# Hardyman v. Collins > Court of Appeals for the Ninth Circuit · October 9, 1950 · 183 F.2d 308 URL: https://www.frixlaw.com/law-library/cases/9442523 ## Case - **Full name:** HARDYMAN Et Al. v. COLLINS Et Al. - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** October 9, 1950 - **Citations:** 183 F.2d 308 - **Precedential status:** Published - **Opinion:** Dissent by Healy - **Judges:** Healy, McALLISTER, Orr - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed by Collins v. Hardyman, 341 U.S. 651 (1951). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9442523 ## Opinion text HEALY, Circuit Judge, Dissenting. I am in general agreement with the opinion of the trial judge, 80 F.Supp. 501 , *315 although possibly I have approached the •case from a different angle. The statute involved, 8 U.S.C.A. § 47 , had its origin in section 2 of the Act of April 20, 1871, 17 Stat. 13 , entitled “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.” In the Revised Statutes of 1873 1 section 2 of that Act so far as it provides civil rem•edies was extensively rearranged and be•came § 1980. As will later appear, the -penal sanction embodied in section 2 was at that time transferred to the title denominated “Crimes.” For the moment it is enough to say that 8 U.S.C.A. § 47 is identical in wording, arrangement and subdividing with § 1980. Apparently the clause of subdivision (3) thereof, presently of importance, has been construed in but two cases, Love v. Chandler, 8 Cir., 124 F.2d 785 , and Viles v. Symes, 10 Cir., 129 F.2d 828 , in both of which it was regarded as giving federal protection against state action only. Omitting all matter not material to this case, § 47(3) reads: “If two or more persons in any State or Territory conspire [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; * * * in any case o'f conspiracy set forth in this section, 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.” . The clause descriptive of the conspiracy forms the heart of this inquiry and therefore merits closer scrutiny than I think my associates have given it. It is notable that the phraseology employed is formal and abstract rather than particular or concrete, whereas the contrary is the case in respect of all other conspiracies outlined in § 47. The crucial verbiage is “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.” The similarity o-f the verbiage I have italicized to the wording of Section 1 of the Fourteenth Amendment shows that Congress, in choosing its language, was thinking immediately in terms of that Amendment and its vindication. 3 As my associates observe, the congressional debates display a belief (later determined to be erroneous) that the Fourteenth Amendment bestowed on the national government power by legislation to protect the civil rights of persons against individual as well as state invasion; and it is but just to assume that this belief inspired the distinctive language of the clause now under examination. The insuperable difficulty one finds in the way of applying the clause to any action other than such as may be taken under color of state authority seems directly traceable to these circumstances. We should know now, I believe, that in the constitutional sense it is not within the competence of private persons, whether acting singly or in concert, to deprive others of the equal protection of the laws or of equal privileges under the laws. Only action taken under state aegis is capable of effectuating that. Private individuals may conpsire to impede, hinder, interfere with, or interrupt the free exercise of a constitutionally protected right or privilege, and it is within their capacity to take effective steps in the furtherance of such *316 a conspiracy. But individual action of this sort can be taken only by conduct violative of state law, such for example as trespass, assault, intimidation, riotous tumult or the enforced dispersal of public assemblages — all of these being wrongs which, in the absence at any rate of suitable federal legislation, the state alone is competent to punish or redress, or by the exercise of its police power to prevent. That this is so was long ago pointed out by the Supreme Court in the Civil Rights Cases, 109 U.S. 3, 17 , 3 S.Ct. 18, 25 , 27 L.Ed. 835 . The Court said: “The wrongful act of an individual, unsupported by any such [state] authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress. An individual cannot deprive a man of his right to vote, to hold property, to buy and sell, to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow-citizen; but, unless protected in these wrongful acts by some shield of state law or state authority, he cannot destroy or injure the right;' he will only render himself amenable to satisfaction or punishment; and amenable therefor to the laws of the state where the wrongful acts are committed. Hence, in all those cases where the constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the state by prohibiting such laws, it is not individual offenses, but abrogation and denial of rights, which it denounces, and for which it clothes the Congress with power to provide a remedy. This abrogation and denial of rights, for which the states were alone or could be responsible, was the great seminal and fundamental wrong which was intended to be remedied.” : It-will be helpful at this juncture to turn to the case of United States v. Harris, 106 U.S. 629 , 1 S.Ct. 601 , 27 L.Ed. 290 , from which, curiously enough, my associates appear to derive comfort. As I s.aid earlier, the penal sanction of section 2 of the Act of April 20, 1871, was transferred to the “Crimes” title on adoption of-the Revised Statutes. This provision afforded criminal penalties for engaging in conspiracies of the sort described in the section; and in the revision it became § 5519, shown below. 