Section 1981(a) provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind and to no other.
The first and most frequently invoked portion of § 1981 is the “contracts clause,” which forbids discrimination in the making and enforcement of contracts. In this action, in contrast, plaintiffs’ claim is brought under the “equal benefit” and “like punishment” clauses of the statute. Although the United States Supreme Court has interpreted only the “contracts clause,” the lower courts have recognized causes of action under other portions of § 1981, including the “equal benefit” and “like punishment” clauses. See, e.g., Mahone v. Waddle, 564 F.2d 1018, 1027-29 (3d Cir.1977), cert. denied sub nom. Pittsburgh v. Mahone, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978); Franceschi v. Hyatt Corp., 782 F.Supp. 712, 724 (D.P.R.1992); Hawk v. Perillo, 642 F.Supp. 380, 392 (N.D.Ill.1985);Central Presbyterian Church v. Black Liberation Front, 303 F.Supp. 894, *1018 901 (E.D.Mo.1969). There is some disagreement, however, as to the scope of these clauses. Most of the decisions interpreting them have held that state action is required to state a claim under the “equal benefit” and “like punishment” clauses of § 1981. See, e.g., Shaare Tefila Congregation v. Cobb, 785 F.2d 523, 525-26 (4th Cir.1986), rev’d in part on other grounds, 481 U.S. 615, 107 S.Ct. 2019, 95 L.Ed.2d 594 (1987); Mahone, 564 F.2d at 1029;Evans v. Verdon, 1992 WL 486299 (E.D.N.Y.); Brooks v. American Broadcasting Cos., Inc., 737 F.Supp. 431, 445 (N.D.Ohio 1990),vacated, in part on other grounds, 932 F.2d 495 (6th Cir.1991); Spencer, 717 F.Supp. at 1059 (S.D.N.Y.1989); Rochon v. Dillon, 713 F.Supp. 1167, 1172 (N.D.Ill.1989); Eggleston v. Prince Edward Volunteer Rescue Squad, 569 F.Supp. 1344, 1353 (E.D.Va.1983), aff’dwithout op., 742 F.2d 1448; Williams v. Northfield Mount Hermon School, 504 F.Supp. 1319, 1332 (D.Mass.1981). However, a few courts have extended the clauses to encompass private conduct. See, e.g., Franceschi, 782 F.Supp. at 718 (plaintiff stated claim under “equal benefit” clause for racially-motivated denial of accommodation by private hotel); Carey v. Rudeseal, 703 F.Supp. 929, 930 n. 1 (N.D.Ga. 1988) (assault by members of Ku Klux Klan states claim under “equal benefit” clause); Hawk, 642 F.Supp at 390 (racially-motivated assault by private citizens states claim under “equal benefit” clause). Neither the Supreme Court nor the Second Circuit Court of Appeals has addressed the reach of the “equal benefit” and “like punishment” clauses. Here, the court follows the reasoning of the Court of Appeals for the Third Circuit in Mahone v. Waddle, 564 F.2d at 1029, and concludes that state action is a necessary requirement for a cause of action under the “equal benefit” or “like punishment” clauses of § 1981. Because state action is not alleged in this case, the jury verdict on plaintiffs’ § 1981 claim must be vacated.
In Mahone, the Third Circuit Court of Appeals held that § 1981 reached conduct beyond discrimination in the making and enforcement of contracts, and that plaintiffs alleging racially motivated false arrest, abuse, and false testimony by police officers stated a claim under the “equal benefit” and “like punishment” clauses of § 1981. Id. at 1027-29. Noting that a broad reading of these provisions, read in light of the Supreme Court’s extension of the “contracts clause” to private conduct in Runyon v. McCrary, risked “[giving rise to a federal cause of action for every racially motivated private tort,]” id. at 1029, the Mahone Court limited its holding by drawing a distinction between the “contracts” clause on the one hand and the “equal benefit” and “like punishment” clauses on the other. The Court of Appeals stated:
The right to make and enforce contracts necessarily is concerned with relations between private individuals. It is usually with another individual, not the state, that a black person would seek to make a contract; it is that person’s racially motivated refusal to make a contract which can cause harm to the black person. The right to make and enforce contracts can thus be infringed by private individuals and it is appropriate that private individuals be held liable for that infringement.
*1019 The words “full and equal benefit of all laws and proceedings for the security of persons and property” (emphasis supplied), on the other hand, suggest a concern with relations between the individual and the state, not between two individuals. The state, not the individual, is the sole source of law, and it is only the state acting through its agents, not the private individual, which is capable of denying to blacks the full and equal benefit of the law. Thus, while private discrimination may be implicated by the contract clause of section 1981, the concept of state action is implicit in the equal benefit clause. The like punishment clause may be read in the same way.
564 F.2d at 1029.
This court agrees that the language of the “like punishment” clause suggests a concern with official, rather than private conduct. Although the argument that the “equal benefit” clause cannot be construed to reach private conduct is slightly less persuasive, the court finds Mahone‘s interpretation of that clause sound as well, because it is both natural and consistent with Supreme Court precedent. As the Mahone Court points out, creating laws “for the security of persons and property” is traditionally the role of state legislators. Although it is conceptually possible for a private party to deprive another of the “equal benefit” of those laws, it is difficult to imagine what such a deprivation would be other than the violation of the state laws themselves, coupled with a racial animus. Reading the clause to encompass this kind of conduct, however, risks creating a § 1981 action “whenever a white man strikes a black [man] in a barroom brawl.” Id. at 1029. Extending the “equal benefit” clause to private conduct would have the effect of federalizing all racially-motivated state-law torts that implicate “the security of persons and property.” The court does not believe that Congress intended § 1981 to reach this far.
The need to cabin the reach of the federal civil rights laws so as not to create a “general federal tort law,” Griffin v. Breckenridge, 403 U.S. at 101, 91 S.Ct. at 1797, has long been a theme of the Supreme Court’s decisional law. In Griffin, for example, the Court held that § 1985(3) was intended to reach private conspiracies, but cautioned that the drafters of the statute “were equally emphatic that they did not believe … `that Congress has a right to punish an assault and battery when committed by two or more persons within a State.'” Id.at 102, 91 S.Ct. at 1798. The Court expressed a similar concern in Carpenters, 463 U.S. at 834-35, 103 S.Ct. at 3359-60, and in Bray,___ U.S. at ___, 113 S.Ct. at 759, which articulate limitations on the applicability of § 1985(3) to private conduct in addition to the limitation set forth in Griffin.
This concern is no less important in the context of § 1981. The Court noted in Patterson v. McLean Credit Union that, “[a]lthough we must do so when Congress plainly directs, as a rule we should be and are `reluctant to federalize’ matters traditionally covered by state common law.” 491 U.S. 164, 183, 109 S.Ct. 2363, 2375, 105 L.Ed.2d 132 (1989). If the “equal benefit” clause of § 1981 were extended in this case to reach private action, the court sees no limiting principle to prevent its becoming the “general federal tort law” the Supreme Court has expressly rejected. Defendants’ attack on Spencer appears to be precisely the kind of “assault and battery between two or more persons within a state” that the Court has been unwilling to view as encompassed by the federal civil rights laws.Griffin, 403 U.S. at 101-103, 91 S.Ct. at 1797-1798. The *1020 court thus declines to extend § 1981 to reach plaintiffs’ claim.Because the court holds that plaintiffs failed to state a claim under § 1981, it need not address the issue of whether § 1981 creates a cause of action on plaintiffs’ own behalf for the loss of their son.
Click Here to Read Spencer v. Casavilla, 839 F. Supp. 1014 (S.D.N.Y 1993)