Bruce Baines v. City of Danville, Virginia, Hildreth G. McGhee v. City of Danville, Virginia

II Kunstler, York New M. William propriety of the turn then We City, Kinoy, Ruth L. (Arthur York New orders. remand Va., Muse, Danville, Harvey, Andrew C. charged in the The defendants were City, Lasker, Sam- York E. New Morris City Corporation Dan- of the Court Richmond, Va., Tucker, L. J. Wil- W. uel Virginia, in of an ville, violations Danville, Va., Wood, Harry and I. liams restraining junction temporary or and brief), appellants. for on response al der, which had issued Va., ap- Carter, Danville, for W. John during leged racial violence and excesses pellee. general demonstrations in Danville. Judge, sufficiently HAYNSWORTH, background appears our Chief Before BOREMAN, SOBELOFF, opinion.5 BRYAN and earlier Judges, BELL, Circuit and J. SPENCER par- injunctive proscribed order sitting en banc. rioting and ticipation and in mob violence prohibited conduct. It incitement to such Judge: HAYNSWORTH, Chief deadly carrying conduct such as other obstructing Cir., assembling, Danville, weapons, In 4 Baines v. among traffic, prohibitions, F.2d 579, held, all of such other we 337 remanding 'Things,"Th'at repeated “unlawful” of the words use orders “unlawfully” to conduct were limited 105 criminal cases state court removed appeal ordi- of other statutes or or in violation were not reviewable In mandamus.1 the interval between the nances. entry opinion preparation cases of each of the 105 Removal judgment, however, the Civ the final petitions, of two one effected Rights enacted, pro il Act of joining petitioners of the a number viding in its that 28 Section 901 U.S.C.A. joined one, in the the remainder while 1447(d) be amended authorize re § petitions Except that of the other. one “by view, appeal otherwise,” re designed allegations show contains civiFrights mand orders cases removed Corporation that a trial in the provisions of 28 U.S.C.A. § likely unduly restrictive Danville 1443. of the Because intervention unfair, petitions sub- the two are Rights granted the Civil Act of we conclusionary stantially terms alike. rehearing.2 petition for allege they petitioners were that the be- demonstrating ing prosecuted

I protest cus- streets Danville practices perpetuating racial have no toms and We doubt Section segregation, injunctive order Act of 1964 that the Civil “making applied appeals as should be such unconstitutional criminal” constitutionally protect- pending in this conduct which is were still these which injunction is in violation and that Court on the date of the act.3 ed effective rights. agree petition also Each with the Second Circuit4 And we allegation, paraphrasing 28 contains that Section 901 should be construed petitioners authorizing through are ap- direct review U.S.C.A. § beginning People opinion York v. Galami- 4. of State New 1. II See -Section son, Cir., page 342 F.2d particularly F.2d 583-585. See F.2d at 602. 2. 337 Equality Town of Racial v. 3. See 911; Clinton, Cir., Rachel F.2d Georgia, Cir., F.2d 336. State of congression- Virginia's of a radical alteration of

denied cannot enforce in Congress prohib- courts under laws of the United al intention when providing post-trial cases from ited removal of States being prosecuted for acts state courts. authority done under color of Ill laws. Initially, closely examine the we should statute, The relevant as now codified in 1866,7 the antecedent 28 U.S.C.A. has been described § present 28 U.S.C.A. exquisite obscurity.”6 It “text

reads: of that act declared that all people, except native born sub-

Any following actions ject foreign Indians, powers and prosecutions, criminal commenced citizens. the former conferred a State court be removed slaves to defendant the district court of the * * * right United States for the district and di- same to make and embracing place contracts, sue, parties, vision wherein enforce be to pending: give evidence, inherit, pur- is and chase, sell, lease, hold, convey and (1) Against any person iswho de- personal property, real and and to nied or cannot enforce the courts full and benefit all laws and any such State a under law proceedings security per- for the providing for property, enjoyed by son and as is States, citizens the United or citizens, subject white and shall be persons jurisdiction of all within the punishment, pains, pen- like and thereof; alties, other, any law, and to none (2) any For act under color of au- statute, ordinance, regulation, or thority any from derived law custom, contrary notwith- viding equal rights, for or for refus- standing.8 any ground do act on the anyone Section made it a crime it would be inconsistent such with acting any regu law, under color of law. subject any lation or person custom to deprivation derived from the Civil conferred upon by Act of him 1866. The relevant lan- Section 1.9 guage there obscure, is not so or ob- its Section 3 is the removal section10 and scurity exquisite is not so as that of the following language: is in the present language codification. That enacted, illumined And be it immediate context That further States, Act of district courts of the United districts, respective context of that Act in its within their historical set- ting. Against background, have, exclusively shall of the courts subse- quent cognizance opinions States, authoritative the several Su- preme largely dispositive Court are all crimes and committed offences questions act, presented, they provisions of this are not subject properly being also, concurrently to criticism cir- un- generous. States, Those courts of cuit the United deci- criminal, causes, sions do not reflect the intention of all civil and affect- Thirty-ninth Congress, ing persons who are denied cannot the fact that or necessary consequence do not is enforce the courts or tri- Amsterdam, April 6. Criminal Prosecutions Af 7. 14 Stat. 27. fecting Federally Rights: Guaranteed Civil Now U.S.C.A. 1981-1982. §§ Corpus Federal Removal And Habeas Now 18 U.S.O.A. Trial, Jurisdiction To Abort State Court 1443(1), 113 U.Pa.L.Rev. 10. Now 28 U.S.C.A. § locality persons process or and the of the State rants and other burials whore any they may appointed to execute so were authorized se- any per Moreover, first section of such suitable cured them the them. act; any prosecu- appointed and if suit or commissioner was this son by tion, criminal, or civil or has been authorized call his aid all any posse comitatus, shall commenced in standers or even against any court, person, such land and naval forces of the United against any whatsoever, any compliance with this cause or to assure States military, officer, other civil or or act.13 imprison- any person, for or arrest appears the statute con- thus wrongs ment, trespasses, or or done per- templated literally thousands of or color committed virtue drawn into its enforce- sons would be authority act or derived of them otherwise that some ment establishing Bureau for the act appearance or no of offi- would have little and Refu- the relief of Freedmen authority. cial gees, amendatory and all acts there- refusing any of, to do act By 6 it made a crime to ground incon- it would be wilfully “any officer, or other hinder act, sistent with this defendant charged person execution of with the * * * shall have the to remove such process warrant or proper cause for district lawfully assisting persons him pre- or circuit in court the manner gave or them Section 7 by relating scribed the ‘Act to habe- persons person or authorized execute corpus regulating judicial as and process per- a fee five dollars for each cases,’ ap- proceedings in certain son arrested.14 eighteen three, proved March hun- Rights The Civil Act of 1866 was sixty-three, dred and all acts by Rights 18 of enacted Section the Civil * * * amendatory thereof. making act, of 1870.15 In Act after voting rights provision for en- and their through 10, Then followed Sections forcement, Section 16 redeclared the provisions. are the enforcement which conferred Section 1 the Civil They illuminate the antecedents of the Rights equal- Act of 1866. The now 28 clause which is U.S.C.A. § ity taxes, was as to licenses extended every provided dis Section punishments, other exactions as well as to attorney, marshal, deputy marshal trict pains penalties. Also, discrimina- and United States all commissioner charges immigrants upon tion in state agents Bureau Freedmen’s were prohibited. So far is relevant charged enforcement of act with the here, however, conferred and authorized to arrest and institute Rights 16 of Section the Civil Act of against persons charged proceedings with 1870 are identical conferred If the need should oc violation.11 Rights the Civil Act of Section of 1866. cur, the courts were authorized to in Rights Section 17 of the Civil Act of crease the number of commissioners12 comparable purpose 1870 is for the of arrest and examina Section Rights penal provision persons charged tion of violations Civil Act with provided and Section 18 2. In commis that en- Section Section appoint forcement of Sections 16 and sioners were authorized to “one 17 of persons” act shall be in accordance with the Civil or more suitable to serve war 14. Now 42 § U.S.C.A. 1991. § Now U.S.C.A. May 15. Act 16 Stat. 140. 12. Now 42 § U.S.C.A. 13. Now U.S.C.A.

