Perkins v. State of Mississippi, No. 30410.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
PartiesReverend John M. PERKINS et al., Petitioners-Appellants, v. STATE OF MISSISSIPPI, Respondent-Appellee.
Docket NumberNo. 30410.
Decision Date20 December 1972

470 F.2d 1371 (1972)

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

No. 30410.

United States Court of Appeals, Fifth Circuit.

December 20, 1972.


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

A. F. Summer, Atty. Gen., Ed Davis Noble Jr., Sp. Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM, and RONEY, Circuit Judges.

PER CURIAM:

Upon rehearing en banc, including briefs and oral argument, the judgment of the District Court is affirmed.1

BELL, Circuit Judge, with whom GEWIN, Circuit Judge, joins, specially concurring:

I agree that these criminal cases could not be removed under 28 U.S.C.A. § 1443(1), as construed in Greenwood v. Peacock, 1966, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944.

The removal statute is applicable to remove civil or criminal prosecutions from a state court where a person ". . . 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, . . .". The key, as stated by the Supreme Court in Greenwood v. Peacock, is whether the law under which the right arises which is being denied or which cannot be enforced is one which provides for equal civil rights. The court stated, as an example, that the broad constitutional guaranties of the First Amendment are not embraced in the phrase "equal civil rights", nor were rights provided under Title 42, §§ 1971 or 1981. 384 U.S. at 825, 86 S.Ct. 1800. See also Georgia v. Rachel, 1966, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, where the court concluded that the phrase "equal civil rights" meant any law providing for specific civil rights stated in terms of racial equality, and excluded First Amendment and due process claims from the definition. 384 U.S. at 792, 86 S.Ct. 1783.

The subsequently enacted criminal statute here in question, 82 Stat. 73, codified as 18 U.S.C.A. § 245, is not a law providing for equal civil rights within the confines of § 1443(1) and Greenwood v. Peacock. Indeed, the statute makes this clear by its express terms. See 18 U.S.C.A. § 245(a).

It should be noted, however, that the Supreme Court was at pains in Greenwood v. Peacock to catalogue the other remedies available in the federal courts to redress wrongs which may be claimed by petitioners to have been suffered at the hands of state officials. This appeal is concerned only with the propriety of removal.

JOHN R. BROWN, Chief Judge, with whom WISDOM, GOLDBERG and AINSWORTH, Circuit Judges, join dissenting:

I

For the reasons set forth in my extended dissent to the panel's opinion

470 F.2d 1372
Perkins v. Mississippi, 5 Cir., 1972, 455 F.2d 7, 11 to 61, I continue steadfastly in the belief that denial of a right of removal, 28 U.S.C.A. § 1443(1), cannot be justified

II

I am of the view that this serious question—never free from doubt as one attempts to match Rachel against Peacock—deserves an articulated discussion of the controlling principles. The panel opinion never discusses the appropriate standard—probable cause versus initiation and maintenance of the prosecution for the purpose of harassing or subjecting persons to state criminal sanctions for exercising rights and benefits guaranteed by the constitution or federal laws and stated in terms of race.

The number of post-Peacock cases we have had,1 the difficulty at times of reconciling each of them, and the importance of the federal court being open to prevent, at the outset, the use of the State's awesome machinery as a means of discouraging the assertion of federally guaranteed rights (in terms of race), calls on this Court to expound fully what standards are to guide District Courts.

The panel's opinion, now embraced by the full Court, approaches it wholly as one of fact-findings under F.R.Civ.P. 52(a) without even so much as a mention of the standard to...

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1 practice notes
  • Johnson v. State of Mississippi, No. 73-1476.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Marzo 1974
    ...immediate, indignant congressional response to spectacularly violent outrages against Negroes." Perkins v. Mississippi, 5 Cir., 1972, 470 F.2d 1371, 1373 (Brown, C. J., dissenting) The foreboding result which excludes § 245 from the ambit of removal establishes a precedent which will preven......
1 cases
  • Johnson v. State of Mississippi, No. 73-1476.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Marzo 1974
    ...immediate, indignant congressional response to spectacularly violent outrages against Negroes." Perkins v. Mississippi, 5 Cir., 1972, 470 F.2d 1371, 1373 (Brown, C. J., dissenting) The foreboding result which excludes § 245 from the ambit of removal establishes a precedent which will preven......

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