Board of Supervisors of Louisiana State University & Agricultural & Mechanical College v Wilson Brief of Defendants-Appellants in Opposition to Motion of Appellee to Dismiss or Affirm

    To be argued by:

89-783 i
CORNELIA T.L. PILLARD

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

MRS. ERNESTINE SPENCER, 
individually and as the mother of 

Samuel Benjamin Spencer, III, deceased, 
and as Administratrix of the estate of 

Samuel Benjamin Spencer, III,
MR. SAMUEL B. SPENCER, JR., 

father of Samuel Benjamin Spencer, III, deceased.
Plaintiffs-Appellants,

vs.
FRANK CASAVILLA,
FRANK D'ANTONIO,
COSMO MURIALE,
DOUGLAS MACKEY,
JOHN DOES,

Defendant-Appellee
On Appeal from the United States District Court 

for the Southern District of New York

BRIEF OF PLAINTIFFS-APPELLANTS

JAMES I. MEYERSON 396 Broadway 
Suite 601
New York, New York 10013 (212) 226-3310

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
CORNELIA T. L. PILLARD 99 Hudson Street Suite 1600
New York, New York 10013 (212) 219-1900

Attorneys for Plaintiffs-Appellants



TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
ISSUES PRESENTED FOR REVIEW . .
STATEMENT OF THE CASE ........

Nature of the Case . . . . 
Course of Proceedings . . 
District Court Decision 

STATEMENT OF THE FACTS . . . .
SUMMARY OF ARGUMENT ..........
ARGUMENT ................

THE DISTRICT COURT APPLIED THE WRONG LEGAL STANDARD IN 
DISMISSING THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION ..............

II. PLAINTIFFS HAVE ASSERTED A COLORABLE CLAIM THAT BY 
KILLING SAMUEL SPENCER BECAUSE HE WAS BLACK, DEFENDANTS 
DEPRIVED HIM OF "THE FULL AND EQUAL BENEFIT OF ALL LAWS 
... FOR THE SECURITY OF PERSONS" IN VIOLATION OF 4 2 U.S.C. § 1981 ............ 11

III. PLAINTIFFS HAVE ASSERTED A COLORABLE CLAIM THAT 
DEFENDANTS' CONSPIRACY WAS CARRIED OUT WITH THE REQUISITE PURPOSE TO VIOLATE 42 U.S.C. § 1985(3) ..............

Plaintiffs' Allegations State a Section 1985(3) Claim Under Griffin v. Breckenridge ...........
The District Court Erred in Holding that the 
Purpose of the Conspiracy Must be to Deprive Plaintiff of Federal Rights ..............
Plaintiffs' Allegations State a Section 1985(3) 
Claim Even Under The Restrictive Standard Adopted By The District Court . . . .

CONCLUSION . . 33



CASES
Baker v. McDonald's Coro.. 686 F. Supp. 1474 . . 31
Central Presbyterian Church v. Black Liberation Front.

303 F. Supp. 894 (E.D.Mo. 1969)................  13, 15
Commonwealth of Pennsylvania v. Local Union No. 542. 

International Union of Operating Engineers.
347 F. Supp. 268 (E.D.Pa. 1972) . . . .  14

Conley v. Gibson. 355 U.S. 41 (1957)
Demiragh v. DeVos.476 F.2d 403 (2d Cir. 1973) .
Dickerson v. City Bank and Trust. 575 F. Supp. 872 (M.D.La 1983) ............................
Eggleston v. Prince Edward Volunteer Rescue Souad. 569 F.Supp. 1344 (E.D.Va. 1983), 

aff'd mem.. 742 F.2d 1448 (4th Cir. 1984)
Fowler v. McCrory. Civil Action JFM 87-1610(D.Md. December 22, 1989) ................
Gannon v. Acton. 303 F. Supp. 1240 (E.D.Mo. 1969), aff'd on other grounds.

450 F.2d 1227 (8th Cir. 1971) . . . .

10
31

32

14

13

13
Great American Federal Savings & Loan Assoc, v . Novotnv 442 U.S. 366 (1979) ! . ~ ; ~ " ]---
Griffin v. Breckenridoe. 403 U.S. 88 (1970)
Hawk v. Perillo, 642 F. Supp. 380 (N.D.I11. 1986)
Hernandez v. Erlenbusch. 368 F. Supp. 752 (D.Or. 1973) ........................

passim 
13, 29

13
Jett v. Dallas Ind. School Dist..

105 L. Ed. 2d 598 ( 1 9 8 9 ) ....................  16
Jones v . Alfred H. Maver Co.. 392 U.S. 409 (1968) . 16, 17
King v. New Rochelle Municipal Housing Authority 442 F.2d 646 (2d Cir.),

cert denied. 404 U.S. 863 (1971) . . . .  30
Levering & Garrigues Co. v. Morrin.

287 U.S. 103 ( 1 9 3 3 ) ........................  10

ii



• 14, 15
Mahone v. Waddle. 564 F.2d 1018 (3rd Cir. 1977) 

cert, denied. 438 U.S. 904 (1978) . .
McLellan v. Mississippi Power & Light Co.545 F.2d 919 (5th Cir. 1977) . .
Memorial Hospital v. Maricopa. 415 U.S. 250 (1974)
Memphis v. Greene- 451 U.S. 100 (1981)

26
30

17, 31
Nieto v. United Auto Workers Local 598r 672 F. Supd 987 (E.D.Mich 1987)............................ . 32
Patterson v.— McLean Credit Union. 109 S. Ct. 2363105 L. Ed. 2d 132 (1989) . . . 2.63' 5/ ^  12
People By Abrams v. n  Cornwell Co.,. 695 F.2d 34 

(2d Cir. 1982) , modified on other arnnnrig
718 F .2d 22 (2d Cir. 1983) . . . . ' . 20, 25, 28

Runyon v. McCrary, 427 U.S. 160 (1976)
Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988)

12

6, 27, 28, 29
Stoner v. Miller, 377 F. Supp. 177 (E.D.N.Y. 1974)
Thompson v. International Assoc, of Machinists,580 F. Supp. 662 (D.D.C. 1 9 8 4 ) ------
Tillman v. Wheaton-Haven Ren,410 U.S. 431 (1973) . .

31

32

16
'St‘ Barbara’s Greek, Orthodox Chnrrh,851 F.2d 584 (2d Cir. 1988) . . .  6, 21, 25, 26

United Brotherhood of Carpenters and Joiners
I ,0  r** 1 ̂  1 1 A T7 T __ «  -------------Local 610, AFL-CIQ y. finntt, 
463 U.S. 825 (1983) 21,

of America

United Mine Workers v. Gibbs. 383 U.S. 715 (1966)
United States v. Harris. 106 U.S. 629 (1882)
Williams v. Northfield Mount Hermon School 504 F. Supp. 1319 (D.Mass. 1981) [

25 
11
26

14

iii



STATUTES
42 U.S.C. § 1981 .
42 U.S.C. § 1982 
42 U.S.C. § 1985(3)
42 U.S.C. § 1986
New York Penal Law § 125.25

MISCELLANEOUS
Gormley, Private Conspiracies and the Constitution: a Modern Vision of 42 U.S.C. Section 1985 m .64 Tex. L. Rev. 527 (1985) ................
Comment, Developments in the Law —  Section 1981,15 Harv. C.R.-C.L. L. Rev. 29 (1980)
C. Schurz, Report on the States of South Carolina, 

Georgia, Alabama, Mississippi and Louisiana 
S. Exec. Doc. No. 2, 39th Cong., 1st Sess. (December 19, 1865) ........................

Universal Declaration of Human Rights, 
reprinted in L. Sohn, Basic Documents of the United Nations (1968) ................

passim
16

passim 
1 / 2 

31

26

16

17

32



ISSUES PRESENTED FOR REVIEW
Did the district court apply the incorrect legal standard in 

dismissing the case for lack of subject matter jurisdiction?
Does 42 U.S.C. § 1981, which prohibits racially motivated

interference with plaintiffs' right to "the full and equal benefit 
of all laws and proceedings for the security of persons and 
property," apply to private conduct?

Have plaintiffs who alleged a racially motivated conspiracy 
to violate federal rights under the Thirteenth Amendment, First 
Amendment and 42 U.S.C. § 1981, as well as rights under New York 
State tort law, stated a claim under 42 U.S.C. § 1985(3)?

STATEMENT OF THE CASE
Nature of the Case

When Samuel Benjamin Spencer, III, a young Black man, rode 
his bicycle through the Coney Island section of Brooklyn, New York 
in May 1986, six white men chased him in their cars, ran him off 
the road, kicked him, beat him with a bat, and stabbed him to 
death, yelling "You're going to die now, nigger." The racially 
motivated killing of Mr. Spencer by a white mob perpetuates tactics 
first used by the Ku Klux Klan a century ago to enforce slavery in 
practice after it had been eradicated by law. Groups of white men 
used physical violence, including murder, to intimidate Black 
former slaves and keep them on the plantations. The Reconstruction 
era civil rights laws were enacted to address precisely such 
conduct. See 42 U.S.C. §§ 1981, 1985 (3) , 1986. This lawsuit,

1



brought by Mr. Spencer's parents under those laws, seeks to remedy 
the closest modern analogue of the conduct that they originally 
addressed.

Plaintiffs claim violations of 42 U.S.C. §§ 1981, 1985(3) and 
1986, and of constitutional rights, including the right to travel, 
and the right under the Thirteenth Amendment to be free from the 
badges and incidents of slavery. The Complaint also alleged torts 
under New York State law, including wrongful death, assault, 
battery and intentional infliction of emotional distress. see 
Complaint (A4). Plaintiffs appeal from the district court's 
decision dismissing their Complaint for lack of federal subject 
matter jurisdiction. (A81). Plaintiffs seek relief under the 
clause of section 1981 which ensures "the full and equal benefit 
of all laws and proceedings for the security of persons and 
property" against deprivation on the basis of race. They contend 
that because this clause applies to purely private as well as 
governmental violations of Mr. Spencer's rights, the district 
court's opinion requiring state action should be reversed.

