Marshall v. Sawyer

Decision Date10 August 1966
Docket NumberNo. 20145.,20145.
PartiesJohn MARSHALL, Appellant, v. Grant SAWYER, as Governor of the State of Nevada, et al., Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

William B. Beirne, A. L. Wirin, Fred Okrand, Los Angeles, Cal., for appellant.

Harvey Dickerson, Carson City, Nev., John C. Bartlett, Reno, Nev., Madison B. Graves, Las Vegas, Nev., J. A. Donnelley, San Diego, Cal., for appellees.

Before POPE, HAMLEY and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge:

John Marshall brought this civil rights action to recover damages and obtain injunctive relief.1 He claimed that he was the victim of an unconstitutional agreement and policy to discriminate against him and to bar him from the State of Nevada, as an "undesirable" person. Marshall named, as the so-called state defendants, the Governor of Nevada, State Gaming Control Board of Nevada, Nevada Gaming Commission, and the members of the board and commission. As the so-called non-state defendants, he named D. I. Operating Company, a Nevada corporation which operates the Desert Inn Hotel, and five employees of that company.

The district court dismissed the action on the ground that the federal court should abstain and remit Marshall to his state court remedies. We reversed and remanded the cause to the district court for further proceedings. Marshall v. Sawyer, 9 Cir., 301 F.2d 639. After a non-jury trial, judgment was entered for defendants. Marshall appeals.

The board and commission named above regulate and control legalized gambling in Nevada pursuant to the Nevada Gaming Control Act (Act), Chapter 463 of the Nevada Revised Statutes. On February 20, 1960, the commission adopted Regulation 5.010. Paragraph 1 of this regulation provides that all "establishments wherein gaming is conducted" shall be operated in a manner "suitable to protect the public health, safety, morals, good order and general welfare of the inhabitants of the State of Nevada." Paragraph 3 of the regulation provides, in part, that "(c)atering to, assisting, employing or associating with, either socially or in business affairs, persons of notorious or unsavory reputation or who have extensive police records * * *" may be deemed "* * * unsuitable manners of operation. * * *"

To implement this part of Regulation 5.010, the board and commission, in February and early March, 1960, caused to be compiled a brochure commonly referred to as the black book. This document contains the name, photograph, description and other identifying data of eleven men considered by these agencies to be persons within the classes referred to in Regulation 5.010(3). Marshall is one of the persons so identified in the black book.

This brochure, together with a letter dated March 29, 1960, signed by the chairman of the board, was handed to representatives of the thirteen major casino operators in the Las Vegas area, and to representatives of other large casinos in other parts of the state. Board officials requested these representatives to cooperate with the board in the program manifested by Regulation 5.010, the black book, and the letter of March 29, 1960.2

Marshall had lived in Las Vegas for about four years during the 1950's. He engaged in business there and bought Nevada land, some of which he still owns. He has had occasion to return to Las Vegas on business several times; some of these trips were concerned with litigation over his property. In October, 1960, Marshall came to Las Vegas on business and registered at the Tropicana Hotel. He was immediately placed under surveillance by agents of the board. While he was there, representatives of that hotel told him he was in the black book and asked him to leave, stating that if he did not the hotel would lose its gambling license. Marshall left. That week whenever Marshall went to a Las Vegas establishment that operated a casino, he was asked to leave because of pressure from the state defendants.3

At approximately 10:00 p.m. on the night of October 28, 1960, Marshall entered the premises of the Desert Inn Hotel. He occupied a seat in a booth in the bar some ten to twelve feet from the gaming area. From this seat he could observe gaming activity by looking over the back of the booth in which he was seated. Shortly thereafter, Don Borax and J. G. Murray, security officers of Desert Inn Hotel, requested Marshall to leave. He refused to do so and ordered another drink. A waitress from whom the drink was ordered refused to serve him. At this time Borax, Murray and the waitress were acting in accordance with instructions given to them by officers and agents of D. I. Operating Company.

