State of South Carolina v. Moore

• Decision Date: 08 September 1971
• Docket Number: No. 14042.,14042.
• Citation: 447 F.2d 1067
• Parties: The STATE OF SOUTH CAROLINA, Appellee, v. James Edward MOORE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

447 F.2d 1067 (1971)

The STATE OF SOUTH CAROLINA, Appellee, v. James Edward MOORE, Appellant.

No. 14042.

United States Court of Appeals, Fourth Circuit.

Argued June 3, 1970.

Decided September 8, 1971.

Paul Bender, Washington, D. C. (Court-assigned counsel) Ralph S. Spritzer and James A. Strazzella, Philadelphia, Pa. (Court-assigned counsel) on the brief, for appellant.

Emmet H. Clair, Asst. Atty. Gen. of South Carolina (Daniel R. McLeod, Atty. Gen. of South Carolina, and C. Pinckney Roberts, Asst. Atty. Gen. of South Carolina, and B. O. Thomason, Jr., Sol., Greenville, S. C., Thirteenth Circuit, on the brief), for appellee.

Before HAYNSWORTH, Chief Judge, BUTZNER, Circuit Judge, and LEWIS, District Judge.

HAYNSWORTH, Chief Judge:

This appeal presents a procedural tangle arising out of the Civil Rights Removal statute.¹

Late in the eleventh hour, Moore undertook the removal of a murder prosecution he was facing in a state court. In the removal petition he admitted his commission of the homicide, but claimed he had employed only reasonable force in meeting an assault upon him by a white man resentful of Moore's presence in a place of public accommodation. Without a hearing, the District Judge remanded the case to the state court, but only after Moore's trial had proceeded in the state court to a conviction of manslaughter and the imposition upon him of a sentence of twelve years suspended upon the service of three years with five years probation.

We conclude that the homicide prosecution was not removable, but that the proceedings in the state court in the interval between the filing and service of the removal petition and the remand order were void. Accordingly, we will direct the issuance of a writ of habeas corpus requiring Moore's release from custody subject to the state's right to retry him.

Moore, a black man, was indicted on a charge of murder during the October 1968 term of the Court of General Sessions of Greenville County, South Carolina. Released on bail, he obtained an attorney to represent him. He discharged his lawyer in May 1969 and employed another. The second lawyer sought and obtained a continuance of the case until July in order to prepare himself. On the eve of trial in July, Moore discharged the second lawyer, and the trial was again postponed until August 25, 1969.

On the morning of August 25, 1969, the third lawyer whom Moore had retained filed a removal petition in the District Court, filed a copy in the office of the clerk of the state court and served a copy on the state prosecutor. Confronted with that situation when the state court convened at 10:00 A.M., the judge, nevertheless, ordered the trial to proceed. The next day, Moore filed in the District Court a petition for a writ of habeas corpus and an order staying further proceedings in the state court, but this petition did not receive the immediate attention of a district judge, and the trial in the state court continued to its conclusion. As noted above, he was convicted of manslaughter and received an active sentence of three years imprisonment with subsequent probation.

Later the District Judge considered the removal petition, concluded it was facially insufficient and remanded the case to the state court. The order denied all other relief sought.

I

In the removal petition, Moore alleged that he was engaged in the peaceful exercise of his rights under Title 2 of the Civil Rights Act of 1964, seeking service in the Waffle House, a place of public accommodation in Greenville, South Carolina, when a white person "by violence, threat and intimidation attempted to and did interfere and oppress the petitioner for the purpose of depriving the petitioner of his equal rights. As a result of the petitioner's reasonable effort to preserve his own life and enjoy rights protected by Title 2 of the Civil Rights Act of 1964, the person who attempted to interfere therewith lost his life. * * *"

Moore thus makes no claim of noninvolvement in violence. In the removal petition, he admitted his commission of the homicide for which he was indicted, but sought to justify it, somewhat equivocally, as having been done in self-defense and in aid of his exercise of his protected right of equal access to a place of public accommodation. To the extent that the petition may be construed as an attempt to justify the homicide by a claimed right of forceful self-help in seeking to exercise rights guaranteed by the Civil Rights Act of 1964, it is obviously deficient, for the Act confers no such right of self-help.² In this appeal, Moore's counsel concedes as much, but construes that part of the petition as expressing only the claim that the right of self-defense has a federal origin in the Civil Rights Act of 1964. For present purposes, we may accept that construction of the petition.

