Action v. Gannon

• Decision Date: 03 November 1971
• Docket Number: No. 20182.,20182.
• Citation: 450 F.2d 1227
• Parties: ACTION et al., Percy Green, Defendant-Appellant, v. Rowland E. GANNON et al., Plaintiffs-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

450 F.2d 1227 (1971)

ACTION et al., Percy Green, Defendant-Appellant, v. Rowland E. GANNON et al., Plaintiffs-Appellees.

No. 20182.

United States Court of Appeals, Eighth Circuit.

November 3, 1971.

COPYRIGHT MATERIAL OMITTED

Mortimer A. Rosecan, St. Louis, Mo., for appellant.

R. H. McRoberts, St. Louis, Mo., for appellees.

Before VAN OOSTERHOUT, MEHAFFY, GIBSON, LAY, HEANEY and BRIGHT, Circuit Judges, En Banc.^*

HEANEY, Circuit Judge.

We are asked to decide whether a United States District Court has jurisdiction to enjoin two organizations, the Black Liberation Front and Action, and their members,¹ from continuing to disrupt the religious services of a predominantly white Catholic parish.

The District Court, 303 F.Supp. 1240, found jurisdiction under 42 U.S.C. §§ 1981, 1982, 1983 and 1985(3), and their accompanying jurisdictional statutes, 28 U.S.C. §§ 1343(1), 1343(3) and 1343(4). We hold that the District Court had jurisdiction under § 1985(3). We need not, therefore, determine whether it had jurisdiction under the other sections.²

The St. Louis Cathedral parish is a parish of the Roman Catholic Archdiocese of St. Louis. The plaintiffs are the pastor and members of the parish, and the Archbishop of St. Louis. The defendants are two voluntary unincorporated associations, Black Liberation Front and Action, and their members. The activities complained of were a series of demonstrations staged at the St. Louis Cathedral by Action.³

The first demonstration occurred on Sunday, June 8, 1969. Twenty-nine members of Action entered the cathedral during services, marched down the center aisle, and formed a line in front of the communion rail. Some of the demonstrators wore black Action sweatshirts, black trousers and black berets. Others were naked to the waist. One demonstrator, using an amplifier, read Action's "notice and demands" from a paper while others passed copies of the "notice and demands" to the congregation.⁴ The demonstrators then left. The "notice and demands" warned the parishioners that a series of protest demonstrations would take place over the next six months unless certain demands were met.

On Sunday, June 15, several members of Action gathered across the street from the cathedral. Some of the members entered the cathedral. One, Mrs. Ernestine Lloyd, approached the lectern during the service and requested permission to speak for five minutes. When permission was denied, Mrs. Lloyd began reading the "demands" until ushers seized the paper. At the close of the service, Mrs. Lloyd sat down in the vestibule of the church and refused to move. She was forcibly removed by St. Louis police.

On June 29, eight or nine members of Action entered the cathedral prior to the noon service. They went directly to the communion rail and sat down, blocking the area where the service was to be held. The service was then cancelled.

On Sunday, July 6, about eighteen members of Action came to the cathedral and remained just outside while five of their number went inside. One of the demonstrators, dressed in a long black robe and wearing a triangular hat resembling a bishop's mitre, walked down the center aisle to the front of the church carrying a sign worded: "Carberry the Archbishop of St. Louis makes a mockery of the real church." When he reached the communion rail, he turned and walked back to the rear of the church, chanting "Racists, racists—white Christian racists." An altercation followed, and members of the St. Louis police force removed the demonstrators.

Following a full hearing, at which the above facts were established, the District Court concluded:

"* * * that a permanent injunction should issue because defendants will continue to disrupt, interrupt and disturb the worship services and meetings of the Cathedral parish of the Diocese of St. Louis, and will deprive the plaintiffs and parishioners of said parish of their Constitutional and civil rights to exercise freedom of religion, freedom of speech, freedom of assembly and the same right, as enjoyed by other citizens of the United States, to hold and use the parish property for religious purposes unless restrained by order of this Court and that irreparable injury, loss and damage will result to plaintiffs and parishioners of the Cathedral parish."

This appeal followed. The defendants urge that the District Court had no jurisdiction under § 1985(3) because that section does not provide a civil remedy for wholly private conspiratorial acts.

We consider, first, whether § 1985(3) is to be construed to give the federal courts jurisdiction over this conspiracy. We hold that it is to be so construed. Second, we consider whether a constitutional source of power to reach this conspiracy exists.⁵ We hold that it does. Third, we consider whether injunctive relief is available under § 1985(3), and hold that it is. Finally, we consider the scope of the injunction and hold that it is too broad.

I. THE STATUTORY CONSTRUCTION QUESTION

Section 1985(3) provides:

"If two or more persons in any State * * * conspire or go in disguise * * * on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; * * * in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."

At the time of oral argument, the conclusion that the District Court had jurisdiction under § 1985(3) might have appeared to be foreclosed by Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951). Since that date, however, the Supreme Court has held that § 1985(3) reaches private conspiracies aimed at depriving others of the equal enjoyment of rights secured by the Constitution to all. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). Griffin squarely answered the contention, also raised here, that § 1985(3) was not intended to reach private conspiracies. The Court reasoned:

(1) That the statute, on its face, fully encompasses the conduct of private persons, since its provisions speak simply of "two or more persons in any State or Territory" who conspire or go in disguise on the highway or on the premises of another.

(2) That the approach of the Court since Collins has been to accord Reconstruction civil rights statutes "a sweep as broad as their language."

(3) That examination of companion statutory provisions reinforces the view that § 1985(3) applies to private conspiracies.

(4) That the legislative history of the section indicates a congressional intent to impose liability for purely private conspiracies.

Griffin makes it clear that § 1985(3) is not intended to cover all conspiracies to interfere with the rights of others. We must, therefore, determine whether that section is applicable to the conspiracy in this case.

The Court in Griffin stated that:

"* * * though the supporters of the legislation insisted on coverage of private conspiracies, they were equally emphatic that they did not believe, in the words of Representative Cook, `that Congress has a right to punish an assault and battery when committed by two or more persons within a State.\' Id., at 485. The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose— by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. * * * The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators\' action. * * *" (Emphasis included.)

Id. at 101-102, 91 S.Ct. at 1798.

It seems clear from the facts in this case that the defendants were stimulated to disrupt the church services by racial and economic motives. The defendants purported to act on behalf of the black citizens of St. Louis, Missouri. Some of their demands would have required the church to withdraw its money from investments in companies whose policies Action viewed as detrimental to blacks. Other demands would have required the church to devote substantial portions of its income to programs dedicated to black advancement. Action made these demands to a predominantly white parish. It made these same demands to other white churches throughout St. Louis. The premise underlying the selection of Action's targets is that these churches have substantial amounts of money, the use of which Action hoped to control for the benefit of economically deprived black people.

Our conclusion that § 1985(3) encompasses this conspiracy does not detract from the defendants' own First Amendment rights. The gravamen of the complaint is that the defendants disrupted the plaintiffs' religious services, not that they had merely been obnoxious or unsettling in exercising their own rights.

The defendants have a right to voice their opinion that the plaintiffs have not fulfilled their obligation to the black community. The defendants also have a right to make requests upon the plaintiffs if such requests are not joined with threats to disrupt church services and are not otherwise unlawful. The fact that the requests or opinions may be offensive to the parishioners does not render them outside the protection of the First Amendment. Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1...