Fisher v. Shamburg

• Decision Date: 22 July 1980
• Docket Number: No. 78-1711,78-1711
• Citation: 624 F.2d 156
• Parties: Chester A. FISHER, Plaintiff-Appellant, v. Lenus SHAMBURG, Bill Howell, and Charles W. Howell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 156

624 F.2d 156

Chester A. FISHER, Plaintiff-Appellant, v. Lenus SHAMBURG, Bill Howell, and Charles W. Howell,

Defendants-Appellees.

No. 78-1711.

United States Court of Appeals, Tenth Circuit.

Argued Jan. 25, 1980.

Decided June 24, 1980.

Rehearing Denied July 22, 1980.

Charles S. Scott of Scott, Scott, Scott & Scott, Topeka, Kan., for plaintiff-appellant.

Justice B. King of Fisher, Patterson, Sayler & Smith, Topeka, Kan., for defendants-appellees.

Before SETH, Chief Judge, and McKAY and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

The incident giving rise to this litigation took place in the parking lot of a roadside restaurant in Kansas at about 11:30 p. m., December 16, 1975. As plaintiff-appellant Chester A. Fisher, a black man, was entering the front door of the Crossroads Cafe, defendants Lenus Shamburg, Charles Howell and his son Bill, all white men, were leaving. In passing, Shamburg uttered a racial slur directed at Fisher. Although Fisher did not understand exactly what was said, he became uneasy about the safety of his car and left the cafe a few minutes later. The defendants were standing in the parking lot and as Fisher walked towards his car, insulting racial remarks were again made and Shamburg hit Fisher. A fight ensued involving Fisher and all three of the defendants. Fisher received minor injuries and was treated at a local hospital. Shamburg was subsequently tried in state court and convicted of criminal assault.

Fisher filed this action in federal court for compensatory and punitive damages, alleging that defendants conspired to deny him rights protected by the Thirteenth Amendment and 42 U.S.C. § 1985(3). The court below granted defendants' motion for summary judgment, holding that the alleged conspiracy does not provide a cause of action under either the Thirteenth Amendment or 42 U.S.C. § 1985(3). The primary issue presented on appeal is whether the allegation of a racially motivated conspiracy under the circumstances of this case states a deprivation of "the equal protection of the laws, or of equal privileges and immunities under the laws" within the meaning of section 1985(3). We hold that it does. Furthermore, upon examination of the evidence in light of the elements of a 1985(3) action as defined in Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), we hold that Fisher has raised genuine issues of fact precluding the trial court's grant of summary judgment for the defendants.

I. Section 1985(3) Claim

The portion of 42 U.S.C. § 1985(3) which is relevant to our consideration states:

"If two or more persons in any State or Territory conspire . . . 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 (and) . . . 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, . . . 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."

The Supreme Court construed this statutory language in Griffin v. Breckenridge, 403 U.S. at 102-103, 91 S.Ct. at 1798-1799, setting out four requirements which must be met by a plaintiff who seeks to state a cause of action under section 1985(3):

"To come within the legislation a complaint must allege that the defendants did (1) 'conspire or go in disguise on the highway or on the premises of another' (2) '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.' It must then assert that one or more of the conspirators (3) did, or caused to be done, 'any act in furtherance of the object of (the) conspiracy,' whereby another was (4a) 'injured in his person or property' or (4b) 'deprived of having and exercising any right or privilege of a citizen of the United States.' "

The first of the four requirements relevant to our analysis of a 1985(3) cause of action is that of a conspiracy. The judge stated that the "slight chance" the defendants did conspire created a genuine issue of fact. Rec., vol. I, at 218. We therefore assume for purposes of our analysis that there is sufficient evidence of a conspiracy to survive a motion for summary judgment on that ground. ¹

The third and fourth elements are also easily satisfied here. The third element requires that an act be done in furtherance of the conspiracy. It is undisputed that Shamburg assaulted Fisher, an act for which he was convicted of criminal assault in state court. The fourth element is in the form of two alternatives. Fisher must either allege that he was injured in his person or property, or that he was deprived of having and exercising any right or privilege of a citizen of the United States. Griffin, 403 U.S. at 103, 91 S.Ct. at 1798. Fisher's allegation of personal injury satisfies this element.

We focus our attention on the second requirement of a section 1985(3) cause of action because we believe it is here that the trial court erred in its analysis. This element requires a purpose to deprive any person of the equal protection of the laws, or of equal privileges and immunities under the laws. As construed by the Court in Griffin, the element itself has two parts: a "racial, or perhaps other-wise class-based, invidiously discriminatory animus," which "aim(s) at a deprivation of the equal enjoyment of rights secured by the law to all." 403 U.S. at 102, 91 S.Ct. at 1798. It is beyond argument that a racially motivated conspiracy to assault provides the required discriminatory animus. Id. at 103, 91 S.Ct. at 1798. There is ample evidence in the record to create an issue of fact as to whether the assault on Fisher was motivated by his race.

However, to afford Fisher a remedy, the purpose of the conspiracy must have been, directly or indirectly, to deprive him of equal privileges and immunities within the meaning of 1985(3). Fisher's complaint alleges that the conspiracy to assault him deprived him of the right to enjoy the public accommodations offered by the Crossroads Cafe. ² Thus, the specific question we must address is whether a racially motivated conspiracy to deprive a person of the full enjoyment of a place of public accommodation constitutes a deprivation of equal privileges and immunities under section 1985(3).

It was established in Griffin v. Breckenridge, 403 U.S. at 104-105, 91 S.Ct. at 1799-1800, that one of the "privileges and immunities" referred to in section 1985(3) is the right to be free from the badges and incidents of slavery. See Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 383, 99 S.Ct. 2345, 2354, 60 L.Ed.2d 957 (1979) (Stevens, J., concurring). Section 2 of the Thirteenth Amendment authorizes Congress "to determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440, 88 S.Ct. 2186, 2203, 20 L.Ed.2d 1189 (1968); Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). As shown below, we believe Congress has declared its intention that a racially motivated interference with one's right to enjoy places of public accommodation constitutes such a badge of slavery.

The right of a person to avail himself of public inns is founded in the English common law. See Civil Rights Cases, 109 U.S. at 40-41, 3 S.Ct. at 42-43 (Harlan, J., dissenting); Klim v. Jones, 315 F.Supp. 109, 118-120 (N.D.Cal.1970); Hogan, The Innkeeper's Lien at Common Law, 8 Hastings L.J. 33 (1956). This court has recognized that the common law duty of an innkeeper to provide accommodations includes the duty to accept persons without regard to their race. Thomas v. Pick Hotels Corp., 224 F.2d 664 (10th Cir. 1955).

On March 1, 1875, Congress passed a Civil Rights Act, 18 Stat. 335, which codified the common law right and provided civil and criminal penalties for interference with that right because of one's race or previous condition of servitude:

"Sec. 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theaters and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

"Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offense forfeit and pay the sum of $500 to the person aggrieved thereby, to be recovered in an action of debt with full costs; and shall also, for every such offense, be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000, or shall be imprisoned not less than thirty days nor more than one year; . . . ."

In 1883, however, this statute was held unconstitutional. Civil Rights Acts, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). The Court held that denial of admission to an inn or other place of public accommodation because of race did not constitute a badge or incident of slavery. In vigorous dissent, Mr. Justice Harlan declared that the Act in question was constitutional under the Thirteenth Amendment because the discriminatory conduct...