Rights moved, trial, the next cir- into which was for then re- in the district cuit court to held enacted reference.16 * * * pending. where it is compiling the Revised Statutes of conferring language in substantial- when the sections sub- remained ly revision of the code stantive that form until transferred other changed necessary it places, rephrase to read as it 1948 when it became provisions made sub- Reviser the removal Section 3 of now does. The 1948 Rights They language,17 appear changes all Civil Act stantial of 1866. Statutes, has 641 of Revised noticed Section which the Second Circuit following language: People was in York which of New care State Cir., Galamison, 255. He F.2d any When civil suit or criminal however, any disclaimed, intention to al- prosecution any commenced meaning appropriate ter its it seems court, whatso- cause accept him at his word. In all of the against any ever, iswho de- appearing subject, material now on the nied or cannot enforce agreement general there seems to be State, part tribunals of the or in the meaning pres- 1443 in its Section pros- of the State where such suit or reliably ent form more deter- any right pending, ecution is secured mined if attention focused by any providing him law language appeared Section 3 of citizens the Civil of 1866 Act and Section States, persons United or of all with- 641 of the Statutes of 1875. Revised jurisdiction of the United Revised Statutes 641 of the States, against any officer, significant change 1875 effected one military, person, or other requires It limited attention. our imprisonment arrest or or other stage pre-trial trespasses wrongs, made or com- Earlier, proceedings. state court mitted orof virtue color of permitted of 1866 authority the any pro- derived law removal,18 post- post-judgment and it was viding equal rights aforesaid, Thirty- judgment which the removal refusing any or for to do act on the pri- ground as the ninth envisioned that it would be incon- pur- mary of means of effectuation the law, sistent with such such suit or poses prosecution of Section 3.19 may, upon petition the defendant, of such in filed said State in is final item the formal There one any court at time before the trial legislative history may which be no- hearing or cause, stating final of the Congress provided ticed. When the in by the oath, facts and verified be re- Rights Section 901 of Civil Act of the judgment” party supposed 16. It would “after final either that ratification of the could to the Circuit Fourteenth the case Amendment remove during “appeal” would have §§ 1 Court an filed the validated and 3 of the Rights judgment Civil term in court Act which of 1866. There no the is Thereupon questioning room for their was entered. the Circuit constitution ality required, notwithstanding after their was reenactment Court judgment, try court case de does, 17. To read as it now see Section II novo, originally brought as if there. opinion. of this post-judgment This removal was specifically reconfirmed the next month Rights 18. Section 3 of Civil after Act. enactment of Civil adopted procedure the removal May See the Act of 14 Stat. Corpus Suspension the Habeas Act amending provisions of the removal 1863. Section 5 of the Act of Suspension Corpus Habeas 755, 756-757, specified Stat. made the supplied procedure which for removal petition eases removable a filed the Civil Act of 1866. defendant in the state court “at the time entering appearance court,” his See, in such infra IV. (1) requires appellate us to determine of orders re- This 1964 for review statutory cases, phrase manding “law its removed civil whether viding * rights” judicial con- was drawn to the attention portion general encompasses fourteenth first and struction the “cannot enforce” rights, (2) what In the Senate removal statute. amendment clarity of the expres- removability House,21 appear at the were must there petition filed. opinion Rives-Powers that time the sions Supreme too nar- Court cases readily apparent Civil It is Supreme should Court and that row prin- Rights Act of 1866 directed was expres- Those relax rule. or would cipally “Black and to Codes” appreciation fact of the sions reflect slavery had been disabilities 1443(1) as use- the reason was § firmly interwoven in the law Thirty-ninth Con- and available as the ful rights, the states. Southern Those basic congres- gress may intended have was testify, contract, sue, to prohibition post-conviction re- sional property, protection own judicial penuriousness and not moval may remedies, in- law and its been have congressional inten- the effectuation ferentially conferred abolition majority Congress in If a tion. slavery, depend- for their denial its was thought had mis- they gen- ent, widely but had not been interpreted predecessors of 28 U.S. erally affirmatively. confirmed nothing it, C.A. it did about Thirty-ninth Congress that, did though clearly attention had focused been Rights Act’s removal section subject. Minority expressions of on the limited to those denied or can- “who judicial expectation reconsideration tri- not enforce the courts or congressional equiv- intent is not the locality bunals of the where congressional alent of of its redefinition secured there intention. latter is The absence them the first of this act.” significant. plain, beyond question, then only upon removal would be available IV showing of denial of one The contention that the cases are re- enumerated Section of that act. 1443(1), under 28 movable U.S.C.A. § clause, premised “cannot enforce” preceding As we seen in the sec- (1) allegations they ex- tion, not, cannot in 1870 did reenactment pect Corpora- full enlarge and fair trial in the respect, relevant the class of Danville,22 (2) Court of tion the denial of would war- which engaged protected by in years were conduct the rant removal. This after was two protest in first amendment de- of ratification the amend- fourteenth rights which, part to them Rights nial of in ment, 1870 but the Civil Act of least, protecte'd by removal, were aspect the fourteenth limited case, in this of the (3) amendment, injunction and that the to instances in one of the which they charged having rights which are vi- enumerated in statute was de- the olated is unconstitutional or on its face or could not be the state nied enforced in applied. as These contentions considered due courts. These process not broad were the alternatively, collectively presented, rights as equal protection of the assuredly cannot amendment, be sustained. fourteenth Cong.Rec. Kuchel), only one, they (Senator 20. 110 6344 in made included are (Senator They Humphrey) principal 6551 and 6739-40 the thrust of the briefs. (Senator Dodd). upon alleged based before and events during of the trial of their arrested two Cong.Ree. (Representative 21. 110 allegations fellows. We will treat such Kastenmeir). having peti- been as made of the all paraphrase appears in 22. A tioners. statute petitions. allegations are both Factual keep rights removal more lim- the first amendment. sections the not the ited. before as existed The Statutes susceptible to no other revision are Rights Act of 1870 When the Civil was rights, interpretation de- than that the enacted, the amendment had fourteenth removal, are of would warrant nial which years But, two been ratified earlier. rights specified 1 of in the Section those Congress noted, in we the Rights Act of 1866 Section Civil clearly the of restricted removal to Rights Act of the Civil relatively in instances narrow rights specified difficulty phras- out de- arises The They nied. did not broaden them to in- 641 the Revised Statutes Section rights sweeping- placed clude denial substan- other 1875. The revisers ly guaranteed by rights in that amendment. The declared Sections tive respectively, pointed by omission made more of the Acts April 20,1871.24 act of Section of in 1977 and 1978 Sections remedy separated depriva- act created Statutes, a civil Revised Section any right, tion under color of state law of section. It thus became the removal rights privilege immunity necessary secured describe the some “rights providing Constitution.25 other manner than the words remedy, there is a first reference to the secured them Civil could, course, Act of 1866. In this act.” The revisers contrast to what year rights by had done “the been have referred to secured before the Civil They Act of 1977 and 1978.” chose in- there was reen- sections generic provision “any right actment of language, stead the the removal to in- by any providing rights clude it him within those substantive secured to law granted Section 1 the citizens of of the Act of 1871. appears States, persons choice United all within deliberate. jurisdiction of the United States this, The revisers of 1875 knew for in justifies This choice the con- statutes, Section 1979 of the revised in- clusion that the revisers intended Sec- corporating provisions open-ended tion 641 to be so now carried forward would then later include acts couched to 42 U.S.C.A. reference is to egalitarian terms, ** * deprivation “the se- Rights Act of 1964. This is the view of cured the Constitution and laws.” the Second Circuit.23 Clearly, there, the word “law” not in- suggestion general that refer- tended include the Constitution. by any pro- ence to secured law used the same sense in the related viding includes Section 641.26 That is a natural con- guaranteed by word, the Constitution struction of the and the one general congressional would attribute to the revised statutes a consistent with the expansion purpose radical to work substantive Against gen- change. substantially vision. this we have the There are con- temporaneous eral intention that the uses of the word sense, codification opinion should not work substantive same as in the in Strauder change, Virginia, postwar and v. the fact that the West 100 U.S. Congresses clearly revisers, indicated an L.Ed. intention 664. The 1875 as shown People seholarly 23. of of New York v. Gala 26. Professor Amsterdam in his mison, Cir., 255; sympathy also P.2d see article written with such City Anderson, Cir., of Chester petitioners v. demonstrators as expresses F.2d 823. the same conclusion. Amster dam, supra 6, However, note at 873. he 24. 13. 17 Stat. expand provisions would the removal any right by § 25. Now 42 Ü.S.C.A. 1983. include a denial of secured is what now 42 § U.S.C.A. 1983. Strong by 1979, ered Justice the terms fourteenth amend- Section Mr. thought ques- When the “Constitution” ment. it reached the second Strauder removability, employed tion, however, lat- the Court “laws” and above the mere expressly phrase stated of the “law exclusive of the for- ter word in a sense * * * viding equal rights,” mer. 641, plainly as used “This act Section suppose Nor can we find reason to has to sects. 1977 1978. reference that statute was the revised intended ” * * * 28 there It that was concluded right expand removal cases where the 641, be- by one the denied was secured the cause, “by amendment constitutional the by not the of 1866 Act of 1871 but Acts Statutes, and sect. 1977 of the Revised he Congress The had 1870. made immunity from discrim- entitled to secured the choice. The two (in selection)”.29 jury That rec- ination support removal, earlier acts if would ognition of and 1978 as the Sections denied, while those secured the Act ig- 641 cannot referents of Section be not. 1871 would There no affirma- nored. anywhere tive that evidence the Con- We therefore that conclude gress change this. 1875 intended petitioners claim extent de marginal references to the deriva- fensively pro conduct was 641, complete, tion of Section otherwise tected the first amendment do not refer 1871. The acting aid of fourteenth explanation most reasonable amendment furnishes basis for language appear choice to be if we could read the removal. Even the revisers understood that protection clause fourteenth laws were static Con- phrase provid into the “law amendment gress might in the future enact addition- * * * rights” legislation al similar to the Civil 641,30 used in avail it would these de Acts of 1866 and with an intention nothing fendants in aid of their first rights. expand the removal Their use amendment claim. defense be generic language in Section 641 would and, asserted state court if un take care of that situation. is rea- court, may successful be sonably susceptible to that construction Virginia Supreme considered attributing without to the revisers and, Appeals certiorari, Court intention reverse the deliberate choice the United Court. And States recently had so made. jurisdiction, corpus habeas nothing may ultimately presented We can discover Strauder v. contention Virginia, West where 25 L.Ed. lower federal courts in conflict with this fairness the state court’s resolution construction. answering applica question, In first of factual involved in the whether issues Negroes jury requirements, exclusion of tion constitutional conception require a denial of as well as of those Strauder’s constitutional rights,27 ments, necessarily open consid- will to review. questions, right protected by 27. See the two Sec- statement state denied a which, tion was a at 305. with Section implementation valid of the fourteenth page See 100 U.S. amendment. page See 100 U.S. this extract position 30. That of the Sec the stated there is a reference to “constitutional ond, See Pea Fifth and Ninth Circuits. as to Section amendment” well Greenwood, Cir., 347 F. cock because the statement came 679, 682; People State of New 2d discussion the" conclusion 255, Cir., Galamison, F.2d York v. 2 342 constitutionality 641, of Section itself. 271; Court, 265, Superior 9 Steele v. stating, The Court was a conclusion- Cir., 164 F.2d 781. right ary way, that there was a of re- 641 moval because

