Eugene Griffin, a Minor by His Next Friend and Father, Roosevelt Griffin, et al., Appellants, v. Lavon Breckenridge et al., Appellees, 410 F.2d 817 (5th Cir. 1969)

This civil rights case, ruled by the majority opinion in Collins v. Hardyman,¹  involves a racially motivated assault committed upon a public highway. Adhering as we must to Collins, we affirm the district court's dismissal of appellants' complaint.

Plaintiffs, Negro citizens, brought this suit under the mantle of 42 U.S.C.A. § 1985(3),²  popularly known as the Ku Klux Klan Act. They alleged in their complaint a conspiracy between defendants Lavon Breckenridge and James Breckenridge to deprive them of their equal protection of the laws and their privileges and immunities under the laws. Specifically they charged that on July 2, 1966, defendants, both white adults, acting under the mistaken belief that R. G. Grady was a worker for the civil rights of Negroes, willfully and maliciously conspired, planned and agreed to block the passage of plaintiffs upon the public highway and to assault, beat and injure them with deadly weapons. It was further alleged that pursuant to this conspiracy defendants drove their truck into the path of Grady's automobile and blocked its passage over the public road. Both defendants then forced Grady and the other plaintiffs from their automobile and, holding them at gun point, began to club Grady with a black jack, pipe or other blunt instrument. During this period defendants repeatedly menaced plaintiffs with threats to kill or injure them, and eventually attacked all plaintiffs with clubs, while preventing escape or resistance with their firearms.

Based on these allegations, plaintiffs seek $10,000 compensatory and $5,000 punitive damages. They claim that as a result of defendants' conspiracy and their acts pursuant thereto, plaintiffs have been deprived of their rights, privileges and immunities as citizens of the United States and as citizens of the State of Mississippi, including but not limited to their rights of freedom of speech, movement, association and assembly; their right to petition their government for redress of grievances; their right to be secure in their persons; their right not to be enslaved nor deprived of life, liberty or property other than by due process of law; and finally, their right to travel the public highways without restraint on the same terms as white citizens in Kemper County, Mississippi. The district court dismissed plaintiffs' complaint on the authority of Collins v. Hardyman, supra, for failure to state a cause of action. The district judge reasoned that the complaint alleged no more than an invasion of private rights by private individuals, and that Collins and numerous lower courts had limited § 1985(3) to actions performed under "color of law." See Hoffman v. Halden, 9 Cir. 1959, 268 F.2d 280, 291; Wallach v. Cannon, 8 Cir. 1966, 357 F.2d 557; Haldane v. Chagnon, 9 Cir. 1965, 345 F.2d 601; Bryant v. Donnell, W.D. Tenn. 1965, 239 F. Supp. 681; Van Daele v. Vinci, N.D. Ill. 1968, 294 F. Supp. 71; Huey v. Barloga, N.D. Ill. 1967, 277 F. Supp. 864; Swift v. Fourth National Bank of Columbus, Georgia, M.D. Ga. 1962, 205 F. Supp. 563.

On this appeal, plaintiffs forcefully urge that United States v. Guest,³  and Jones v. Alfred H. Mayer Co.,⁴  have lifted the state action limitation from § 1985 (3) so that the literal words of that statute⁵  (which do not include the words "under color of law") may now be given their unfettered application.

The state action limitation on the various Civil Rights Acts⁶  enacted during the Reconstruction Era are traceable to the Civil Rights Cases, 1883, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835, in which the public accommodation sections of the Civil Rights Act of 1875 were questioned. Out of those cases, and of course out of the language of the Fourteenth Amendment itself,⁷  has grown a long and complicated history in which the state action requirement has undergone considerable expansion⁸  and some redefinition, but always with the result that the Fourteenth Amendment and rights flowing from it have been vouchsafed only where there has been interference by state authority, or by those acting under "color" of state authority. United States v. Price, 1966, 383 U.S. 787, 86 S. Ct. 1152, 16 L. Ed. 2d 267. As said by one court, " [t]his distinction between purely private discrimination and discrimination pursuant to `state action' has persisted for over eighty years. Only discrimination which falls within the latter category warrants Fourteenth Amendment protection and falls within the ambit of the Civil Rights Act." (Section 1985 (3)). Huey v. Barloga, supra, 277 F. Supp. at 869. In the words of the Supreme Court in United States v. Cruikshank, 1876, 92 U.S. 542, 23 L. Ed. 588:

"The Fourteenth Amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guaranties [sic], but no more." 92 U.S. at 555.

