People of State of New York v. Davis

• Decision Date: 28 March 1969
• Docket Number: No. 370,Docket 32989.,370
• Citation: 411 F.2d 750
• Parties: The PEOPLE OF the STATE OF NEW YORK, Respondent-Appellee, v. David DAVIS, Petitioner-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

411 F.2d 750 (1969)

The PEOPLE OF the STATE OF NEW YORK, Respondent-Appellee, v. David DAVIS, Petitioner-Appellant.

No. 370, Docket 32989.

United States Court of Appeals Second Circuit.

Argued February 17, 1969.

Decided March 28, 1969.

Henry F. Minnerop, New York City, for petitioner-appellant.

Barry L. Mendelson, Asst. Dist. Atty. (Burton B. Roberts, Dist. Atty., Bronx County), for respondent-appellee.

Before WATERMAN and FRIENDLY, Circuit Judges, and POLLACK, District Judge.^*

FRIENDLY, Circuit Judge:

This appeal requires us to consider the scope of the civil rights removal statute, 28 U.S.C. § 1443(1), as construed by the Supreme Court in Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).

Appellant Davis sought to remove to the District Court for the Southern District of New York a prosecution for "menacing," N.Y.Penal Law, McKinney's Consol.Laws, c. 40, § 120.15, initiated on April 11, 1968, by the complaint of Norman Stiles in the Criminal Court of the City of New York for Bronx County. Stiles, a supervisor in the City's Department of Social Services, alleged that while he was returning from lunch, Davis, who "was tossing a rock about the size of a baseball up and down," called Stiles over and said "I'm going to put this rock right through your head, if you are not taken off my case I'll see that you are taken off after five."

The amended petition for removal alleges that Davis, a white man married to a Negro woman, is on the welfare rolls of New York City's Social Services Department; that Mr. and Mrs. Davis attempted to obtain housing in a white neighborhood in the Bronx; that the Social Services Department discouraged this effort; that the effort succeeded "only after the opposition of the landlord, abetted by the Department, was overcome with the help of the Human Rights Commission of the State of New York"; that Stiles, who later became Davis' case supervisor, expressed resentment at the latter's geographical location, remarked that he would make sure no Negro or Puerto Rican client of his would move into a white neighborhood, and threatened to see to it that Mr. and Mrs. Davis would be "shipped out" of theirs; that when Stiles served the criminal summons, he expressed pleasure at being able to take care of "nigger lovers"; and that the charge of "menacing" was completely false. The State having moved to remand, Judge Frankel granted the motion without an evidentiary hearing. The order is appealable under the exception to the general prohibition of review of remand orders, 28 U.S.C. § 1447(d), established by § 901 of the Civil Rights Act of 1964, 78 Stat. 241.

The century-old statute, 28 U.S.C. § 1443(1), authorizes removal of a civil action or criminal prosecution commenced in a state court:

"(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof * *."

Davis does not assert that the New York courts will deny him justice even in a general sense, let alone in the special one required under the removal provision by the line of cases beginning with Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880) and Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880), and ending with Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633 (1906), namely, that some provision of the constitution or statutes of the State would prevent his enforcing the specified federal rights in its courts. His contention is rather that the removal petition sufficiently shows a situation where the very prosecution of Stiles' charge in the New York courts would constitute a denial of "a right under any law providing for the equal civil rights of citizens of the United States," within the narrow additional area recognized by Georgia v. Rachel, supra, to be embraced by the removal statute.