765 upon supposition during the contention cated Neither does injunction sentencing, the course of the trial is unconstitutional or the right protected facially applied as warrant removal. would be denied or the facially obviously injunction defendant would find is not himself unable to applied to actual unconstitutional it.32 enforce question, if The constitutional rioters. Supreme cases, These of Court most applica arises, out it come of century, them the nineteenth reviewed course, it would be unconstitu tion. Of removal, state court of refusals or were of if it became the basis a convic tional petition decided for mandamus. peaceful of man whose conduct tion present Until the there have been fur- protection of the first was within the Supreme ther cases in the Court because un This cannot known amendment. be change practice of make among til the cases tried. Who moval ap- effective without court them, petitioners, if of rioters proval acquiescence, coupled with the has been a cannot be known until there statutory prohibition appeals of hearing every factual case. This is of repeal orders remand. With the of inquiry ought sort of not the which provision prohibiting appeals, inso- determining required as an of incident far concerned, cases are removability. removability does not If litigation has become an active field of readily appear in without a factual Supreme and the Court soon be ex- merits, quiry a trial on the tantamount pected to turn its attention to it. Most removal should be allowed.31 consistently lower ap- courts have plied pronounced Supreme rule in the consistently It has held in been Court cases and have held that the denial of re inability must result from a state stat- appear moval must in advance of trial. highest ute or a decision of the court of predi cannot state.33 of removal infra, showing County Congress Equality, of See D. Racial ^type thought 541; F.Supp. nec- Md., the Reconstruction essary 221 Alabama State of removal, pp. N.D.Ala., Robinson, Remov- 766-767. ex Flowers rel. v. ability predicated 293; F.Supp. as- here is factual v. 220 State of Arkansas 626; Howard, E.D.Ark., F.Supp. contro- sertions of which are innocence 218 charges City Birmingham N.D.Ala., Croskey, the Commonwealth’s verted v. guilt cognizable 947; F.Supp. offenses courts Dis Van Newkirk 217 v. Attorney, E.D.N.Y., 61; F.Supp. states. trict 213 E.D.Mich., Hagewood, F. Petition 200 Kentucky Powers, 201 U.S. 32. Com. v. W.D.Ark., Supp. 140; Arkansas, Rand v. 633; 1, 387, 26 50 L.Ed. S.Ct. Williams 20; F.Supp. 191 sylvania, Hill v. Com. of Penn Mississipi, 213, 18 v. State of 170 U.S. 126; F.Supp. W.D.Pa., 183 583, 1012; Murray S.Ct. 42 L.Ed. v. State W.D.La., Murphy, State of Louisiana v. Louisiana, 990, 101, U.S. 16 S.Ct. 163 F.Supp. 782; v. 173 ris, S.D.Tex., of Texas Dor State 87; 41 L.Ed. Smith State of Missis v. 738; F.Supp. 165 State 900, sippi, 592, L. 162 40 U.S. 16 S.Ct. M.D.N.C., Jackson, 135 North Carolina v. F.Supp. Mississippi, 1082; Ed. Gibson v. State 682; Roberts, Bennett W.D. v. 1075; 565, 904, L.Ed. 162 U.S. 16 S.Ct. 40 N.Y., F.Supp. 825; People 31 of State Kentucky, v. Com. of Bush 107 U.S. Lamson, N.D.Cal., of California v. Supp. 813; 12 F. 354; 1 S.Ct. L.Ed. v. 27 Neal State Jersey State of New v. Wein Delaware, 567; 103 U.S. 26 L.Ed. D.N.J., berger, 298; F.2d White v. 38 Virginia Rives, Com. v. Keown, 814; D.Mass., 261 F. State 667; 25 L.Ed. Strauder v. State of West N.D.Cal., Fan, F. California v. Cheu 42 Virginia, 100 L.Ed. 25 Wolffe, 865; of Alabama M.D. State v. Superior 836; Ala., People 33. See Steele v. Court of Cali 18 F. of New of State fornia, Cir., 781; Galamison, Cir., 9 164 F.2d Hull v. York 342 F.2d v. County Court, Cir., (dictum). Jackson Circuit cf. v. State But Cox 820; Maryland Kurek, D.Md., Louisiana, Cir., 750; 138 F.2d v. F.2d Peacock 431; F.Supp. Greenwood, Cir., Anderson State of v. v. F.2d Tennessee, E.D.Tenn., F.Supp. 207; Cir., 679; Georgia, Rachel George Sons, Prince Levitt & Inc. v. 342 F.2d 336. pur- congressional sympathy with the of this a substantial extension It is not congressional that, pose revocation rule, it, but application to hold but post-judgment removal. undisputed state’s if facts are true, allegations accepted case III in Section of this As have seen we pre- Constitution removable if the opinion, the Civil This is the conclu- conviction. clude pre- permitted post-judgment as well as in Circuit two recent sion of the Fifth removal, post-judgment remov- Removability may appear with cases.34 very in Con- al was much the mind of certainty from other circumstances. gress considering when the Civil accepted principle thus far is that remov- ofAct 1866. certainty ability appear some must with message, Johnson In his veto President removal is undertaken and be when very ex- had read the removal upon dependent factual the resolution of interpretation pansively, was but that that also will determine differences Congress was con- disowned when the guilt question upon de- innocence or sidering passage of the veto. bill over the assumptions state courts batable manager, Trumbull,36 the Senator bill’s ignore authority paramount will speech made a in which described the he the Constitution. showing kind of of discrimination which objected requisite for removal.37 He said It is of the Su- was the rule preme pretrial little room for there would be no removal even Court cases leaves discriminatory (1). This is in the face of a stat- effective removal ute, presumed partially true,35 for it should not in ad- but rule’s insistence apply may a vance that the state de- court would be had when clarity right appears in nial of the statute which was conflict with orig- certainty paramount If, law. in the state federal consistent with the courts, discriminatory inal intention of the statute. The applied, judicial striction lack of then comes not from there would be Louisiana, application supra 33; below had been made Cox v. note Ra- Georgia, supra than in the Dis- chel v. Circuit Court rather note 33. parte trict dle, He lost. Ex McCar- Court. Cow, preced- 35. Rachel cited 816, and the 73 U.S. 18 L.Ed. examples footnote are recent Supreme proceeded hear the Court 1443(1), effectiveness of but are case on the merits. help removing of no defendants having then Trumbull succeeded here, for the facts are far from settled. Congress pass depriving an act the Su- Trumbull chairman of Senator was the jurisdiction preme appellate Court Judiciary the Senate and on Committee corpus appealed from the habeas cases principal one architects impeachment Though Circuit Courts. congressional hotly plan, debated proceedings underway, Johnson were then Johnson, reconstruc- with Lincoln and thought promptly vetoed the measure. He seceding Later, tion of the states. after Supreme Court decide such should of all the Reconstruction Acts’ transfer promptly, questions. As constitutional Congress seceding authority in the states veto, and overrode his the Su- military tribunals was threatened preme acquiesced. held the lim- Court’s decision in Ex Parte jurisdiction upon within the itation Milligan, 18 L.Ed. it was Congress. parte McCardle, power Ex representation he who undertook the opinion 506, 19 L.Ed. 264. Its 74 U.S. on the merits McGar(lie's case. the United States never announced. McCardle, newspaperman, had been Anyone knowing what then interested military convicted tion because of articles he had tribunal of sedi- happened to MeCardle consult Arthur published May and No- John Keefe’s columns newspaper. Attorney in his General vember, Bar American 1964 issues Stanberry appear declined Journal, 50 A.B.A.J. Association United because of his announced States references, (There other opinions Acts the Reconstruction essentials). give the Trumbull were unconstitutional. Senator Globe, Cong. Cong. 1st Sess. 1759 He 39th the breach. was met the issue head fill called (April 4,1866). by objecting removal, post-judgment removal, held that in it was then which Woods ground petitioner prejudice the re- could show of was not a denial his local bigamy. right. Negro charged protected And with if a freedman a moval sought protected up- Supreme of enforce one his Court was called When the statute, court, in interpret its the state it was the and de- on in 1879 to him, entirely reading anticipated nied then could he resort the fed- well and was orig- eral court. Removal would follow with of actual consistent the intention the testing proponent. case.38 each chief inal act’s applied rule The the inutility of the statute The relative original is thus a liberalization of the necessary is elimination the result Congress, indulges intention the it removal, right post-judgment not the assumption discriminatory the that a emasculation. applied state statute will be in the state Thirty-ninth Con- The the scheme court.39 The rule’s insistence de that the removability gress consistency. If had right clearly shown, nial of the be how clearly appeared trial, case the before goes ever, though even it to the extent could not and be then. If it did removed requiring assumption there discriminatory the trial was the right will no be denial of the in the ab unfair, judgment it court’s could be re- discriminatory statute, sence aof judgment moved the and retried in after something nature,40 decision or of that A the United States Circuit Court. thoroughly original is consistent with the later, however, short turned to while Rights intention of Civil the Act of 1866 other means achieve immediate sponsors. and of its Senator Trumbull objectives Congress subsequent and a re- plainly opinion right the pealed part most re- effective to remove would not exist unless the im provision moval of the Civil Act pediment had some formal state sanc of 1866. Bradley tion. Mr. Justice in 1874 ex pressed The had Act been enacted same view Texas State Gaines, April p. Fed.Cas. over President Johnson’s veto on No. grand 38. Aside from a was a statute look at the his- was valid when there penetrating explora- torical context and a which it was States with United Congress conflict, tion of the not contest between case would direct party opened White House a which with therefore rise which against Lincoln’s Reconstruction until it Proclamation of discriminated was test- December ed, which then was widened if the discrimination was answering right enactment he a of the Davis held valid would have proc- or, Bill further un- defined to a if Lincoln’s move it Federal court — July 8, dertaking explanation lamation of 1864 in to enforce his in State a disapproval right, of his and which court was denied that then ended he inauguration, court; go with Grant’s Trum- Federal Senator he could into the speech every only really bull’s is the no relevant but it person means follows legislative history evident at the time in the first would have a passed go was first at time instance to the Federal court be- presidential veto was overridden. cause statute-book of there was on the said, discriminating against Senator What Trumbull insofar a law the State pertinent, being him, presumption here was: “ ** * judge necessarily he came act court when [H] e dis- case, against, would, in may criminated obedience because there States, paramount community United custom in law the discrimi- nating against him, leg- State to be invalid.” hold the nor because a may passed islature have a statute dis- predates 39. Unless the statute the consti- criminating against him; that statute provision it. tutional which invalidates validity if it comes in conflict Delaware, Neal v. States; statute of the United been the L.Ed. 567. This presumed and it is not situation which Senator Trumbull had judge of a State court would hold mind. discriminating that a statute of a State text, supra account color footnote See the Thirty-ninth The choice leave matters are. then inevitably its, expansion and the will of must be choice and extension to an turned many policy Bill, considerations of Bill. involve Bureau Freedmen’s present finally President Johnson’s context enacted over Congress. July 16, province 1866, provided in exclusive the on its Sec- veto in of the Southern 1441 that each tion acting definitively, and there Before states, fully in until its restored rela- congressional certainly nowas definitive government and the national tions with minority suggestion in 1964 in the action Congress, fully represented Ne- in of the Rives- reconsideration rights groes defined should have Congress interpretation,43 Powers closely paralleling terms certainly explore depth a num- rights Act. Those of the which, in- of matters as to with its ber agents enforceable Bureau were made greater vestigatory powers, it has far military protection authority and with competence judiciary. in- than the These military and in tribunals. efficiency appraisal of clude an There Recon- followed a succession present scheme under which state those, final- federally struction Acts. The first required courts are enforce ly presidential enacted over veto guaranteed rights, direct review 2, 1867,42 placed March Southern interpretation and enforcement of under states law. Civilian courts martial such in the Court and only if, function could and to the extent with of collateral review that, military commander allowed jurisdiction corpus habeas of the federal August 1867, them. General Sickles adequacy courts where the and fairness suspended op- his Order No. 10 fact-finding processes of the state courts’ of the eration federal courts in the Caro- open When, are also to review. and un- linas as well as that of the courts circumstances, pretrial der what those two states. necessary appropriate for the guaranteed federally tection of years appears nine It thus light should be considered in of al- during en- as which the removal procedures, prob- ternative troublesome intact, they were in 1866 remained acted federalism, capacity lems of of the largely superseded more en- direct discharge respon- federal courts to added military author- forcement means sibilities, and the means which re- opportunity for ity. was little There sponsible action be most effec- might They have become their exercise. tively encouraged. policy These con- are after the final useful available both judges may siderations for which period Reconstruction termination competence, some but in no case in our seen, they 1876, but, as we have adversary system explore can the courts radically elimi- in 1875 restricted them on a reviewable record with the right post-judgment nation competence thoroughness and the moval Congress. circumstances, judici- Under questions ary There subordinate cannot what are restore appropriately for or construe what are much more from the statute struck congressional Congress. jurisdiction approximate If the removal remains expanded courts are im- is to and federal it struck most before intention try laws, cases part offenses portant earlier scheme. cognizable again. originally Congress, course, in the federal act can 1875; govern, courts, is to who is to law did can what can undo what it it showing requirements prosecute, is a convicted under what law for a reduce removability trial, whose to be sentenced and to can defendant before it paragraph of Section ultimate See the 41. 14 Stat. 176-177. HI, supra, for of this. a discussion Stat. showing institution he be committed—these a successful of unfairness in the questions are all to which there should trial court would not be sufficient unless congressional appellate abe answer. it were also shown that too, unfair, court was or that the unfair very practical problems These ness of the trial court was not correct ago posed long Mr. Justice Field’s appeal change able on or avoidable dissenting Virginia opinion in v. Rives. Virginia Rives, of venue. In Com. of answers, There have been no gressional for con- L.Ed. in revocation stance, appears the court to have looked post-judgment substantially removal has vertically, saying at the state courts necessity avoided the If the them. anticipated wrong if the done greatly removal larged, en- is now be court, may expected the state trial questions must be answered. that “the error will be corrected in a Aside from the fundamental incon- superior Moreover, court.” Com. of Ken enlargement proposition trovertible tucky Powers, 387, U.S. S.Ct. congressional by purpose the must be 633, supplies emphatic 50 L.Ed. an Congress, underlying problems de- Powers, Repub swer. who had been the sirability enlargement and the inci- Secretary lican candidate for the office of practical problems ought dental to have Kentucky, charged for had been congressional careful consideration be- with murder of the Democratic candidate any change fore is made. for Governor. He had been thrice tried speak It is thus idle to convicted, and thrice but each time his implementation original, unmodi conviction had been reversed the Ken Thirty-ninth fied intention of the Con tucky Appeals in Court of four to three gress. say Who can to what alternative charged decisions. Powers ma the Congress it would have resorted had chinery of the trial court was in the explicit provision post- not made for Democrats, hands of inflamed judgment known, removal? If it were killing, him because of the and that however, irrelevance, it would be an Democrats, juries had stacked the judges ignore major surgery cannot the systematically excluding Republicans and wrought by Congresses. subsequent A Independents. appeal On each Court court must form take a statute in the Appeals rulings held that certain in which it was left the last the trial court were unreviewable and substantively reshaped it. Other those decisions became law of the wise, arrogate it would itself con binding upon case the trial court at the gressional authority. fourth trial. Powers had also unsuccess fully sought pardon to have introduced a A further to be word needs said given petitioners which had been to him about the contention that the Republican State, Corpo Governor of the cannot obtain fair in a trial ruling City ration that binding had Court for been affirmed was of Danville. They suggest, upon course, any do not as the case un law the judge Virginia’s presiding Supreme fairness in who was Court anyone Appeals, fourth trial. ever able Court showed its If which courage and to constitutional faithfulness .to show unfairness in advance of the principles when, Day, trial, Nevertheless, Harrison v. Powers was. Va. Supreme it S.E.2d struck down Court held that the District Virginia’s massive resistance laws which Court should remanded the case to had illegal been courts, corrupt enacted an effort to avoid de state segregation ap ground of its schools. It would acts would furnish for removal pear requirement showing only that the of a if done in accordance with a statute inability protected rights highest to enforce as construed court. state require in the courts would us to view of such -In absence a statute vertically, remedy subject all of courts, its courts and that even inwas the state 1443(1) ultimately in situations on certiorari review appeared it Supreme which that under no-circum of the United States.44 Court constitutionally could the stances course, Powers, able to make convict the defendants.47 When the state peti- stronger showing than the much prosecution which is decision and the Powers tioners here requires unconstitutional, facially founded is remand of their cases.45 if the facts are so settled that it is clear hard, it is the seem While Powers the state statute cannot be consti ought not to be made kind of claim which tutionally applied con defendants’ require It would the basis of removal. duct, most of the difficulties avoided. try judge court. the state federal Georgia Thus Rachel v. State question court is what the state When the prosecutions trespass con be, future, do it must will occurring nection with sit-ins before the usually incapable certain an- Supreme Court’s decision Hamm v. inquiry kind swer. It is the Hill, of Rock 85 S.Ct. disruptive of federal- would be most 13 L.Ed.2d and in Cox v. State greatest hindrance relations and the prosecute of Louisiana effort to processes. If state court there attempting defendant for do to what the in the trial subse- element of unfairness already had held he could Corpora- quently to be conducted constitutionally doing not be convicted of ought Danville, to be Court of it tion obviously a was fruitless and unconstitu by Virginia’s Supreme Court corrected tional In harassment. such cases the Appeals, readily recognizes its of problem real or not the responsibilities. whether petitioner is able to show that his Again, appears Amsterdam Professor ought will be or cannot enforced in agree denied be this sort of claim to of removal.46 not to be made the basis But fur the state those cases courts. reaching a con no basis for our nish Appeals The of for the Fifth recently removability allowed removals clusion of here. Circuit has 857-59, course, Amsterdam, Now, claims, supra 46. note at of Powers’ 862-63, on the federal constitu- extent founded 911-12. tion, lower be reviewable Louisiana, Cir., v. of Cox corpus. federal courts on habeas Georgia, 750; Rachel v. State of F.2d Cir., City 336; post-judgment when 342 F.2d cf. Peacock v. 45. Prior permissible, Greenwood, Cir., be F.2d moval was removal could of judgment a had after trial if distinguish- clearly 48. Rachel and Cox are discriminatory if there trial court was or in those cas- able of the absence because protected had of been a denial one of any dispute of and the clear es factual rights. judgment the trial court showing foreclosed the Constitution sufficiently was a formal state sanction prosecution in the state a successful any Exhaustion discrimination. opinions in those cases elide court. The appeal prerequi- direct not a was enforce” facet of the “cannot other- procedure site to removal. When that problem, sufficiency a however: unavailable, however, when we showing pretrial court will upon in called advance of trial consider right. clearly enforce the not established court, trial a claim of unfairness Delaware, See Neal v. State look, it is not unreasonable as month 26 L.Ed. One before Powers, Supreme in Rives and Court did instance, Rachel, for Court State, system. If the whole state court Georgia had held Bolton v. clearly in the state trial unfairness appeared, court sen- Ga. 140 S.E.2d ought it not removal warrant imposed participants in “sit- tences readily if a motion for a avoidable recognized ins” must vacated. change appeal. of venue or correctable authority paramount of Hamm a clar- If defendant is able to make with mil. Rock ity certainty pretrial showing Cox, situation, court, In that since a state he unfairness difficulty immunity prosecution no should encounter in estab- constitutional may lishing clearly apparent, been it that unfairness have after trial. V federal statutes were entitled to remove federal case courts. So removal The contention that defending one a title derived from such provisions had under the a customs or officer under the revenue 1443(2) detain C.A. need us now statutory language act of 1833. ex- long. comparable In situations it has plicitly him. reached consistently rejected every been case in which it has been advanced.49 against background It was this history Relatively early this Act of 1866 was en- country, giving authority” statutes were enacted acted. its “color of clause any pro- federal officials the to remove authorized the removal proceedings ceeding against “any officer, the federal courts state in- or military, person, any stituted as result their official or acts. ar- other provid- imprisonment, In 1815 trespasses, a statute50 was enacted rest or or prosecu- wrongs for removal of suits and done or or committed virtue “against any collector, officer, authority tions naval color derived from surveyor, inspector, any officer, establishing other or act the act a Bureau military, Refugees, civil or other the relief Freedmen and aiding assisting, agreeable amendatory thereof, all acts act, visions of this or under colour there- Its reference to the Freedmen’s * * * of, any thing for, appropriate, done Bureau Act was we act, noticed, agents virtue of this or under colour there- of the Freed- act, and, eight- charged of.” This awas customs Bureau men’s with the years later, duty een South Carolina’s re- of enforcement the Civil provoked language was, sistance to the however, tariff acts an- There Act. comparable other.51 It authorized removal of to that of the Revenue * * * prosecution giving “suit or .occu- any States, pants officer of or the United other of “abandoned” or confiscated person, any help for or on account of act done lands to self to defend who resorted possessions. under Clearly, the revenue laws of the United their of “color States, thereof, authority” provisions Rights or under colour or for of the Civil any right, authority, on account of or Act of 1866 to were limited officials title, up officer, engaged set claimed such in its enforcement and to those persons or other law of other assisted them. This who only apparent the United States There not from the omission language were other revenue acts with removal in aid earlier statutes provisions, though they nothing grants claiming add to under official those pattern but, emphatically, established the acts of more estates in the charged language 1815 and 1833. Federal officials in concurrence with violations of state statutes moval section and the enforcement sec- exercise of their official duties under tions. appropriate harassing Though always precisely to consider ef- 49. not pendency prosecution ground, feet of the same Greenwood, Cir., see Peacock v. upon protect- 679; the defendants’ exercise Board 347 F.24 though here, may rights, again, City-Wide ed suppose one For Educ. v. Comm. prosecution might Cir., Integration Schools, 342 F.2d readily by 284; People been terminated more a motion of New York State v. Galamison, 255; City to Cir., dismiss in the court than state 342 F.2d Gertge, N.D.Miss., uncharted route of removal. Considera- F. Clarksdale v. pendency 213; Supp. Howard, tion of effect Arkansas prosecution assistance, E.D.Ark., F.Supp. can be of no how- ever, prob- on the other branch of the 8, Feb. § Act of ch. 3 Stat.

