Achtenberg v. State of Mississippi

• Decision Date: 05 February 1968
• Docket Number: No. 22665.,22665.
• Citation: 393 F.2d 468
• Parties: Ben ACHTENBERG, Sandra Adickes, Thomas L. Edwards, William D. Jones and Susan B. Patterson, Appellants, v. STATE OF MISSISSIPPI et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

393 F.2d 468 (1968)

Ben ACHTENBERG, Sandra Adickes, Thomas L. Edwards, William D. Jones and Susan B. Patterson, Appellants, v. STATE OF MISSISSIPPI et al., Appellees.

No. 22665.

United States Court of Appeals Fifth Circuit.

February 5, 1968.

Eleanor Jackson Piel, New York City, for appellants.

James K. Dukes, James Finch, Howard L. Patterson, Jr., Hattiesburg, Miss., for appellees.

Before TUTTLE, THORNBERRY and GODBOLD, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal from an order remanding to the state courts of Mississippi charges against the appellants, Sandra Adickes, Ben Achtenberg, Thomas L. Edwards, William D. Jones and Susan B. Patterson, for the crime of vagrancy. The cases were removed to the district court on a petition that charged that the prosecution's charges of vagrancy were based exclusively on attempts by the appellants to exercise rights guaranteed them under the 1964 Civil Rights Act.

The issues for us to decide are whether these removal petitions allege grounds for removal which, if true, meet the standards set out in the case of State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966). If they do, and if the evidence adduced in opposition to remand of these cases establishes the truth of the allegations, then the order of remand must be vacated since the State did not see fit to offer any counter testimony. Incidentally, the state has not seen fit to file a brief in this appeal.

The order of the trial court granting the petition for remand of these cases came shortly after the passage of the Civil Rights Act of 1964, but a year before the decision by the Supreme Court in the removal cases: State of Georgia v. Rachel, supra and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).

The five cases here combined for appeal purposes are grouped into two classes. We deal first with the case of Achtenberg, Edwards, Jones and Miss Patterson, since they were all acting together at the time of their arrests. Of these four, appellant, William D. Jones, is a Negro school teacher from New York state. The other three, Ben Achtenberg, Thomas E. Edwards and Miss Susan B. Patterson were white persons associated with a project being conducted in Mississippi as the COFO Mississippi Summer Project, which is described in the removal petition as being engaged in assisting Negroes assert their civil rights in the state of Mississippi.

The removal petition in the Jones case contained the following allegations:

"On August 17, 1964, in the City of Hattiesburg, Mississippi, at approximately 1:00 P. M., petitioner, in company with several other COFO adherents, was engaged in the peaceful use of the facilities of the public library of said city in the same manner as other residents of said city who were then and there using said library. Petitioner is a Negro and was accompanied at said library by Negroes and petitioner alleges upon information and belief that at all times mentioned herein it was and is the official policy of said city and said library to refuse to admit and to serve Negroes at said library on an equal basis with white users of said library.

"The aforesaid conduct and activity of petitioner for which petitioner was arrested as hereinafter set forth, was done in the exercise of rights guaranteed to petitioner by the federal constitution and statutes, including Title 42 U.S.C. 1981 et seq., and amendments thereto, and the Civil Rights Act of 1964."

With respect to the white petitioners the language is:

"Petitioner was accompanied at said library by Negroes, and petitioner alleges, etc."

The arrest of Sandra Adickes occurred at a different time several days earlier than the arrests mentioned above. Her removal petition alleges that:

"On August 14, 1964, in the city of Hattiesburg, Mississippi, at approximately noon, petitioner, in company with several other COFO adherents (elsewhere in the removal petition it is stated that COFO is an organization engaged in assisting Negroes to achieve civil rights in the state of Mississippi) was attempting to use the public library in the city of Hattiesburg, Mississippi, when she was refused service and was ordered to leave the premises by an official of the city of Hattiesburg. After peaceably complying with said order and leaving the library, petitioner and the other COFO adherents went to the Kress store in the city of Hattiesburg to purchase food, but petitioner was refused service at said store because she is white and her associates were Negroes. Thereupon petitioner and her above mentioned associates left the store and petitioner was immediately arrested by officials of the city of Hattiesburg.

