Whatley v. City of Vidalia, 24171.

• Citation: 399 F.2d 521
• Decision Date: 11 July 1968
• Docket Number: No. 24171.,24171.
• Parties: David WHATLEY et al., Appellants, v. CITY OF VIDALIA, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

399 F.2d 521 (1968)

David WHATLEY et al., Appellants, v. CITY OF VIDALIA, Appellee.

No. 24171.

United States Court of Appeals Fifth Circuit.

July 11, 1968.

Richard B. Sobol, New Orleans, La., Alvin J. Bronstein, Jackson, Miss., for appellants.

Patrick A. McDonough, III, Vidalia, La., for appellee.

Before TUTTLE, THORNBERRY and GODBOLD, Circuit Judges.

TUTTLE, Circuit Judge:

Once again we are called upon to determine whether a state prosecution of Negro citizens allegedly engaged in a federally granted and protected right of encouraging others to register and vote is removable to the Federal District Court under the principles announced by the Supreme Court in State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), and as further elaborated in the City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L. Ed.2d 944.

The permissible scope of removal in light of Rachel and Peacock is concededly narrow. However, we have, in two cases this year, concluded that the right of removal of a state criminal prosecution has not been restricted by the Supreme Court to the small group of cases in which a state prosecution for trespass seeks to forbid the enjoyment of the right to equal accommodations guaranteed under Title II of the Civil Rights Act of 1964. See Wyche v. State of Louisiana, 5 Cir., 394 F.2d 927, and Achtenberg et al. v. State of Mississippi et al., 5 Cir., 393 F.2d 468. In Wyche the charge was for aggravated burglary, whereas the removal petition alleged that the charge was a spurious one made by the state to punish the movant for entering a protected place of public accommodation. In Achtenberg the charge was "vagrancy," whereas the removal petition alleged that the conduct which was the basis of the charge was an effort to use a public library and a covered eating facility.

Here we have seventeen movants,¹ all of whom alleged in their removal petitions that they were "arrested by police officials of the city of Vidalia while peacefully engaged in activity that was designed to encourage voter registration and that is protected from prosecution by the Civil Rights Act of 1965, 42 U.S. C. § 1973i(b)." The arrests took place on September 7, 1966. The motions for removal were filed on September 12, 1966. The district court entered an order remanding the cases to the state court, citing as authority the Peacock decision by the United States Supreme Court. Because of factual differences in the asserted grounds of removal here from those in Peacock, a panel of this court granted appellant's motion for a stay of the order of remand pending appeal.

The principal factual difference here is that the removal petition, after alleging that the arrests were for acts done to encourage voter registration activity, expressly invoked Section 11(b) of the Voting Rights Act of 1965, 42 U.S.C.A. § 1973i(b), which statute had not been enacted and was, therefore, of course, not invoked by the movants in Peacock. For the first time in 1965, Congress expressly prohibited any person, whether acting under color of law or otherwise, from intimidating, threatening or coercing any person "for urging or aiding any person to vote or attempt to vote."²

When the removal petitions were filed in the Peacock case, it was alleged that the persons arrested by the city of Greenwood were members of a civil rights group engaged in a drive to encourage Negro voter registration in Leflore County, Mississippi, and that "they were denied or could not enforce in the courts of the state rights under laws providing for the equal civil rights of citizens of the United States," 384 U.S. 808, 811, 86 S.Ct. 1800, 1803. At that time there was a statute which prohibited only the intimidating, threatening or coercing of any person "for the purpose of interfering with the right of such other person to vote or to vote as he may choose," (emphasis added), but not from intimidating, threatening or coercing any person for urging or aiding any person to vote or attempt to vote.

