Perkins v. State of Mississippi, No. 30410.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtJOHN R. BROWN, , and COLEMAN and CLARK, Circuit
Citation455 F.2d 7
PartiesReverend John M. PERKINS et al., Petitioners-Appellants, v. STATE OF MISSISSIPPI, Respondent-Appellee.
Docket NumberNo. 30410.
Decision Date02 June 1972

455 F.2d 7 (1972)

Reverend John M. PERKINS et al., Petitioners-Appellants,
v.
STATE OF MISSISSIPPI, Respondent-Appellee.

No. 30410.

United States Court of Appeals, Fifth Circuit.

January 14, 1972.

Rehearing Granted June 2, 1972.


Frank R. Parker, Lawyers' Committee for Civil Rights Under Law, Constance Iona Slaughter, Lawrence D. Ross, Jackson, Miss., for petitioners-appellants.

A. F. Summer, Atty. Gen., G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and COLEMAN and CLARK, Circuit Judges.

Rehearing En Banc Granted June 2, 1972.

COLEMAN, Circuit Judge:

This is a case to which we must apply the provisions of Title I of the Civil Rights Act of 1968, 18 U.S.C. § 245, and

455 F.2d 8
the teachings of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966)

The appellants were charged in state courts with a variety of misdemeanors such as reckless driving, resisting arrest, interfering with an officer, and the like. The offenses allegedly occurred in Rankin County, the arrests were made in that county, and the charges were brought in that county. Previously, on the same day, the appellants had participated in Simpson County in a peaceable march in support of a "boycott" directed against alleged racial discrimination. They were neither arrested nor charged with an offense in that county. They sought to remove their cases to the United States District Court. After an extensive evidentiary hearing the District Court found as a fact that as to the pending state charges the parties had not been denied a right guaranteed by the Constitution of the United States and that there was nothing to indicate that they could not receive a fair and impartial trial in the state courts. These cases were accordingly remanded and this appeal followed. Considering the credibility choices which are left to the trier of the fact, the findings below are supported by the evidence. Therefore, the judgment remanding the cases for trial in the state courts is affirmed.

Very few, if any, of the appellants were residents of either Simpson or Rankin County. Most of them were students at Tougaloo College, near Jackson. Mendenhall, the county seat of Simpson County, is about forty-five miles southeast of Jackson, on U. S. Highway 49. The Mendenhall boycott, with its accompanying marches or demonstrations, had been going on for about a month. The students had been commuting back and forth to lend their assistance.

All of the appellants but three were arrested on U. S. Highway 49 while returning from Mendenhall to Jackson.

The remaining three were arrested several hours later at the Rankin County Jail in Brandon after they had gone there of their own accord at night, after visiting hours, armed with a shotgun, two rifles, and a pistol.

We consider first the case of those arrested on the highway.

Douglas O. Baldwin, called by the appellants as an adverse witness, was the sole arresting officer. Baldwin is a Patrolman with the Mississippi State Highway Patrol. He testified that he was not in Mendenhall on the day of the later arrests. Prior to the arrests he knew nothing of the identity of the parties. Specifically, he stated as follows:

"When I came from supper that night I got behind two vans. One was a Dodge van, and the front van was weaving in and out all over the road and I got in between them. The front van was making about 45 or 50 miles an hour, and a car was passing us, we were in a four lane, we were in the outside lane. And this car passed us on the inside lane and he liked (sic) to have hit the car and I stopped him Huemmer and got him out, and I didn\'t know he wasn\'t the only one in the truck."

The Trial Judge then asked Officer Baldwin how many persons were in the van and Baldwin replied:

"Twenty. When I got him out and got him back in my car I saw two Negro boys in the back of it the van looking out the back window and I didn\'t think nothing (sic) about it then, but one of them got out of the truck and started coming back toward my car and I got out of my car and told him to get back in because I was the only Patrolman there and I didn\'t know what he might do. He went back toward the truck and I looked back again and there were eight or ten or twelve of them out there then, so I started calling for help on the patrol car radio. I didn\'t know what they might try to do."