lem when facts are unsettled 195, 198. removability cannot be determined until they are resolved. Act March Ch. Stat. (1) 1442(a) under Section As we have observed earlier Sec- officers dubious, least, highly say III, provisions to the enforcement tion reasonably Rights have been Civil authorized could omis- appoint the 1948 num- deleted. While revisers’ the commissioners to subject changes to crit- persons” are to assist those sions and ber of “suitable change officers, persons” icism,54 stated that and the “suitable were it was intended, meaning none. find to and make and we authorized serve warrants persons” call arrests. The could “suitable bystanders VI assist them and even to military call out the forces of the United they Finally, petitioners claim In the enforcement sections States. clause under the “refusal” remove persons,” unofficial “suitable say They 1443(2). of 28 U.S.C.A. § they were those other civilians whom demon- from their refused to desist consistently command, are authorized ground it was strations on persons.” referred to “other Those tected conduct. persons” “other to make authorized ar- Though Amendment the First United rests name of the States hardly to command one can be said collect of five their fees dollars express has, pro views he whatever obviously for each arrest the same vision of available the statute persons” “other mentioned Section 3. language state officers. refusal suggested ambiguity in the refer- House with added amendment persons” ence Section 3 to “other explanation it was intended with a at the

vanishes look enforcement to en enable state officers who refused sections. discriminatory laws in con force state provisions The enforcement 1 of flict with the Civil Rights Act of 1866 have been car- prosecuted in Act of 1866 who into the ried 1948 Code. Commissioners of their refusal because courts appoint are still authorized to “suitable law, pro to enforce remove persons” to warrants make serve ceedings federal court.55 violating persons charged arrests of We conclude that these cases were initially secured the Civil properly remanded. and those suitable Affirmed. persons are still authorized “call bystanders posse their aid all comi- BELL, tatus” and the land and naval forces and J. SPENCER SOBELOFF Judges (dissenting). the United States or the militia.52 Circuit Every person is still entitled to the extremely The construction narrow dollar fee for ar- five each he gives majority to the which the rests.53 his- comports its neither with language, present enlarged context, torical nor The revisers Code 1442(a) (1) spirit decisions all nor the 28 U.S.C.A. to include with § given engaged new Court which have officers in law enforcement. meaning enlargement to breadth and the constitutional did make That 1443(2) tautological guaranty equal to all our citi- under construc- zens, purposes give nor the intent and tion that we latter section. many protects persons of the 1964 Civil Act.1 so whose status Session, Globe, Cong., Cong. 1st 55. 39th § U.S.C.A. 1989. (March (March 13, 1866), 1413 1366-67 15, 1866). § 53. 42 U.S.C.A. Judiciary language People the House York See of New 54. See Cong. U.S.Code, Report, & Galamison, Cir., Committee F.2d Cong., 2, p. Adm.News, ex vol. 1447(d) plaining al- amendment to § grew of demonstra- would hold removable that the arrests out We these cases sought Negro minority (1) paragraph tions in which the U.S.C.A. they satisfy protest petitioners be a believed to 1443 if the can what rights. It is denial of truth of their alle- their District Court gations: (a) they alleged, en- be taken as are unable to further and must that present purposes, that the ar- in the true force their racial civil (discussed prosecutions I threatened by were state court Part this rests and (b) they opinion), have been denied motivated a desire intimidate rights by Negro community Danville; prior these state officials to entire (discussed III). newspaper editorials at time Part voiced Negroes hope “sup- that the would be “put sweeping pressed” I. and down.” The REMOVAL UNDER SECTION 1443(1): injunction ordinance, complementary INABILITY and OF CIVIL put RIGHTS EN- into effect after first demon- DEMONSTRATORS TO strations, allegedly applied FORCE AT TRIAL were RIGHTS end. petition injunc- The recites petitions been After their removal had tion and the ordinances under which court, filed the federal district two appellants arrested, jailed pros- were and present petitioners were tried in vague, ecuted are indefinite uncon- Corporation Danville, fined, Court of facially applied. stitutional both and as days sentenced to 45 to 90 alleges arrests, It also even participation in the demonstrations. trials, preventing without the were conduct striking affords a of these two trials exercise of First and Fourteenth Amend- illustration of the treatment Negro community. ment expected petitioners Finally, these it claims that the wholesale ar- state courts. Policemen were stationed part conspiracy rests and trials were of a every room; lawyers corner of the power of the white structure Danville leaving entering were searched on policy segregation enforce a of racial courtroom; petitioners were majority and discrimination. The in its day appear quired original court opinion2 recognized that day call, although prosecutor petitioners for roll alleged they seeking trying expectation could have had no to exercise their First and Fourteenth day. more than few of them on one Amendment in order to free them- any organized protests Thus were effec- discrimination; selves from official tively ability among objectives silenced and the defendants’ other were seek- living impaired. Then, to earn a all the desegregation public further schools, cases were courts theatres, transferred various and restaurants Dan- throughout state, far ville, some as employment Negroes by away. miles city, representation and their on boards opinion commissions. The conceded assumption Negroes’ that “[i]f Danville discriminated rights could be vindicated the state employment, them in course, of Four- dramatically courts was- undermined rights teenth Amendment in- would be ruling flatly that barred constitutional * * volved charges against defenses to the dem- the judge The presiding evidence an- taken the onstrators. District city’s bench, Court on prior the the motion nounced from the taking to to remand— conflicting any evidence, question however that he would the permit any which side used not to such defense be raised. violence—leaves no doubt lowing appeal prosecuted from remand been in the State courts orders exercising guaranteed by rights rights their the report points cases. The out that Constitution.” appeal the absence an had been used “by many judges southern Federal to de- City Danville, F.2d Baines v. 337 579 ny judicial (4th 1964). relief for who citizens Cir. By appellants any opportu- raised, pre- stripping tional defenses could not be nity compelling grounds for their sents even more show the record protected conduct than in Peacock. from state inter- removal ference, prohibition shows a clear this analysis of the We turn now to inability rights in to enforce their the underlying principles the removal stat- local tribunals. reasoning ute, majority and opinion. clearly allegations bring peti

