People of State of New York v. Horelick, 524

• Decision Date: 27 February 1970
• Docket Number: No. 524,Docket 34140.,524
• Citation: 424 F.2d 697
• Parties: The PEOPLE OF the STATE OF NEW YORK, Respondent-Appellee, v. James HORELICK and Sandra Adickes, Petitioners-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

424 F.2d 697 (1970)

The PEOPLE OF the STATE OF NEW YORK, Respondent-Appellee, v. James HORELICK and Sandra Adickes, Petitioners-Appellants.

No. 524, Docket 34140.

United States Court of Appeals, Second Circuit.

Argued February 10, 1970.

Decided February 27, 1970.

Certiorari Denied June 1, 1970.

Eleanor Jackson Piel, New York City, for petitioners-appellants.

Lewis R. Friedman, Asst. Dist. Atty. (Frank S. Hogan, Dist. Atty., New York County, Michael R. Juviler and Alfred Tallakson, Asst. Dist. Atty's, of Counsel), for respondent-appellee.

Before LUMBARD, Chief Judge, and FRIENDLY and FEINBERG, Circuit Judges.

Certiorari Denied June 1, 1970. See 90 S.Ct. 1839.

FRIENDLY, Circuit Judge:

On this appeal from an order of remand by the District Court for the Southern District of New York, we again have the task of interpreting the civil rights removal statute, 28 U.S.C. § 1443, in light of the Supreme Court's decisions in Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), upholding removal, and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), denying it.¹ This case plainly falls on the Peacock side.

Petitioners sought removal of five prosecutions in the Criminal Court of the City of New York. Four related to incidents occurring about 12:45 P.M. on October 17, 1968, at Washington Irving High School in the course of a prolonged teachers' strike. One complaint charged James M. Horelick with criminal trespass, N.Y. Penal Law, McKinney's Consol.Laws, c. 40, § 140.10, and resisting arrest, N.Y. Penal Law, § 205.30. An affidavit of the school's custodian engineer alleged that Horelick entered without permission or authority and refused to leave on the custodian's demand; it averred also that a patrolman had informed the custodian that Horelick had kicked and wrestled with him in resisting arrest. The other two complaints charged Sandra Adickes with resisting arrest and harassment, N.Y. Penal Law § 240.25; the same patrolman averred that she had "attempted to prevent him from effecting an authorized arrest of another person," to wit, Horelick. A fifth complaint charged Horelick with trespass at the same school on October 20.

After an unsuccessful attempt to have the district court enjoin the state criminal trial because of alleged unconstitutionality of the State's penal statutes as sought to be applied, the petitioners on the morning of September 30, 1969, the day set for trial, served a petition for removal.² The petition alleged that Horelick and Adickes were teachers employed by the New York City Board of Education; that the strike had been called by the United Federation of Teachers in an effort to block a community plan designed to change and remedy the deleterious effects of de facto segregated education upon black and Puerto Rican school children; and that petitioners did not support the strike and wished to carry on their regular duties. It further alleged that high officers of the Board of Education had authorized designated teachers to open certain schools and conduct classes; that Edward Williams, chairman of the mathematics department, had received a permit to be "Teacher-in-Charge" of Washington Irving High School for this purpose; that the police nevertheless barred entry of Williams, petitioners and other teachers; that Horelick, under authority delegated by Williams, entered the school but that members of the police department commenced beating him and led him from the building in a battered condition; that the policemen pushed Adickes along with Horelick into an automobile; and that they were driven to the precinct station where charges were filed. Removal was predicated on both subdivisions of § 1443.³ In response to a motion for remand, which did not challenge the factual allegations of the removal petition, defendants submitted affidavits enlarging on their claims with respect to the antagonism of many of the teachers to black and Puerto Rican students and to plans for greater decentralization of control of the school system, the inferior quality of education at schools with a high percentage of such students, and the motivations of the United Federation of Teachers. Judge Ryan ordered a remand without conducting an evidentiary hearing, and this appeal followed, 28 U.S.C. § 1447(d).

Petitioners' arguments concerning subdivision (1) rest on a claim that various federal statutes, notably § 101(a) of the Civil Rights Act of 1968, 18 U.S. C. § 245(b), put them in a position analogous to the defendants in Rachel. We think it desirable in the first instance to recapitulate the salient aspects of the Supreme Court's Rachel and Peacock decisions and then to review subsequent developments in the courts of appeals.

