Hardyman v. Collins

183 F.2d 308

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 9, 1950
• Docket: 12120_1
• Status: Published

Opinions

ORR, Circuit Judge.

The trial court entered a judgment of dismissal of an amended complaint on the ground that it did not state a cause of action for damages under § 47(3) of Title 8 U.S.C.A.¹ The correctness of that ruling is the subject of this appeal. The amended complaint, in substance, alleged that appellants are citizens of the United States and are members of the CrescentaCanada Democratic Club. Appellant Morse is chairman of the club and appellant Hardyman is chairman of the program and publicity committee.

The Crescenta-Canada Democratic Club, hereinafter called the club, is a voluntary association, duly organized and chartered by the Los Angeles County Democratic Central Committee and recognized officially as a Democratic club. Its claimed purposes were to participate in the election of officials of the United States, including the President, Vice-President and members of Congress; to petition the National Government for redress of grievances; to engage in public meetings for the discussion of national public issues, including the international and foreign policies of the United States.

Pursuant to a customary practice the club held regular public meetings in the city of La Crescenta at which affairs of national interest and importance were discussed and such action taken thereon as the members deemed advisable. The club arranged for and scheduled a public meeting in the city of La Crescenta for the evening of November 14, 1947, at which a named speaker was to discuss the -foreign policy of the United States, including the Marshall plan. The discussion was to be participated in by the members of the club and others attending the meeting. It was also understood that at said meeting a resolution would be presented opposing the Marshall plan with the understanding that such a resolution, if passed, would be forwarded to the President of the United States, the State Department and members of Congress. Said resolution was intended to be a petition for redress of grievances with respect to the Marshall plan. At previous meetings similar resolutions had been adopted and forwarded to officials of' the Government.

Appellees, having knowledge that a meeting of the club was to be held November 14, and also being informed of the program and purposes of said meeting, entered into a conspiracy to break up said meeting and to prevent the adoption and transmission of the proposed resolution. In furtherance of such conspiracy appelleeswent to the building in which the meeting was being held, threatened to and did assault appellants, ordered those attending the meeting to leave and thus forced those in attendance to disperse and by threats and violence prevented those attending the meeting from adopting and transmitting the proposed resolution. Appellees had not conspired or interfered with public meetings held with the knowledge of appellees by organizations expressing views with which appellees agreed and at which resolutions were adopted respecting the foreign policies of the United States. The trial court held that § 47(3) of Title 8 U.S.C.A. does not sanction a cause of action against private individuals who interfere with the privilege of assembling to petition Congress and to discuss national affairs unless the interference is committed by the state or a person acting under authority thereof.

In short, the question presented is whether § 47(3) authorizes a civil suit for damages against private individuals for interfering, pursuant to a conspiracy, with an assemblage of citizens to discuss United States foreign policy and to petition the national government for redress of grievances. This broad question embraces three issues: 1. Did Congress intend to create such a civil action by the enactment of § 47 (3) ? 2. If so, did Congress have constitutional power to do so ? 3. Granted the constitutional power, is the statute a prop-«r exercise thereof? We deal with the questions in the order named.

Intended Scope of § 47(3).

The District Court concluded that the statute was intended to give a remedy for deprivation of rights only by persons acting under color of state law. We think it embraces the deprivation of federal rights by private individuals and that such is the interpretation given the statute by the Supreme Court of the United States.

Section 47(3) begins: “If two or more persons in any State or territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, * * The disguise portion of the statute, it is obvious, is not concerned with state officials and it is equally obvious that the words “two or more persons” cannot be read to mean only persons-acting under color of state law when a simple conspiracy is involved and, at the same time, read to mean private individuals where there is a disguise.’ It will be noted that the statute also provides: “If two or more persons * * * conspire * * * 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, * * * ” It does not seem reasonable to construe “two or more persons” to mean “state officials” as applied to that kind of conspiracy. The applicability of the statute to private individuals is reinforced by a reading of the section in its original context. 17 Stat. 13. 8 U.S.C.A. § 47 was originally § 2 of the Act of April 20, 1871. Section 1 of that Act was 8 U.S.C.A. § 43, which explicitly applies to deprivations of rights under color of state law. Had Congress intended both provisions to be applicable to state action, it would not have inserted that requirement in the first section and omitted it from the second.

