Lesser v. Braniff Airways, Inc., 75-1043

• Decision Date: 18 June 1975
• Docket Number: No. 75-1043,75-1043
• Citation: 518 F.2d 538
• Parties: Norman H. LESSER and Rhoda I. Lesser, Plaintiffs-Appellants, v. BRANIFF AIRWAYS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 538

518 F.2d 538

Norman H. LESSER and Rhoda I. Lesser, Plaintiffs-Appellants, v. BRANIFF AIRWAYS, INC., Defendant-Appellee.

No. 75-1043.

United States Court of Appeals Seventh Circuit.

Argued April 17, 1975.

Decided June 18, 1975.

George P. Lynch, Chicago, Ill., for plaintiffs-appellants.

Howard T. Brinton, Douglas R. Carlson, George W. Davis, Chicago, Ill., for defendant-appellee.

Before FAIRCHILD, Chief Judge, and SWYGERT and TONE, Circuit Judges.

SWYGERT, Circuit Judge.

On March 3, 1972 plaintiffs Norman H. Lesser and Rhoda I. Lesser boarded Braniff Airways flight No. 147 in Chicago bound for San Antonio, Texas. In San Antonio plaintiffs were to transfer to defendant's flight No. 15 to complete their journey to Acapulco, Mexico. When plaintiffs arrived in San Antonio they were refused permission to board flight No. 15 by several of the airline's employees. An argument ensued, during which the employees allegedly removed Norman Lesser from their check-in counter by force. The argument continued and ultimately the airline people called the police. In the course of his official duties, Gerald Davis, a San Antonio police officer, arrived, consulted with the employees, and arrested Lesser. The officer forcibly removed Lesser from the airport and took him to a local jail where he was incarcerated on a charge of being drunk, a misdemeanor. At Lesser's trial on the charge, the officer and several of the airline employees testified against Lesser. Lesser was acquitted.

Subsequently, plaintiffs brought this suit against Braniff to recover damages occasioned by this incident. Counts one and two of the complaint were specifically grounded on section 2 of the Ku Klux Klan Act of 1871, 17 Stat. 13, now codified at 42 U.S.C. § 1985(3), ¹ alleging a conspiracy between defendant, its agents, and officer Davis for the purpose of depriving plaintiffs of various constitutional rights. Defendant moved to dismiss these counts for failure to state a claim since the pleadings contained no allegation of racial or class-based discriminatory animus on the part of the conspirators. In support of its motion, Braniff relied exclusively on Mr. Justice Stewart's analysis of section 1985(3) in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). In reply, plaintiffs sought to distinguish Griffin on the basis that its analysis applies only to purely private conspiracies. Plaintiffs contended that in the case of the more "traditional" situation in which private persons are conspiring with public officials operating under color of official right, as was alleged in the instant case, no class-based discriminatory animus is required by Griffin or by the cases which preceded it. The motion to dismiss was granted by the district court on the ground that since there are "no allegations in either count of any racial or otherwise class-based invidiously discriminatory animus behind the alleged actions of defendant and state officials * * * 42 U.S.C. § 1985 does not apply . . . and the Court, thus, lacks jurisdiction under 28 U.S.C. § 1343 without further pleadings for the defendant was not then acting under color of any state law." ² Plaintiffs did not choose to amend their pleadings, but moved instead for reconsideration of the court's order dismissing counts one and two. The motion was denied. Plaintiffs ultimately dismissed their other claims and now appeal from the dismissal of counts one and two for failure to state a claim.

We begin with the relevant statutory language of section 1985(3):

If two or more persons in any State or Territory conspire or go in disguise on the highway or 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 . . . (and) 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.