Plaintiffs also seek relief under section 1985(3), which is 
aimed at conspiracies motivated by invidious racial animus that 
seek to deprive, "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. . . .» 42 U.S.C. 
§1985(3). The district court acknowledged that section 1985(3) 
reaches private action, but held that "in the absence of a 
conspiratorial objective to violate a federally-assured right," as

2



opposed to rights assured by state law, plaintiffs cannot recover 
under section 1985(3). Plaintiffs contend that the district court 
erred both in failing to recognize that they have alleged 
deprivations of federal rights, and in interpreting section 1985(3) 
as inapplicable to deprivations of equal rights under state law.

The unreported opinion of District Judge Charles S. Haight, 
Jr. dismissing plaintiffs' Complaint is reproduced in the Appendix. 
(A81).

Course of Proceedings
Plaintiffs filed this case on May 18, 1987. On July 13, 1987 

counsel for defendant Frank D'Antonio in his criminal case filed 
an Answer generally denying the factual allegations of plaintiff's 
Complaint. (A22). No other defendant filed a formal answer to the 
Complaint, and none retained counsel for his defense in this 
action.

The district judge held a status conference on September 18, 
1987 and, in view of the murder prosecution then pending against 
the defendants in state court for the conduct alleged in this case, 
ordered that the case be placed on the Suspense Calendar. (A29) 
On July 5, 1988, after each of the defendants had either pleaded 
guilty or been convicted, plaintiffs moved to reactivate this 
case.1 (A36). No defendant opposed plaintiffs' motion.

1 Plaintiffs moved on February 28, 1988 for reinstatement of the case to the active court calendar for the limited purpose 
of holding a hearing to determine the assets of defendants and, if 
appropriate, tô  restrain the dissipation of assets pending 
resolution of this case. Only defendants Casavilla and D'Antonio

3



The district judge reactivated the case by Memorandum Opinion 
and Order dated November 4, 1988. (A42). The judge simultaneously
directed counsel for plaintiffs to serve all defendants with the 
Order placing the case on the court's active calendar, and an 
additional copy of the Complaint. See Notice of Entry of Opinion 
and Order (A45). The Order directed counsel for all defendants 
who had not already done so to respond to the Complaint within 45 
days after the Order was served on them. It further invited 
motions for default judgment against any defendant who did not 
respond or seek an extension of time within the specified period.
None of the remaining defendants formally responded to the

. 2Complaint.
At a pretrial conference on April 5, 1989, the court raised 

sua sponte the question whether it had federal subject matter 
jurisdiction over plaintiffs' claims, and ordered that counsel for 
plaintiffs brief the issue. See Order dated April 6, 1989 (A63). 
On June 19, 1989, plaintiffs filed their Memorandum of Law in

opposed the motion._ By Order dated April 27, 1988, the court 
denied the motion with leave to renew it at a future date. See docket entries dated 2-29-88 to 4-28-88. (A2).

_Defendant Mackey requested and was granted an extension of time within which to file a responsive pleading, but did not do 
so. (A51, A53). His aunt, Deanna Daddiego, by letter to the court 
did, however, "make a reply of General Denial" on behalf of Mackey 
which could be construed as an answer to the Complaint. (A58). 
Defendant Muriale wrote to Judge Haight and requested court- 
appointed counsel, (A52), and wrote to plaintiffs' counsel to "deny 
that there was any racial motivation whatsoever" in Mr. Spencer's 
murder. (A62). Muriale's letter, too, might be construed as a pro se answer.

4



Support of Federal Subject Matter Jurisdiction in this Litigation 
Under 42 U.S.C. Section 1981 and 42 U.S.C. Section 1985 In 
Conjunction With The Thirteenth Amendment To The United States 
Constitution. By Memorandum Opinion and Order dated July 27, 1989, 
the district court dismissed plaintiffs' federal claims with 
prejudice, and dismissed their pendent state-law claims without 
prejudice. (A81). On August 16, 1989, plaintiffs timely noticed 
this appeal. (A94).

District Court Decision
The district court reviewed the Complaint to test the court's 

subject matter jurisdiction, and then dismissed the Complaint under 
the standard applicable on a motion to dismiss for failure to state 
a claim under Federal Rule of Civil Procedure 12(b)(6).

The district court dismissed the section 1981 claim for 
failure to allege state action. Although the court recognized that 
the Supreme Court recently reaffirmed application of section 1981 
against private infringements, slip op. at 3 (A83), citing 
Patterson v. McLean Credit Union. 109 S. Ct. 2363, 105 L.Ed.2d 132 
(1989), the district court concluded that only the first clause of 
section 1981, establishing the right to "make and enforce 
contracts," applies to private conduct. Slip op. at 3-6 (A83-86). 
The court held that "the complaint at bar, involving private 
conduct of a non-contractual nature, does not allege a viable claim 
under § 1981." Slip op. at 5-6 (A85-86).

The district court dismissed plaintiffs' section 1985(3) claim

5



on the ground that, "in the absence of a conspiratorial objective 
to violate a federally-assured right, the action does not lie under 
§ 1985(3)." Slip op. at 11 (A91). The district court acknowledged 
that this Court has not required plaintiffs suing under section 
1985(3) to allege that the purpose of the conspiracy was to deprive 
them of federal rights, slip op. at 6-7 (A86-87), citing Traaais 
v. St. Barbara's Greek Orthodox Church. 851 F.2d 584 (2d Cir. 
1988), but nonetheless elected to follow the Seventh Circuit's 
restrictive interpretation of section 1985(3)'s purpose 
requirement. Slip op. at 7-8, 11 (A87-88, 91), citing Stevens v. 
Tillman, 855 F.2d 394 (7th Cir. 1988). The court did not discuss 
why it apparently found inadequate the Complaint's allegations 
showing that defendants sought to interfere with Mr. Spencer's 
federal constitutional rights to travel and associate, and his 
Thirteenth Amendment right to be free from the "badges and 
incidents of slavery." The district court concluded that 
plaintiffs' Complaint is inadequate because it "contains no 
allegations implicating a federally created or protected right." 
Slip op. at 10 (A90).

STATEMENT OF THE FACTS
Plaintiffs' Complaint seeks compensatory and punitive damages 

for the racially motivated killing of their twenty—year old son, 
Samuel Benjamin Spencer, III. See Complaint (A4).3 In the early

3 Whether^ the dismissal below was for lack of subject 
jurisdiction or for failure to state a claim, the allegations of the Complaint must be taken as true.

6



morning of May 28, 1986, when Mr. Spencer was bicycling to his 
sister's house near Coney Island in Brooklyn, New York, six white 
men pursued him in four cars, driving up onto the sidewalk and 
cutting across his path. Id., 13, 15 (A10). When Mr. Spencer 
fell off his bicycle, the men attacked him, kicking him and beating 
him with a baseball bat. Id., 16 (A10) . Defendant Frank 
Casavilla stabbed Mr. Spencer repeatedly with a knife, yelling 
"You're going to die now, nigger." Id. at 15, 16, 17 (A10) ; 
See Letter from Assistant District Attorney Daniel A. Saunders to 
Hon. Michael R. Juviler (February 22, 1988), at 1 (A33) 
[hereinafter "ADA letter"].

Mr. Spencer died at 4:40 a.m. the same day at Coney Island 
Hospital. The autopsy revealed head trauma, skull fractures, brain 
injury and stab wounds in Mr. Spencer's back. ADA letter at 1 
(A3 3) . The Medical Examiner concluded that the beating and 
stabbing caused the death, and listed the death as a homicide. 
Complaint at 21 (All).

Mr. Spencer was unarmed, and did nothing to provoke the 
attack. Id. at 23, 25 (All, 12). The defendants were hostile 
toward Mr. Spencer, and opposed his presence in their neighborhood 
and near their cars, on the basis of his race. Id. at 17, 23, 
25 (A10, 11, 12). They murdered him solely because he was Black. 
Id.

7



SUMMARY OF ARGUMENT
The district court erroneously dismissed plaintiffs' claims 

for want of subject matter jurisdiction under the legal standard 
applicable on a motion to dismiss for failure to state a claim. 
In order to state a basis for federal jurisdiction, a complaint 
need merely state a non-frivolous federal claim, not a viable one. 
Acting sua sponte with no motion to dismiss before it, the court 
in effect predicted that if defendants had filed a motion to 
dismiss the court would rule in their favor, and dismissed the case 
on that basis. This error alone requires reversal.

Even if defendants had moved to dismiss plaintiffs' Complaint 
for failure to state a claim, dismissal would have been erroneous 
on its merits. Plaintiffs have alleged that defendants, a group 
of white men conspiring together, murdered Samuel Spencer solely 
because he was Black. Such conduct is squarely prohibited by 
sections 1981 and 1985(3) of the Reconstruction Civil Rights laws.

The district court erroneously dismissed plaintiffs' section 
1981 claim for want of state action. Section 1981 does not require 
government participation. The Supreme Court in Patterson v. McLean 
Credit Union, 105 L.Ed.2d. 132, recently reaffirmed that private 
actors are liable when they interfere with a plaintiff's right 
under section 1981 to "make and enforce contracts." There is no 
basis upon which to hold that private persons are not also liable 
for interfering with the other rights section 1981 protects, 
including Mr. Spencer's right under section 1981 to "the security 
of persons."