The United States Supreme Court has held that a statute identical in part with § 47(3) was directed “exclusively against the action of private persons, without reference to the laws of the states, or their administration by the officers, * * United States v. Harris, 1882, 106 U.S. 629, 640, 1 S.Ct 601, 610, 27 L.Ed. 290. The statute there involved described in identical language the conspiracies set forth in the first two clauses of § 47(3) and made such conspiracies a crime without the requirement of acts done in furtherance of the conspiracy set forth in the last clause of § 47(3).

The legislative history of § 47(3) further warrants the conclusion that it was intended to afford relief against acts of individuals. Although the Act embodying said section was entitled “An Act to Enforce the Fourteenth Amendment,” it was the theory of Congress that the Fourteenth Amendment gave the federal Government power to protect individual civil rights against individual action. See, Congressional Globe, 42nd Cong., 1st. Sess., pp. 367-68, 607-08, Appendix 68-69. As Representative Shellabarger, chairman of the House committee responsible for the bill, explained it, the provision in the Fourteenth Amendment that all persons born or naturalized in the United States are citizens thereof gave Congress the power to protect directly the privileges and immunities of United States citizens. He included in these privileges and immunities protection by the Government, the enjoyment of life and liberty the right to acquire and possess property, etc., citing the passage in Corfield v. Coryell, 1823, 6 Fed. Cas. p. 546, No. 3,230, quoted in the Slaughterhouse Cases, 1872, 16 Wall. 36, 83 U.S. 36, 76, 21 L.Ed. 394. See, Congressional Globe, supra, Appendix 69. That this theory of the scope of the Fourteenth Amendment has since been held invalid does not detract from its persuasiveness in determining congressional intent.²

The congressional debates reveal that the Act was intended to curb the activities of private individuals and, in particular, the Ku Klux Klan. Considerable criticism was aimed at the bill (which then included criminal as well as civil sanctions) because, it was thought, the federal Government would thereby be required to enter the field of punishing individuals for ordinary assault, trespass, etc. The answer was that the bill would only protect the citizen in such rights as he had under the federal Constitution and laws. Among such rights was the right to express opinions “on all subjects which are not against the good order of the Government in which we live.” Congressional Globe, supra, 382-83. The enactment was designed to protect others in addition to racial minorities. Congressional Globe, supra, 391, 394, Appendix 166-67, 181.

The district court, in part, based its conclusion that the statute applied to state actions upon the word “equal”. The reason given by Representative Shellabarger 'for using the word “equal” to describe the protected rights was “to confine the authority of this law to the prevention of deprivations which shall attack the equality or rights of American citizens; that any violation of the right, the animus and effect ■ of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizens’ rights, shall be within the scope of the remedies of this section.” Congressional Globe, supra, 478. Thus,'the violation by an individual of a right which is enjoyed equally by other citizens is the denial of an “equal” privilege or immunity. Any such willful violation is inherently a purposeful discrimination against the victim. There is not present the problem, which is present in cases of alleged denial of equal protection by state officials, of distinguishing between purposeful discrimination and mere erroneous application of a valid state law. See, e.g., Snowden v. Hughes, 1944, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497.

We are aware of the recent cases which characterize § 47(3) as giving federal protection only against state action. Love v. Chandler, 8 Cir., 1942, 124 F.2d 785; Viles v. Symes, 10 Cir., 1942, 129 F.2d 828. Such a holding is contrary to a construction placed on similar language by the United States Supreme Court in the case of United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290.