It is important at the outset, however, to emphasize that there was admitted violence. Moore's acknowledgment of his commission of the homicide distinguishes this case from every other criminal prosecution successfully removed from a state to a federal court.

Prerequisite to a removal of a pending criminal prosecution under 28 U.S.C.A. § 1443(1)³ is a showing that the defendant is being denied rights guaranteed under a federal law "providing for specific civil rights stated in terms of racial equality."⁴ The defendant must show that there is a basis for a firm prediction that such rights will be denied in the state court or that the pendency of the prosecution without more, is a deprivation of such a federally protected right. It is not enough to show that he has a defense with more or less hope of its successful assertion in an impartial tribunal; he must show that his federally secured right of racial equality is denied by the pendency of the proceeding or "by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court."⁵

Moore's petition does not meet those requisites.

The Georgia v. Rachel, City of Greenwood v. Peacock dialogue, of course, governs our decision. It, too, illuminates our path. Federally protected rights of racial equality are not to be inhibited by state prosecutions, however characterized, for conduct which clearly enjoys the federal protection. One who peaceably seeks to enjoy his federally guaranteed right of free access to a place of public accommodations is not subject to state prosecution for trespass, for incitation to riot, a breach of the peace or any other charge that alleges no more than a peaceful exercise of a federally guaranteed right.⁶ Rachel gives such persons a clear right of removal and an immunity from state prosecution on any charge which might be sustained by proof of conduct within the federal protection.

It is plain from Peacock, however, that the right of removal under § 1443(1) is limited to cases in which the charged conduct clearly enjoys federal protection. The distinction was foreshadowed in Hamm⁷ in which the emphasis was all upon the peacefulness of the defendants' conduct and the federal protections it enjoyed. But just as there is no federal law conferring upon anyone the right "to obstruct a public street, to contribute to the delinquency of a minor, to drive an automobile without a license or to bite a policeman,"⁸ so there is no federal law giving any private citizen the right to take another's life. If the civil rights worker who allegedly bit the policeman could be prosecuted in a state court for assault, as the Supreme Court held, surely he could be prosecuted for homicide had he slain the policeman.

It has been the uniform holding or assumption of all of the cases in the lower courts that the Civil Rights Acts extend their protections only to peaceful conduct. Violence, whether justifiable or not under state law, is beyond their reach. In several cases in the Fifth Circuit where persons have been charged with unlawful acts of violence, but the defendants claimed they had committed no violence and were being prosecuted solely for peaceful attempts to exercise federally protected rights, removability has been held to turn on a resolution of that issue.⁹ The prosecution is removable, the Court of Appeals for the Fifth Circuit holds, if the defendant is actually being prosecuted solely for peaceful, protected conduct, but not if he has committed some act of violence. Peacock clearly delineated the distinction.

Wyche v. Louisiana, 5 Cir., 394 F.2d 927, presented a situation much like that here. Wyche sought to remove a prosecution for aggravated burglary. An essential element of the offense was an unlawful entry of a truck stop, which Wyche claimed he had entered solely for the purpose of enjoyment of his right of equal access to a place of public accommodation as guaranteed by the Civil Rights Act of 1964.¹⁰ The Court agreed that, under those circumstances, Wyche could not be prosecuted for any offense requiring proof of an unauthorized entry, but it made it plain that the state could proceed against him on a charge of assault which Wyche allegedly committed after entering the truck stop. Again, it is plain that, had Wyche killed the victim of his alleged assault, the Fifth Circuit would have held him subject to state prosecution for the homicide.

The Civil Rights Act of 1964 conferred upon Moore the legal right to be where he was, and the Supremacy Clause assured it even had state law denied it. Concededly now, however, it gave him no right of self-help. If he was met with force or threats of force from the proprietor, employees or fellow patrons, he had substantial legal remedies. South Carolina law provided both civil¹¹ and criminal¹² sanctions for such a violation of Moore's rights. He also had a civil right of action in the federal courts, in which, had he succeeded, he would have been entitled to recover attorneys' fees and costs, as well as damages.¹³

South...