8



The court dismissed plaintiffs' section 1985(3) claim for 
failure to allege that the object of defendants' racially-motivated 
conspiracy was to violate Mr. Spencer's federal rights, as opposed 
to his rights under state law. Neither the text of section 1985(3) 
nor its judicial construction is limited to conspiracies to violate 
federal rights. The statute addresses all racially motivated 
conspiracies to deprive persons of "equal protection of the law or 
equal privileges and immunities under the laws." Moreover, because 
plaintiffs alleged a conspiracy to deprive Mr. Spencer of equal 
"̂î jhts under federal as well as state law, the claim suffices even 
under the standard the district court purported to apply.

ARGUMENT
I. THE DISTRICT COURT APPLIED THE WRONG LEGAL 

STANDARD IN DISMISSING THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION
The district judge dismissed plaintiffs' Complaint without 

specifying the procedural posture in which it did so. The court 
stated that "[wjhether the proper procedural ruling is to dismiss 
the action for want of federal subject matter jurisdiction or to 
find a sufficient invocation of jurisdiction and then dismiss the 
federal claims under Rule 12(b)(6), F.R.Civ.P., the result is that 
the complaint must be dismissed." Slip op. at 11—12 (A91—92). In 
the context of the proceedings in this case, however, the court 
could only have dismissed the matter for want of subject matter 
jurisdiction. In doing so, the court applied an erroneous standard 
to plaintiffs' claims.

9



Defendants did not move to dismiss the Complaint. Thus, the 
court was not in a position to review plaintiffs' claims under 
Federal Rule of Civil Procedure 12(b) (6) . The court itself did not 
move to dismiss the case, nor could it have done so. Rather, the 
court specifically asked counsel to brief only subject matter 
jurisdiction, an issue that the court is empowered to raise at any 
time. Plaintiffs accordingly filed a memorandum in support of 
subject matter jurisdiction. Once the court had given notice of 
its intent to test its jurisdiction and that issue was before it, 
the court did not apply the appropriate standard. Instead, it 
reviewed the Complaint as if defendants had filed a motion to 
dismiss for failure to state a claim.

A federal court has subject matter jurisdiction so long as the 
complaint raises a federal claim that is not wholly frivolous. 
Only if a claim is "obviously without merit" because "'its 
unsoundness so clearly results from previous decisions of . . . 
[the Supreme Court] as to foreclose the subject and leave no room 
for the inference that the questions sought to be raised can be the 
subject of controversy"' should it be dismissed for want of 
jurisdiction. Levering & Garriques Co. v. Morrin. 287 U.S. 103, 
105-06 (1933) quoting Hannis distilling Co. v. BaltimorPr 216 U.S. 
285, 288 (1910). The standard for failure to state a claim upon 
which relief can be granted is much higher. See Conley v. Gibson, 
355 U.S. 41, 45-46 (1957). Under that standard, the plaintiffs 
must show more than room for "controversy" about their claims; they 
must explain why any open legal questions should be decided in

10



their favor.
Here, plaintiffs were asked only to address subject matter 

jurisdiction. The court's sua sponte dismissal of plaintiffs' 
claims on their merits raises serious constitutional problems, 
especially where plaintiffs were given no notice that the court 
intended to review the Complaint on its merits. If the Complaint 
states even a single non-frivolous federal claim, the court has 
jurisdiction over the entire case. See United Mine Workers v. 
Gibbs, 383 U.S. 715 (1966). If defendants had continued to fail 
bo respond in this lawsuit, motions for default judgment would have 
been appropriate. Thus, unless this Court finds plaintiffs' 
federal claims to be wholly frivolous, the case must be remanded.

II. PLAINTIFFS HAVE ASSERTED A COLORABLE CLAIM 
THAT BY KILLING SAMUEL SPENCER BECAUSE HE WAS 
BLACK, DEFENDANTS DEPRIVED HIM OF "THE FULL 
AND EQUAL BENEFIT OF ALL LAWS . . . FOR THE 
SECURITY OF PERSONS" IN VIOLATION OF 42 U.S.C § 1981

When defendants chased Mr. Spencer in their cars and attacked 
him in the early morning hours, they deprived him of the full and 
equal benefit of New York State laws prohibiting assault and 
murder. Defendants acted quickly, leaving no opportunity for law 
enforcement intervention to save Mr. Spencer. They outnumbered and 
overwhelmed Mr. Spencer, preventing him from calling for help. By 
the time the defendants were apprehended, the crimes had already 
been completed and Mr. Spencer was dead.

The district court's conclusion that section 1981 does not 
cover such conduct because it was perpetrated by private persons

11



rather than state actors cannot be sustained even under the Rule 
12(b)(6) standard that the district court improperly applied. 
Under the appropriate subject-matter jurisdiction standard, it is 
indisputable that plaintiffs asserted at least a colorable claim 
that defendants' conduct violated section 1981.

Section 1981 applies to racially motivated private conduct 
that interferes with "the security of persons."4 In Patterson v. 
McLean Credit Union, 105 L.Ed.2d. 132, the Supreme Court reaffirmed 
the holding of Runyon v. McCrary, 427 U.S. 160 (1976) , that section 
1981 prohibits private as well as official deprivations of the 
statutory right to "make and enforce contracts." Application of 
section 1981 to private conduct, the Court observed, "is entirely 
consistent with our society's deep commitment to the eradication 
of discrimination based on a person's race or the color of his or 
her skin." 105 L.Ed. at 149.

Section 1981 is written as a single sentence, and the 
rationales of Patterson and Runvon should not be limited to the 
statute's first phrase. The lower courts have accordingly applied 
section 1981 to private conduct that deprived plaintiffs of the

Section 1981 of Title 42 of the United States Codeprovides:
All persons within the jurisdiction of the United States 
shall have the same right 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 no other.

12



II In"equal benefit of all laws . . . for the security of persons.
Hawk v. Perillo. 642 F. Supp. 386-87, 388-92 (N.D.I11. 1986), for 
example, the court sustained the Black plaintiffs' section 1981 
claim under the "equal benefit" clause based on allegations that 
a group of white men had attacked and severely beaten plaintiffs 
while yelling racial insults at them. In Hernandez v. Erlenbusch. 
368 F. Supp. 752, 755-56 (D.Or. 1973), the court held a private
group of white men liable under section 1981 for beating up 
plaintiffs who had angered the defendants by speaking Spanish in 
a local tavern that had an English-only rule.5 See Gannon v. 
Acton, 303 F. Supp. 1240, 1244-45 (E.D.Mo. 1969), aff'd on othgr
grounds, 450 F.2d 1227 (8th Cir. 1971) (holding Black civil rights 
demonstrators liable under section 1981's guarantee of "equal 
benefit of all laws . . . for the security of . . . property" for 
disrupting a white congregation's church services in violation of 
the plaintiffs' rights to use their church property as they chose); 
Central Presbyterian Church v. Black Liberation Front. 303 F.Supp. 
894, 901 (E.D.Mo. 1969) (same); cf. Fowler v. McCrory. Civil Action 
JFM 87-1610, slip op. at 5-8 (D.Md. December 22, 1989) (slip 
opinion attached) (recognizing an employee's right to "give 
evidence" on an equal basis with white persons against private

The court did not rely on the fact that the tavern was 
publicly licensed, and although discriminatory denial of contracts 

"the purchase of beer also provided a ground for section 1981 
liability, the court invoked the "equal benefits" clause as well 
to find that plaintiffs' "rights to buy, drink and enjoy what the 
tavern has to offer on an equal footing with English-speaking customers" had been violated. Id at 755.

13



interference by his employer); Commonwealth of Pennsylvania v. 
Local Union No. 542, International Union of Operating Engineers. 
347 F. Supp. 268, 289-90 (E.D.Pa. 1972) (enjoining labor union 
under the "give evidence" clause from interfering with plaintiff's 
pursuit of an employment discrimination suit).

In view of the clear applicability to private conduct of the 
section 1981 right to "make and enforce contracts," there is no 
basis for failing to so apply the "equal benefit" clause as well. 
In drawing a distinction between the first clause and the later 
clauses of the statute, the district court adopted reasoning from 
Mahone v. Waddle. 564 F.2d 1018, 1029 (3rd Cir. 1977), cert. 
denied, 438 U.S. 904 (1978), that the words of the "equal benefit" 
clause "suggest a concern with relations between the individual and 
the state, not between two individuals," and thus are not protected 
from deprivation at private hands. Slip op. at 4-5 (A84-85) . ® 
That reasoning was dictum in Mahone, however, and is inconsistent 
with the text and legislative history of section 1981.

In Mahone, Black citizens of Pittsburgh sued individual police 
°^^^cers and the City for racially motivated beating and 
harassment. There were no private defendants in the case, and

The two additional cases upon which the district court relied merely follow this reasoning with no additional support. 
Eggleston— v_.— Prince Edward Volunteer Rescue Squad. 569 F.Supp. 
1344, 1353 (E.D.Va. 1983), aff* 1 d mem. . 742 F.2d 1448 (4th Cir.
I984)'* Williams_v. Northfield Mount Hermon School. 504 F. Sunn1319, 1332 (D.Mass. 1981).

14



, 7state action was clearly alleged. The court's opinion mentioned 
application of section 1981 to private conduct only in passing, to 
respond to the City's suggestion that allowing plaintiffs to 
recover under section 1981 for the officers' battery would create 
"a section 1981 action in federal court whenever a white man 
strikes a black in a barroom brawl." 564 F.2d at 1029. The court 
referred to the state action requirement as potential limiting 
principle on the "equal benefit" clause. Id.

