Versie KIMBLE, Plaintiff-Appellant, v. D. J. McDUFFY, INC. and Industrial Foundation of the South, and all of its subscribers, Defendants-Appellees.
No. 78-1474.
United States Court of Appeals, Fifth Circuit.
June 18, 1981.
648 F.2d 340
Phelps, Dunbar, Marks, Claverie & Sims, Harry S. Redmon, Jr., Rutledge C. Clement, Jr., Margaret Ann Brown, New Orleans, La., George J. Petrovich, Jr., Fort Worth, Tex., for defendants-appellees.
Before GODBOLD, Chief Judge, and BROWN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A. CLARK and WILLIAMS, Circuit Judges.*
AINSWORTH, Circuit Judge:
The appellant, Versie Kimble, sued D.J. McDuffy, Inc., his former employer, along with several other employers in the oil drilling industry and an association of such employers, in a class action alleging that they conspired to deny him and others employment because they had filed personal injury suits or workmen‘s compensation claims against employers in the industry. Kimble maintained that
* Coleman, Circuit Judge, elected not to participate in the consideration or decision of this appeal. Rubin, Circuit Judge, disqualified himself as he was the district judge in this case.
I. THE FACTS
D.J. McDuffy, Inc., and the other employer-appellees, are members of appellee Industrial Foundation of the South (IFS), a nonprofit corporation organized to assist members in hiring personnel. According to its brochure, IFS maintains records of workmen‘s compensation claims and personal injury lawsuits filed in state courts in Texas, Louisiana, New Mexico and Oklahoma and in federal courts throughout the Gulf Coast region. The records include the
Kimble was employed by McDuffy as a driller from December 17, 1972 until April 7, 1973.2 The company claims that it terminated Kimble because he was about to begin a campaign for a local political office.3 Kimble claims that he was dismissed because McDuffy, which had just joined IFS on March 26, 1973, had learned through the foundation that Kimble had filed a lawsuit against a prior employer and had obtained a sizable judgment.4 For the purposes of the defendants’ motion for summary judgment, we must assume that Kimble‘s factual allegations are correct. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970); Tyler v. Vickery, 517 F.2d 1089, 1094 (5th Cir. 1975).
In its opinion granting the defendants’ motion for summary judgment, the district court divided
A. If two or more persons conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein . . . or
B. to injure such party or witness in his person or property on account of his having so attended or testified, or
C. if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or
D. to injure him or his property for lawfully enforcing . . . the right of any person, or class of persons, to the equal protection of the laws.
445 F.Supp. at 274. The district court held that in order to maintain a cause of action under clauses C and D, a plaintiff must demonstrate that the defendants acted with racial or class-based animus, and that no allegation of such animus was made in this case. 445 F.Supp. at 274-75. The court then held that clause A required a conspiracy to deter a party or witness from attending or testifying in federal court. 445 F.Supp. at 275. Again, no allegation of any attempt to deter or intimidate was made by plaintiffs. Finally, the district court held that the filing of lawsuits or workmen‘s compensation claims did not constitute attending or testifying in federal court as required by clause B. 445 F.Supp. at 276.
The panel majority, in reversing the district court, agreed that Kimble had stated no valid cause of action under clauses A, C and D of
II. THE DERIVATION OF 42 U.S.C. § 1985(2)
The present wording of
III. THE REQUIREMENT OF RACIAL OR CLASS-BASED ANIMUS
In accordance with Griffin, this court has limited cases brought under
The Ku Klux Act was passed amid the lawless conditions existing in the South after the Civil War. A major aim of the legislation “was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state
agencies.” It is readily apparent from the title of the bill itself, “An Act to enforce the Provisions of the Fourteenth Amendment . . . ,” that the key concern of the legislators was to put force behind the Civil War Amendments by providing an avenue for the redress of injuries suffered by the class of newly emancipated slaves. Nowhere have we seen it suggested that Congress was concerned about discrimination being practiced against insolvents.
