Reverend John M. Perkins v. State of Mississippi

al., et M. PERKINS John Reverend Petitioners-Appellants, MISSISSIPPI,

STATE OF Respondent-Appellee.

No. 30410. Appeals,

United States Court of

Fifth Circuit.

Jan.

Rehearing En Banc Granted

June Judge, Brown,

John R. Chief dis- opinion.

sented filed Lawyers’ Parker,

Frank R. Committee Rights Law, for Civil Under Constance Slaughter, Ross, Iona son, Miss., Lawrence D. Jack- petitioners-appellants. Summer, Atty. Gen., F.A. G. Garland Lyell, Jr., Atty. Gen., Jackson, Asst. Miss., respondent-appellee. BROWN, Before R. JOHN Chief Judge, CLARK, and COLEMAN and Judges. Circuit COLEMAN, Judge: Circuit apply is a case to This which we must provisions of Title I of the Civil Act of U.S.C. § night, Greenwood, teachings v. of their accord visit- Miss. own after ing hours, shotgun, with a two Peacock, armed 384 U.S. rifles, pistol. (1966). and a L.Ed.2d 944 charged ar- consider first the case of those appellants We state were in highway. rested on the variety of misdemeanors courts with resisting arrest, driving, such as reckless Douglas Baldwin, ap- O. called officer, interfering and the like. an pellants witness, an adverse as was allegedly occurred in The offenses arresting sole officer. is a Baldwin the arrests were made County, Rankin Mississippi Patrolman with the Highway charges county, and the were that brought He Patrol. testified that county. Previously, on in that day was not in Mendenhall on the of the par- day, appellants the same had arrests. Prior to the arrests he later County peace- ticipated Simpson in a nothing identity knew of the of the “boycott” support of a able march in parties. Specifically, he stated against alleged directed racial discrimina- follows: They arrested nor tion. were neither supper from “When I came charged county. with an offense night got I behind was two vans. One sought They their cases to the remove Dodge van, and the front van United States District After an Court. weaving and out all over the road evidentiary hearing extensive the District got in and I between them. The front pend- Court found as a fact that as to the making van was about 45 or miles ing charges parties state had not been hour, passing us, and a car was we guaranteed denied Con- lane, were in four we were in the stitution the United States and passed outside lane. And this us car nothing they there was to indicate that (sic) on the inside and he liked lane impartial could not receive fair and stopped hit the car and I him trial in the state cases These courts. got out, him and I [Huemmer] accordingly ap- were remanded and this only didn’t know he wasn’t the one peal Considering followed. the credibili- the truck.” ty choices which are left to trier of Judge The Trial then asked Officer fact, findings support- below are many persons Baldwin how were in the Therefore, judg- ed the evidence. replied: van and Baldwin remanding ment cases trial “Twenty. got IWhen him out and state courts is affirmed. got my him back car I saw two Very few, any, appellants if of the were Negro boys in the of it back [the van] Simpson residents of either or Rankin looking out the back and I window County. Most themof were students at nothing (sic) didn’t think about Tougaloo College,near Jackson. Menden- then, got but one of them out of the hall, county Simpson County, seat of coming truck my started back toward forty-five is about miles southeast got my car I out of car and Jackson, Highway on U. S. 49. The get him told back in I because was boycott, accompany- Mendenhall with its Patrolman there and I didn’t demonstrations, marches or had been might know what he do. He went going on for about a month. The stu- back toward the truck and I looked commuting dents had been back forth again eight back and there were or ten to lend their assistance. then, or twelve of them out there so I calling help patrol started [on appellants All of but three were car I didn’t know radio]. what Highway arrested on U. S. 49 while re- might try to do.” turning from Mendenhall to Jackson. remaining three were arrested Baldwin further testified that he had County several hours supper evening later the Rankin eaten and had then gone Jail in patrolling Brandon after Highway there resumed his doubt, beyond clear, knew that the It seem asked if he would thus When North. occupants these entitled the vans some of individuals replied, misdemeanor Mendenhall he to remove their state marchers prosecutions didn’t district “No, Sir, idea. I to the federal court. I didn’t have person in one that there was but know This leaves consideration that truck”. voluntary three nocturnal situation jailhouse not who arrested propounded follow- visitors were The then the fight got Highway into who a ing question: 49 but on evidently jail came off with the and you people these did arrested “When encounter. the worst the they you the Mendenhall know were marchers ? had occupants of van which The the No, reported stopping Sir.” stopped “Answer: the not been This their associates. other vehicle to the testified that Baldwin further Brown, the Reverend resulted stopping van reason the was because Buckley Perkins, going and Reverend one weaving as was if the driver it was County armed to the jail, the Rankin drunk, line the center that crossed he, that testified and teeth. Huemmer hitting times, almost once another several men, were then these three beaten This was a valid arrest automobile. county extensively state kicked State, driving, reckless Barnes v. officers, his head and face were that (1964); Miss. 162 So.2d 865 Section liquid shaved, a white Mississippi Code of 1942. poured smelled moonshine was over like had further testified