# Appendix — Carpenters v. Scott

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 463 U.S. 825

## Text

8 2 -4 86 - Supreme Court, U.S.

FILED
SEP 20 1962

MAEXANDER L. STEVAS.
In THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1951

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
or AMERICA, LOCAL 610 (AFL-CIO) ET AL.,
Petitioners,
v.

PAUL E. SCOTT, ET AL.,
Respondents.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

LAURENCE GOLD
(Counsel of Record)
815 16th Street, N.W.
Washington, D.C. 20006

(202) 687-5390
MARTIN W. Dies
P.O. Box 490
Orange, Texas 77360
Attorneys for Petitioners
GEorGE KAUFMANN
2101 L Street, N.W.
Washington, D.C. 20087
Of Counsel

o—>-~-

TABLE OF CONTENTS

(Opinion of the United States Court of
Appeals for the Fifth Circuit en banc)
) 0 eS eee

(Opinion of t » United States Court of
Appeals for the Fifth Circuit panel)
(March 26, 1981) ..........ccccccccccccceesceseeeee

(Opinion of the United States District
Court for the Eastern District of Texas,
Beaumont Division) (November 16,
ERTS ae ne ee

(Judgment United States District Court
for the Eastern District of Texas, Bea-
mont Division) (December 19, 1978) ....

(Judgment of the United States Court
of Appeals for the Fifth Circuit) (July
is EE antencnneilibiatinesieeteneinmsieens

Al

APPENDIX A

FORMER FIFTH

SCOTT v. MOORE

Paul E. SCOTT, et al.
Plaintiffe-Appellees,

Bill MOORE, et al, Defendants,

Laborers International Union of North
America, Local No. 870, et al,
Defendants-Appeliants,

International Union of Opera.ing
Engineers, etc., AFL-CIO, Local
450, Defendant-Appeliant.

No. 79-1196.

United States Court of Appeals,
Fifth Circuit.*

July 1, 1982.

Construction company and two of its
employees brought action against trades
council, its unions, and individual union
members, alleging that defendants con-
spired for purpose of depriving plaintiffs of
the equal protection of the laws and equal
privileges and immunities under the law
when they planned and executed an attack
on construction site. The United States
District Court for the Eastern District of
Texas, 461 F.Supp. 224, Joe J. Fisher, J.,
entered judgment in favor of plaintiff, and
certain defendants appealed. The Court of
Appeals, 640 F.2d 708, affirmed in part and
reversed in part. After rehearing en banc,
the Court of Appeals, Charles Clark, Circuit
Judge, held that: (1) civil rights conspiracy
statute encompassed conspiracy designed to
deprive nonunion workers and their employ-
er of First Amendment right of free associ-
ation where conspiracy, which was motivat-
ed by defendants’ hostility toward nonunion

* Former Fifth Circuit case, section &1) of Public

A-l

workers and employers w: > hired them,
was furthered by physical assaults and
beatings and destruction of property, and
(2) findings that certain unions authorized
or participated in conspiracy aimed at in-
timidating and coercing nonunion workers
from working or being employed within 4
“union area” were not clearly erroneous;
however, evidence of participation in the
conspiracy was insufficient to warrant
judgment against the remaining eight un-
ions.

Affirmed in part and reversed in part.

Alvin B. Rubin and Jerre S. Williams,
Cireuit Judges, filed dissenting opinion in
which Brown, Vance, Kravitch, Randall,
Tate, and Sam D. Johnson, Circuit Judges,
‘oined

R. Lanier Anderson, III, Circuit Judge,

Garwood, Circuit Judge, filed dissent-
ing opinion.

1. Labor Relations ¢=870

Norris-LaGuardia Act did not deprive
district court of jurisdiction to enjoin labor
organizations not to combine, conspire,
threaten, intimidate, assault or commit any
act of violence toward or upon any person,
property or possession of any person or his
family who worked upon, traveled to, or
delivered materials, goods, or services to
construction company or to construction
site. Norris-LaGuardia Act § 5, 29 U.S.
C.A. § 105.

2. Labor Relations #855
Norris-LaGuardia Act's prohibition
against federal injunctive relief merely re-
Law 96-452—October 14, 1980.

Synopecs, Syllabi and Key Number Classification
COPYRIGHT @ 1982, by WEST PUBLISHING CO.

The Synopses, Syllabi and Key Number Classifi-
cation constitute no part of the opinion of the court.

A-2

stricts court's power to enjoin concerted or
conspiratorial activity where the conduct to
be enjoined is legitimate activity of a labor
union. Norris-LaGuardia Act, §§ 4, 5, 29
U.S.C.A. §§ 104, 106.

3. Conspiracy 7.6

Civil rights conspiracy statute encom-
passed conspiracy designed to deprive non-
union workers and their employer of First
Amendment right of free association where
conspiracy, which was motivated by defend-
ants’ hostility toward nonunion workers and
employers who hired them, was furthered
by physical assaults and beatings and de-
struction of property. U.S.C.A-Const.
Amends. 1, 14; 42 U.S.C.A. § 19853).

4. Constitutional Law @274.1(1)

Guaranties afforded by First Amend-
ment are protected by due process clause of
Fourteenth Amendment. U.S.C.A.Const.
Amends. 1, 14.

5. Constitutional Law 91

Right of free association is closely
aligned with right of free speech and is
protected by First Amendment. U.S.C.A.
Const.Amend. 1.

6. Conspiracy 7.6

Civil rights conspiracy statute protects
against private infringement on First
Amendment freedoms. U.S.C.A.Const.
Amend. 1; 42 U.S.C.A. § 19853).

7. Conspiracy @7.6

Civil rights conspiracy statute reaches
all deprivations of equal protection, whatev-
er their source. 42 U.S.C.A. § 19853);
U.S.C.A.Const.Amend. 14.

SCOTT v.

8. Conspiracy 7.5

Not every conceivable class of persons
is covered by civil rig a conspiracy statute;
members of piainti: class must share some
common characteristic beyond simply being
victims of defendant's conspiratorial con-
duct and class can not be so large and
amorphous that its members are virtually
indistinguishable from vast majority of the
populace. 42 U.S.C.A. § 19853).

9. Conspiracy 7.5

Plaintiffs, nonunion employer and its
nonunion employees who alleged injury re-
sulting from conspiracy motivated by de-
fendants’ hostility toward nonunion work-
ers and employers who hired them, consti-
tuted a class for purposes of civil rights
conspiracy statute. 42 U.S.C.A. § 19853);
National Labor Relations Act, §§ 7, 8,
&b\1) as amended 29 U.S.C.A. §§ 157, 158,
158(b) 1).

10. Conspiracy 7.5

Civil rights conspiracy statute cannot
be invoked to disrupt operation of a careful-
ly integrated statutory scheme. 42 US.
C.A. § 1985(3).

11. Conspiracy 7.5

Cause of action under civil rights con-
spiracy statute cannot be predicated upon
an unfair labor practice, without more. 42
U.S.C.A. § 1985(3).

12. Conspiracy 7.5

Neither unionism nor nonunionism suf-
fices to create a covered class for purposes
of civil rights conspiracy statute; however,
where there is no campaign to organize
employees and force or violence is used to
stake out one group’s territorial claim and
to deprive other workers and their employer
to freely associate with one another, an

SCOTT v. MOORE

action under civil rights conspiracy statute
will lie. 42 U.S.C.A. § 1985(3).

13. Commerce @74.65

Commerce clause justified application
of civil rights conspiracy statute w defend-
ants’ wholly private conspiracy, which was
motivated by hostility against nonunion em-
ployces and their employer which employer
was general contractor which, during year
preceding violent attack on its construction
site had perform! work outside of Texas
valued in excess of $300,000, where employ-
er had purchased over $50,000 worth of
goods, and materials which originated out-
side of Texas and where construction con-
tract was with United States Army Corps
of Engineers, even though volume of busi-
ness done outside Texas was small com-
pared to total amount of services and goods
in interstate commerce. 42 U.S.C.A.
§ 1983); U.S.C.A.Const.Art. 1, § 8, cl. 3.

14. Commerce @7(2)

Grant of power under commerce clause
extends to those activities intrastate which
so affect interstate commerce, or exertion
of the power over it, as to make regulation
of them appropriate means to attainment of
a legitimate end, the effective execution of
the granted power to regulate interstate
commerce. U.S.C.A.Const.Art. 1, § 8, cl. 3.

15. Labor Relations #766

While Norris-LaGuardia Act requires
clear and convincing evidence as to union
authorization, participation in, or ratifica-
tion of the act allegedly performed by its
members in order to pose liability for it, it
does not prescribe a different standard of
proof for other issues in actions aguinst a
union or its officers or members involved in
a labor dispute. Norris-LaGuardia Act,
§ 6,29 USCA. § 106.

A-3

16. Labor Relations 766

Where a labor organization purposeful-
ly adopts violence as its course and where
that violence is not associated with or hap-
pening to result from any ongoing legiti-
mate union conduct, union is not participat-
ing in a labor dispute within meaning of
Norris-LaGuardia Act. Norris-LaGuardia
Act, § 13(c), 29 U.S.C.A. § 113%(c).

17. Labor Relations #766

Violence at construction site, which
was conceived in reprisal for refusal of em-
ployer and his workers to accede to demands
that construction project be conducted as a
union job, did not occur in conjunction with
the labor dispute within meaning of Norris-
LaGuardia Act; thus, section of Act requir-
ing clear, unequivocal and convincing proof
of union involvement in unlawful conduct
in order to impose liability for it was not
applicable suit brought by employer and his
workers against trades council, its unions,
and individual union members. Norris-La-
Guardia Act, §§ 6, 1%c), 2 US.CA.
§§ 106, 113(c).

18. Labor Relations e766

A labor dispute exists for purposes of
Norris-LaGuardia Act where unlawful con-
duct occurs in conjunction with some legiti-
mate union activity and a labor dispute may
also exist even though the otherwise legiti-
mate union conduct is unlawful under some
Other statutory scheme. Norris-LaGuardia
Act, § 13(c), 29 U.S.C.A. § 113%c).

19. Federal Courts 853

A finding is “clearly erroneous” when
although there is evidence to support it,
reviewing court on entire evidence is left
with definite and firm conviction that a
mistake has been committed. Fed.Rules
Civ.Proc. Rule 52(a), 28 U.S.C.A.

A-4

20. Federal Courts e848

Appellate court must be especially re-
luctant to disregard a factual finding based
upon evaluation of testimony that draws
credibility into question and it may not
consider the evidence anew and merely be-
cause it might have reached a different
result on same evidence will not justify its
setting the district court's findings aside.
Fed.Rules Civ.Proc. Rule 52(a), 28 U.S.C.A.

21. Conspiracy 19

Federal Courts #865

Findings that certain unions authorized
or participated in conspiracy aimed at in-
timidating and coercing nonunion workers
from working or being employed within a

“union area” were not clearly erroneous;

however, evidence of participation in the
conspiracy was insufficient to warrant
judgment against the remaining eight un-
ions. 42 U.S.C.A. § 1985(3).

Appeals from the United States District
Court for the Eastern District of Texas.

Before GODBOLD, Chief Judge,
BROWN, CHARLES CLARK, RONEY,
GEE, TJOFLAT, HILL, FAY, RUBIN,
VANCE, KRAVITCH, FRANK M. JOHN-
SON, Jr., GARZA, HENDERSON, REAV-
LEY, POLITZ, HATCHETT, ANDERSON,
RANDALL, TATE, SAM D. JOHNSON,
THOMAS A. CLARK, WILLIAMS and
GARWOOD, Circuit Judges.

CHARLES CLARK, Circuit Judge:

This appeal presents important questions
concerning the scope of relief available un-
der 42 U.S.C. § 1985(3), the extent of con-

gressional power to enact a civil remedy for
wholly private infringement of cunstitution-

SCOTT v. MOORE

al rights, and the relationship between sec-
tion 1985(3) and the labor relations liws.
The district court, 461 F.Supp. 224, issued a
permanent injunction against the def¢ 1d-
ants, including numerous labor organiza-
tions. It also awarded money damages for
violations of section 1985(3), concluding tnat
the statute afforded a remedy for the kind
of private conspiracy involved here and ‘at
Congress was constitutionally empowered
to provide such a remedy. A panel of ‘his
court affirmed in part and reversed in part.
5th Cir., 640 F.2d 708. After rehearing, the
court en banc affirms the district court in
part and reverses in part.

I. THE FACTUAL BACKGROUND

This case arises out of an episode of inob
violence that occurred in the early morning
hours of January 17, 1975. The plairt'ffs
are A.A. Cross Construction Company, Inc.,
and two of its employees, Paul Scott «nd
James Matthews. The defendants include
the Sabine Area Building and Construction
Trades Council, a loose confederation of
craft and construction unions located in the
Port Arthur, Texas, area. Also name as
defendants are twenty-five of the Council's
member unions and several individual 11 -m-
bers of some of these labor unions. ‘The
individual defendants are not parties to this
appeal. The plaintiffs contend that th. de-
fendants conspired for the purpose of de-
priving them of the equal protection of the
laws and equal privileges and immunities
under the law when they planned and -xe-
cuted an attack on the Cross construction
site, assaulting workers and destroving
property.

A.A. Cross Construction Company is a
Texas corporation engaged in the builuing
and construction industry as a general con-
tractor. In May, 1974, Cross contra: ted

SCOTT v.

with the Department of the Army, United
States Corps of Engineers to erect the Alli-
gator Bayou Pumping Station and Gravity
Drainage Structure on the hurricane levee
along Taylor's Bayou near Port Arthur.
The agreement hail a contract price in ex-
cess of $8 million and called for the con-
struction of the pump station with four
pumps and a gravity drain for flood control.
In accordance with its customary practice,
the Cross Construction Company hired its
workers for the Alligator Bayou project
without regard to union affiliation, employ-
ing persons solely on the basis of its own
need for the applicant’s occupational skills.
Cross did not have a collective bargaining
agreement with any !abor union, and when
this incident occurred no union was seeking
to organize the company’s employees. In
addition, Cross often hired workers from
outside the Port Arthur community.