The Mahone court's rationale for opining that the "equal 
benefit" clause does not apply to private conduct was that "the 
concept of state action is implicit in the equal benefits clause," 
because "the state, not the individual, is the sole source of 
laws." 564 F. 2d at 1029. The Supreme Court in Griffin v. 
Breckenridge, 403 U.S. 88 (1970), rejected just such an argument, 
however, in construing section 1985 (3) 's similar language to apply 

private actors. At issue there was a prohibition on 
depriving persons of "the equal protection of the laws, or the 
equal privileges and immunities under the laws." The Court held 
that "there is nothing inherent in the phrase that requires the 
action working the deprivation to come from the State." 403 U.S.

The Mahone court was careful to specify that "[i]n the instant case, of course, the complaint does allege state action," 
and that accordingly the court did not need to decide more than 
whether such state action was covered. 564 F.2d at 1030. Indeed, 
among several decisions the court cited with approval was Central 
Presbyterian Church, 303 F. Supp. 894, which applied the "equal 
benefits" clause to private action; the Mahone court stated "[olur 
own examination of section 1981 leads us to believe that its reach 
is as wide as these cases would indicate." Id. at 1027.

15



at 345. Similarly, with respect to section 1981's "equal benefit" 
clause, "[ajccepting the premise that the state is the sole source 
of law does not necessarily lead to the conclusion that only the 
state can deprive a citizen of the equal benefit of the laws." 
Comment, Developments in the Law —  Section 1981, 15 Harv. C.R.- 
C.L. L. Rev. 29, 138 (1980). Indeed, just as only the State can
bestow the "equal benefit of the laws," only the State can 
"enforce" a contract or fail to do so; Patterson's holding that the 
enforcement of contracts is protected against private interference 
thus suggests that private obstruction of the "equal benefit of the 
laws" is also actionable under the statute.

The Supreme Court's observation in Griffin that the failure 
to mention a state action requirement strongly indicates 
Congressional intent not to impose one is equally applicable to 
section 1981's "equal benefit" clause. See 403 U.S. at 435. in 
contrast to section 1981, the Fourteenth Amendment specifies that 
it constrains only the "State," and section 1983 of Title 42 
explicitly prohibits only conduct "under color of state law." 
Indeed, in view of the Supreme Court's decision in Jett v. Dallas 

•— School— Dist. , 105 L. Ed. 2d 598, 624 (1989) , that the section
1981 claims of plaintiffs suing state actors are superseded by 
their section 1983 claims, affirmation of the district court's view 
would render the "equal benefit" clause a nullity.8

g The Supreme Court has also held that 42 U.S.C. § 1982 applies to private conduct. See Jones v. Alfred H. Maver Co.r 392 
U.S. 409 (1968). In view of their parallel wording' and
contemporaneous enactment, section 1981 and section 1982 are 
similarly construed. See Tillman v, Wheaton~Haven Rec. Assoc.. 410

16



The legislative history of section 1981 further supports the
conclusion that the law applies to private obstruction of "equal
benefit of the laws." As the Supreme Court has emphasized, the
1866 Congress "had before it an imposing body of evidence pointing
to the mistreatment of Negroes by private individuals and
unofficial groups, mistreatment unrelated to any hostile state
legislation." Jones v. Alfred H. Mayer Co.. 392 U.S. at 427. A
substantial part of that evidence was a report drafted by Major
General Carl Schurz on the States of South Carolina, Georgia,
Alabama, Mississippi and Louisiana, S. Exec. Doc. No. 2, 39th
Cong., 1st Sess. (December 19, 1865). See Memphis v. Greene. 451
U.S. 100, 131 n. 4 (1981) (White, J., concurring). The abuses
Schurz reported were almost exclusively private. Among the forms
of widespread violence by whites against newly freed Black
citizens, Schurz reported that

In many instances Negroes who walked away from 
plantations, or were found upon the roads, were shot or 
otherwise severely punished, which was calculated to 
produce the impression among those remaining with their 
masters that an attempt to escape from slavery would result in certain destruction.

S. Exec. Doc. No. 2, at 17. General Schurz1 s report was the 
preeminent account of Southern conditions when section 1981 was 
enacted, and it was apparently instrumental in convincing Senator 
Trumbull, the author and sponsor of the Civil Rights Act of 1866, 
that federal legislation was needed. See Cong. Globe, 39th Cong.,

U.S. 431, 439-440 (1973).

17



1st Sess. 43.
The 18 66 Congressional debates show that the members were 

unwilling to tolerate private deprivations of the rights of ex­
slaves, whether or not those rights were concerned with the making 
and enforcement of contracts. Senator Wilson, in the first speech 
on the condition of former slaves, referred to killings as among 
the "outrages and cruelties" by private citizens. Cong. Globe, 
39th Cong., 1st Sess. 39-40. Other speakers also referred to 
killings, and to mobs of white men enforcing a de facto pass 
system. Cong. Globe, 39th Cong., 1st Sess. at 1159-60 (remarks of 
Rep. Windom)? id. at 1759 (remarks of Sen. Trumbull); id. at 1833- 
35 (remarks of Rep. Lawrence) ; id. at 1838-39 (remarks of Rep. 
Clark). As Representative Windom explained it, the bill "provides 
safeguards to shield [the freedmen] from wrong and outrage, and to 
protect them in enjoyment of that lowest right of human nature, the 
right to exist." Id. at 1159. Faced with extensive evidence of 
private acts aimed at perpetuating the subjugation of Blacks, 
including evidence of racially motivated murder, Congress enacted 
section 1981 to redress all such acts and not merely interference

9

Congressional records show that as late as Dec 13, 1865, Senator Trumbull remained uncertain whether the former slaves' 
situation demanded federal legislation. His conditional position 

that point was that "we may pass a bill, if the action of the 
people in the southern States should make it necessary," but he 
continued to harbor the "hope that such legislation may be 
unnecessary" on the ground that "there may be a feeling among [the 
people of the south . . .  which shall not only abolish slavery in 
name but in fact." Id. The Schurz report was released December 
19, 1865, and on January 5, 1866, Senator Trumbull introduced the legislation that became section 1981.

18



with contractual rights.
In view of the wording, structure, and history of section 

1981, as well as the numerous precedents supporting the application 
of the "equal benefit" clause to private conduct, plaintiffs' 
section 1981 claim cannot be deemed "obviously without merit." 
Indeed, it would survive a properly filed and briefed motion to 
dismiss. Therefore, the decision of the district court must be 
reversed.

III. PLAINTIFFS HAVE ASSERTED A COLORABLE CLAIM 
THAT DEFENDANTS' CONSPIRACY WAS CARRIED OUT 
WITH THE REQUISITE PURPOSE TO VIOLATE 42 U.S.C. § 1985(3)

The only inadequacy the district court identified in 
plaintiffs' section 1985(3) claim concerned the allegations of the 
conspirators' purpose in killing Mr. Spencer.10 The court held 
that unless the conspiracy was alleged to have been aimed at 
depriving Mr. Spencer of federal rights independent of section 
1985 (3) , in addition to being motivated by racial animus, it was

The text of section 1985(3) relevant to the allegations in this case states:
If two or more persons in any State or Territory
conspire . . . for the purpose of depriving, either 
directly or indirectly, any person or class of persons 
of the equal protection of the laws or the equal
privileges and immunities under the laws; . . . [and] 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, or deprived of having or exercising 
any right or privilege of a citizen of the United States, 
the party so injured or deprived may have an action for 
the recovery of damages, occasioned by such injury or 
deprivation, against any one or more of the conspirators.

19



not carried out with a purpose actionable under section 1985(3). 
Slip op. at 11 (A91). This conclusion is wrong as a matter of law 
and fails to credit appropriately the allegations of the Complaint.

Under section 1985(3) as interpreted by the Supreme Court in 
Griffin. 403 U.S. at 101-02, and by this Court in People By Abrams 
v..11 Cornwell Co.. 695 F.2d 34, 41-42 (2d Cir. 1982), modified on 
other,,, grounds, 718 F.2d 22 (2d Cir. 1983) (in banc), plaintiffs 
need only allege that defendants acted with racial animus when they 
killed Mr. Spencer. Plaintiffs' Complaint contains clear 
allegations of racial animus. Complaint at 17, 23, 25 (A10, 11, 
12) . Even if this Court were to adopt the additional legal 
requirement imposed by the district court that the conspiracy aim 
to deprive Mr. Spencer o'f federally-assured rights, plaintiffs' 
Complaint also meets that standard. Plaintiffs alleged that 
defendants conspired to violate Mr. Spencer's constitutional right 
to be free from the badges and incidents of slavery under the 
Thirteenth Amendment, his constitutional right to travel, and his 
right to the "equal benefit of all laws . . . for the security of 
persons" under section 1981. See Complaint (A4).

A. Plaintiffs' Allegations State a Section 1985(3)Claim Under Griffin v. Breckenridae__________
The allegations of plaintiffs' Complaint in this case closely 

parallel those sustained by the Supreme Court in Griffin v. 
Breckenridge, 403 U.S. 88. In Gr iff in, a group of Black persons

riding in a car. Id. at 90. Two white men drove their truck 
into the car's path, forced the plaintiffs from the car, prevented

20



their escape by threatening to shoot them, and beat them on their 
heads with a club. Id. at 90-91. The Supreme Court reversed prior 
precedent holding section 1985(3) inapplicable to purely private 
conspiracies, and held that the plaintiffs could recover on the 
facts alleged. The only difference between the allegations in that 
case and this one is that Mr. Griffin and his companions survived, 
whereas Mr. Spencer did not.11

Plaintiffs' Complaint meets the four-part test that the 
Supreme Court set forth in Griffin and that the district court 
purported to apply here:

To state a cause of action under § 1985(3) a plaintiff 
must allege (1) a conspiracy (2) for the purpose of 
depriving a person or class of persons of the equal 
protection of the laws, or the equal privileges and 
immunities under the laws; (3) an overt act in 
furtherance of the conspiracy; and (4) an injury to the 
plaintiff's person or property, or a deprivation of right or privilege of a citizen of the United States.