4 It was this section that was before the Court in United States v. Harris, supra, and was there held invalid as being beyond the authority of Congress. My brothers say it was struck down because of its breadth, that is, because it encompassed indiscriminately invasions of state as well as federal rights. This view is superficial and only partially correct. Apparently it is based on the Court’s passing approval of the holding in United States v. Reese, 92 U.S. 214 , 23 L.Ed. 563 . The objectionable sweep of the statute, as I understand the opinion, was by no means the sole or even the major ground upon which its invalidity was predicated. For the Court to sweep away the statute because the particular offerise charged in the case was beyond federal competence seems wholly out of character, like throwing the baby out with the bath. Primarily it appears to havfe been thought unconstitutional because “directed exclusively against *317 the action of private persons, without reference to the laws of the states, or their administration by the officers” 106 U.S., at page 640 , 1 S.Ct. at page 610 . Later in the opinion 106 U.S. at page 643 , 1 S.Ct. at page 612 , the Court remarked that if Congress has power to punish a conspiracy of this character, it can punish the act itself whether done by one or more persons. “A private person”, said the Court, “cannot make constitutions or laws, nor can he with authority construe them, nor can he administer or execute them. The only way, therefore, in which one private person can deprive another of the equal protection of the laws is by the commission of some offense against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault, or murder”, all of which were thought to be offenses solely within state competence. In this passage one discerns the embryo of the philosophy much more adequately developed in the Civil Rights Cases, supra. Clearly, the Harris decision renders highly dubious even the constitutionality of the statute before us. My brothers rely extensively on the judicial history of 18 U.S.C.A. § 241 (formerly 18 U.S.C.A. § 51 , Rev.Statutes § 5508). Similarly in the brief of appellants, as well as in those of the several organizations appearing amici curiae, that statute is lugged in as representing the “criminal counterpart” of the statute under inquiry. The section is quoted on the margin. 5 Its validity has been upheld by the Supreme Court and its provisions several times applied to private conspiracies. The cases applying it will be reviewed shortly. For the moment I desire to call attention to the fact that the statute is not at all a counV' terpart of the one here invoked. In fitting language it describes a conspiracy which private individuals are perfectly capable of conceiving and effecting, namely, a conspiracy to “injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having^ so exercised the same.” 6 This verbiage i may conceivably be regarded as descriptive;, of what the appellees in this case appear; actually to have done and conspired to do,V but since the statute provides no civir remedy in damages it necessarily affords ; no ground for federal jurisdiction here. J The cases in which § 241, supra, was applied reveal the Court’s deep preoccupation with the necessity of the national government’s protecting itself, its institutions, officers, and services from interference through' individual misconduct. The first of the group, Ex parte Yarbrough, 110 U.S. 651 , 4 S.Ct. 152, 157 , 27 L.Ed. 274 , involved a charge that the defendants had conspired to intimidate a citizen of African descent in the free exercise of his right to vote for a member of Congress, and in the execution of the conspiracy had beaten and wounded him. The Court said that it is the duty of the United States to see that the citizen may exercise this right freely, and to protect him from violence while so doing, or on account of so doing. “This duty," said the Court, “does not arise solely from the interest of the party concerned, but from the necessity of the government itself, that its service shall be free from the adverse influence of force and fraud practiced on its agents, and that the votes by *318 •which its members of congress and its president are elected shall be the free votes •of the electors, and the officers thus chosen the free and uncorrupted choice of those who have the right to take part in that choice.” The same insistent note of concern for the integrity of the functions and processes of the national government runs through all the cases arising under that section. 7 • While the problem had better be left to be dealt with when it is presented, I may for present purposes assume that the criminal statute on which all but one of the foregoing cases proceed, namely § 241, supra, would reach a conspiracy having substantially the object of interfering with the exercise of the right of citizens to assemble for the purpose of discussing national affairs or of petitioning Congress for the redress of grievances. 8 There is dicta in United States v. Cruikshank, 92 U.S. 542 , 23 L.Ed. 588 , supporting that view, although the actual holding was that no offense under the statute was discernible in the indictment, which charged that the defendants conspired to hinder named citizens of the United States (negroes) in the free exercise and enjoyment of their “lawful right and privilege to peaceably assemble * * * for a peaceful and lawful purpose.” The right of the people to assemble for any lawful purpose was thought to be an attribute of the citizens of any free government and did not derive from the federal constitution. For their protection in its enjoyment, therefore, it was said that the people must look to the states. I return now to the case immediately before us. The majority opinion gives to the instant statute no more than cursory attention, quoting it at the outset in a footnote but thereafter ignoring its distinctive wording. The clause descriptive of the conspiracy is treated as though it said something widely different from what it does say or means something other than it says. The conspiracy alleged is referred to as one to “interfere with” or “break up” a meeting being held for the purpose of discussing and petitioning Congress in respect to the Marshall plan; and the question presented is discussed as though the conspiracy clause were couched in language substantially identical with the clause found in 18 U.S.C.A. § 241 , supra. The primary effort of the majority is devoted to proving their point that Congress, although purportedly legislating in support of the Fourteenth Amendment, was aiming at private rather than state action — a proposition with which I am not necessarily in disagreement. But their absorption in that effort has led them, I think, to overlook the circumstance that Congress succeeded only in providing redress for conduct of which individuals are in the nature of things incapable except when acting under color of state authority. Thus by a species *319 of unconscious judicial legislation they have rewritten the clause to make it conform to what they believe to have been the legislative intent. In the infinite multiplicity of public meetings held in this country nowadays there are few that fail