Cross Construction Company's hiring
practices provoked an antipathetic response
from some segments of the Port Arthur
community. In fact, on several occasions
prior to the eruption of violence on January
17, popular enmity had risen to the level of
warnings and threats directed against Cross
and its employees. Local residents had con-
fronted Cross employees at a local tavern
and pool hall frequented by them, threaten-
ing to place pickets at the construction site,
promising to make Cross “go union,” and
occasionally warning of trouble if Cross did
not cease hiring nonunion laborers. About
three months before the January 17 attack,
one of the individual defendants, Bill
Moore, approached Mr. Cross and threat-
ened that he would “hurt you bad,” saying,
“What is going to happen when that big rig
of yours down there burns up?” On anoth-
er occasion, John Wallace, financial secre-
tary and business representative for the
Carpenters Local # 610, had told Cross

MOORE A-5
that “this is union country” and that if he
persisted in using nonunion labor it was
“going to cost you a million dollars.”

. Meanwhile, during the months preceding
the January 17 violence, rumors began to
develop concerning a “citizens protest” to
be staged at the Alligator Bayou construc-
tion site. These rumors contemplated a
public demonstration to call attention to the
fact that Cross hired nonunion labor and
did not have a labor contract with any
union as well as to protest the company’s
policy of hiring employees from outside the
Port Arthur community.

There is no direct evidence to show the
organizing force behind this protest demon-
stration, but on Wednesday, January 15,
two days before the assault on the Cross
jobsite, the Sabine Area Building Trades
Council held its regular weekly meeting.
Cross Construction Company's indifference.
to prospective employees’ union status and
its lack of a union contract had long been
topics of concern at the Council’s meetings,
and they were once again discussed during
the January 15 session. In addition, the
group discussed the rumored citizens pro-
test, and some of the union representatives
in attendance informed the Council that the
demonstration had apparently been sched-
uled for the following Friday.

On Thursday, the sixteenth, Cross Con-
struction Company learned of the scheduled
protest from two union employees associat-
ed with the Alligator Bayou project. Fred
Dukes, a member of Cement Masons Local
884, worked for Cross as a cemeat finisher
on a two-day job. Earl Stevens, a member
of Plumbers Local 504, worked as a fore-
man for Cross Construction Company's me-
chanical subcontractor. Both men received
warnings from their respective union busi-
ness agents about a possible picket or dem-

A-6

onstration to be held at the Cross construc-
tion site, and both men passed that infor-
mation along to Cross. Neither Dukes nor
Stevens had heard anything about violent
or destructive conduct. Nevertheless, Cross
directed its employees to report for work at
6:00 a m. on Friday, an hour earlier than
usual, in order to avoid any confrontation
between them and the demonstrators.

On the morning of January 17, after most
of the Cross employees had arrived at work,
a crowd of nearly three hundred people
assembled at the main access road leading
to the Cross construction site. Several ve-
hicles made brief forays up the access road,
and their occupants confirmed with Cross
and Scott that they were at the Cross Con-
struction Company jobsite. The crowd be-
gan to get unruly, pushing and shoving the
remaining Cross workers as they arrived.
Nevertheless (‘ross's employees began work
as usual. Then, shortly after 7:00 that
morning, a group of four pickup trucks,
each carrying between twelve and eighteen
persons, emerged from the crowd gathered
at the access road and drove onto the job-
site. Plaintiff Scott went out to meet the
intruders ad to request them to leave the
area, but one of them approached Scott and
said, “Man, you all have got to be crazy .. .
this is a union town.” Scott told his interlo-
cutor that they did not want any trouble,
and he attempted to gather together the
other employees and to leave the jobsite.
However, before he could complete his mis-
sion, someone stepped out of the group and
struck him on the head. Suddenly, the mob
swarmed over the construction site, brutally
beating Cross and his employees with iron
rods and wooden boards, overturning and
setting fire to the trailer that served as the

tional Union of North America, Local 870; Op-

SCOTT v.

MOORE

construction site office, smashing automo-
bile and truck windshields, and vandalizing
company tools and equipment. The entire
episode lasted only a few minutes, but the
destruction was devastating. Cross and his
employees were treated for their injuries at
a local hospital, and work at the construc-
tion site did not resume for nearly three
weeks. Some of Cross’s employees, [riht-
ened by the possibility of repeated attacks
at the jobsite, refused to return to work.
In addition, the violence and vandalism de-
layed the completion of the project by
about six months, ultimately causing the
Cross Construction Company to default in
its contractual obligation to the U.S. Army
Corps of Engineers.

On January 31, 1975, plaintiffs Scott and
Matthews initiated this lawsuit against the
individual defendants. They sought and
obtained a temporary injunction restraining
the then-named defendants and “all per-
sons, firms, and associations combining or
conspiring with defendants” from further
violent, intimidating, or destructive acts
against employees at the Alligator Bayou
Pump Station project. Nearly two years
later, the plaintiffs amended their com-
plaint, adding A.A. Cross Construction
Company, Inc., as plaintiff and the Sabine
Area Building and Construction Trades
Council along with twenty-five local unions
as defendants. The district court found
that the plaintiffs had proved a conspiracy
to deprive them of the equal protection of
the laws, permanently enjoined the building
trades council and twenty-four of the un-
ions from future misconduct, and assessed
damages against eleven of the union de-
fendants.'

erative Plasters and Cement Masons Interna-
tional Association, Local 884; United Associa-
tion of Journeymen and Apprentices of the

SCOTT v.

Il. THE JURISDICTIONAL QUESTION:
INJUNCTIVE RELIEF AND THE
NORRIS-LAGUARDIA ACT

{1} The district court issued a perma-
nent injunction against the Sabine Area
Building and Construction Trades Council,
twenty-four of its member unions, and all
persons conspiring with them. The court's
injunction ordered that those parties sub-
ject to its terms

... Shall not hereafter combine, conspire,

threaten, intimidate, assault, or commit

any act of violence toward or upon any
person, property or possession of any per-
son or his family who may work upon,
travel to, deliver materials, goods, or
services to A.A. Cross Construction Ce.,

Inc., or to the site of the Alligator Bayou

Pump Station on Taylor’s Bayou near

Port Arthur, Jefferson County, Texas.
The defendants contest the district court's
power to issue such an injunction, arguing
that the Norris-LaGuardia Act deprives the
district court of jurisdiction to enjoin labor
organizations from engaging in conspirato-
rial conduct. They maintain that the un-
embellished language of the Act is suffi-
cient to show the court's usurpation of au-
thority.

We disagree. The Norris-LaGuardia Act
was passed for the purpose of limiting the
circumstances and conditions under which
injunctive action could be taken against
labor organizations in the context of a labor
dispute. The labor injunction had been an
important device used by employers to

Plumbing and Pipefitting Industry of the United
States and Canada, Local 195; United Brother-
hood of Carpenters and Joiners of America,
Local 610, United Brotherhood of Carpenters
and Joiners of America, Local 753; Internatio”.
al Brotherhood of Boilermakers, iron Shipbu..u-
ers, Blacksmiths, Forgers, and Helpers, AFL-
ClO, Local 587; International Assoviation of

MOORE A-7
counter organized labor's most effective
economic weapons, strikes, boycotts, and
picket lines. However, the Act was predi-
cated on the conviction that labor disputes
turned on issues of social and economic
policy that could not appropriately be re-
solved by the courts. The legislative solu-
tion to the problems confronting workers in
a complex industrial economy was union
organization and collective bargaining.
Since the ready issuance of labor injunc-
tions presented a serious obstacle to the
concerted activities of organized workers,
Congress decided to remove the federal ju-
diciary from laber disputes. Thus, section 5
of the Act, 29 U.S.C. § 105, limits the equi-
table power of the federal courts in the
following way:

No court of the United States shall
have jurisdiction to issue a restraining
order or temporary or permanent injunc-
tion upon the ground that any of the
persons participating or interested in a
labor dispute constitute or are engaged in
an unlawful combination or conspiracy
because of the doing in concert of the
acts enumerated in section 104 of this
title.

29 U.S.C. § 105.

{2} But the Act does not impose an un-
qualified prohibition against federal injunc-
tive relief. Section 105 merely restricts the
court’s power to enjoin concerted or conspi-
ratorial activity where the conduct to be
enjoined is an act enumerated in section

A-8 SCOTT v. MOORE

104.2 The enumerated acts include refusing mission of violent acts as a condition under
to work, joining a labor organization, pay- which an injunction may issue: Section 107
ing or withholding strike benefits from a states that no court of the United States
labor disputant, lawfully giving aid to a has jurisdiction to grant an injunction, un-
labor disputant who is prosecuting or de- jess, after a hearing, the court finds “[t}hat
fending 4 court action, truthfully and unlawful acts have been threatened and
peacefully publicizing a labor dispute, will be committed unless restrained...”
peaceably assembling to promote one's in- 29 U.S.C. § 107%(a). Thus, violence, intimi-
Lerests in a labor dispute, and agreeing with dation, threats, vandalism and combinations
or inducing other persons to do any of those or conspiracies to commit such acts may be
acts. In short, section 104 interdicts injune- restrained and enjoined even though they

however, denies lo federal courts the power Dukakis, 412 F.Supp. 580 (D.Mass.1976);
to enjoin violence, breaches of the peace, OF Potomac Electric Power Co. v. Congress of
Racial Equality, 209 F.Supp. 559 (D.D.C.
committed by persons seeking to forward or 1962) The Norris-LaGuardia Act does not
interested in sume labor-related objective. divest the district court of jurisdiction to
In fact, the Norris-LaGuardia Act itself enjoin the kind of violent conduct present
recognizes by negation the threatened com- in this case.’

2. Section 104 provides as follows: whether by advertising, speaking, patrolling.
No court of the United States shail have or by any other method not involving fraud
jurisdiction to issue any restraining order or or violence,
temporary or permanent injunction in any () Assembling peaceably to act or to or
case involving or growing out of any labor ganize to act in promotion of their interests
dispute to prohibit any person or persons in a labor dispute,
participating or interested in such dispute (as (g) Advising or notifying any person of an
these terms are herein defined) from doing, intention to do any of the acts heretofore
whether singly or in concert, any of the fol- specified;
lowing acts. (h) Agreeing with other persons to do or
(a) Ceasing or refusing to perform any not to do any of the acts heretofore specified,
work or to remain in any relation of employ- and
ment, (i) Advising, urging. or otherwise causing
(>) Becoming or remaining a member of of inducing without fraud or violence the acts
any labor organizat.on or of any employer heretofore specified, regardiess of any such
Orgamization, rega: 53 of any such under- undertaking or promise as is described in
taking or promise as is described in section section 103 of this title.
“ie - 29 U.S.C. § 104.

Paying or giving or withholding

from, any person participating or interested 3. Even where jurisdiction to grant injunctive
in such labor dispute, any strike or unem- rehef is authonzed, the Norris-LaGuardia Act
ployment benefits or insurance, or other imposes sinct procedural requirements upon
moncys or things of value, the court. See 29 U.S.C. §§ 107-108, New
(d) By all lawful means aiding any person Negro Alliance v. Sanitary Grocery Co., 303
participaung or interested in any labor dis- U.S. 552, 561-62, 58 S.Ct. 703, 707, 62 L.Ed.
pute who is being proceeded against in, or 1s 1012, 1016 (1938). Section 107 provides that
prosecuting. any action or suit in any court no federal court shall have jumsdiction to issue
of the Unsed States or of any State, a “permanent injunction in any case involving

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A-9

SCOTT v. MOORE

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A-10

the statute, recent judicial interpretations
given to related civil mghts provisions, the
complementary relationship of the various
civil rights statutes, and che legislative his-
tory surrounding section 1985(3) all “point
unwaveringly to § 1985(3)'s coverage of
private conspiracies.” 403 U.S. at 101, 91
S.Ct. at 1798, 29 L.Ed. 2d at 347.

While eliminating the state action re-
quirement, the Griffin court recognized
that the statute, if applied too broadly,
could displace many areas of tort law that
have traditionally been reserved to the
States and thereby violate constitutionally
based principles of federalism. “That the
statute was meant to reach private action
does not ... mean that it was intended to
apply to all tortious, conspiratorial interfer-
ences with the rights of others.” 403 US.
at 101, 91 S.Ct. at 1798, 29 L.Ed.2d at 347.
The Court delineated the reach of the stat-

application to deprivations of equal protec-
tion or equal privileges and immunities, to
require the ere be some “ciass-based, in-
vidiously discriminatory animus behind the
conspirators’ action.” 403 US. at 102, 91
S.Ct. at 1798. Griffin thus made clear that
the limiting principle adopted by Congress
is satisfied by a showing of class-based ani-
mus. The Court then noted four elements
necessary for a plaintiff to establish a
1985(3) cause of action:

(1) the defendants must conspire or go in
disguise on the highway or premises of
another;

(2) for the purpuse of depriving, either
directly or indirectly, any person or class
of persons of the equal protection of the
laws, or of equal privileges and immuni-
ues under the laws, and

SCOTT v. MOORE

(3) one or more of the conspirators must
commit some act in furtherance of the
conspiracy; whereby
(4) another is either (a) injured in his
person or property or (b) deprived of hav-
ing and exercising any right or privilege
of a citizen of the United States.
See id. at 102-08, 91 S.Ct. at 1790, @
L.Ed.2d at 348. Subsequently, this court

(5) that the conspirators’ conduct must be
unlawful independent of the section
19853) violation.

See McLellan v. Mississippi Power & Light
Co., 545 F.2d 919 (5th Cir. 1977) (en bane).

Amendment and the constitutional mght to

1799-1800, 29 LEd2d at 349-50. The

SCOTT v. MOORE

establish a conspiracy among some of the
Council's constituent unions and individual
defendants. Secund, proof that plaintiffs
were assaulted, beaten, and threatened and
that property was destroyed establishes the
requisite “act in furtherance” of the con-
spiracy. Third, these acts are indisputably
illegai apart from § 1983(3) as required by
McLellan. Fourth, there is evidence of per-
sonal injuries, property damage, and eco-
nomic loss. The only element requiring
analysis is the requirement that the conspir-
acy be for the purpose of depriving « person
of the equal protection of the laws or equal
privileges and immunities under the laws.
This requiren-ent, in turn, has two compo-
nents: (1) the violation of some protected
right and (2) a class-based, invidiwusly dis-
criminatory animus motivating the viola-
tion.