Slip op. at 6 (A86) , guotincr Traggis v. St. Barbara's Greek
Orthodox.Church, 851 F.2d at 586-87, citing Griffin. 403 U.S. at
102-03. See United Brotherhood of Carpenters and Joiners of
America, Local 610, AFL-CIO v. Scott. 463 U.S. 825, 828-29 (1983)
(affirming Griffin's four-part test). The Complaint alleges a
conspiracy in that "Defendant parties, individually and
collectively, . . . acted together and in concert in the attack,
assault, battery and beating." Complaint at 15 (A10). it
alleges the kind of purpose prohibited by section 1983 in that *

The Supreme Court's holding that plaintiffs' interstate travel rights were implicated does not distinguish that case from this one. See infra, [27-28 and n. 16].

21



defendants "savagely and brutally beat[]" Mr. Spencer "because he 
was Black and the defendant parties, as individuals, were hostile 
toward him because of his race as a Black individual." Complaint, 
at 17 (A10) ; see id. at 23, 25 (All). Allegations that
defendants "kicked, punched, and, ultimately beat[] with a baseball 
bat and otherwise stabbed [plaintiff] with a knife" describe overt 
acts in furtherance of the conspiracy. Complaint at 16 (A10). 
Finally, plaintiffs alleged injury to Mr. Spencer's person as a 
result of the conspiracy: he "suffered much pain, physical and
mental, as a consequence of the beating inflicted upon him 
including the stabbing and the battering with the baseball bat by 
the defendant parties," and then "died on May 28, 1986 after being 
taken to Coney Island Hospital from the scene of the brutal and 
savage assault. . . ." Complaint, at 24, 18 (All); see id., at 

19-22 (All).
The district court erred in holding that the Complaint failed 

to meet the second part of the Griff in test, which requires that 
the conspiracy be "for the purpose of depriving, either directly 
or indirectly, any person or class of persons of the equal 
protection of the laws, or equal privileges and immunities under 
the laws." 403 U.S. 102-03 ; see slip op. at 6 (A86).12 Under
Gr_i_ffiri/ that element is satisfied by an allegation of racial 
animus: "The language requiring intent to deprive of equal

12 The district court did not question the sufficiency of 
plaintiffs' allegations under parts (1), (3) and (4) of the Griffin test. -------

22



protection, or equal privileges and immunities, means that there
must be some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators' action." 403 U.S.
at 102 (emphasis added in Griffin).13

Contrary to the suggestion of the district court, slip op. at
7-9 (A87-89), Griffin did not hold, or even assume, that section
1985(3) covers only conspiracies aimed at interfering with federal
rights.14 The district court reached this conclusion because it
believed that otherwise section 1985(3) would federalize all state
torts. Slip op. at 9 (A89) . But the Court in Griffin squarely
held that that problem was resolved by the requirement of class-
based animus, and did not suggest a further requirement that the
purpose of conspiracy be to violate rights under federal as opposed
to state law. Griffin held that

[t]he constitutional shoals that would lie in the path 
of interpreting § 1985(3) as a general federal tort law 
can be avoided by giving full effect to the congressional 
purpose —  by requiring,_ as an element of the cause of 
action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment.

403 U.S. at 102.

The Court relied in part on the remarks of Representative Shellabarger, section 1985(3)'s House sponsor, who described the 
purpose requirement as ensuring "that any violation of the right 
the animus of which is to strike down the citizen, to the end that 
he may not enjoy equality of rights as contrasted with his and 
other citizens' rights, shall be within the scope of the remedies of this section." 403 U.S. at 100.

14 The aspect of § 
deprivation of rights 
403 U.S. at 102, n.10

Court specifically stated that "[t]he motivation 
1985(3) focuses not on scienter in relation to 

but on invidiously discriminatory animus."

23



So long as the requisite racial animus is present, 
conspiracies aimed at depriving a person of the equal protection 
of state or federal law alike meet the Griffin standard. The need 
referred to by the district court "on the one hand to avoid turning 
all state torts into federal offenses and on the other to give some 
content to a statute that if read naturally speaks only to state 
action and therefore duplicates § 1983," slip op. at 8 (A88), was 
fulfilled by Griffin's reading of section 1985(3) to require racial 
animus.

Plaintiffs alleged racial animus. Complaint at 17, 23, 25 
(A10, 11, 12). Those allegations have already been substantiated 
with testimony that Defendant Frank Casavilla shouted "you're going 
to die now, nigger," as he stabbed Samuel Spencer to death. See

i/ (A33) . Plaintiffs clearly have alleged an 
adequate basis for subject matter jurisdiction over their section 
1985(3) claim, and indeed have stated an actionable claim under 
that section.

B. The District Court Erred in Holding that the 
Purpose of the Conspiracy Must be to Deprive Plaintiff of Federal Rights___________

The district court required that the conspiracy both be 
motivated by racial animus and be carried out with the purpose of 
depriving plaintiffs of federally protected rights. Slip op. at 
11 (A91) . Even if the district court is correct that the 
conspiracy must aim to deprive a plaintiff of some right 
independent of section 1985(3), see slip op. at 7 (A87), citing

24



Great American Federal Savings & Loan Assoc, v. Novotnv. 442 U.S. 
366, 372 (1979), there is no basis upon which to require that the 
right be one protected by federal rather than state law.

To the extent that a purpose to deprive a plaintiff of rights 
independent of section 1985(3) is required under the statute, the 
Supreme Court in Scott suggested that "rights, privileges or 
immunities under state law or those protected against private 
action by the Federal Constitution or federal statutory law" all 
might qualify. 463 U.S. at 834.15 This Court has not read section 
1985(3) to require allegations that defendants conspired for the 
purpose of violating federal rights. In Tragqis v. St. Barbara's 
Greek Orthodox Church. 851 F.2d at 587, the Court acknowledged a 
controversy over the extent to which section 1985(3) applies to 
private conspiracies "to deprive persons or classes of persons of 
the equal protection of, or equal privileges and immunities under, 
federal statutory or state law," but did not take a position in 
that controversy because the state-law claim at issue in Tracrais 
was incompatible on other grounds with the section 1985(3) remedy. 
851 F. 2d at 590 (following Novotnv in declining to apply section 
1985(3) remedy when it would undermine detailed administrative 
procedures in separate law). Tragqis did recognize, however, that 
the most recent relevant precedent in this Circuit, People By

In Scott, the Court found it unnecessary to remand the case for a determination whether any such violation was involved 
because it affirmed the set-aside of the injunction on the basis 
that pro-union animus is not actionable class-based animus under section 1985(3). Id.

25



Abrams v. 11 Cornwell. 695 F.2d at 42, suggested that plaintiffs 
injured by defendants acting with a class-based animus to deprive 
plaintiffs of state-law rights can sue under section 1985(3). 851
F.2d at 588-89 (noting that 11 Cornwell cited with approval the 
holding of Life Insurance Co. of North America v. Reichardt. 591 
F.2d 499, 505 (9th Cir. 1979), that state-conferred rights can be 
remedied under section 1985(3)). The Fifth Circuit is also in 
accord with this view. See McLellan v. Mississippi Power & Light 
Co_;_, 545 F. 2d 919, 926-27 (5th Cir. 1977) (en banc) (holding that 
§ 1985(3) requires a purpose to commit an independent violation of 
federal or state law, with three members dissenting on the ground 
that no deprivation of any independent right need be alleged). see 
generally Gormley, Private Conspiracies and the Constitution: 
A Modern Vision of 42 U.S.C. Section 1985 m  . 64 Tex. L. Rev. 527, 
587 (1985) ("Section 1985 (3) —  unlike section 1983 —  does not 
require the deprivation of some constitutionally or federally 

right . . . .  the right at stake will normally be the 
equal protection of state laws —  trespass laws, contract laws, 
property laws, and tort laws").16

In United States v. Harris. 106 U.S. 629 at 643 (1882), 
the Supreme Court discussed how "one private person can deprive 
another person of the equal protection of the laws" in the meaning 
°f. t,he language that appears in both section 1985 (3) and its criminal analogue under review in Harris. The Supreme Court there 
interpreted the language to include "the commission of some offense against the laws which protect the rights of persons, as by theft, 
burglary, arson, libel,^ assault or murder." Id. Although the 
Supreme Court in Harris struck down the criminal statute as 
unsupported by any Constitutional authority (an issue resolved for 
current purposes by Griffin), plaintiff's claim in this case is 
supported by the Supreme Court's view, just sixteen years after 
passage of section 1985(3), that the language encompasses a

26



In determining that a purpose to violate federal rights is 
required, the district court relied substantially upon Stevens v. 
Tillman, 855 F.2d 394. There, the Seventh Circuit rejected a white 
school principal's claim that the Black president of a parent- 
teachers' association and others had violated her rights under 
section 1985(3) by conspiring to commit such acts as trespass 
during a sit-in, assault in the form of verbal threats, and slander 
in statements to reporters. Id. at 395, 405. The court dismissed 
plaintiff's claim because she "does not contend that [defendant] 
violated any of her rights under state law . . . for the purpose 
or with the effect of inducing her to surrender or refrain from 
exercising rights secured by federal law." Id. at 404. The 
Seventh Circuit thus demanded an additional federal "hook," id. at 
405, beyond the race-based animus required under Griffin.

This Court should not follow Stevens, which misread Griffin 
and is inconsistent with the plain language of section 1985(3). 
The court in Stevens cited no precedent for its view, and appears 
to have considered itself to be developing new law. Its rationale 
for developing an added requirement reiterates the concern 
articulated and resolved by the Supreme Court in Griffin: to avoid 
federalizing all state tort law. Stevens. 855 F.2d at 404. As 
noted above, however, the Court in Griffin was satisfied that the 
requirement of race—based animus was the "hook" Congress used to 
distinguish harms properly remedied only under state law from the

conspiracy to commit murder.