"The aforesaid conduct and activity of petitioner for which petitioner was arrested as hereinafter set forth, was done in the exercise of rights guaranteed to petitioner by the federal constitution and statutes, including Title 42 U.S.C. 1981 et seq., and amendments thereto, and the Civil Rights Act of 1964."

Miss Adickes further alleges that she was arrested for vagrancy and then asserted as follows:

"At all times herein mentioned the arresting officers and other officials of the City of Hattiesburg were informed and knew that Petitioner was a white teacher regularly employed by the New York City Public School System at an annual salary of $7,200, the holder of a Master of Arts Degree from Hunter College, New York, N. Y., and that Petitioner had on her person and exhibited to said officers at the time of her arrest cash assets belonging to Petitioner and totalling ninety-five ($95) Dollars."

When the Rachel case was before it, this Court especially considered the application of the liberal rules of pleading as provided for under the Federal Rules of Civil Procedure to the statute relating to Removal Petitions. We there held that the liberal rule of Notice-Pleading is applicable to petitions for removal. See Rachel v. State of Georgia, 342 F.2d 336, at p. 339. We, therefore, apply this rule to consider these petitions in light of the affidavits that were subsequently filed in opposition to the petition for remand.

The affidavit of appellant Jones best describes the action that brought about the arrest of the group of four persons:

"I was born and reared in Birmingham, Alabama where I lived until two years ago. Since then, I have been living in Bellmore, Long Island, New York, where I am a public school teacher. I am thirty-eight years old, an Air Force veteran of World War II and the Korean conflict, during which I served in England, the Philippines, and Germany. I have two honorable discharges from the military services. I came to Hattiesburg as a volunteer Freedom School teacher with the COFO Mississippi Summer Project, arriving on July 4.

"On Monday, August 17, 1964, after we, in a Freedom School class, had staged and discussed several typical scenes where we were using certain public facilities and for the first time, particularly a library since some local Negro children had been dismissed and their teacher arrested at the Hattiesburg Public Library on August 14, a small group of us decided to visit the same library in quest of books pertaining to Negroes. As their teacher, I would be the leader to accompany them. Three other Freedom School teachers, all white, were to proceed ahead of us and deploy themselves as observers.

"At approximately 12:45, I entered the Hattiesburg Public Library in the company of six local Negro youth, (sic) Jerry Wilson, 17; Lee Pollard Abrams, 16; Janice Walton, 16; Shirley White, 15; Dorothy Jean Patton, 12; and Cynthia McCarty, 9. They and I entered the library very quietly and orderly. They lined up at the desk while the librarians spent some time on the telephone. When she eventually terminated the call, she came and asked the first one in the line what he wanted. He requested as well as the others in turn, a specific book pertaining to Negroes. The librarian told each one that the book requested was presently unavailable, but that she could possibly get it and have it sent to the East Sixth Street Branch where it could be claimed. The branch mentioned is the one designated exclusively for Negroes. Each child, upon hearing this, went either to book shelves or magazine racks, selected something to read and sat down. In the meantime, I asked the librarian whether that was the only place that these children could check out books, and she answered, `Yes, that is your branch.' The librarian, noticing that some Negro youth had taken seats and begun to read, interrupted attending to those still waiting at the desk and went over to where Jerry Wilson was seated and asked, `Do you intend to stay in here and read?' One answered yes, and she said, `All right, I'll just have to call the city (police).' Then she returned to the desk and made a telephone call. In a few minutes, two other white women and a man, presumably other library employees, joined her behind the desk and talked in whispers while looking amazed at us.

"The smallest Negro child, Cynthia, was seated at the table with me and had taken a magazine on gardening. Since we were in the adult section of the reading room, the table was too tall for her. She sat majestically with her chin barely able to reach the edge of the table where she had laid the open magazine. I observed her in admiration, compassion, pity and amusement for a few minutes, then I asked her and the next older girl, Dorothy Jean, to go with me to the children's section on the opposite side of the room. We went over and I directed them to a shelf containing story books for children. Each selected a book and started to walk toward the librarian's desk with it. Just as they arrived there, two policemen entered, one of them being Chief Hugh W. Herring, who asked brusquely, `Are those library books?' The girls answered, `Yes,' and he ordered them harshly `Put them back!' The girls obeyed promptly and returned with me to the side...