1. Violation of a Protected Right

In Griffin, the Supreme Court stated that
a 1985(3) conspiracy “must aim at a depri-
vation of the equal enjoyment of rights
secured by the law to all.” 403 U.S. at 102,
91 S.Ct. at 1798, 29 L.Ed.2d at 348. The
plaintiffs in the case at bar contend that
the object of the defendants’ conspiracy
was to deprive them of their First Amend-
ment right to associate with their fellow
nonunion employees. They argue that cur-
tailment of their interests secured by the
First Amendment is a deprivation of equal
protection of the laws within the meaning
of section 19853) as interpreted by Griffin.

{4,5} The Ku Klux Klan Act was origi-
nally entitled, “An Act to Enforce the Pro-
visions of the Fourteenth Amendment to
the Constitution of the United States, and
for Other Purposes.” 17 Stat. 13 (1871).
Te guaranties afforded by the First
Amendment are protected by the due proc-

A-il

ess clause of the Fourteenth Amendment.
Ey Williams v. Rhodes, 393 U.S. 23, 30-31,
89 S.Ct. 5, 10, 21 L.Ed.2d 24, 31 (1968); New
York Times v. Sullivan, 376 U.S. 254, 276-
TT, 84 S.Ct. 710, 724, 11 L.Ed.2d 686, 709
(1964); Cantwell v. Connecticut, 310 US.
296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213,
1217 (1940); De Jonge v. Oregon, 299 US.
353, 364, 57 S.Ct. 255, 260, 81 L.Ed. 278, 283
(1937). Moreover, the right of free associa-
tion is closely aligned with the right of free

Bar
sy 1, 6, 91 S.Ct. 702, 705, 27 L.Bd.2d 639,
646 (1971); . .
Patterson, 357 U.S. 449,
1171-72, 2 L.Ed.2d 1488, 1499 (1958).

3
2
“2
=
B

remedy does exist, the plaintiff's activities
did not rise to the level of a constitutionally

(6] In arguing that section 1985(3) does
not protect against private infringement on
First Amendment freedoms, the defendants
Fourteenth Amendment “erects no shield
against merely private conduct, however
discriminatory or wrongful.” Shelley v.
Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842,
92 L.Ed. 1161, 1180 (1948). To support their
construction of section 1985(3) the defend-
ants rely upon several decisions of the Sev-
enth Circuit. In Dombrowski v. Dowling,
459 F.2d 190 (7th Cw. 1972), the court held

A-12

that section 1985(3) does not afford protec-
tion against private deprivations of rights
protected under the Fourteenth Amend-
ment absent some kind of state involve-
ment. Emphasizing the historical connec-
tion between sections 1983 and 1985(3),
Dowling decided that it is necessary to iden-
tify the interests which Congress intended
to protect from unequal treatment as well
as the kinds of conduct which it meant to
proscribe.
The breadth of the statute's coverage is
yet to be determined, but three categories
of protected rights have been plainly
identified. Griffin gives express recogni-
tion to a biack citizen's Thirteenth
Amendment rights and to his federal
right to travel interstate; the title of the
statute expressly identifies the third cate-
gory, namely, rights protected by the
Fourteenth Amendment. We think the
§ 1983 cases make it clear that in this
third category a “state involvement” re-
‘quirement must survive Griffin.
459 F.2d at 195 (footnotes omitted)* The
Seventh Circuit subsequently extended the
Dowling rationale in Murphy v. Mount Car-
mel High School, 543 F.2d 1189 (7th Cir.
1976), expressly holding that section 1985(3)
provides no remedy for purely private im-
pairment of First Amendment speech and
associational freedoms. Accord Bellamy v.
Mason's Stores, Inc., 08 F.2d 504 (4th Cir.
1974).

Te explain how private conspirators could
deprive a person of rights which are only
protected against state interference, Justice
Stevens, the author of Dowling, later sug-
gested that “if private persons take conspi-

S$. Dowling recognizes that there is no statutory
requirement of state participation of support
for the conduct of the conspirators, ie, that
there 1s no requirement that the defendants act
under color of state law. However, where one
suffers a deprivauon of a federally created

SCOTT v. MOORE

ratorial action that prevents or hinders the
constituted authorities of any State from
giving or securing equal treatment, the pri-
vate persons would cause those authurities
to violate the Fourteenth Amendment.”
See Great American Federal Savings &
Loan Association v. Novotny, 442 U.S. 366,
384, 99 S.Ct. 2345, 2355, 60 L.Ed.2d 957
(1979) (Stevens, J. concurring).

Our problem with this line of analysis
arises from the Supreme Court's express
reasoning in Griffin. Because most basic
constituuional provisions impose limitations
on the power of government to regulate
private conduct, the rights these limitations
confer on individuals are typically rights
against the state. The Griffin Court ac-
knowledged the conceptual difficulties asso-
ciated with private deprivations of constitu-
tional rights. The Court, however, con-
strued section 1985(3) to reach both public
and private constitutional wrongs.

A century of Fourteenth Amendment
adjudication has _.. made it understand-
ably difficult to conceive of what might
constitute a deprivation of the equal pro-
tection of the laws by private persons.
Yet there is nothing inherent in the
phrase that requires the action working
the deprivation to come from the State.
Indeed, the failure to mention any such
requisite can be viewed as an important
indication of congressional intent to
speak in § 19853) of al/ deprivations of
“equal protection of the laws” and “equal
privileges and immunities under the
laws,” whatever their source.

4u3 U.S. at 97, 91 S.Ct. at 1796, 29 L.Ed 2d
at 345 (citation omitted and some emphasis

SCOTT v. MOORE

supplied). The Court also said: “It is thus
evident that all indicators—text, companion
provisions, and legislative history—point
unwaveringly to § 1985(3)'s coverage of
private conspiracies.” Id. at 101, 91 S.Ct. at
1798, 29 L.bal2d at 347° These clear, deci-
sional words in Griffin simply will not per-
mit us tw speculate that section 1985(3)
might not afford a remedy for private con-
spiracies.

Griffin even considered and rejected the
very explanation of section 19853) which
wus later suggested in the Novotny concur-
rence. In concluding that the first part of
section 19453) reached all deprivations of
the equal protection of the law, “whatever
their source,” Griffin considered the various
forms which a state action limitation might
take but rejected the idea that Congress
had intended to impose any state action
limitation on section 1983). Specifically,
the Court rejected the notion that a private
conspiracy had w hinder state officials in
their obligation to give equal protection be-
cause it found that this type of conduct was
explicitly dealt with elsewhere in the Act.
See Griffin v. Breckenridge, 403 US. at
98-99, 91 S.Ct. at 1796-97.

[7] We are not unmindful of the Su-
preme Court's statement in Novotny, that
section 1985(3) “provides no substantive
rights itself; it merely provides a remedy
for vivlation of the rights it designates.”
442 US. at 372, 99 S.Ct. at 2349. We also
acknowledge that some commentators have
read this statement as an implicit endorse-
ment of the Seventh Circuit's position in
Dowling. See Note, Private Conspiracies to
Violate Civil Rights, 61 B.U.L.Rev. 1007

6. Technically, of course, this language is dicta.
Griffin grounded its decison on the rights se-
cured to blah cuizens under the Thirteenth
Amendment and the nght to interstate travel,
both of which operate as limits on individual

A-13

(1981). However, so long as Griffin re-
mains viable, we are bound by its determi-
nation that section 1945(3) reaches all depri-
vations of equal protection, whatever their
source.

The second prung of defendants’ argu-
ment on this point asserts that even if
section 19853) protects first amendment
rights from private infringement, the plain-
tiffs’ actions in this case—merely working
for a nonunion emplever—do not qualify
for constitutional protection. We disagree.

The Supreme Court has long recognized
that association for the purpose of advanc-
ing economic, as well as political or reli-
gious, interests falls within the protection
of the First Amendment. See Brotherhood
of Railroad Trainmen v. Virginia, 377 U.S.
1, 8, 84 S.Ct. 1113, 1117-18, 12 L.Ed.2d 89
(1964); Thomas v. Collins, U.S. 516, 531,
65 S.Ct. 315, 323, 89 L.Ed. 430 (1945). In
Abood v. Detroit Board of Education, 431
US. 208, 97 S.Ct. 1782, 52 L.Ed.2d 261

A-14

cause “such interference [with that right]
as exists is constitutionally justified by the
leyislative assessment of the important con-
tribution of the union shop to the system of
labor relations established by Congress.”
Id. Though it found guch infringement jus-
tified, Aboud thus recognized that requiring
financial support could infringe first
amendment rights.

The conspiracy in the case at bar sought
to deny completely the plaintiff employees’
right not to associate. The district court
found that several truckloads of men as-
saulted the plaintiffs and “threatened to
continue violent actions if the nonunion
workers did not leave the area or concede to
union policies and principles.” The conspir-
acy was intended to deny the nonunion
employees their right not Wo associate either
by driving them out of the county or by
coercing them to unionism through violence.
The defendants sought not merely w foree
plaintiffs Wo yive financial support to a un-
ion (an act which Abood recognized could
interfere with «a person's freedom not to
associate), but also to force Cross's employ-
ees to become union members or leave an
area which had been staked out as “union
country.” The purpose of the conspiracy
was to deprive the plaintiffs of a protecte|
right.”

2. Discriminatory, Class-Based Animus

While Griffin taade clear that Congress
intended to reach « denial of equal protec-
Lion because of reve, it left open the issue of
whether section 19853) prohibited other

7. Because of our disposition of the case, it is

SCOTT v.

MOORE

class-based discrimination. See 403 U.S. at
102 n.9, 91 S.Ct. 1798 n.9. We find it does
and that plaintiffs come within its protec-
tion.

In Kimble v. D. J. MeDuffy, tne, 648
F.2d 340 (5th Cir. 1981) (en banc), we
recently considered what other types of
class-based animus section 19853) might
reach. We found that two types of clases
come within the statute's protection.
we recognized that section 19853) cow»
classes “having common characteristics «,
an inherent nature”—ie., those kinds of
classes offered special protection under the
equal protection clause. id. at 347. We
also recognized that:

{t]he class-based animus required by the

Supreme Court in Griffin and now reas-

serted by this court is not identical with

the class-based distinctions required to
support an action under the equal protec-
tion clause .... For example, section

1985 was certainly intended to cover con-

tions based on affiliation with a major

political party are not among those tradi-
tionally subject to special serutiny under
the Fourteenth Amendment. What Grif-
fin stands for, and what we now hold, is
that Section 1985 was intended lo encom-
pass only those conspiracies motivated by
animus against the kinds of classes Con-

(cress was trying lo protect when it enact-

ed the Ku Kiux Klan Act.
Id. at 347 n9.

Kimble is consistent with the decisions of
the other circuits. Decisions which have

cide whether federal statutory nghts are pro-

tected by § 19653). See Novotny v. Great

American Federal Savings & Loan Ass'n, 564

F.2d 1235 (3d Cir. 1978), rev'd, 442 U.S. 366, 99

S.Ct. 2345, 60 L.Ed.2d 957 (1979) (violations of

Title VII). Cf McLellan, 545 F.2¢ 919 (Sth Cir.

1977) (ght to file bankruptcy petition not pro-
tected.)

cers

SCOTT v. MOORE

accorded protection to nonracial classes
have generally fallen into the two catego-
ries identified by Kimble. The first catego-
ry consists of those classes afforded special
protection under the equal protection
clause. See, eg., Ward v. Connor, 657 F.2d
45 (4th Cir. 1981), cert. denied, —— US.
——, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982)
(members of Unification Church); Life In-
surance Company of North America v. Rei-
chardt, 591 F.2d 499 (9th Cir. 1979) (wom-
en); Marlowe v. Fisher Body, 489 F.2d 1057
(6th Cir. 1973) (Jews); Baer v. Baer, 450
F.Supp. 481 (N.D.Cal.1978) (members of the
Unification Church); Mandelkorn v. Pat-
rick, 359 F.Supp. 692 (D.D.C.1973) (Children
of God). The second is made up of classes
whose members are discriminated against
because of their political beliefs or associa-
tions. See, eg., Means v. Wilson, 522 F.2d
833 (8th Cir. 1975), cert. denied, 424 U.S.
958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976)
(supporters of a particular political candi-
date); Glasson v. City of Louisville, 518
F.2d 899 (6th Cir.), cert. denied, 423 U.S.
930, 96 S.Ct. 280, 46 L.Ed.2d 258 (1975)
(political demonstrators); Smith v. Cherry,
489 F.2d 1098 (7th Cir. 1973), cert. denied,
417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214
(1974) (voters for a sham political candi-
date); Cameron v. Brock, 473 F.2d 608 (6th
Cir. 1973) (supporters of incumbent sheriff);
Action v. Gannon, 450 F.2d 1227 (8th Cir.
1971) (worshippers at a predominantly
white Catholic church disrupted by black
civil right. protesters).

Plaintiffs are not a class normally afford-
ed special protection under the equal pro-
tection clause merely because they wish to
work nonunion. They are entitled to sec-
tion 1985(3) protection only if they are per-
sons within the second category of protect-
ed classes noted by Kimble, “the kind[ } of
class Congress was trying to protect when

A-15

it enacted the Ku Klux Klan Act.” 648
F.2d at 347 n9. In considering whether
plaintiffs qualify, we must from the outset
be mindful that the conspiracy in this case
was motivated by a prounion animus so
strong that it staked its claim not merely
ideologically, but geographically. The non-
union plaintiffs were repeatedly told that
they were in union country and would be
punished for choosing to work there non-
union.

