Peacock v. City of Greenwood

• Decision Date: 22 June 1965
• Docket Number: No. 21655.,21655.
• Parties: Willie PEACOCK et al., Appellants, v. The CITY OF GREENWOOD, Mississippi, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

347 F.2d 679 (1965)

Willie PEACOCK et al., Appellants, v. The CITY OF GREENWOOD, Mississippi, Appellee.

No. 21655.

United States Court of Appeals Fifth Circuit.

June 22, 1965.

Jack Peebles, Bruce Waltzer, Smith, Waltzer, Jones & Peebles, New Orleans, La., for appellants.

Arnold F. Gwin, Hardy Lott, Lott & Sanders, Greenwood, Miss., for appellee.

Before WOODBURY,^* WISDOM, and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge:

This cause arises under the removal statute, 28 U.S.C.A. § 1443. The appeal is from an order of the District Court sustaining the city's motion to remand fourteen criminal cases to the city police court.

The petitions for removal alleged that appellants were arrested in Greenwood, Mississippi, and charged with obstructing public streets in violation of § 2296.5, Mississippi Code of 1942.¹ Removal jurisdiction was predicated on both paragraphs (1) and (2) of § 1443.² It was alleged that appellants were members of the Student Non-Violent Coordinating Committee, an organization affiliated with the Conference of Federated Organizations, both civil rights groups; and that at the time of the arrests, they were engaged in a voter registration drive assisting Negroes to register and secure the right to vote as guaranteed by the Federal Constitution, and the Civil Rights Act of 1960, 42 U.S.C.A. § 1971 et seq. Appellants further alleged that the Mississippi statute in question was vague, indefinite, and unconstitutional, both on its face and as applied, and that their arrests and trial under it would prevent them from exercising their First and Fourteenth Amendment rights to free speech, assembly, and petition. Finally, it was said that appellants were being denied equal protection of the laws and that the statute was being enforced against them as part and parcel of a policy of racial segregation maintained by the State of Mississippi and the City of Greenwood.

Upon motion by the city of Greenwood, the District Court remanded each case on the ground that § 1443 afforded no jurisdictional basis for removal. With respect to jurisdiction claimed under paragraph (1) of § 1443, the District Court proceeded on the theory that the Supreme Court in several cases³ ending with Com. of Kentucky v. Powers, 1906, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633, restricted that paragraph to situations where the state constitution or statutes, as disinguished from corrupt and illegal acts of state officials, denied or prevented enforcement of the equal rights of the accused. In effect, these decisions of the Supreme Court were construed as limiting § 1443(1) to cases where the denial or inability to enforce equal rights appeared on the face of the state constitution or statutes, rather than in their application.

Following the decision of the District Court,⁴ we decided Rachel v. State of Georgia, 5 Cir., 1965, 342 F.2d 336. The Rachel case disposes of the two questions under § 1443(1) raised by this appeal: (1) whether the brief allegations of the removal petitions were sufficient as a matter of pleading to allege a cause for removal under § 1443(1); and (2) whether § 1443(1) allows removal where a state statute, though valid and non-discriminatory on its face, is applied in violation of some equal right of the accused.⁵ The additional question presented by this appeal is whether paragraph (2) of § 1443 also affords a basis for removal under the facts of this case.

I.

From the Rachel decision and its application of the rules of federal notice type pleading to removal petitions, it is plain that the petitions here are adequate as a matter of pleading to set forth the contention that Mississippi Code § 2296.5 is being applied so as to deny appellants their rights under the equal protection clause of the Fourteenth Amendment. Appellants allege that they are being prosecuted for obstructing public streets in violation of Mississippi Code § 2296.5, that they are being denied equal protection of the law, and that the Mississippi statute in this instance is being enforced as part of a policy of racial segregation maintained by the state and city. It is a fair inference that they contend that the statute is being invoked discriminatorily to harass and impede appellants in their efforts to assist Negroes in registering to vote. It may be on remand that proof of these allegations will be insufficient. However, if these allegations are true, a denial of equal protection of the law would be established.

