Petitioners Brief — Johnson v. Mississippi

ois . ee ee 9 ee

a a AO ale ai eee SS vo eee ‘ oe ee

eyes

MICHAEL RODAK, J.,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-1531

ALBERT JOHNSON, REV. EDDIE McBRIDE, JOHN

FERGUSON, CHARLES CHIPLIN, ISSAC REMBERT,

and JAMES ODELL DIXON,

versus Be

STATE OF MISSISSIPPI, et al.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

BRIEF FOR PETITIONERS

Of Counsel:

JAMES E. WINFIELD

P. O. Box 1448

Vicksburg, Mississippi 39180

é “ eas

TABLE OF CONTENTS

Page

OPINIONS BELOW cscs ocsesdvcctsedesdavwncesease: 1

JURISDICTION scenes enivetse es teibceesscersesess 2

QUESTION PRESENTED ......................... 2

STATUTORY PROVISIONS INVOLVED .......... Z

STATEMENT OF THE CASE ...................... 7

raed Wi) 8 7

B. Judicial Proceedings ........................ 15

PSU des ecaee oe eerwee ans oeyacseeveeures 19

Summary of Argument ....................00000: 19

I. Georgia v. Rachel, 384 U.S. 780 (1966),

Allows Removal Under Any Federal

Law Providing for Specific Civil Rights

Stated in Terms of Racial Equality

Which Forbids Harassing Prosecutions...... 19

II. Section 245(b) is a ‘““Law Providing for

. Equal Civil Rights” Within the

Meaning of the Civil Rights Removal

DUAUING 5 occu case ceseces oe vewee ss canaeencus 24

III. Petitioners By These Arrests and

Prosecutions are “Denied [and] Cannot

Enforce” in State Court Their Rights

Secured by 18 U.S.C. Section 245(b) ......... 31

A. By Prohibiting Official Interference

with Civil Rights Protest Activity,

Section 245(b) Provides for a Right

Not to be Arrested or Prosecuted for

Protected Activity ..................0.00. 31

EET ES ACES IS PT ee

ii

TABLE OF CONTENTS (Continued)

Page

B. Removal is Necessary to Protect

Section 245(b) Rights of Civil Rights

Protest From Denial by State

Criminal Process ..................005- 36

IV. The Judgment Below Should be Revers-

ed and the Case Remanded to the Court

OE POG novice cha cde ceceuees ceeeian ste’ 40

CONCLUSION ...............000 ee eee qe 44

TABLE OF AUTHORITIES

Cases: Page

City of Greenwood v. Peacock, 384 U.S. 808

(1966) ...... cece cee cece cee eee 19,22-23 and passim

Cole. v. Ralph, 252 U.S. 286 (1920) .................. 43

Concerned Citizens of Vicksburg v. Sills, Civil

No. 72W-18(N) (S.D. Miss. filed May 24, 1972)...... 16

Cox v. Louisiana, 379 U.S. 536 (1965) .............. 43

Edwards v. South Carolina, 372 U.S. 229 (1963) ...... 43

Georgia v. Rachel, 384 U.S. 780 (1966) ........ 19,21-22

and passim

Gibson v. Mississippi, 162 U.S. 565 (1896) .......... 30

Hamm v. City of Rock Hill, 379 U.S.306 (1964)... 33,34

Kentucky v. Powers, 201 U.S. 1 (1906) .............. 36

Keyes v. School District No. 1, 413 U.S. 189

Gh y | a eee re 43

Mashburn v. Daniel, Civil No. 73J-138(R) (S.D.

Miss. Aug. 20, 1973) .......0 00. cc eee eee eee e ees B4

STILL ND SAIN NIE AT AE MOI LSS AEE NOL I HAE) Sy AIRES TOE ME Ie Rt tp IF

cde SGM

ili

TABLE OF AUTHORITIES (Continued)

Cases: | Page

NAACP v. Thompson, 357 F.2d 831 (5th Cir.

1966), cert. denied, 385 U.S. 820 (1967) ........... 38

Neal v. Delaware, 103 U.S. 370 (1881) .............. 30

North Carolina v. Hawkins, 365 F.2d 559 (4th

Cir. 1966), cert. denied, 385 U.S. 949 (1966). ...... 34

Perkins v. Mississippi, 455 F.2d 7, aff'd on

rehearing en banc, 470 F.2d 1371 (5th Cir.

1972) 00. c cc cece ccc cc cccccccccccccccccccce 17,29,30,34

Strauder'v. West Virginia, 100 U.S. 303 ( 1880) ...... 36

Thompson v. Brown, 434 F.2d 1092 (5th Cir.

ROTO) ran cd arene einnesnonesvédetesenuddsseiecncas 34

United States v. Brims, 272 U.S. 549 (1926) ........ 43

Virginia v. Rives, 100 U.S. 313 (1880) ........... 30,36

Walker v. Georgia, 417 F.2d 1 (5th Cir. 1969) . ... 23,40

Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir.

OS) re 22,34

Statutes:

18 United States Code

§ 241 oo... .. eee, qepavueeuss bets eineases cease. 26

GMD ccc cc ccc ecco nsccvectcvccecccccceccceees 26

a en ee 30

iv

TABLE OF AUTHORITIES (Continued)

Page

28 United States Code

2 et ee re oe rn 2

DUES 66550 kde desc edeceniecierocsenesxss passim

ee eebeveeeueasvssxaece 2

‘42 United States Code

| ee ye er eee ee 22

8 ere

DN ook ns sh icenseinesds ie betncceneesaees 22,34

Ne sino 5 640 usd ¥en sok Kendeakeasskeucexss 22

2) ee ue eee Resa dedeuseesdedeevas 22,29

RN 6 xd 549 4 0 o0 0b 0055500 He Ce uens sous esbauees 16

NE co ke keuncny chews eeuesas ened bateseocaens 21,25

Be eee 33,34

Georgia Code Annotated § 26-3005 (Supp. 1965)...... 21

Mississippi Code Annotated

OTA TNe 65.60% on cnt ohn cke 0s 05sdse10denssai 6,8

§ 97-1-1(f) (1972) . 0... cece ccc cece eee eee enees 11,33

BOTT AG IIT occ xrvnscsnevcsevextdieccrievarico ll

Be Es oy : a ee rr 8,11

§ 97-23-85 (1972) .... cece ccc cece cece cette eeeeees 8,11

Civil Rights Act of April 9, 1866, ch. 31, 14 Stat.

DF edo s5 ons ue es 00s ce h bad sa ede Kaa ed areas 29

Act of March 1, 1875, ch. 114, 18 Stat. (Pt..3)336...... 30

Legislative History

H.R. Rep. No. 473, 90th Cong., Ist Sess. (1967) .25-27,32

-S. Rep. No. 721, 90th Cong., Ist Sess. (1967) ...25-27,32

TABLE OF AUTHORITIES (Continued)

Legislative History (Con’t): Page

113 Cong. Rec. (1967) ............. 00. c cee eee es : 28,32

114 Cong. Rec. (1968) .........0cccceeeeee eee 26,27,28

Other Authorities:

Rule 52(a), Federal Rules of Civil Procedure ..... 11,43

A. Amsterdam, Criminal Prosecutions Affect-

ing Federally Guaranteed Civil Rights:

Federal Removal and Habeas Corpus

Jurisdiction to Abort State Court Trial, 113

U. Pa. L. Rev. 793 (1965) ...............00000 eee 36

Comment, Civil Rights Removal Under 28

U.S.C. § 1443(1): One Hundred Years of In-

utility, 21 Am. U. L. Rev. 375 (1972) .............. 34

Comment, Removal of State Criminal

Prosecutions To Federal Court Under 42

U.S.C. § 1443, 64 J. Crim. Law 76 (1973) ......... 34

Note, Federal Jurisdiction: The Civil Rights

Removal Statute Revisited, 1967 Duke L. J.

ROP oon 6 cebu nduineesceseeessscadeesnseusanecca 30,34

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 73-1531

ALBERT JOHNSON, REV. EDDIE McBRIDE, JOHN

FERGUSON, CHARLES CHIPLIN, ISSAC REMBERT,

and JAMES ODELL DIXON,

Petitioners,

versus

STATE OF MISSISSIPPI, et al.,

Respondents.

_

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

BRIEF FOR PETITIONERS

OPINION BELOW

The opinion of the Court of Appeals for the Fifth Circuit

is reported at 488 F.2d 284, and is reproduced in Appendix

6b of the Petition (pp. 6a-13a). The order of the Court of

Appeals denying petitioners’ petition for rehearing and

rehearing en banc and the dissenting opinion of Chief

ete ame sir ta ct etd ARAL PARP i wl SB

2

Judge John R. Brown joined by four other judges is

reported at 491 F.2d 94, and is reproduced in Appendix A

‘of the Petition (pp. la-5a).

JURISDICTION

The Court of Appeals entered judgment on January 14,

1974 and denied rehearing en banc on March 15, 1974.!

The petition for writ of certiorari was filed April 12, 1974

and was granted on October 21, 1974. This Court’s jur-

isdiction is invoked pursuant to 28 U.S.C. § 1254(1) and 28

U.S.C. § 1447(d).