It is apparent that Congress intended by § 47(3) to provide a federal civil action by private individuals against other individuals for the deprivation of personal rights, among which are the rights alleged in the complaint in the instant case. It is quite as apparent that the courts have substantially limited the protection intended, holding some of the expressed protection to be beyond the power of Congress to provide.

Constitutional Power of Congress to Redress the Acts Alleged in the Complaint.

Dual rights exist under our federal system which the federal Government has power to protect. One set of rights, comprehended in the due process and equal protection clauses of the Fourteenth Amendment, as well as in the Fifteenth and Nineteenth Amendments and certain portions of the original Constitution, is subject to federal protection only as against state action. Another, much narrower set of rights is subject to federal protection from invasion by individuals. The existence of rights of federal ' citizenship, subject to federal protection, was recognized before the adoption of the Fourteenth Amendment in Crandall v. Nevada, 1867, 6 Wall. 35, 73 U.S. 35, 18 L.Ed. 744, wherein was recognized a federal right of free access to the seat of government. The concept of a dual system was sét forth in the' Slaughterhouse Cases, 1872, 16 Wall. 36, 83 U.S. 36, 21 L.Ed. 394, which distinguished the privileges and immunities of United States citizenship from those of state citizenship.

The delineation by the courts of the narrow area of rights which Congress has constitutional power to protect from individual invasion has developed through the application of what is now 18 U.S.C.A. § 241, originally enacted May 31, 1870. This statute has been applied to individual deprivations of the right to vote for federal offices, Ex parte Yarborough, 1884, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; the right to enjoy the privileges granted by the homestead laws, United States v. Waddell, 1884, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673; the right to protection from attack while in the custody of a federal marshal, Logan v. United States, 1892, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; and the right to inform federal officers of violations of federal law, In re Quarles, 1895, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Motes v. United States, 1900, 178 U.S. 458, 20 S.Ct. 993, 44 L.Ed. 1150. The cases also indicate by way of dictum that the right to assemble for the purpose of discussing the policies of the federal Government and petitioning that Government for redress of grievances is within the scope of direct federal protection. In United States v. Cruikshank, 1876, 92 U.S. 542, 23 L.Ed. 588, the Supreme Court had before it an indictment under what is now § 241 charging the defendants with having deprived certain citizens of their right to assemble together peaceably with other citizens for a peaceful and lawful purpose. The court held that the indictment was insufficient because it did not charge that the attempted assembly was for a purpose connected with the national Government. But, the court went on to declare: “The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation m respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.” 92 U.S. 542, 552-553, 23 L.Ed. 588.

This passage has been repeatedly cited by the Supreme Court as establishing the right of assembly for national purposes as a federally protected right. See, Presser v. Illinois, 1886, 116 U.S. 252, 267, 6 S.Ct. 580, 29 L.Ed. 615; Logan v. United States, 1892, 144 U.S. 263, 286, 12 S.Ct. 617, 36 L.Ed. 429; In re Quarles, 1895, 158 U.S. 532, 535, 15 S.Ct. 959, 39 L.Ed. 1080; Hague v. C. I. O., 1939, 307 U.S. 496, 513, 522, 59 S.Ct. 954, 83 L.Ed. 1423. In Powe v. United States, 1940, 109 F.2d 147, the Court of Appeals for the Fifth Circuit stated that it had no doubt that Congress had power to protect directly the rights of citizens to assemble peaceably to petition the federal Government for redress. The court also said: “Because the federal government is a republican one in which the' will of the people ought to prevail, and because that will ought to be expressive of an informed public opinion, the freedom of speaking and printing on subjects relating to that government, its elections, its laws, its operations and its officers is vital to it.” 5 Cir., 109 F.2d 147, 151.