See also United States v. Guest, 383 U.S. 745, 755, 86 S. Ct. 1170, 16 L. Ed. 2d 239 and Wilkins v. United States, 5 Cir. 1967, 376 F.2d 552, 560, cert. denied, 389 U.S. 964, 88 S. Ct. 342, 19 L. Ed. 2d 379.

Despite the long history and the persistent durability of the state action limitation, appellants contend that under Section 5 of the Fourteenth Amendment, Congress has the power to punish all conspiracies to violate Fourteenth Amendment rights, with or without state action. They rely for this proposition on United States v. Guest, supra.

Guest involved a criminal prosecution under 18 U.S.C.A. § 241,⁹  and not under 42 U.S.C.A. § 1985(3).¹⁰  A majority of the Court, concurring in the opinion of Mr. Justice Stewart, reaffirmed the Court's position that the equal protection clause of the Fourteenth Amendment does not reach wrongs done by one or more private individuals against another. 383 U.S. at 755, 86 S. Ct. 1170. The Court nonetheless concluded that dismissal of the indictments against private persons was improper because there had been some state involvement in the conspiracy.

Appellants point out that six of the Justices in Guest subscribed to the view that Section 5 of the Fourteenth Amendment empowers Congress to enact legislation affecting purely private conduct. They emphasize that the legislative history and the language of § 1985(3) indicate that Congress not only intended to assert its full power under the Constitution when it enacted the Civil Rights Acts,¹¹  see United States v. Price, 1966, 383 U.S. 787, 800, 86 S. Ct. 1152, 16 L. Ed. 2d 267, 276, 280-287; United States v. Mosley, 238 U.S. 383, 387-388, 35 S. Ct. 904, 59 L. Ed. 1355, 1357; Virginia Commission on Constitutional Government, The Reconstruction Amendments, Debates (1967), pp. 484-570, but also clearly intended that § 1985(3) reach private conspiracies. Cong. Globe, 42nd Cong., 1st Sess., 505-506(1871); Cong. Globe, 42nd Cong., 1st Sess., 481-484.

While we do not gainsay the persuasiveness of this argument, and certainly do not disparage the prognostications of numerous commentators who read in Guest the eventual demise of the state action requirement,¹²  we cannot subscribe to the view that Guest has fulfilled this promised potential. This court does not write on a clean slate. We are compelled to note that most if not all courts which have considered Guest since its appearance in 1966 have hewed closly to the majority opinion by Justice Stewart and to the majority's findings of state action. Jones v. Alfred H. Mayer Co., 8 Cir. 1967, 379 F.2d 33, 43, reversed on other grounds; 392 U.S. 409, 88 S. Ct. 2186, 20 L. Ed. 2d 1189; United States v. Lester, 6 Cir. 1966, 363 F.2d 68, 72, cert. denied, 385 U.S. 1002, 87 S. Ct. 705, 17 L. Ed. 2d 542; O'Hara v. Mattix, W.D. Mich. 1966, 255 F. Supp. 540, 542; St. Augustine High School v. Louisiana High School Athletic Association, E.D. La. 1967, 270 F. Supp. 767, 771-772, aff'd., 5 Cir. 1968, 396 F.2d 224. This court has been no exception. Wilkins v. United States, 5 Cir. 1967, 376 F.2d 552, 570, cert. denied, 389 U.S. 964, 88 S. Ct. 342, 19 L. Ed. 2d 379. At this late date we cannot give Guest a new and novel interpretation. Guided as we are by decisions of other courts, bound as we are by Wilkins, and recognizing that Guest on its merits does not abolish state action,¹³  we are constrained to hold that § 1985(3) does not reach private conspiracies to interfere with Fourteenth Amendment rights. Hoffman v. Halden, supra; Huey v. Barloga, supra. In so holding we recognize that the citadel of state action is under heavy attack, but we reluctantly concede that as yet it has not fallen.