QUESTION PRESENTED

Whether under Georgia v. Rachel, 384 U.S. 780 (1966),

petitioners may remove the criminal prosecutions

against them to Federal court pursuant to the civil rights

removal statute, 28 U.S.C. § 1443(1), to protect their exer-

cise of rights specifically protected from official in-

terference by Title I of the Civil Rights Act of 1968, 18

U.S.C. § 245(b).

STATUTORY PROVISIONS INVOLVED

1. 28 U.S.C. § 1443(1) provides in relevant part:

§ 1443. Civil rights cases

Any of the following civil actions or criminal

prosecutions, commenced in a State Court may

1 By order of Circuit Judge Dyer entered April 1, 1974, the mandate

of the Court of Appeals was stayed pending final disposition by this

Court.

be removed by the defendant to the district court

of the United States for the district and division

embracing the place wherein it is pending:

(1) Against any person who is denied or can-

not enforce in the courts of such State a right un-

der any law providing for the equal civil rights of

citizens of the United States, or of all persons

within the jurisdiction thereof; . . .

* * *

2. 18U.S.C. § 245(b)(§ 101(a) of the Civil Rights Act of

April 11, 1968) provides in relevant part:

§ 245. Federally protected activities

* * *

(b) Whoever, whether or not acting under color

of law, by force or threat of force willfully injures,

intimidates or interferes with, or attempts to in-

jure, intimidate or interfere with —

(1) any person because he is or has been, or in

order to intimidate such person or any other

person or class of persons from —

* * *

(B) participating in or enjoying any bene-

fit, service, privilege, program, facility,

CmCtCtCt”™:™~™””™CT””STCSSS ee ee ee

(2)

(E)

or activity provided or administered by

the United States;

participating in or enjoying the bene-

fits of any program or activity receiv-

ing Federal financial assistance; or

any person because of his race [or] color,.. .

and because he is or has been —

(B)

(C)

(F)

participating in or enjoying any bene-

fit, service, privilege, program, facility

or activity provided or administered by

any State or subdivision thereof;

applying for or enjoying employment,

or any perquisite thereof, by any

private employer or any agency of any

State or subdivision thereof, or joining

or using the services or advantages of

any labor organization, hiring hall, or

employment agency;

* * *

enjoying the goods, services, facilities,

privileges, advantages, or accom-

modations of any inn, hotel, motel, or

other establishment which provides

5

lodging to transient guest, or of any

restaurant, cafeteria, lunchroom,

lunch counter, soda fountain or other

facility which serves the public and

which is principally engaged in selling

food or beverages for consumption on

the premises, or of any gasoline sta-

tion, or of any motion picture house,

theater, concert hall, sports arena,

stadium, or any other place of exhibi-

tion or entertainment which serves the

public and (i) which is located within

the premises of any of the aforesaid es-

tablishments or within the premises of

which is physically located any of the

aforesaid establishments, and (ii)

which holds itself out as serving

patrons of such establishments; or

(4) Any person because he is or has been, or in

order to intimidate such person or any other

person or any class of persons from —

(A) participating, without discrimination

on account of race [or] color,. . .in any

of the benefits or activities described in

subparagraphs (1)(A) through (1)(E) or

subparagraphs (2)(A) through (2) F); or

(B) affording another person or class of

persons opportunity or protection to so

participate; or

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NASAL LN TNT ITY IN TER RENN HRMS

Fadia Si

Beeerrersccnics

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6

(5) any citizen because he is or has been, or in

order to intimidate such citizen or any other

citizen from lawfully aiding or encouraging

other persons to participate, without dis-

crimination on account of race [or]color.. .

in any of the benefits or activities described

in subparagraphs (1)(A) through (1)(E) or

subparagraphs (2)(A) through (2)(F), or par-

ticipating lawfully in speech or peaceful

assembly opposing any denial of the oppor-

tunity to so participate — shall be fined not

more than $1,000, or imprisoned not more

than one year, or both; and if bodily injury

results shall be fined not more than $10,000;

oe lmonmoned aoe

both; and if death results shall be subject to

imprisonment for any term of years or for

life.

* * *

3. Miss. Code Ann. §97-1-1 (1972) (conspiracy)

provides in relevant part:

If two (2) or more persons conspire either:

* * *

(f) To commit any act injurious to the public

health, to public morals, trade or commerce,

or for the perversion or obstruction of justice,

or of the due administration of the laws;

* * *

such persons, and each of them, shall be guilty of

a felony and upon conviction shall be fined not

less than five hundred dollars ($500.00) nor more

than five thousand dollars ($5,000.00) or shall be

7

imprisoned not less than one (1) year nor more

than five (5) years or both.

Provided, that where the crime conspired to be

committed is a misdemeanor, then upon convic-

tion said crime shall be punished as a mis-

demeanor as provided by law.

STATEMENT OF THE CASE

A. The Facts.

Through picketing, protest marches, demonstrations, a

selective buying campaign, and mass meetings

petitioners sought peacefully to eliminate racial discrim-

ination in public and private employment, law enforce-

ment, the administration of justice, and governmental

services and to publicize the grievances of the Black

citizens of Vicksburg, Mississippi. Petitioners, with other

residents of the Black Vicksburg community, were

thereupon arrested in May, 1972, while participating law-

fully in such speech and peaceful assembly.

Prior to the picketing and demonstrations, the

grievances and demands of the Black community were

discussed with the city officials and merchants (App. 52,

54-55, 57, 68, 93-94).2 When the grievances were not satis-

fied, petitioners helped organize and participated in(l)a

primary economic boycott, or selective buying campaign.

- of the local white-owned businesses publicized by word-

2 The abbreviation “App.” refers to pages of the printed Appendix..

the abbreviation “Tr.” refers to pages of the Trial Transcript of

testimony taken at the remand hearing, and the abbreviation “R.” re-

fers to pages of the Record on appeal, which includes the pleadings.

~

| eae

MORNE Ie Ried BeAr

Bree caus Sta neal

sR PORE NAOT i ALT Ae FA EEL SLO LH Os

8

of-mouth and picketing for the purpose of gaining equal

treatment and equal employment opportunities in those

businesses (R. 5, App. 22, 49, 53, 56, 58-59, 66-67, 69, 91),

and (2) peaceful picketing, leafleting, protest marches,

and mass meetings protesting and seeking an end to

racial discrimination in employment and services in city

and county government and governmental agencies (R. 5,

App. 22, 31-32, 37-38, 49-50, 53, 56, 64, 66-67, 69, 91).

” The picketing, leafleting, and selective buying cam-

paign began in late March, 1972, and continued until ear-

ly May. Groups of demonstrators and their leaders were

arrested en masse on May 2, May 13, and May 14 (App. 3-

17). A total of 49 demonstrators were forcibly arrested by

armed Vicksburg police, jailed, and charged not with any

threatening or violent conduct, but with the vague charge

of conspiracy to commit “‘acts injurious to trade or com-

merce” pursuant to the Mississippi general conspiracy

statute, Miss. Code Ann. § 97-1-1 (1972) (formerly Miss.

Code Ann. § 2056(6) (1956 Recomp., Supp. 1972) ).* After

their arrests, petitioners initially were held in jail on ex-

cessive bail of $5,000 (R. 6, 27), which was equal to the

3 Atthe remand hearing inthe District Court, the State asserted that

all the demonstrators arrested on May 2, 13, and 14

“are presently charged under Section 2056 of the Mississippi

Code [now § 97-1-1] which is a general conspiracy statute con-

taining a number of subparagraphs. The subparagraph used

in this particular instance is where it is declared to be a crime

to enter into a conspiracy harmful to trade or commerce.” App.

30.

The arrest affidavits (App. 3-17) tracked the language of that statute.

However, the trial court, and then on appeal the State, abandoned that

claim; and contrary to the language of the arrest affidavits the trial

court held, and the State represented to the Fifth Circuit, that the

arrests were instead predicated on Miss. Code Ann. § 97-23-85 (1972)

(secondary boycott) and § 97-23-83 (1972) (threats and coercion). The

record in the trial court is devoid of any direct evidence that any of the

petitioners committed any unlawful acts under these statutes. See pp.

10-13, infra.

maximum fine under the statute, forcing some to spend

two days in jail while bail was being raised (App. 34, 64-

65). Subsequently, bail was reduced categorically to

$1,000 for those over 60 years of age and $1,500 for those

under 60 years of age (R. 6, 27).

The testimony taken at the remand hearing shows that

the arrests were made in bad faith without hope of ul-

timate success for the purpose of harassing petitioners in

the peaceful exercise of their right to protest racial dis-

crimination. Most of the demonstrators, including

several of-the petitioners, were arrested while picketing

and carrying signs protesting racial discrimination (App.

56), and the remainder were arrested because of their par-

ticipation in the civil rights protest activities.

For example, petitioner Rev. Charles Chiplin was

arrested both on May 2 and on May 13 while walking with

a picket sign and protesting racial discrimination in hir-

ing and in the administration of justice (App. 90-91):

“On May 2 I was walking up Washington Street

with a picket sign, and an officer stopped me and

said, ‘You are under arrest.’ ” (App. 90)

Bennie Young was arrested with a group of about 30 other

demonstrators on May 13 after he had carried a picket

sign for about a block and a half from the assembly point

protesting racial discrimination in city government

employment and law enforcement (App. 31-33, 37-38).

