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poses, entered into an agreement to deprive the plaintiffs, "as citizens of the United States, of privileges and immunities, as citizens of the United States, of the rights peaceably to assemble for the purpose of discussing and communicating upon national public issues. And further, "to deprive the plaintiffs as well as the members of said club, as citizens of the United States, of equal privileges and immunities under the laws of the United States This is amplified by allegations that defendants knew of many public meetings in the locality, at which resolutions were adopted by groups with whose opinions defendants agreed, and with which defendants did not interfere or conspire to interfere. "With respect to the meeting aforesaid on November 14, 1947, however, the defendants conspired to interfere with said meeting for the reason that the defendants opposed the views of the plaintiffs . . . ."

In the effort to bring the case within the statute, the pleader also alleged that defendants conspired "to go in disguise upon the highways" and that they did in fact go in disguise "consisting of the unlawful and unauthorized wearing of caps of the American Legion." The District Court disposed of this part of the complaint by holding that wearing such headgear did not constitute the disguise or concealment of identity contemplated by the Act. Plaintiffs thereupon abandoned that part of the complaint and do not here rely upon it to support their claims.

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The complaint then separately sets out the overt acts of injury and damage relied upon to meet the requirements of the Act. To carry out the conspiracy, it is alleged, defendants proceeded to the meeting place and, by force and threats of force, did assault and intimidate plaintiffs and those present at the meeting and thereby broke up the meeting, thus interfering with the right of the plaintiffs to petition the Government for

redress of grievances. Both compensatory and punitive damages are demanded.

It is averred that the cause of action arises under the statute cited and under the Constitution of the United States. But apparently the draftsman was scrupulously cautious not to allege that it arose under the Fourteenth Amendment, or that defendants had conspired to deprive plaintiffs of rights secured by that Amendment, thus seeking to avoid the effect of earlier decisions of this Court in Fourteenth Amendment cases.

The complaint makes no claim that the conspiracy or the overt acts involved any action by state officials, or that defendants even pretended to act under color of state law. It is not shown that defendants had or claimed any protection or immunity from the law of the State, or that they in fact enjoyed such because of any act or omission by state authorities. Indeed, the trial court found that the acts alleged are punishable under the laws of California relating to disturbance of the peace, assault, and trespass, and are also civilly actionable."

2 The opinion of District Judge Yankwich for this cites in his notes, 80 F. Supp. 501, 510:

"39. Cal. Penal Code, Section 415 (disturbance of the peace of neighborhood or person); Section 403 (disturbance of public meetings)

"40. Cal. Penal Code, Section 602 (j) (illegal entry for the purpose of injuring property or property rights or interfering or obstructing lawful business of another).

"41. Cal. Penal Code, Sections 240, 241 (assault); sections 242, 243 (battery). Among the corresponding civil sections relating to civil remedies are California Civil Code, Section 43 (guarantee against personal bodily harm or restraint); Government Code, Section 241 (defining as citizens all persons born or residing within the state); California Code of Civil Procedure, Section 338 (3) [Section 338 (2)] (action for trespass to real property may be brought within three years); section 340 (3) (action for assault and battery may be brought within one year). And for the state civil rights provisions, see California Civil Code, Sections 51-54."

The District Judge held that the statute does not and cannot constitutionally afford redress for invasions of civil rights at the hands of individuals, but can only be applied to injuries to civil rights by persons acting pursuant to or under color of state law. In reversing the District Court's dismissal of the complaint, the Court of Appeals for the Ninth Circuit held otherwise, one judge dissenting. The Court of Appeals for the Eighth Circuit, in Love v. Chandler, 124 F. 2d 785, has ruled in accord with the District Judge and the dissenting Court of Appeals Judge here. To resolve the conflict, we granted certiorari.®

This statutory provision has long been dormant. It was introduced into the federal statutes by the Act of April 20, 1871, entitled, "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes." The Act was among the last of the reconstruction legislation to be based on the "conquered province" theory which prevailed in Congress for a period following the Civil War. This statute, without separability provisions, established the civil liability with which we are here concerned as well as other civil liabilities, together with parallel criminal liabilities. It also provided that unlawful combinations and conspiracies named in the Act might be deemed rebellions, and authorized the President to employ the militia to suppress them. The President was also authorized to suspend the privilege of the writ of habeas corpus. It prohibited any person from being a federal grand or

$80 F. Supp. 501.

* 183 F.2d 308.



Other recent cases involving the statute are Viles v. Symes, 129 F.2d 828; Robeson v. Fanelli, 94 F. Supp. 62; and Ferrer v. Fronton Exhibition Co., 188 F. 2d 954.

6 340 U. S. 809.

7 17 Stat. 13.

petit juror in any case arising under the Act unless he took and subscribed an oath in open court "that he has never, directly or indirectly, counselled, advised, or voluntarily aided any such combination or conspiracy." Heavy penalties and liabilities were laid upon any person who, with knowledge of such conspiracies, aided them or failed to do what he could to suppress them.

The Act, popularly known as the Ku Klux Act, was passed by a partisan vote in a highly inflamed atmosphere. It was preceded by spirited debate which pointed out its grave character and susceptibility to abuse, and its defects were soon realized when its execution brought about a severe reaction.

The provision establishing criminal conspiracies in language indistinguishable from that used to describe civil conspiracies came to judgment in United States v. Harris, 106 U. S. 629. It was held unconstitutional. This decision was in harmony with that of other important decisions during that period 10 by a Court, every member of

8 The background of this Act, the nature of the debates which preceded its passage, and the reaction it produced are set forth in Bowers, The Tragic Era, 340–348.

R. S. § 5519, under which the prosecution was brought, provided: "If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; each of such persons shall be punished by a fine of not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, not less than six months nor more than six years, or by both such fine and imprisonment."

10 Slaughter-House Cases, 16 Wall. 36; United States v. Reese, 92 U. S. 214; United States v. Cruikshank, 92 U. S. 542; Civil Rights Cases, 109 U.S. 3.

which had been appointed by President Lincoln, Grant, Hayes, Garfield or Arthur-all indoctrinated in the cause which produced the Fourteenth Amendment, but convinced that it was not to be used to centralize power so as to upset the federal system.

While we have not been in agreement as to the interpretation and application of some of the post-Civil War legislation," the Court recently unanimously declared, through the Chief Justice:

"Since the decision of this Court in the Civil Rights Cases, 109 U. S. 3 (1883), the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." 12

And MR. JUSTICE DOUGLAS, dissenting, has quoted with approval from the Cruikshank case, "The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it . . . add anything to the rights which one citizen has under the Constitution against another.' 92 U. S. at pp. 554-555." And ""The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.'" He summed up: "The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.


• ·

11 Screws v. United States, 325 U. S. 91.

12 Shelley v. Kraemer, 334 U. S. 1, 13.

13 United States v. Williams, 341 U. S. 70, 92.

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