McLellan, supra, 545 F.2d at 932 (footnotes omitted). Ironically, under the panel majority‘s opinion, the plaintiff in McLellan could have avoided dismissal of his lawsuit simply by adding an allegation asserting jurisdiction under
To be sure, both Griffin and McLellan involved cases arising under
The panel rejected the view that actions brought under clause B require racial or class-based animus since that clause does not contain language paralleling
As the district court and the panel majority agreed, no showing of racial or class-based animus can be made in this case. Clearly, race is not involved. Moreover, the “class” of persons who have filed personal injury lawsuits or workmen‘s compensation claims is neither a class based on political beliefs or associations (the kind of class envisioned by the framers of the Ku Klux Klan Act) nor a class “having common char-
acteristics of an inherent nature,” 445 F.Supp. at 273 (the kind of class afforded special protection under the equal protection clause). The district court and the panel majority acknowledged that the logic of Griffin would be lost if the “class” of people allegedly victimized by the defendants’ allegedly tortious conduct was considered to be a sufficient class under
IV. THE REQUIREMENT OF ATTENDING OR TESTIFYING IN COURT
Clause B of
[Section 1985(2)] does not create a claim for every conspiracy entered into with intent to deny a citizen access to a court, or to retaliate against a citizen for his utilization of the federal court system. If they are to come within the plain language of the statute, plaintiffs must allege that they were injured on account of having attended or testified in federal court. This they have not done. . . . At most, the conspiracy charged was aimed at injuring the plaintiffs on account of their having asserted a claim or filed a lawsuit. Congress did not undertake to make that behavior actionable.
445 F.Supp. at 276 (emphasis in original; footnotes omitted). The panel majority rejected the district court‘s interpretation, finding it overly narrow and holding that “Congress undoubtedly intended to protect the whole course of justice, not just one segment of the system, the trial process.” 623 F.2d at 1068.
The question presented in this case is not whether Congress possesses the power to enact legislation forbidding retaliatory conduct against a party for filing suit in federal courts. Rather, the issue is limited to determining whether the existing language of
Also, consideration of the legislative history supports the view that Congress intended the word “attend” to be given its ordinary meaning. Passage of the Ku Klux Klan Act was “motivated by a desire to prevent and punish acts of terror or intimidation that threatened the attempt to create a political environment hospitable to equality.” Comment, A Construction of Section 1985(c) in Light of Its Original Purpose, 46 U.Chi.L.Rev. 402, 405 (1979). In light of the acts of violence that threatened the sanctity of federal courts, Congress meant
V. CONCLUSION
The plaintiff‘s allegations do not indicate that the defendants acted with the racial or class-based animus required by
AFFIRMED.
REAVLEY, Circuit Judge, with whom GODBOLD, Chief Judge, and RANDALL, Circuit Judge, join, specially concurring:
I concur in the judgment for the reasons given in part IV of the majority opinion. I agree with the dissent that no racial or class-based animus is required by
I concur in the en banc decision to affirm the judgment of the district court. It is not necessary to hold, as the majority opinion does, that racial or class-based animus is necessary in order to invoke
In the present case the plaintiffs were not refused employment because they attended or testified in federal court. The reason for the non-hire was that plaintiffs had pursued claims against oil companies for injuries related to their employment. The refusal to hire applied whether the claim was in federal court, state court, or a workmen‘s compensation administrative proceeding. Since there was no nexus between the use of the federal courts and the reason for the refusal to hire, plaintiffs’ allegations could not come within
SAM D. JOHNSON, Circuit Judge, with whom VANCE, KRAVITCH, POLITZ, HATCHETT, ANDERSON and TATE, Circuit Judges, join, dissenting in part and concurring in part:
This writer respectfully dissents from that portion of the panel decision that the en banc Court disturbs. This concurrence extends only to that part of the panel opinion that the en banc Court leaves intact.
Facts
Plaintiff Versie Kimble and the class he represents are oil industry workers who resorted to state and federal courts or workmen‘s compensation boards for redress of physical injuries. This, of course, was their legal right. For a fee, the Industrial Foundation of the South furnishes oil industry employers with a laborer‘s record of claims filed against companies in the oil industry for employment injuries.
The plaintiff here, Versie Kimble, sustained in injury in 1969 while working for a drilling company, filed suit for damages in the federal district court, and obtained a $25,000 jury verdict. In 1972, Kimble began working for the defendant McDuffy. Some months later, McDuffy fired Kimble upon learning of Kimble‘s prior suit. Kimble sought work from other companies here named as co-defendants, but was unable to obtain employment. It was not until later that Kimble learned that the Industrial Foundation of the South was collecting information concerning personal injury claims and disseminating it.