Petitioners Rembert and Dixon were arrested with a

group of 17 demonstrators and protest leaders on May 2

(App. 4, 23), and petitioner Dixon was arrested again with

a group of demonstrators on May 13 (App. 5, 23).

sat ihe CAE i ht 0 nb I aa TOE le oe co een shuts Sn Newate 2 toes

Se Oe

10

Petitioner Albert Johnson, who was arrested for his

participation in the picketing on May 2 (App. 4, 23), and

May 13 (App. 13, 24), was arrested again on May 21 for in-

timidating and coercing on the complaint of one James

Sturgis (R. 34). Mr. Sturgis did not testify at the remand

hearing; and Chief Brown, who was not present when the

alleged incident occurred, could only testify that he had

received a complaint from Mr. Sturgis (App. 109). Eddie

Thomas, who testified as a witness for the petitioners,

was present when the alleged incident took place and in-

dicated that no threats or intimidation on Johnson’s part

had occurred (App. 70-73).

Petitioners Rev. Eddie McBride and John Ferguson,

two of the leaders of the civil rights protest activity (App.

53, 57), were arrested directly after the May 2 picketing

(App. 52), and petitioner McBride was arrested again on

- May 13 while picketing (App. 52) on four identical con-

spiracy charges (App. 11, 14-16), all because of their par-

ticipation in the demonstrations (App. 126). While

petitioner Ferguson was being booked he heard the Chief

of Police state that “anybody on the street with a picket

sign would be arrested” (App. 51).

The petitioners and their witnesses testified at the re-

mand hearing that the demonstrators had been carefully

and repeatedly instructed to picket peacefully and not to

interfere unlawfully with any shoppers (App. 33-34, 53-54,

76, 86, 91, 100, 102), and that there was no violence, no

threats or intimidation, and no forcible or threatening ef-

' forts by the demonstrators to keep customers out of stores

(App. 33-34, 38, 53-56, 60-61, 67-68, 74-76, 88, 90-96, 102).

11

The. arrest affidavits themselves (App. 3-17) all are

boiler plate and fail to state any underlying facts to sup-

port the arrests. Chief Brown, the only witness for the

State, executed the arrest affidavits which resulted in the

arrests but did not personally observe the commission of

any offense (App. 122, 125, 131, 134). No merchant or

shopper testified that any of the demonstrators had in-

terfered with trade or commerce.

At the remand hearing, the State contended only that

the petitioners were arrested for conspiracy in restraint of

trade (App. 30) under present Miss. Code Ann. § 97-1-1(f)

(1972). However, District Judge Harold Cox himself ex

mero motu changed the charges (App. 132-33) and in-

voked a series of amendments and enactments passed by

the Mississippi Legislature in 1966 and 1968 in response

to civil rights protest and boycott activity, including

_ State statutes punishing secondary boycotts (Pet., App.

D, p. 17a),* use of boycott to accomplish an unlawful pur-

pose (Pet., App. D., pp. 17a-18a, n. 3),5 and threats and

coercion (Pet., App. D, p. 18a, n. 4).6

However, the findings of the trial court that petitioners

were arrested for unprotected activity are clearly

erroneous. Rule 52(a), F.R. Civ. P. The testimony is clear

4 Miss. Code Ann. § 97-23-85 (1972), formerly Miss. Code Ann.

§ 2059.3 (1956 Recomp.) (Supp. 1972).

5 Miss. Code Ann. § 97-7-19 (1972), formerly Miss. Code Ann.

§ 2059.2 (1956 Recomp.) (Supp. 1972).

6 Miss. Code Ann. § 97-23-83 (1972), formerly Miss. Code Ann.

§ 2384.5 (1956 Recomp.) (Supp. 1972).

af

T : ne. witte A OEE RR LPIE BIL PD eet I LOPE Ha Ne Atta

12

{ — and uncontradicted’ — that the boycott activity

against the merchants was not to create “an economic in-

. jury to these merchants with whom they actually had no

4 quarrel” (Pet., App. D, p. 17a), but rather was a protest

. against their discriminatory employment practices, a

goal specifically protected by § 245(b)(2)(C):

a

“Q. Which white merchant did you have a par-

ticular complaint about, any specific com-

plaint about?

A. It wasn’t specific, it was collectively. I felt

that the: all could aid in giving better aid

more jobs to black people.

” * *

The things that the black people of

Vicksburg are asking for are in conjunc-

tion, basically in conjunction with both the

city officials and the merchants; the ac-

tivities of the merchants in not allowing

more black people to work other than

janitorial positions are uncalled for

because there are sales people and

managerial type people in Vicksburg who

are qualified and able to do a good job.

Basically, I think it’s good business for ~

businessmen to hire black people.” App. 58,

66-67 (Ferguson testimony).

Sik pe MRR Sw lk Wen AEA nea RARE ey Dak DEAT

i 7 The District Court apparently relied upon a March 23, 1972, letter

; from the “Black Concerned Citizens of Vicksburg” to the Vicksburg

Chamber of.Commerce for a statement of the protesters’ demands

(Pet., App. D, p. 16a). However, from the text of the leiter (App. 135-36)

itis clear that those demands were stated only as a condition precedent

to future meetings, not as the goals of the protest activity, which were

stated in the oral testimony.

mess Din OO hg bibs REM Ret Pht Vie

13

Although Vicksburg Police Chief Marion R. Brown, at

whose direction all the arrests were made, testified that

there had been interference with and harassment of

shoppers by unnamed and unknown persons, a close

reading of his testimony reveals that his notion of in-

terference consisted primarily of free speech activity in-

forming shoppers of the boycott (App. 112-14). He testi-

fied that he had received some complaints from Blacks of

anonymous threatening telephone calls, but the unlawful

activities of others cannot provide a basis for the su ppres-

sion of protected free speech activity. Chief Brown had no

information that any of the petitioners had engaged in

any unlawful activities:

“Q. My question would be this then, Chief

Brown, do you have any information as to

Particularly the petitioners that are

charged committing any of the [unlawful]

acts, if in fact these acts occurred?

A. No, I don’t know.” App. 124.

The sole and exclusive basis for these arrests was

petitioners’ civil rights protest activities:

“BY THE COURT:

Do you know what he [petitioner F erguson] was

arrested for and accused with?

8 When asked what the picketers were doing prior to their arrests.

Police Chief Brown testified that they would .

Pilitcietcisesminarsesiiccec:

14

BY THE WITNESS [Chief Brown]:

He was arrested, I believe, on May 2, with the

first group that was arrested. He has actually

participated in the boycott, and in fact, at the be-

ginning he was very actively participating in it.

* * .

BY MR. WINFIELD:

Q. Do you not know of any intimidation that

Mr. Ferguson —

A. The only thing I’ve seen him, I’ve seen him

actually carry a picket sign, I’ve seen him

stopping people on the street and talking to

them.

Was that unlawful?

No, there’s nothing unlawful about stop-

ping a person and talking.” App. 126.

Po

. These arrests broke the back of the civil rights protest

movement and ended the picketing (App. 96). When asked

by the District Judge whether picketing was continuing,

petitioner John Ferguson responded:

“No, it isn’t going on now for the simple reason

that if anyone gets on the street with a picket sign

they will be charged with criminal conspiracy,

and the bail is astronomical.” (App. 50)

While petitioners’ appeal was pending, and after the

picketing had been successfully halted, the charges

against the original 49 petitioners were presented to the

Warren County grand jury, and the grand jury returned

15

no triie bills against 43 of the 49 arrested demonstrators

(App. 140-41). All charges against the 43 protesters have

been dropped (id.). However, the six leaders and principal

activists of the protest movement (App. 36-37, 49, 90), who

are the petitioners here, were indicted for conspiracy to

restrain trade and commerce (App. 142-43).

B. Judicial Proceedings.

The 49 arrested demonstrators filed their verified peti-

tion for removal on May 25, 1972 (R. 1-25), andan amend-

ed petition on June 1, 1972 (App. 19-28), removing the

criminal prosecutions against them from the City Court

of Vicksburg and the County Court of Warren County to

the United States District Court for the Southern District

of Mississippi pursuant to the civil rights removal stat-

ute, 28 U.S.C. § 1443. The petitioners asked that the

removal be sustained and the charges against them dis-

missed. In their petition, the demonstrators alleged that

all their civil rights protest activity was conducted in a .

“lawful and peaceful manner” (App. 22) and “in the exer-

cise of rights guaranteed to petitioners by Title I of the

Civil Rights Act of 1968, 18 U.S.C. 245” (App. 25). They

alleged that the charges against them “have no basisin

fact” and were brought

“solely and exclusively for the purpose and effect

of depriving petitioners of their Federally

protected rights, including by force or threat of

force, punishing, injuring, intimidating, and in-

terfering, or attempting to punish, injure, in-

timidate, and interfere . . . with petitioners, and

the class of persons participating in the Warren

County boycott and demonstrations, for the exer-

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16

cise of their rights peacefully to protest discrim-

ination and to conduct and publicize a boycott

which seeks to remedy the denial of equal civil

rights ... which activities are protected by 18

U.S.C. § 245.” App. 25-26.