[8] Not every conceivable class of per-
sons is covered by section 19853). Mem-
bers of the plaintiff class must share some
common characteristic beyond simply being
victims of the defendant's conspiratorial
conduct. See, eg., Askew v. Bloemker, 548
F.2d 673 (7th Cir. 1976) (homeowners raided
by drug enforcement agents); Harrison v.
Brooks, 519 F.2d 1358 (ist Cir. 1975) (prop-
erty owners allegedly injured by city coun-
cil rezoning efforts). The class cannot be so
large and amorphous that its members are
virtually indistinguishable from the vast
majority of the populace. See, e.g., Blevins
v. Ford, 572 F.2d 1336 (9th Cir. 1978) (non-
lawyers). Even some clearly defined and
easily identifiable groups have been denied
protected status under the statute. See,
e.g., DeSantis v. Pacific Tel. & Tel. Co., 60°.
F.2d 327 (9th Cir. 1979) (homosexuals);
Carchman v. Korman Corp., 594 F.2d 354
(3d Cir. 1979), cert. denied, 444 U.S. 898, 100
S.Ct. 205, 62 L.Ed.2d 133 (1979) (tenant
organizers); Lessman v. McCormick, 591
F.2d 605 (10th Cir. 1979) (debtors); McLel-
lan v. Mississippi Power & Light Co., 545
F.2d 919 (Sth Cir. 1977) (en banc) (persons
who file voluntary bankruptcy petitions);
Bricker v. Crane, 468 F.2d 1228 (lst Cir.
1972), cert. denied, 410 U.S. 930, 93 S.Ct.
1368, 35 L.Ed.2d 592 (1973) (physicians who
testify in malpractice suits).

A-16

In the alsence of Supreme Court guid-
ance as Ww the kinds of classes protected by
section 19853) or a method by which pro-
tected classes should be identified, we turn
to our own en bane decision in McLellan to
provide our gauge. In McLellan, we held
that the statute dues not cover persons who
file voluntary petitions in bankrupicy. The
decision was based on three factors. First,
the legislative history of the Ku Klux Klan
Act contains no evidence of congressional
concern about discrimination against per-
sons who become insolvent. Second, while
the protection afforded by the civil rights
acts is not static, it would be inappropriate
to enlarge the group of protected classes to
include bankrupts when Congress had spe-
cifically declined to prohibit discrimination
against them. Third, including bankrupts
within the ambit of section 19853) would
be unwarranted in light of the Supreme
Court's refusal to characterize the right to
file a bankruptcy petition as a fundamental
right. 545 F.2d at 932-33. While the pres-
ence of the first factor indicates that a
particular class should come under the aegis
of section 1985(3), the last two factors act
more as checks on unwarranted expansion
of section 1985(3). Their presence does not
suggest so much that a particular class
should be protected as their absence indi-
cates that coverage would be inappropriate.

{9} Applying the McLellan factors to
our case today, we find that the plaintiffs
constitute a class for 1985(3) purposes.*

8. Our reliance upon the factors deemed rele-
vant in McLellan does not necessarily imply
that they are the only relevant considerations.
Conceivably, other factors may be regarded as
sufficsent to include or to exclude other classes
from § 1985(3) coverage.

9. See, eg. Cong. Globe, 42d Cong., ist Sess.
252 (remarks of Sen. Morton) (“{t}he purpose
{of the Kian] is by these innumerable and
nameless crimes to drive those who are sup-

SCOTT v. MOORE

The labor union movement in America was
yet to be born when the 42d Congress was
in session, so it could not have been specifi-
cally concerned with discrimination perpe-
trated against nonunion laborers. How-
ever, the congressional debates evince a
hearty regard for persons who are victimiz-
ed because of their political beliefs and as-
sociations. Today's Ku Kiux Klan pro-
claims itself to be a racist organization.
But in 1871 it was regarded primarily as a
political one. The motives and ambitions of
the Klan disturbed the Republicans in the
42d Congress because they feared that its
activities would defeat the policies of Re-
construction and deprive the newly emanci-
pated blacks of rights secured to them un-
der the recent amendments to the Constitu-
tion. Senator John Sherman of Ohio voiced
this concern after he read aloud from a
copy of the Kian’s secret oath,
showing that here is a political organiza-
tion, with political ends, political aims; it
shows that the object and intent of that
political organization is to prevent large
masses of the people of the southern
States from enjoying a right which has
been guaranteed to them by the Constitu-
tion of our country.

Cong. Globe, 42d Cong., Ist Sess. 153 (1971).
The Klan’s political objective formed a re-
current theme in the Senate debates.®
The apprehension of Republican senators
over the Klan’s scheme of terrorizing citi-
porting the Republican party to abandon their

political faith or to flee the State.”), id. at 504
(remarks of Sen. Pratt) (the primary purpose of

|

|
|
|

SCOTT v. MOORE

zens for their political views and of pre-
venting voters from cacrcising their fran-
chise also echoed throughout the debates
conducted in the House. Representative
Ellis Roberts of New York expressed this
concern in the following terms:
But one rule never fails: the victims
whose property is destroyed, whose per-
sons are mutilated, whose lives are sacri-
ficed, are always Republicans. They may
be black or white; they include those who
wore the blue and those who wore the
gray; newcomers and life-long residents,
but only Republicans. Stain the door lin-
tels with the mark of opposition to recon-
struction and of hostility to the national
Administration and the destroying angel
passes by. Omit that sign and the torch
may kindle the roof that covers women
and children. . Such uniformity of re-
sult can come only from design. Republi-
cans only are beaten and mutilated and
murdered, because the blows are aimed at
Republicans only.
Cong. Globe, 42d Cong., Ist Sess. 412-13
(1871). Other Republican congressmen ex-

10. See, e.g. Cong. Globe, 42d Cong., Ist Sess.
72 (remarks of Rep. Blair) (the Kilansmen
“murder for a difference in political opinions”);
id. at 333 (remarks of Rep. Hoar) (the Kian is a
“secret political conspiracy”), id at 391 (re-
marks of Rep. Elliott) (“the design of the Ku
Kijux is politicai™), id. at 488 (remarks of Rep.
Lansing) (“the Ku Klux in their comes are
inspired by political zeal’’).

Il. The plainuffs argue that Congress also in-
tended to extend protection to workers. They
note particularly Senator Freylinghausen’s con-
corn for the rights of northern laborers migrat-

A-17

pressed similar views.” See generally
Comment, A Construction of Section 1985(c)
in Light of its Original Purpose, 46 U.Chi.L.
Rev. 402, 407-420 (1979).

These attacks on Republicans prompted
congressional concern because they were
viewed as more than isolated or chance
occurrences. Congress saw them as part of
&@ pervasive campaign to prevent Republi-
cans from establishing the policies of Re-
construction in an area of the nation—the
South. See Avins, The Ku Klux Klan Act
of 1871, 11 St. Louis U.L.J. 331, 376 (1967).
The Congressmen consistently noted the
pervasive regional hostility toward the Re-
publicans as a reason for extending federal
protection in section 19853). See, eg.
Cong. Globe, 42d Cong., Ist Sess. 333-34
(1871) (remarks of Rep. Hoar); id. at 412-
13 (remarks of Rep. Roberts.) ™

Although Congress did nut express a spe-
cific intent to protect nonunion employees
in enacting the Ku Klux Klan Act, the
legislative history demonstrates that the
nonunion employees in this case comprised

New Jersey may put his chisels or his trowels
in his carpet-bag, and go to any part of this
land and say, “Here | will stay in despite of
the holy horror of those who cry out,” “Ad-
venturer!” “Scalawag!” “Carpet-bagger!”
Cong. Globe, 42d Cong., Ist Sess. 500 (1871).
Although this, and other remarks noted by the
plaintiffs, do express Congress’ intent to pro-
tect northern laborers, we discount their impor-
tance to the case at bar for two reasons. First,
because these remarks occur only sporadically
throughout the legislative history, they do not
appear to reflect a major concern of the 42d
Congress. Second, the hostility directed to-
ward the carpetbaggers appears to have ansen
because of the carpetbaggers’ association with
the policies of Reconstruction, not because of
any economic association. Their status as
workers appears to have been merely inciden-
tal to the hostility they experienced and to
Congress’ concern.

A-18

the kind of class Congress intended to pro-
tect. The debates over the need for pro-
tecting the Republicans in the South reveal
two class characteristics which prompted
Congress to extend protection in section
1983). First, the legislative history re-
flects a pervasive concern for people discri-
minated against because of their polit al
associations. Second, Congress’ concern
was prompted by the tenuous status of Re-
publicans in this geographic region. The
Republicans’ attempt wo establish an ex-
tended new order had met with pervasive
regional hostility. It was this ryional hos-
tility which Congress sought to counterbal-
ance by extending federal protection in sec-
tion 1983). Although regional hostility is
net an intrinsic class characteristic, those
who would exercise a false territorial sover-
eignty by fomenting hostility against per-
sons antagonistic to their aims create a
class in need of federal protection of pre-
cisely the sort Congress intended W protect.

In this case, the plaintiffs were attacked
because of their economic, rather than their
political, association. However, an animus
directed against nonunion association is
closely akin to animus directed against po-
litical association. Second, the position of
these nonunion employees in Jefferson
County, Texas, is markedly similar to that
of the Republicans in the South. The pres-
ence of these nonunion employees in “union
country,” no less than the presence of the
Republicans in the previously Democratic
stronghold, ignited a pervasive regional hos-
tility. It was this regional hostility which
classified Republicans as protected. In this
case, the same hostility toward nonunion
employees classifies them as the kind of
persons Congress intended the Ku Klux
Klan Act to protect.

Similarly, acknowledging that the scope
of the statute includes nonunion workers

SCOTT v.

MOORE

who are attacked for their choice to associ-
ate with other nonunion workers, thereby
enabling an employer to offer significant
work to the class, is appropriate in light of
subsequently enacted federa! legislation.
While Congress specifically refused to pro-
hibit discrimination against bankrupts by
legislation, it expressed a desire to protect
laborers who opt not to affiliate themselves
with a labor organization. Section 7 of the
original Wagner Act provided
{e)mployees shall have the right of self-
organization, to form, join, or assist labor
organizations, to bargain collectively
through representatives of their own
choosing, and to engage in concerted ac-
tivities, for the purpose of collective bar-
gaining or other mutual aid or protection.
Wagner Act, § 7, 49 Stat. 452 (1935).

At the time Congress passed the original
Act, it rejected the argument that parity
required granting protection against cver-
cive tactics of labor organizations as well as
against those committed by employers. See
S.Rep. 573, 74th Cong., Ist Sess. 16 (1935).
However, significant change was not long
in coming. The 1947 Taft-Hartley amend-
ments to the National Labor Relations Act
put unfair labor practices by labor organi-
zations in the list of condemned actions.
Under the Taft-Hartley Act employees re-
tained the right to form, join, or assist labor
organizations. However, section 7 of the
original Act was revised to also protect “the
right to refrain from any or all such activi-
ties.” Taft-Hartley Act, § 101, 61 Stat. 140
(1947), currently codified at 29 USC.
§ 157. Section &(b\1) now declares it to be
an unfair labor practice for a labor organi-
zation or its agents to restrain or coerce
employees in the exercise of the rights
guaranteed by section 7. 2 USC.
§ 15&(bX1). By these actions Congress has

SCOTT v. MOORE

underscored the importance of the right of
free association in the labor relations con-
text and guaranteed the right to free and
untrammeled choice to associate or not to
associate with a labor organization. This
manifestation of congressional concern for
those in plaintiffs’ class makes their protec-
tion by section 1945(3) particularly appro-
priate.

Finally, McLellan regarded the Supreme
Court's refusal to call the right to file a
bankruptcy petition a fundamental right as
relevant to its own determination that
bankrupts are not protected by section
1985(3). By contrast, the Supreme Court
has characterized the right of free associa-
tion as “a right which, like free speech, lies
at the foundation of a free society.” Shel-
ton v. Tucker, 364 U.S. 479, 486, 81 S.Ct.
247, 251, 5 L.Ed.2d 231, 236 (1960). Our
legal system honors the freedom of the
individual to associate as he chooses because
that freedom “tends to produce the diversi-
ty of opinion that oils the machinery of
democratic government and insures peace-
ful, orderly change.” Gilmore v. City of
Montgomery, 417 U.S. 556, 577, 9. S.Ct.
2416, 2427, 41 L.Ed.2d 304, 321 (1974). The
importance of the freedom of association
has led the court w call it one of the
“indispensable liberties,” NAACP v. Ala-
bama ex rel. Patterson, 357 U.S. 449, 461, 78
S.Ct. 1163, 1171, 2 L.Ed.2d 1488, 1499 (1958),
which ranks “among our most precious
freedoms.” Williams v. Rhodes, 393 U.S.
23, 30, 89 S.Ct. 5, 10, 21 L.Ed2d 24, 31
(1968). The right of association is funda-
mental in our constitutional scheme of val-
ues. Thus, the difference in importance
assigned to the right to file a bankruptcy
petition and the right of the individual to
freely associate with others of his own
choosing favors protecting these plaintiffs.

A-19

Although we find that Congress intended
to classify these nonunion employees as en-
titled to use section 19853) that finding
does not resolve the question of whether
their employer, which is not a member of
the class, can assert a claim under this
section. Section 1985(3) provides that “in
any case of 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, ... the party so injured ... may
have an action for the recovery of such
damages, occasioned by such injury...”
The language of section 1985(3) specifically
provides a remedy for any person injured
by an act taken in furtherance of the con-
spiracy. See Great American Federal Sav-
ings & Loan Association v. Novotny, 442
U.S. 366, 390-91, 99 S.Ct. 2345, 2358, 60
L.Ed.2d 957 (1979) (White, J., dissenting)
(reaching an issue not addressed by the
majority). But see Canlis v. San Joaquin
Sheriff's Posse Comitatus, 641 F.2d 711, 712
(9th Cir. 1981).

The district court found that Cross Con-
struction had been injured by the attack on
its Alligator Bayou worksite. There is no
dispute as to the fact of the corporation's
injury or that it resulted from the defend-
ants’ acts in furtherance of the conspiracy.
The plain language of the statute grants
the employer a right to recover for these
injuries. Cf. Sullivan v. Little Hunting
Park, Inc., 396 U.S. 229, 90 S.Ct. 400, 24
L.Ed.2d 386 (1969).

