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

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: GODBOLD, DYER and GEE, Circuit
• Citation: 488 F.2d 284
• Parties: Albert JOHNSON et al., Petitioners-Appellants, v. STATE OF MISSISSIPPI et al., Respondents-Appellees.
• Docket Number: No. 73-1476.
• Decision Date: 15 March 1974

488 F.2d 284 (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.

January 14, 1974.

Rehearing Denied 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., State of Miss., Ed Davis Noble, Jr., Asst. Atty. Gen., Jackson, Miss., for respondents-appellees.

Before GODBOLD, DYER and GEE, Circuit Judges.

Rehearing and Rehearing Denied March 15, 1974.

Rehearing and Rehearing En Banc Denied March 15, 1974. See 491 F.2d 94.

DYER, Circuit Judge:

This is an appeal from the district court's order remanding state criminal prosecutions which appellants had removed to federal court pursuant to 28 U.S.C.A. § 1443(1) and 18 U.S.C.A. § 245(b). Because § 245 is not a law providing for the equal civil rights of citizens within the meaning of the removal statute, we affirm.

Appellants are black citizens of Vicksburg, Mississippi who organized a boycott of local businesses for the purpose of gaining equal employment opportunities in the privately owned stores and in

488 F.2d 285

city government and its agencies, and to publicize other civil rights grievances. Picketing and leafleting began in late March of 1972 and continued until early May of the same year when the forty-nine appellants were arrested and charged with criminal restraint of trade and criminal conspiracy in restraint of trade. In an attempt to utilize the removal statute, 28 U.S.C.A. § 1443(1),¹ appellants assert that the Civil Rights Act of 1968, 18 U.S.C.A. § 245,² is a pre-emptive statute which granted the right to be free from harassment, such as subjection to spurious criminal charges, for having engaged in constitutionally protected activity. Therefore, they assert that they are entitled to have their prosecutions removed from the state court.³

488 F.2d 286

At the outset, we note that there is no question of appellants' right to engage in peaceful picketing. Machesky v. Bizzell, 5 Cir. 1969, 414 F.2d 283; Smith v. Grady, 5 Cir. 1969, 411 F.2d 181; Kelly v. Page, 5 Cir. 1964, 335 F.2d 114. Although the state contends that the arrests were predicated not on peaceful protest, but on acts of intimidation and coercion, the question in this appeal is not whether appellants had a constitutional right to engage in the activity for which they are now being prosecuted, but whether they are entitled to invoke the extraordinary protection of the removal statute. The key to removal under § 1443(1) is whether there exists a law "providing for . . . the equal civil rights of citizens." Unlike all previous cases which have interpreted the phrase and which have focused on whether a particular statute meets the "equal civil rights" test, the essential inquiry here is whether § 245, which clearly deals with equal civil rights, meets the requirement that the law be one providing such rights.

Our consideration of whether § 245 is within the contemplation of § 1443(1) begins with Georgia v. Rachel, 1966, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, in which the Supreme Court gave careful consideration to the legislative history of the removal statute. The Court's conclusion that § 1443(1) encompasses "any law providing for specific civil rights stated in terms of racial equality" must be read in conjunction with the Court's reference to the Civil Rights Act of 1866 as the "model" of a law within the meaning of § 1443(1). The 1866 Act, the substantive provisions of which are now codified as 42 U.S.C.A. § 1981 and § 1982,⁴ bestowed certain basic rights regardless of race. The Rachel Court concluded that the Civil Rights Act of 1964,⁵ which granted the right to racially nondiscriminatory service in places of public accommodation, was also within the compass of the removal statute. In explicating the rationale for its determination that the 1964 Act, like the model of 1866, was within § 1443(1), the Court said:

That Act the Civil Rights Act of 1964 is clearly a law conferring a specific right of racial equality, for . . . it guarantees to all the "full and equal enjoyment" of the facilities of any place of public accommodation without discrimination on the ground of race.

Id. at 792-793, 86 S.Ct. at 1790 (emphasis supplied)

Unlike the defendants in Rachel, the defendants in City of Greenwood v. Peacock, 1966, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944, were...