With the information supplied by the Industrial Foundation, the oil industry employers allegedly discharged current employees or refused to hire prospective employees. Of course, blacklisting has a direct and substantial impact on these working men and women — the very real hardship of being thrown out of work or being unable to find employment for doing nothing more than pursuing their rightful remedies.
Plaintiffs turned to
The Inapplicability of Griffin
In Griffin v. Breckenridge, 403 U.S. 88 (1971), the Supreme Court held that there must be some racial or otherwise class-based invidiously
Section 1985(2) is derived from section 2 of the Ku Klux Klan Act of 1871. The Klan Act was induced by massive and frequently violent resistance in the Southern states to federal reconstruction and the inability or unwillingness of state governments to deal effectively with the violence. Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir.), cert. denied, 434 U.S. 975 (1977). Racial equality and protection of civil rights were not the only reasons for enactment of the Klan Act, however. A major concern was restoration of civil authority and preservation of orderly government, including federal court ability to proceed without improper interference. McCord v. Bailey, 636 F.2d 606, 615 (D.C.Cir. 1980), cert. filed, 49 U.S.L.W. 3532 (Jan. 13, 1981).
Accordingly, the first part of section 1985(2), clauses A and B, prohibits conspiracies to interfere with the integrity of the federal judicial system. Clause A is in pertinent part concerned with efforts to deter future attendance or testimony in federal court, while Clause B is in pertinent part aimed at retaliations for past federal court attendance or testimony. The second part, clauses C and D, concerns conspiracies in relation to state courts. Clause C deals with efforts to obstruct the future course of justice in state courts with the intent to deny equal protections of the laws. Clause D is aimed at retaliations for past efforts to enforce the right to equal protection of the laws.
The absence of equal protection language in the first part of section 1985(2),1 and the presence of equal protection language in section 1985(3) and in the second part of section 1985(2), indicates that Congress knew how to impose the equal protection limitation when it was so intended. See Stern, 547 F.2d at 1340. From this it must be concluded that Congress intentionally limited conspiracies in relation to state courts to those conspiracies aimed at depriving persons of equal protection of the laws, but did not so intend with regard to conspiracies to interfere with federal courts. See McCord, 636 F.2d at 615. Why is the first part of section 1985(2) so different from section 1985(3) and the second part of section 1985(2)?
Concerns about the constitutional scope of congressional power under the thirteenth and fourteenth amendments moved Con-
The en banc majority ignores this distinction between state and federal jurisdiction. The en banc majority states that the Supreme Court in Griffin did not arrive at its conclusion that section 1985(3) required a racial or class-based discriminatory animus through a “hypertechnical analysis of the structure and grammar of the section.” Instead, the en banc majority explains, the Supreme Court reached the conclusion that Congress did not intend to create a general federal tort law by examining the overall purpose of Congress in passing the Klan Act. Consequently, the en banc majority asserts, the Supreme Court concluded that Congress intended the Act to apply only in cases where there was a racial or class-based animus. On this reasoning, the en banc majority applies the Griffin holding to the Act in its entirety; if required by section 1985(3), a racial or class-based animus is in the en banc majority‘s view required by section 1985(2) as well.
This reasoning misconstrues Griffin. In Griffin the plaintiffs invoked section 1985(3)‘s equal protection clause. To avoid the unintended creation of a general federal tort law, the Court held that as an element of a cause of action, there must be a racial, or other class-based, invidiously discriminatory conspiratorial animus. 403 U.S. at 102. The Supreme Court expressly relied on the equal protection language in section 1985(3) when it pronounced its holding: “The language requiring intent to deprive of equal 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.” Id. (emphasis in original).
Indeed, the Court was construing only the portion of section 1985(3) that prohibits conspiracies to deprive persons of equal protection of the laws.