Petitioners alleged that as a result of the arrests and state

criminal prosecutions they “are denied and cannot en-

force their rights asserted under 18 U.S.C. 245” in the

courts of the state “because that statute protects those

who are arrested for exercising the rights. . . conferred by

that statute, not only from conviction in state courts, but

also from prosecution in those courts.’’? App. 26.

After an evidentiary hearing on the State’s motion to

remand the prosecutions, District Judge Harold Cox

remanded the cases back to the state court on January 4,

1973 (Pet., Appendix D, pp. 15a-25a; App. 137) on the

ground that petitioners “were not engaged at the time in

the discharge, or performance of any federally protected

right or activity. * * * This petition does not in any wise or

to any extent involve the exercise by these petitioners of

any federally protected right such as public accommoda-

tion, peaceful picket and the like[ footnote omitted].” Pet.,

App. D, p. 19a. On appeal, the Fifth Circuit affirmed the

District Court’s remand order based solely on its inter-

pretation of the removal statute. 488 F.2d 284 (5th Cir.

1974). The Court of Appeals held that petitioners had a

9 Simultaneously, the petitioners also filed a complaint pursuant to

42 U.S.C. § 1983 seeking injunctive relief against the arrests and

prosecutions in a companion action, Concerned Citizens of Vicksburg

v. Sills, Civil No. 72W-18(N)(S.D. Miss. filed May 24, 1972), but the Dis-

trict Court denied temporary injunctive relief which would have held

the prosecutions in status quo pending a final hearing on the merits

(Order of May 26, 1972). A final hearing in that action has not yet been

held, and is not part of this appeal.

}

17

right to engage in free speech and picketing activity,

which was protected from official interference by 18

U.S.C. § 245(b), and that § 245 “clearly deals with equal

civil rights” (488 F.2d at 286). But the Court of Appeals

ruled that-removal of criminal prosecutions was preclud-

ed as a matter of law here because § 245(b), as a criminal

statute, is-not-a statute “providing” for the equal civil

rights of citizens within the meaning of the civil rights

removal statute, 28 U.S.C. § 1443(1). In essence, the Court

of Appeals held that removal under § 1443(1) can be

predicated only on Congressional enactments explicitly

providing civil sanctions because a criminal statute,

regardless of its express provisions and Congressional in-

tent, has not “created a new legal right” and therefore

cannot bea law which “provides for. . . equal civil rights”

(488 F.2d at 287, emphasis in original).'°

After the adverse panel decision, petitioners’ petition

for rehearing en banc was denied by a 10-5 vote of the full

court. 491 F.2d 94 (5th Cir. 1974) (en banc). Chief Judge

John R. Brown, joined by four other judges of the Fifth

Circuit, dissented from the denial of the rehearing en

banc on the grounds that the issue was “of recurring

transcendent importance” and the panel’s decision “is

doubtful if not erroneous” (491 F.2d at 94). Adhering to his

prior dissents in Perkins v. Mississippi, 455 F.2d 7, 11-61,

on rehearing en banc, 470 F.2d 1371, 1371-73 (5th Cir.

1972), Chief Judge Brown maintained that the obvious

10 Because the Fifth Circuit determined that petitioners were not en-

titled to removal as a matter of law, review in this Court should pro-

ceed on the assumption that petitioners’ activity falls entirely within

18 U.S.C. § 245(b). If this Court reverses the legal conclusion of the

Fifth Circuit, then this Court may make an independent examination

of the record to determine whether petitioners’ activities come within

the protections of § 245(b) or remand the case to the Court of Appeals

for review of the factual contentions. See Argument IV, infra.

nan te, hoa Meee a Te ae OA nL te Pee SULT OME ect OR ee DS hb Toe

toortcts

18

Congressional purpose behind 18 U.S.C. § 245 (prevent-

ing unwarranted interference with civil rights protest ac-

tivity) and the broad scope of its prohibition (against

attempted injury, intimidation or interference by force or

threat of force) make it “a law providing for equal civil

rights, satisfying the requirements of the civil rights

removal statute’ (491 F.2d at 94-95) (emphasis in

original). ‘

“It is my opinion that the panel improperly

concluded that § 245 is not a law providing for

the equal civil rights of citizens within the mean-

ing of the removal statute. The restrictive inter-

pretation applied to § 245 refuses appellants

their ‘right’ to peacefully protest racial discrim-

ination free from the harassment of bad-faith

prosecutions inspired by their activities.

* * *

“The foreboding result which excludes § 245

from the ambit of removal establishes a prece-

dent which will prevent the federal courts from

granting relief in future cases of spurious

criminal prosecutions against persons

protesting racial discrimination. Even worse,

this ruling, if it is allowed to stand, leaves a large

group of potential victims without effective per-

sonal redress for acts which run the gamut of

crass, undisguised racial discrimination | foot-

note omitted].” (Id.)

19

ARGUMENT

Summary of Argument

The principles, established in Rachel and Peacock con-

trol this Court’s review of the legal question of statutory

construction of whether Title I of the 1968 Civil Rights

Act, 18 U.S.C. § 245(b), is a law which provides for equal

civil rights stated in terms of racial equality and which

protects petitioners even from state court prosecution for

the exercise of rights secured by the statute. The Court of

Appeals held that Section 245(b) could not qualify as such

a law, within the meaning of the civil rights removal stat-

ute, 28 U.S.C. §1443(1), because as a criminal statute it

was nota law which provides for equal civil rights. Such a

distinction between civil and criminal statutes, however,

is contrary to the intent of Congress and the prior

decisions of this Court. And an analysis of the legislative

intent and meaning of Section 245(b) shows that its

protections, including from harassing state court

prosecutions, are at least as broad as those provided by

the civil rights statute successfully invoked in Rachel.

Therefore, removal based on Section 245(b) is ap-

propriate.

I. Georgia v. Rachel, 384 U.S. 780 (1966),

Allows Removal Under Any Federal

Law Providing For Specific Civil Rights

Stated In Terms Of Racial Equality

Which Forbids Harassing Prosecutions.

In the companion cases of Georgia v. Rachel, 384 U.S.

780 (1966) [hereafter Rachel], and City of Greenwood v.

Peacock, 384 U.S. 808 (1966) [hereafter Peacock], this

See TF Pen eee

Be ae

20

Court established the meaning and scope of civil rights

removal under 28 U.S.C. § 1443(1). In an exhaustive

analysis of the history of civil rights removal legislation

and litigation, this Court established the principles

which control the decision on removal in this case. To suc-

ceed here, defendants petitioning for removal of their

state criminal prosecutions to federal court need only

show that:

1. The right upon which they rely isa “right un-

der any law providing for ... equal civil

rightts,” 28 U.S.C. § 1443(1), “stated in terms

of racial equality.”’ Rachel, 384 U.S. at 792;

see also Peacock, 384 U.S. at 825; and

2. “Mee pendency of [state court criminal]

prosecution enables the federal court to make

the clear prediction that the defendants will

be ‘dlenied or cannot enforce in the courts of

[the] State’ [28 U.S.C. § 1443(1)]” the

protected right. Rachel, 384 U.S. at 805;

Peacock, 384 U.S. at 826-828."!

11 In Rachel, asin this case (see Argument III, infra), such a “‘predic-

tion” is a certainty because the rights protected by statute include the

right, to be free from any state court prosecution:

‘In these ctircumstances .. . the burden of having to defend

the prosecuitions is itself the denial of a right explicitly con-

ferred by the [statute.]"” (384 U.S. at 805)

Therefore, in this case this Court need not determine in what other

situations “it can be clearly predicted by reason of the operation of a

pervasive and explicit state or federal law that those rights will in-

evitably be deniied by the very act of bringing the defendant to trial in

the state court.” Peacock, 384 U.S. at 82.

21

In Rachel civil rights demonstrators were arrested for

criminal trespass!” allegedly for seeking nondiscrimina-

tory service at restaurants prohibited from racial dis-

crimination by Title II of the Civil Rights Act of 1964, 42

U.S.C. § 2000a, and their removal petitions were sus-

tained by a unanimous Court. First, Title II of the Act, by

“conferring a specific right of racial equality,” qualified

as a “law providing for . . . equal civil rights” within the

meaning of § 1443(1). 384 U.S. at 793-94. Second, because

§ 203(c) of that Act prohibited any “attempt to punish”

persons for exercising Title II rights, petitioners were

immunized against state prosecutions for protected

conduct —

“any proceedings in the courts of the State will

constitute a denial of the rights conferred by the

Civil Rights Act of 1964 * * * It is no answer in

these circumstances that the defendants might

eventually prevail in the state court [footnote

omitted]. The burden of having to defend the

prosecutions is itself the denial of a right explicit-

ly conferred by the Civil Rights Act of 1964 * * *.”

384 U.S. at 804-05.

No showing was required either (a) that the Georgia crim-

inal trespass statute was unconstitutional or in conflict

with the Federal Act on its face (384 U.S. at 805), or (b)

that the Georgia courts would not recognize petitioners’

Federal claims that the statute was invalid as applied

(id.). By forbiding any ‘‘attempt to punish” persons for

12 “It shall be unlawful for any person, who is on the premises of

another, to refuse and fail to leave said premises when requested to do

so by the owner or any person in charge of said premises or the agent or

employee of such owner or other such per rson in charge. * * *° Ga. Code

Ann. § 26-3005 (Supp. 1965).

