Civil Rights Conspiracies: Section 1985(3) after Carpenters v. Scott. “In contrast, state action is not required for a section 1985(3) action based upon a conspiracy to interfere with one’s thirteenth amendment right to be free from the badges of slavery.”
The Griffin v. Breckenridge Court allowed section 1985(3) recovery against the private conspirators based upon deprivation of the plaintiffs’ thirteenth amendment right to be free from the badges of slavery and the deprivation of the constitutional right to travel.
The Court explained that there is nothing inherent in the section 1985(3) phrase which requires the deprivation to involve the state.Id. at 103-04. The Court in Scott re-emphasized that the Griffin decision was not based on infringement of first amendment rights. 103 S. Ct. at 3358. state action is not required for a section 1985(3) cause of action based upon a conspiracy to interfere with one’s thirteenth amendment right to be free from badges of slavery. Griffin v. Breckenridge, 403 U.S. 88, 105 (1971).
Though the thirteenth amendment basis may seem limited, Congress does have the power to declare acts as constituting badges of slavery. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 439, 440 (1968).
Turning to the claim for relief under section 1985(3) based on the Thirteenth Amendment, it is true that a “conspiracy to violate the Thirteenth Amendment may form the basis of a suit brought pursuant to § 1985(3).” Baker v. McDonald’s Corporation, 686 F.Supp. 1474, 1480 (S.D.Fla.1987), affm’d., 865 F.2d 1272 (11th Cir.1988), cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989) (citing Griffin v. Breckenridge, 403 U.S. at 106-107, 91 S.Ct. at 1800-01).
The Thirteenth Amendment abolished slavery and involuntary servitude and gave Congress the ability to determine the badges and incidents of slavery [903 F.Supp. 221] and to legislate against them. Dixon v. City of Lawton, Oklahoma, 898 F.2d 1443, 1448 (10th Cir.1990).
Thus, together with the Thirteenth Amendment, section 1985(3) creates a remedy prescribing racially motivated conspiracies which, for example, interfere with a minority person’s right to public accommodation. See, e.g., Fisher v. Shamburg, 624 F.2d 156, 162 (10th Cir.1980).
The Thirteenth Amendment is implicated primarily when a private individual segregates or humiliates a black person from freely exercising rights guaranteed to all citizens. Baker v. McDonald’s Corporation, 686 F.Supp. at 1480.
The amendment, however, does not extend to each and every abuse predicated upon race. Wong v. Stripling, 881 F.2d 200, 203 (5th Cir.1989) (affirming dismissal of section 1985(3) claim based on Thirteenth Amendment brought by physician of Chinese ancestry asserting denial of hospital privileges).
In the case at bar, Lowden does not allege that she was discriminated against on the basis of her race or that she was treated differently on the basis of her race. Lowden does not contend that Regan, Senoski or other Mercer officials paid her less money because she belongs to a particular race.
Lowden’s allegations concern her gender and her age which, as indicated above, the Thirteenth Amendment does not encompass. Furthermore, Lowden’s contentions are devoid of facts indicative of a conspiracy aimed at the Thirteenth Amendment as required under Bray v. Alexandria Women’s Health Clinic, 506 U.S. at 274-75, 113 S.Ct. at 762-763.
Accordingly, Lowden cannot employ the Thirteenth Amendment as the basis for an alleged conspiracy under section 1985(3). See, e.g., Flynn v. Dyzwilewski, 644 F.Supp. 769, 775 (N.D.Ill.1986) (section 1985(3) claim based on Thirteenth Amendment dismissed inasmuch as the plaintiff did not allege a conspiracy to place him “in jail because he was white or because he was Irish”).
LOWDEN v. WILLIAM M. MERCER, INC. Civ. A. No. 94-11351-RCL.
In my opinion, the phrase “equal privileges and immunities under the laws” in the first clause of section 1985(3) refers to those rights that the United States Constitution protects against interference by private action (as well as from impairment by state action), such as the right to be free of the badges of slavery as secured by the Thirteenth Amendment and the right to interstate travel. In other words, this phrase applies to rights that have no “state action” requirement.
