410 F.2d 817 (5th Cir. 1969), 25799, Griffin v. Breckenridge

Docket Nº:25799.
Citation:410 F.2d 817
Party Name:Eugene GRIFFIN, a minor by his next friend and father, Roosevelt Griffin, et al., Appellants, v. Lavon BRECKENRIDGE at al., Appellees.
Case Date:April 29, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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410 F.2d 817 (5th Cir. 1969)

Eugene GRIFFIN, a minor by his next friend and father, Roosevelt Griffin, et al., Appellants,


Lavon BRECKENRIDGE at al., Appellees.

No. 25799.

United States Court of Appeals, Fifth Circuit.

April 29, 1969

Martha M. Wood, Jackson, Miss., for appellants.

Helen J. McDade, DeKalb, Miss., Welburn D. Moore, Sr., Philadelphia, Miss., for appellees.

Before GOLDBERG and AINSWORTH, Circuit Judges, and SPEARS, District judge.

GOLDBERG, Circuit Judge:

This civil rights case, ruled by the majority opinion in Collins v. Hardyman, 1 involves a racially motivated assault committed upon a public highway. Adhering as we must to Collins, we affirm the district court's dismissal of appellants' complaint.

Plaintiffs, Negro citizens, brought this suit under the mantle of 42 U.S.C.A. § 1985(3), 2 popularly known as the Ku

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Klux Klan Act. They alleged in their complaint a conspiracy between defendants Lavon Breckenridge and James Breckenridge to deprive them of their equal protection of the laws and their privileges and immunities under the laws. Specifically they charged that on July 2, 1966, defendants, both white adults, acting under the mistaken belief that R. G. Grady was a worker for the civil rights of Negroes, willfully and maliciously conspired, planned and agreed to block the passage of plaintiffs upon the public highway and to assault, beat and injure them with deadly weapons. It was further alleged that pursuant to this conspiracy defendants drove their truck into the path of Grady's automobile and blocked its passage over the public road. Both defendants then forced Grady and the other plaintiffs from their automobile and, holding them at gun point, began to club Grady with a black jack, pipe or other blunt instrument. During this period defendants repeatedly menaced plaintiffs with threats to kill or injure them, and eventually attacked all plaintiffs with clubs, while preventing escape or resistance with their firearms.

Based on these allegations, plaintiffs seek $10,000 compensatory and $5,000 punitive damages. They claim that as a result of defendants' conspiracy and their acts pursuant thereto, plaintiffs have been deprived of their rights, privileges and immunities as citizens of the United States and as citizens of the State of Mississippi, including but not limited to their rights of freedom of speech, movement, association and assembly; their right to petition their government for redress of grievances; their right to be secure in their persons; their right not to be enslaved nor deprived of life, liberty of property other than by due process of law; and finally, their right to travel the public highways without restraint on the same terms as white citizens in Kemper County, Mississippi. The district court dismissed plaintiffs' complaint on the authority of Collins v. Hardyman, supra, for failure to state a cause of action. The district judge reasoned that the complaint alleged no more than an invasion of private rights by private individuals, and that Collins and numerous lower courts had limited § 1985(3) to actions performed under 'color of law.' See Hoffman v. Halden, 9 Cir. 1959, 268 F.2d 280, 291; Wallach v. Cannon, 8 Cir. 1966, 357 F.2d 557; Haldane v. Chagnon, 9 Cir. 1965, 345 F.2d 601; Bryant v. Donnell, W.D.Tenn.1965, 239 F.Supp. 681; Van Daele v. Vinci, N.D.Ill.1968, 294 F.Supp. 71; Huey v. Barloga, N.D.Ill. 1967, 277 F.Supp. 864; Swift v. Fourth National Bank of Columbus, Georgia, M.D.Ga. 1962, 205 F.Supp. 563.

On this appeal, plaintiffs forcefully urge that United States v. Guest, 3 and Jones v. Alfred H. Mayer Co., 4 have lifted the state action limitation from § 1985(3) so that the literal words of that statute 5 (which do not include the words 'under color of law') may now be given their unfettered application.

The state action limitation on the various Civil Rights Acts 6 enacted during the Reconstruction Era are traceable to the Civil Rights Cases, 1883, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, in which the public accommodation sections of the Civil Rights Act of 1875 were questioned. Out of those cases, and of course out of the language of the Fourteenth Amendment itself, 7 has grown a long and complicated

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history in which the state action requirement has undergone considerable expansion 8 and some redefinition, but always with the result that the Fourteenth Amendment and rights flowing from it have been vouchsafed only where there has been interference by state authority, or by those acting under 'color' of state authority. United State v. Price, 1966, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267. As said by one court, 'this distinction between purely private discrimination and discrimination pursuant to 'state action' has persisted for over eighty years. Only discrimination which falls within the latter category warrants Fourteenth Amendment protection and falls within the ambit of the Civil Rights Act.' (Section 1985(3)). Huey v. Barloga, supra, 277 F.Supp. at 869. In the words of the Supreme Court in United States v. Cruikshank, 1876, 92 U.S. 542, 23 L.Ed. 588:

'The Fourteenth Amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guaranties, but no more.' 92 U.S. at 555.