The state prosecution in Rachel was of persons seeking to obtain service in restaurants, under a Georgia statute, Ga. Code Ann. § 26-3005 (1965 Cum.Supp.), making it a misdemeanor "for any person, who is on the premises of another, to refuse and fail to leave said premises when requested to do so by the owner or any person in charge of said premises or the agent or employee of such owner or any person in charge." Section 201(a) of the later enacted Civil Rights Act of 1964, 42 U.S.C. § 2000a(a), guaranteed "the full and equal enjoyment" of places of public accommodation "without discrimination or segregation on the ground of race, color, religion, or national origin," and § 203, 42 U.S.C. § 2000a-2, provided that no person shall "(c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege" secured by § 201. In Hamm v. City of Rock Hill, 379 U.S. 306, 311, 85 S.Ct. 384, 389, 13 L.Ed.2d 300 (1964), the Supreme Court had held that § 203 "prohibits prosecution of any person for seeking service in a covered establishment, because of his race or color"; the Civil Rights Act, as the Court stated, "substitutes a right for a crime." 379 U.S. at 314, 85 S.Ct. at 390. It followed that if Rachel and other defendants could establish they had been ordered to leave the restaurants solely for racial reasons, prosecution in the state courts would deny "a right under any law providing for the equal civil rights of citizens of the United States" and the condition of 28 U.S.C. § 1443(1) would thus be satisfied.

Davis seeks to bring his case within the Rachel doctrine on the following basis: Section 804 of the Fair Housing Act of 1968, 42 U.S.C. § 3604, which, like the Civil Rights Act of 1964, is indubitably a "law providing for the equal civil rights of citizens of the United States," prohibits discrimination in the sale or rental of dwellings covered by its terms "because of race, color, religion, or national origin." Section 817, 42 U.S.C. § 3617, makes it unlawful "to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed" any right granted by § 804. The removal petition alleges that, by initiating the prosecution, Stiles was doing just that. Hence, if Davis can substantiate that allegation at an evidentiary hearing, maintenance of the prosecution in the courts of New York would deny a right guaranteed by § 817.

While the argument has evident force, there is the distinction that in Rachel the conduct charged as a criminal offense, to wit, not leaving the restaurants on request, was alleged by the defendants to be the very activity in which the Civil Rights Act gave them a right to engage, namely, enjoyment of equal access to places of public accommodation. A true parallel under the Fair Housing Act would be, for example, if Davis were being prosecuted under a statute forbidding tenancy by persons not approved by a majority of the dwellers in an apartment house and the removal petition alleged that the basis for disapproval was Davis' being a party to a mixed marriage. In such an instance, on the facts claimed by the defendant, § 804 of the Fair Housing Act would have substituted a federal right to occupy the apartment for what the state had branded as a crime. In contrast the Fair Housing Act confers no right to menace or assault anyone, including persons who have allegedly demonstrated hostility to its purposes.

The significance of the distinction is established by the companion case of City of Greenwood v. Peacock, supra. Among the prosecutions with which that opinion dealt was one of members of a group engaged in a drive to encourage Negro voter registration. Section 131(c) of the Civil Rights Act of 1957, 42 U.S.C. § 1971(b), prohibited, in language very similar to § 817 of the Fair Housing Act of 1968, any intimidation of or attempt to intimidate any person for the purpose of interfering with his right to vote, and § 11(b) of the Voting Rights Act of 1965, 42 U.S.C. § 1973i (b), enacted after the prosecutions were begun but while the remand proceedings were pending, prohibited such acts with respect to any person urging or aiding another to vote or attempt to vote. The Court held the prosecutions were not removable even if petitioners could substantiate their allegations that they had done none of the acts charged and that the prosecutions were designed for intimidation. It distinguished Rachel on the basis that "the Civil Rights Act of 1964 as construed in Hamm thus specifically and uniquely conferred upon the defendants an absolute right to `violate' the explicit terms of the state criminal trespass law with impunity under the conditions alleged in the Rachel removal petition, and any attempt by the State to make them answer in a court for this conceded `violation' would directly deny their federal right `in the courts of the State.'" In contrast, "no federal law confers an absolute right on private citizens — on civil rights advocates, on Negroes, or on anybody else —" to violate the generally applicable state criminal laws involved in Peacock,¹ and "no federal law confers immunity from state prosecution on such charges," 384 U.S. at 826-827, 86 S.Ct. at 1811-1812² — even when, as was alleged there, the state prosecutions were intended to intimidate persons exercising their rights to vote or to encourage voting.³ The line is thus between prosecutions in which the conduct necessary to constitute the state offense is specifically...