City of Greenwood, Mississippi v. Peacock Peacock v. City of Greenwood, Mississippi, s. 471

Citation86 S.Ct. 1800,16 L.Ed.2d 944,384 U.S. 808
Decision Date20 June 1966
Docket NumberNos. 471,649,s. 471
PartiesThe CITY OF GREENWOOD, MISSISSIPPI, Petitioner, v. Willie PEACOCK et al. Willie PEACOCK et al., Petitioners, v. The CITY OF GREENWOOD, MISSISSIPPI
CourtUnited States Supreme Court

[Syllabus from pages 808-809 intentionally omitted] Hardy Lott, Greenwood, Miss., for petitioner in No. 471 and respondent in No. 649.

Benjamin E. Smith, New Orleans, La., for respondents in No. 471 and petitioners in No. 649.

Louis F. Claiborne, Washington, D.C., for United States, as amicus curiae, by special leave of Court.

Mr. Justice STEWART delivered the opinion of the Court.

These consolidated cases, sequels to State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, involve prosecutions on various state criminal charges against 29 people who were allegedly engaged in the spring and summer of 1964 in civil rights activity in Leflore County, Mississippi. In the first case, 14 individuals were charged with obstructing the public streets of the City of Greenwood in violation of Mississippi law.1 They filed petitions to remove their cases to the United States District Court for the Northern District of Mississippi under 28 U.S.C. § 1443 (1964 ed).2 Alleging that they were members of a civil rights group engaged in a drive to encourage Negro voter registration in Leflore County, their petitions stated that they were denied or could not enforce in the courts of the State rights under laws providing for the equal civil rights of citizens of the United States, and that they were being prosecuted for acts done under color of authority of the Constitution of the United States and 42 U.S.C. § 1971 et seq. (1964 ed.). 3 Additionally, their removal petitions alleged that the statute under which they were charged was unconstitutionally vague on its face, that it was unconstitution- ally applied to their conduct, and that its application was a part of a policy of racial discrimination fostered by the State of Mississippi and the City of Greenwood. The District Court sustained the motion of the City of Greenwood to remand the cases to the city police court for trial. The Court of Appeals for the Fifth Circuit reversed, holding that 'a good claim for removal under § 1443(1) is stated by allegations that a state statute has been applied prior to trial so as to deprive an accused of his equal civil rights in that the arrest and charge under the statute were effected for reasons of racial discrimination.' Peacock v. City of Greenwood, 347 F.2d 679, 684. Accordingly, the cases were remanded to the District Court for a hearing on the truth of the defendants' allegations. At the same time, the Court of Appeals rejected the defendants' contentions under 28 U.S.C. § 1443(2), holding that removal under that subsection is available only to those who have acted in an official or quasi-official capacity under a federal law and who can therefore be said to have acted under 'color of authority' of the law within the meaning of that provision.4

In the second case, 15 people allegedly affiliated with a civil rights group were arrested at different times in July and August of 1964 and charged with various offenses against the laws of Mississippi or ordinances of the City of Greenwood.5 These defendants filed essentially identical petitions for removal in the District Court, denying that they had engaged in any conduct prohibited by valid laws and stating that their arrests and prosecutions were for the 'sole purpose and effect of harassing Petitioners and of punishing them for and deterring them from the exercise of their constitutionally protected right to protest the conditions of racial discrimination and segregation' in Mississippi. As grounds for removal, the defendants specifically invoked 28 U.S.C. §§ 1443(1)6 and 1443(2).7 The District Court held that the cases had been improperly removed and remanded them to the police court of the City of Greenwood. In a per curiam opinion finding the issues 'identical with' those determined in the Peacock case, the Court of Appeals for the Fifth Circuit reversed and remanded the cases to the District Court for a hearing on the truth of the defendants' allegations under § 1443(1). Weathers v. City of Greenwood, 347 F.2d 986.

We granted certiorari to consider the important questions raised by the parties concerning the scope of the civil rights removal statute. 382 U.S. 971, 86 S.Ct. 532, 15 L.Ed.2d 464.8 As in State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, we deal here not with questions of congressional power, but with issues of statutory construction.


