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October 15, 1993

ERNESTINE SPENCER, individually as the mother of Samuel Benjamin Spencer II, deceased, and as Administratrix of the estate of Samuel Benjamin Spencer, III, SAMUEL B. SPENCER, JR., father of Samuel Benjamin Spencer, III, deceased, Plaintiffs,


The opinion of the court was delivered by: KIMBA M. WOOD



 Prior to trial of this action for state law assault and federal civil rights claims, defendants moved to dismiss the plaintiffs' federal causes of action. The court held those motions in abeyance because the parties requested additional time to prepare their legal arguments. At trial, the jury returned a verdict in favor of the plaintiffs on both the state and the federal causes of action. The court now considers defendants' motion to set aside the verdict on the federal claims, and other issues raised in the parties' post-trial briefs. For the reasons stated below, the court grants defendants' motion to vacate the jury's verdict on plaintiff's federal causes of action. The court holds that defendants are jointly and severally liable for compensatory damages awarded by the jury on the state claim, and are individually liable for punitive damages. Finally, the court vacates the judgment against deceased defendant D'Antonio and dismisses the action against him on all counts.


 In the early morning hours of May 28, 1986, the four defendants, young white men, participated in brutally beating and stabbing to death Samuel Spencer III ("Spencer"), a young black man. Spencer, who usually resided in his parents' Yonkers, New York home, was visiting his sister on Coney Island, Brooklyn. Some time after midnight, he left his sister's home and went to Nathan's restaurant, where defendants also had gone at that hour. There was some disagreement at trial as to the origin of the dispute between defendants and Spencer. Taking the evidence in the light most favorable to the plaintiffs, it appears that the altercation began when defendant Douglas Mackey, arriving by car to meet the other defendants, saw Spencer on a bicycle, looking into the parked, empty car of a friend of Mackey's who had already arrived at the restaurant. Mackey confronted Spencer, and, after heated words were exchanged, Spencer fled on his bicycle as defendants chased him by car through the streets of Coney Island. When defendants caught up with Spencer, they repeatedly beat and stabbed him. As he stabbed Spencer, defendant Casavilla said, "Die, nigger." Spencer was taken to Coney Island Hospital, where he died a few hours later.

 All four of the defendants were charged with state law crimes arising from the assault and murder of Spencer, and they all either pleaded guilty to or were convicted of various crimes. *fn1" While the criminal case was pending, Spencer's parents filed this lawsuit, alleging deprivation of Spencer's civil rights under 42 U.S.C. §§ 1981, 1985(3), and 1986, as well as pendent state law assault claims. Plaintiffs sought compensatory and punitive damages on behalf of Spencer for his pain and suffering, and on behalf of themselves for loss of their son. Judge Haight, who was originally assigned the case, placed it on the suspense calendar until the final disposition of the state's criminal case. After restoring it to the calendar and noting that all of the defendants were proceeding pro se, he sua sponte raised the issue of federal jurisdiction over the action. In a decision reported at 717 F. Supp. 1057 (S.D.N.Y. 1989) (Spencer I), he held that although the tragedy suffered by plaintiffs gave them a strong state law assault claim against defendants, plaintiffs had not stated a claim for federal civil rights violations. Regarding plaintiffs' claim pursuant to 42 U.S.C. § 1981, Judge Haight held that state action -- which was indisputably absent in this case -- was necessary to state a claim under the "equal benefit" or the "like punishment" clause of the section. Id. at 1059. As for plaintiffs' claim that defendants violated 42 U.S.C. § 1985(3), Judge Haight pointed to longstanding law that a § 1985(3) claim must be predicated on the violation of a federal right. Because the right to be free from assault -- the only right the complaint appeared to allege had been violated -- arose under state law, plaintiffs could not state a § 1985(3) claim. *fn2" Id. at 1060-62. Judge Haight consequently dismissed plaintiffs' claim for lack of federal jurisdiction, or, alternatively, failure to state a claim for which relief may be granted. Id. at 1062.

