responsible for setting policy for Tulsa that caused the deprivation of rights. Official policy is usually set by the highest authority in the municipality (Tulsa City Council, I take it, in this case); but high officials, who have "final authority to establish municipal policy with respect to the actions involved" can also set policy-Oklahoma statute conferred the power on sheriffs to call upon (apparently deputize) citizens. So I'm confident in saying that there was official action by the city. The tough question is what's the official policy that Tulsa adopted that resulted in the deprivation of constitutional rights. Well....

    There are two key pieces of evidence linking the city of Tulsa to liability. First-and most inculpatory-are the instructions given to recently deputized officers. While the looting that the record established they engaged in may not by itself give rise to liability (Tulsa would say that the city did not authorize the looting and burning), Dr. Ellsworth is developing evidence that leaders in the police department instructed the deputies to "get a gun and get a nigger." The Tulsa fire marshall, moreover, testified in the Redfearn case that he saw "bunches of men go out of the police station, but he didn't know where they would go; that they would leave the police station and go out, and come back -- they were out and in, all of them, that they were in squads, several of them together. That it was after ten o'clock at night when he went to the station; he stayed at the fire station and the police station until morning. That he could see men running around in cars all the time, and could hear shots fired; that it lasted until way up in the morning. several hundred of the deputized citizens were running in an out of the police headquarters throughout the night-it would be very useful to know what instructions they were receiving." [That is the summary of Fire Marshall Wesley Bush's testimony in the appellant's brief in Redfearn.]

    A strong case can certainly be made out for liability for deputizing officers without adequate training/supervision. Such a claim is central to thinking about municipal liability, because it does not rest on inferences about what the police chief told his deputies. Now, I keep emphasizing official policy.

    So...deputizing an angry crowd that used their positions of authority to disarm, arrest, then loot and burn significant sections of Greenwood? Now, the failure to adequately train and supervise that group is probably the most direct route to Tulsa's liability. The Supreme Court recognizes a cause of action in limited instances-when there has been a failure to train, and that "deficiency in training actually caused the police officers' indifference."

    It's difficult to find analogies in decided cases because so rarely is a city so indifferent as in Tulsa in 1921. Here, as I've said, I'd really like to know more about the instructions the sheriff gave and his own intent. I've seen some vividly descriptive photographs-a truckload of white men dressed in uniform, with rifles, another of white men in what to me unschooled eyes are military uniforms, marching black men at rifle point. The photographic evidence, along with Dr. Ellsworth's finely detailed study, suggest substantial organization and state involvement. The amount of organization is itself suggestive of the centralized planning, reminiscent of a police department.

    (2) You may be thinking, what about the failure to protect-the city failed in its duty to protect Greenwood residents. Isn't that enough, all by itself? Unfortunately, no. The law is not particularly helpful in this area-which may be another reason why it's good to analyze according to federal civil rights law. It shows that the Commission is not reaching for some extreme recovery-but is following the well-established (and relatively conservative) standards.

    The Supreme Court clarified in 1989-in a heavily criticized decision-that "mere" failure to protect is not a constitutional deprivation. Now, there are some nuances-corollaries to that principle of non-liability for failure to protect. When officials create a danger, there can be liability. Here the examples are odd: by putting civilians at risk for attack by prisoners, for example, or when police officers signal that they will not intervene to protect someone who's attacked, or (in an analogy, I think, to the disarming of Greenwood residents), if police arrest the driver of a car and leave the passenger by the side of the road in a rough neighborhood at night.

    Now all of this liability is dependent upon deputizing-and Justice Ray expressed some skepticism in Redfearn about whether the people wearing the badges actually had been deputized. So let me turn now to Redfearn, tell you a little about it, and the final group of defendants.

   (3) Suits against Insurance Companies
   One final group that might have some exposure are insurance companies. Most policies on Greenwood property, John Hope Franklin's father tells us in his autobiography, had riot exclusion clauses. So that "damage done directly . . . or indirectly by . . . riot" was excluded from coverage. One case went to the Oklahoma Supreme Court in 1926. William Redfearn, who owned a theater and hotel, (and whom Larry O'Dell tells me was white), sued his insurance company. He made several claims:
    (1) no one knew how the fire started-there was some evidence that it may have come from a neighboring lumber yard;
    (2) fire was caused by police and thus was not caused by riot- (remember, we construe insurance polices strictly against the insurance companies at every turn-so even if police burn down a building during the riot, it is caused by police, not riot activity).