he Baldwin was his head. He testified verbally he message stop van. no radio received jail by officers abused several until the individuals had It was not all drinking paper cups out of who were recognized gotten that he out of stopped van drunk, appeared to but was he who people had associated with he soon released on bail. demonstrations Mendenhall. When got deputy called as an out of A sheriff was these individuals van going appellants. to be arrested adverse witness He said said “one was night question he that on was call- unless them were”. all of he ar- ed to office. When sheriff’s help, After the radio call for several original rived ar- there he observed highway patrol ears came. Those arrest- being restees Perkins, He was there when booked. transported Brandon, ed were county Buckley Brown, and arrived. County. seat of Rankin difficulty prior no There had been Douglas Huemmer, Bruce driver developed, a scuffle arrival but van, testified that had never had he occupy- limited ing. the room were any encounter with Baldwin Officer deputy was ordered then prior to the arrest. to cut Huemmer’s and Brown’s sheriff eight There had been marches hair, did. testified he which he He Mendenhall, peaceful. all of them None didn’t see in Huemmer’s hair vermin during arrested been the march greasy, dirty, that it and that but was its preceded journey which the automobile scalp. over his removal revealed scab which culminated in the arrests. Manorris, witness, Another student van, accompanying The second Tougaloo College, one of the march van, Huemmer was not halted. Mendenhall, jail when directors in was foregoing testimony He trio came in. with Perkins dispute room, supports out in the record and could not observe what another finding say, nevertheless, these individuals on. He did went beating arrested because of their Perkins exercise of he saw Edwards Sheriff Amendment, other, First shirt tail came out”. Constitu “until sheriff’s rights. deputies tional saw strike one He also said he Perkins, Buckley, Brown, and until strike He saw no Nall. one David sheriff, Perkins aimed a blow at after officer. general fracas missed. Then which student, Tougaloo Nall, testi- another drinking There out. had been broke the van after fied he was struck in guns, a sheriff’s office. Three jail. This out of it at was ordered pieces pistol, of brick tile and several of the others none was verified Weapons prisoners. from taken Ed- present. Sheriff He claimed that van included taken from Huemmer’s blackjack Perkins. used wards prongs forks knives, two with the middle Brown, visited one trio which down, pistol. turned spread, jail the alarm after had been that he is a Minister testified he knew a Edwards admitted that Calvary in Men- Institute Voice of Bible boycott progress in Menden- had been in Mississippi came to He denhall. He also that after Huem- hall. testified Perkins, request and at the California poured was cut moonshine mer’s hair he boycott Men- a leader has been in the whiskey over his head. beginning. He stated from denhall No testified that Officer witness he, Buckley went that when Perkins and Menden Baldwin followed the van from County jail in a red Volks- to the Rankin stopped or that he he hall knew when wagen van, a shot- the vehicle contained who had the van contained individuals gun and over and two .22 rifles behind boycott participating in the marches. been plain claimed front seat He view. testimony a routine His that he made carrying weapons that the reason undisputed. traffic arrest is Had there had been was because threats which Judge dispute, had the been responsibility Trial his life. made on He further claimed credibility making companions were beaten he choices, dissenting not this The Court. provocation jail for no at the whatever. great weight opinion attaches to the testi jail day, kept in He was until the next mony of who would several individuals carry- charged disturbing peace, with depict the local officers as subhuman riot, weapon, inciting a concealed sadists, weighed testimony but resisting arrest. rejected by the trier of the fact—his is a Perkins in Mendenhall Minister not ours. function boycott. a leader of first and was He of the arrest and the learned of Huemmer applies rule to the alterca- same others from the driver of the second van. jail. Brown, Perkins, at the tions got Volkswagen pick- then in his He Buckley lawyers, were not nor had Buckley. up ed Brown and The three by any sent of those arrested. been proceeded jail. to the Besides Brandon jail, They simply chose to visit after already weapons Perkins mentioned regular visiting hours, armed with shot- pistol that he carried a in the admitted gun, pistol. two rifles, and a If Perkins result, car, said, as the of threats he swing sheriff, at the took as sheriff against him. been which had made did, credibility he of which swore Perkins contended that the three were Court, was for the decision the of District personal- no arrested for reason and were anticipated then Perkins should have any preceding provoca- ly without beaten this would meet more than with sub- tion. disapproval. not condone missive We do use of in the arrest force excessive R. Edwards, Jonathan Sheriff prisoners. and detention of Neither do County, that he al- Rankin testified indignities approve we visitation of ready day he his office for the when left prisoners. By upon the same token we Shortly after received a call to return. duty under no to extend some kind of returned, Highway Patrol arrived judicial approval left handed jail twenty original ar- at the carrying practice an arsenal He testified that no restees. further night weapons jails time visits to started until