McIntosh v. Arkansas Republican Party-Frank White Election Committee

• Decision Date: 25 June 1985
• Docket Number: PARTY-FRANK,No. 84-1499,84-1499
• Citation: 766 F.2d 337
• Parties: Robert "Say" McINTOSH, Appellant, v. ARKANSAS REPUBLICANWHITE ELECTION COMMITTEE; Curtis Finch, Jr., Individually and as Campaign Chairman of the Frank White Re-election Committee; Arkansas State Police; Tommy Goodwin, Individually and as Director of the Arkansas State Police; North Little Rock City Police Dept.; Bill Younts, Individually and as Chief of North Little Rock Police Dept.; John Doe and Richard Roe, etc., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 337

766 F.2d 337

Robert "Say" McINTOSH, Appellant, v. ARKANSAS REPUBLICAN PARTY-FRANK WHITE ELECTION COMMITTEE Curtis Finch, Jr., Individually and as Campaign Chairman of the Frank White Re-election Committee; Arkansas State Police; Tommy Goodwin, Individually and as Director of the Arkansas State Police; North Little Rock City Police Dept. Bill Younts, Individually and as Chief of North Little Rock Police Dept.; John Doe and Richard Roe, etc., Appellees.

No. 84-1499.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 14, 1985.

Decided June 25, 1985.

Theodore Shaw, New York City, for appellant.

Mary B. Stallcup, Little Rock, Ark., for Arkansas State Police.

James B. McHaney, Little Rock, Ark., for Curtis Finch, Jr.

Before LAY, Chief Judge, and JOHN R. GIBSON and FAGG, Circuit Judges.

FAGG, Circuit Judge.

Robert McIntosh appeals the dismissal of his civil lawsuit. McIntosh brought this lawsuit under the federal civil rights laws, 42 U.S.C. Secs. 1981, 1983, 1985(3), and 1986. The lawsuit also involves pendent state-law claims of false arrest and false imprisonment. We affirm in part, reverse in part, and remand with instructions.

McIntosh, a black citizen of Little Rock, Arkansas, is a local political activist. On February 25, 1982, McIntosh purchased a ticket to the Frank White Appreciation Luncheon which was scheduled to take place the next day. Frank White was at that time the Governor of Arkansas and this luncheon was intended to raise funds for his re-election bid. Two private organizations, the Frank White Election Committee and the Arkansas Republican Party, sponsored the luncheon. Vice President George Bush was scheduled to be the luncheon's guest speaker.

After purchasing his ticket, McIntosh sent a letter to Governor White's office in which he unequivocally stated that he would speak at the luncheon. McIntosh's letter specifically requested that Governor White confirm his demand and further requested that he be told whether he would be scheduled to make his remarks before or after the Vice President's speech. When Curtis Finch, Jr., a private businessman and the individual in charge of the event, learned of this letter, he was understandably concerned, since McIntosh had not been invited to speak. His concern, however, stemmed not only from the fact that McIntosh intended to make an unsolicited speech but also from the fact that McIntosh was one of Governor White's most active and vocal opponents and had previously sent a number of harassing articles to Governor White. Further, Finch had no reason to question McIntosh's sincerity of purpose because McIntosh had, in the past, disrupted other events with unsolicited and often unwelcome speeches. Given these factors, Finch decided that McIntosh could not be allowed to disrupt and possibly ruin Governor White's luncheon. As a result, Finch determined that rather than allow McIntosh to attend, he would refund McIntosh the full purchase price of his ticket.

The luncheon was scheduled to be held in a banquet hall located in the Little Rock Convention Center. The convention center is owned and operated by the City of Little Rock, and the banquet hall in question is regularly and nondiscriminately made available to private groups seeking to use the hall for their private gatherings. On the day of the luncheon, McIntosh was on hand at the convention center. Prior to entering the banquet hall, McIntosh was approached by Finch. Finch informed McIntosh that he would not be allowed to attend and offered McIntosh a full refund. McIntosh refused and insisted that he had the right to attend. Finch repeatedly told McIntosh that he could not enter the banquet hall and McIntosh repeatedly refused any refund. Further, McIntosh did nothing to disclaim his intent to intrude upon the program and make an unsolicited speech.