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protected activity (384 U.S. at 793), § 203(c) of the Act

“prohibits prosecution” (id.), and therefore provides per-

sons a right “not even to be brought to trial on these

charges in the [state]. . . courts” (id. at 794).

By contrast, in Peacock removal of assorted prosecu-

tions allegedly for picketing and demonstrating in sup-

port of voter registration activity was denied. First, the

constitutional provisions invoked by petitioners, includ-

ing the First Amendment, “clearly cannot qualify under

the statutory definition as rights under laws providing

for ‘equal civil rights’ ” (384 U.S. at 825) stated in terms of

racial equality. Second, although petitioners did invoke

two equal civil rights laws — 42 U.S.C. §§ 1971 and 1981

— their protest activity in support of voter registration (as

opposed to voting itself) did not come within the protec-

tion of either statute,’’ and their conduct was not

protected by a Federal equal rights statute which

“confers immunity from state prosecution on such

charges” (384 U.S. at 827).!+

13 42 U.S.C. § 1971(b) only protected from official interference the

right of persons ‘‘to vote or to vote as he may choose” (Peacock, 384

U.S. at 811, n. 3), and did not cover voter registration activity. Subse-

quent to the removals in Peacock, Congress enacted § 11(b) of the

Voting Rights Act of 1965, 42 U.S.C. § 1973i(b), which specifically

prohibits official interference with “urging or aiding any person to

vote or attempt to vote.” “Vote” is defined specifically to include voter

registration activity, 42 U.S.C. § 1973/(c)1). Remova! of spurious and

pretextual state prosecutions to intimidate persons. engaged in

protected voter registration activity subsequently has been sustained.

Whatley v. City of Vidalia, 399 F.2d 521 (5th Cir. 1968).

14 The constitutional provisions invoked by petitioners in Peacock

were held to provide an ultimate defense against conviction for

Federally protected activity, but none of them specifically applicable

to petitioners granted an express Federal statutory right to be free of

arrest and prosecution for their conduct. Peacock, 384 U.S. at 827-31.

The Court held that removal cannot be predicated upon a right not to

be convicted: rights which ordinarily are asserted as defenses in a

state court prosecution and which, if not honored in state court. can be

vindicated by appeal to the Supreme Court or by Federal habeas cor-

pus (384 U.S. at 829).

of

Thus, under Rachel and Peacock removal turns upon

whether the Federal law invoked by petitioners provides

for the right not to be prosecuted because of protected ac-

tivity (Rachel) or merely provides an ultimate defense

against conviction for that activity (Peacock). Civil

rights removal is not restricted exclusively to trespass

prosecutions for the exercise of rights protected by Title II

of the Civil Rights Act of 1964. Cf. Walker v. Georgia, 417

F.2d 1, 5 (5th Cir. 1969) (Tuttle, J.). Removal is justified

under “any law” (§ 1443(1) ) — which includes “both ex-

isting and future statutes” (Rachel, 384 U.S. at 790) —

which provides for “specific civil rights stated in terms of

racial equality” (Rachel, 384 U.S. at 792) when those

rights “will inevitably be denied by the very act of bring-

ing the defendant to trial in the state court” (Peacock, 384

U.S. at 828).'° .

In 1968 Congress enacted Title I of the Civil Rights Act

of 1968, codified as 18 U.S.C. § 245. Section 245(b)(5)

protects against official interference persons ‘“‘par-

ticipating lawfully in speech or peaceful assembly op-

posing any denial of the opportunity” to enjoy the listed

benefits and activities free from racial discrimination. In

the following Argument we will show that the re-

quirements for civil rights removal pursuant to 28 U.S.C.

§1443(1) set out in Rachel and Peacock are squarely met,

and that this case is not rationally distinguishable from

Rachel. First, as the Court of Appeals recognized, § 245(b)

“clearly deals with equal civil rights” (488 F.2d at 246)

stated in terms of racial equality. Second, as the Court of

15 The generic phrase of § 1443(1) remains “open-ended,” Rachel,

384 U.S. at 789: “A precise definition of the limitations of the phrase

‘any law providing for. . . equal civil rights’ in § 1443(1) is not a mat:

ter we need pursue to a conclusion * * *” Peacock, 384 U.S. at 825.

es "

24 |

Appeals also noted, § 245(b) ‘forbids certain forms of

harassment such as the bringing of spurious criminal

charges” (id. at 287). By forbidding “attempts to. . . in-

timidate or interfere with” protected activity, § 245(b) in

language functionally identical to that relied upon in

Rachel provides for a right not to be arrested or prosecut-

ed for activity protected by the statute, including the

petitioners’ civil rights protest activity. Thus, petitioners

are “denied or cannot enforce” within the meaning of

§ 1443(1) their § 245(b) right to be free of state interference

“by the very act of bringing [them] to trial in the state

court.”

II. Section 245(b) Is A ‘Law Providing For

. Equal Civil Rights’ Within The

Meaning Of The Civil Rights Removal

Statute.

18 U.S.C. § 245(b), by its language and purpose, clearly

qualifies under the Rachel definition of a “law providing

for. . . equal civil rights” a8 a Federal law “providing for .

specific civil rights stated in terms of racial equality” (384

U.S. at 792). First, as the Fifth Circuit correctly noted,

§ 245(b) “clearly deals with equal civil rights” (488 F.2d at

286). The statute prohibits any person, whei:ier or not act-

ing under color of law, from interfering with any other

person “because of his race [or] color” and because of his

participation in the benefits and activities listed in sub-

paragraphs (2) (A) through (F) in a racially nondiscrim-

inatory fashion. In subparagraph (5), the statute also

prohibits interference with

“any citizen because he is or has been, or in order

to intimidate such citizen or any other citizen

25

_ from lawfully aiding or encouraging other per-

sons to participate, without discrimination on ac-

count of race|or|color. . .in any of the benefits or

activities described in subparagraphs (1) (A)

through (1) (E) or subparagraphs (2) (A) through

(2) (F), or participating lawfully in speech or

peaceful assembly opposing any denial of the op-

portunity to so participate —” (Emphasis added.)

The purpose of the statute is to prohibit and deter racially-

motivated interference with the enjoyment of the

specified benefits and activities, and further to protect

against racially-motivated interference those’ who

engage in speech and peaceful assembly opposing any

denial of the opportunity to so participate. S. Rep. No. 721,

90th Cong., Ist Sess., pp. 3-6 (1967); H.R. Rep. No. 473,

90th Cong., Ist Sess., pp. 3-7 (1967).

This statute is almost identical to Title II of the Civil

Rights Act of 1964, 42 U.S.C. § 2000a et seq., successfully

invoked in Rachel, because it — like Title II — prohibits

interference with persons exercising their right of equal

access to places of public accommodations. See

§ 245(b)(2)(F). The statute protects the exercise of rights

secured by pre-existing Federal civil rights legislation,

e.g., the Civil Rights Act of 1964 and the Voting Rights

Act of 1965; but it also creates new equal civil rights by go-

ing beyond the coverage of Titles II (public accom-

modations) and VII (employment) of the Civil Rights Act

of 1964, see S. Rep. 721, 90th Cong., Ist Sess., pp. 6-7

(1967); H.R. Rep. No. 473, 90th Cong., Ist Sess., p.5 (1967).

For the first time, the statute protects persons not only

“participating” in the exercise of equal civil rights, but

_also protects persons “affording another person or class

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26

of persons opportunity or protection to so participate”’

(§ 245(b)(4)(B) ); persons “encouraging other persons to

participate’; and persons “participating lawfully in

speech or peaceful assembly opposing any denial of the

opportunity to so participate” (§ 245(b)(5) ).

Second, the above-quoted language and the legislative

history of the statute clearly reveal that by enacting this

statute Congress intended to impose on state officials and

private persons a duty not to interfere with peaceful civil

rights protest activities opposing discriminatory denial

of the listed benefits and activities, and to provide a cor-

relative right on the part of civil rights demonstrators to

be free of such interference. The President and Congress

were concerned that existing legislation — particularly

18 U.S.C. §§ 241 and 242 — was inadequate because it

failed to specify in clear and precise terms what conduct

was prohibited, because of problems of proof encountered

in enforcing existing statutes (conspiracy, specific in-

tent), and because it appeared that state and local

authorities were slow, unwilling, or unable to act effec-

tively to remedy forcible interference with peaceful civil

rights activity. 114 Cong. Rec. 820 (1968) (civil rights

message of President Lyndon B. Johnson); S. Rep. 721,

90th Cong. Ist Sess., pp. 4-6 (1967); H.R. Rep. No. 473, 90th

Cong., 1st Sess., pp. 3-7 (1967). The Congressional pur-

pose of the new legislation was to provide additional and

specific protections against racially-motivated in-

terference with civil rights, particularly to civil rights

demonstrators opposing racial discrimination:

“The bill would protect persons who urge or aid

participation in the protected activities, as well

as those who engage in speech or peaceful

27

assembly opposing denial of the opportunity to

so participate.” S. Rep. No. 721, 90th Cong., Ist

Sess., p. 4 (1967) (emphasis added). See also, H.R.

Rep. 473, 90th Cong., Ist Sess., p. 3 (1967).

