Park v. City of Atlanta

• Decision Date: 28 August 1997
• Docket Number: No. 96-8512,96-8512
• Citation: 120 F.3d 1157
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: 11 Fla. L. Weekly Fed. C 482 Sang S. PARK; Hi Soon Park; Kwang Jun No; Jin Soon No, Plaintiffs-Appellants, v. CITY OF ATLANTA; Maynard Jackson, Individually; Bill Campbell in his capacity as Mayor of the City of Atlanta; Eldrin Bell, Individually; and Beverly Harvard in her capacity as Police Chief of the City of Atlanta, Defendants-Appellees.

Page 1157

120 F.3d 1157

11 Fla. L. Weekly Fed. C 482

Sang S. PARK; Hi Soon Park; Kwang Jun No; Jin Soon NoPlaintiffs-Appellants, v.CITY OF ATLANTA; Maynard Jackson, Individually; Bill Campbell in his capacity as Mayor of the City of AtlantaEldrin Bell, Individually; and Beverly Harvard in her capacity as Police Chief of the City of Atlanta, Defendants-Appellees.

No. 96-8512.

United States Court of Appeals Eleventh Circuit.

Aug. 28, 1997.

Furman Smith , Jr., Smith, White, Sharma & Halpern, Atlanta, GA, for Plaintiffs-Appellants.

Overtis L. Brantley, Karen Eleice Woodward, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before BLACK, Circuit Judge, RONEY, Senior Circuit Judge, and BURNS^*, Senior District Judge.

PER CURIAM:

This case presents the issue of whether a defendant must be a participant in a § 1985(3) conspiracy for liability to attach under 42 U.S.C. § 1986.We hold that such participation is not required and remand for further proceedings.

I.PROCEDURAL HISTORY

Appellants brought suit against the City of Atlanta, the Mayor, and the Chief of Police, claiming violations of four provisions of the civil rights statutes, 42 U.S.C. §§ 1981,1983,1985(3), and1986, as well as the Georgia Constitution, state tort law, and various city ordinances.As the predicate for their federal civil rights claims, Appellants contended that their constitutional rights were violated by Appellees' failure to adequately protect them and their businesses from crowds of demonstrators.The district court granted summary judgment in favor of Appellees on all federal claims and declined to exercise supplemental jurisdiction over Appellants' state law claims.We discuss only Appellants' § 1986and§ 1985(3) claims.¹

II.FACTS²

This case arises from acts occurring during three days of civil unrest that followed the verdict in People v. Powell, No. BA 035498(Cal.Super.Ct.L.A.County, May 30, 1991).In that case, a California jury acquitted several white police officers accused of unlawfully beating Rodney King, an African-American suspect.Appellants are the Korean-American owners of businesses in a predominately African-American community in Atlanta.Sang S. Park and Hi Soon Park owned and operated the Five Star Supermarket.Kwang Jun No and Jin Soon No owned and operated the Star Liquor Store, adjacent to the Five Star Supermarket.Appellants' stores were the only non-African-American owned businesses in the area.

Appellants' businesses became a focus of the disorder during the civil unrest.On April 30, 1992, a large group gathered around the store, shouted racial epithets, and broke the windows of both the Five Star Supermarket and the Star Liquor Store.The next day, demonstrators again swarmed the area near Appellants' stores.Though police officers assured Appellants that they were safe, Appellants closed their stores and congregated in an upstairs apartment above the Five Star Supermarket.

That evening, a crowd began throwing rocks and breaking into the grocery and liquor stores.The crowd entered the building, located Appellants, and chased them onto the roof of the grocery store, approximately 15 feet above the street.The crowd threw bricks, rocks, stones, and items stolen from the stores at Appellants.Throughout this attack, the crowd continued to shout racial epithets.A S.W.A.T. team was eventually able to reach and rescue Appellants.

III.STANDARD OF REVIEW

We review a district court's grant of summary judgment de novo, with all facts and reasonable inferences therefrom viewed in the light most favorable to the nonmoving party.Hale v. Tallapoosa County, 50 F.3d 1579, 1581(11th Cir.1995).Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c).

IV.ANALYSIS

A.Appellants' § 1986 Claims

Section 1986 provides a cause of action against anyone who has "knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having the power to prevent or aid in preventing the commission of the same, neglects or refuses so to do."³42 U.S.C. § 1986.Section 1986 claims are therefore derivative of § 1985 violations.While we would typically discuss the underlying § 1985 claim first, in this casewe find it appropriate to begin our review with the legal issues which grounded the district court's summary disposition of the § 1986 claim.