The plaintiff, Cross Construction Compa-
ny, was denied the equal protection of law
because, in this “union country” area, it
attempted to construct a government
project without entering into a collective
bargaining agreement to hire nonunion
workers. The plaintiff class of Cross em-

A-20

ployees were denied equal protection be-
cause they dared wo try w work nonunion in
this place. Both employer and employee
plaintiffs were attacked and beaten and
their property was destroyed because union
adherents put themselves above the law
and used brute force to enforce their terri-
torial claim. The actions of plaintiffs and
the reaction of defendants joined tw define
the class and designate the persons who
could claim the protection of section
1983). The plaintiff employees form a
class of nonunion workers who have a right
not to belong to a union and the plaintiff
employer is a person who has been injured
by a class-based invidiously discriminatory
animus directed toward its workers and it.

[10-12] Our decision does not hold or
imply that every union-nonunion controver-
sy can create a section 1985(3) cause of
action. Neither does it hold or imply that
every instance of violence arising in the
context of a dispute about employment will

12. Novotny held that a mght created by Title
VIl could not be asserted under section 19853).
To do so would allow a litigant to bypass the
Statutory plan, particularly the admunistrative
process, created by Congress. See 442 U.S. at
375 70, 99 S.Ct. at 2350 51. Because the liti-
gants here have not attempted to assert a nght
created by the National Labor Relations Act,
the concerns expressed in Novotny are inappo-
site to this case.

13. it should be observed that the National La-
bor Relations Board has a long-established poli-
cy against awarding monetary damages for
physical inyury and property damage caused by
strike of picket line violence for which the
umon is held respon uble. See Union de Tron-
quistas Local YO! «lt .«k Joint Pupe & Co.), 202
N.L.R.B. 399 (1973), K. Gorman, Basic Text on
Labor Law 217 (1976); D. McDowell & K.
Huhn, NLRB Remedies for Unfair Labor Prac-
tices 99 100 (1976), The Board's refusal to
give damage awards 1s predicated in part upon
its view that such awards would unduly inter-
fere with the policy of the National Labor Rela-
twns Act to protect concerted acuvities and

SCOTT v.

MOORE

necessarily do so. Powerful limitations ex-
ist Lo restrict an overly broad applicatior. of
the statute. See generally McLellan, 545
F.2d at 940-41 (Godbold, J., dissentirz).
Section 19853) cannot be invoked to disrupt
the operation of a carefully integrated stut-
utory scheme. See Great American Federal
Savings & Loan Ass'n v. Novotny, 442 US.
366, 99 S.Ct. 2345, 60 L.Ed. 2d 957 (1974).@
Neither can a section 19853) cause of ac-
tion be predicated upon an unfair le wr
practice, without more. Cf. United States
v. DeLaurentis, 491 F.2d 208 (2d Cir. 1974)
(holding an unfair labor practice not coyni-
zable under 18 U.S.C. § 241, the criminal
analogue to section 1985(3)). Neither in-
ionism nor nonunionism suffices to create a
covered class. But where, as here, ther> is
no campaign to organize employees and
force or violence is used to stake out one
group's territorial claim and to deprive « .h-
er workers and their employer of the right
to freely associate with one another, a -ve-
tion 1985(3) action will lie.

that other remedies against union violenc: are
sufficient deterrent. Union de Tronquistas, 202
N.LR.B. at 400. Its practice is also growrded
in concern for the proper institutional role . be
played by the Board. See District 1199, Na-
tional Union of Hospital and Health Care -m-
ployees (Frances Scherver Home and Hos, :.al),
345 N.L.R.B. 105 (1979) (Board ts not equipped
to handle personal injury claims), Uniwr Na-
cional de Trabajadores, 219 N.L_R.B. 157 (75)
(awards are punitive and, therefore, not part of
the Board's statutory function).

Whatever the basis for the Board's refusal to
order compensation for injuries suffered during
strike or picket line violence, our decisior hat
section 1945(3) affords a remedy in this case
does not offend that policy. In this case, no
lawful concerted activity was taking | ace
when the Cross construction site was attacked.
There was no organizational campaign, no un-
ion demand for recognitiwn, no informa mal
picket, and no collective bargaining im
progress. in such circumstances, a civil reme-
dy for damages presents no danger of thy, art-

SCOTT v. MOORE

IV. THE CONSTITUTIONAL QUES-
TION: THE SOURCE OF CON-
GRESSIONAL POWER

[13] Having determined that section
1983) was intentled to provide a civil rem-
edy for the kind of conspiracy involved
here, we must respond to defendants’ argu-
ment that Congress lacks the constitutional
power to enact legislation of this breadth.
The plaintiffs maintain that section 5 of the
Fourteenth Amendment authorizes Con-
gress to provide a civil remedy for this
private conspiracy. On the particular facts
before us, we hold that the Commerce
Clause empowers Congress to reach defend-
ants’ conduct and do not reach the Four-
teenth Amendment issue.

Griffin emphasized that it was unneces-
sary Ww test the constitutionality of section
1985(3) in all conceivable applications in or-
der to sustain its facial constitutionality and
its application to the facts of any particular
case. 403 U.S. at 105, 91 S.Ct. at 1799, 29
L.Ed.2d at 350. Griffin also makes clear
that section 1985(3) is not unconstitutional
merely because it reaches wholly private
conspiracies. Griffin does, however, indi-
cate that a source of congressional power
must be identified to warrant application of
the statute in each case.

The Griffin court concluded that the
Thirteenth Amendment and the constitu-
tional right to interstate travel authorized
Congress to reach the private conspiracy
alleged there. But the court concluded its
opinion, stauing

In identifying these two constitutional

sources of congressional power, we do not

imply the absence of any other. More
specifically, the allegations of the com-

ing the Board's policy. However, whether sec-
tion 1965(3) should also extend to other con-
Spiracieés against nonumion workers and their

A-2l

plaint in this case have not required con-
sideration of the scope of the power of
Congress under § 5 of the Fourteenth
Amendment.

Id. at 107, 91 S.Ct. at 1801, 29 L.Ed.2d at
351.

The plaintiffs’ 1985(3) action cannot be
sustained under the Thirteenth Amend-
ment, for they are neither a racially op-
pressed group nor suffering in the bonds of
involuntary servitude. See, eg., Jones v.
Mayer, 392 US. 409, 88 S.Ct. 2186, 20
L.Ed.2d 1189 (1968); Clyatt v. United
States, 197 U.S. 207, 25 S.Ct. 429, 49 L.Ed.
726 (1905). Neither can it be supported by
the right to travel on the present record.
Although the plaintiffs alleged that the ob-
ject of the defendants’ conspiracy was to
deprive them of the right to interstate trav-
el, they have introduced no evidence to
show that either the purpose or the result
of the conspirators’ acts was to infringe
upon their right to such travel.

However, the alternative path suggested
by Griffin is itself fraught with uncertain-
ty. A major controversy still exists over
the extent to which section 5 of the Four-
teenth Amendment grants Congress the
power to reach wholly private conduct.
Particularly, whether section 1985(3) can be
constitutionally applied to private, nonra-
cially motivated conspiracies is a question
which has divided the circuits. Compare
Action v. Gannon, 450 F.2d 1227 (8th Cir.
1971) and Richardson v. Miller, 446 F.2d
1247 (3d Cir. 1971) (holding that the Four-
teenth Amendment authorizes Congress to
reach purely private conduct) with Murphy
v. Mount Carmel High School, 543 F.2d
1189 (7th Cir. 1976) (finding that it does

employers is a question which we expressly
pretermit.

A-22

not). Furthermore, no single interpretation
of the expanse of Congress's power under
section 5 has consistently commanded the
adherence of a majority of the Supreme
Court. United States v. Guest,
383 U.S. 745, 762, 86 S.Ct. 1170, 1180, 16
L.Ed.2d 239, 251 (1966) (Clark, J., concur-
ring, joined by Black and Fortas, J.J.) and
id. at 782, 86 S.Ct. at 1190, 16 L.Ed.2d at
263 (Brennan, J., concurring and dissenting,
joined by Warren, C. J. and Douglas, J.)
(suggesting that § 5 empowers (myress to
punish purely private conspiracies to de-
prive Fourteenth Amendment rights), with,
id. at 753-60, 86 S.Ct. at 1175-80, 16
L.Ed.2d at 246-50 (opinion of the Court by
Stewart, J., relying on right to interstate
travel) and id. at 762, 86 S.Ct. at 1180, 16
L.Ed.2d at 251 (Harlan, J., concurring and
dissenting). See Oregon v. Mitchell, 400
U.S. 112, 91 S.Ct. 260, 27 L.Ed 272
(1970); Katzenbach v. Morgan, 384 US.
641, 86 S.Ct 1717, 16 L.Ed.2d 828 (1966).

We need not depend on this uncertain
precedent for congressional power. Griffin
clearly contemplated that other sources of
congressional power might be available to
justify other applications of section 1985(3).
Indeed, the original proponents of the Ku
Klux Klan Act did not base their assertion
of congressional power exclusively on the
Fourteenth Amendment. See, eg, Cong.
Globe, 42d Cong., lst Sess. 81 (1871) (re-
_ marks of Rep. Bingham) (“It was always
competent for the Congress of the United
States by law to enforce every affirmative
grant of power ..."); id. at 477-78 (re-
marks of Rep. Shellabarger (referring to
the amendment to § 2 “so far as it is not
confined to infractions of rights which are
clearly independent of the Fourteenth
Amendment, referable to and sustained by
the old provisions of the Constitution”). On
the facts presented in this case, we hold

SCOTT v. MOORE

Congress has the authority to reach a whol-
ly private conspiracy under the commerce
power conferred by article |, section & of
the Constitution.

A.A. Cross Construction Company is a
general contractor in the building and con-
struction industry. The record indicates
that during the year preceding the violent
episode of January 17, 1975, Cross had per-
formed work outside of Texas valued in
excess of $300,000. During that same peri-
od, Cross purchased goods and materials
which originated outside of Texas, were
used in its operations within Texas, and
were valued at more than $50,000. In addi-
tion, at the time of the attack on the Alliga-
tor Bayou construction site, Cross was per-
forming its obligations under a contract
with the United States Army Corps of En-
gineers.

[14] Article I, section 8, clause 3 of the
Constitution confers upon Congress the
power “[t}o regulate Commerce ... among
the several states” and clause 18 of the
same article grants it the power “[tjo make
all laws which shall be necessary and proper
for carrying into execution the foregoing
powers...." As the Supreme Court has
pointed out, this grant of power “extends ww
those activities intrastate which so affect
interstate commerce, or the exertion of the
power over it, as to make regulation of
them appropriate means tw the attainment
of a legitimate end, the effective execution
of the granted power to regulate interstate
commerce.” United States v. Wrightwood
Dairy Co., 315 US. 110, 119, 62 S.Ct. 523,
526, 86 L.Ed. 726, 732 (1942). “If it is
interstate commerce that feels the pinch, it
does not matter how local the operation
which applies the squeeze.” United States
v. Women’s Sportswear Mfg. Ass'n, 336
U.S. 460, 464, 69 S.Ct. 714, 716, 93 L.Ed. 805,

SCOTT v. MOORE

811 (1949). See United States v. Darby, 312
U.S. 100, 118, 61 S.Ct. 451, 459, 45 L.Ed. 609,
619 (1941); NLRB v. Jones & Laughlin
Steel Corp., 301 US. 1, 37, 57 S.Ct. 615, 624,
81 L.Ed. 493, 911 (1937). Moreover, that
the volume of goods and supplies purchased
by Cross or that the volume of business
done outside of Texas is comparatively
small in terms of the total amount of goods
moved or work performed in interstate
commerce is not significant. Katzenbach v.
McClung, 379 U.S. 294, 300-01, 85 S.Ct. 377,
382, 13 L.Ed. 2d 290, 291 (1964); Wickard v.
Filburn, 317 U.S. 111, 127-28, 68 S.Ct. 82,
90, 87 L.Ed. 122, 136 (1942). Jusdicial in-
quiry is limited to asking whether Congress
had “a rational basis for finding a chosen
regulatory scheme necessary to the protec-
tion of commerce...." Katzenbach v.
McClung, 379 U.S. at 304, 85 S.Ct. at 377, 13
L.Ed.2d at 298. And it is not constitution-
ally relevant that Congress was actually
“legislating against moral wrongs” when it
enacted the provisions in question. Heart
of Atlanta Motel, Inc. v. United States, 379
U.S. 241, 257, 85 S.Ct. 348, 357, 13 L.Ed.2d
258, 268 (1946). Chief Justice Marshall's
classic formulation of the extent of congres-
sional power is still viable.

Let the end be legitimate, let 1 be within

the scope of the constitution, and all

means which are appropriate which are
plainly adapted to that end, which are not
prohibited, but consist with the letter and
spirit of the constitution, are constitution-
al.
McCulloch v. Maryland, 4 Wheat 316, 421, 4
L.Ed. 579, 605 (1819).

By these standards, Congress acted with-
in its constitutional power when it enacted
section 19853) to reach the private conspir-
acy involved here. It cannot be denied that
the aim of protecting interstale commerce
from undue burdens is a legitimate end.

A-23

Congress could reasonably have determined
that violent attacks and vandalism perpe-
trated on the workers of a construction
firm engaged in interstate commerce would
have a disruptive effect on the flow of
products and services among the states. It
is also beyond dispute that the aim of pro-
lecting interstate workers in the exercise of
their First Amendment associational free-
doms is a legitimate end. The means
adopted for the accomplishment of these
ends, a private civil remedy for damages, is
plainly reasonable and appropriate. Section
1985(3) as applied to the facts before us is
not prohibited by the Constitution and is
compatible with both its letter and its spir-
it. Whether section 19853) can constitu-
tionally be applied to other kinds of wholly
private conspiracies to deprive persons of
their civil rights is a question for another
day.

V. THE EVIDENTIARY QUESTION:
STANDARD OF PROUF AND SUF-
FICIENCY OF EVIDENCE

A. The Standard of Proof

{15} The unions contend that they can-
not be held liable for unlawful acts commit-
ted at the Cross construction site by some
individual members of their organizations
without “clear proof” that they actually
participated in the uniawful conduct, gave
prior authorization of it, or ratified the acts
after actual knowledge of their commission.
This more rigorous standard of proof de-
rives from section 6 of the Norris-LaGuar-
dia Act which provides:

No officer or member of any association

or organization, and no association or or-

ganization participating or interested in a

labor dispute, shall be held responsible or

liable in any court of the United States

A-24

for the unlawful acts of individual offi-
cers, members, or agents, except upon
clear proof of actual participation in, or
actual authorization of, such acts, or of
ratification of such acts after actual
knowledge thereof.