Fina..y, the legislative history makes clear that the

statute was designed to provide a right to be free of

proscribed interference ‘‘by deterring and punishing forc-

ible interference with the exercise of Federal rights.” (S.

Rep. 721, 90th Cong., Ist Sess., p. 6 (1967) (emphasis

added) ):

“The bill before us would provide Federal protec-

tion, wherever needed, when specific rights are

violated. This bill clearly spells out exactly what

those rights are.” 114 Cong. Rec. 669 (1968)

(remarks of Senator Scott) (emphasis added).

“In essence it protects the rights granted by the

Civil Rights Act of 1964 and 1965 and, more fun-

damentally, by the Constitution itself. Those

rights must not be frustrated. They must not be

made the prey of violence or intimidation.” 114

Cong. Rec. 3806 (1968) (remarks of Senator

Mansfield) (emphasis added). ~

“This bill will protect men of all races who seek to

exercise and to afford others the federal rights

which Congress has affirmed during the past

decade — men who would follow the road of

dignity and peace on which Dr. Martin Luther

King marched.” 114 Cong. Rec. 9570 (1968)

(remarks of Rep. Rosenthal) (emphasis added).

BR Biase PEON LIES HIN

“The bill also protects the right of every citizen to

.enjoy and partake of public expression in free -

speech .. .” 113 Cong. Ret. 22671 (1967) (remarks

of Rep. Madden) (emphasis added).

“We must guarantee each individual and group

their constitutional rights of freedom of speech

and assembly. Due protection of law must be af-

forded every individual or group to peacefully

assembly, to speak and to protest.” 113 Cong.

Rec. 22772 (1967) (remarks of Rep. Esch)

(emphasis added).

The Court of Appeals, therefore, erred when it held that

removal was precluded because Ҥ 245 is exclusively a

criminal statute” and “confers no rights whatsoever”

(488 F.2d at 287). The Court below cites no authority for its

unique view that rights are “provided” orfly by statutes

imposing civil sanctions and not by statutes providing

criminal sanctions. Certainly there is no support in

Rachel or Peacock for such a distinction:

“That these federally protected rights are set

forth in terms of prohibition against their in-

terference, and that criminal sanctions are im-

posed for their violation, does not take them out

of the Rachel rationale since they are

nevertheless contained in a “law providing for

specific civil rights stated in terms of racial

equality.” There is nothing in the Supreme

Court’s opinion in Rachel to indicate any limita-

tion or restriction on removal because the law is

accompanied by criminal penalties rather than

Aime RES he AORN OE Ras NN

29

civil remedies.” Perkins v. Mississippi, 470 F.2d

1371, 1373 (5th Cir. 1972) (en banc) (Ainsworth,

J., dissenting).

Such a holding is contrary to the express language of

§ 245(b) and the clear intent of Congress.

Nor does the court below cite any other authority —

statutory, natural law, or divine — for its view that crim-

inal statutes cannot “provide” rights within the meaning

of the removal statute. In contrast, in several significant

instances, this Court has allowed civil rights removal to

protect rights secured by statutes.which provided crim-

inal penalties for their violation. Yet, the Court of

Appeals rejected removal to protect § 245 rights for the

reason that there was no comparison betweefi § 245 and

the “model” of the Civil Rights Act of 1866 cited by this

Court in Georgia v. Rachel, supra (488 F.2d at 287). In so

doing the Fifth Circuit completely overlooked the fact

that Section 2 of the 1866 Act provided criminal penalties

for its violation. Civil Rights Act of April 9, 1966, ch. 31,

§ 2, 14 Stat. 27.'° Further, this Court indicated in the

earliest removal cases that rights provided by an ex-

16 The Civil Rights Act of April 9, 1966, of which present § 1443 is a

“direct descendant” (Rachel, 384 U.S. at 786), in Section 1 (now includ-

ed in 42 U.S.C. § 1981) secured for all citizens “of every race and color”

the same rights as are “enjoyed by white citizens,” including the right

“to full and equal benefit of all laws and proceedings for the security of

persons and property” and “shall be subject to like punishment, pains,

penalties, and to none other.” 14 Stat. 27. Section 2 provided maximum

criminal penalties of $1,000 or ane year imprisonment. or both, for any

deprivation under color of law of the rights secured/by the Act..Id. Sec-

tion 3, the removal section, provided for removal to Federal court by

“persons who are denied or cannot enforce . . . the rights secured to

them by the first section of this act . . .” Id. In Rachel this Court held

that in enacting present § 1443, Congress intended to include any law

“comparable in nature to the Civil Rights Act of 1866” (384 US. at 790)

and that “the model for the phrase ‘any law providing for . . . equal

civil rights’... was the Civil Rights Act of 1866" (id. at 791).

oe

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30

clusively criminal statute punishing racial discrimina-

tion in jury selection, Act of March 1, 1875, ch. 114,§ 4,18

Stat. (Pt. 3) 336, now codified as 18 U.S.C. § 243 (and

therefore, at least in the United States Code, a companion

statute to the one invoked here), if denied by conflicting

state law could be protected by § 1443 removal of crim-

inal prosecutions. Gibson v. Mississippi, 162 U.S. 565, 580

(1896); Neal v. Delaware, 103 U.S. 370, 385-86 (1881);

Virginia v. Rives, 100 U.S. 313, 321 (1880). See Note,

Federal Jurisdiction: The Civil Rights Removal Statute

Revisited, 1967 Duke L.J. 136, 154, n. 90.

None of the civil rights statutes for which removal has

been allowed expressly stipulate removal as a remedy.

The language of the removal statute is generic, and

removal is to be allowed to protect rights secured by any

Federal statute “providing for ... equal civil rights.”

Clearly Section 245 is, therefore, comparable in every

respect to other statutes — criminal and civil — which

this Court has previously held “provide” equal civil

rights:

'“In both its purpose (preventing unwarranted in-

terference with the exercise of Federally

protected equal civil rights).and the scope of its

prohibition (against attempted injury, intimida-

tion or interference by force or threat of force)

§ 245(b) is indistinguishable from the relevant

provisions of the 1964 Civil Rights Act held suf-

ficient to support removal jurisdiction in

Rachel.” Perkins v. Mississippi, 455 F.2d 7, 42-43

(5th Cir. 1972) (Brown, C.J., dissenting).

31

The Court below erred when it excluded “exclusively

criminal” statutes from the coverage of 28 U.S.C.

§ 1443(1) as a matter of law.

Ill. Petitioners By These Arrests And

Prosecutions Are ‘‘Denied [And] Can-

not Enforce” In State Court Their

Rights Secured By 18 U.S.C. Section

245(b).

A. By Prohibiting Official In-

terference with Civil Rights

Protest Activity, Section 245(b)

Provides for a Right Not to be

Arrested or Prosecuted for

Protected Activity.

18 U.S.C. § 245(b) by its express terms secures to

petitioners more than the right eventually to prevail in

state court; it specifically by its terms protects persons ex-

ercising rights under that statute from anyone who

“whether or not acting under color of law, by

force or threat of force willfully injures, in-

timidates or interferes with, or attempts to injure,

intimidate or interfere with —

the exercise of secured rights. The broad language chosen

by Congress, “by force or threat of force,” covers any

threatening conduct designed to interfere with protected

rights or to punish victims for their exercise of protected

rights. The phrase “whether or not acting under color of

law” specifically includes law enforcement and judicial

officers. The Committee reports indicate that the bill

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32

“would prohibit forcible interference ... by public of-

ficers,’ S. Rep. 721, 90th Cong., lst Sess., p. 6 (1967); H.R.

Rep. 473, 90th Cong., Ist Sess., p. 3(1967). Thus, the broad

prohibitions of the statute precisely cover the forcible

arrests of the petitioners here and attempts to punish

them for their peaceful exercise of protected civil rights

protest activity:

“Obviously, then, the bill directs itself to in-

hibiting, to constraining, to controlling, to

prohibiting, the willful exercise of improper

authority or unlawful authority or excessive

authority on the part of local law enforcement of-

ficials, many of whom are charged with carrying

out and protecting the very provisions of this

bill.”” 1138 Cong. Rec. 22758 (1967) (remarks of

Rep. Wright).!*

The Court of Appeals conceded in its opinion that this

prohibition against even attempted injury, intimidation

or interference by force or threat of force was sufficiently

broad to forbid ‘“‘certain forms of harassment such as the

bringing of spurious criminal charges” (488 F.2d at 287).

Like the statute invoked in Rachel, the equal civil rights

statute invoked here oth (1) protects petitioners’ Federal

‘right to engage in conduct, for example, picketing and

persuading shoppers not to patronize discriminatory

merchants, and (2) provides the further statutory Federal

right that state officials should not even attempt to arrest

or prosecute petitioners, or otherwise forcibly intimidate

or interfere with them, because of their protected conduct.

17 “The bill... prohibits public interference of any of the specified

activities by individuals acting alone, as well as by police officers act-

ing under color of law.” 113 Cong. Rec. 22671 (1967) (remarks of Rep.

