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November 10, 1950

ROBESON et al.
FANELLI et al.

The opinion of the court was delivered by: RYAN

Plaintiffs, twenty-eight in number, seek by their complaint damages aggregating $ 2,020,000, as the result of alleged violations of the Civil Rights Statutes. 8 U.S.C.A. §§ 41, 43, 47(3) and 48. Eighty-four claims are pleaded in two hundred and twenty-six separately numbered paragraphs; the claims relate to the so-called 'Peekskill riots' of 1949.

The sixteen defendants may be conveniently divided into two general classes. One group, hereinafter referred to as the 'individuals,' includes among others the Veterans Joint Council and representatives of certain Westchester County veterans' associations. The other group, hereinafter designated as the 'officials,' is composed of various county and state officials whose duties, directly and indirectly, touch upon law enforcement in the locality where the rioting allegedly took place.

 Among the motions now made are those, joined in by substantially all defendants, testing, essentially, the jurisdiction of the court over the persons and the subject matter of the action, together with the sufficiency of the complaint to state a claim upon which relief may be granted. The latter two defects, if they exist, are never waived, and are properly presented at this time. 2 Moore, Federal Practice, 2233, 2234, (2d ed., 1948).

 The complaint is divisible into a number of separate types of claims distinct with respect to the legal principles each invokes. In all but one instance, the same claims are alleged on behalf of more than one plaintiff.

 The first such claim is directed against various members of the group heretofore denominated 'individuals' and is concerned with a certain concert scheduled for August 27, 1949, in Westchester County, New York. It is averred that the entertainment included fund raising as one of its objectives, but that, in addition, the meeting was 'to discuss issues of national importance involving basic questions of constitutional rights.' It is further alleged that the named 'individuals' conspired to prevent, disrupt and disperse the meeting with intent to deprive the gatherers of rights to free speech and assembly; and that acts of violence pursuant to the conspiracy were committed which prevented the meeting from being held.

 Crucial to the matters here at issue is the proper application to the alleged facts of Sections 43 and 47(3) of Title 8 United States Code Annotated, dealing with the protection of civil rights. Section 43 imposes liability, in an action at law, upon every person who, under color of state law, subjects, or causes to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution and laws.

 Section 47(3) authorizes an action for damages where 'two or more persons in any State of Territory conspire * * * for the purpose of depriving, either directly or indirectly, and person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws;' if any such conspirator does, or causes to be done 'any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege, of a citizen of the United States * * *.' The federal district courts are invested with jurisdiction of actions brought pursuant to the above statutes by Section 1343 of Title 28 of the United States Code Annotated.

 Plaintiffs, upon these motions, are entitled to the benefit of the most favorable inferences arising out of their complaint. Valle v. Stengel, 3 Cir., 1949, 176 F.2d 697. But a fair reading thereof does not permit the conclusion that the action of the 'individuals' named in the first claim was taken 'under color of state law.' Nor do the averments charge, with regard to the first claim, a conspiracy of the 'individuals' with any 'officials' who may have been acting 'under color of state law.' For these reasons, it is evident that Section 43 is totally inapposite to the claim now being considered.

 Whether or not a claim has been stated under Section 47(3) poses problems substantially more difficult and delicate of solution. Though this statute has been law for nearly ninety years, the only significant precedent for applying it to a factual pattern not involving state action is too youthful to have run the gamut of comment and appeal. Hardyman v. Collins, 9 Cir., 1950, 183 F.2d 308, certiorari granted, 1950, 71 S. Ct. 63.

 In general, civil liberties are beyond the constitutional power of Congress to protect from encroachment by individuals unassociated with state action, inasmuch as the prohibitions of the Fourteenth Amendment with regard to due process, and equal protection are directed against the states exclusively. In re Civil Rights Cases, 1883, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835. Nevertheless, the Hardyman opinion construed Section 47(3) as encompassing the private action of individuals. The court held that the statute could be constitutionally applied to the limited situation where such action deprived a citizen of a privilege and immunity deriving from United States citizenship, and that such part of the statute as did so was 'clearly severable' from the remainder.

 The facts alleged in the Hardyman complaint differ only in one material particular from those here considered. In that case, the meeting which was alleged to have been disrupted had also been convened to discuss affairs of national interest, but, in addition, it was understood that a resolution was there to be passed to be sent to the President, the State Department and members of Congress, intended as a petition for redress of grievances. The court held that the right peaceably to assemble and petition for redress of grievances, being an attribute of national citizenship, was within the province of Congress to protect from individual, as well as official encroachment, and that Congress had done so in Section 47(3).

 The authorities upon which the majority relied in the Hardyman decision rest their conclusions upon sound principles and state a doctrine which this court will follow. Such cases as have been cited by defendants' counsel as expressing a contrary rule. Love v. Chandler, 8 Cir., 1942, 124 F.2d 785; Viles v. Symes, 10 Cir., 1942, 129 F.2d 828, certiorari denied 1942, 317 U.S. 633, 63 S. Ct. 67, 87 L. Ed. 511; Gregoire v. Biddle, 2 Cir., 1949, 177 F.2d 579, certiorari denied, 1950, 339 U.S. 949, 70 S. Ct. 803, are distinguishable in that none involved a privilege or immunity attributable to United States citizenship. Thus, the statements therein appearing had reference only to other rights protected by the Fourteenth Amendment against state action, and, so understood in no way discord with the doctrine enunciated by the Hardyman decision.

 The claim under discussion, however, is premised solely on a deprivation of the right of assembly to discuss national issues, without mention of any interference with a purpose to petition for redress. That the one without the other is a privilege of national citizenship has never been authoritatively determined. Though the matter was discussed in Hague v. C.I.O., 1939, 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423, the question was left undetermined by a majority of the court, with an affirmative answer from three of the seven justices then sitting.

 Certainly the language in United States v. Cruikshank, 1876, 92 U.S. 542, 552, 23 L. Ed. 588, suggests that assembly for purposes other than petitioning for redress may qualify for unlimited federal protection. But see, Presser v. Illinois, 1886, 116 U.S. 252, 267, 6 S. Ct. 580, 29 L. Ed. 615. It was stated in the Cruikshank opinion: 'The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or duties of the national government, is an attribute of national citizenship, and as such, under the protection of, and guaranteed by, the United States. The very idea of a government, ...

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