  Plaintiffs appealed to the Court of Appeals for the Second Circuit, which reversed the district court in a decision reported at 903 F.2d 171 (2d Cir. 1990) (Spencer II). Addressing only the § 1985(3) claim, the Court of Appeals held that the complaint, read liberally, could be construed to allege a violation of one of Spencer's federal rights: his right to intrastate travel, a right the Second Circuit views as part of the constitutional right to interstate travel. Id. at 174. The Court of Appeals noted the complaint's allegation that Spencer had travelled from Yonkers to Coney Island, and explained that the plaintiffs might have been able to prove at trial that the "defendants sought to injure Spencer for having come into their neighborhood." Id. at 175. If plaintiffs could prove this proposition, and show that the attack was motivated by racial animus, plaintiffs would have stated a valid § 1985(3) claim. The Court of Appeals consequently reversed the decision to dismiss plaintiffs' complaint. Although the district court had separately considered and dismissed plaintiffs' § 1981 claim, the Second Circuit chose not to address that claim, noting only that the district court "is free to reconsider its ruling at any time before the entry of a final judgment." Id. at 176. The Second Circuit also suggested that counsel be appointed for defendants. *fn3"

 On remand, the case was assigned to me.

 A. Whether Plaintiffs Had a Cause of Action Under 42 U.S.C. § 1985(3)

 Section 1985(3) grants a cause of action to victims of conspiracies to deprive a person or class of persons of the equal protection of the laws. *fn4" The United States Supreme Court recently recapitulated the requirements of a § 1985(3) claim in Bray v. Alexandria Women's Health Clinic, 122 L. Ed. 2d 34, 113 S. Ct. 753 (1993). In Bray, a group of abortion clinics and supporting organizations sued under § 1985(3) to enjoin antiabortion groups from obstructing women's access to abortion clinics. The Court held that the Bray plaintiffs had failed to state a cause of action under § 1985(3) because they had failed to meet two requirements. First, the plaintiffs had not shown that "some racial, or perhaps otherwise class-based invidiously discriminatory animus (lay) behind the conspirators' action," as required by Griffin v. Breckenridge, 403 U.S. 88, 103, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). Second, the plaintiffs had been unable to demonstrate that "the conspiracy 'aimed at interfering with rights' that are 'protected against private, as well as official, encroachment,'" as required by United Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 833, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983). Bray, 113 S. Ct. at 758. Regarding the second requirement, the Court emphasized that "it does not suffice for application of § 1985(3) that a protected right be incidentally affected." Instead, the Court explained:


The right must be "aimed at; " its impairment must be a conscious objective of the enterprise. . . . the "intent to deprive of a right" requirement demands that the defendant do more than merely be aware of a deprivation of right that he causes, and more than merely accept it; he must act at least in part for the very purpose of producing it.

 Id. at 762 (citations and footnote omitted and emphasis supplied). Although the Bray plaintiffs alleged that defendants' action hindered the exercise of their right to travel, the Court concluded that this allegation was insufficient to ground a § 1985(3) claim, because defendants' primary intent in that case was to prevent access to abortion. Interference with the right to interstate travel was irrelevant to defendants, and merely incidental to their ultimate aim. Id.

 Here, plaintiffs proved by a preponderance of the evidence at trial that defendants' actions were motivated by a discriminatory attitude toward blacks as a class (Special Verdict Form, Q. A(1)(c)), and thus there is no question that they have satisfied Bray's and Griffin's "invidiously discriminatory animus" requirement. The court thus turns to a consideration of whether plaintiffs have satisfied the "intent" requirement enunciated in Bray.

 Like the Bray claimants, plaintiffs in this action based their § 1985(3) claim on an alleged violation of Spencer's right to travel. *fn5" However, plaintiffs introduced no evidence at trial from which a jury could conclude that defendants "aimed at" or acted with the purpose of depriving Spencer of his right to travel. Indeed, the theory upon which the Court of Appeals' remand was based, see Spencer II, 903 F.2d at 175, the possibility that Spencer was in defendants' neighborhood, was not borne out by the evidence at trial: the assault did not occur in defendants' neighborhood, or in any white neighborhood, but in the predominantly black neighborhood of Coney Island where Spencer's sister lived. At trial, plaintiffs' counsel conceded that plaintiffs could not show that defendants assaulted Spencer "because he was in an area they didn't want blacks to be in." (Tr. at 99). *fn6" In short, the judgment on plaintiffs' § 1985(3) claim must be vacated under Bray, because plaintiffs did not show that defendants acted with the purpose or intent to deprive Spencer of his right to travel.

 B. Whether Plaintiffs Had a Cause of Action Under 42 U.S.C. § 1981

 Section 1981(a) provides:


All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind and to no other.