We conclude that the rights alleged to have been violated in the instant case are within that narrow area of rights which Congress has constitutional power to protect from individual invasion. We do not think that such a holding necessitates the opening up of the federal courts to a multitude of private suits for trespass, assault and similar invasion of private rights which are within the competence of the states to protect. A representative government cannot function properly unless its officers are informed of the opinions and desires of the people whom they represent. To protect the right to assemble for the ¡purposes alleged in this case is to keep open those vital channels of communication between government and the governed. This protection is within the power ” granted Congress by Article I, § 8: “To máke all Laws which shall be necessary and proper for carrying into Execution * * * all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Constitutionality of the Statute as Applied to the Complaint;

In the above discussion we have held that Congress intended, in enacting § 47(3), to give an action against individuals for infringement of individual civil rights, including the right to assemble and petition the federal Government for redress of grievances, a right alleged in the complaint to have been violated. We have also held that this right is within the narrow area of rights which Congress has constitutional power to protect directly. It is finally necessary to determine whether § 47(3) is so drawn as to be a proper exercise of this constitutional power.

In United States v. Harris, 1882, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290, certain defendants had been indicted for conspiring to deprive certain persons in the custody of a state sheriff of equal protection of the laws by assaulting them, etc. The indictment was under a statute (R.S. § 5519), which described in identical language the conspiracies set forth in the first two clauses of § 47(3) and made such conspiracies a crime without the requirement of acts done in furtherance of the conspiracy, set forth in the last clause of § 47(3).

The statute was struck down because of its breadth. Sec. 5519 provided against the deprivation of “equal protection of the laws, or of equal privileges and immunities under the laws.” This provision was broad enough to encompass both federal and state laws and as to state laws Congress was without power to legislate.

In Baldwin v. Franks, 1887, 120 U.S. 678, 7 S.Ct. 656, 659, 32 L.Ed. 766, the Supreme Court held that the provisions of § 5519 were not severable, saying: “A single provision, which makes up the whole section, embraces * * * those ■ who. conspire to deprive one of his rights under the laws of a state, and those who conspire to deprive him of his rights under the constitution, laws, or treaties of the United! States.”

We find within § 47(3) a provision which does not embrace rights under state law. While the language used in § 47(3) is. identical with that used in § 5519 from the beginning of § 47(3) to the word “laws” in the eighth line thereof, said § 47(3) then goes on to require that there be an act in furtherance of’ the conspiracy “whereby another is injured in his person or property, or deprived of having and fexercising any right or privilege of a citizen of the United States.” Of course, the provision relative to injury to person or property is subject to the same constitutional infirmity as the Supreme Court found in § 5519. However, that portion of § 47(3) which makes actionable a deprivation of a right or privilege of a citizen of the United States relates solely to a federal right and is clearly severable.

We conclude that Congress has the constitutional power to protect against invasion of federal rights by private individuals. Congress has exercised that power by enacting § 47(3). The allegations of the complaint are sufficient to invoke the provisions of said section.

There exists an understandable reluctance to open the doors of federal courts for the redress of grievances inflicted by one set of individuals upon another lest those courts be flooded with actions that should properly be left to the states. We do not think the narrow compass of federally protected rights set up in § 47(3) will permit of such a result. If it does, and the load becomes too burdensome, it then becomes a matter with which the Congress must deal.

Judgment of dismissal reversed.

1 . 8 U.S.C.A. § 47(3):

‘.‘Depriving persons of rights or privileges.

“(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, 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 ander 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 as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, 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.”

2 . A further indication that Congress believed it had broad power to protect civil rights from individual action is found in other statutes passed during this period. U. S. v. Reese, 1875, 92 U.S. 214, 23 L.Ed. 563, and James v. Bowman, 1903, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed. 979, held unconstitutional two sections of the Act of May 31, 1870, which purported to make it a crime for individuals to interfere with the voting rights of others without limitation to the right to vote for federal offices. Hodges v. United States, 1906, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65, and The Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, also held unconstitutional statutes which protected personal rights to contract, sue, enter places of public accommodation, etc., from individual interference.