Freedman, David A.

English

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review7-1-1971Civil Rights: Are Private Conspiracies Redressablein Federal Courts?David A. FreedmanFollow this and additional works at: http://repository.law.miami.edu/umlrThis Case Noted is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationDavid A. Freedman, Civil Rights: Are Private Conspiracies Redressable in Federal Courts?, 25 U. Miami L. Rev. 780 (1971)Available at: http://repository.law.miami.edu/umlr/vol25/iss4/10UNIVERSITY OF MIAMI LAW REVIEWdictates that insurance policies must comply with public policy. However,because of the apparent conflict between the No-Fault Statute and theUninsured Motorist Statute as interpreted by the Supreme Court inMullis, it is unclear exactly what the present public policy is concern-ing the specific exclusion of coverage in the instant case.STEPHEN G. FISCHERCIVIL RIGHTS: ARE PRIVATE CONSPIRACIES REDRESSABLEIN FEDERAL COURTS?Petitioners, Negro citizens of Mississippi, filed an action for damagesin the United States District Court for the Southern District of Missis-sippi. The complaint alleged that respondents, certain white citizens ofMississippi, conspired to assault the petitioners, who were traveling uponthe highways of Kemper County, Mississippi, near the Mississippi-Alabama border. Petitioners further alleged that, pursuant to the con-spiracy, the respondents, mistakenly believing the driver of petitioners'vehicle to be a civil rights worker, blocked their passage on the publichighways, and, threatening murder, forced them from the car and inflictedserious physical injury by clubbing them while holding them at gunpoint.Petitioners sought to invoke federal jurisdiction under the language of42 U.S.C. section 1985(3).' The District Court dismissed the complaintfor failure to state a cause of action, relying on Collins v. Hardyman,2 inwhich 42 U.S.C. section 1985 (3) was construed as reaching only con-spiracies under color of state law.' The Court of Appeals affirmed,4 andcertiorari was granted. The Supreme Court of the United States held, re-1. 42 U.S.C. § 1985(3) (1965) provides:If two or more persons in any State or Territory conspire or go in disguise on thehighway or on the premises of another, for the purpose of depriving, either directlyor indirectly, any person or class of persons of the equal protection of the laws, orof equal privileges and immunities under the laws; . . . in any case of conspiracyset forth in this section, if one or more persons engaged therein do, or cause to bedone, any act in furtherance of the object of such conspiracy, whereby another isinjured in his person or property, or deprived of having and exercising any rightor privilege of a citizen of the United States, the party so injured or deprived mayhave an action for the recovery of damages, occasioned by such injury or depri-vation, against any one or more of the conspirators.2. 341 U.S. 651 (1951).3. The standard definition is found in United States v. Classic, 313 U.S. 299, 326(1941):Misuse of power, possessed by virtue of state law and made possible only becausethe wrongdoer is clothed with the authority of state law, is action taken under colorof state law.In cases involving civil rights, "under color" of law has been consistently equated with the"state action" requirement of the fourteenth amendment. See, e.g., Terry v. Adams, 345U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944); Hampton v. City of Jackson-ville, 304 F.2d 320 (5th Cir. 1962).4. Griffin v. Breckinridge, 410 F.2d 817 (5th Cir. 1969).[Vol. XXVCASES NOTEDversed and remanded: 42 U.S.C. section 1985(3) reaches private con-spiracies. Griffin v. Breckinridge, 91 S. Ct. 1790 (1971).The use of the civil rights statutes to introduce claims foundedupon common law torts5 into the federal judiciary has been one primeexception to the trend toward limiting accessability into the federalcourts.' Griffin v. Breckinridge requires close scrutiny to determinewhether the Supreme Court, in recognizing the applicability of 42 U.S.C.section 1985 to purely private conspiracies, has in fact greatly expandedthis entrance to the federal judicial system.The basic question in Griffin v. Breckinridge7 can be stated simplyenough: Does 42 U.S.C. section 1985(3) reach private conspiracies? Anaffirmative answer to this basic question, however, gives rise to anotherquestion of far greater complexity: What is the constitutional source ofpower that permits Congress to reach purely private conspiracies?The first question is answered affirmatively on three bases: a plainreading of the statute, its legislative history, and the evolution of de-cisional law in the twenty years since Collins v. Hardyman. Nowhere doesthe language of section 