The opinion
COLEMAN, Circuit Judge,
concurring in part and dissenting in part.
I concur in that portion of the majority opinion which holds that Wyche was not, at the time of his trial, entitled to a jury.
I regret the necessity for emphatically dissenting to the remainder of the majority opinion holding .that Wyche is entitled to an evidentiary hearing. That regret is sharpened by the belief that the majority inflicts an unwarranted Sunday punch upon the already sagging ability of local governments to enforce their laws against crimes of violence.
I think this case should have been affirmed on the able (and, in my opinion, unassailable) opinion of the District Court, 273 F.Supp. 131 .
I would deny an evidentiary hearing for two reasons: (1) Wyche and his counsel agreed in the court below to submit this case on the complete record of the state court trial, where Wyche was represented by counsel and gave his own version of the attack on Dr. Monsell; (2) To me, it is unmistakably obvious that at the time of the battery in question Wyche was not engaged in a protected activity.
In his testimony in the State Court Wyche admitted three times that he did not go to the truck stop to obtain service [Page 183, et seq. of the state trial transcript]. It is undisputed that Wyche got into a personal controversy with a patron in the building. It is undisputed that the battery was committed outside the cafe — not in it. It is undisputed that the management took no part in the Wyche-Monsell controversy.
Wyche went to the truck stop to “investigate” a complaint by a third party that he had been denied service. He admitted that he took along fifty or seventy five others. There was testimony that some of these were armed, and displayed their weapons.
There was abundant proof that when Wyche entered the cafe he asked for the manager. He was told that the manager was at the adjacent filling station. He demanded that the manager be sent for. Monsell, a customer, suggested that if Wyche wanted to see the manager that he go over to the filling station. Wyche asked Monsell “What is it to you” ? One word brought on another and Wyche asked Monsell, “Do you want your-whipped”? Monsell asked, “Who is going to do it, you”? Wyche replied that he “would have it done”, stuck his head out the door, and gave two shrill whistles by placing his hands to his mouth. Monsell attempted to leave but those accompanying Wyche rushed up, cut him off from his vehicle, and kicked him over the kidneys and in the seat of his pants. To me, it is useless for this Court to say that Wyche did not personally strike Monsell; that' he caused it to be done is indisputably obvious, as the state trial judge found.
The altercation was quickly stopped by another customer, James Earl Shrivers, who obtained a shotgun and prepared for action, whereupon the self-appointed “investigators” precipitately lost interest in the matter and fled the scene. I would suggest that Shrivers had as much right to quell the violence as Wyche had to precipitate the attack.
*799 I say, with all the conviction of which I am capable, that this is simply too much to shield under the guise of a “protected right”, which in fact did not exist, and I do not overlook the fact that Wyche and his counsel made no effort to remove this case to the federal courts for trial on the merits when the prosecution was begun, as they could have done under decisions known to every “civil rights” lawyer.
I heartily agree with the statement of the District Court, 273 F.Supp. at 136 , “Surely the Supreme Court never intended to require a complete re-trial of cases of violence such as this”.
I object to requiring any further proceedings in this case.