421 U.S. 213 (1975), 73-1531, Johnson v. Mississippi

Docket Nº:No. 73-1531
Citation:421 U.S. 213, 95 S.Ct. 1591, 44 L.Ed.2d 121
Party Name:Johnson v. Mississippi
Case Date:May 12, 1975
Court:United States Supreme Court

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421 U.S. 213 (1975)

95 S.Ct. 1591, 44 L.Ed.2d 121




No. 73-1531

United States Supreme Court

May 12, 1975

Argued February 26, 1975




Petitioners, six Negroes, who had been picketing and urging boycott of certain business establishments in Vicksburg, Miss., because of their alleged racial discrimination in employment, were arrested with others and charged with unlawfully conspiring to bring about a boycott. Those arrested then sought removal of the prosecutions from state to federal court pursuant to 28 U.S.C.§ 1443(1), which provides for removal of state proceedings

[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens,

alleging that the conspiracy statutes underlying the charges were unconstitutional, that the charges were groundless, and made solely to deprive those arrested of their federally protected rights, and, more particularly, that their activities were protected by 18 U.S.C. § 245 (Title I of the Civil Rights Act of 1968). Section 245(b)(5), inter alia, makes it a crime by "force or threat of force" to injure, intimidate, or interfere with any person because he has been "participating lawfully in speech or peaceful assembly" opposing racial discrimination in employment, but § 245(a)(1) provides that § 245 shall not be construed as indicating Congress' intent to prevent any State from exercising jurisdiction over any offense over which it would have jurisdiction in the absence of § 245. The District Court denied removal, and the Court of Appeals affirmed, holding that § 245 "confers no rights whatsoever," and that a federal statute must "provide" for the equal rights of citizens before it can be invoked as a basis for removal of prosecutions under § 1443(1).

Held: Removal under § 1443(1) was not warranted based solely on petitioners' allegations that the statutes underlying the charges were unconstitutional, that there was no basis in fact for those charges, or that their arrest and prosecution otherwise denied them their constitutional rights. Georgia v. Rachel, 384 U.S. 780; City of Greenwood v. Peacock, 384 U.S. 808. Nor does § 245 furnish adequate basis for removal under § 1443(1). Pp. 222-227.

(a) The Mississippi courts undoubtedly have jurisdiction over conspiracy and boycott cases brought under state law, and § 245(a)(1)

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appears to disavow any intent to interrupt such state prosecutions, a conclusion that is also implicit in § 245's operative provisions, since § 245(b), on its face, focuses on the use of force, and its legislative history confirms that its central purpose was to prevent and punish violent interferences with the exercise of specified rights, and that it was not aimed at interrupting or frustrating the otherwise orderly processes of state law. Pp. 223-227.

(b) Thus, viewed in the context of § 245's being directed at crimes of racial violence, a state prosecution, proceeding as it does in a court of law, cannot be characterized as an application of "force or threat of force" within the meaning of § 245, and, whatever "rights" that section may confer, none of them is denied by a state criminal prosecution for conspiracy or boycott, there being no "federal statutory right that no State should even attempt to prosecute [petitioners] for their conduct," Peacock, supra, at 826. P. 227.

(c) The absence of any evidence or legislative history indicating that Congress intended to accomplish in 18 U.S.C. § 245 what it has failed or refused to do directly through amendment to 28 U.S.C. § 1443 also necessitates rejection of the right of removal in this case, in addition to which there are other avenues of relief open to petitioners for vindication of their federal rights that may have been or will be violated. Pp. 227-228.

488 F.2d 284, affirmed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 229. DOUGLAS, J., took no part in the consideration or decision of the case.

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WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

This case concerns the application of 28 U.S.C. § 1443(1), permitting defendants in state cases to remove the proceedings to the federal district courts under certain conditions, in the light of Title I of the Civil Rights Act of 1968, § 101(a), 82 Stat. 73, 18 U.S.C. § 245.


During March 1972, petitioners, six Negro citizens of Vicksburg, Miss., along with other citizens of Vicksburg, made various demands upon certain merchants and city officials generally relating to the number of Negroes employed or serving in various positions in both local government and business enterprises. In late March, petitioners began picketing some business establishments in Vicksburg and urging, by word of mouth and through leaflets, that the citizens of Vicksburg boycott those establishments until such time as petitioners' demands were realized.1 On May 2, 13, 14, and 21 of that year, petitioners, along with 43 other Negroes, were arrested2 on the basis of warrants charging, in general terms, their complicity in a conspiracy unlawfully to bring about a boycott of merchants and businesses.3 At least some

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of these arrests [95 S.Ct. 1594] took place at a time when some of those arrested were engaged in picketing in protest of the racial discrimination allegedly practiced by certain merchants of Vicksburg. Following the arrests, which were made by Vicksburg police officers, those arrested were transported to the city jail, where they each remained after processing until the posting of bail. There is no indication in the record in this case that the arrests and subsequent detentions of petitioners or the other 43 persons so arrested and detained involved the application of any force by the arresting officers beyond the verbal directions issued by those officers and the coercive custody normally incident to arrest, processing, and detention.

On May 25, 1972, those arrested filed a petition in the Federal District Court in compliance with the procedures established by 28 U.S.C. § 1446 seeking transfer of the trial of charges against them to the District Court pursuant to 28 U.S.C. § 1443, which reads, in pertinent part,4 as follows:

Any of the following civil actions or criminal prosecutions, commenced in a State court, may 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:

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(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof. . . .

In their removal petition, it was alleged, inter alia, that those arrested were being prosecuted under several state conspiracy statutes5 which were, "on their face and as applied, repugnant to the Constitution . . . ," and that:

The charges against petitioners, their arrest, and subsequent prosecution on those charges have no basis, in fact, and have been effectuated 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 interferring [sic], or attempting to punish, injure, intimidate, . . . and interfere with petitioners, and the class of persons participating in the . . . boycott and demonstrations, for the exercise of their rights peacefully to protest discrimination 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.

On December 29, 1972, after an evidentiary hearing was held by the District Court in which testimony was

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presented both by petitioners and the Vicksburg chief of police, who was one of the named respondents to the removal petition, the District Court remanded the prosecutions to the state courts. [95 S.Ct. 1595] The Court of Appeals affirmed,6 reasoning that § 245, as a criminal statute, "confers no rights whatsoever . . . ," 488 F.2d 284, 287 (CA5 1974), and that, under this Court's decisions in Georgia v. Rachel, 384 U.S. 780 (1966), and City of Greenwood v. Peacock, 384 U.S. 808 (1966), a federal statute must "provide" for the equal rights of citizens before it can be invoked as a basis for removal of prosecutions under § 1443(1). Rehearing and rehearing en banc, Fed.Rule App.Proc. 35, were denied, five Circuit Judges dissenting in an opinion.7 491 F.2d 94 (CA5 1974). We granted certiorari, 419 U.S. 893 (1974), and, for reasons stated below, affirm the judgment of the Court of Appeals.

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Our most recent cases construing § 1443(1) are the companion cases of Georgia v. Rachel, supra, and City of Greenwood v. Peacock, supra. Those cases established that a removal petition under 28 U.S.C. § 1443(1) must satisfy a two-pronged test. First, it must appear that the right allegedly denied the removal petitioner arises under a federal law "providing for specific civil rights stated in terms of racial equality." Georgia v. Rachel, supra at 792. Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination, will not suffice. That a removal petitioner will be denied due process of law because the criminal law under which he is being prosecuted is allegedly vague...

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