1985 (3) indicate a state-action requirement. "Ontheir face, the words of the statute fully encompass the conduct of privatepersons." Moreover, the "going in disguise" language of section 1985(3)is viewed by the Court as an implication of private action.Going in disguise, in particular, is in this context an activity solittle associated with official action and so commonly connectedwith private marauders that this clause could almost never beapplicable under the artificially restrictive construction ofCollins. And since the "going in disguise" aspect must include5. The three federal statutes allowing civil actions for damages are 42 U.S.C. § 1983,§ 1985, and § 1986 (1970). Section 1983 grants an action to any person deprived of aright, privilege, or immunity secured by the United States Constitution or laws. This sec-tion has been the most useful of the three in providing a vehicle for asserting federal juris-diction. See Monroe v. Pape, 365 U.S. 167 (1961) for a comprehensive treatment of thewide range of applicability of § 1983. Section 1985 consists of three subsections, the thirdof which is set out in part in note 1 supra. The first section of § 1985 deals with con-spiracy to prevent a federal officer from performing his duties; the second part deals withconspiracies to obstruct justice. Section 1986 authorizes a civil action for damages againstanyone who, having the power of authority to do so, knowingly fails to prevent the com-mission of one of the wrongs specified in § 1985. Section 1985(3) would, in this interpre-tation, cover private actions by two or more individuals; section 1983 would cover allactions under color of state law.6. The two basic grounds for asserting federal jurisdiction are federal question anddiversity of citizenship. Attempts to limit the intake of the federal courts are numerous.For example, the amount in controversy necessary to assert diversity jurisdiction hassteadily increased from the original $500 to the current "in excess of $10,000" requirementof 28 U.S.C. § 1332(a) (1970). Federal question jurisdiction must appear from the complaint,well-pleaded, not the complaint and answer taken as a whole. Louisville and Nashville R.R.v. Mottley, 211 U.S. 149 (1908). See also Younger v. Harris, 91 S. Ct. 1790 (1971) and itscompanion cases, noted in 25 U. MIAmi L. REV. 506 (1971).7. 91 S. Ct. 1790 (1971).8. 341 U.S. 651 (1951).9. Griffin v. Breckinridge, 91 S. Ct. 1790, 1795 (1971).UNIVERSITY OF MIAMI LAW REVIEWprivate action, it is hard to see how the conspiracy aspect...could be read to require the involvement of state officers. 10Continuing with its appraisal of the language of the statute, the Courtreasons that "the failure to mention any such requisite [state-action]can be viewed as an important indication of congressional intent to speakin § 1985(3) of all deprivations of 'equal protection of the laws' andequal privileges and immunities under the laws, whatever their source.""Since a necessary element for a cause of action under section 1983 is thatthe deprivation must have been inflicted under color of state law, "[t]oread any such requirement into § 1985(3) would thus deprive that sec-tion of all independent effect." 2The legislative history of section 1985(3) is also employed as abasis for including private conspiracies under the aegis of the statute.After considering the statements of the proponents of the original mea-sure," the Court concludes that: "It is thus evident that all indicators-text, companion provisions, and legislative history-point unwaveringlyto § 1985 (3)'s coverage of private conspiracies."' 4Of the three bases that the Court uses to apply section 1985(3) toprivate conspiracies, the trend of decisional law is the most powerful.This trend has clearly been toward encompassing the activities of privateindividuals within the Civil Rights Statutes. As the Griffin Court stated,"the approach . . . to other Reconstruction civil rights statutes in theyears since Collins has been to 'accord [them] a sweep as broad as [their]language.' "15The decisional law of the past twenty years reveals two basic methodsof introducing suits stemming from acts of private citizens into the federaljudiciary: first, the concept of "color of state law" has been expandedso as to cover the actions alleged in a particular circumstance; 16 second,constitutional power sources other than the fourteenth amendment maybe employed to render federal statutes applicable to a given factual situa-tion .1710. Id.11. Id. at 1796.12. Id. at 1797.13. The bill originally provided criminal sanctions for conspiracies resultingin either murder, manslaughter, mayhem, robbery, assault and battery, perjury,subornation of perjury, criminal obstruction of legal process or resistance of officersin discharge of official duty, arson, or larceny....CONG. GLOBE, 42nd Cong., 1st Sess. 68-69 (1871).14. Griffin v. Breckinridge, 91 S. Ct. 1790, 1798 (1971).15. Id. at 1796.16. See, e.g., United States v. Guest, 383 U.S. 745 (1966), dealing with the criminalcounterpart of § 1985(3) ; 18 U.S.C. § 241 (1970) ; and Shelley v. Kraemer, 334 U.S. 1(1948).17. The classic case of this type is Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968),which held that 42 U.S.C. section 1982 was applicable, on the basis of the thirteenth amend-ment, to all racial discrimination in the public or private sale or rental of realty.