These paragraph of tioners within first II. OF PROTECTED SCOPE agree with the U.S.C.A. We § RIGHTS rationale of our in the Fifth brethren Rights (a) The Civil Act of Georgia, 345 Circuit in Rachel v. State argue rights Our brethren (5th granted, Cir.), F.2d 336 cert. protected by “limited” were 39, 15 (Oct. 808, L.Ed.2d 58 86 S.Ct. specified 1 of in section 11, 1965), and Peacock v. of Green Rights Act, as contrasted to those 1965). wood, (5th 347 F.2d 679 Cir. See guaranteed by later enactment Note, 950, 958-60, 971-72 Va.L.Rev. Amendment, assume Fourteenth and In Rachel held removal was nec analysis rights without further essary protect against in order to dis petitioners these were asserted criminatory facially of a constitu misuse However, encompassed l.5 within section deny petitioners tional statute overwhelming the evidence is equal rights specifically their derived step took initial the time from the 1964 Civil Act.3 In envisaged understanding 1866, it a broad per principle applied Peacock this protections afforded facially mit removal where a valid stat Negro. to make addition assertedly deny peti ute was used to give evidence, contracts, sue, and enforce protection speci equal tioners etc., gave persons to all fied the Fourteenth Amendment.4 * * * same full “the [to] correctly points As Fifth Circuit and of all laws benefit out, pre-trial application of state ceedings security suppress statutes to demonstrators’ enjoyed property, white rights distinguishes these cases from ”* citizens, Virginia, Rives v. Com. 100 U.S. provided persons and further that such (1880) L.Ed. 667 Com. Ken- subject punishment, “shall be to like tucky Powers, 26 S.Ct. pains penalties, and to none (1906), L.Ed. 633 al- where other, any law, ordinance, statute, leged inability to enforce could regulation, custom, contrary (See not be until shown the trial itself. notwithstanding.” April 9, Act Part IV fuller discussion 1, 14 Stat. 27. ch. distinction.) Indeed, experience supporters opponents petitioners, Both some whom have already the civil measure understood that federal constitu- been told that hearing July 2, 1964, 88-352, determine must there Pub.L. petitioners are en of these whether Stat. 246. Rachel, since titled to removal 4. To extent these demonstrators Judge findings of fact. made District guar seeking enforcement F.2d at 583. See 337 anteed the Civil majority prosecutions clearly to be frame the issue be abat ** * equal providing Hill, whether “law for ed. v. Rock 379 Hamm of “general rights” encompasses first 85 S.Ct. 13 L.Ed.2d 300 rights.” (Em- present opinion (1965). amendment ma and fourteenth The of the inquiry added.) jority holding phasis accepts so But the is not the of Rachel that only prosecutions protected by whether that issue is for the broad —the phrase encompasses conduct “egali- Rights of the denial Act to the Civil are removable rights” very least, Thus, here. asserted forum. at tarian federal the

775 given language granted Equal Clause, section to the Protection scope,6 closely paralleling possible and it was section 1 of the broadest concerning statute,9 dispel legitimated beyond question doubts the au- to thority Congress grant sweep- Congress’ attempt type protect to such of to of the rights Negro rights granted statute, to that the Four- the and there proposed rights and Amendment was is no reason teenth to think that the con- templated to states the same submitted the section are of less breadth contemplated Equal section 1 the than enacted the Rights leg- Contemporary The of the Civil Act.8 enactment Protection Clause.10 Cong.. Cong.Globe, proponents replied 6. See 43 1st Sess. 39th The bill (remarks granting at 599-60 Trum- Senator the of section was au- bull) ; (remarks Repre- enabling id. at 1151 thorized clause Thayer). response general sentative question by to a Amendment and Thirteenth power McDougall grant citizenship foreigners. Senator Cali- to to fornia, bill, opposing Original Senator Trum- See also standing Under- Bickel. bull, manager Senate, Segregation Decision, of the bill in the and the (1955) (reprinted stated: 69 HarvX.Rev. appendix Bickel, rights, to and I “Politics “These understand to be civil (1965)). every rights belonging Warren Court” fundamental to man, man aas free which under and Hodge, 32-33, Hurd See 334 U.S. as it now Constitution exists we (1948); 92 L.Ed. S.Ct. protect every man have a to Slaughterhouse cases, (16 Wall.) in.” 36, 93, 96-97, (1873) (dis 21 L.Ed. 394 McDougall: Mr. “Allow me to remark senting opinion Field, .T.); Maslow and I think all these should be Robinson, Rights Legislation Civil and conceded. Do I understand that Equality, Quest the 363, for 20 U.Chi.L.Rev. give go bill does not further enjoyment than to 368-69 The Joint Resolu protection to and life submitting tion the Fourteenth Amend pursuit happiness liberty and the passed ment states the Senate courts, protection on June and the House June justice Do un- administered all? I 13, barely two after months enact designed derstand to in- Rights of the 1866 Act. ment Civil question political rights?” volve the Cong.Globe, Cong., 39th 1st Sess. nothing Mr. Trumbull: “The bill has political rights or status do with the persons gave 9. The statute to all parties. exclusively It is confined * * * [to] “the same full rights, their civil as should pro- all and ceedings benefit of laws appertain every Cong. free man.” 43 security persons for Globe, Cong., 39th 1st Sess. at 476. property, enjoyed by as is white The contrast drawn between civil * * citizens, *,” political exchange high- in this Equal while the lights Protection Clause encompassing scope intended : vides sphere. for section 1 in the civil * deny “[N]or shall Cong.Globe, Cong., 7. See 43 39th 1st Sess. any person jurisdiction within its 474-81, 497-507, 522-30, 569-78, 594r- equal protection of the laws.” U.S. (Senate debates); 1115-25, id. at XIV, Const. Amend. 1.§ 1151-62, (House debates). 1262-72 opposition argued that the bill invaded Hodge, supra, 10. In Hurd v. n. previously states, areas reserved to the question was whether section 1 by giving, example, prohibited 1866 Civil enforce- “ * * * authority judicial ment a restrictive covenant. Chief over the Vinson, Court, Justice said with- tribunals law administration of states; denying out dissent: [and] power regulation.” states considering “In whether en- (remarks Id. at 478 of Senator Sauls- forcement of restrictive covenants is bury). governmental the kind of action which particular significance And of to these the first expressed prohibit, cases was the any concern that Act of 1866 was intended to indictment,” scope must be made to the time “after cases reference might purposes amd the Fourteenth removed federal courts. Amendment; Ibid. statute and 776 * ** security of as is en- the Court12 have the

islators11 and joyed by provisions a consistently show- two to- white citizens.”14 Such read the ing gether, Appeals of them to remove under Courts would entitle the equal original deprivation plain the statute. all assumed that the words of of protection rights support remov- would History (b) Subsequent al.13 majority subsequent the traces Negroes sup history provision Here assert the of the removal in rights they attempting port class of to secure view were of narrow of already rights protected, demonstrations we have means of the aborted rights” rights beginning “equal Con shown that from the — libraries, desegregated schools, gress 1. etc. of section took broad view They allege arrests, Thus, re the 1870 it is true that further while specifi pending prosecu- arrests, 315 threatened of did enactment systematic cally only part to the tions were not of the add “constitutional” rights by protected rights, suppression of local class of this re-enact these reference, government community, merely by but were and there ment was also, Congress themselves, deprivation on meant is no indication that grounds protection any way equal scope of of of the 1866 racial to limit the allegations phrase substantiated, coverage. Similarly, law. If use * * * clearly petitioners “rights the Con establish secured “equal were denied the same stitution and laws” the 1871 Civil proceedings Rights Act,16 of the re benefit of all laws and without revision 11. See Edmunds Commenting Amendment were islative debates on the ment were Amendment were Amendment. guaranties Indeed, veal, later same Amendment of quent 1866 in the at 851-852 significant Others Amendment Congress many and the as to the constitutional Civil States.” “it “Both inception Cong.Globe, adopted one merely carrying members of Rights Act references to the Civil (remarks be found in the record of the general supported said ^[1866] Thirty-Ninth Congress. as the Id. 334 adoption sought joint Act, respects (Emphasis added.) passed and in Civil organic law It is the Civil order to see resolution which legislative 42nd congressional policy. to achieve. primary purposes of purpose closely Rights in the first session infra expressions Senator clear that Fourteenth at out Cong., incorporate objectives adoption the Fourteenth applied adoption of statute eliminate doubt 31-33, validity n. Act of 1866 related debates re- Rights bill, Edmunds). principles 1st the land. the 1871 support- 68 S.Ct. Senator and the Amend- which many Sess., both Fre- was Act leg- 12. See 15. Act of 14. Act of v. New chanan F.2d Superior the enforcement of Stat. ring S.Ct. the Act. Fourteenth stitutionality. Stat. enacted, Stat. See has since tution.” 1443(1) clause statute, “Every person who, (Friendly, Rives, “There (2d Cir.1965) (9th Cir.1947); People usage, 679, jurisdiction York v. 16, 62 13: Peacock Hurd v. May April April Court of following Warley, ordinance, applies This become a L.Ed. Amendment, v. J.) egalitarian entire v. Galamison, (5th Hodge, supra 9, is the City Greenwood, 1870, on federal possible 149; 245 U.S. (dictum): 1866, to the California, Cir.1965); ratification State or part regulation, custom, under color ch. provision confer- statutes Com. ch. 31 ch. of the Consti- doubt 114, 60, 78-79, 25 L.Ed. 667 protected grantees insure con- of State n. courts for protection F.2d Territory, 164 F.2d Steele § Virginia § 6; 16, 1, 255, Bu 38 .” §