Plaintiffs agree that when purely private conspiracies are involved, the words "equal protection" and "equal privileges and immunities" require that racial or other class-based invidiously discriminatory purpose must underlie the actions of the conspirators in order for section 1985(3) to apply. This was the situation in Griffin v. Breckenridge. Plaintiffs seek to distinguish that case on the basis that in conspiracies directly involving public officials there is no need for any additional element of state action; they urge that the discriminatory animus requirement therefore becomes superfluous in such cases. Under this theory, the term "equal" is read out of the statute completely save for those cases where no other basis for a finding of state action exists. ³ In these latter cases, the argument runs, the element of racial or other invidious discrimination is required in order to elevate the deprivation of rights to constitutional dimension either under the Fourteenth ⁴ or Thirteenth Amendments. In this analysis the term "equal" is not construed as a necessary element of any section 1985(3) cause of action, but as an alternative jurisdictional base. We reject this limitation of Griffin as being inconsistent with the broad language and historical analysis found in the Supreme Court's opinion in that case and as imposing on the plain language and organization of section 1985(3) a wholly unnatural construction.

In Griffin, as we have pointed out, a private conspiracy was alleged. The purpose of the conspiracy was to deny to certain black persons, one of whom defendants believed to be a civil rights worker, equal enjoyment of various rights including the right to travel interstate. The district court had dismissed the complaint for failure to state a claim, relying on Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), for the proposition that section 1985(3) only reaches conspiracies under color of state law. The court of appeals reluctantly affirmed, expressing doubts about the continued vitality of Collins, at least in relation to private conspiracies aimed at interfering with "rights of national citizenship." 410 F.2d 817, 823 (5th Cir. 1969).

In reversing, the Supreme Court held that section 1985(3) is not limited in its application to conspiracies involving state action. Concerning the apprehensions expressed by the Collins Court as to possible constitutional problems involved in applying this section to private conspiracies, ⁵ the Court in Griffin noted that it is clear, in the light of the evolution of decisional law in the years that have passed since that case was decided, that many of the constitutional problems there perceived simply do not exist. Little reason remains, therefore, not to accord to the words of the statute their apparent meaning. 403 U.S. at 96-97, 91 S.Ct. at 1795.

Proceeding to analyze the words of the statute, the Court noted the absence of any specific limitation therein which would call for a state action requirement:

Indeed, the failure to mention any such requisite can be viewed as an important indication of congressional intent to speak in § 1985(3) of all deprivations of "equal protection of the laws" and "equal privileges and immunities under the laws," whatever their source. 403 U.S. at 97, 91 S.Ct. at 1796.

The Court further pointed out that the language of section 1985(3) was the product of full congressional debate and compromise, so that the failure expressly to require state involvement could hardly be viewed as a mere oversight. Pertinent to the question in this case is the Court's discussion of the limiting amendments made to the original language of the statute:

As originally introduced in the 42d Congress, the section was solely a criminal provision outlawing certain conspiratorial acts done with intent "to do any act in violation of the rights, privileges, or immunities of another person. . . ." Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871). . . . The enormous sweep of the original language led to pressures for amendment, in the course of which the present civil remedy was added. The explanations of the added language centered entirely on the animus or motivation that would be required, and there was no suggestion whatever that liability would not be imposed for purely private conspiracies. Representative Willard, draftsman of the limiting amendment, said that his version "provid(ed) that the essence of the crime should consist in the intent to deprive a person of the equal protection of the laws and of equal privileges and immunities under the laws; in other words, that the Constitution secured, and was only intended to secure, equality of rights and immunities, and that we could only punish by United States laws a denial of that equality." Id., at App. 188. Representative Shellabarger's explanation of the amendment was very similar: "The object of the amendment is . . . to confine the authority of this law to the prevention of deprivations which shall attack the equality of rights of American citizens; that any violation of the right, the animus and effect of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizens' rights, shall be within the scope of the remedies of this section." Id., at 478.

403 U.S. at 99-100, 91 S.Ct. at 1797.

Drawing on this analysis of the legislative history of section 1985(3) the Court in Griffin summarized as follows:

It is thus evident that all indicators text, companion provisions, and legislative history point unwaveringly to § 1985(3)'s coverage of private conspiracies. That the statute was...