29 U.S.C. § 106. This statutory standard of
proof thus lies somewhere between the tra-
ditional burdens of reasonable doubt and
preponderance of the evidence. With it,
Congress intended to require “clear, un-
equivocal, and convincing proof” of union
involvement in unlawful conduct to impose
liability for it. United Mine Workers v.
Gibbs, 383 U.S. 715, 737, 86 S.Ct. 1130, 1145,
16 L.Ed.2d 218, 234 (1966). Yet, while sec-
tion 106 requires clear and convincing evi-
dence as to union authorization, participa-
tion in, or ratification of the acts allegedly
performed by its members, it does not pre-
seribe a different standard of proof for
other issues in actions against a union or its
officers or members involved in a labor
dispute. Ramsey v. United Mine Workers,
401 U.S. 302, 91 S.Ct. 658, 28 LEd2d 64
(1971).

[16,17] The unions also recognize that
section 106 is by its own terms limited to
cases in which the union is participating or
interested in a labor dispute. The Norris-
LaGuardia Act defines a “labor dispute” to
encompass

any controversy concerning terms and

conditions of employment, or concerning

the association or representation of per-
sons in negotiating, fixing, maintaining,
charging, or seeking lo arrange terms or
conditions of employment, regardless of
whether or not the disputants stand in
the proximate relation of employer and
employee.

29 USC. § 113(c). The unions insist that
the literal language of section 113%(c)

SCOTT v.

squarely covers the conduct at issue here.
The persons who planned and executed the
attack on the Alligator Bayou construction
site were motivated by # desire to punish
Cross for engaging in emp oyment practices
which violated their misperceived area of
exclusive control and to punish those who
would work for Cross without attorning to
them. Because the conspiracy that gener-
aled the case was formed around this non-
union animus, the defendants maintain that
the controversy out of which this case arose
cannot be anything other than a labor dis-
pute.

This approach has a certain superficial
appeal. The attack on the Cross construc-
lion site was certainly conceived in reprisal
for the refusal of Cross and his workers to
accede to demands that the Alligator Purip-
ing Station project be conducted as a union
job. Nevertheless, in construing any con-
gressional enactment it is necessary to in-
terpret the meaning of the words as they
are used in relation to the setting in which
they were written, with due regard to the
mischief which the legislation was designed
to remedy. In that light, these unions were
not participating in a “labor dispute” as
that language is employed in section 113(c)
because their activity does not fall within
the abuses that Congress intended to pre-
vent.

The Norris-LaGuardia Act was passed in
a particular social, economic, and legal mi-
lieu. During the early part of this century,
federal injunctive powers were often in-
voked to check the spread of union organi-
zation and collective bargaining. But Con-
gress conceived that the courts were being
made to play a partisan role in labor-man-
agement conflicts, in part because judicial
injunctive relief usually did nothing to re-
solve the underlying industrial dispute.
The Norris-LaGuardia Act was intended to

SCOTT v.

curb this unwarranted judicial interference
in the struggle between employers and em-
ployees. Instead, Congress decided to allow
such controversies to be settled through ne-
gotiation and through the free play of eco-
numuc forces.

The Norris-LaGuardia Act ... was de-

signed primarily to protect working men

in the exercise of organized, economic
power, which is vital to collective bar-
gaining.... Congress acted to prevent
the injunctions of the federal courts from
upsetting the natural interplay of the
competing economic forces of labor and
capital.
Brotherhood of Railroad Trainmen v. Chica-
go River and Indiana Rd., 353 U.S. 30, 39,
77 S.Ct. 635, 640, 1 L.Ed.2d 622, 628 (1957).
Thus, the policy section of the Act stresses
the worker's “freedom of association, self-
organization, and designation of representa-
tives of his own choosing” as indispensable
to the private settlement of these disputes.
29 US.C. § 102. Congress thereby made
the use of legitimate economic weapons—
the picket, the strike, the boycott—part of
the warp and woof of our national labor
relations policy. See generally Boys Mar-
kets, Inc. v. Retail Clerk's Union, Local 770,
398 U.S. 235, 250-51, 90 S.Ct. 1583, 1592, 26
L.Ex.2d 199, 210 (1970); Milkwagon Driv-
ers’ Union v. Lake Valley Farm Products,
Ine., 311 U.S. 91, 100-08, 61 $.Ct. 122, 127-
28, 85 L.Ed. 63, 68 70 (1940); A.Cox, D.Bok,
& RGorman, Labor Law 6 64 (8th ed.
1977).

One of the special abuses identified by
Congress was the use of vicarious liability
doctrines under which the misconduct of a
few_individuals could be attributed to the
labor organization that sponsored strike
or picket line. Courts had applied the com-
mon law of conspiracy to hold unions re-
sponsible not only for the conduct of their

MOORE A-25

authorized agents, but also “for every act
committed by any member of a union mere-
ly because he was a member, or because he
had some relation in the union although not
authorized by virtue of his position to act
for the union in what he did.” United
Brotherhood of Carpenters and Joiners v.
United States, 330 U.S. 395, 419, 67 S.Ct.
775, 788, 91 L.Ed. 973, 991 (1947) (Frank-
furter, J., dissenting).

Congress recognized that this dragnet
conspiracy approach to union responsibility
could frustrate its chosen labor relations
policy. Imposing liability on the union for
the unauthorized lawlessness of its more
improvident members would penalize the
union -awfully engaged in using the legiti-
mate economic weapons necessary for the
proper resolution of labor-management con-
flicts. Therefore, Congress enacted section
106, requiring clear proof of union partici-
pation in, authorization, or ratification of
unlawful conduct before liability could at-
tach.

However, there is no danger of frustrat-
ing the congressional policy favoring collec-
tive bargaining and no ris« of punishing
union engagement in protected activity in
the case before us. When the events giving
rise to this case occurred, no union had a
collective bargaining agreement with Cross,
and none was seeking recognition as the
collective bargaining representative for
Cross’s workers. No solicitation or other
organizational efforts were in progress to
attain representation of the Cross employ-
ees. No labor organization was engaged in
informational picketing to publicize Cruss's
employment practices. In short, the attack
on the Alligator Bayou construction project
did not grow out of any legitimate union
activity. The employersuciation, Local 884, United Associa-
tion of Journeymen and Apprentwes of the
Plumbing and Pipetitting Industry of the United
States and Canada, Local 195, United Brother-
hood of Carpenters and Jomers of America,
Local 610, United Brotherhood of Carpenters
and Jomers of America, Local 753, Internation-

B-7

... Shall not hereafter combine, con-
spire, threaten, intimidate, assault, or
commit any act of violence toward or
upon any person, property or possession
of any person or his family who may
work upon, travel to, deliver materials,
goods, or services to A. A. Cross Con-
struction Co., Inc., or Ww the site of the
alligator Bayou Pump Station on Tay-

_ lor’s Bayou near Port Arthur, Jefferson
County, Texas.

The defendants contest the district
court's power to issue such an injunction,
arguing that the Norris-LaGuardia Act
deprives the district court of jurisdiction
to enjoin labor organizations from engag-
ing in conspiratorial conduct. They
maintain that the unembellished lan-
guage of the Act is sufficient to show the
court's usurpation of authority.

{1} We disagree. The Norris-LaGuar-
dia Act was passed for the purpose of
limiting the circumstances and conditions
under which injunctive action could be
taken against labor organizations in the
context of a labor dispute. The labor
injunction had been an important device
used by employers to counter organized
labor's most effective economic weapons,
strikes, boycotts, and picket lines. How-
ever, the Act was predicated on the con-
viction that labor disputes turned on is-
sues of social and economic policy that
could not appropriately be resolved by
the courts. The legislative solution to

al Brotherhood of Boilermakers, Iron Shipbuild-
ers, Blacksuuths, Forgers, and Helpers, AFL
C10, Local »57, International Association of
Bridge Structural and Ornamental lronworkers,
Local 125, Sheet Metal Workers International
Association, Local 196, Carpenters District
Council of Sabine Area, International Brother-
hood of Electrical Workers, Local 479, and
imernational Umon of Operating Engineers,
Hosting and Portable Engineers, AFL ClO,
Local 450.

the problems confronting workers in a
complex industrial economy was union
organization and collective burguining.
Since the ready issuance of labor injunc-
tions presented a serious obstacle to the
concerted activities of organized workers,
Congress decided to remove the federal
judiciary from labor disputes. Thus, see-
tion 5 of the Act, 29 U.S.C. § 105, limits
the equitable power of the federal courts
in the following way:

No court of the United States shall
have jurwdiction lo issue a restraining
order ur temporary or permanent in-
junction upon the ground that any of
the persons participating or interested
in a labor dispute constitute or are
engaged in an unlawful combination or
conspiracy because of the soins in con-
cert of the acts enumerated ‘n section
104 of this title.

29 U.S.C. § 105.

[2] But the Act does not impose an
unqualified prohibition against federal
injunctive relief. Section 105 merely re-

2. Section 104 provides as follows:

No court of the United States shall have
junsdiction to issue any restramung order or
temporary of permanent injunction in any
case mvolving or growing out of any labor
dispute to prohibit any persun or persons
participating or interested in such dispute (as
these terms are herein defined) from doimy,
whether singly or in concest, any of the fol-
lowing acts.

(a) Ceasing or refusing to perform any
work or to remain in any relation of employ-
ment, ;

(b) Becoming or remaining a member of
any labour orgamzation or of any employer
orgamzation, reyardiess of any such under-
taking or promuse as 1s described in section
103 of this utle,

(c) Paying or giving to, or withholding
from, any person participating or mterested
m such labor dispute, any strike of unem-
ployment benefits or insurance, of other
moneys or things of value,

(d) By all lawtul means aiding any person
Participating of interested im any labor dis-

SCOTT v.

MOORE

stricts the court’s power to enjoin con-
certed or conspiratorial activity where
the conduct tw be enjoined is un act enu-
merated in section 1042 The enumerated
acts include refusing to work, joining a
labor organization, paying or withholding
strike benefits from a labor disputant,
lawfully giving aid to a labor disputant
who is prosecuting or defending a court
action, truthfully and peacefully publiciz-
ing @ labor dispute, peacefully assembling
to promote one’s interests in a labor dis-
pute, and agreeing with or inducing other
persons to do any of those acts. In short,
section 104 interdicts injunctive relief
against the legitimate activities of labor
unions. However, there is nothing in this
provision denying to federal courts the
power to enjoin violence, breaches of the
peace, or criminal acts simply because
they may be committed by persons par-
Licipating or interested in a labor dispute.

{3} In fact, the Norris-LaGuardia Act
itself implicitly recognizes the threatened

pute who is being proceeded against in, or is
prosecuting, any action or suit in any cuurt
of the United States or of any State,

(e) Giving publicity to the existence of, or
the facts involved im, any labor dispute,
whether by advertising, speaking, patrolling,
or by any other method not involving fraud
or violence,

(f) Assembling peaceably to act or to or-
ganize to act im promotion of their interests
in a labor dispute,

(g) Advising or notifying any person of an
imtention to do any of the acts heretofore
specified,

(h) Agreeing with other persons to do or
not to do any of the acts heretofore specitied,
and

(i) Advising, urging, or otherwise causing
or inducing without traud or violence the acts
heretotore specified, regardiess of any such
undertaking or promise as is described in
section 103 of this ttle.

29 USC. § 104.

SCOTT v. MOORE

commission of violent acts as a condition
under which an injunction may bow
Section 107 states that ne court of the
United States has jurisdiction to grant an
injunction, unless, after a hearing, the
court finds “[tjhat unlawful acts have
been threatened and will be committed
unless restrained... 2 USC.
§ Wa) Thus, vielence, intimidation,
threats, vandalism and combinations or
conspiracies to commit such acts may be
restrained and enjoined even though they
arise in connection with a labor dispute.
See, «. g., Westinghouse Browdeusting Co.
v. Dukakis, 412 F Supp. 580 (Mass.
1976); Potomac Electric Power Co. v.
Congress of Racial Rquality, 208 F Supp.
599 (D.D.C.1962). The Norris-LaGuardia
Act does not divest the district court of
jurisdiction to enjoin the kind of violent
conduct present in this case?

Il. THE STATUTORY QUESTION:
THE SCOPE OF REMEDY UNDER
42 U.S.C. § 198553)

A. Griffin v. Breckenridge

Section 1985(3) was oryinally enacted
by Congress as a part of the Ku Klux
Klan Act in order to enforce the Civil

War amendments to the Constitution and
to provide a means of redress for persons

3. Even where jurisdiction to grant myunctive
rehef is authornzed, the Norris-LaGuardia Act
imposes strict procedural requirements upon
the court See 29 USC. 9 17 109, New
Negro Alliance v. Sanitary Grocery Co, WS
U.S. 552, 561 62, 58 S.Ct. 703, 707, 82 L.Ed.
1012, 1016 (1938). The unions have raised no
objections to the procedures employed by the
district court im this case.