Upon the refusal of Marshall to leave, Roen and Ruby Colod, managing officers of the company, again requested him to leave. Marshall once more refused to leave but moved directly to the bar, where he ordered another drink. The bartender moved away from Marshall and did not serve him. Marshall then asked for and received the names of the persons who had asked him to leave and who had refused him service, stating that it was for the purpose of this lawsuit.

Marshall was assured at the time that no physical force would be used to remove him from the premises, and that he would not be physically ejected. He thereupon left the Desert Inn Hotel. No physical force nor violence was visited upon him on the occasion just described. The non-state defendants asked Marshall to leave the premises of the Desert Inn Hotel solely because they had been requested by the board, its agents, representatives and employees, not to cater to Marshall.

Marshall was not excluded from any establishment serving food or drinks, or from any place offering rooms, or from any place of amusement in the State of Nevada except ones in which there were major casinos licensed by the commission. None of the actions of the defendants, as described above, was based upon considerations of color, race, creed, religion or national origin.

The district court found that Marshall's name was included in the black book because he had an extensive police record. This record, the court found, spanned the period from April, 1929, through August, 1952, and involved six convictions, including one for a felony. The court found that these convictions were obtained under various names by which Marshall had been known, including the names Joe Russo, Frank Roberto, Marshall Cafano, Joseph Rinaldi and George Marshall.

The court further found that Marshall had been questioned at least a dozen times in connection with the investigation of crimes, including murder. Additionally, the court found that Marshall had a reputation in Chicago, Illinois, of using "muscle techniques such as threats, extortions, bombings and murder." On or about January 26, 1953, the court found, Marshall was reported by the Chicago Crime Commission to have been arrested eighteen times between the years 1929 and 1951, and as having a reputation of being a bank robber, expeddler of alcohol and a current bookmaker.

The court found that at the time the black book was compiled the board was in possession of the information concerning Marshall, referred to above, and in possession of a report on organized crime in the State of California, a portion of which is quoted in the margin.4 Marshall admitted that between the years 1937 and 1951 he was engaged in booking illegal bets on horse races in Chicago. At the trial he offered no evidence bearing upon his reputation, and admitted his police record, which record is also set out in his own complaint instituting this action.

The district court found that the specific purpose of the state defendants in compiling the black book was to exclude the persons therein named, or any other person of similar character and qualifications, from the entire premises licensed for gaming. This would include not only the gaming area, but also the hotel, bars, restaurants, amusement areas, golf course, swimming pool and all other parts of the operation.

The district court further found that the state defendants acted reasonably in classifying Marshall as a person who should be excluded from gaming establishments in the State of Nevada. The court also found that the action of the state defendants in causing Marshall to be excluded from the entire premises where gaming was permitted and licensed, and not merely from the gaming area of such premises, was necessary in order to achieve effective enforcement of the Act and of the regulations of the commission and board. Additionally, the court found, Marshall suffered no pecuniary damage whatsoever by reason of his inability to remain in any hotel, bar or restaurant in Nevada where there was licensed gaming.

On the basis of these and other findings, the district court concluded that none of the defendants violated any of Marshall's constitutional rights, and that he was entitled to no relief in this action. Judgment for defendants was thereupon entered and this appeal followed.

Marshall argues that the finding of fact that defendants acted reasonably in excluding him from the entire premises of establishments where gambling casinos were in operation, and that such was necessary in order to achieve effective enforcement of the Act and Regulation 5.010, is clearly erroneous. He asserts that defendants made no showing of what the evil is that would result from his law-abiding presence in the non-gaming portion of the premises.

Regulation 5.010 in effect warns each gaming licensee not to cater, in any part of the licensee's establishment, to "persons of notorious or unsavory reputation or who have extensive police records." This regulation therefore represents an administrative determination, made in the course of rule-making, that effective enforcement of the Act requires that such persons be excluded not only from the gaming area, but also any other part of the establishment.

Marshall has not attacked the validity of this...

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