[Vol. XXVCASES NOTEDThe construction of section 1985(3) in Collins v. HardymanI wasinfluenced by "constitutional problems of the first magnitude .... ,1If, as it has been consistently held, the fourteenth amendment guardsagainst state action,"0 how could Congress provide a remedy for individualactions without infringing on the reserved powers of the States under thetenth amendment? 2' The dissent in Collins revealed two possible constitu-tional approaches to extending section 1985(3) to reach private con-spiracies. Such a construction could be based either upon the principlesunderlying the fourteenth amendment, or upon the basis of supportingrights which exist apart from the fourteenth amendment.22In Griffin, after deciding that section 1.985(3) was designed to reachprivate conspiracies, the Court adopted the second suggestion of theCollins dissent:2 3 section 1985(3) reaches private conspiracies throughthe thirteenth amendment. 24 The decision thus falls into the class of casesproviding relief by finding a statute applicable on other than fourteenthamendment grounds .2  The fact that Griffin does fall into this class is ofgreat importance, as such a finding severely limits the scope of the de-cision.The assumption underlying legislation that flows from the thirteenthamendment's prohibition of slavery is that "Congress has the powerunder the Thirteenth Amendment rationally to determine what are thebadges and the incidents of slavery, and the authority to translate thatdetermination into effective legislation. '26 On this basis, Collins v. Hardy-man,27 in which the victims of the alleged deprivation of rights were mem-bers of a white political club, allegedly assaulted by other whites, wouldbe decided in the same manner under the Griffin decision. In Griffin theCourt establishes as an element of a cause of action under section 1985 (3),that "there must be some racial, or perhaps otherwise class-based, in-vidiously discriminatory animus behind the conspirators' action. ' 2 None-theless, by basing the decision on the thirteenth amendment and Con-gress's power to determine the badges and incidents of slavery, the18. 341 U.S. 651 (1951).19. Id. at 659.20. United States v. Price, 383 U.S. 787 (1966) ; Civil Rights Cases, 109 U.S. 3 (1883);United States v. Cruikshank, 92 U.S. 542 (1875). But see, notes 33-36 infra and accompany-ing text.21. "The powers not delegated to the United States by the Constitution, nor pro-hibited by it to the States, are reserved to the States respectively, or to the people." U.S.CONST. amend. X.22. Collins v. Hardyman, 341 U.S. 651, 664 (1951) (dissenting opinion).23. Id.24. Griffin v. Breckinridge, 91 S. Ct. 1790, 1800 (1971).25. In this respect, Griffin is more clearly related to Jones v. Alfred H. Mayer Co., 392U.S. 409 (1968) than to any other civil rights decision.26. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968).27. 341 U.S. 651 (1951).28. Griffin v. Breckinridge, 91 S. Ct. 1790, 1798 (1971) (emphasis added).1971]UNIVERSITY OF MIAMI LAW REVIEWdecision cannot be construed as being applicable to a non-racial factualsituation such as existed in Collins.Thus, the Griffin decision in no manner transforms section 1985(3)into a general federal tort law. Since the Court specifically limits its de-cision to the factual situation at hand, the only constitutional considera-tions involved are those dealing with the question of whether Congress hadthe power to enact a statute that imposes liability under federal law "forthe conduct alleged in this complaint. ' 29 The Court states that "we neednot find the language of § 1985(3) now before us constitutional in all itspossible appplications in order to uphold its facial constitutionality and itsapplication to the complaint in this case."130The concluding paragraphs of the decision afford a second constitu-tional source of power through which section 1985(3) can reach purelyprivate conspiracies-the right of interstate travel.3 1 The constitutionalfoundation for such a construction of section 1985(3) is also clearlylimited to the factual setting of the case, as the complaint alleged eventstranspiring in