Under the precedent of Rachel and the authorities therein cited having to do with notice type pleading, we hold that the removal petitions are adequate at this stage of the proceeding to set forth a claim for removal based on the proposition that appellants are denied or cannot enforce in the courts of Mississippi their rights under the equal protection clause of the Fourteenth Amendment by virtue of the discriminatory application of Mississippi Code § 2296.5. We proceed therefore to consider whether such a claim for removal is included within the scope of § 1443(1).

II.

It is settled that the equal protection clause of the Fourteenth Amendment constitutes a "law providing for the equal civil rights of citizens of the United States" within the meaning of § 1443(1). Strauder v. West Virginia, 1879, 100 U.S. 303, 25 L.Ed. 664 (by implication); Steele v. Superior Court, 9 Cir., 1948, 164 F.2d 781.

The court in Steele suggested, and it is our view, that not every violation of the equal protection clause will justify removal, but only those violations involving discrimination based on race. This limitation comports with the historic purpose of § 1443. Appellants also allege deprivation of rights under the due process clause of the Fourteenth Amendment and under the First Amendment as incorporated therein. We hold, however, that the due process clause is not a law providing for equal rights within the contemplation of the removal statute. This view accords with the holding in Steele and in People of State of New York v. Galamison, 2 Cir., 1965, 342 F.2d 255, cert. den., 85 S.Ct. 1342, where the court said:

"When the removal statute speaks of `any law providing for equal rights,\' it refers to those laws that are couched in terms of equality, such as the historic and the recent equal rights statutes, as distinguished from laws, of which the due process clause and 42 U.S.C. § 1983 are sufficient examples, that confer equal rights in the sense, vital to our way of life, of bestowing them upon all."

The removal statute contemplates those cases that go beyond a mere claim of due process violation; they must focus on racial discrimination in the context of denial of equal protection of the laws. The allegation of appellants that the Mississippi statute is being employed to thwart their efforts to assist Negroes to register to vote is sufficient to meet this test. It is a claimed denial of an equal civil right based on race.

The difficult question is whether removal jurisdiction under § 1443(1) is limited to situations where the denial or inability to enforce rights under the equal protection clause appears from the face of the state constitution or statutes, or whether that section also encompasses cases where the deprivation of equal rights arises from the application of an otherwise valid statute. On this question also, however, we feel that the City of Greenwood is foreclosed by the reach of Rachel v. State of Georgia supra.

Rachel involved prosecutions of sit-in demonstrators under the Georgia anti-trespass statute, Ga. Code § 26-3005. The Georgia statute, like the Mississippi statute here, was non-discriminatory on its face, and only through application could it operate to deny equal civil rights. The law providing for equal civil rights was the Civil Rights Act of 1964, as construed by the Supreme Court in Hamm v. City of Rock Hill, 1964, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, to retroactively bar state prosecutions for peaceful sit-in demonstrations. The removal petitions in that case were construed as alleging, in effect, that Ga. Code § 26-3005 was being applied to appellants in violation of the Civil Rights Act of 1964 (and therefore in violation of the Supremacy Clause). We held that as thus construed the removal petitions stated a good claim for removal under § 1443(1). It was as if the Civil Rights Act had placed a gloss on the Georgia statute to the effect that it was not to be applied in peaceful sit-in demonstrations.

Thus, Rachel allowed removal based on the alleged application of a state statute contrary to an Act of Congress, while the instant case involves the alleged application of a state statute contrary to the equal protection clause. The rationale of Rachel is inescapably applicable here, since both cases involve the denial of equal rights through statutory application, rather than through some infirmity appearing on the face of the state statute.

The City of Greenwood relies on the series of Supreme Court cases ending with Kentucky v. Powers, supra, in support of its contention that removal will not lie unless the deprivation of equal rights stems from the face of state legislation. See cases cited note 3, supra. The District Court took this view in ordering the cases remanded. The question is not without difficulty but we are constrained to a broader reading of these decisions.

The Supreme Court first had occasion to delineate the scope of § 1443(1) in Strauder v. West Virginia and Virginia v. Rives, decided the same day. In Strauder, a West Virginia statute limited jury service to "white male persons," and a Negro charged with murder sought removal on the grounds that this statute denied him in the courts of West Virginia his rights under the equal protection clause. The court held that a good claim for removal under the predecessor of § 1443(1) had been stated. In Virginia v. Rives, although the Virginia statute was non-discriminatory, the allegation was that state officials...