27



efforts to re-subjugate the former slaves for which Congress chose 
to provide an additional, federal remedy. Stevens misreads Griffin
to require a section 1985(3) plaintiff to allege "that the offense 
deprives him of a right secured by a federal rule designed for the 
protection of all." 855 F. 2d at 404 (emphasis added). The Supreme 
Court in Griffin stated only that the conspiracy must "aim at a 
deprivation of the equal enjoyment of rights secured by the law to 
all," with no requirement that the rights be federally protected. 
403 U.S. at 102.

Stevens also makes no attempt to reconcile its view with 
section 1985(3)'s explicit reference to "an injury to the 
plaintiff's person or property" as among the harms actionable under 
the law. Indeed, the Stevens opinion fails even to reproduce that 
portion of the law in its initial recitation of section 1985(3) 's 
requirements. Compare 855 F.2d at 403 with Griffin. 403 U.S. at 
103. The Stevens "rule" supports the bizarre result that if 
private murder is deemed to be prohibited by state but not federal 
law, but see infra Part III.C., (discussing Thirteenth Amendment 
rights), a victim of a Klan lynching who did not also have a claim 
against the Klan for interference with his rights to speak, 
assemble, or vote, for example, would have no section 1985(3) 
claim. Surely coverage of the statute popularly known as the "Ku 
Klux Klan Act" is not so arbitrarily narrow.

Under precedents in the Supreme Court and this Circuit, 
plaintiffs have stated a section 1985(3) claim. The district court 
therefore clearly erred in concluding that it had no subject matter

28



jurisdiction. Cf. 11 Cornwell. 695 F.2d at 38 (holding that a 
section 1985(3) claim seeking to remedy a violation of state law 
was sufficiently substantial to provide a basis for federal 
jurisdiction, and proceeding to first decide separate state-law 
claim). Even the Seventh Circuit in Stevens expressed uncertainty 
whether its decision was right, "either as an interpretation of the 
law or as a wise rule." 855 F.2d at 405. Accordingly, plaintiffs' 
section 1985(3) claim clearly was not foreclosed.

C. Plaintiffs' Allegations State a Section 1985 (3)
Claim Even Under The Restrictive Standard Adopted By the District Court____________ _

Even if this Court were to agree with the district court that, 
"in the absence of a conspiratorial objective to violate a 
federally-assured right, [an] action does not lie under section 
1985(3)," slip op. at 11 (A91), reversal would still be appropriate 
because plaintiffs have alleged that defendants sought to deprive 
plaintiff of several rights under federal law.

allegations demonstrate that the conspiracy was 
aimed at depriving Mr. Spencer of his constitutional right to 
freedom of movement and travel. See Complaint at 13, 14 (A10) 
As Griffin itself acknowledged, the right of interstate travel is 
protected by the federal constitution against private conduct. 403 
U.S. at 105 (citing cases). The facts alleged in the Complaint are 
analogous to those in which courts have found grounds for an 
inference that plaintiffs were engaged in interstate travel. See

29



Griffin. 403 U.S. at 90-91, 105-0617; Hawk v. Perillo. 642 F. 
Supp. at 387 (finding allegations that defendant sought to deter 
plaintiffs "'from the free use of highways and entering the subject 
neighborhood"' sufficient to support claim of conspiratorial 
interference with right of interstate travel in violation of 
§ 1985 (3)) .

Even if plaintiffs' allegations fail to support an inference 
of obstruction of interstate travel, they clearly implicate a right 
of movement and travel within the state. The allegations show that 
defendants aimed to keep Mr. Spencer from traveling the route he 
took through their neighborhood, down their street, and past 
defendants' parked cars by which they were gathered. Although the 
Supreme Court has not decided whether the constitutional right to 
travel applies to movement within a state, see Memorial Hospital 
v,„ Maricopa, 415 U.S. 250, 255-56 (1974) (declining in dicta to 
draw a distinction between interstate and intrastate travel), this 
Court has specifically held interstate and intrastate travel to be 
equally protected. King v. New Rochelle Municipal Housincr

There is no allegation in Griffin that plaintiffs were engaged in interstate travel. The Complaint merely specified that 
they "were travelling upon the federal, state and local highways, 
in and about DeKalb, Mississippi, performing errands and visiting 
friends." 403 U.S. at 90. There is no basis upon which to assume 
that the road upon which the plaintiffs in Griffin were traveling 
when they were attacked was a federal highway, or that their 
errands had taken them from one state to another. It is just as 
likely that Mr. Spencer had visited friends in New Jersey on the 
day he was killed as that the plaintiffs in Griffin had been doing 

in Tennessee. The weakness of the inference of interstate travel in Griffin suggests that the interstate aspect of the travel was not crucial to the Court's analysis.

30



Authority, 442 F.2d 646, 648 (2d Cir.), cert denied. 404 U.S. 863 
(1971) (holding that "it would be meaningless to describe the right 
to travel between states as a fundamental precept of personal 
liberty and not to acknowledge a correlative constitutional right 
to travel within a state); Demiraah v. DeVos. 476 F.2d 403, 405 
(2d Cir. 1973); Stoner v. Miller. 377 F. Supp. 177, 180 (E.D.N.Y. 
1974) .

The Complaint also alleges that defendants conspired to 
violate Mr. Spencer's Thirteenth Amendment right to be free from 
the "badges and incidents of slavery." See Complaint, 31, 34, 
37, 40, 51, 55 (A13, 14, 15, 16, 18, 19). Protection of Thirteenth 
Amendment rights was a primary purpose of section 1985(3). 
Griffin, 403 at 104-05; Memphis v. Greene. 451 U.S. 100, 125 n. 38 
(identifying section 1985(3) as among several statutes implementing 
the Thirteenth Amendment). As the Court in Griffin explained, the 
Thirteenth Amendment prohibits more than "the actual imposition of 
slavery or involuntary servitude. By the Thirteenth Amendment, we 
committed ourselves as a Nation to the proposition that the former 
slaves and their descendants should be forever free." 403 U.S. at 
105. Any action "aimed at depriving [Negro citizens] of the basic 
rights that the law secures to all free men" violates the 
Thirteenth Amendment as implemented by section 1985(3). 403 U.S. 
at 105. The right to life is a fundamental aspect of personal

18 See Baker v. McDonald's Corn.. 686 F. Supp. 1474, 1480 and n. 12 (S.D.Fla. 1987) (explaining in dictum that "the 
Thirteenth Amendment is implicated when it is alleged that a 
P^^vate individual or entity acted in a way to segregate, humiliate 
or belittle a person of the Negro race in a way that prevented such

31



freedom in state, federal and international law. See New York 
Penal Law § 125.25? Fourteenth Amendment to the United States 
Constitution; Universal Declaration of Human Rights, Approved by 
Resolution 217A (III) of the General Assembly, 10 December 1948, 
GAOR, III.l, Resolutions (A/810), at 71-77 reprinted in L. Sohn, 
Basic Documents of the United Nations, 168-71 (1968).

Plaintiffs have also alleged that defendants conspired to 
deprive them of their rights under 1981. "Several courts have held 
that section 1981 may serve as the substantive basis for a cause 
of action under section 1985(3)." Nieto v. United Auto Workers 
Local 598, 672 F. Supp. 987, 992 (E.D.Mich 1987), citing Chambers 
y_._„0maha Girls Club, 629 F. Supp. 925, 940 (D.Neb. 1986); Thompson 
¥_•— International Assoc, of Machinists. 580 F. Supp. 662, 667-68 
(D.D.C. 1984). See Dickerson v. City Bank and Trust. 575 F. Supp. 
872, 876 (M.D.La 1983).

Thus, even if the Court were to adopt the district court's 
view that the Complaint must allege a purpose to deprive Mr. 
Spencer of a federally-assured right, plaintiffs' allegations 
satisfy that requirement. Accordingly, plaintiffs' Complaint 
cannot be dismissed, whether for want of subject matter 
jurisdiction or for failure to state a claim.

a person from freely exercising a right guaranteed to all 
citizens," including "acts which classify a person as a former

S U B "  ̂

32



CONCLUSION
For the reasons stated in the foregoing Brief of Plaintiffs- 

Appellants, the decision of the district court should be reversed, 
and the case remanded to the district court for further 
proceedings.

Respectfully submitted,

CORNELIA T.L. PILLARD 
JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 99 Hudson Street 
Suite 1600
New York, New York 10013 (212) 219-1900
JAMES I. MEYERSON 
396 Broadway 
Suite 601
New York, New York 10013 
(212) 226-3310
Attorneys for Plaintiffs- Appellants

Dated: New York, New York
January 16, 1990

33



/*>rs.
IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MARYLAND
CV

ROBERT G. FOWLER 
v.

MCCRORY CORPORATION

*

*

* Civil No. JFM-87-1610
*

*

*****

'nn

OPINION

Plaintiff, Robert G. Fowler, alleges that he was 
constructively discharged by defendant, McCrory Corporation, as a 
consequence of his refusal to implement a racially discriminatory 
hiring policy. He has filed a second amended complaint 
containing three counts. The first count asserts a claim under 
42 U.S.C. § 1981 (1982), the second count a claim under section 
27-20(a) of the Montgomery County Code, Montgomery County, Md., 
Code § 27-20(a) (1984), and the third count a claim under Title
VII, 42 U.S.C. §§ 2000e-2000(e)(17) (1982). I have previously
certified to the Maryland Court of Appeals the question of 
whether Fowler has a cognizable claim under section 27-20(a) of 
the Montgomery County Code, and the Court of Appeals presently 
has that question sub curia. McCrory has now, in the wake of the
Supreme Court's decision in Patterson v ._McClean—Credit—Union,
109 S. Ct. 2363 (1989), moved to dismiss the claim under § 1981.