the vicinity of the border of two states.While Griffin v. Breckinridge is closely restricted to its immediatefacts, and thus cannot be deemed to create a broad avenue of accessibilityto the federal judiciary, the case cannot be considered a unique occur-rence. The Court closely followed the maxim of not deciding more thannecessary:In identifying these two constitutional sources of congressionalpower, we do not imply the absence of any other. More specifi-cally, the allegations of the complaint in this case have not re-quired consideration of the scope of the power of Congress un-der § 5 of the Fourteenth Amendment. By the same token, sincethe allegations of the complaint bring this cause of action soclose to the constitutionally authorized core of the statute, therehas been no occasion here to trace out its constitutionally per-missible periphery. 2This comment on section five of the fourteenth amendment 3 mayprove to be indicative of the course that the Court will take in dealingwith future Civil Rights Statute situations. In 1966, six members seemedto agree that "§ 5 empowers the Congress to enact laws punishing allconspiracies-with or without state action-that interfere with FourteenthAmendment rights."3 4 Four years later, however, in Adickes v. S. H. Kress29. Id. at 1799 (emphasis added).30. Id. (emphasis added).31. Id. at 1800. See Edwards v. California, 314 U.S. 160 (1941); Twining v. New Jersey,211 U.S. 78 (1908) ; Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867).32. Griffin v. Breckinridge, 91 S.Ct. 1790, 1801 (1971).33. "The Congress shall have power to enforce, by appropriate legislation, the pro-visions of this article." U.S. CONST. amend. XIV § 5.34. United States v. Guest, 383 U.S. 745, 762 (1966) (concurring opinion of Clark);See also Justice Brennan's opinion, concurring in part and dissenting in part. Id. at 782.[Vol.XXVCASES NOTED&,Co., 5 the decision was that "[S] tate action [is] essential to show adirect violation of . . . Fourteenth Amendment equal protection rights... ,M The fact that the Court skirted any decision in Griffin on thecontention that section five of the fourteenth amendment empowers Con-gress to reach purely private actions may indicate that this avenue ofexpansion may not have been as completely rejected as Adickes wouldseem to indicate.Therefore, the Griffin decision must be viewed both as a culminationof the decisional law in this area over the past twenty years as well as anindication that private conspiracies, on a case-by-case basis, may be re-dressable in the federal courts under 42 U.S.C. section 1985(3). In addi-tion, Griffin v. Breckinridge may indicate that future expansion of thescope of the Civil Rights Statutes under section five of the fourteenthamendment is still a possibility.DAVID A. FREEDMANDAMAGE REMEDY FOR FEDERAL VIOLATION OF FOURTHAMENDMENT RIGHTS: BELL v. HOOD, CHAPTER TWOPlaintiff brought an action in a federal district court for damagesalleging that federal officers acting under color of federal law had violatedhis fourth amendment rights. Defendants, federal narcotics agents, hadentered and searched plaintiff's apartment without a warrant and hadmanacled and humiliated the plaintiff in the presence of his family. Thedefendants threatened the members of the entire household with arrestand later interrogated, booked, and strip-searched the plaintiff at thefederal courthouse. The district court dismissed the action on twogrounds: lack of subject matter jurisdiction and want of a claim uponwhich relief might be granted.' On appeal, the Court of Appeals for theSecond Circuit' ruled that the district court did have jurisdiction overthe subject matter,3 but affirmed on the grounds that the plaintiff hadnot set forth a claim upon which relief might be granted. On certiorari35. 398 U.S. 144 (1970).36. Id. at 152.1. Bivens v. 6 Unknown Named Agents Of the Federal Bureau Of Narcotics, 276 F. Supp.12 (E.D.N.Y. 1967).2. Bivens v. Six Unknown Named Agents Of the Federal Bureau Of Narcotics, 409F.2d 718 (2d Cir. 1969).3. Id. at 720. The court based its conclusion on Bell v. Hood, 327 U.S. 678 (1946),where it was held that a "complaint,. . drawn as to seek recovery directly under the Con-stitution-or -laws of the United States, . . ." constitutes a federal question so as to conferjurisdiction on the court. Bell at 681-82. The Court also held that "the failure to state aproper cause of action calls for a judgment on the merits and not for a dismissal for wantof jurisdiction." Bell at 682.

Civil Rights: Are Private Conspiracies Redressable in Federal Courts?

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Civil Rights: Are Private Conspiracies Redressable in Federal Courts?

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