The text of § 1986 requires the existence of a § 1985 conspiracy.Appellants alleged the existence of two conspiracies: one among Appellees and their agents, and one among members of the crowd.The district court reasoned that because § 1986 is derivative of § 1985, Appellants could not establish a violation of § 1986 without establishing a violation of § 1985.⁴It concluded that Appellants had failed to demonstrate that Appellees were involved in a § 1985(3) conspiracy and dismissed the derivative § 1986 claim.

Though we agree with the district court that § 1986 requires a violation of § 1985, it does not follow that individuals liable under § 1986 must be involved in the § 1985 conspiracy.We start with the proposition that there is no reason "not to accord to the words of the statute their apparent meaning."Griffin v. Breckenridge, 403 U.S. 88 at 97, 91 S.Ct. 1790, 1796, 29 L.Ed.2d 338(1971).While it is true that § 1986 only provides a cause of action in the existence of a § 1985(3) conspiracy, the statute does not require that the Appellees' themselves participated in the conspiracy or shared in the discriminatory animus with members of the conspiracy.Section 1986 requires only that Appellees knew of a § 1985 conspiracy and, having the power to prevent or aid in preventing the implementation of the conspiracy, neglected to do so.In a similar vein, the Third Circuit recently explained:

The text of § 1986 clearly states that neglecting or refusing to prevent a § 1985 conspiracy is actionable.Although discriminatory intent is essential in proving a § 1985(3) conspiracy, "it does not follow that a defendant charged under section 1986 with neglecting to intervene in a section 1985(3) conspiracy must personally share the class-based animus."

Clark v. Clabaugh, 20 F.3d 1290, 1298(3d Cir.1994)(quoting3 Joseph G. Cook & John L. Sobieski, Jr., Civil Rights Actions, p 13.10(1993)).

We concur with the Third Circuit's conclusion that negligence is sufficient to maintain a § 1986 claim.Id.We hold that if Appellees knew of a § 1985(3) conspiracy, were in a position to prevent the implementation of that conspiracy, and neglected or refused to prevent it, they are liable under § 1986.SeeWaller v. Butkovich, 584 F.Supp. 909, 943(M.D.N.C.1984)(recognizing that § 1986 imposes a statutory duty upon police officers, among others, to prevent a § 1985 conspiracy);Bergman v. United States, 579 F.Supp. 911, 934-35(W.D.Mich.1984)(finding that United States violated its statutory duty under § 1986 to prevent a racially-motivated conspiracy to deprive "freedom riders" of the equal protection of the laws, thereby establishing negligence per se );Symkowski v. Miller, 294 F.Supp. 1214, 1217(E.D.Wis.1969)(holding that allegations that police officers witnessed beating and failed to stop it stated a valid cause of action under § 1986).

The district court predicated its grant of summary judgment on its finding that Appellants failed to raise a genuine issue of material fact as to Appellees' involvement in a § 1985(3) conspiracy.It did not address whether the demonstrators were involved in a § 1985(3) conspiracy.Accordingly, it failed to consider whether Appellees' might be liable under § 1986 based on a § 1985(3) conspiracy by members of the crowd; i.e., whether the Appellees knew of the alleged conspiracy and failed to act.

B.Appellants' Underlying § 1985(3) Claims

Appellants have alleged a violation of 42 U.S.C. § 1985(3).To state a successful claim, a plaintiff must prove: (1) a conspiracy; (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; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.Lucero v. Operation Rescue, 954 F.2d 624, 627(11th Cir.1992)(quotingUnited Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 3356, 77 L.Ed.2d 1049(1983)).

Appellants first contend that Appellees conspired to withdraw necessary police protection so as to allow the demonstrators to attack Appellants' stores.As Appellants failed to proffer admissible proof of such a conspiracy, the district court properly dismissed Appellants' allegations of a § 1985(3) conspiracy among Appellees and their agents.

Appellants also maintain that the demonstrators were engaged in a § 1985(3) conspiracy that officers proved unwilling to halt.The district court made no ruling as to whether the demonstrators were involved in a § 1985(3) conspiracy.Thus, the court was unable to determine whether the police officers had knowledge of the alleged § 1985(3) conspiracy of the crowd, but neglected or refused to act to prevent its implementation.

Appellees conceded at oral argument that they need not be members of a § 1985(3) conspiracy to be liable for a § 1986 claim.They argue, however, that the result here is the same because Appellants have failed to prove the underlying § 1985(3) violation.Appellees assert that Appellants have not shown that the intent of the alleged conspiracy was to deprive them of a constitutional right of the type protected by § 1985(3).To prove a private conspiracy in violation of the first clause of §...