I.
The facts as alleged by Fowler, which for the purpose of 

McCrory's motion to dismiss must be assumed to be true, are as
follows:



On March 27, 1985 Fowler was performing his job as store
manager at McCrory's Silver Spring store. He had been manager of 
the store since 1978. On that day, Ms. Mitchell, a restaurant 
zone manager for McCrory, conducted an inspection of the Silver 
Spring restaurant and told Fowler that he had hired too many 
blacks for the restaurant. She said that Mr. Dovenmuehl, a 
regional manager, Mr. Remnick, a company manager, and Mitchell 
herself had repeatedly told Fowler "not to hire all blacks for 
the restaurant." She went on to say that Mr. Dovenmuehl had told 
a Norfolk restaurant manager that he would be fired if he did not 
hire the "kind of people" he had been told to hire.

In response, Fowler sent a "witness statement" to Don 
Harvey, a McCrory vice president, providing the details of the 
incident and protesting the discriminatory hiring instructions. 
Three other McCrory employees, who had overheard Ms. Mitchell 
make some or all of these comments, submitted witness statements 
to Harvey as well.

Fowler never received a written response to his witness 
statement. However, he was asked to and did meet with a regional 
personnel manager, A1 Winsheimer, in April 1985. Fowler 
requested a letter from McCrory stating that the company would 
not discriminate on the basis of race. McCrory never sent Fowler 
the requested letter and took no other action to repudiate the 
discriminatory instructions. Thereafter McCrory employees 
allegedly harassed and retaliated against Fowler for protesting 
the discriminatory hiring policies. For example, on November 30,

2



1985, McCrory's president, Phil Lux, visited the Silver Spring 
store and told Fowler that "there is no place for you in the 
future of this store."

On December 13, 1985, Fowler and Ms. Godbold (one of the
employees who had previously submitted a witness statement) 
phoned in their complaints about McCrory to the Montgomery County 
Human Relations Commission. The same morning, after telephoning 
the Commission, Fowler phoned various managers of McCrory 
informing them that a complaint had been filed. Within an hour, 
William Tallman, another McCrory vice president, called Fowler, 
asked him if he and Ms. Godbold had yet to sign the Commission 
complaint, and informed him that they had until 2:30 p.m. that 
day to reconsider their action. When Fowler later informed 
Tallman that he had not decided to withdraw the complaint,
Tallman suspended him without giving any specific reason for the 
suspension.

An additional incident occurred on December 17, 1985, when a 
district manager of McCrory, in Fowler's presence, referred to a 
Thai employee as "like a black person, slow and always trying to 
get out of doing work." Fowler reguested that such comments not 
be made around him. On January 21, 1985, Fowler informed McCrory 
that he was forced to resign because of the company's actions.
He left his job on February 28, 1986, after over 30 years of
employment.

3



II.
42 U.S.C. § 1981 provides in pertinent part as follows:

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 enjoyed by white citizens .

In Patterson v. McClean Credit Union, 109 S. Ct. at 2369, 
the Court declined to overrule Runyon v . McCrary, 427 U.S. 160 
(1976), which held that § 1981 applies to private conduct. The 
Court reaffirmed that claims for racial discrimination in hiring 
and promotion are cognizable under § 1981. 109 S. Ct. at 2377.
Recognizing, however, that an expansive reading of § 1981 would 
engulf Title VII and undermine the integrity of the dispute- 
resolution mechanism established therein, the Court refused to 
extend § 1981 to a claim for post-contract, on-the-job racial 
harassment. Id. at 2373-75. Although some questions concerning 
the scope of § 1981 remain after Patterson, the fundamental 
import of the decision is clear: where there is an overlap
between § 1981 and Title VII (or another federal statute 
comprehensively addressing matters of racial discrimination), 
only those claims which clearly fall with the parameters of § 
1981 may be asserted under that section.1

One of the questions which Patterson leaves somewhat 
unclear concerns the nature of the promotion claims which are 
covered by § 1981. The Court indicated that "[o]nly where the 
promotion rises to the level of an opportunity for a new and

4



Due regard for the Patterson decision thus requires that 
courts exercise restraint in construing the terms of § 1981.
This does not mean, however, that only a person who has been 
refused a job or denied a promotion has a cognizable § 1981 
claim. Here, proper analysis requires the conclusion that Fowler 
has a claim under § 1981 both as a person whose right to "give 
evidence" has been violated and as a person who has been 
concretely injured by a discriminatory hiring policy directly 
violative of § 1981.
A. Violation of the Right to "Give Evidence"

By its terms § 1981 protects the exercise of four different 
rights or sets of rights: (1) the right to "make contracts"; (2)
the right to "enforce contracts"; (3) the related rights "to sue, 
be parties, give evidence"; and (4) the right to "the full and

distinct relation between the employee and the employer is such a 
claim actionable under § 1981." Patterson. 109 S. Ct. at 2377.
In support of that proposition, the Court cited only Hishon v. 
King & Spaulding. 467 U.S. 69 (1984), which involved the dramatic 
change in status from associate to partner in a law firm. 
Presumably, however, any promotion which would involve a concrete 
change in the terms of employment (such as salary or benefits) 
would be covered by § 1981.

A second question which Patterson does not resolve is 
whether claims for discharges are in and of themselves covered by 
§ 1981. Most courts which have considered this issue after 
Patterson have held that such claims are not covered. See, e.g .. 
Overby v. Chevron USA, Inc., No. 88-5801 (9th Cir. September 1, 
1989) (LEXIS, Genfed Library, U.S. App. file); Leong v. Hilton 
Hotels Coro.. 51 E.P.D. paragraph 39,257 (D. Haw. July 26, 1989);
but see Padilla v. United Air Lines, 716 F. Supp. 485 (D. Colo. 
1989). The former cases seem to be correctly decided since the 
termination of employment does not in and of itself does 
constitute the violation of a right enumerated in § 1981.

5



equal benefit of all laws and proceedings for the security of 
persons and property."

In Patterson the Court appears to have considered only two 
of these rights: the right to "make contracts" and the right to 
"enforce contracts." 109 S. Ct. at 2372. McCrory argues that 
the Court subsumed the third set of rights - "to sue, be parties, 
give evidence" - within the concept of the right to "enforce 
contracts." McCrory points out that the Patterson Court stated 
that the latter right "embraces protection of a legal process, 
and of a right of access to legal process, that will address and 
resolve contract-law claims within regard to race." Id. at 2373. 
That much is certainly true. However, the fact that there is a 
degree of concentricity between what is implicitly protected by 
the right to "enforce contracts" clause and the express language 
of the rights "to sue, be parties, give evidence" provision does

Candor perhaps requires that I acknowledge that I find 
enigmatic one aspect of the Court's discussion of the right to 
"enforce contracts." The Court concludes the paragraph in which 
that right is most fully discussed with a favorable quotation 
from a sentence in Justice White's dissenting opinion in Runyon, 
stating that all of the rights enumerated in § 1981, other than 
the right to "make contracts," refer only to the removal of legal 
disabilities. Patterson, 109 S. Ct. 2373 (quoting Runyon. 427 
U.S. at 195 n.5 (White, J., dissenting)). If that were true, it 
would appear that a person who was blocked by a mob at the 
courthouse steps to prevent him from asserting a claim arising 
out of anything other than the right to make a contract would not 
have a claim under § 1981. That conclusion seems somewhat 
dubious. In any event, the language quoted by the Court seems 
inconsistent with its own statement that § 1981 "also covers 
wholly private efforts to impede access to the Courts or obstruct 
non-judicial methods of adjudicating disputes about the force of 
binding obligations, as well as discrimination by private 
entities, such as labor unions, in enforcing the terms of the 
contract." Patterson, 109 S. Ct. at 2373 (emphasis in original).

6



not mean that the two displace one another. There are certain
acts, such as the racially motivated refusal of a labor union to
process grievances under a collective bargaining agreement, which
constitute a violation of a person's right to enforce his
contract but which would not implicate his right to sue, be a
party or give evidence. Id. (citing Goodman v. Lukens Steel Co.,
482 U.S. 656 (1987)). By the same token a person who has been
retaliated against for reporting to a public agency an alleged
racially discriminatory hiring policy has suffered a violation of
his right to "give evidence" even though it is not his own

. 3contract right which he is seeking to enforce.
This is not to say that every employee who alleges that he 

was retaliated against for filing or pursuing a claim of racial 
discrimination has a cognizable claim under § 1981. If, for 
example, he filed his claim with the EEOC, the instruction of the 
Court in Patterson that § 1981 and Title VII should be construed 
so that they are reasonably consonant with one another suggests

3 Fowler does argue that his right to enforce his own 
contract was violated by McCrory's action. He contends that all 
applicable laws are incorporated into a contract and that 
therefore his contract rights were violated when McCrory violated 
federal, state and county anti-discrimination laws in retaliating 
against him. This argument proves far too much. If it were 
accepted, every act of unlawful discrimination would constitute a 
breach of contract and would, in contradiction to the holding in 
Patterson, be actionable under § 1981. Thus, whatever value the 
principle upon which Fowler relies may have in certain contexts, 
see, e.q ., Denice v. Sootswood I. Ouinby, Inc., 248 Md. 428, 237 
A.2d 4 (1968) (incorporating the provisions of a county building
code into a construction contract), it constitutes too broad a 
statement to enhance the analysis of a § 1981 claim. See 
generally 4 S. Williston & W. Jaeger, A Treatise on the Law of 
Contracts § 615, at 605—06 (3d ed. 1961).