4 The relevant part of section 19454) reads us
follows

if two of more persons in any State or
Territory conspire or go in disguise on the
highway or on the premises of another, tor
the purpose of depriving, etther directly or
indirectly, any person or class or persons of

vielimized by the Klan’s acts of terror
am! intimidation. The statute imposes
civil latulity on persons conspiring to de-
prive another person or class of persons
of “the equal protection of the laws, or of
equal privileges and immunities under
the laws." Narrow judicial construction
tude section 198%3) a seldum-used reme-
ly during the first century after its en-

actment. See, e.g, Collins v. Hardyman,

#41 U.S. 651, 71 S.Ct. 937, 95 LEA. 1258
(1951). However, the Supreme Court de-
cided in 1971 to “accord to the words of
the statute their apparent meaning” and
held section 1985(3) provided a civil reme-
dy for damages aguinst wholly private
infringements of constitutionally protect-
ed rights. Griffin v. Breckenridge, 403
U.S. 88, 97, 91 S.Ct. 1790, 1795, 2
L.Fal.2d 338, 345 (1971). In Griffin, a
group of whites assaulted three black
men along a Mississippi highway in the
mistaken belief that their victims were
the associates of a civil rights worker.
The blacks brought an action under sec-
tion 1985(3) to redress violations of the
laws of the United States and of Missis-
sippi, including the rights of free speech,
usembly, association, interstate travel,
liberty, and security of their persons.
The Supreme Court first held that the
text of the statute, recent judicial inter-

the equal protection of the laws, or of equal
privileges and immunities under the laws,
m any case of conspiracy set forth in this
section, if one or more persons engaged
therem do, or cause to be done, any act in
furtherance uf the object of such conspiracy,
whereby another is myured in his person or
property, or deprived of having and exercis-
ing any mght or privilege of a citizen of the
United States, the party so injured or de-
prived may have an action for the recovery of
damages, occasioned by such .ajury or depri-
vation, against any one ¢: more of the con-
spirators
42 USC. § 19853)

pretations given to related civil rights
provisions, the complementary relation-
ship of the various civil rights statutes,
and the legislative history surrounding
section 1985(3) all “point unwaveringly to
§ 1985(3)'s coverage of private conspira-
cies.” 408 U.S. at 101, 91 S.Ct. at 1798,
29 L.Bai2d at 347.

[4] While eliminating the state action
requirement, the Griffin court wus con-
cerned that the statute, if applied two
broadly, would displace many areas of
tort law that have traditionally been re-
served to the states and thereby . wlate
constitutionally-based principles of feder-
alism. “That the Statute was meant to
reach private activity does not .. mean
that it was irtended to apply to all tor-
tious, conspiratonal interferences with
the rights of others.” 403 U.S. at 101, 91
S.Ct. at 1798, 29 L.Ed.2d at 347. Accord-
ingly, the Court read section 1985(3) to
apply only to actions which are inspired
by “some racial, or perhaps otherwise
class-based, invidiously discriminatory an-
imus.” 403 U.S. at 102, 91 S.Ct. at 1798,
29 L.Ed.2d at 348. It then delineated
four elements necessary for a plaintiff to
establish a § 1985(3) cause of action:

(1) the defendants must conspire or yo

in disguise on the highway or premises

of another;

(2) for the purpose of depriving, either

directly or indirectly, any persen or

class of persons of the equal protection
of the laws, or of equal privileges and
immunities under the laws; and

(3) one or more of the conspirators

must commit some act in furtherance

of the conspiracy; whereby

(4) another is either (a) injured in his

person or property or (b) deprived of

having and exercising any right or
privilege of a citizen of the United

States.

SCOTT v. MOORE

See id. at 102 08, 91 S.Ct. at 1790, 29
L.F4i.2d at 34%. Subsequently, this court
has added a fifth element,

(5) that the conspirators’ conduct must
be unlawful independent of the section
198K 3) violation.

See Melelian v. Mississippi Power &
Light Co., 545 F.2d 919 (5th Cir. 1977) (en
bane).

The Griffin court, having concluded
that the plaintiffs had stated a cause of
action under section 1985(3), then sought
to locate a source of congressional power
to reach the private conspiracy alleged.
The sources identified in Griffin were the
Thirteenth Amendment and the constitu-
tional right to travel. 403 U.S. at 104-06,
91 S.Ct. at 1799-1800, 29 L.Exi.2d at 349-
50. The Court observed, however, that
other provisions of the Constitution, in-
cluding section 5 of the Fourteenth
Amendment, might empower Congress to
reach other conspiracies by private per-
sons. Jd. at 107, 91 S.Ct. at 101, 2
L.Ed.2d at 351. However, the Court
found the facts of that case made it
unnecessary to look beyond the Thir-
teenth Amendment and the right to in-
lerstate travel.

B. The Present Case

Griffin's principles indicate the plain-
tiffs here have made out a cause of action
under section 1985(3). The facts of this
case clearly embudly four of the five ele-
ments essential to a successful § 19853)
claim. First, the evidence is sufficient to
establish a conspiracy among some of the
Council's constituent unions and individu-
al defendants. Second, proof that plain-
tiffs were assaulted, beaten, and threat-

SCOTT v.

acts are indisputably legal apart from
§ 198) a required by Melsdlan.
Fourth, there is evidence of personal in-
juries, property damage, and cconemic
loss. The only clement requiring analysis
is the requirement that the conspiracy be
for the purpose of depriving a person of
the equal protection of the laws or equal
privileges and immunities umber the Laws.
This requirement, in turn, has two com-
ponents: (1) the violation of some pro-
tected ryght and (2) a class-based, invidi-
ously discriminatory animus motivating
the violation
1. Violation of a Protected Right

In Griffin, the Supreme Court stated
that a § 1985(%) conspiracy “must aim at
a deprivation of the equal enjoyment of
rights secured by the law ww all.” 408
US. at 102, 91 S.Ct at 1798, 29 L.Ed2d
at 348. The plaintiffs in the case at bar
contend that the object of the defend-
ants’ conspiracy was to deprive them of
their First Amendment right to associate
with their fellow nonunion employees.
They argue that curtailment of their in-
terests secured by the First Amendment
is a deprivation of equal protection of the
laws within the meaning of section
1985(3) as interpreted by Griffin.

{5,6) The Ku Klux Klan Act was orig-
inally entitled, “An Act to Enforce the
Provisions of the Fourteent: \mendment
to the Constitution of the United States,
and for Other Purposes.” 17 Stat. 13
(1871). The guaranties afforded by the
First

393 US. 2, 30-31, 9B SCL. 5, W, 21
L.Ed.2d 24, 31 (1968); New York Times
v. Sullivan, 376 U.S. 254, 276 77, 84 S.CL.
710, 724, 11 L.Ed 2d G86, 704 (1964);
Cantwell v. Connecticut, 310 US. 296,
303, 60 S.CL. 900, 908, B4 LL Bal. 1218, 1217

MOORE B-tl
(1940); De Jonge v. Oregon, 299 U.S. 353,
4, 5ST SCL. 205, 260, BI L.Ed. 278, 283
(1937). Moreover, the ryzht of free asso-
cration is closely alygned with the ryght of
free speech and is similarly protected by
the First Amendment. E g., Aboud v.
Detroit Board of Education, 431 U.S. 209,
235, 97 S.Ct. 1782, 1798 99, 52 L.bat2d
261, 283 (1977); Healy v. James, 408 U.S.
169, 181, 92 S.Ct. 2538, 2346, 33 L.Ed il
206, 279 (1972); Baird v. State Bar of
Arizona, 401 US. 1, 6, 91 S.Ct. 702, 705,
27 L.Ed.2d 6389, 646 (1971); NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449,
462, 7% S.Ct. 1163, 1171-72, 2 L.Ed2d
1488, 1499 (195%).

The defendants urge that section
1983) dees not provide a remedy for
private interference with First Amend-
ment freedoms. They appeal to the well-
established principle that the Fourteenth
Amendment “erects no shield against
merely private conduct, however discrim-
inating or wrongful.” Shelley v. Kraem-
er, 334 US. 1, 13, 68 S.Ct. 836, 842, 92
L.Ed. 1161, 1180 (1948). To support their
construction of section 1985(3), the de-
fendants rely upon several decisions of
the Seventh Circuit. In Dombrowski v.
Dowling, 459 F.2d 190 (7th Cir. 1972), the
court held that section 1985(3) does not
afford protection against private depriva-
tions of rights protected under the Four-
teenth Amendment absent some kind of
state involvement. Emphasizing the his-
toncal connection between sections 1983
and 1985(3), the court decided that it is
necessary to identify the interests which
Congress intended to protect from un-
equal treatment as well as the kinds of
conduct which it meant to proscribe.

The breadth of the statute's coverage is

yet to be determined, but three catego-

ries of protected rights have been
plainly identified. Griffin gives ex-
press recognition to a black citizen's

B-12

Thirteenth Amendment rights and to
his federal right to travel interstate;
the title of the statute expressly denti-
fies the third category, namely, rights
protected by the Fourteenth Amend-
ment. We think the § 19% cases make
it clear that in this third category a
“state involvement” requirement must
survive Griffin.

459 F.2d at 195 (footnotes omitted)*
Subsequently the Seventh Circuit has ex-
tended the Dombrowski rationale in Mur-
phy v. Mount Carmel High School, 543
F.2d 1189 (7th Cir. 1976), expressly hold-
ing that section 19%5(3) provides no reme-
dy for purely private impairment of First
Amendment speech and associational
freedoms. Accord Bellamy v. Mason's
Stores, Inc., 30% F.2d 504 (4th Cir. 1974).

{7] The Seventh Circuit's reasoning is
contrary to the Supreme Court's analysis
in Griffin. Of course, most basic consti-
tutional provisions impose limitations on
the power of government to regulate pri-
vate conduct. Thus, the rights they con-
fer on individuals are typically rights of
the individual against the state. Kut the
Griffin court, after acknowledging the
conceptual difficulties associated’ with
private deprivations of constitutional
rights, construed section 19853) to reach
beth public and private constitutional
wrongs.

A century of Fourteenth Amendment

adjudication has ... made it under-

5. Dombrowski recognizes that there ts no stat-
utory requirement of state participation of sup-
port for the conduct of the conspirators, 1 ¢.,
that there is no requirement that the defend-
ams act under color of state law Huwever,
where one suffers a deprivation of a federally
created mght which necessarily mecludes some
component of state action, Dombrowsk: holds
that such state acyon ts also a necessary myre-
dient of the section 1985(3) cause of action.
See 459 F.2d at 194 95.

SCOTT v. MOORE

standably difficult to conceive what
might constitute a deprivation of the
equal protection of the laws by private
persons. Yet there is nothing inherent
in the phrase that requires the action
working the deprivation to come from
the State. Indeed, the failure to men-
tion any such requisite can be viewed
as an important indication of congres-
sional intent to speak in § 1985(3) of all
deprivations of “equal protection of the
laws” and “equal privileges and immu-
nities under the laws,” whatever their
svuree.

403 US. at 97, 91 S.Ct at 1796, 2
L. Fal. 2d at 345 (citation omitted and some
emphasis supplied). Thus, Griffin made
it unmistakably clear that section 1985(3)
was intended to provide a remedy for all
private conspiracies. “It is thus evident
that all indicators—text, companion pro-
visions, and legislative history—point un-
waveringly lo § 1985(3)'s coverage of pri-
vale " Id. at 101, 91 S.Ct. at
1798, 29 L.Ed.2d at 347® The Griffin
Court's method of analysis and the un-
equivocal language of its opinion fore-
close our adoption of the approach taken
by the Seventh Circuit.

In addition, the interpretation given to
the statute in this circuit makes that
approach unnecessary. Although Griffin
found that section 1985(3) covered purely
private conspiracies, it did not announce
what might constitute a deprivation of
equal protection by private persons. Un-

6. Technically, of course, this language ts dicta.
Griffin grounded tts decision on the rights se-
cured to black citizens under the Thirteenth
Amendment and the right to inter state travel,
both of which operate as limits on individual
conduct as well as state conduct. However, we
beheve that the language and reasorung of Grif.
fin on this issue are sufficiently indicative of
the Supreme Court's approach to be regarded
as dispositive.

—_— = =

SCOTT v. MOORE

certainty in this regard may have con-
tributed to oe Seventh Circuit's deeision
to retain some form of state involvement
as a part of Uhe § 1985(4) cause of action.
See Dombrowski, 459 F.2d at 194. How-
ever, this circuit has adopted a different
tact. MeLellan establishes that section
19H 3) was not intended to redress every
conceivable private interference with an-
other's rights. Rather, “the object of a
section 19%5(3) conspiracy must be to de-
prive another of the enjoyment of legal
rights by independently unlawful con-
duct.” MeLellan, 545 F.2d at 927 (foot-
note omitted). The independent illegali-
ty requirement was derived in part from
the passage in United States v. Harris,
106 US. 629, 1 S.Ct. 601, 27 L.Ed. 200
(1883), which explains that the only
method by which a “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, burgla-
ry, arson, libel, assault, or murder.” Id.
at 643, 1 S.Ct. at 612, 27 L.Bal. at 295. In
this way, McLellan limited the potentially
boundless reach of the statute and pro-
vided meaning Lo the concept of a private
impairment of constitutional = ri
Therefore, McLellan resolved the difficul-
ties perceived by the Dombrowsk: court
and made its analysis unnecessary.

{8} It cannot be gainswid that the de-
fendants’ consj.racy comprehended an in-
tent w violate the law wnlependent of
section 19453). The plaintiffs contend
that the conspiracy was calculated tw de-

7. Because of oer disposition of the case, 1 ts
mt umesary to decide whether section
IDA.» i) also protects agai private Conspira-
cies to deny nights secured under state law
See Life insurance cotipany of North America
v. Reichardt, Wi + 2d 498 (9th Cor 1979) (hold-
ing Violavons uf state wntulisermmunmation stat-
ute cogmzable), ft us also unnecessary to de-

B-13

prive them of the right to freely associate
with other nonunion laborers. They have
alleged and have sought lo prove that the
defendants conspired to accomplish this
object by assaulting and beating them
with wooden boards and iron bars; by
destroying tools, equipment, and automo-
biles; and by overturning and setting
fire to the Cross office trailer. The
means adopted by the conspirators to de-
prive the plaintiffs of their rights of free
association encompass palent violations
of beth the civil and criminal laws of
Texas. See, e g., Tex.Penal Code Ann.
§§ 22.01 (assault); 22.02 (aggravated as-
sault); 28.02 (arson); 26.04 (reckless
damage or destruction) (Vernon 1974).
See generally W. Prosser, Law of Torts
§§ 9 10 (assault and battery); 14 (tres-
pass to chattels). The plaintiffs also of-
fered proof that the conspirators engaged
in the very unlawful conduct they con-
spired to commit and that as a result
plaintiffs suffered injury to their persons
and property. Under such circumstances,
we conclude Chat section 19853) affords a
remedy for purely private conspiracies
armed at denying their victimes the First
Amendment rgtt of free association.’

