# Petitioners Brief — Johnson v. Mississippi

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1975
- **Citation:** 421 U.S. 213

## Text

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

aes le |

EERE ERS

NASAL LN TNT ITY IN TER RENN HRMS

Fadia Si

Beeerrersccnics

Brae rte

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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“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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“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).

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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

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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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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0405%3A4. Public record. Not legal advice.