As the exchange between Finch and McIntosh became more heated, two Arkansas state troopers who were assigned to provide security for the luncheon, and who had been warned that McIntosh might attempt to disrupt the event, identified themselves, informed McIntosh that he would not be allowed to attend the luncheon, and requested that he leave. The officers further told McIntosh that if he insisted on entering the luncheon he would be arrested. In response to this statement, McIntosh replied, "Well, take me to jail." The officers, taking McIntosh at his word, arrested McIntosh and took him to the North Little Rock jail where he was charged with disorderly conduct. After processing, which took approximately one hour and forty-five minutes, McIntosh was released on his own recognizance.

Several days later, McIntosh filed this lawsuit seeking compensatory and punitive damages totaling $2,000,000. McIntosh asserts a number of claims, but in general argues that defendants' actions were racially motivated and were intended to deprive him of his first amendment right of free speech. At the conclusion of the trial, the district court found that the defendants' actions were not racially motivated and that McIntosh had no constitutional right to speak at the private luncheon. The district court also found that the police had acted upon probable cause in arresting McIntosh. Consequently, the district court dismissed McIntosh's lawsuit.

We address only briefly McIntosh's appeal of the dismissal of his section 1981, section 1985(3), and section 1986 claims. For a party to succeed on either a section 1981 claim or a section 1985(3) claim, purposeful discrimination must be established. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 388-89, 102 S.Ct. 3141, 3148-49, 73 L.Ed.2d 835 (1982) (involving section 1981), and Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (involving section 1985(3) ). At trial, McIntosh presented no direct or circumstantial evidence to support his claim that defendants' actions were motivated by race. Instead, he offered only his own conclusory statements that defendants were out to get him because he was black. Contrary to McIntosh's assertions, the district court found that the defendants' actions were not racially motivated. McIntosh v. White, 582 F.Supp. 1244, 1250 (E.D.Ark.1984). In fact, the evidence presented at trial demonstrated that the luncheon was attended by a racially mixed audience. Id. at 1247. Because McIntosh failed to make a showing of racial discrimination, his section 1981 and section 1985(3) claims were properly dismissed. Further, because recovery under section 1986 is dependent on the existence of a claim under section 1985, McIntosh's section 1986 claim must also fail and was properly dismissed. Mollnow v. Carlton, 716 F.2d 627, 632 (9th Cir.1983).

We turn next to McIntosh's section 1983 claims. In the district court, McIntosh's section 1983 claims centered around three asserted constitutional deprivations. First, McIntosh asserted that defendants' actions denied him of his first amendment right of free speech. Second, McIntosh argued that the defendants' actions constituted false arrest and false imprisonment in violation of his fourth amendment right to be free from unreasonable searches and seizures. Third, McIntosh contended that defendants' actions were racially motivated and as such violated his constitutional right to equal protection under the law.

To succeed on these claims McIntosh must make two separate and independent showings. First, McIntosh must demonstrate that he was "deprived of a right 'secured by the Constitution and the laws' of the United States." Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978) (quoting 42 U.S.C. Sec. 1983). Second, McIntosh must show that the defendants "deprived [him] of this right [while] acting 'under color of any statute' of the State" of Arkansas. Id.

Initially, we reject as meritless McIntosh's claim that defendants' actions were racially motivated. The district court specifically found that a racially mixed audience attended the luncheon. McIntosh, 582 F.Supp. at 1247. Further, McIntosh failed to make any showing whatsoever of racial discrimination. Id. at 1250. Because McIntosh's section 1983 action based on race discrimination is patently without merit, we will not address it further and turn instead to McIntosh's assertion that the defendants' actions violated his first amendment right to free speech.

In the context of this claim, the district court found that the Frank White Appreciation Luncheon was a completely private fundraising event. Id. at 1246. The district court also found that McIntosh's purpose in attending this private event was to make a disruptive and unsolicited speech on some topic of his choice in front of Vice President Bush and Governor White. Id. at 1247, 1249. Although McIntosh makes no challenge to these findings, we have reviewed the record and conclude that the district court's findings are not clearly erroneous.

In order properly to focus our inquiry, we must identify the constitutional issue derived by McIntosh from these facts. McIntosh does not assert that he was denied the right to express his views in the public or common access areas of the convention center or that he was actually exercising his first amendment rights at the time he was arrested. McIntosh further does not claim that the privately sponsored luncheon was itself transformed into some type of a public forum because it was held in the city's convention center. Rather, McIntosh's position throughout this litigation has been that the purchase of a ticket to the private luncheon afforded him the constitutionally protected first amendment right to interrupt the luncheon's agenda and to make an uninvited, unwanted, and unscheduled speech on some topic of his choice. We disagree.

The purchase of the ticket gave rise to no first amendment rights in the context of this case. The luncheon was in all respects private. The event was...