293 F.2d 835 (D.C. Cir. 1961), 15610, Williams v. Hot Shoppes, Inc.

Docket Nº:15610.
Citation:293 F.2d 835
Party Name:Charles E. WILLIAMS, Appellant, v. HOT SHOPPES, INC., Appellee.
Case Date:April 20, 1961
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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293 F.2d 835 (D.C. Cir. 1961)

Charles E. WILLIAMS, Appellant,

v.

HOT SHOPPES, INC., Appellee.

No. 15610.

United States Court of Appeals, District of Columbia Circuit.

April 20, 1961

As Amended May 22, 1961.

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

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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.

WASHINGTON, Circuit Judge, with whom WILBUR K. MILLER, Chief Judge, and PRETTYMAN, DANAHER, BASTIAN and BURGER, Circuit Judges, concur.

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.

I.

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,

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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

II.

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:

'4. On November 5, 1959, plaintiff entered defendant's restaurant at 900 North Washington Street, Alexandria, Virginia, in a peaceful and orderly manner, for the purpose of obtaining food and beverage, while it was then open for business and occupied by others of the public who were then enjoying the accommodations of the business conducted on the premises. But defendant's manager, one Fred McClure, Acting within the scope of his authority, refused to serve plaintiff and excluded him from the restaurant, solely by reason of plaintiff's race or color, under the color of state law, custom or usage.

'5. Defendant's manager stated that Virginia law required him to refuse to serve plaintiff and to exclude plaintiff from the dining room; that neither he nor defendant had any personal or other reason for excluding plaintiff from the restaurant except for the understanding that

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Virginia law, as well as the custom and usage of the community, compelled the exclusion of colored persons from the restaurant.

'6. Sec. 18-327, Code of Viginia, requires operators of 'any place of public entertainment or public assemblage which is attended by both white and colored persons, ' to segregate them, under penalty of fine of not less than $100 or more than $500 for each violation of the statute. Sec. 18-328, Code of Virginia, requires patrons to comply with such segregated seating, under penalty of fine of not less than $10 or more than $25 for each violation of the statute; authorizes the operator or manager of the place, 'or any public (sic) (police) officer or other conservator of the peace, ' to eject any person who fails to comply with such segregation requirement; and provides that any such ejected person shall not be entitled to a refund of any admission paid by him. These laws, in effect, require operators of places of public accommodation, including the aforesaid restaurant, which are open to the general public, to exclude all Negroes unless special facilities are provided to segregate them from the rest of the public.

'7. The cited Virginia laws impose an economic burden upon defendant by requiring it to erect partitions or separate facilities for white and colored persons in restaurants operated in Virginia, and thus tend to compel defendant, in order to avoid that burden, to exclude all colored persons entirely. It is a violation of the Fourteenth Amendment to the federal Constitution for the State of Virginia to require the exclusion or segregation of persons in places of public accommodation, solely because of their race or color, irrespective of whether such state compulsion is exercised or accomplished directly or indirectly.

'8. The defendant, as well as other public restaurant keepers in Virginia are following, and have for many years followed, a custom or usage of systematically excluding Negroes from their facilities under the color of sec. 18-327, Code of Virginia. This custom or usage of Virginia has been produced by the interplay of governmental and private action over a long period of time. By being excluded from public dining facilities by reason of said custom or usage, Negroes, including the plaintiff, are deprived of 'the full and equal benefit of all laws, ' respecting access to public restaurants, 'as is enjoyed by white citizens, ' under the color of state law, custom or usage, in violation of 42 U.S.C., sec. 1981, and sec. 1, Act of 1875.' (Emphasis supplied.)

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 'a custom or usage of systematically excluding Negroes from

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their facilities under color of sec. 18-327, Code of Virginia. This custom or usage of Virginia has been produced by the interplay of governmental and private action over a long period of time.' 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...

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