Another and Hopefully Final Look at the Property--Personal Liberty Distinction of Section 1343(3)

Recent years have witnessed increasing confusion and uncertainty over the proper scope of section 1343(3) of Title 28 of the United States Code, the jurisdictional counterpart of section 1983 of Title 42. Both provisions originated in the Civil Rights Act of 1871. Section 1983 creates a cause of action to redress the deprivation, under color of state law, of any rights, privileges, or immunities secured by the Constitution or laws. Section 1343(3) grants to the federal district courts original jurisdiction, irrespective of amount in controversy, over any civil action authorized by law that is commenced by any person: "To redress the deprivation, under color of any state law, statute, ordinance, regulation,custom or usage, of any right, privilege, or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States."' The confusion, both past and present, has centered around the problem of determining to what extent, if any, section 1343(3) should be governed by the judicial gloss it received in Hague v. CIO.

In that landmark Supreme Court decision, Justice Stone, in his concurring opinion, concluded that this jurisdictional section applied only when "the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights... "