777 only expand provisions meant future recodification moval include “statutory” rights coverage, not affect the broad could be included ed does among rights meaning given “equal the violation of which civil grounds rights” stat would be for removal.18 But in the 1866 Act. 1866 phrase egalitarian rights, only is not so limited. It is more covered civil ute say provided reasonable to the failure in civil while 1871 a remedy range specific encompassing of 1875 refer recodi- the entire either to guarantees, egalitarian constitutional of 119 or fications section to use the term. later and otherwise. But insofar as the providing equal “statutes for civil rights, equal protection statute secured rights” under- evidences the revisor’s protect the two the same class statutes standing by of the broad taken view rights. Pape, Monroe v. 365 U.S. of See rights by protected 1866 of the (1961).17 167, 81 5 L.Ed.2d 492 S.Ct. impart removal. This does not a new meaning statute; recog- Finally, majority suggests simply it original generic scope pro- phrase pro- nizes the full use of the “law[s] viding rights” equal for vision.20 civil in the 1875 17. Both authority This this removal under section vided nance, regulation 25-32 and infra n. 23 and while the The second section of state official emancipated scope §O.A. 1983 where, citizen of tion and party subjects, Mr. whose former condition bill, person that of second provides Cong., ** sis “[tjhe model for will inequal immunities secured equity, same set added.) any provision deprivation redress.” on the same state of Shellabarger, reporting statutes difficulties faced injured known became within the * This section 1st rights, under color of State criminal section of them slaves, accompanying or causes to be enforcement a civil laws, See the United or other Negro, particularly (1958). Sess.App. a state who, Act now were enacted in accompanying n. *.” shall be liable to the facts that authorized it the ‘civil jurisdiction acting covered much wider penalty any rights, privileges, remedy may appears custom, deprived law, statute, action also proper infra, rights granted Cong. Globe, States Act.) text. act be found in the of this may under color state subjected, facts See a the Constitu- against- any deprived (Report as 42 U.S. out the bill text. And proceeding have been all thereof law, infra laws, law, or other (Empha- response April 9, not through persons ^[1871] it was newly- people ordi- act.’ suit any see nn„ 42 by 19. Rev.Stat. §§ 18. leg in this sense a civil v. United 1031, section 2 of the broad due ficial. 1866 Civil person him to Act could: suppression 1871 Act tion of the restricted nature of rights, the struction of state color “statutes” was stitutions. ordinance, similarly the affected sions under section 3 of the same Act removal to federal rights by Cir.1965) rights subjected to include “constitutions” as well as referred to Use With recodify (1965) (injunction of a preconditions fact, term Act, of the term 89 L.Ed. 1495 secured employ See, under color of respect remedy Greenwood, triangle. inclusive sense. if our brethren’s initial accepted, mass against to criminal Congress. States, regulation Rights Act, a it was therefore natural for “laws” would (suppression process rights) ; 1871 Act was thus the third (a) When deprivations e.g., rights against clearly law). 85 S.Ct. “laws” arrests); 1866 various under Dombrowski “laws” 325 the 1875 revisor came section 1 of the 1866 unusual A denials court, Act, cf., embraces state or custom.” “Laws” a section 347 F.2d 679 person deprived offending in section Section 2 of the prosecution (1945) (denial “any section which established provisions offending suggestion permit see further of a rights law, broad sense e.g., (b) protect 14 L.Ed.2d the Recon- Peacock equal (c) continuing protected 65 S.Ct. removal, assump- statute, Pfister, official Screws secure future intru- under con- (5th civil of- of v. court, in a if III. UNDER be removed REMOVAL SECTION provisions provisions of closely portion clarification of moval whenever a proceeding rights by nance their who the cause present “inutility” of the statute. How- enforce Thus, commenced in the state against “any person” who, acting under color post-judgment at son also where excision contemplated 1443(1): Section (a) ever, 1866 Act makes STATE OFFICIALS Congress TORS’ The any equal civil The Present Statute had been he had discussed in Part trials. a or majority suggests any 3 further authority EQUAL rights of our time careful imposed custom, deprived was to DENIAL of section affinity under color right been denied actions Section both denied such after primarily the debates at removal, anticipated pre-trial opinion plain federal court for trial. reading is CIVIL secured officials have denied trial, petitioner provided between the criminal criminal OP DEMONSTRA- responsible any a PRIOR TO 2 and the 3, particularly 2 of the that removal any prosecution an examines Negroes concerned with I, supra; courts, his of the RIGHTS a over state official another alleged inability right could, law. This could show section 1. law, penalties in 1866 removal original for the TRIAL remove anyone before entire more ordi- here per- bill, BY its to or where he “cannot enforce [the nied” a something either after tions, two rights occur “in the clause As Interpretation the defendant (ii) “is law ^[*] or cannot enforce of such Removal or cannot enforce in the courts of or 28 U.S.C.A. § state a ing zens of the United States. not “any person who is drafted, following ways: (ii) any (i) any person denied” contemplates removal at significantly ^[*] depending for the commencement of where the at enforce may courts right (before State ^[*] any time, right State that occurs or is itself, courts person who is denied contemplates *. equal permissible by: [,] paraphrased under a (i) affected provision such State.” right 1443(1) the courts a different or civil while of such who or limits [,] whether the only any during denied under rights is a interpretation law denials which is a denial State.” denied in either prosecution, removal * * interpreta- occur subject any or can- provid- of citi- courts “is de phrase such right] trial), any law * [,] [,] time only ” to original statutory As a 1443(1) that, matter in- provides after terpretation, (i) prosecution alternative renders “is criminal has been commenced statutory grants of the secured them come within the re- act;” Cong. Globe, Cong., 39th moval clause would attribute (Jan. 1866). expand 1st Sess. at section 3 revisor intention beyond original scope, its an intention clarifying language, The identical without steadfastly majority opinion. denied in the punctuation, appears in section 3 of the original April statute, ch. difficulty interpreta- 21. Much revision, Stat. tion of the statute is attributable to a slightly protect reworded it was presence recognize failure of these “any person originally iswho denied or cannot en- alternative proposed constructions. As judicial Trumbull, force tribunals Senator the bill part [, protected or in the the State prosecution pend- “persons is where such suit en- who are denied cannot by any ing,] any right him secured to force in the tribunals courts or providing locality they may for the law the State where Original tautologi- (b) Statute and “cannot enforce” denied” cal, inability enforce heavy Congress anticipated resistance precisely at trial what constitutes granted the exercise hand, denial. On the other alternative freedmen, statutes (ii) gives phrases: to both substance face discriminate appropriate whenever Negro,22 officials act also from state right has denied tected been before facially valid state under cover trial, laws,23 and where it cannot be enforced 1866 Civil - Moreover, clearly overall at the trial itself. Fol this latter concern. reflected original equal rights lowing grant statute and its structure the broad legislative contemplated history plainly imposed 2 criminal in section section “any who, against person” in both situations embraced penalties act interpretation (ii). authority any ing of under “color24 of ** Negroes rights. See, of citizens of the .” United States to enforce their (1875). (Bracketed 603, 605, 1118, e.g., § Rev.Stat. 641 at id. statute). material added in 1875 particularly See Trumbull’s Senator Despite any clarifying the absence of speech urging passage over punctuation, the Court stated without dis- Cong. veto, Globe, President Johnson’s 43 Virginia Rives, cussion in Com. of 100 (April Cong., Sess. at 39th 1866). 1st 1759 313, 321, (1880), 25 L.Ed. 667 that only (remarks id. at 1123 of See also gives “that act to a of removal Cook); (remarks Representative 1151 denied, person ‘who is or en- cannot prime Representative Thayer). A ex- force, tribunals ample law, Virginia’s vagrancy which ” equal rights.’ State his civil No ex- Terry, General Commandant the Vir- given planation is the source of this ginia Military District, reported was be- punctuation, only explained be and it can way ing in such administered by the concentration in Rives on the * “[i]ts ultimate effect will problem rights showing a denial of a con- to reduce freedmen to alleged that case oc- dition than of servitude worse cur at the trial See n. 40. infra iself. they from which pated emanci- have been punctuation supplied The additional slavery condition which will —a only the Court served illustrate Cong. in all but name.” its 43 Globe statutory meaning context there discussed, might not in all cases which provisions. Therefore, Terry magis- arise under the removal ordered “no trate, officer, person, civil or other Nevertheless, may explain this by as- shall, way manner, any apply or or sumption made Professor Amsterdam attempt apply provision of said removal relates or events any person statute to in his colored itself, conditions in the actual trial rather department.” Ibid. rights than “denials” civil oc- Congress’ And in his discussion of au- curring Compare before trial. Amster- thority subject to crim- state officials dam, Affecting Criminal Prosecutions inal 2 under section sanctions Act, Federally Rights: Guaranteed Civil Fed- 1866 Senator Trumbull time averted Corpus eral Removal Habeas Juris- again deprivations rights Trial, diction to Abort State Court judges both “State other (1965) (hereinafter offi- U.Pa.L.Rev. by “judges cials” and Governors Amsterdam). Note, cited as See also (em- ministerial Id. at 1758 (1965). officers.” Va.L.Rev. phasis added), a clear indication that was concerned with more than These were the so-called “Black Codes.” See, e.g., Cong. just Globe, Cong., statutory 39th 1st facial denials (Jan. 29, 1866) (remarks Sess. 474 rights, occurring itself. Trumbull); (March Senator id. at 1151 2, 1866) (remarks Representative originally introduced, portion 24. As Thayer). clear persons is from examination of acting the bill referred to un- the debates that authority; Codes were der “cover” of “cover” was .targets leg- changed the exclusive islation; version, federal to “color” in the final primarily apparent change meaning. were cited inability evidence of Southern ordinance, statute, regulation, opened law, the same time it forcement. At rights custom,” deprived person of the forum in which af- a federal 2 thus denied him. section l.25 Section fected could assert the secured official;26 any given First, applied ex- in terms to the district courts were jurisdiction deprivation constitut over and the clusive the trials charged an element of the section offense state officials under section- 2.28 during Second, denied their arise both before could original permitted trial.27 to file suits courts.29 in the federal enforcement having been A criminal sanction Third, language minor of- which with in section the state vided Negro changes 1443(1), Con- deprived of his now ficial who gress provided rights, where situation of the statute estab- section 3 denied, be, judicial machinery been, or would en- had lished the 25. This e. 26. See in the Senator Trumbull had U.S. 97 March immunities” secured 89 L.Ed. 1495 See civil States, be deprivations be made 18 U.S.C. Congress out deprivations 1866 sons” Original Cong.Globe, of the 1866 Act. sion) arrested spects, including having at deemed Originally whereof the or be State any right or punishment or convicted, dition tude, except act, impose “[A]ny person who, 65 S.Ct. 1031 Rev.Stat. penalties (special policeman rights Act, custom, ; race, subjected, law, convictions or to different acting Screws v. United original showing See or g., section 2 Negro). now (1951) added the guilty section 2 Territory § Williams statute, ordinance, U.S. slavery any concerned than is secured secured or generally 242 is identical to section or 39th “under color of shall same 18 U.S.O.A. on aas party § any debates 91, 98-100, time been held applied by of a 35 Stat. any 71 S.Ct. white 5510 account of under (1945) (sheriff provided: In both “rights, privileges Cong., requirement criminal punishment for crime subject, or reason of v. United criminal intent. to by shall by prescribed misdemeanor.” inhabitant of reference to expressed the punishment, pains, “willfully,” Screws involuntary (1875). protected persons, expanded section the Constitution. 18 U.S.C. coercing In all other re- States, under color of have been 1092, deprivation 65 1st Sess. instances section with- sanctions or cause to such there States, S.Ct. regulation, any law,” his in a that such 95 L.Ed. 1 although shall be for by beating confes Act of person United of the § servi- “per- 1909, could color 1874 view con- duly this any 43 27. Concern against fusing have, exclusively way. Congress was aware 1st Sess. 1366 manager cials in the denial of Rights] cials who ing any protection of such eral Rights Act, rences in the preoccupation for failure nances son, subject bunals they prosecution in the state therefore not enforce rights nizance] of all rights at 1367 and offences to them been this act several ^[*] affecting persons “[T]he “[The district would be inconsistent with police ^[*] Negroes successor grounds House prosecutions or local court removable was demonstrated in the courtroom. to do of the State or against him themselves States, If act.” 43 (remarks officials unrelated „ amended district courts were official to remove was not Judiciary in the state court “for re- any that such committed any prosecution brought judicial process with the any policeman rights, enforce the to section (March causes, unwilling penalize illegal cognizance first section of Cong.Globe, courts shall have act on the who bill). Thus, equal were of the in the House to of the .rights merely courts officials the to the Representative Negroes’ equal his case would have Chairman and demonstrators, 13, role civil sweeping against effectively deny- ' courts. been to in still another federal * or locality courts 1866) ; with denied Danville Congressional of all crimes possibility join of the Civil ground judicial 39th ** prosecuted itself. state offi- state offi- [the activities denial had criminal, the fed- bill was For the * secured or can- arrests courts. permit of the occur- Cong., see id. where might deny- floor ordi- shall Wil- * * civil cog- act; any tri- already between sections prosecutions This interrelation had been instituted original bears em- in the state courts: Congress phasis. the President33 any prosecution, suit or civil or “[I]f the conditions understood both criminal, com- has been shall be including removal, jurisdiction, section 3 any court, menced in * * * could sub- as those which same such de- such acting ject “any person color of under fendant is to to re- have statutes, laws, cus- ordinances [state] prop- move such cause liability ** If a toms” to er district or circuit court Negro’s actions were denied April 9, 1866, ch. aggrieved officer, party of such state Stat. 27. permitted to have vindication in phrase “any person” refers filing original court; an federal either “persons back to the affected” in sec- or, already prosecution if had claim part ond of section 3—-those could who against him, by remov- been commenced brought original action enforce ing the federal forum. case them; denied and this “denial” in turn refers a denial some state authorized When officer, judge either “affecting persons or some other state who are denied causes official, who had acted “under color of or cannot enforce in the courts or authority law, statute, locality of a state ordi- tribunals the state where nance, regulation they may or custom.” secured to act,” them the first section of this rights, support The denial of disjunctive “or” between “are use proceed- moval after commencement denied” and “cannot enforce” focused on ings, was not limited to denials at the stages rights separate two at which purposes itself. had two might trial, when the be before affected: only penalized in mind. It not the state rights denied; trial, and at deprived officials who a man his rights where those could not be enforced. rights; sought pro- it at the same time to Thus, clearly the statute covers the alle- giving by tect such affected him gations petitions officials a federal forum for the trial of the mat- acting authority of under color of state rights ter in which those were involved.30 statutes, injunctions ordinances and In order to remove under section of3 suppressed appellants’ equal civil Act, necessary only it was to show the by prosecu- mass arrests and threatened deprivation “equal rights,” of some civil hearing, protected by If tions. be shown at their Act, by this section 1 of person acting under color of state the cases are removable. law.31 supra, 30. See note moval applies only discussion of is thus the statute unfounded: deprivations, remedy against offending the civil under to color official, law, rights. state added in racial civil 1871 as the third Com- leg triangle. pare Amsterdam, of this analysis 32. See Senator Trumbull’s Nevertheless, the statute did not con- Cong.Globe, two sections at 43 39th template wholesale removal of all cases Cong., (April 4, 1866). 1st Sess. 1758-59 alleging any equal right. denials of point In the clearly by Representative Kerr, most House was made In contrast to the broad class of op- who subsequently protected by the criminal posed the bill: provisions of the now “Viewing sec- [section 2] and first (1958), U.S.C.A. §-242 and the 1871 civil together, tion of the bill we learn that against remedy offending offi- state proposed be both reme- statute will cial, (1958), now 42 U.S.C.A. § 1983 penal pur- and in. dial poses its character. Congress specifically qualified the remov- protect certain and al in section 1 of the 1866 statute punish protect for the failure to them.” phrase enjoyed by per- “as white Id. at 1270. suggestion sons.” The that section 1443 (1) might permit greatly expanded 1680; 33. Id. at see n. infra. against, party but of is discriminated all (c) Debate The Johnson-Trumbull might affecting af him or which cases message accompanying the veto In his reply this him.” It was in con fect Rights Act, President of the 1866 Civil employed Trumbull tention Senator juris expressed concern that the Johnson language part by major quoted in provisions di 3 would of section dictional ity support of its restricted view juris “not the state courts vest pointed pre-trial out He removal.35 first particular case where a diction of the Cong., President was concerned with Since the Cong.Globe, 39th 1st 34. See courts, it 4, 1866). the effect of the bill state (April Sess. at 1759 This emphasize application was natural to to the its Senator characterization Trumbull’s judiciary; on the stat- President Johnson’s attack subsequent only application. The broad ute. reading section reading message re-enactments of id. at the veto that the important 1866 Act demonstrates it is to realize that provisions, coverage two were intended §§ and view of section 3’s President’s deprivations apply depended type all instances of concept on his acting rights by any person might subject state officers who liability under color of state law. criminal 2. John- section son feared that the bill would divest accompanying text of 35. See note 38 interpret judiciary state of discretion complete majority opinion. The laws; apply his statement thus 3,- speech, insofar discussed section as it subject liability that the measure could follows: was as “judges of the State courts who should objects to third “The President judgments antagonism render gives section bill that terms; (the bill’s) mar- jurisdiction district exclusive courts should, sheriffs, who minis- shals all crimes and offenses committed officers, processes, terial sanc- execute sir, against Well, no act. tioned judges, and issued State judg- laws thing. new have courts United States in execution of always jurisdiction of crimes had ments.” Ibid. and offenses committed United replied judges Trumbull that while state insists, further, States laws. But it he among might were indeed those who gives jurisdiction affecting to all cases affected state official persons against, discriminated subject penalties would be to its unless vided first and second sections intent, he had acted with criminal see bill; construc- a strained 1758; id. at and the Senator did not tion the President seeks to divest State types address himself to the state courts, only jurisdiction not However, officials involved. the courts particular party case where a is dis- consistently given provision have its this against, criminated but of all cases af- meaning, applying natural as fecting might him or which affect him. before, during state official or after the meaning of the This is not the section. Supra, trial. n. 27. already shown, commenting I have support To the construction of section bill, on the second that section applicable only 2 as state officials person penalties no is liable to ex- its acting judicial post-judicial or a set- cept the one who act is does ting, the section 3 in President read a is, penal; deprives made that another similar vein: right to, of some that he entitled is subjects given punishment “The him to some construction which I have ought that he to bear. [which second section since has rejected by strength- “So, been courts] is in reference third sec- to this by section, tion, jurisdiction given ened clear this third for it makes is depriva- affecting kind what of denial or Federal person case courts a against. tion of the secured the first that discriminated contemplation. Now, necessarily section was It he is not discriminated deprivation against, may a denial or of such there be a custom because community against discriminating in the courts tribunals in the stands, therefore, him, legislature may the State. clear nor because a penal- discriminating passed against of doubt that the offence a statute provided him; validity ties in the second section are that statute is of if it judge, intended for the State comes conflict a with statute Cong.Globe, Cong., States; pre- 39th 1st Sess. United and it is not to be (Bracketed supplied.) any judge that sumed a State court words ground a be liable that there would be no that official could not statement state 242) (present until under section 2 the statute was tested 18 U.S.C. only actually application referred to the in-court unless he had committed some judge.37 deprivation person’s of such a statute act of a comment, rights. ju quoted by Conversely, federal our Senator’s breth- ren, pattern could attach after the stat is not inconsistent with the risdiction actually applied whole, the statute a for until ute the custom was judge complaining through applied party, action a state he could not statute bring operation 2 or of some state official. President into either section Since say, expressed Johnson had about the Senator did not as the concern majority infer, judiciary, Sena bill’s effect the state these sections point brought play Trumbull with could tor illustrated not be into the ac- his example officials, tion of state other such as the unconstitutional sheriffs which, by judge policemen, might deny applied a who statute until deny rights prior rights, proceedings.38 enforcement could to the court not be said to have “affected” defendant. THE IV. Similarly, RIVES-POWERS of a local mere existence DOCTRINE sup custom discrimination would not jurisdiction port ap federal it was until agree majority We with the against plied party.36 indulgence Court’s course, point presumption facially main Of a unconstitu- since possible applied tional discussion was the criminal lia- state statute will at the bility arising judge of a a state from the trial was liberal construction application Act, law, the Senator’s does not follow that discriminatory would hold that a statute of a State ence of a custom. This discriminating against clearly person part concern; on ac- a was Johnson’s count of color was valid when there was a concern answered Trumbull’s quirement a statute of the United States that the show causal conflict, discriminatory which it inwas direct and the relation between stat- right sought case a would not therefore rise which ute or custom and the party was until discriminated enforced. tested, it was if discrim- and then majority suggests And ination held valid he would have may only Trumbull footnote Senator to remove it court to a Federal referring have been to a case where the —or, undertaking if enforce his predated Act, state statutes the 1866 right in a State court he denied nullity presumed which would be to be a right, go then he could into the supremacy under the clause. See Neal court; Federal but it fol- no means Delaware, every person lows would have a view, pre- L.Ed. 567 Under this go first instance to possible by trial showing removal would be the Federal court because there was of state action under on the discriminating against book of the State a law which, 1866, law after was either enacted pre- him, the deprivation applied in 1 of section sumption being judge that of the the rights. court, when he came to the act case, would, para- in obedience the Compare Gaines, State of Texas v. 23 States, mount law of the hold United 869, p. 13847, No. 2 Fed.Cas. Woods 342 the State statute to be invalid.” Bradley (1874), where Justice a denied Cong.Globe, Gong., at 39th 1st Sess. petition containing- only general removal averments of local 1759, (April 4, 1866). prejudice; no with specification petitioner of how the had provided original 3 also federal been at affected the time of removal. jurisdiction rights for the assertion of by officials, contemplated denied the actions state. 38. The removal “for 29, supra, any note were limit- unless this trial” time at “after the commence- actually phrases proceedings.” persopq ed to who had been ment These by meaningless denial, by interpreta- affected a been an would rendered anyone possible original prohibits to file such tion at removal time allegation prior action on a bare the exist- trial. prosecutions good only on is the situation which removal rests the faith deny- contemplated. In all cases efforts of all the demonstrators to was the secure equal rights Negro Century, in the late 19th the civil the commu- removal complaint alleged nity feature the some defect trial Danville. This sets itself, arising apart Powers, proceeding antici- case from from the Rives and heav- n ily pated majority. application of Until relied on To a statute.39 borrow petitioner actually tried, phrase Douglas from there- the later case of fore, Jeanette, he could not be said to have been v. 819 U.S. illegal “any 877, (1943), actions of 63 S.Ct. 87 L.Ed. 1324 “affected” Pow- person acting any law, ers was under color threatened with in- “[not] statute, regulation jury ordinance, every than or cus- other incidental proceeding brought lawfully tom.” criminal good presented faith.” Powers clearly application These cases have no problem protection rights of civil sought where assertions relating very rights pendency equal erosion of a denial of prosecution. stage given proceed- not The to some future answer Pow- ers, ings, namely, rights very ultimately prose- but to the his arrests might fully give proceed- cutions vindicated in which rise to those ings. States, Court of In our concern United is no answer with the fate of petitioners Negro pending to these prose- the 105 defendants in the and the com- cutions, munity intimidating suppression we note the Danville. The effect speech right of wholesale their freedom of arrests and and their threatened ar- See, Consequently, g., Kentucky respect Powers, e. Com. of v. denials 1, 387, U.S. would not be manifested S.Ct. 50 L.Ed. 633 (1906); trial, only way Kentucky, until ush in which v. Com. of B removal showing U.S. could be invoked would be S.Ct. 27 L.Ed. 354 (1882); already Delaware, Neal the state had acted v. State of deny rights through specific (1881); to legislation affecting U.S. 26 L.Ed. 567 Com. Virginia pending Rives, v. trial. U.S. 25 L.Ed. legislation alone, view, (1880). Such in the Rives support “in- affirmation of clearly This the concern of the ability to enforce” in the state pivotal Court case of Com. of court. Id. 100 at 321. Virginia Rives, 100 U.S. 25 L.Ed. particular setting of Rives factual petitions 667 filed before that In their removal prospective —claims of denial of trial, petitioners alleged had explains in the state court— equal protection Court’s later dictum that the act laws would denied their state “gives of removal systematic trials because of exclusion of [,] ‘who is denied cannot Negroes jury. from the The Court [,] enforce tribunals pointed out that the 1875 version ” rights.’ the State his anticipated only pre- removal statute emphasis (Brackets added; Ibid. removal, id. at original.) “[b]ut al the violation the constitution- provisions, judi- had relied on claim- Since the defendants ed denials that would when made all, State, may be, arise, cial generally if tribunals state, punctuation be, will courts of the after the trial has com- excerpt added.) quoted (Emphasis menced.” Ibid. added Court’s Thus, more than an the 1875 Act indicates no a defendant would not be able to allegations particular emphasis on affirm until at or after the trial itself equal protection did that would involved in purport case. the laws him, where the to deal with the case not be extended to obvious, therefore, denial of itself —not the evidence “[i]t prospective prior is, of a denial—occurred such a case—that infrac- trial; emphasis inhibitions, earlier on tion of the constitutional removal, post-judgment hearing after elimination of trial or final com- has removal, availability applicability. pr^-trial and the menced—sec. 641 has clearly contemplates removal for denials was not intended reach such It arising (Emphasis added.) in the courts. other than those cases.” Ibid.