Madden). ;

: Binh ROO PEALE ANE ate ABEL ACCT APB ONO LDA OBE ea ot

33

The vague and overbroad provisions of Miss. Code

Ann. § 97-1-1(f) (1972) under which the demonstrators

were arrested, which generally punish a conspiracy “to

commit any act injurious ... to public morals, trade or

commerce,” were interpreted by the arresting officer to

proscribe this Federally protected activity. This createda

conflict between the explicit protections of the Federal

equal rights statute and state law. Thus, § 245(b), like the

1964 Civil Rights Act invoked in Georgia v. Rachel,

supra, substitutes a Federal right for a state crime, cf.

Rachel, 384 U.S. at 805-05; Hamm v. City of Rock Hill, 379

U.S. 306, 314 (1964), and immunizes petitioners’ conduct

not only from conviction, but also from prosecution in

state court.

Although the statute in Rachel specifically provided

that “No person shall... punish or attempt to punish”

any person for exercising rights under that statute

(§ 2000a-2(c) ), § 245(b) by prohibiting official or private

acts or attempts to “injure, intimidate, or interfere” with

civil rights protest rights employs a more general prohibi-

tion against any attempted injury, intimidation, or in-

terference. This more general prohibition includes the for-

cible arrests, incarceration and state prosecution in this

case, by any person “whether or not acting under color of

law.” Literal comparison of the two provisions therefore

suggests that § 245(b) is a more, not less sweeping

prohibition of official acts of harassment against equal

civil rights than the limited proscription of § 2000a-2(c).

“Attempts to punish” are only one of many means of in-

juring, intimidating, or interfering. As noted by C hief

Judge John R. Brown of the Fifth Circuit:

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3

“Compare the language of § 245(b) with 42

U.S.C.A. § 2000a-2(c), the statute utilized as a

vehicle for removal in Rachel. Since ‘injury, in-

timidation or interference’ by ‘force or threat of

force’ is at least the linguistic equivalent of

‘punish,’ § 245(b) must likewise provide an iden-

tical basis for removal, since ‘on its face, this lan-

guage prohibits prosecution’ for the exercise or

attempted exercise of equal civil rights. Hamm v.

City of Rock Hill, 1964, 379 U.S. 306, 311,85S.Ct.

384, 389, 13 L.Ed.2d 300, 304.” Perkins v. Missis-

sippi, 455 F.2d at 39, n. 71 (dissent).

See, Comment, Removal of State Criminal Prosecutions

to Federal Court Under 42 U.S.C. § 1443, 64 J. Crim. Law

76, 86 (1973). Cf. Whatley v. City of Vidalia, 399 F.2d 521,

525-26 (5th Cir. 1968); North Carolina v. Hawkins, 365

F.2d 559, 562 (4th Cir. 1966) (Sobeloff, J., concurring), cert.

denied, 385, U.S. 949 (1966) (42 U.S.C. §§ 1971(a) and |

1973i(b) ).!8

As 18 U.S.C. § 245(b) forbids “attempts to injure, in-

timidate or interfere with” protected activity, the statute

invoked here provides for a Federal statutory right not

18 In considering similar language found in § 11(b) of the Voting

Rights Act of 1965, 42 U.S.C. § 1973i(b), which prohibits any “attempt

to intimidate, threaten, or coerce’ any person exercising protected

voting rights, commentators have suggested that “no satisfactory dis-

tinction for removal purposes can be drawn between a denial

predicated upon the ‘intimidate’ phraseology of that section and the

‘attempt to punish’ language of the 1964 Civil Rights Act.” Note,

Federal Jurisdiction: The Civil Rights Removal Statute Revisited,

1967 Duke L.J. 136, 185; cf. Comment, Civil Rights Removal Under 28

U.S.C. § 1443 (1): One Hundred Years of Inutility, 21 Am. U. L. Rev.

375, 393-94 (1972). This view has been adopted by the Fifth Circuit,

Whatley v. City of Vidalia, supra; Thompson v. Brown, 434 F.2d 1092

(5th Cir. 1970); also, Mashburn v. Daniel, Civil No. 73J-138(R) (S.D.

Miss. Aug. 20, 1973).

a

even to be prosecuted in the Mississippi courts. The

provisions of the Federal equal rights statute invoked by

petitioners here therefore make Rachel controlling, and

Peacock distinguishable, since the absence of any such

language was critical to the denial of removal in Peacock

(483 U.S. at 827, n. 25). Because § 245(b) prohibits

attempts to intimidate and interfere with protected

rights, under Rachel “any proceedings in the courts of the

State will constitute a denial of the rights” (384 U.S. at

804, emphasis in original) conferred by the act:

“the mere pendency of the prosecutions enables

the federal court to make the clear prediction that

the defendants will be ‘denied or cannot enforce

in the courts of [the] state’ the right to be free”

(Rachel, 384 U.S. at 805)

of any “attempts to injure, intimidate or interfere with”

any person “participating lawfully in speech or peaceful

assembly opposing any denial of the opportunity to. . .

participate” in protected benefits and activities.

Compelled by Rachel, this holding limits the

applicability of removal to the narrow class of cases of

baseless arrests and prosecutions for racial protest dem-

onstrations opposing the denial] of equal enjoyment of

those benefits and activities specified in the statute, and

would not disrupt the bulk of legitimate state criminal

litigation. This limited preemptive Federal protection is

necessary and justified both because of the special

prominance of the rights asserted and because of their ex-

treme vulnerability in the face of mass arrests and

prosecutions. This limited right of removal is required

because Congress so provided in enacting Section 245(b)

and 28 U.S.C. § 1443(1).

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B. Removal is Necessary to Protect

Section 245(b) Rights of Civil

Rights Protest From Denial by

State Criminal Process.

The Federal substantive guarantees of equal civil

rights, unlike the trial procedure rights protected in the

Strauder-Rives-Powers line of removal cases,'? are prin-

cipally aimed at prohibiting the states from repression of

certain kinds of protected conduct. As the legislative

history of § 245(b) makes clear, its purpose was im-

mediately to allow and to liberate from state and private

inhibition and deterrence the conduct it was designed to

protect. It certainly was not meant merely to restrict the

forms through which state procedure may abut at judg-

ment. Normally, Federal trial protection rights may ade-

quately be recognized upon reversal of tainted convic-

tions. But the very maintenance, the mere pendency, of

state criminal proceedings directed i abridgment of

substantively protected conduct h s nique repressive

force that precedes and is entirely independent of the

final judgment. Rachel, 384 U.S. at 805.2"

Congress in enacting the Civil Rights Act of 1968 clear-

ly was aware of the repressive force of mass arrests and

detention of civil rights demonstrators upon the exercise

of the substantive right to protest racial discrimination.

Subparagraph (5) of § 245(b) not only protects against in-

terference with persons protesting racial discrimination,

19 Strauder v. West Virginia, 100 U.S. 303 (1880); Virginia v. Rives,

100 U.S. 313 (1880); Kentucky v. Powers, 201 U.S. 1 (1906). See Rachel,

384 U.S. at 797-804.

20 See also, A. Amsterdam, Criminal Prosecutions Affecting

Federally Guaranteed Civil Rights: Federal Removal and Habeas Cor.

pus Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev. 793, 461

ff. (1965).

+ nee so J AeA ALTE atid A Nae ‘aiirtin

37

but also protects against interference “in order to in-

timidate such citizen or any other citizen” (emphasis add-

ed) from lawfully protesting racial abridgment of the

listed benefits and activities. Thus the statute, by its ex-

press terms, prohibits interference designed to have a

“chilling effect” on the free exercise by persons other than

the immediate victims of the right of racial protest, thus

requiring anticipatory Federal relief.

Indeed, abrogation of the right to protest racial dis-

crimination by arrest and incarceration of the dem-

-onstrators goes beyond the denial of protest rights: by cut-

ting off those opposing racial discrimination, the state of-

ficials make possible a perpetuation of the invidious and

humiliating discrimination which was the object of the

protest activity. The victims of the arrests thus are mul-

tiplied: the demonstrators, their rights of racial protest,

and the equal opportunities which they seek not only for

themselves, but for all others similarly situated. In pass-

ing Section 245(b) Congress intended otherwise.

If by the arrests and prosecutions, others are deterred

from exercising the substantive rights granted by the

statute — as here — then these rights are initially denied

by the first stage o é€-state criminal proceeding.

Meaningful correction by an appellate court is therefore

virtually impossible. It defeats the purposes of the Section

245(b) and the removal statute to conceive the Federal

statutory right to conduct and participate in a racial

protest demonstration merely as a right to a favorable

judgment at the conclusion of the state prosecution — or

appeal from a conviction — for demonstrating. This does

not protect petitioners and persons associated with them

from the harassment and intimidation by the local law

oe ee he

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38

enforcement agencies which is proscribed by the statute.

It does not protect them from arrest en masse on frivolous

or unfounded charges. It does not protect them from con-

tinued arrest and incarceration until bond can be made

for their release. It does not protect them from the long

delays attendant upon trial, whether individually or

collectively. It does not protect them from often expensive

litigation or appeals until their nights are finaily vin-

dicated. It does not protect them or “any other citizen”

from being frightened away from the lawful assertion of

their rights and lawful protest against the continued de-

nial of them. Cf. NAACP v. Thompson, 357 F.2d 831, 838

(5th Cir. 1966), cert. denied, 385 U.S. 820 (1967).