See also United States v. Guest, 383 U.S. 745, 755, 86 S.Ct. 1170, 16 L.Ed.2d 239 and Wilkins v. United States, 5 Cir. 1967, 376 F.2d 552, 560, cert. denied, 389 U.S. 964, 88 S.Ct. 342, 19 L.Ed.2d 379.

Despite the long history and the persistent durability of the state action limitation, appellants contend that under Section 5 of the Fourteenth Amendment, Congress has the power to punish all conspiracies to violate Fourteenth Amendment rights, with or without state action. They rely for this proposition on United States v. Guest, supra.

Guest involved a criminal prosecution under 18 U.S.C.A. § 241, 9 and not under 42 U.S.C.A. § 1985(3). 10 A majority of the court, concurring in the opinion of Mr. Justice Stewart, reaffirmed the Court's position that the equal protection

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clause of the Fourteenth Amendment does not reach wrongs done by one or more private individuals against another. 383 U.S. at 755, 86 S.Ct. 1170. The Court nonetheless concluded that dismissal of the indictments against private persons was improper because there had been some state involvement in the conspiracy.

Appellants point out that six of the Justices in Guest subscribed to the view that Section 5 of the Fourteenth Amendment empowers Congress to enact legislation affecting purely private conduct. They emphasize that the legislative history and the language of § 1985(3) indicate that Congress not only intended to assert its full power under the Constitution when it enacted the Civil Rights Acts, 11 see United States v. Price, 1966, 383 U.S. 787, 800, 86 S.Ct. 1152, 16 L.Ed.2d 267, 276, 280-287; United States v. Mosley, 238 U.S. 383, 387-388, 35 S.Ct. 904, 59 L.Ed. 1355, 1357; Virginia Commission on Constitutional Government, The Reconstruction Amendments, Debates (1967), pp. 484-570, but also clearly intended that § 1985(3) reach private conspiracies. Cong. Globe, 42nd Cong., 1st Sess., 505-506(1871); Cong. Globe, 42nd Cong., 1st Sess., 481-484.

While we do not gainsay the persuasiveness of this argument, and certainly do not disparage the prognostications of numerous commentators who read in Guest the eventual demise of the state action requirement, 12 we cannot subscribe to the view that Guest has fulfilled this promised potential. This court does not write on a clean slate. We are compelled to note that most if not all courts which have considered Guest since its appearance in 1966 have hewed closly to the majority opinion by Justice Stewart and to the majority's findings of state action. Jones v. Alfred H. Mayer Co., 8 Cir. 1967, 379 F.2d 33, 43, reversed on other grounds; 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189; United States v. Lester, 6 Cir. 1966, 363 F.2d 68, 72, cert. denied, 385 U.S. 1002, 87 S.Ct. 705, 17 L.Ed.2d 542; O'Hara v. Mattix, W.D.Mich.1966, 255 F.Supp. 540, 542; St. Augustine High School v. Louisiana High School Athletic Association, E.D.La.1967, 270 F.Supp. 767, 771-772, aff'd., 5 Cir. 1968, 396 F.2d 224. This court has been no exception. Wilkins v. United States, 5 Cir. 1967, 376 F.2d 552, 570, cert. denied, 389 U.S. 964, 88 S.Ct. 342, 19 L.Ed.2d 379. At this late date we cannot give Guest a new and novel interpretation. Guided as we are by decisions of other courts, bound as we are by Wilkins, and recognizing that Guest on its merits does not abolish state action, 13 we are constrained to hold that § 1985(3) does not reach private conspiracies to interfere with Fourteenth

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Amendment rights. Hoffman v. Halden, supra; Huey v. Barloga, supra. In so holding we recognize that the citadel of state action is under heavy attack, but we reluctantly concede that as yet it has not fallen.

We are not deterred or persuaded otherwise by the recent Supreme Court case of Jones v. Alfred H. Mayer & Co., supra. The Mayer case is authoritative only as to the constitutionality of a statute, 42 U.S.C.A. § 1982, enacted pursuant to the Thirteenth and not the Fourteenth Amendment. While Mayer is certainly illustrative of...

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