The Supreme Court having, in the Rachel case, determined that Section 1443(1) requires a showing "both that the right upon which they rely is a `right under any law providing for * * equal civil rights' and that they are `denied or cannot enforce' that right in the courts of the state," 384 U.S. 780, 788, 86 S.Ct. 1783, 1788, then proceeded to state the issue presented in the Peacock case:

"The fundamental claim in this case, then, is that a case for removal is made under Section 1443(1) upon a petition alleging: (1) that the defendants were arrested by state officers and charged with various offenses under state law because they were Negroes or because they were engaged in helping Negroes to assert their rights under federal equal civil rights laws, and that they are completely innocent of the charge against them * * * The basic difference between this case and Rachel is thus immediately apparent. In Rachel the defendants relied on the specific provisions of a preemptive federal civil rights law — §§ 201(a) and 203(c) of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a(a) and 2000a-2(c) (1964 ed.) as construed in Hamm v. City of Rock Hill 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300, supra — that, under the conditions alleged, gave them: (1) the federal statutory right to remain on the property of a restaurant proprietor after being ordered to leave, despite a state law making it a criminal offense not to leave, and (2) the further federal statutory right that no state should even attempt to prosecute them for their conduct. 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.\'"

Then, in a footnote, (Fn. 25), the Court said:

"Section 203(c) of the Civil Rights Act of 1964, 42 U.S.C. § 2000(a)-2(c) (1964 ed.), the provision involved in Hamm v. City of Rock Hill, 379 U.S. 306, 310, 85 S.Ct. 384, 388, 13 L.Ed.2d 300, and State of Georgia v. Rachel, 384 U.S. at 793-794, 804-805, 86 S.Ct. 1783 at 1790-1791, 1796-1797, explicitly provides that no person shall `punish or attempt to punish any person for exercising or attempting to exercise any right or privilege\' secured by the Public Accommodations Section of the Act. None of the federal statutes invoked by the defendants in the present case contains any such provision. See note 3 and note 7, supra." (Emphasis added.)

Footnote 3 in Greenwood, 384 U.S. 808, 811, 86 S.Ct. 1800, 1803, is here quoted in full:

"The removal petitions specifically invoked rights to freedom of speech, petition, and assembly under the First and Fourteenth Amendments to the Constitution, as well as additional rights under the Equal Protection, Due Process, and Privileges and Immunities Clauses of the Fourteenth Amendment. 42 U.S.C. § 1971(a) (1) (1964 ed.), which guarantees the right to vote, free from racial discrimination, provides:

`All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.\' 42 U.S.C. § 1971(b) (1964 ed.) provides:

`No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose * * *.\'

See also § 11(b) of the Voting Rights Act of 1965, 79 Stat. 443, 42 U.S.C. § 1973i(b) (1964 ed., Supp. I)." (Emphasis added.)

The last comment in the footnote quoted above, "See also Section 11(b) of the Voting Rights Act of 1965," refers to the new provision of the statute enacted in 1965 prohibiting any person from intimidating, threatening, coercing, or attempting to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote. The section cited above as Section 11(b) of the Voting Rights Act of 1965 is Section 1973i(b) of Title 42 U.S.C.

In the Peacock case the Supreme Court determined that the above quoted provision of 42 U.S.C.A. Section 1971(b) (footnote 3 of Peacock) meets the first requirement of Rachel — that is that the right upon which the movants rely is a "right under a law providing for equal civil rights," for in Peacock the Court said:

"A precise definition of the limitations of the phrase `any law providing for * * * equal civil rights\' in Section 1443(1) is not a matter that we need pursue to a conclusion, however, because we may proceed here on the premise that at least the two federal statutes specifically referred to in the removal petitions, 42 U.S.C. § 1971, and 42 U.S.C. § 1981, do qualify under the statutory definition."³

Thus, we come to the question whether the movants meet the second requirement, which is, that they alleged adequately that they are "denied or cannot enforce" their equal federal right in the state court of Louisiana. The Court found in Rachel that they had met this requirement, for, as the Court said:

"In the narrow circumstances of this case, any proceedings in the courts of the State will constitute a denial of the rights conferred by the Civil Rights Act of 1964, as construed in Hamm v. City of Rock Hill, if the allegations of the removal petition are true. The removal petition alleges, in effect, that the defendants

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