We are not deterred or persuaded otherwise by the recent Supreme Court case of Jones v. Alfred H. Mayer & Co., supra. The Mayer case is authoritative only as to the constitutionality of a statute, 42 U.S.C.A. § 1982, enacted pursuant to the Thirteenth and not the Fourteenth Amendment. While Mayer is certainly illustrative of the importance of Section 2 of the Thirteenth Amendment as a source of Congressional power,¹⁴  it is not dispositive of the proposition that Congress, under Section 5 of the Fourteenth Amendment, may reach private conduct. Such an important and significant extension of the Fourteenth Amendment, though intimated in several recent Supreme Court decisions,¹⁵  must still await a specific and authoritative pronouncement by that Court.

We feel compelled to add that appellants' failure to state a cause of action under § 1985(3) is impeded by more than just limitations on the extent of Congressional power under the Fourteenth Amendment. While some of appellants' claims are of Fourteenth Amendment derivation, others such as the right to petition the government for redress of grievances, cf. United States v. Cruikshank, 1876, 92 U.S. 542, 552-553, 23 L. Ed. 588; Powe v. United States, 5 Cir. 1940, 109 F.2d 147, cert. denied, 309 U.S. 679, 60 S. Ct. 717, 84 L. Ed. 1023; Wilkins v. United States, 5 Cir. 1967, 376 F.2d 552, and the right to interstate travel and the use of streets and highways in interstate commerce,¹⁶  United States v. Guest, 383 U.S. at 757-760, and 757; n. 13, 86 S. Ct. 1170, are attributes of national citizenship not sourced in the Fourteenth Amendment.¹⁷  Unlike appellants' other claims, these rights are "fundamental to the concept of our Federal Union," 383 U.S. at 757, 86 S. Ct. at 1178, and implicit in our form of republican government.¹⁸  It is well established that Congress has the power to legislate for their protection even against interference by private conduct.¹⁹  Under these circumstances it is clear that appellants' failure to state a cause of action under § 1985(3) for violation of rights of national citizenship must derive from reasons other than constitutional limitations.

Turning to § 1985(3) itself and the cases which have construed it, we find that rights of national citizenship remain unredressed (when impaired by private conduct), not for want of Congressional power, but for want of a proper statutory vehicle to express it. The Supreme Court has instructed us that § 1985(3) does not have the statutory equipage for redress of private conspiracies. In Collins v. Hardyman, supra, the court held that § 1985(3) reached only conspiracies under color of law. The Court was probably led to this result by its doubts as to the constitutionality of the statute, yet it based its decision not on constitutional grounds, but upon a construction of the language of the statute itself.

Collins involved the disruption of a political meeting in Los Angeles County, California, that has been called in order to petition Congress in opposition to the Marshall Plan. The Democratic Club that called the meeting had been organized for the purpose of participating in the election of officers of the United States and for the purpose of engaging in public discussions on issues of national importance. In their complaint, plaintiffs alleged that they had been deprived of equal protection of the laws and privileges and immunities under the laws in that, among other deprivations, they had been denied their right to petition the government for redress of grievances.

The district court dismissed the complaint holding that the statute did not afford redress for invasion of civil rights at the hands of individuals. D.C., 80 F. Supp. 501. In reversing, the Court of Appeals relied on that part of § 1985(3) which provides damages for overt acts "whereby another is * * * deprived of having and exercising any right or privilege of a citizen of the United States." Hardyman v. Collins, 9 Cir. 1950, 183 F.2d 308, 314. The Court of Appeals also relied on the long line of cases developed under § 241:

