Johnson v. State of Mississippi, No. 73-1476.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation491 F.2d 94
Decision Date15 March 1974
Docket NumberNo. 73-1476.
PartiesAlbert JOHNSON et al., Petitioners-Appellants, v. STATE OF MISSISSIPPI et al., Respondents-Appellees.

491 F.2d 94 (1974)

Albert JOHNSON et al., Petitioners-Appellants,
v.
STATE OF MISSISSIPPI et al., Respondents-Appellees.

No. 73-1476.

United States Court of Appeals, Fifth Circuit.

March 15, 1974.


James E. Winfield, Frank R. Parker, Isaiah Madison, Jackson, Miss., for petitioners-appellants.

John Ellis, Dist. Atty., George Chaney, Warren County Pros. Atty., Vicksburg, Miss., A. F. Summer, Atty. Gen., St. of Miss., Ed Davis Noble, Jr., Asst. Atty. Gen., Jackson, Miss., for respondents-appellees.

Before GODBOLD, DYER and GEE, Circuit Judges.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion January 14, 1974, 5 Cir., 1974, 488 F.2d 284).

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

BROWN, Chief Judge, with whom WISDOM, THORNBERRY, GOLDBERG and AINSWORTH, Circuit Judges, join, dissenting:

I dissent to the Court's denial of rehearing en banc for two reasons. First, the issue is of recurring transcendent importance. Second, the panel's decision in my opinion is doubtful if not erroneous.

The question of whether the right of removal, 28 U.S.C.A. § 1443(1), should be denied to those persons seeking redress under 18 U.S.C.A. § 245 is of such moment that it cries out for consideration by the en banc court and should not be disposed of by the panel's sweeping but wholly unrevealing wave-of-the-hand declaration that § 245 "confers no rights whatsoever." This Court has in no prior decision authoritatively resolved the question of whether Congress intended to confer rights upon the victims of conduct which is made a criminal offense under § 245.

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 meaning of the removal statute. The restrictive interpretation applied to § 245 refuses appellants their "right" to peacefully protest racial discrimination free from the harrassment of bad-faith prosecutions inspired by their activities.

Such a right is, of course, provided
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5 practice notes
  • Concerned Citizens of Vicksburg v. Sills, No. 75-4450
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 13, 1978
    ...court denied relief and was affirmed by this Court and by the Supreme Court. Johnson v. Mississippi, 488 F.2d 284, reh. en banc denied, 491 F.2d 94 (5th Cir. 1974), aff'd, 421 U.S. 213, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975). Hours earlier, on May 24, 1972, plaintiffs had filed their complain......
  • Martinez v. Behring's Bearings Service, Inc., No. 73-3649
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 13, 1974
    ...the purpose of the Act is to protect persons from fraudulent investment advisers. 7 See Johnson v. State of Mississippi, 5 Cir., 1974, 491 F.2d 94 (Brown, Chief Judge, dissenting, joined by Wisdom, Thornberry, Goldberg, and Ainsworth, Circuit Judges); Intracoastal Transp. Inc. v. Decatur Co......
  • Johnson v. Mississippi 8212 1531, No. 73
    • United States
    • United States Supreme Court
    • May 12, 1975
    ...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, 95 S.Ct. 171, 42 L.Ed.2d 137 (1974), and, for reasons stated below, affirm the judgment of the Co......
  • O'Connor v. First Court of Appeals, No. D-1571
    • United States
    • Supreme Court of Texas
    • September 16, 1992
    ...Union v. Lubbock Indep. Sch. Dist., 680 F.2d 424 (5th Cir.1982); Cook v. Hudson, 515 F.2d 762 (5th Cir.1975); Johnson v. Mississippi, 491 F.2d 94 (5th Cir.1974); U.S. v. Buras, 475 F.2d 1370 (5th Cir.1972); Greco v. Seaboard C.L.R. Co., 468 F.2d 822 (5th Cir.1972); Logue v. U.S., 463 F.2d 1......
  • Request a trial to view additional results
5 cases
  • Concerned Citizens of Vicksburg v. Sills, No. 75-4450
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 13, 1978
    ...court denied relief and was affirmed by this Court and by the Supreme Court. Johnson v. Mississippi, 488 F.2d 284, reh. en banc denied, 491 F.2d 94 (5th Cir. 1974), aff'd, 421 U.S. 213, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975). Hours earlier, on May 24, 1972, plaintiffs had filed their complain......
  • Martinez v. Behring's Bearings Service, Inc., No. 73-3649
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 13, 1974
    ...the purpose of the Act is to protect persons from fraudulent investment advisers. 7 See Johnson v. State of Mississippi, 5 Cir., 1974, 491 F.2d 94 (Brown, Chief Judge, dissenting, joined by Wisdom, Thornberry, Goldberg, and Ainsworth, Circuit Judges); Intracoastal Transp. Inc. v. Decatur Co......
  • Johnson v. Mississippi 8212 1531, No. 73
    • United States
    • United States Supreme Court
    • May 12, 1975
    ...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, 95 S.Ct. 171, 42 L.Ed.2d 137 (1974), and, for reasons stated below, affirm the judgment of the Co......
  • O'Connor v. First Court of Appeals, No. D-1571
    • United States
    • Supreme Court of Texas
    • September 16, 1992
    ...Union v. Lubbock Indep. Sch. Dist., 680 F.2d 424 (5th Cir.1982); Cook v. Hudson, 515 F.2d 762 (5th Cir.1975); Johnson v. Mississippi, 491 F.2d 94 (5th Cir.1974); U.S. v. Buras, 475 F.2d 1370 (5th Cir.1972); Greco v. Seaboard C.L.R. Co., 468 F.2d 822 (5th Cir.1972); Logue v. U.S., 463 F.2d 1......
  • Request a trial to view additional results

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