2 Diserwnunatery, Class-Based Animus

The plautiffs have also satisfied Grif-
fin'’s class-based), discriminatory animus
component of tite 6 1985(3) cause of ac-
tion. Our analysw involves two distinct
but closely rebated questions. First, does
section 1985(3) coverage extend to pri-
vate conspiracies fownded upon some in-

onde whether federal statutory nghts are pro-
tected by 6 19855) Se Novotny v Great
Aunencan Federal Savings & Loan Ass'n, 564
2d 1235 (4d Cul 1978), rev'd 442 U.S. 366, 99
S.Ct 2345, 60 L Ed 2d 957 (1979) (miolations of
Title Vit). Cf McLetlan, 545 F 20 919 (Sth Cir.
1977) (nght to tile bankruptcy petition not pro-
lected.)

B-14

vidiously discriminatory animus other
than racial prejudice? Second, if it does,
is the particular class to which the plain-
uffs belong, nonunion workers and their
employers, one which falls within the
statute’s protective ambit? We answer
both these questions in the affirmative.

{9} There is no allegation that the de-
fendants in this case were motivated by
an invidiously discriminatory racial ani-
mus, and there is no evidence that would
support such an allegation. Indeed, the
theory of the plaintiffs’ case is that they
are the victims of a conspiracy motivated
by the defendants’ hostility toward non-
union workers of any race and the em-
ployers who hire them. We must, there-
fore, answer the question specifically re-
served by Griffin and still unanswered in
this circuit: does section 1985(3) reach
conspiracies founded upon dimecriminatory
animus directed against choses defined
by some characteristic other than race?

Griffin noted that not all private con-
spiracies to interfere with the rights of
another would come under the protective
umbrella of section 1985(4). The Court
determined the congressional purpose
was to include only those conspiracies
animated by an “invidiously diser:minato-
ry motivation.”

The language requiring intent t de-

prive of equal protection, or equal priv-

ileges and immunities, means that
there must be some racial, or perhaps

otherwise class-based, invidiously, «m-

criminalory animus behind the conspir-

ators’ acon.
403 US. at 102, 91 S.Ct. at 1798, 29
L.Ed.2d at $48 (some emphasis supplied).
Thus, Griffin expressly left open the pos-
sibility that a § 1985(3) cause of action
existed against privale conspiracies in-
spired by some nonracial claws buas.

SCOTT v. MOORE

Encouraged by this suggestion, numer-
ous lower courts have already found that
section 1955(3) is net limited to protect-
ing classes defined by race. Indeed, we
are aware of no post-Griffin decision by a
circuit court Chat has limited the scope of
the statute to racially-motivated conspir-
acies. See cases cited infra slip op. at

-——--—, at pp. ——--

Furthermore, extending section 1985(3)
protection to include conspiracies moti-
vated by nonracial class animus comports
favorably with the Supreme court's ap-
proach to other Reconstruction § civil
rights statutes in recent years “to ‘accord
|them] a sweep as broad as [their] lan-
guage.” Griffin v. Breckenridge, 403
U.S. at 97, 91 S.Ct. at 1796, 29 L.Bal.2d at
45. The expansive language of the stat-
ute could reach all conspiracies which de-
prive any class of persons of equal protec-
tion of the laws, not just those animated
by racial discrimination. Sections 1981
amd 1982, for example, both contain spe-
cific references to race, and the courts
have consistently limited their application
to instances of racial discrimination. See,
e. g., MeDonald v. Santa Fe Trail Transp.
Co, 427 US. 273, 9% S.Ct. 2574, 49
L.Fal.2d 493 (1976) (§ 1981); Jones v.
Alfred H Mayer Co., 392 U.S. 409, 88
S.Ct. 2in, BW LEd2d 1189 (1968)
(§ 1982); Olivares v. Martin, 555 F.2d
1192 (Sth Cir. 1977) (§ 1981). By con-
trast, however, section 1983 makes no
specific reference to race, and a wide
variety of nonracia! classes have sought
and won relief from discriminatory treat-
ment under section 1983. See, e. g., Es-
telle v. Gamble, 429 U.S. 97, 9T S.Ct. 285,
50 L.Ed.2d 251 (1976) (prisoners); John-
sen v. American Credit Co., 581 F.2d 526
(5th Cir. 1978) (debtors attacking state

tion, 472 F.2d 1207 (6th Cir. 1973) (sex).

SCOTT v.

Since section 1985(3), like section 1083, is
not cust in cucil terms, consistency de-
mands that section 19853) also be read to
protect nenracial classes.

The conclusion that section 1945(3) is
not restricted to protecting victims of
racial discrimination is also fully sup-
ported by the legislative history sur-
rounding the statute's enuctment. Both
the congressional debates and the origi-
nal statute’s popular tithe suggest that
the protection of groups who were being
terrorized by the Ku Klux Klan (blacks
and white Union sympathizers) was the
Act's primary objective. Although con-
cern for those persons victimized by Klan
violence was the most pressing matter
leading to adoption of the Act, both pro-
ponents and opponents of the legislation
understood that it would cover other
groups as well. Representative Hoar de-
scribed the purpose of section 19%5(3) as
guaranteving “thal under no temptation
of party spirit, under no political excite-
ment, under no jealousy of race or caste,
will the majority either in numbers or
Strength in any State seek to deprive the
remainder of the population of their civil
rights.” Cong. Globe, 42d Cong., Ist Sess.
935 (1871). Senator Eximumdis’ famous
remarks also aptly illustrate the congres-
sional attitude Loward what classes would
enjoy section 198'(3)'s protection:

We do not undertake in this bill to

interfere with what might be called a

private conspiracy growing out of a

neighborhood feud of one man or set of

men against another to prevent one

[from] getting an indictment in the

State courts against men for burning

down his barn; but, if in a case like

this, it should appear that this cunspir-
acy was formed against this man be-
cause he was a Democrat, if you please,
or because he was a Cuthwlic, or be-
cause he was a Methodist, or because

MOORE B-15
he was a Vermonter ... then this see-
tion could reach it.

Cong. Globe, 42d Cong., Ist Sess. 567
(1871). The congressional debates, which
reflect a concern for #'| groups subjected
to the Klan’s organized lawlessness, make
it qppear that the statute's drafters in-
tended to protect groups other than
wethern blacks.

Griffin, Une statutory text, companion
civil rights provisions, and the legislative
history all indicate that a conspiracy mo-
tivated by invidiously diseriminatory in-
tent other than racial bias is actionable
under section 19853).

However, the conclusion that section
19% 3) protects nonracial classes resolves
only a part of the problem presented by
this case, for we must also determine
whether the particular class involved
here is one which is covered by the stat-
ute’s protective cloak.

{10} Precisely what kinds of nonracial
classes enjoy section 1985(3)'s protection
is far from clear. Griffin presented con-
duct “se close to the core of the coverage
intended by Congress that it is hard to
conceive of wholly private conduct that
would come within the statute” if it did
not. 403 U.S. at 103, 91 S.Ct. at 1799, 29
L.PkL21 at 348. At the same time, the
Court's expressed concern over the broud
reach of the statute’s literal language
dictates the exercise of restraint in defin-
ing what nonracia! class-based disecrimi-
nation is covered. Thus, we expressly
limit our holding to a determination Urat
section 1985(3) encompasses a private
conspiracy against nonunion laborers aad
their employer. Appropriate develop
ment of judicial precedent demands Chat
further delineation of the statute's outer
limits must await specific cases.

{11} Not every conceivable class of
persons is covered by the statute. Mes-
bers of the plaintiff class must share
some common characteristic beyond sim-
ply being victims of the defendant's con-
spiratorial conduct. See, e. g., Askew v.
Bloemker, 548% F.2d 673 (7th Cir. 1976)
(homeowners raided by drug enforcement
agents); Harrison v. Brooks, 519 F 2d
1358 (1st Cir. 1975) (property owners al-
legedly injured by city council rezoning
efforts). The class cannot be so large
and that its members are vir-
tually indistinguishable from the vast
majority of the populace. See, e. g,,
Blevins v. Ford, 572 F.2d 1336 (9th Cir.
1978) (nonlawyers) Even some clearly
defined and easily identifiable groups
have been denied protected status under
the statute. See, e. g., DeSantis v. Pacif-
ie Tel. & Tel. Co., OB F.2d 827 (9th Cir.
1979) (homosexuals); Carchman v. Kor-
man Corp., 594 F.2d 354 (3d Cir. 1979),
cert. denied, 444 U.S. 898, 100 S.Ct. 205,
62 L.Edl.2d 13% (1979) (tenant organizers):
Lessman v. McCormick, #91 F.2d 605
(10th Cir. 1979) (debtors); McLellan v.
Mississippi Power & Light Co., 545 F.2d
919 (5th Cir. 1977) (en bane) (persons who
file voluntary bankruptcy petitions);
Bricker v. Crane, 468 F.2d 122% (ist Cir.
1972), cert. denied, 410 U.S. 980, 93 S.Ct.
1368, 35 L.Ed.2d 592 (1973) (physicians
who testify in malpractice suits).

In the absence of Supreme Court guid-
ance as Ww the kinds of classes protected
by section 1953) or a method by which
protected classes should be identified, our
own en bane decision in MeLelian pro-
vides our gauge. In McLellan, we held
that the statute does not cover persons
who file voluntary petitions in bankrupt-
ey. The decision was bax«! on three fac-

8 Our reliance upon the factors deemed rele-
vamt in McLellan does not necessarily unply
that they are the only relevant considerations.

SCOTT v.

MOORE

tors. First, the legislative history of the
Ku Klux Klan Act contains no evidence
of congressional concern about discrimi-
nation against persons who become insol-
vent. Second, while the protection af-
forded by the civil rights acts is not stat-
ic, it would be inappropriate to enlarge
the group of protected classes to include
bankrupts when Congress had specifically
declined to prohibit discrimination
against them. Third, including bank-
rupts within the ambit of section 1985(3)
would be unwarranted in light of the
Supreme Court's refusal to characterize
the right to file a bankruptcy petition as
a fundamental right. 545 F.2d at 932-33.

{12} Applying the /fcLellan factors ta
our case Lxlay, we find that the plaintiffs
constitute a class for § 1985(3) purposes.*
The labor union movement in America
was yet to be Lorn when the 42d Con-
gress was in session, so it could not have
been specifically concerned with discrimi-
nation perpetrated against nonunion la-
borers. However, the congressional de-
bates evince a hearty regard for persons
who are victimized because of their politi-
cal beliefs and associations. Today's Ku
Klux Kian proclaims itself to be a racist
organization. But in 1871 it was regard-
ed primarily as a political one. The mo-
tives and ambitions of the Klan disturbed
the Republicans in the 42d Congress be-
cause they feared that its activities would
defeat the policies of Reconstruction and
deprive the newly emancipated blacks of
rights secured to them under the recent
amendments to the Constitution. Sena-
tor John Sherman of Ohio voiced this
coucern after he read aloud from a copy
of the Klan’s secret oath,

Conceivably, other factors may be regarded as
sufficrent to include or to exclude other classes
from § 1985(3) coverage.

SCOTT v. MOORE

showing that here is a political orguni-

zation, with political ends, political

aims; it shows that the object and in-
tent of that political organization is to
prevent large masses of the people of

the southern States from enjoying a

right which has been guaranteed to

them by the Constitution of our coun-
try.
Cong. Globe, 42d Cong., Ist Sess. 153
(1971). The Klan’s political objective
formed a recurrent theme in the Senate
debates.’

The apprehension of Republican sena-
tors over the Klan's scheme of terrorizing
citizens for their political views and of
preventing voters from exercising their
franchise also echoed throughout the de-
bates conducted in the House. Repre-
sentative Ellis Roberts of New York ex-
pressed this concern in the following
terms:

But one rule never fails: the victims

whose property is destroyed, whose

persons are mutilated, whose lives are
sacrificed, are always Kepublicans.

They may be black or white; they in-

clude those who wore the blue and

those who wore the gray; newcomers
and life-long residents, but only Repub-
licans. Stain the door lintels with the
mark of opposition to reconstruction
amd of hostility to the national Admin-
istration od the destroying angel pass-
es by. (ait that sign and the torch

9. See, e 2, Cong. Globe, 42d Cong, Ist Sess
252 (remarks of Sen. Morton) ("[t}he purpose
fot the Kian] ts by these mnumerable and
nameless cranes to drive those who are sup-
porting the Republican party to abandon their’
politcal faith or to flee the State"), i at 504
(remarks of Sen. Pratt) (the prunary purpose of
the Klan “is to punish men for thew political
opimons”), a at 702 (remarks of Sen. Ed-
mums) (the “systematic plan fof the Klan] ts
not ty leave m any of those States a brave

B-17

may kindle the roof that covers women
and chikiren.... Such uniformity of
result can come only from design. Re-
publicans only are beaten and mutilat-
ed and murdered, because the blows
are aimed at Republicans only.
Cong. Globe, 42d Cong., Ist Sess. 412-13
(1871). Other Republican congressman
expressed similar views." See generally
Comment, A Construction of Section
1985(c) in Light of its Original Purpose,
46 Univ.Chi.L.Rev. 402, 407-420 (1979).
Thus, whereas McLellan could locate no

indication of congressional purpose to
protect persons discriminated against for
filing bankruptcy petitions, the legisla-
tive history reflects a pervasive concern
for persons conspired against for their
political associations. The congressional
debates surrounding adoption of the Act
therefore provide support for including
within the ambit of section 1985(3) those
such as the plaintiffs who are punished
because of their associations.

Similarly, enlarging the scope of the
Statute to include nonunion workers who
are attacked for their choice to associate
with other nonunion workers, thereby en-
abling an employer to offer significant
work to the class, is appropriate in light
of subsequently enacted federal legisla-
tion. While Congress has specifically re-
fused to prohibit discrimination against
bankrupts in legislation it has enacted on
the subject, it has manifested a desire to

white man who dares tu be a Republican or a
colored man who dares to be a voter’)

10. See, e g, Cong. Globe, 42d Cong., Ist Sess.
72 (remarks of Rep. Blair) (the Klansmen
“murder tor a difference in pol

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0829%3A02. Public record. Not legal advice.