"The delineation by the courts of the narrow area of rights which Congress has constitutional power to protect from individual invasion has developed through the application of what is now 18 U.S.C.A. § 241, originally enacted May 31, 1870. This statute has been applied to individual deprivations of the right to vote for federal offices, Ex parte Yarborough, 1884, 110 U.S. 651, 4 S. Ct. 152, 28 L. Ed. 274; the right to enjoy the privileges granted by the homestead laws, United States v. Waddell, 1884, 112 U.S. 76, 5 S. Ct. 35, 28 L. Ed. 673; the right to protection from attack while in the custody of a federal marshal, Logan v. United States, 1892, 144 U.S. 263, 12 S. Ct. 617, 36 L. Ed. 429; and the right to inform federal officers of violations of federal law, In re Quarles, 1895, 158 U.S. 532, 15 S. Ct. 959, 39 L. Ed. 1080; Motes v. United States, 1900, 178 U.S. 458, 20 S. Ct. 993, 44 L. Ed. 1150. The cases also indicate by way of dictum that the right to assemble for the purpose of discussing the policies of the federal Government and petitioning that Government for redress of grievances is within the scope of direct federal protection." 183 F.2d at 313

On the basis of these precedents, the Court of Appeals reinstated the plaintiffs' complaint. Accord, Robeson v. Fanelli, S.D.N.Y. 1950, 94 F. Supp. 62. It distinguished the case of United States v. Harris, 1883, 106 U.S. 629, 1 S. Ct. 601, 27 L. Ed. 290, in which the criminal counterpart of § 1985(3) was declared unconstitutional, on the grounds that the portion of § 1985(3) which dealt with the rights of national citizens was clearly severable from the rest of the statute and was therefore insulated from constitutional infirmity.

The Supreme Court, in Collins, reversed the Court of Appeals and dismissed the complaint, taking the position that the statute was not severable. Nonetheless it avoided the constitutional challenge raised by Harris and argued that privileges and immunities under the laws and equal protection of the laws required that there be "some manipulation of the law or its agencies." 341 U.S. at 661, 71 S. Ct. at 942. Without state involvement, the Court viewed appellants' claims as "no more a deprivation of `equal protection' or of `equal privileges and immunities' than it would be * * * to assault one neighbor without assaulting them all, or to libel some persons without mention of others." Id. The Court found that appellants' "rights under the laws and to protection of the laws remain untouched and equal to the rights of every other Californian * * *." Id. The Court concluded:

"We say nothing of the power of Congress to authorize such civil actions as respondents have commenced or otherwise to redress such grievances as they assert. We think that Congress has not, in the narrow class of conspiracies defined by this statute, included the conspiracy charged here. We therefore reach no constitutional questions." 341 U.S. at 662, 71 S. Ct. at 942.

This decision in Collins, because it is based on the language of § 1985(3), and not upon any considerations of Congressional power, is unaffected by any of the opinions in Guest, or by the opinion in Mayer. We are therefore bound to follow it until it is expressly overruled. We have serious doubts as to its continued vitality,²⁰  but we, as an inferior court, cannot expand the statutory girth of § 1985(3) when we are "* * * faced with a limiting Supreme Court decision which, so far as we are told directly, remains good law." Jones v. Alfred H. Mayer Co., 379 F.2d at 43.

We conclude by noting that § 1985(3) is today a poor remnant of its original conception. Its criminal counterpart has been held unconstitutional, United States v. Harris, supra, and its own constitutionality cast in doubt. Its language has been greatly restricted, Collins v. Hardy man, supra, and its application is no longer in accord with its legislative history. The last is probably the most mystifying. § 241 and § 1985(3) have the same Reconstruction historicity.²¹  They both speak of men going in disguise on the public highway and they both lack the language "under color of law" which appears so clearly in § 1983.²²  Every indication in the legislative history of the period suggests that the Congressional reconstructionists intended to make the streets and highways safe for the lately freed from private as well as from public traducers.²³  As said by Justice Frankfurter in United States v. Williams, 1951, 341 U.S. 70, 76, 71 S. Ct. 581, 95 L. Ed. 758, 763-764, decided during the same term as Collins:

"Men who `go in disguise upon the public highway, or upon the premises of another' are not likely to be acting in official capacities. The history of the times — the lawless activities of private bands, of which the Klan was the most conspicuous — explains why Congress dealt with both State disregard of the new constitutional prohibitions and private lawlessness. The sponsor of § 6 [now § 241] in the Senate made explicit that the purpose of his amendment was to control private conduct." 341 U.S. at 76, 71 S. Ct. at 584.