The majority concedes that such rights are not involved here. On the other hand, the phrase “the equal protection of the laws” in the first clause of section 1985(3), repeating verbatim the concluding words of Section 1 of the Fourteenth Amendment, would seem to refer to rights that the United States Constitution protects only against deprivation by some kind of state action or inaction.
This is not to say that a private conspiracy cannot deprive a party of the equal protection of the laws; but the object of the conspiracy must be to, “directly or indirectly,” in some manner bring about a situation where the protection of the law is unequally afforded or applied to the victim.
I believe this construction accords with the wording of the Ku Klux Klan Act, with its title (“An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for Other Purposes”), and with both the operative intent and the constitutional understanding of those in the Forty-Second Congress who supported the Cook-Willard limiting amendment.
Turning to the claim for relief under section 1985(3) based on the Thirteenth Amendment, it is true that a “conspiracy to violate the Thirteenth Amendment may form the basis of a suit brought pursuant to § 1985(3).” Baker v. McDonald’s Corporation, 686 F.Supp. 1474, 1480 (S.D.Fla.1987), affm’d., 865 F.2d 1272 (11th Cir.1988), cert. denied, 493 U.S. 812, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989) (citing Griffin v. Breckenridge, 403 U.S. at 106-107, 91 S.Ct. at 1800-01).
The Thirteenth Amendment abolished slavery and involuntary servitude and gave Congress the ability to determine the badges and incidents of slavery [903 F.Supp. 221] and to legislate against them. Dixon v. City of Lawton, Oklahoma, 898 F.2d 1443, 1448 (10th Cir.1990).
Thus, together with the Thirteenth Amendment, section 1985(3) creates a remedy prescribing racially motivated conspiracies which, for example, interfere with a minority person’s right to public accommodation. See, e.g., Fisher v. Shamburg, 624 F.2d 156, 162 (10th Cir.1980).
The Thirteenth Amendment is implicated primarily when a private individual segregates or humiliates a black person from freely exercising rights guaranteed to all citizens. Baker v. McDonald’s Corporation, 686 F.Supp. at 1480.
The amendment, however, does not extend to each and every abuse predicated upon race. Wong v. Stripling, 881 F.2d 200, 203 (5th Cir.1989) (affirming dismissal of section 1985(3) claim based on Thirteenth Amendment brought by physician of Chinese ancestry asserting denial of hospital privileges).
In the case at bar, Lowden does not allege that she was discriminated against on the basis of her race or that she was treated differently on the basis of her race. Lowden does not contend that Regan, Senoski or other Mercer officials paid her less money because she belongs to a particular race.
Lowden’s allegations concern her gender and her age which, as indicated above, the Thirteenth Amendment does not encompass. Furthermore, Lowden’s contentions are devoid of facts indicative of a conspiracy aimed at the Thirteenth Amendment as required under Bray v. Alexandria Women’s Health Clinic, 506 U.S. at 274-75, 113 S.Ct. at 762-763.
Accordingly, Lowden cannot employ the Thirteenth Amendment as the basis for an alleged conspiracy under section 1985(3). See, e.g., Flynn v. Dyzwilewski, 644 F.Supp. 769, 775 (N.D.Ill.1986) (section 1985(3) claim based on Thirteenth Amendment dismissed inasmuch as the plaintiff did not allege a conspiracy to place him “in jail because he was white or because he was Irish”).
LOWDEN v. WILLIAM M. MERCER, INC.
Boseski has not stated a claim against any defendant under 42 U.S.C. § 1981, because she does not allege that any defendant’s actions were motivated by racial discrimination. See Brown v. Phillip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001). Similarly, a claimant under 42 U.S.C. § 1985 must adequately allege both a conspiracy, and “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action,” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)), which Boseski has not. Boseski v. N. Arlington Municipality 621 F. App’x 131 (3d Cir. 2015)
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