Hardyman v. Collins

Decision Date09 October 1950
Docket NumberNo. 12120.,12120.
PartiesHARDYMAN et al. v. COLLINS et al.
CourtU.S. Court of Appeals — Ninth Circuit

A. L. Wirin, Fred Okrand and Robert R. Rissman, Los Angeles, Cal. (Nanette Dembitz, Arthur Garfield Hays, William Egan Colby and Peter H. Kaskell, New York City, counsel, American Civil Liberties Union, of counsel), for appellants.

George Penney, Los Angeles, Cal., Aubrey N. Irwin, Glendale, Cal., Robert M. Newell and Theodore A. Chester, Los Angeles, Cal., for appellees.

Arthur J. Goldberg, Gen. Counsel, Thomas E. Harris, Asst. Gen. Counsel, Washington, D.C. (Jay A. Darwin, San Francisco, Cal., of counsel), for Cong. of Ind. Org., as amicus curiae.

Loren Miller, Los Angeles, Cal., Thurgood Marshall and Jack Greenberg, New York City, for Nat'l Ass'n for Adv. of Colored People, as amicus curiae.

Will Maslow, New York City (Shad Polier, Joseph B. Robison and Howard M. Squadron, New York City, of counsel) for American Jewish Cong., as amicus curiae.

Before HEALY, McALLISTER,* and ORR, Circuit Judges.

Writ of Certiorari Granted October 9, 1950. See 71 S.Ct. 63.

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 Crescenta-Canada 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 appellees went 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 proper 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...

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