7



that the remedy provided by Title VII itself for retaliation 
would be exclusive. Furthermore, if it could be proved that the 
employee deliberately chose to file a complaint with an agency 
other than the EEOC in order to create for himself a § 1981 claim 
for retaliation, concern for the integrity of the Title VII 
scheme might well require rejection of his claim. Here, however, 
no such issue is presented. According to his allegations, Fowler 
was retaliated against by McCrory for filing a complaint with the 
Montgomery Human Relations Commission, and there is no indication 
that he chose to file his complaint with that agency to obtain 
tactical advantage in this litigation.
B. Third-Party Standing

Fowler also has a viable claim under § 1981 as a person who 
suffered concrete injury as a result of McCrory's refusal to 
"make contracts" on a non-discriminatory basis.

That Fowler has "standing" in the constitutional sense 
cannot be questioned. He has alleged that he has suffered 
particularized injury - loss of his employment - which is 
directly traceable to McCrory's illegal conduct. See Warth v. 
Seldin, 422 U.S. 490, 499 (1969) (citations omitted). The more
difficult question is whether he should be deemed to have the 
right to bring an action under § 1981 despite the fact that it 
was not his own right to "make contracts" with which McCrory

8



interfsired. 4 Whether this question be framed in terms of 
prudential limitations upon a party's standing, the implication 
of a cause of action in his favor, or the conferral of statutory 
standing upon him, the inquiry is the same. See Westray ..v̂. 
Porthole, Inc., 586 F. Supp. 834, 836 (D. Md. 1984) (citing
Currie, Misunderstanding Standing, 1981 Sup. Ct. Rev. 41, 43);
see generally Sullivan v. Little Hunting Park, 396 U.S. 229 
(1969); Des Vergnes v. Seekonk Water District, 601 F.2d 9 (1st 
Cir. 1979).5

Courts have made this inquiry in a variety of contexts. For 
example, in Sullivan v. Little Hunting Park, the Supreme Court 
held that a white man who had been expelled from membership in a 
community park association for having transferred an interest in 
the association to a black had standing to sue the association 
because he had been "punished for trying to vindicate the rights

4 Fowler does make an ancillary argument that McCrory's
discriminatory hiring policy prevented him, as the manager of a 
McCrory's store, from entering into contracts with blacks. This 
contention is unpersuasive since "the law is well-settled . . .
that an agent making a contract for a disclosed principle does
not become a party to that contract." Gonzalez v. The Home
Insurance Co., No. 85 Civ. 5856 (JMC) (S.D.N.Y. July 28, 1989) 
(LEXIS, Genfed Library, Dist. file).

5 The term "non-minority standing" which is sometimes used
in making this inquiry, see, e . q. , Gordon v_.— City of Cartersville, Georgia, 522 F. Supp. 753, 757 (N.D. Ga. 1981), may
be confusing. The issue to which the inquiry is directed is 
whether a third party may bring an action for an injury which he 
has suffered as the consequence of the immediate violation of the 
statutory rights of another. The third party may be a "minority" 
or a "non-minority," and, since § 1981 protects the rights of 
whites as well as blacks, McDonald v. Santa_Fe—Transportation
Co.. 427 U.S. 273, 287 (1976), the person whose rights are
immediately violated may himself be a "minority" or a "non­
minority. "

9



396 U.S. at 237. Likewise,of minorities protected by § 1982." 
numerous courts have held that developers undertaking to 
construct low income apartment complexes have standing to sue 
under §§ 1981, 1982 and 1983 where they allege that they have 
been denied building permits or zoning approval in order to 
prevent minorities from moving into the area. See, e.a .. Des 
Veranes, 601 F.2d 9; Scott v. Greenville County. 716 F.2d 1409 
(4th Cir. 1983); In re Malone, 592 F. Supp. 1135 (E.D. Mo. 1984), 
aff1d sub nom. Malone v. City of Fenton. 794 F.2d 680 (8th Cir. 
1986); Gordon v. City of Cartersville, Georgia, 522 F. Supp. 753 
(N.D. Ga. 1981). On the other hand, courts have held that an 
insurance agent does not have standing to challenge the practice 
of "redlining," i.e., arbitrarily refusing to underwrite the 
risks of persons residing in predominately black neighborhoods. 
Mackey v. Nationwide Ins. Companies. 724 F.2d 419 (4th Cir.
1984). Similarly, whites have been held not to have standing 
under § 1981 to challenge a bar's alleged practice of not serving 
black customers under the theory that their rights of association 
had been violated. Westray. 586 F. Supp. at 836.

The courts have, expressly or implicitly, looked to two 
factors (in addition to the constitutional requirement of an 
injury-in fact traceable to the defendant's alleged unlawful 
conduct) in determining whether a plaintiff has statutory 
standing: the concreteness of the claimed injury and the degree 
to which the policies underlying the statute allegedly violated 
by the defendant can be vindicated by granting the third-party

10



standing. Thus, in Sullivan the Court was persuaded that the 
plaintiff was the only person who would be an effective advocate 
to challenge the park association's discriminatory policy. 396 
U.S. at 237. The plaintiffs in the developer cases both (1) had 
suffered concrete injury themselves in that they could not go 
forward with their projects, and (2) were in the best position to 
challenge the alleged discrimination in the zoning and building 
permit process. E.a ., Des Veranes, 601 F.2d at 13-14. On the 
other hand, the Court found in Mackey that although the plaintiff 
may have suffered cognizable injury in the reduction of the 
commission income which he would have earned but for the 
defendant's practice of "redlining," there were numerous other 
persons, i.e. homeowners who suffered direct monetary loss in the 
form of higher premiums, who could attack the practice. 724 F.2d 
at 421-22. And in Westray both factors argued in favor of 
denying standing to the white plaintiffs: their claim of injury, 
while perhaps real, was intangible and the blacks who allegedly 
were denied admission to the bar could (and, in fact, had) 
asserted their own claims of discrimination. 586 F. Supp. at 
837-38.

In the present case, both of the factors strongly support 
conferring standing upon Fowler. His injury could not have been 
more concrete: he lost his job. Moreover, only a person like
him who was responsible for hiring store employees was 
realistically in a position to challenge McCrory's discriminatory 
policy. Although in theory persons who sought employment and

11



were denied it could assert a § 1981 claim, it may be reasonably 
assumed that applicants for the position of clerk in a McCrory's 
store are relatively unsophisticated and unable to advocate 
effectively the policies underlying § 1981.6 Counsel for McCrory 
has suggested that Fowler could have told a minority applicant of 
McCrory's discriminatory policy and encouraged him to file a 
complaint with the EEOC. However, it would be strange indeed if 
the law were to require such an act of disloyalty rather than to 
encourage a forthright intra-corporate challenge as Fowler made. 
The interest of effective enforcement of the anti-discrimination 
laws and the interest in the sound management of private 
enterprises are both better served by an employer's self­
corrective actions than by regulatory overview of employment 
decisions by a government bureaucracy of limited resources.

III.
In conclusion, lest perspective be lost in the process of 

close textual analysis, it may be worthwhile to reiterate what it 
is that Fowler alleges. He asserts that McCrory maintained a 
racially discriminatory hiring policy, which was directly 
violative of § 1981 both before and after Patterson. He avers 
that he complained to his superiors about that policy and that, 
only after being rebuffed in his attempts to change the policy,

6 It might also be noted that one of Fowler's allegations 
is that McCrory hired for positions in his store from another 
geographical area where more whites lived. If that allegation is 
true, persons adversely affected by McCrory's alleged policy and 
practice would not even have known of the employment 
opportunities which they were being denied.

12



did he file a complaint with the Montgomery County Human 
Relations Commission. Immediately after filing the complaint, he 
was strongly advised by a McCrory vice president to withdraw it. 
After he refused to do so, his conditions of employment became 
intolerable, and he was forced to resign after thirty years of 
employment with McCrory.

It may well be that before Patterson some litigants were 
using § 1981 promiscuously. Until the Court spoke last term, the 
troubling question always existed why, if § 1981 was as broad in 
its coverage as some were contending, Congress carefully and 
deliberately structured the dispute-resolution process as it did 
when enacting Title VII. There may now be instances where 
plaintiffs seek to circumvent Patterson's holding and repudiate 
its approach by artful pleading and manipulative interpretation 
of the Court's language. This, however, is not such a case. 
Fowler alleges that he was wronged by misconduct, the deterrence 
of which lies at the very core of the civil rights laws, and his 
claim is fully cognizable under § 1981.

A separate order denying McCrory's motion to dismiss is 
being entered herewith.

13



CERTIFICATE OF SERVICE

This will certify that I have this date served the 
following persons, including counsel and parties pro se in this 
action, with true and correct copies of the foregoing Brief of 
Plaintiffs-Appellants by placing said copies in the U.S. Mail at 
New York, New York postage thereon fully prepaid addressed as 
follows:

Frank Casavilla # 88A-2357
Elmira Correctional Facility Elmira, NY
Frank D'Antonio 
6910 13th Avenue 
Brooklyn, NY 11228
Douglas Mackey 
#88A8210
1C38/Cayuga Correctional Facility Route # 38A Box # 1182 
Moravia, NY 13118
Cosmo Muriale #88A 4788
Grrenhaven Correctional Facility Drawer #5
Stormville, NY 12589
Lucy Casavilla 
c/o Antonioni
7017 15th Avenue/Apt. # 4-A Brooklyn, NY 11228
Deanna Daddiego 
1345-66 Street 
Brooklyn, NY 11219
M. Muriale
1304 67th Street
Brooklyn, NY 11219
Robert Ellis, Esq.
150 East 58th Street 
New York, NY 10002



Executed this
York. day of January, 1990 at New York, New

Attorney for Plaintiffs-Appellees



p