to concern themselves in one way or another with national affairs. If the loosely casual interpretation the majority have given this special statute is to prevail, the federal government through its courts will from now on be under the necessity of policing political meetings throughout the whole of the forty-eight states. There are many and various ways of interfering with and interrupting such meetings when, as has frequently happened in the course of our history, individuals of violently opposed opinion really set their minds to it. A little clique in the gallery, for example, may by concerted jeers and catcalls, the heckling of speakers, or the making of loud and unseemly noises, disrupt partisan gatherings as effectively as can be done by direct action. And the picketing of public assemblages, now so freely practiced, is a calculated and often effective means of frightening the timid into remaining away altogether. It seems to me therefore that my brothers, although protesting the contrary, have by their undiscriminating appraisal of this long dormant act opened wide the gates to federal intervention in a field heretofore thought solely within the competence of the states. For my part, out of respect at least for our dual system, which the federal courts have traditionally been vigilant to preserve, I would postpone the intervention until such time as Congress has by clear and fitting legislation made that course unavoidable. Meantime I would not, by 'federal exertion of a dubious power, water down or discourage the local sense of responsibility for the policing and protection of public assemblages. I need not review the allegations of the pleading thought insufficient below to confer federal jurisdiction. That task has already been performed by the trial judge. In his analysis of the factual aspects of the complaint he has revealed this case to be the transparent sham it is when read against the actual wording of the statute. Here, as his discussion shows, a sporadic incident of transient interference with the exercise of a right is by the ingenuity of counsel dressed up in grave constitutional attire and pointed to as a “deprivation” of the right. Judges are apt to be naive men, as Justice Holmes is reported as remarking, but they are not, I hope, so ingenuous as to be oblivious of the world about them. This incident occurred in La Crescenta, a sizeable suburb of the City of Los Angeles. One hardly need say that the Los Angeles community is justly celebrated for its tolerance of all sorts and conditions of people and ideas. The hospitality of the community embraces not merely the conformist, the respectable and the truly good, but the proponents of practically every ism under the sun. Presumably, and so far as appears from appellants’ pleading, La Crescenta has a police force able and willing to protect peaceful assemblies of all comers from intrusion or violence. The club whose members are complaining of the disruption of their meeting had but to call on the police to eject this handful of intruders, and if a repetition of the intrusion were anticipated at future meetings they need only have asked the local authorities for protection from it. No substantial deprival by private action of the right of assembly and petition is possible in such an atmosphere, no matter whose lexicon is taken as the standard. Moreover the laws of the State of California provide means of redress, civil and criminal, for whatever wrongs were done in this instance. If for no more compelling reason, the dismissal of the case was justified for lack of a substantial federal question. The judgment should be affirmed. . Statutes at Large, Vol. 18, p. 848. 2. The portion of the opening clause referring to the going “in disguise on the highway or on the premises of another” is immaterial here, appellants having expressly abandoned any claim of reliance on that phrase. . The language of the Amendment is that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State * * deny to any person within its jurisdiction the equal protection of the laws.” . “See. 5519. If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premissues 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; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; each of such persons shall be punished by a fine of not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment.” . “§ 241. Conspiracy against rights of citizens. “If -two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or “If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured— “They shall be fined not more than $5,000 or imprisoned not more than ten years, or both.” This statute derives from the Act of May 31, 1870, 16 Stat 141. . This statute should be compared with 18 U.S.C.A. § 242 , relating to the “deprivation” of rights under color of state law or custom. The switch in- congressional verbiage when dealing with state action is of obvious significance. . In re Quarles, 158 U.S. 532 , 15 S.Ct. 959 , 39 L.Ed. 1080 , the charge was that the defendants conspired to injure and oppress one Worley for having reported to a United States deputy marshal that certain individuals had violated the internal revenue laws by carrying on illicitly the business of a distiller. In Logan v. United States, 144 U.S. 263 , 12 S.Ct. 617 , 36 L.Ed. 429 , the conspiracy charged was to do violence to certain individuals while in the custody of a United States deputy marshal, who was holding them to answer for a federal offense. United States v. Waddell, 112 U.S. 76 , 5 S.Ct. 35 , 28 L.Ed. 673 , involved the right of a citizen to be protected against enforced removal by others from public land on which he had made a homestead entry, where it was requisite that be continue Ms residence to perfect his entry. Crandall v. Nevada, 6 Wall. 35 , 73 U.S. 35 , 18 L.Ed. 744 , although decided prior to the adoption of these statutes, proceeds on the same strain. It had to do with a state law exacting a tax on all persons entering or leaving the state. The statute was held invalid on the broad ground of the right and necessity of the people being left free to travel to the seat of the national government, .to the seaports, and to the land offices and other agencies of the United States distributed widely throughout the country. . Cf., however, Screws v. United States, 325 U.S. 91 , 65 S.Ct. 1031 , 89 L.Ed. 1495 , 162 A.L.R. 1330 ; Williams v. United States, 5 Cir., 179 F.2d 644 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9442523. Public record. Not legal advice.