Williams v. Hot Shoppes, Inc.
Decision Date | 22 May 1961 |
Docket Number | No. 15610.,15610. |
Citation | 110 US App. DC 358,293 F.2d 835 |
Parties | Charles E. WILLIAMS, Appellant, v. HOT SHOPPES, INC., Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Messrs. Phineas Indritz, and Charles E. Williams, Washington, D. C., for appellant.
Mr. Charles J. Steele, Washington, D. C., with whom Messrs. Roger J. Whiteford and John J. Carmody, Washington, D. C., were on the brief, for appellee.
Before WILBUR K. MILLER, Chief Judge, and EDGERTON, PRETTYMAN, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.
Appellant Charles Williams, a resident of the District of Columbia, brought suit in the District Court against appellee Hot Shoppes, Inc., a Delaware corporation which operates restaurants in several states and the District of Columbia, to recover a statutory penalty of $500 under Sections 1 and 2 of the Civil Rights Act of 1875, and damages of $5,000 under 42 U.S.C.A. §§ 1981, 1983, for alleged deprivations of his civil rights. In essence, appellant's claim is that on November 5, 1959, appellee's manager denied him service at its restaurant in Alexandria, Virginia, solely because appellant is a Negro, and because Virginia law requires restaurants either to segregate their facilities or to exclude Negro patrons.1 Appellant contended that this refusal to serve him was State action of the sort prohibited by the Fourteenth Amendment and the civil rights laws. The District Court held to the contrary and dismissed the complaint. This appeal followed.
First of all, we think that the District Court properly dismissed the claim for the statutory penalty under Sections 1 and 2 of the Civil Rights Act of 1875.2 These statutory provisions were held unconstitutional as applied to private intrastate racial discrimination in the Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. Later, in Butts v. Merchants' & Miners' Transportation Co., 1913, 230 U.S. 126, 33 S.Ct. 964, 57 L.Ed. 1422, the Supreme Court held that these provisions could not be applied to penalize racial discrimination aboard interstate carriers even though the statute could, in that application, be upheld under the commerce power. The Court reasoned that since Sections 1 and 2 were penal in nature and were intended by Congress to have uniform national application, and since the provisions had been declared unconstitutional as applied to private intrastate racial discrimination, the statute should be held wholly invalid rather than be applied in only a fraction of the cases it was intended to cover. In United States v. Raines, 1960, 362 U.S. 17, 23, 80 S.Ct. 519, 4 L.Ed.2d 524 the Supreme Court expressly reaffirmed the Butts decision. Therefore, even if appellee's conduct is assumed arguendo to be State action, Sections 1 and 2 of the Civil Rights Act of 1875 have no present validity, and appellant's claim under them was properly dismissed.3
We turn now to appellant's claim for damages under 42 U.S.C.A. §§ 1981, 1983.4 Section 1983 creates a civil action against "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws * * *." In order to constitute conduct under "color of law",5 within the reach of the Federal Constitution and statutes, it is essential that appellee's refusal to serve appellant be State action. See Burton v. Wilmington Parking Authority, 81 S.Ct. 856; Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. It is also clear that there must be a deprivation of a right, privilege or immunity "secured by the Constitution and laws" of the United States. For example, in the Monroe case, just cited, the plaintiff's immunity from unreasonable search and seizure, guaranteed by the Fourth Amendment to the Constitution, had been grossly violated by the defendants.
In the instant case, the pertinent portions of the complaint are as follows:
The complaint is thus grounded upon the theory that the Virginia public assembly statute, Section 18-327 of the Virginia Code,6 applies to restaurants, and compels segregation therein. This was the theory on which Williams pleaded and argued his case in the District Court, and on which he at first based his appeal to this court. Later, in this court, he advanced a further theory — that appellee's refusal to serve him was caused solely by the understanding generated by the conduct of State law enforcement officials. Appellant now tells us that the police and prosecutors of Virginia have threatened action against restaurants which do not segregate, and that this was state action, whether or not based on any statutory foundation. The complaint does not say this. But appellant argues that it can be read to say it, relying on the italicized portion of paragraph 8, quoted above. It is there alleged that defendant and other restaurant owners have followed The only "custom or usage" alleged is that which arises under color of the statute. Legislative action alone is complained of: nothing is said about executive or police action. The reference to "interplay of governmental and private action" seems clearly to mean that as a result of the governmental action, i. e., the statute, private persons and firms such as defendant have been compelled to discriminate against plaintiff.7
The background of this litigation, a matter of public record, may also be noted. Appellant Williams had brought an earlier suit against another restaurant in Virginia, for refusal of service, basing his complaint on the theory of an interference with interstate commerce. When the case came before the Fourth Circuit, appellant conceded that Section 18-327 of the Virginia Code did not apply to restaurants. See Williams v. Howard Johnson's Restaurant, 4 Cir., 1959, 268 F.2d 845, at page 847. The Fourth Circuit unanimously affirmed the dismissal of the complaint, saying that "Unless these actions of refusing service to Negroes are...
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...in the Federal Courts under the Civil Rights Laws, Title 42 U.S.C.A. §§ 1983 and 1985, see dissent in Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 293 F.2d 835 (1961).21 This book has an excellent set of Notes and Bibliography, pages 303-345, pointing to the existence of other works......
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