As judicial support for applying an equal protection test to the first part of section 1985(2), the en banc majority cites Fifth Circuit cases requiring a racial or class-based animus for suits brought under the second part of section 1985(2). Because the second part expressly contains an equal protection animus requirement, there is nothing surprising about these holdings. Such holdings, of course, say nothing about what is required for the first part of section 1985(2). The only case cited by the en banc majority as direct support for its theory is Jones v. United States, 401 F.Supp. 168, 172-74 (E.D.Ark.1975), aff‘d, 536 F.2d 269, 271 (8th Cir. 1976), cert. denied, 429 U.S. 1039 (1977). The district court there reasoned, as does the en banc majority here, that the Griffin racial or class-based animus requirement applies to the first part of section 1985(2) because the equal protection limitation was allegedly intended to limit the entire Ku Klux Klan Act. The cases cited by the district court in support of its position, however, were all presented with a claim cognizable only under the second part of section 1985(2). Although the Eighth Circuit affirmed the district court, it addressed this question with only three brief sentences. Such a summary affirmance is not compellingly persuasive reasoning by a sister circuit.
In fact, the case authority is contrary to the en banc majority‘s position here. In a pre-Griffin case, this Circuit held that employment retaliation against a labor union member for having appeared and testified before the National Labor Relations Board and a state court could have been within section 1985(2), clause B, except that neither the NLRB nor the state court was a “court of the United States” within the meaning of the statute. Seeley v. Brotherhood of Painters, Decorators & Paper Hangers of America, 308 F.2d 52, 58 (5th Cir. 1962). Cases decided after Griffin have also rejected the theory that a racial or class-based animus requirement applies to the first part of section 1985(2).
For example, in Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976), the Third Circuit expressly held that only the second part of section 1985(2), and not the first part, requires a class-based, invidiously discriminatory animus. The federal nexus that the first part of section 1985(2) requires is only a connection between the proscribed activities and a federal court. Id. More recently, McCord v. Bailey, 636 F.2d 606, 614-17 (D.C.Cir.1980), also held
The en banc majority opinion reflects a concern that recognition of a cause of action under clause B of section 1985(2) in this case would create a general federal tort remedy, for an employer‘s economic use of public information relating to the filing of federal lawsuits, in contravention of the constitutional concerns enunciated by Griffin. To avoid the constitutional shoals of federalizing state tort law, the en banc majority would limit all section 1985 actions by requiring a racial or class-based conspiratorial animus. It makes little sense, however, to apply an equal protection test to cases that are founded on the denial of other constitutional rights — such as the political rights protected by section 1985(3) or the due process rights protected by the first part of section 1985(2). The constitutional shoals of a general federal tort law are more properly avoided by delineating the conspiratorial animus for a conspiracy under clause B of section 1985(2) to the statutory purpose of protecting the integrity of the federal court system. This can be accomplished by simply requiring a conspiratorial animus to injuriously retaliate against a party or witness for having attended or testified in federal court. Recognizing a cause of action for such a conspir-
acy carries with it no potential for federalizing state tort law since the due process right to utilize and participate in the federal court system is solely a federal right.
In short, the en banc majority‘s position violates the language of the statute as well as the holding of Griffin. I therefore dissent from the en banc majority‘s holding that clause B of section 1985(2) requires a racial or class-based invidiously discriminatory conspiratorial animus.
The Meaning of “Attended”
Because the plaintiffs failed to allege “attended or testified” in their pleading, the district court held that plaintiffs failed to state a cause of action. The panel rejected such a literal approach to construing the plaintiffs’ pleading and held that the filing of a federal lawsuit is sufficient participation in the federal judicial system to constitute attendance within the meaning of the words “attended or testified” in clause B of section 1985(2). In affirming the district court, the en banc majority purports to give “attend” its plain dictionary meaning — to be present at. The en banc majority then relies on the existence of violence during the Reconstruction to restrict that presence to physical presence. Although the en banc majority opinion does not expressly limit this physical presence to the trial phase, this meaning of attend can be gleaned from the en banc majority‘s refusal to include the filing of a federal lawsuit within the meaning of “attend.” Such a reading, however, is much too narrow.
The dictionary does not limit the definition of attend to physical presence. Webster‘s Third New International Dictionary 140 (1976). Inherent in the very concept of legal representation is the notion that a party is present in federal court through his
It is true that, as the en banc majority opinion notes, “[p]assage of the Ku Klux Klan Act was ‘motivated by a desire to prevent and punish acts of terror or intimidation that threatened the attempt to create a political environment hospitable to equality.‘”5 However, physical violence was also available against those who simply filed federal civil rights suits during the Reconstruction, whether filed in person or through an attorney. Even if physical presence were the touchstone, does not a party attend a federal court when he or she personally hand delivers the complaint to the court clerk? Not only can one be physically present at the filing of the lawsuit, but also at, say, a pre-trial conference, a temporary restraining order hearing, and many other pre-trial activities. And when the Klan Act was enacted, the pro se filing of federal suits was more likely. In any event, letting the scope of the statutory protection turn on whether the suit is filed by the party or his attorney seems quite arbitrary.
