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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). ...

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