The individual petitioners contend that, quite apart from 28 U.S.C. § 1443(1), they are entitled to remove their cases to the District Court under 28 U.S.C. § 1443(2), which authorizes the removal of a civil action or criminal prosecution for 'any act under color of authority derived from any law providing for equal rights * * *.' The core of their contention is that the various federal constitutional and statutory provisions invoked in their removal petitions conferred 'color of authority' upon them to perform the acts for which they are being prosecuted by the State. We reject this argument, because we have concluded that the history of § 1443 (2) demonstrates convincingly that this subsection of the removal statute is available only to federal officers and to persons assisting such officers in the performance of their official duties. 9

The progenitor of § 1443(2) was § 3 of the Civil Rights Act of 1866, 14 Stat. 27. Insofar as it is relevant here, that section granted removal of all criminal prosecutions 'commenced in any State court * * * against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a Bureau for the relief of Freedmen and Refugees, and all acts amendatory thereof * * *.' (Emphasis added.)

The statutory phrase 'officer * * * or other person' characterizing the removal defendants in § 3 of the 1866 Act was carried forward without change through successive revisions of the removal statute until 1948, when the revisers, disavowing any substantive change, eliminated the phrase entirely. 10 The definition of the persons en- titled to removal under the present form of the statute is therefore appropriately to be read in the light of the more expansive language of the statute's ancestor. See Madruga v. Superior Court, 346 U.S. 556, 560, n. 12, 74 S.Ct. 298, 300, 98 l.Ed. 290; Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227—228, 77 S.Ct. 787, 790—791, 1 L.Ed.2d 786.

In the context of its original enactment as part of § 3 of the Civil Rights Act of 1866, the statutory language 'officer * * * or other person' points squarely to the conclusion that the phrase 'or other person' meant persons acting in association with the civil or military officers mentioned in the immediately preceding words of the statute. That interpretation stems from the obvious contrast between the 'officer * * * or other person' phrase and the next preceding portion of the statute, the predecessor of the present § 1443(1), which granted removal to 'any * * * person' who was denied or could not enforce in the courts of the State his rights under § 1 of the 1866 Act. The dichotomy between 'officer * * * or other person' and 'any * * * person' in these correlative removal provisions persisted through successive statutory revisions until 1948, even though, were we to accept the individual petitioners' contentions, the two phrases would in fact have been almost entirely co-extensive.

It is clear that the 'other person' in the 'officer * * * or other person' formula of § 3 of the Civil Rights Act of 1866 was intended as an obvious reference to certain categories of persons described in the enforcement provisions, §§ 4—7, of the Act. 14 Stat. 28—29. Section 4 of the Act specifically charged both the officers and the agents of the Freedmen's Bureau, 11 among others, with the duty of enforcing the Civil Rights Act. As such, those officers and agents were required to arrest and institute proceedings against persons charged with vio- lations of the Act.12 By the 'color of authority' removal provision of § 3 of the Civil Rights Act, 'agents' who derived their authority from the Freedman's Bureau legislation would be entitled as 'other persons,' if not as 'officers,' to removal of state prosecutions against them based upon their enforcement activities under both the Freedmen's Bureau legislation and the Civil Rights Act.13 Section 5 of the Civil Rights Act, now 42 U.S.C. § 1989 (1964 ed.), specifically authorized United States commissioners to appoint 'one or more suitable persons' to execute warrants and other process issued by the commissioners.14 These 'suitable persons' were, in turn, spe- cifically authorized 'to summon and call to their aid the bystanders or posse comitatus of the proper county.'15 Section 6 of the Act provided criminal penalties for any individual who obstructed 'any officer, or other person charged with the execution of any warrant or process issued under the provisions of this act, or any person or persons lawfully assisting him or them,' or who rescued or attempted to rescue prisoners 'from the custody of the officer, other person or persons, or those lawfully assisting.'16 Finally, § 7 of the Act, now 42 U.S.C. § 1991 (1964 ed.), awarded a fee of five dollars for each individual arrested by the 'person or persons authorized to execute the process'—i.e., the 'one or more suitable persons' of § 5. Thus, the enforcement provisions of the 1866 Act were replete with references to 'other persons' in context obviously relating to positive enforcement activity under the Act.17

The derivation of the statutory phrase 'For any act' in § 1443(2) confirms the interpretation that removal under this...

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