We are puzzled as to why this statement petraining to the legislative history of § 241 is not equally applicable to § 1985(3). Nor can we discern why "privileges and immunities under the laws" do not include privileges and immunities of national citizenship.²⁴  Judge Healy, dissenting in the Court of Appeals in Collins, was of the view that "privileges and immunities under the laws" was derivative from the Fourteenth Amendment and therefore limited the statute only to Fourteenth Amendment rights. His theory was that the similarity of the language used in § 1985(3) to "the wording of Section 1 of the Fourteenth Amendment shows that Congress, in choosing its language, was thinking * * * of that Amendment and its vindication." 183 F.2d at 315.

This view is somewhat inconsistent with recent Supreme Court pronouncements on § 241. As noted in United States v. Price, quoting from Justice Holmes in United States v. Mosley:

"The source of this section [§ 241] in the doings of the Klu Klux and the like is obvious, and acts of violence obviously were in the mind of Congress. Naturally Congress put forth all its powers. * * *" (emphasis added)

Justices Burton, Black and Douglas expressed the same view of § 1985(3) in their dissenting opinion in Collins. Theirs was the position that Congress had the power, quite independent of the Fourteenth Amendment,²⁵  to create a federal cause of action for the abridgment of federally protected rights. Morever, they took the position that Congress had actually done so in § 1985(3):

"Congress certainly has the power to create a federal cause of action in favor of persons injured by private individuals through the abridgment of federally created constitutional rights. It seems to me that Congress has done just this in RS § 1980(3) [1985(3)]. This is not inconsistent with the principle underlying the Fourteenth Amendment. That Amendment prohibits the respective states from making laws abridging the privileges or immunities of citizens of the United States or denying to any person within the jurisdiction of a state the equal protection of the laws. Cases holding that those clauses are directed only at state action are not authority for the contention that Congress may not pass laws supporting rights which exist apart from the Fourteenth Amendment." 341 U.S. at 664, 71 S. Ct. at 943.

The solicitude recently shown by the Supreme Court in United States v. Guest, supra, for the protection of the right to travel as a "privilege and immunity of national citizenship," 383 U.S. at 766, 86 S. Ct. at 1182, raises some doubts as to the continued vitality of Collins.²⁶  Even more recently the Court has disapproved the practice of reading civil rights legislation more restrictively than either the history or the language of the statutes require:

"As we said in a somewhat different setting two Terms ago, `We think that history leaves no doubt that, if we are to give [the law] the scope that its origins dictate, we must accord it a sweep as broad as its language.' United States v. Price, 383 U.S. 787, 801, 86 S. Ct. 1152, 1160 [16 L. Ed. 2d 267, 276]. `We are not at liberty to seek ingenious analytical instruments,' ibid., to carve from § 1982 an exception for private conduct — even though its application to such conduct in the present context is without established precedent." Jones v. Mayer Co., 392 U.S. at 437, 88 S. Ct. at 2202.

In view of these recent changes, it would not surprise us if Collins v. Hardyman were disapproved and if § 1985(3) were held to embrace private conspiracies to interfere with rights of national citizenship.²⁷  In the context of voting rights the statute has already been so applied.²⁸  See Paynes v. Lee, 5 Cir. 1967, 377 F.2d 61. And where Congress has regulated in the area of interstate transportation, the statute has likewise been invoked. Baldwin v. Morgan, 5 Cir. 1958, 251 F.2d 780, 791. For many years § 241 has been applied to private conspiracies against rights of national citizenship,²⁹  and why § 1985 (3) should be given a narrower compass when its constitutionality would be no further impaired³⁰  or its language further abused has mystified the commentators.³¹  Nonetheless, Collins clearly denied redress for private interference with rights of national citizenship when it overruled the judgment of the Court of Appeals. Since we may not adopt what the Supreme Court has expressly rejected, we obediently abide the mandate in Collins.

The judgment of the district court in dismissing the complaint is

Affirmed.