These considerations were evident in Rachel when the

Court held:

“Tt is no answer in these circumstances that the

defendants might eventually prevail in the state

court [footnote omitted]. The burden of having to

defend the prosecutions is itself the denial of a

right explicitly conferred by the Civil Rights Act

of. 1964. * * *” (384 U.S. at 8085).

But regardless of these other considerations affecting

removal under § 245(b); the same result obtained in

Rachel is required here because Congress in § 245(b) has

expressly provided a right not to be arrested and

prosecuted for protected activity. Under Rachel this right ©

not to be prosecuted is controlling for removal. Any

Federal equal civil rights statute which confers such a

right not to be prosecuted thereby provides for — and is a

“law providing for’ — the relevant right which supports

39

removability. Because of its proscriptions against official

harassment and intimidation, § 245(b) must be held to be

such a law, unless Rachel is to be overruled.

This protection of the right not even to be prosecuted in

state court, enforced by the Court in Rachel and com-

pelled here, scrupulously avoids turning removal upon

any notion that disparages the state judiciary or implies

- that they will not act to protect preemptive Federal rights.

Petitioners here are not contending that removal is re-

quired simply because the charges against them are false,

or that they are unable to obtain a fair trial in state court

(cf. Peacock, 384 U.S. at 827). Neither does the interpreta-

tion urged by petitioners require or permit “the judges of

the federal courts to put their brethern of the state

judiciary on trial” (Peacock, 384 U.S. at 828), since it is

clear that by operation of § 245(b) petitioners’ Federal

rights “will inevitably be denied by the very act of bring-

ing [them] to trial in the state court” (id.). Indeed, because

removal occurs prior to the state court judgment, this

removal procedure puts less strain on relations with the

state judiciary than post-judgment review, such as by

appeal to this Court or by Federal habeas corpus, which

does require Federal judges to sit in judgment of their

state brethern in reversing or modifying a state court

judgment. .

Since the whole theory of removal under Rachel and

Peacock depends upon whether an individual has a right

“not even to be brought to trialon. . .charges,” the test of

“providing for” is whether the Federal civil rights law in-

voked provides for a right not to be prosecuted. If it does,

then any proceedings in the courts of the state will con-

stitute a denial of the right conferred, and the mere

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40

pendency of the prosecutions enables the Federal court to

predict under § 1443(1) that the defendants will be “de-

~~ nied or cannot enforce” their right in state court. This is

precisely what § 245(b) does provide.

IV. The Judgment Below Should Be Re-

versed And The Case Remanded To

The Court Of Appeals.

As set forth in Arguments II and III, removal of state

criminal prosecutions based on Section 245(b) is ap-

propriate, contrary to the conclusion of the court below.

Therefore, upon a petition alleging factual circum-

stances covered by Section 245(b), an evidentiary hearing

is required in Federal District Court to determine;~as a

matter of fact, whether the conduct which is the subject of

the state criminal prosecution is protected under Section

.245(b). Rachel, 384 U.S. at 805-06. If so, the state criminal

prosecution must be dismissed; if not, the case must be

remanded to the state court for trial. Id. As stated by

Judge Tuttle for the Fifth Circuit in another case, this fac-

tual determination turns on

“what the movant was actually doing with:

respect to the exercise of his statutory federally

protected right, as determined in a hearing for re-

mand,... and not the characterization given to

the conduct in question by a state prosecutor.”

Walker v. Georgia, 417 F.2d 1, 5 (Sth Cir. 1969)

(emphasis ih original).

As set forth in the Statement of the Case, Facts, supra,

what petitidners were actually duing here was exercising

—

41

their Section 245(b) rights by attempting to participate

(§ 245(b)(4) ), encouraging others to participate

(§ 245(b)(5) ), and through lawful speech and peaceful

assembly opposing discriminatory denials of the oppor-

tunity to participate (id.) in the specified benefits and ac-

tivities of the statute free of racial discrimination. The

goals of petitioners’ protest activities fit precisely within

the protections of Section 245(b):

“To find ways to get more jobs for black people

[§ 245(b)(2)(C)], to try to get black people on Civil

Service [id.], jobs on the board of education {id.],

to see what could be done for needy families that

should be on Welfare or Social Security

[§ 245(b)(1)(B) and (E), and (2)(B)], housing {id.],

the whole public service that should be rendered

by the city [§ 245(b)(2)(B)].

* ” ”

~ We were just coordinating the activities that the

people of Concerned Citizens of Vicksburg were

concerned about. As I said, they wanted to know

about welfare, they wanted to know about Social

Security. They thought that a lot of people who

were eligible weren’t receiving it. They wanted to

know about housing, and they felt that a lot of

people needed that. So our main involvement was .-

to find ways of channels or avenues that more

people could get these jobs, they could get better

housing, to try and get more people on welfare,

those who were eligible.” App. 49-50 (Ferguson

testimony).

sand

ORES Tit SEES

42 «

“The things that the black people of Vicksburg

are asking for are in conjunction, basically in

_ conjunction with both the city officials and the

merchants; the activities of the merchants in not

allowing more black people to work other than

janitorial positions are uncalled for because

there are sales people and managerial type peo-

ple in Vicksburg who are qualified and able todo

ha good job [§ 245(b)(2)(C)]. Basically, I think it’s

y good business for businessmen to hire black peo-

“ple, In conjunction with the city, there are very

few, two or three [Blacks] at the most, employed

with the city; and yet black people in Vicksburg

compiles more than 46 percent of the population,

and there are no black people other than janitors

working in City Hall. I understand recently they

might have had a clerk that has recently been

hired, but there are no black people/in the Civil

Service force, there aren’t any black peopleon the

housing authority boards, at least there aren’t

any in decision making jobs [§ 245(b)(2)(C)].”

App. 67 (Ferguson testimony).

_ In the face of the overwhelming evidence that

petitioners’ activities and goals came directly within the

protections of § 245(b), and that their protest activities

were peaceful, the District Court held that petitioners’ ac-

tivities were not protected (Petition, App. D, p. 19a). In-

sofar as this holding is based on findings of fact adverse

to petitioners,” we submit that they are plainly in error.

21 Some of the findings of the District Court, however, clearly are

tainted by its erroneous view of the law. First, the District Court goes

beyond merely accepting the state prosecutor's characterization of

petitioners’ conduct (App. 30) by suggesting, sua sponte, that the

petitioners’ conduct fell under state criminal statutes diffgent than

the one charged by the state prosecutor (Pet., App. D, pp. 1 7a-1 8a, 20a).

43

On appeal to the Fifth Circuit, petitioners contended

that the District Court’s adverse findings of fact were

“clearly erroneous.” Rule 52(a), F.R. Civ. P. Although the

Court of Appeals in its opinion may have concluded that

petitioners’ conduct was wholly within the protections of

Section 245(b) — “At the outset, we note that there is no

question of appellants’ right to engage in peaceful

picketing” (488 F.2d at 286) — the court below did not

review the factual issue. The appeals court instead

limited iis decision to the legal conclusion that Section

245(b) as a criminal statute could never support removal.

488 F.2d at 287. In such circumstances, given that fun-

damental rights are at stake, this Court may “make an in-

dependent examination of the whole record” to determine

whether petitioners’ activities were within Section 245( b),

Edwards v. South Carolina, 372 U.S. 229, 235 ( 1963); Cox

v. Louisiana, 379 U.S. 536, 545 (1965); or it may remand

this case to the Court of Appeals to review the factual

issue free of legal error, cf. United States v. Brims, 272

U.S. 549, 553 (1926); Cole v. Ralph, 252 U.S. 286, 289-90

(1920).** Petitionersare confident that such review by this

Court, or by the Court of Appeals, will show that

petitioners’ conduct is protected activity under Section

245(b), and therefore that the remand order of the District

Court should be vacated and the state court charges dis-

missed.

Footnote 21 (Con’t) :

Second, the more narrowly the District Court erroneously construed

the nights protected under § 245(b), the greater the permissible area of

potential criminal conduct. Thus, it is understandable, but not legally

justifiable, how the District Court could proceed on the theory that

protected civil rights protest demonstrations against official discrim-

ination and boycott activity designed to gain equal employment op-

portunities could somehow constitute a “restraint of trade.’

22 This independent review of the facts is particularly appropriate

here where the Court of Appeals has not reviewed the facts. Therefore.

the usual “two court” rule — Keyes v. School District No. 1, 413 U.S.

189, 198, n. 9 (1973) — is not binding on this Court.

Bereereenper ys manensaecne GARSON I

44

CONCLUSION

For the foregoing reasons, and on the basis of the

authorities cited, the Judgment of the Court of Appeals

should be reversed and the case remanded to the Fifth Cir-

cuit either for review of the factual contentions of the par-

ties or to vacate the remand order and dismiss the state

criminal charges.

Respectfully submitted,

FRANK R. PARKER

Lawyers’ Committee for

Civil Rights Under Law

233 North Farish Street

Jackson, Mississippi 39201

J. HAROLD FLANNERY

PAUL R. DIMOND

Lawyers’ Committee for

Civil Rights Under Law

733 Fifteenth Street, N.W.

Suite 520

Washington, D. C. 20005

Attorneys for Petitioners

Of Counsel:

JAMES E. WINFIELD

P. O. Box 1448

Vicksburg, Mississippi 39180