Baldwin further testified that he had eaten supper that evening and had then resumed his patrolling on Highway 49

455 F.2d 9
North. When asked if he knew that the occupants of the vans were some of the marchers from Mendenhall he replied, "No, Sir, I didn't have any idea. I didn't know that there was but one person in that truck"

The Court then propounded the following question:

"When you arrested these people did you know they were the Mendenhall marchers?
"Answer: No, Sir."

Baldwin further testified that his reason for stopping the van was because it was weaving as if the driver was drunk, that it crossed the center line several times, once almost hitting another automobile. This was a valid arrest for reckless driving, Barnes v. State, 249 Miss. 482, 162 So.2d 865 (1964); Section 8175 Mississippi Code of 1942.

Baldwin further testified that he had received no radio message to stop the van. It was not until all the individuals had gotten out of the van that he recognized he had stopped people associated with the demonstrations in Mendenhall. When these individuals got out of the van they said "one was not going to be arrested unless all of them were".

After the radio call for help, several highway patrol cars came. Those arrested were transported to Brandon, the county seat of Rankin County.

Douglas Bruce Huemmer, the driver of the van, testified that he had never had any encounter with Officer Baldwin prior to the arrest.

There had been eight marches in Mendenhall, all of them peaceful. None had been arrested during the march which preceded the automobile journey which culminated in the arrests.

The second van, accompanying the Huemmer van, was not halted.

The foregoing testimony is without dispute in the record and supports the finding that these individuals were not arrested because of their exercise of First Amendment, or other, Constitutional rights.

It would thus seem clear, beyond doubt, that these individuals were not entitled to remove their state misdemeanor prosecutions to the federal district court.

This leaves for consideration the situation of the three voluntary nocturnal jailhouse visitors who were not arrested on Highway 49 but who got into a fight at the jail and evidently came off with the worst of the encounter.

The occupants of the van which had not been stopped reported the stopping of the other vehicle to their associates. This resulted in the Reverend Brown, Reverend Perkins, and one Buckley going to the Rankin County jail, armed to the teeth. Huemmer testified that he, and these three men, were then beaten and kicked extensively by state and county officers, that his head and face were shaved, and that a white liquid that smelled like moonshine was poured over his head. He testified that he was verbally abused in jail by several officers who were drinking out of paper cups and who appeared to be drunk, but he was soon released on bail.

A deputy sheriff was called as an adverse witness by appellants. He said that on the night in question he was called to the sheriff's office. When he arrived there he observed the original arrestees being booked. He was there when Perkins, Brown, and Buckley arrived. There had been no difficulty prior to their arrival but a scuffle developed, limited to the room they were occupying. The deputy was then ordered by the sheriff to cut Huemmer's and Brown's hair, which he did. He testified that he didn't see any vermin in Huemmer's hair but that it was dirty, greasy, and that its removal revealed a scab over his scalp.

Another witness, Manorris, a student at Tougaloo College, one of the march directors in Mendenhall, was in jail when the Perkins trio came in. He was in another room, and could not observe what went on. He did say, nevertheless, that he saw Sheriff Edwards beating Perkins "until the sheriff's shirt tail came out". He also said he saw deputies strike one

455 F.2d 10
David Nall. He saw no one strike an officer

Nall, another Tougaloo student, testified he was struck in the van after he was ordered out of it at the jail. This was verified by none of the others present. He claimed that Sheriff Edwards used a blackjack on Perkins.

Brown, one of the trio which visited the jail after the alarm had been spread, testified that he is a Minister of the Voice of Calvary Bible Institute in Mendenhall. He came to Mississippi from California at the request of Perkins, and has been a leader in the boycott at Mendenhall from the beginning. He stated that when he, Perkins and Buckley went to the Rankin County jail in a red Volkswagen van, the vehicle contained a shotgun and two .22 rifles behind and over the front seat in plain view. He claimed that the reason for carrying the weapons was because of threats which had been made on his life. He further claimed that he and his companions were beaten at the jail for no provocation whatever. He was kept in jail until the next day, charged with disturbing the peace, carrying a concealed weapon, inciting to riot, and resisting arrest.

