Adams v. Miami Police Benevolent Association, Inc., 71-2108.

• Citation: 454 F.2d 1315
• Decision Date: 02 February 1972
• Docket Number: No. 71-2108.,71-2108.
• Parties: George H. ADAMS et al., Plaintiffs-Appellees, v. MIAMI POLICE BENEVOLENT ASSOCIATION, INC., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

454 F.2d 1315 (1972)

George H. ADAMS et al., Plaintiffs-Appellees, v. MIAMI POLICE BENEVOLENT ASSOCIATION, INC., Defendant-Appellant.

No. 71-2108.

United States Court of Appeals, Fifth Circuit.

February 2, 1972.

COPYRIGHT MATERIAL OMITTED

K. Neil Glassford, Miami, Fla., for defendant-appellant.

McCrary, Ferguson & Lee, Wilkie D. Ferguson, Jr., Jon Caminez, Legal Services of Greater Miami, Miami, Fla., for plaintiffs-appellees.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

This appeal arises from the district court's order that all black officers in good standing on the Miami police force be admitted to membership in appellant Miami Police Benevolent Association, Inc. Appellant is a nonprofit corporation made up of white members of the City of Miami Police Department. Among its purposes are "promoting the efficiency of the police department, promoting cooperation and harmony between its members and promoting harmony and cooperation with the general public and public officials."

Named plaintiffs are 51 of the approximately 70 black policemen on the Miami force. They filed this class suit based on 42 U.S.C.A. §§ 1981-88, seeking equitable relief to prevent appellant from continuing its alleged racially discriminatory practice of barring blacks from membership and to eliminate the effects of past discrimination. The district court defined the class as "all classified black policemen who are now regularly employed by the City of Miami Police Department under Civil Service and all black classified policemen who will be regularly employed by the City of Miami Police Department in the future." The court dismissed the portions of the complaint grounded on 42 U.S.C.A. §§ 1984-88 but found violations of §§ 1981-83. Since we believe appellees have made their case under § 1983,¹ we shall not reach §§ 1981 and 1982.

The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulation, custom, or usage of any State or Territory." This second element requires that the plaintiff show that the defendant acted "under color of law."

Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). The district court concluded that appellant Association was an "adjunct" of the City of Miami Police Department acting under color of state law, and that it had denied appellees equal protection of the law in contravention of the fourteenth amendment. The Association argues on appeal that it is a private club, not a quasi-public body, and that it has not deprived appellees of any constitutional right.

I. State Action.

The bases for the district court's fact finding that appellant is an adjunct of the City of Miami Police Department may be summarized as follows:

1. Appellant uses the name "police" in its title and holds itself out to the public as "the police."

2. Appellant solicits contributions from the public, using the name "police." In its last fiscal year appellant raised over $90,000 from the public.

3. Appellant operates a canteen at the City of Miami police headquarters. It employs prison and nonprison labor.²

4. Appellant operates vending machines at police headquarters and uses bulletin boards at the headquarters.

5. Appellant is represented at staff meetings held at the police department at which police policy is made.

6. Appellant is represented at City Commission meetings where it bargains for wages and other terms of employment for Miami policemen.

7. Appellant uses the facilities of the Police Department, including its police academy, to solicit members. It enrolls a substantial number of its members through solicitation at the academy.

8. All of the above activities are conducted openly and with the consent and approval of the City of Miami Police Department.

We believe the district court correctly decided that appellant was so closely entwined with the City of Miami Police Department that it was acting under color of law when it barred appellees from membership. See Adickes v. S. H. Kress & Co., supra; Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). This finding was not clearly erroneous and was supported by the record.

II. Deprivation of a Constitutional Right.

The district court held that appellant has denied appellees equal protection of the law by its custom of barring blacks from membership because of their race. Appellant Association, which was formed in 1936, has never had a black member although black officers have applied. Blacks at the police academy have been told membership is not available to them. Until March 23, 1970 appellant's constitution had a "Caucasians only" clause. When that provision was deleted, the previous system of majority approval of new members was dropped and replaced with one permitting five members to veto an applicant. Since implementation of the new veto system, seven black officers have applied and all have been rejected.

The district court found that the five-vote-veto provision was merely a substitute for the whites-only clause and was meant to achieve the same result. This fact finding was not clearly erroneous. The court also concluded that membership in appellant is automatic for white officers between the ages of 21 and 32 who apply and pay dues. The record, which indicates the exclusion of only one white prior to March 23, 1970, supports this conclusion. We think the district court correctly decided that appellees have been excluded from appellant organization solely because of their race.

The crux of appellant's case is that appellees have failed to show what constitutional rights have been denied them by exclusion from membership in appellant. Appellees are members of the Miami Community Police Benevolent Association, which is comprised solely of black officers. Appellant argues that appellees, acting through this Association, perform the same or similar functions as appellant and reap benefits similar to those available to appellant's members, that is, bargain with the city over wages and working conditions, attend Police Department staff meetings, solicit funds from the public, maintain vending machines and a bulletin board at police headquarters, and administer death, retirement, and attorney funds. Appellant contends, along lines of "separate but equal," that black officers thus suffer no unconstitutional deprivation as a result of exclusion from membership in appellant. We disagree.

The Miami police force is comprised of approximately 70 blacks and 650 whites. More than 400 of the white officers are members of appellant. The record starkly reflects that the black officers simply do not constitute a large enough group to effectively raise money from the public or amongst themselves to provide benefits to black officers equal to or even close to those appellant makes available to white officers. The black officers' association pays a $300 death benefit while appellant pays $1,000. Appellant's death benefit fund alone contains $137,000 while the black officers' association's total assets are only $9,000. In addition to their numbers, appellees are hampered by the competition of appellant. Appellees have been consistently unsuccessful in obtaining funds from the public, a major source of revenue for appellant. The usual response to public solicitation appears to be, "I've already given to the police," the "police" being appellant. Appellant does not inform contributors that it is not asking for funds for the whole police force but only for an all-white association that includes about three-fourths of the whites on the force.

Appellees serve the whole city of Miami, not just the black population. They perform the same duties as white policemen. Nevertheless, the funds available to them and to their families for death benefits, sickness and disability, and legal assistance...