    Oklahoma Supreme Court (1) seems to have discounted evidence that the fire came from another source than the riot or police. (2) While it credited the reports that people wearing badges were frequently responsible for setting fires, at the same time it questioned whether those people actually were police. At any rate, the Court thought that even if the officers were responsible, that the fire was still caused by the riot-the Supreme Court refused the narrow reading of the riot exclusion clauses that Redfearn sought.

    So, as to potential claims against the insurance companies? Doesn't look good for the insureds-the legal principle in Redfearn (the broad reading of the riot exclusion clause) likely bars subsequent suits. One could, I suppose, try to re-argue the principles, but that's going to be tough.

    And brooding over all claims-civil rights and insurance claims-is one procedural problem.

Statutes of Limitation

    Section 1983 claims must be filed within three years of the time the harm occurs-so sometime around June 1, 1924, any case that had not already been filed was barred. You may be thinking-but there were recently lawsuits against Swiss banks. How did those plaintiffs avoid the statute of limitations problems?
    In rare instances, the statute of limitations may be tolled (stopped).
    (1) Fraudulent concealment is one of them-used with limited success in suit by Japanese-Americans interned during World War II and by those claiming loss of money during World War II from Swiss Banks. It generally requires that the

defendant fraudulently conceals the basis of the plaintiff's cause of action;then the doctrine tolls (stops) the running of the statute of limitations until a REASONABLY DILIGENT PLAINTIFF COULD HAVE DISCOVERED THE ELEMENTS OF A CAUSE OF ACTION.

Applying that standard in this case, plaintiffs might not have discovered all the facts that we now have, but it would be difficult to effectively argue that there was no effective concealment that a reasonably diligent plaintiff would not have discovered the facts that there was a cause of action. Indeed, much of what I've said is based on testimony developed in Redfearn, which has been part of the public record since 1924. This is a different case from the Swiss Banks, which held all of the information that was sought to be used in recovering from the banks-the information was available no other way.
    (2) Equitable Estoppel
    Tolls the running if the defendant's behavior induced plaintiff to refrain from filing a claim. Again, a difficult claim. Promises by the city of a claims commission? Maybe, but tough.

    So I'd urge the Commission to look to 1983 as a model for thinking about liability and apportioning blame-where the city has plenty--rather than as a basis for a suit.

Let me now turn, briefly, to the second issue I've been exploring-reparations provided by legislation.

    1. Here the most comprehensive model is the compensation to Japanese-Americans interned during World War II. The Civil Rights Act of 1988, signed by President Reagan, had several components. (1) an acknowledgment and apology for fundamental injustice of the internment; (2) public education fund; (3) restitution of $20,000 to every then-living survivor who was "confined or relocated." The Act stated that the goals were to discourage similar events in the future and to make United States concerns over human rights more sincere and credible.

    2. Another good example, on a much more modest scale, is Florida legislation arising out of the 1923 burning of the town of Rosewood. That 1994 legislation provided a fund of $2M for compensation of victims and allowed individual property claims of up to $100,000, as well as a modest education fund.

    3. Somewhat further afield are the various programs designed to provide compensation for Native Americans. The largest was the 1971 Alaska Native Claims Settlement Act, which set up corporations based around native villages and then gave individuals shares of the corporation. It provided for economic development, as well as reparations.

    3. There are other examples of money set aside in the aftermath of riots-Congress provided, as part of a $1B urban development program, for special funding for development after the 1992 Los Angeles riot. This is part of the trend towards geographic-based remedies, which happen often in cases where it is difficult to locate those who have been harmed. Take antitrust cases, where consumers who have been victimized by price-fixing are difficult to identify, for example. The idea is that we want to make the responsible parties pay make some restitution and often identifying those who have been specifically harmed is difficult, if not impossible.

    The spirit of our age contemplates making amends and there are ample models for the Commission to follow, from direct payments to survivors, to funding development in Greenwood (a form of geographic reparations), funds for education, as well as a sincere apology. Just as the United States government thought reparations were due Japanese-Americans interned during World War II to make United States calls for respect for human rights more credible, so the city of Tulsa and state of Oklahoma may consider reparations an important part of both correcting injustice and preventing future injustices.

    If the riot occurred today, Tulsa would be liable-for the role of the police in looting and burning, which the record clearly establishes them participated in. The city deputized a lynch mob, and those deputies used that power, which the city gave them, to go in and disarm Greenwood residents, then loot and burn. Such a record implicates the city in an on-going injustice.