 The first and most frequently invoked portion of § 1981 is the "contracts clause," which forbids discrimination in the making and enforcement of contracts. In this action, in contrast, plaintiffs' claim is brought under the "equal benefit" and "like punishment" clauses of the statute. Although the United States Supreme Court has interpreted only the "contracts clause," the lower courts have recognized causes of action under other portions of § 1981, including the "equal benefit" and "like punishment" clauses. See, e.g., Mahone v. Waddle, 564 F.2d 1018, 1027-29 (3d Cir. 1977), cert denied sub nom. Pittsburgh v. Mahone, 438 U.S. 904, 57 L. Ed. 2d 1147, 98 S. Ct. 3122 (1978); Franceschi v. Hyatt Corp., 782 F. Supp. 712, 724 (D.P.R. 1992); Hawk v. Perillo, 642 F. Supp. 380, 392 (N.D.Ill. 1985); Central Presbyterian Church v. Black Liberation Front, 303 F. Supp. 894, 901 (E.D.Mo. 1969). There is some disagreement, however, as to the scope of these clauses. Most of the decisions interpreting them have held that state action is required to state a claim under the "equal benefit" and "like punishment" clauses of § 1981. See, e.g., Shaare Tefila Congregation v. Cobb, 785 F.2d 523, 525-26 (4th Cir. 1986), rev'd in part on other grounds, 481 U.S. 615 (1987); Mahone, 564 F.2d at 1029; Evans v. Verdon, 1992 WL 486299 (E.D.N.Y.); Brooks v. American Broadcasting Cos., Inc., 737 F. Supp. 431 (N.D.Ohio 1990); Rochon v. Dillon, 713 F. Supp. 1167, 1172 (N.D.Ill. 1989); Eggleston v. Prince Edward Volunteer Rescue Squad, 569 F. Supp. 1344, 1353 (E.D. Va. 1983), aff'd without op., 742 F.2d 1448; Williams v. Northfield Mount Hermon School, 504 F. Supp. 1319, 1332 (D. Mass. 1981). However, a few courts have extended the clauses to encompass private conduct. See, e.g., Franceschi, 782 F. Supp. at 718 (plaintiff stated claim under "equal benefit" clause for racially-motivated denial of accommodation by private hotel); Carey v. Rudeseal, 703 F. Supp. 929, 930 n.1 (N.D. Ga. 1988) (assault by members of Ku Klux Klan states claim under "equal benefit" clause); Hawk, 642 F. Supp. at 390 (racially-motivated assault by private citizens states claim under "equal benefit" clause). Neither the Supreme Court *fn7" nor the Second Circuit Court of Appeals has addressed the reach of the "equal benefit" and "like punishment" clauses. Here, the court follows the reasoning of the Court of Appeals for the Third Circuit in Mahone v. Waddle, 564 F.2d at 1029, and concludes that state action is a necessary requirement for a cause of action under the "equal benefit" or "like punishment" clauses of § 1981. Because state action is not alleged in this case, the jury verdict on plaintiffs' § 1981 claim must be vacated.

 In Mahone, the Third Circuit Court of Appeals held that § 1981 reached conduct beyond discrimination in the making and enforcement of contracts, and that plaintiffs alleging racially motivated false arrest, abuse, and false testimony by police officers stated a claim under the "equal benefit" and "like punishment" clauses of § 1981. Id. at 1027-29. Noting that a broad reading of these provisions, read in light of the Supreme Court's extension of the "contracts clause" to private conduct in Runyon v. McCrary, risked "[giving rise to a federal cause of action for every racially motivated private tort," id. at 1029, the Mahone Court limited its holding by drawing a distinction between the "contracts" clause on the one hand and the "equal benefit" and "like punishment" clauses on the other. The Court of Appeals stated:


The right to make and enforce contracts necessarily is concerned with relations between private individuals. It is usually with another individual, not the state, that a black person would seek to make a contract; it is that person's racially motivated refusal to make a contract which can cause harm to the black person. The right to make and enforce contracts can thus be infringed by private individuals and it is appropriate that private individuals be held liable for that infringement.


The words "full and equal benefit of all laws and proceedings for the security of persons and property (emphasis supplied), on the other hand, suggest a concern with relations between the individual and the state, not between two individuals. The state, not the individual, is the sole source of law, and it is only the state acting through its agents, not the private individual, which is capable of denying to blacks the full and equal benefit of the law. Thus, while private discrimination may be implicated by the contract clause of section 1981, the concept of state action is implicit in the equal benefit clause. The like punishment clause may be read in the same way.