After a comprehensive analysis of the history of the civil rights removal statute and the opinions construing it, Mr. Justice Stewart concluded in Rachel that decisions up to that time had established that, in order to come within what is now § 1443(1), a petitioner must show that a denial or inability to enforce "a right under any law providing for the equal civil rights of citizens of the United States" in the courts of a state "be manifest in a formal expression of state law," 384 U.S. at 803-804, 86 S.Ct. at 1796. Quoting the statement in Virginia v. Rives, 100 U.S. 313, 319, 25 L. Ed. 667 (1880), that the denial of which the removal statute speaks "is primarily, if not exclusively, a denial * * * resulting from the Constitution or laws of the State * * *," the Court held that removal under § 1443(1) would be justified "if an equivalent basis could be shown for an equally firm prediction that the defendant would be `denied or cannot enforce' the specified federal rights in the state court." It found such a basis through the following reasoning: Section 201 of the Civil Rights Act of 1964, enacted after the attempted removal, entitles all persons to be served without discrimination in restaurants open to the general public. Defendants, who had been in such a restaurant, were being prosecuted under a Georgia statute making it a misdemeanor to refuse to leave the premises when ordered to do so by the "owner or person in charge." Section 203(c) of the Civil Rights Act prohibits any "attempt to punish" persons for exercising the rights of equality so conferred. This had been interpreted in Hamm v. City of Rock Hill, 379 U.S. 306, 311, 85 S.Ct. 384, 13 L. Ed.2d 300 (1964), to prohibit not merely conviction but prosecution. Hence, if defendants could substantiate the allegations in the removal petition that they had been asked to leave for racial reasons, prosecution in the state courts would itself "deny" a right conferred by Title II of the 1964 Civil Rights Act.

In Peacock the Court reached a different conclusion. Members of a group engaged in a drive to encourage Negro voter registration in Mississippi were charged in the state courts with various offenses — obstructing public streets, assault, interfering with an officer in the performance of his duties, creating a disturbance in a public place, inciting to riot, parading without a permit, contributing to the delinquency of a minor, operating a motor vehicle with improper license tags, reckless driving, and profanity and the use of vulgar language. The removal petitions alleged that these prosecutions were racially motivated. Section 11(b) of the Voting Rights Act of 1965, 42 U.S.C. § 1973i(b), enacted after the prosecutions were begun but before the cases were decided by the Supreme Court, prohibited any person from intimidating, threatening or coercing, or attempting to intimidate, threaten or coerce, another for urging or aiding any person to vote. Despite this and other federal statutes, the Court held the case to be governed by its previous line of decisions against removal culminating in Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633 (1906), rather than by Rachel. The case was said to differ from Rachel "in two significant respects," 384 U.S. at 826-827, 86 S.Ct. at 1812. "First, no federal law confers an absolute right on private citizens" to do the acts with which defendants were charged. "Second, no federal law confers immunity from state prosecution on such charges."

The Rachel principle has been held to allow removal in cases where persons who claimed to be exercising their rights to equal accommodation were prosecuted on what allegedly were trumped up charges of burglary, Wyche v. Louisiana, 394 F.2d 927 (5 Cir.1967), and vagrancy, Achtenberg v. Mississippi, 393 F.2d 468 (5 Cir.1968), rather than of trespass. The Fifth Circuit has also come to the logical conclusion that when a hearing on a removal petition shows that the prosecution was an attempt to punish the exercise of rights conferred by Title II of the 1964 Civil Rights Act, the proper course for the district court is to dismiss the indictment with prejudice, Walker v. Georgia, 417 F.2d 1 (1969); Walker & Forman v. Georgia, 417 F.2d 5 (1969). In contrast the same court has held against removal of a prosecution for marching in protest against the arrest of blacks who had unsuccessfully sought service in a restaurant, Orange v. Alabama, 386 F.2d 829 (1967).

More difficulty has been encountered in applying the Rachel-Peacock distinction to state prosecutions alleged to impinge on federal civil rights statutes other than the public accommodations act. The first to be considered were the voting rights acts of 1957 and 1965. The earlier statute began with a statement that all citizens shall be entitled to vote without distinction of race, color of previous condition of servitude, 42 U.S.C. § 1971(a) (1), and then prohibited any person from intimidating, threatening or coercing any other person for the purpose of interfering with his voting rights, 42 U.S.C. § 1971(b). The later statute, which we have already noted in our discussion in Peacock, prohibited any person from intimidating, threatening...