A functional approach is preferable here. The congressional objective is evident from the face of the statute itself. Its manifest purpose is to protect the sanctity and integrity of the federal judicial process and the ability of all to participate freely therein so that justice will not be obstructed or miscarried. It makes little sense to limit the protection of the first half of section 1985(2) merely to presence at the trial phase of the litigation. Justice does not start on the day of trial. In fact, the filing of the lawsuit is a necessary antecedent for the parties and witnesses to testify. The en banc majority‘s conception would preclude
federal plaintiffs at the outset from having the opportunity to testify. The statute should protect a person who participates in the federal system of justice either personally or through an attorney — from the filing of a complaint to settlement or execution of judgment. A functional approach should be preferred over a literal, restrictive, narrow approach to the interpretation of the meaning of “attend.” The functional approach seems truer to the congressional purpose of the statute and avoids the impracticality of deciding at what point in the litigation the statutory protections attach.
In support of narrowly interpreting “attend,” the en banc majority relies on Griffin. That case, however, did not endorse the imposition of judicial limitations on section 1985 suits. Griffin clearly stated that the sweep of section 1985 is as broad as its language. 403 U.S. at 97. Furthermore, Griffin assured the existence of a section 1985(3) cause of action against private conspiracies. It did not impose a limit on section 1985(3), but merely recognized and gave effect to section 1985(3)‘s own self-proclaimed limitations.
Under the functional approach, the only plaintiffs in this case that would come within the protection of clause B of section 1985(2) are those who filed claims in federal court. This includes plaintiff Kimble, but excludes those members of the class who filed claims in state courts or with state and federal workmen‘s compensation boards. Since blacklisting is just one form of retaliation, and the loss or denial of employment is an injury to property, Kimble and those like him should possess a cause of action under clause B. Of course, whether they could prove up their claims should have been a matter for the merits on remand.
Conclusion
Accordingly, this writer stands by the panel majority‘s opinion. Griffin requires
Notes
(2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;
. . . .
[T]he 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.
It is important to note that the division of section 1985(2) into four independent clauses does not artificially separate the first part from the equal protection language found only in the second part. Section 2 of the Ku Klux Klan Act, which is reprinted in note 5 of the majority opinion, reveals this. The respective clauses from which clauses A and B of section 1985(2) are derived contain no equal protection language, and the respective clauses in section 2 from which clauses C and D of section 1985(2) are derived each requires an equal protection denial purpose or intent for the conspiracy.
In support of the holding that the Griffin discriminatory animus requirement applies to all of the Klan Act, the en banc majority cites the formal title of the Ku Klux Klan Act itself: “An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States and for Other Purposes.” Without delving into the prudency of reliance on titles to statutes, it is sufficient to note that “Other Purposes” is broad enough to encompass the congressional purpose of protecting the sanctity of the federal judicial process. See generally McCord, 636 F.2d at 617; Stern, 547 F.2d at 1341 n.18; Paynes, 377 F.2d at 63-64.
The majority points out that the class-based animus requirement is not the same as the test for whether a class-based distinction is actionable under the equal protection clause of the fourteenth amendment. This observation is of course correct since the Supreme Court in Griffin referred to a “racial, or perhaps other invidiously discriminatory animus.” 403 U.S. at 102. The fourteenth amendment‘s equal protection clause reaches much more than invidious discrimination. Therefore, the scope of actionable discrimination under the equal protection clauses of § 1985(2) and (3) is much narrower than that under the fourteenth amendment‘s equal protection clause.