Perkins is a Minister in Mendenhall and was a leader of the boycott. He first learned of the arrest of Huemmer and the others from the driver of the second van. He then got in his Volkswagen and picked up Brown and Buckley. The three proceeded to the Brandon jail. Besides the weapons already mentioned Perkins admitted that he carried a pistol in the car, as the result, he said, of threats which had been made against him. Perkins contended that the three were arrested for no reason and were personally beaten...

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  • Simmons v. Sabine River Auth. of Louisiana, No. 2:11–cv–0588.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • October 3, 2011
    ...61 S.Ct. 868, 85 L.Ed. 1214 (1941) (removal is to be construed narrowly and in favor of remand to state court); Perkins v. State of Miss., 455 F.2d 7 (5th Cir.1972) (same). [823 F.Supp.2d 426] Here defendants, as the removing party, bear the burden of demonstrating the proprietary of remova......
  • Barnes v. McQueen, CIVIL ACTION NO. 14-2636 SECTION: "E" (3)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • March 7, 2016
    ...Beck v. State of Ohio, 379 U.S. 89 (1964); Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994)). See also Perkins v. State of Miss., 455 F.2d 7, 39 n.70 (5th Cir. 1972) ("Beyond any doubt State police officers who deprive citizens of Federally protected rights by means of false arrest, ......
  • Simmons v. Sabine River Auth. of Louisiana, DOCKET NO. 2:11-cv-0588
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • October 3, 2011
    ...v. Sheets, 313 U.S. 100 (1941) (removal is to be construed narrowly and in favor of remand to state court); Perkins v. State of Miss., 455 F.2d 7 (5th Cir. 1972) (same). Here defendants, as the removing party, bear the burden of demonstrating the proprietaryPage 6of removal. Gaitor v. Penin......
  • Barnes v. McQueen, CIVIL ACTION NO. 14-2636 SECTION: "E" (3)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • March 7, 2016
    ...Beck v. State of Ohio, 379 U.S. 89 (1964); Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994)). See also Perkins v. State of Miss., 455 F.2d 7, 39 n.70 (5th Cir. 1972) ("Beyond any doubt State police officers who deprive citizens of Federally protected rights by means of false arrest, ......
  • Request a trial to view additional results
20 cases
  • Simmons v. Sabine River Auth. of Louisiana, No. 2:11–cv–0588.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • October 3, 2011
    ...61 S.Ct. 868, 85 L.Ed. 1214 (1941) (removal is to be construed narrowly and in favor of remand to state court); Perkins v. State of Miss., 455 F.2d 7 (5th Cir.1972) (same). [823 F.Supp.2d 426] Here defendants, as the removing party, bear the burden of demonstrating the proprietary of remova......
  • Barnes v. McQueen, CIVIL ACTION NO. 14-2636 SECTION: "E" (3)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • March 7, 2016
    ...Beck v. State of Ohio, 379 U.S. 89 (1964); Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994)). See also Perkins v. State of Miss., 455 F.2d 7, 39 n.70 (5th Cir. 1972) ("Beyond any doubt State police officers who deprive citizens of Federally protected rights by means of false arrest, ......
  • Simmons v. Sabine River Auth. of Louisiana, DOCKET NO. 2:11-cv-0588
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • October 3, 2011
    ...v. Sheets, 313 U.S. 100 (1941) (removal is to be construed narrowly and in favor of remand to state court); Perkins v. State of Miss., 455 F.2d 7 (5th Cir. 1972) (same). Here defendants, as the removing party, bear the burden of demonstrating the proprietaryPage 6of removal. Gaitor v. Penin......
  • Barnes v. McQueen, CIVIL ACTION NO. 14-2636 SECTION: "E" (3)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • March 7, 2016
    ...Beck v. State of Ohio, 379 U.S. 89 (1964); Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994)). See also Perkins v. State of Miss., 455 F.2d 7, 39 n.70 (5th Cir. 1972) ("Beyond any doubt State police officers who deprive citizens of Federally protected rights by means of false arrest, ......
  • Request a trial to view additional results

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