 564 F.2d at 1029.

 This court agrees that the language of the "like punishment" clause suggests a concern with official, rather than private conduct. Although the argument that the "equal benefit" clause cannot be construed to reach private conduct is slightly less persuasive, the court finds Mahone's interpretation of that clause sound as well, because it is both natural and consistent with Supreme Court precedent. As the Mahone Court points out, creating laws "for the security of persons and property" is traditionally the role of state legislators. Although it is conceptually possible for a private party to deprive another of the "equal benefit" of those laws, it is difficult to imagine what such a deprivation would be other than the violation of the state laws themselves, coupled with a racial animus. Reading the clause to encompass this kind of conduct, however, risks creating a § 1981 action "whenever a white man strikes a black [man] in a barroom brawl." Id. at 1029. Extending the "equal benefit" clause to private conduct would have the effect of federalizing all racially-motivated state-law torts that implicate "the security of persons and property." The court does not believe that Congress intended § 1981 to reach this far.

 The need to cabin the reach of the federal civil rights laws so as not to create a "general federal tort law," Griffin v. Breckenridge, 403 U.S. at 101, has long been a theme of the Supreme Court's decisional law. In Griffin, for example, the Court held that § 1985(3) was intended to reach private conspiracies, but cautioned that the drafters of the statute "were equally emphatic that they did not believe . . . 'that Congress has a right to punish an assault and battery when committed by two or more persons within a State.'" Id. at 102. The Court expressed a similar concern in Carpenters, 463 U.S. at 834-35, and in Bray, 113 S. Ct. at 759, which articulate limitations on the applicability of § 1985(3) to private conduct in addition to the limitation set forth in Griffin.

 This concern is no less important in the context of § 1981. The Court noted in Patterson v. McLean Credit Union that, "although we must do so when Congress plainly directs, as a rule we should be and are 'reluctant to federalize' matters traditionally covered by state common law." 491 U.S. 164, 183, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989). If the "equal benefit" clause of § 1981 were extended in this case to reach private action, the court sees no limiting principle to prevent its becoming the "general federal tort law" the Supreme Court has expressly rejected. Defendants' attack on Spencer appears to be precisely the kind of "assault and battery between two or more persons within a state" that the Court has been unwilling to view as encompassed by the federal civil rights laws. Griffin, 403 U.S. at 101-103. *fn9" The court thus declines to extend § 1981 to reach plaintiffs' claim. *fn10" Because the court holds that plaintiffs failed to state a claim under § 1981, it need not address the issue of whether § 1981 creates a cause of action on plaintiffs' own behalf for the loss of their son.

 C. Additional Issues

 1. Joint and Several Liability

 In its December Order, the Court required the parties to address whether defendants should be held jointly and severally liable for all compensatory and punitive damages awarded by the jury. As to compensatory damages, the Court concludes that defendants must be held jointly and severally liable, because the evidence submitted at trial was insufficient to allow a jury to determine the degree to which the defendants' separate acts contributed to the plaintiffs' injuries. See Ravo v. Rogatnick, 70 N.Y.2d 305, 520 N.Y.S.2d 533, 538, 514 N.E.2d 1104 (1987) (joint tortfeasors are jointly and severally liable for single, indivisible injury, and jury's apportionment of responsibility among defendants is relevant only to define amount of contribution each defendant may claim from the others). New York law is clear, however, that defendants may not be held jointly and severally liable for punitive damages. *fn11" See Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 374 (2d Cir. 1988), Felice v. Delporte, 136 A.D.2d 913, 524 N.Y.S.2d 919, 920 (4th Dep't 1988).

 2. Claims against Frank D'Antonio

 Finally, as indicated in the Court's December Order, the judgment against Frank D'Antonio must be vacated and the action dismissed on all counts, because D'Antonio died prior to the trial of this action, and plaintiffs failed to continue the action against his personal representative, as required by N.Y. Est. Powers & Trusts Law § 11-3.2.


 For the reasons stated above, the court grants defendants' motion to vacate the jury's verdict on plaintiffs' federal causes of action under 42 U.S.C. §§ 1985(3) and 1981. The Clerk of the Court is directed to enter a judgment on plaintiffs' state law assault and battery claim against defendants Casavilla, Mackey, and Muriale jointly and severally, for compensatory damages of $ 250,000. The Clerk is directed to enter a judgment on the state law assault and battery claim against defendants Casavilla, Mackey, and Muriale individually, for punitive damages in the following amounts: Defendant Casavilla, $ 202,500; defendant Muriale, $ 36,000; and defendant Mackey $ 9,000. The total liability of each defendant, for both compensatory and punitive damages, is thus: Defendant Casavilla, $ 452,500; defendant Muriale, $ 286,000; and defendant Mackey, $ 259,000. *fn12" The Clerk of the Court is directed to vacate the judgment against deceased defendant D'Antonio, and to dismiss the complaint against him on all charges.


 DATED: New York, New York

 October 15, 1993

 Kimba M. Wood

 United States District Judge

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