785 impairment protest equal- or substantial of ity in the to obtain loss endeavor rights may precious those critical. of treatment be is irremediable.41 cases, For in the statutes lend Pfister, 479, In Dombrowskiv. U.S. 380 readily denial of themselves too (1965), a 1116, 85 S.Ct. 14 22 L.Ed.2d rights. assumption, .that statute was as void its face attacked prosecution defense a criminal and also under as Ú.S.C. 1983 it was § 42 generally ample will vindica assure being discourage applied to constitution tion of is un constitutional ally protected Answering activities. Baggett founded in such cases. See contention that state court should Bullitt, supra, [360], v. 377 at U.S. pass claims, first on these the Court em 1316, 12 379 L.Ed.2d 377].” S.Ct. [84 phasized : 485-486, at 380 U.S. 85 S.Ct. Id. allegations “But the in this com- 1120-1121. plaint depict a situation in which de- Moreover, Dombrowski sanctioned prosecu- fense of the State’s criminal injunction, was to the effect of which adequate tion will not assure vindi- prosecutions terminate all in the state rights. They cation of constitutional none the federal suggest court—there could be that a substantial loss or expres- merely court—while here removal would impairment of freedoms of forum substitute a féderal for the trial appellants sion will occur if must prosecutions.42 of the criminal disposition await the state court’s an ultimate review in this Court of fed- Prior to Dombrowski the use of any adverse determination. These injunctions stay eral state court allegations, true, clearly if show ir- ceedings severely inhibited reparable injury. parallel is ob- abstention doctrine.43 The between doctrine and the vious prosecution “A criminal under a federal con- Rives-Powers regulating expression insistence usu litigated ally stitutional first imponderables involves and con tingencies state courts. Both restrictions rest on that themselves in assumption that constitutional hibit federal full exercise First states, will be vindicated or See, g., Amendment freedoms. e. not, Supreme if People then the Court will Smith v. of State of Califor nia, position eventually give ain full effect 215, 361 U.S. [80 S.Ct. 147 4 rights. carving excep- to those out an L.Ed.2d 205] When [1959]. application tion to strict ab~ statutes sweep, also have an overbroad doctrine, recognizes sention Dombrowski alleged, is as here the hazard purpose depriving arrest for the them pop- “This harassment endemic ular, any localized, rights, politics-dominated or constitutional others state any process, worked, criminal misuse of the criminal administration. It part, judgment the most reason believe that could final process. not receive a fair conviction but mesne court. case, stopped contrary, petition only by can be To the a federal antici- jurisdiction show, patory alleges grounds we all of as broad evil Amsterdam, itself.” removal. 909-10. g., e. See, NAACP, 42. We v. 360 Harrison advertent to the affirmance L.Ed,2d 1025, Hand, U.S. 3 79 S.Ct. Court Wells v. 1152 (1957); F.Supp. (M.D.Ga.1965), Railroad Comm. of sub Texas Co., S.Ct, 643, Reynolds, nom. Pullman Wells v. 382 U.S. (1941); 32, (Oct. 18, 1965), S.Ct. 85 L.Ed. 971 cases L.Ed.2d cited injunction against Courts, Wright, prose- (1963). where an n. 6 Federal generally denied; Holtzoff, cution was See 1 Barron & that case is dif- Fed (Wright ed.) HonibrowsTci, ferent eral Practice & Procedure and from the case, instant But McNeese v. Board of seeks removal. cf. Edu plenary cation, In Wells the court found after S.Ct. hearing there was L.Ed.2d no denial of the plaintiffs’ rights, scheme to 786 gressional expectation that those inter- the as-