The majority, however, concludes that the narrower test for the equal protection clauses of § 1985(2) and (3) is not simply invidious discrimination. Instead, the majority states that all of § 1985 was intended to include only those conspiracies motivated by an animus against the kinds of classes Congress was trying to protect with the enactment of the Klan Act. The majority gives as its example conspiracies against Republicans, noting that distinctions based on affiliation with a major political party are not among those traditionally subject to special scrutiny under the fourteenth amendment. Discrimination on the basis of political association, however, is in fact within strict scrutiny as constitutionally suspect under the first and fourteenth amendments and under the equal protection clause of the fourteenth amendment unless essential to serve a compelling state interest. See Riddell v. National Democratic Party, 508 F.2d 770, 776 (5th Cir. 1975). Discrimination against Republicans would also be actionable under the political rights clause of § 1985(3). Conspiracies against workers who file personal injury or workman‘s compensation claims are probably not actionable under the equal protection clauses of § 1985(2) and (3). See Scott v. Moore, 640 F.2d 708, 718-24 (5th Cir. 1981). That issue is not present in this case, however, if the class-based discriminatory animus requirement does not apply to the first half of § 1985(2). Again, whatever may have been the congressional intent with respect to the equal protection clauses, it is inappropriate to carry that intent over to other areas of the statute that neither contain nor need the limitation of an equal protection test.
Id. at 617. See also Stern, 547 F.2d at 1341 n.18, which noted that the first part of § 1985(2) is aimed at protecting the sanctity of federal court proceedings and could be sustained without reference to or nexus with the thirteenth and fourteenth amendments.
Stern held that the Griffin invidiously discriminatory animus requirement is inapplicable to § 1985(1) because of its lack of any equal protection language. In dicta, Stern noted that while the Griffin discriminatory animus requirement would apply to the second part of § 1985(2) because of the equal protection language present there, the very absence of that language in the first part of § 1985(2) precludes its application.
Section 2 of the Ku Klux Klan Act, 17 Stat. 13 (1871) provided:
Sec. 2. That if two or more persons within any State or Territory of the United States shall conspire together to overthrow, or to put down, or to destroy by force the government of the United States, or to levy war against the United States, or to oppose by force the authority of the government of the United States, or by force, intimidation, or threat to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, or by force, intimidation, or threat to prevent any person from accepting or holding any office or trust or place of confidence under the United States, or from discharging the duties thereof, or by force, intimidation, or threat to induce any officer of the United States to leave any State, district, or place where his duties as such officer might lawfully be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or to injure his person while engaged in the lawful discharge of the duties of his office, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duty, or by force, intimidation, or threat to deter any party or witness in any court of the United States from attending such court, or from testifying in any matter pending in such court fully, freely, and truthfully, or to injure any such party or witness in his person or property on account of his having so attended or testified, or by force, intimidation, or threat to influence the verdict, presentment, or indictment, of any juror or grand juror in any court of the United States, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or on account of his being or having been such juror, or shall conspire together, or go in disguise upon the public highway or upon the premises of another for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws, or of equal, privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within such State the equal protection of the laws, or shall conspire together for the purpose of in any manner impeding, hindering, obstructing, or defeating the due course of justice in any State or Territory, with intent to deny to any citizen of the United States the due and equal protection of the laws, or to injure any person in his person or his property for lawfully enforcing the right of any person or class of persons to the equal protection of the laws, or by force, intimidation, or threat to prevent any citizen of the United States lawfully entitled to vote from giving his support or advocacy in a lawful manner towards or in favor of the election of any lawfully qualified person as an elector of President or Vice-President of the United States, or as a member of the Congress of the United States, or to injure any such citizen in his person or property on account of such support or advocacy, each and every person so offending shall be deemed guilty of a high crime, and, upon conviction thereof in any district or circuit court of the United States or district or supreme court of any Territory of the United States having jurisdiction of similar offences, shall be punished by a fine not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, as the court may determine, for a period of not less than six months nor more than six years, as the court may determine, or by both such fine and imprisonment as the court shall determine. And if any one or more persons engaged in any such conspiracy shall do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby any person shall be injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the person so injured or deprived of such rights and privileges may have and maintain an action for the recovery of damages occasioned by such injury or deprivation of rights and privileges against any one or more of the persons engaged in such conspiracy, such action to be prosecuted in the proper district or circuit court of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like case in such courts under the provisions of the act of April ninth, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication.” (Emphasis added.) The emphasized portion is the source of clause B of
(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein 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 and 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.
A careful reading of Section 2 of the Ku Klux Klan Act, set out in note 5, supra, indicates that portions of that section are the source of
Congressional action in enacting
The dissent states that we now require the application of an equal protection test in