a set circumstances which by the sumption underlying pretations re-examined would be both abstention validity, as Rives-Powers is without courts. chilling upon the ex-

where “[t]he effect majority Fifth Circuit’s notes the may rights ercise First Amendment efficacy recognition 1443 section the prosecution, derive from fact of the the attempts eases, (1) but in civil prospects of its success unaffected the distinguish only State Geor Rachel v. 487, 85 at or failure.” at S.Ct. 380 U.S. Louisiana, gia, supra, and Coxv. State Woods, 295 1121. Cf. United States v. 1965). (5th is 750 Rachel F.2d Cir. 1961). (5th 772, F.2d n. 9 Cir. ground distinguished in that on the underly- Equally validity without is the which the sit-ins—conduct Su volved ing present assumption removal protected un preme had declared Court “ may cases, threat sanctions ‘[t]he 1964; Cox on Act of der the Civil deter effective enforcement [the being ground defendant was that the rights] potently actual almost as as the prosecuted for Su conduct ’* * * application of sanctions. already preme to be had declared Button, NAACP [83 371 U.S. Notably, proper prosecution. no however, majority basis for Quoted at S.Ct. 9 L.Ed.2d 405].” not undertake does 1121.44 S.Ct. distinguish Peacock v. of Green to wood, (5th 1965), principle F.2d 679 Cir. It was that our precisely parallels Hutcheson, F.2d which on facts in Jordan v. court (4th 1963), present in- There Fifth Circuit the applied case. authorized Cir. 1443(1) despite junction Virginia legislative fact against section alleged protect allegedly pow- the conduct was committee which used its Equal deny Negro attorneys Protection ed under consti- ers to Clause, by any specific rights. or Su statute tutional doing, preme In so Court decision. In none the lower court cases cited circuit, speaking through Judge Griffin majority support of its restric- Rachel, Bell, reaf who had also sat in reading 1443(1) re- tive of section interpretation firmed broad of section sought in de- moval order avoid the rejected 1443(1) con the narrow struction of constitutional result- majority applied by struction here. ing arrests, from the actual threatened arrests, See, prosecutions. pending V. “VERTICAL UNENFORCE- g., Superior e. Steele v. Court of Califor- ABILITY” nia, (9th (com- 1948) 164 F.2d 781 Cir. of, alleged 1443(1) plaint illegally-seized Under section the denial evi- inability protected must peti- to enforce dence would be introduced appear trial, our trial); but advance tioner his Hull v. Jackson colleagues County require petitioners Court, (6th Circuit 138 F.2d 820 1943) (petitioner’s would labor under a to show Cir. claim inability appellate automatically similar in the state moval court ousted state jurisdiction rejected True, present pre-1948 courts.45 unenforceability People (1) provisions). refers to in “the And of New state,” Galamison, courts of it is clear York v. 342 F.2d history noting (2d (dictum), 1965) statute that Cir. while require interpretations did not mean a show- restrictive Rives-Powers “inability 1443(1), acknowledged to enforce” in all the of section the con- solely un- 45. Insofar as of this removal authorized Judicial eradication common trial, derlying assumption signifi- before the denial of is even more question enforceability light vertical cant in of the close relation between clearly mooted; original injunction provisions, once a has been contemplates provisions. denied, original removal accompanying independent supra, of what occur See note courtroom. text.

7 «7 original provi- through process appellate rect courts of the state. the state Act, occurring sion, section the 1866 allowed at the abuses level.49 persons or “who are denied removal Perhaps answer the most effective or cannot enforce the courts showing majority’s requirement of a locality where tribunals prac- of “vertical” unfairness lies may be secured to Assuming framing ticalities of a record. them act.” first section disposition appellate courts to state added.) (Emphasis If 1875 statute enforce federal constitutional language and eliminated retained this rights cases, still determination intentionally post-judgment removal ultimately of the facts on will which cases must for re- have envisioned other causes turn is within the ambit of the trial facially moval than unconstitutional state occurring court. Abuses level statutes. largely appeal. uncorrectible on Evi- majority’s may irrelevant; We think the construction dence be excluded ignores legisla- may off; the whole thrust cross-examination cut be tion, protect which towas the freedman witnesses intimidated in coer- rights by atmosphere. from the denial his the use cive In such circumstances power statutory of state or ad- direct review of the state trial courts is —whether language guarantee ministrative. the 1866 that constitutional permitted effectively very protected.50 “at of will removal time This entering appearance provides his example: in such case court extreme * * * ** * judg- presiding judge final after who refused to entertain ment,” pas- preceding questions and in the debates federal constitutional would sage Act, hardly preparation of the 1866 the concern of Con- facilitate the of a gress was not so much to directed suitable record for the review of federal face, (see I). statutes unconstitutional on claims Part equal protection to the denial of VI. NATURE THE OF REMOVAL law within local More- communities.46 over, 1443(1) HEARING since removal under section predicated showing is on a of discrim- suggested by majority It is inatory application facially hearing constitu- removability equiv- would be statutes,47 delay ap- tional incident to hearing merits, alent to a on the and that peals through appellate process the state inquiry this is not sort of effectively original destroy indulged should be as an incident purpose of the statute. It has been well moval, since the cause for the removal said, “litigation meaningful appear ave- must in advance of the trial. The enjoyment rights,” nue to the of federal short answer that since has and common observation confirms pre-trial showing authorized on a difficulties inherent in the effort to cor- of, inability enforce, of a denial speech urging passage principal In the Lusky, “Racial Discrimination and The of the 1866 Act over President Andrew Federal Law: A Problem Nullifica veto, pointed Johnson’s tion,” Senator Trumbull 1163, 1182 (1963). 63 Colum.L.Rev. out “in some communities striking portrayal 49. For a see Amster- prevails by South custom which differ- dam at 796-99. punishment ent is inflicted analogous blacks out to whites meted 50. In the area of federal habeas Cong.Globe, empha- corpus, same offense.” 39th Court has Cong. (April 4, 1866). importance 1st Sess. 1758 sized the record for- (Emphasis added.) history litigation Recent indi- mulation in over constitutional years entirely cates that Fay Noia, have not claims. See U.S. (1963); eliminated these local customs. 83 S.Ct. 9 L.Ed.2d 837 Sain, Townsend v. Greenwood, 47. See Peacock v. S.Ct. 9 L.Ed.2d 770 supra, and our discussion of the 1964 Congress’ proper interpreta- view 1443(1), infra, tion §of Part VII. appellate permitting rights, enacted color equal civil orders, persist inquiry of remand review law, such immaterial that it is devitalizing questions of section constriction may same some involve Legislating appeal a merits. in the of the arise trial that will Congress did be of little worth if Inescapably must con- would the District Court give force. new atmosphere not mean to section 1443 conse- entire sider the pros- pending quences of the arrests of the authors of The section ecutions. styptic inter- Civil disavowed 1443(1). pretations of section Senator Moreover, these a determination manager Humphrey, the floor subject properly does to removal cases are Rights bill, apparent limi- Civil noted the has who vio- defendant not absolve imposed by Rives-Powers doc- tations must The Court law. lated the District trine, significant added comment on its merits to consider each case still con- whether individual determine exceeded of the demonstrators duct problem present “the real is not a at proper preliminary The decision bounds. which is on face unconsti- its removability merely determines on tutional; it is the unconstitutional precisely the trial. forum the This is application a a When statute. design congressional a fair afford —to unconstitu- statute has been in the federal if it is shown courts tionally applied, most Federal Dis- denied have been defendants Judges presently trict believe them- rights by actions of their old decisions selves bound these laws, * * under local state officials color of *. Enactment [section these cannot be enforced give appellate courts will 9011 an petitions courts. show in the state These opportunity to re-examine on face both conditions are question.” Cong.Rec. 6551 satisfied. added.) (Emphasis VII. THE CONCERN NATIONAL strongly point put more even TODAY Dodd, responsi- primary who Senator had bility in the ignored majority Senate for the enactment of Completely words, In his section see id. at 6953. opinion are the considerations broader precious has been made him past rights statutes, as declared unfolded in the latest decisions of the tees of freedom a erally Court. ten War, Congress white citizenship equally permit In the full years.51 constitutional reality by Congress recent events and race. manifest. three him to destruction Nothing compels has of them within century enjoy national rights, enacted ten civil Negro, with members It is of his most expounded since the to secure Supreme purpose, to make guaran- Court, gen- recting It was purpose clearly suggests that history intended old and of the ^[*] Id. ity, is of one of the “An examination of the “Accordingly the removal ^[*] interpretations precisely #(cid:127) the unwarranted by Congress little great apparent for the act or no bulwarks of 1866 to be Congressional value purpose interpretation erroneous. legislative *** statute, today.” equal- of cor- * legalistic continuance of a narrow en- inter- of section section 901 was 1443 that again pretation provision, acted, provisions; under stat- since appellate indispensable words, ute which forms link in Dodd’s “the Senator congressional plan will be what the effectuate courts able consider rights. recently stultifying It is removal statute means and what 85-315, 90; 1957, 51. See Civil Pub.L. Stat. Pub.L. Acts 88-352, 241; 1960, 78 Stat. 86- Stat. 637. Pub.L. ing gloss placed Rives-Powers to the intended when it enacted the statute. upon paragraph put is to our circuit Ibid. He observed: cynical saying position peti- particular, I “In think cases tioners: “Remand orders now be tried in communities courts appeal, you reviewed but this will do hostility pervasive where there good, paralyz- for we adhere to a will involving rights, and cases construction section 1443.” We process to use as a the court efforts today do not think the intimidation, ought means to be acquiesce reading.54 removable added). (Emphasis Ibid. [1443J.” precisely distinguishing

This is fea

ture stressed the Fifth Circuit

Peacock.52

Thus, plain enacting it is that sec- congressional purpose

tion it was the interpretation, the Rives-Powers if COTE, Appellant, Edmund explicitly rejected appellate v. courts, should nevertheless not stand America, UNITED STATES way of removal in cases like those Appellee. now before us —where the claim is that No. 20312. prosecutions criminal have been brought petitioners, to intimidate United Appeals States Court of community hostility to the assertion Ninth Circuit. rights makes a fair March unlikely. legislative local courts The his- tory plainly calls on the federal courts to minority

extend groups removal who prejudice, can show expressed local

through application the unconstitutional laws, rights.53 affects their unwitting majority’s cling- effect of the 52. In the House a similar view Because we ex- conclude removal pressed by Representative Kastenmeir, these cases is authorized under section manager 1443(1), of section 901. He we stated that need not now consider prime purposes section, paragraph (2) one of the whether appeals prose was “that [s] authorizes removal of state reinterpret authorized to cutions for [removal] acts done “color Cong.Rec. (1964). authority providing laws.” 110 He laws anticipated rights,” private applies persons. reinterpretation “under section 1443 Fifth Circuit Peacock states involving prosecu- paragraph (2) cases dictum State criminal does not brought petition- apply persons, private tion to intimidate the ra er, involving majority opinion People [and] cases tionale of the such com- munity hostility Galamison, that a fair trial in of State of New York F.2d v. unlikely (2d 1965), local courts is Cir. leads to the * * * impossible might now same result. See also Anderson, well of Chester scope (3d 1965) be construed to be within the 347 F.2d 823 Cir. again Judge so, (per Biggs opinion, of said If section. once curiam we with dissenting). hand, Judge will breathe life into On the other give meaning argues dissent Galamison Marshall’s purpose cogently that, applied particular intended.” Ibid. when discussion, situations, paragraph (2) For further see Amsterdam allows prosecutions private at 859. of als; individu Amsterdam, and Professor after Note, 53. See 43 N.C.L.Rev. analysis legislative meticulous his tory agrees statute, Judge Amsterdam, Marshall. See at 874-78.

Case Details

Case Name: Bruce Baines v. City of Danville, Virginia, Hildreth G. McGhee v. City of Danville, Virginia

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 21, 1966

Citation: 357 F.2d 756

Docket Number: 9082_1

Court Abbreviation: 4th Cir.