after the arrival violence purely secondary It was stations, possession of marches. if police even episode. lawful. weapons otherwise such appellants are due to stand trial These event, the issue that is not In in the state courts. question is whether this case. jurisdic- jail ousted the at the activities Congress point this was careful to out try these three the state courts tion of 245(a) (1): in 18 U.S.C. § charges and, at the misdemeanor men on “Nothing in this section shall be con- jurisdiction time, on the conferred same indicating strued an intent on the so. courts to do federal State, part Congress prevent any any possession Participating in or Commonwealth of think not. We grants county States, one United or the District peaceable march in exercising Columbia, jurisdiction immunity of the from the enforcement county. does such offense over which it would Neither over in another law jurisdiction activity persons approach a of this absence authorize section, anything prison nor shall in this sec- in the dark hours local Carrying brick, depriving night, heavily armed. tion be construed as tile, forks, weapons not local law authorities like enforcement broken ordinarily peaceable responsibility prosecuting consistent with acts may be violations of this section activities. and that are violations of State and view, important, in our It is * * law local jail was neither disturbance geographically periodically nor incidental 18 U.S.C. 245 concluded: § fact, In so to the marches in Mendenhall. “Nothing this section shall con- shows, no one as this record far as to strued so deter law enforce- going County Simpson on knew what was lawfully carrying ment officer from adjoining county of Rankin. in the office; out the of his and no law duties enforcement officer shall be considered jail Hence, hold that we this to be lawfully carrying violation of section for entitled to have their visitors were not out the duties of federal courts. We cases removed lawfully enforcing office or ordinances findings by simply fact of hold that ” States, and laws of the United [etc.] clearly er not District Court are findings upon these the We conclude with this roneous and that observation: remanding Greenwood, Peacock, no error Under Miss. v. court committed supra, appellants to the state courts. If these cases not are removable charges, fact no the federal courts. there is basis for exposed by deficiency will be respect, Greenwood, In this Miss. v. and a directed verdict adduced evidence by not Peacock was affected the enact necessarily acquittal follow a of will as People ment of 18 U.S.C. See matter law. Horelick, Cir., State 1970, New York v. 424 F.2d cert. denied 398 U.S. We, course, decline decide 273; 26 L.Ed.2d Hill acts committed case on the basis of others, Cir., Pennsylvania, v. Commonwealthof cases, times, in other in other 439 F.2d cert. denied 404 U.S. under other circumstances. are here We 30 L.Ed.2d required apply law the as facts judgment of the District Court is Court, governed by found the District indulge clearly erroneous rule. We Affirmed. in no support There is evidence to attainders. finding original BROWN, (dis- Judge R. JOHN Chief prompted arrests were not senting) : certainly, marches Mendenhall. Most jailhouse perspective an visit to the realistic armed Viewed night stage part time not this case marks a critical discouraging purpose evolutionary development of those activities Federal intimidating those jurisdiction. Per- Rev. exercise rights. prior our His New of cases dealt have Mordecai at the Gate.1 kins is precisely this Both situation.2 allegations proof that we let with demand suggest possible Peacock Rachel and him in. although approaches, neither alternative complexities we face are unequivocal provides solution credi- ones. need resolve factual We the circumstances now us. before conflicting bility inferences choices or However, opinion peti- happened from the tenor of its these what determine my agree I is ac- assume Court would with No whose version matter tioners. position replete these must cepted uncon- the record is if, showing prevail patently in addition to evidence of frivolous ar- tested Federally offenses, threatened causal connection between their rests for nonexistent subsequent physical protected and almost activities and violence, their and actual degrading unbelievably humiliating prosecutions, arrests and also have including indignity on this record established that the State treatment — pouring shaving prisoners’ proceedings heads and sole have whiskey purpose them —that moonshine one of the harassment and intimidation surpasses brutality far the official we conduct insulated Federal law only recently illegitimate as cruel condemned official interference. violating punishment assumption disagreement unusual On this our Eighth Nosser, entirely degree Amendment. Anderson arises over Cir., 1971, 183, pending deference, any, re- if that must be accorded hearing en banc. finding the District Court’s on the issue why being these individuals prosecuted.

Prologue: The Rachel-Peacock Enigma literally sup- There is no evidence to port any charges against the 23 Actually problem our real here is to determining defendants.3 Yet in wheth- unexplored the chart outer limits of the prosecutions er the constitute no more remedy removal two close- established racially deprive than motivated efforts to ly factually related but dissimilar Su- equal rights them civil of the District Rachel, preme decisions, Georgia Court exclusively limited itself to a 1966, 780, 1783,16 U.S. L.Ed. 384 determination that the would defendants Greenwood, City 2d and 925 Miss. v. receive fair trial courts State Peacock, 1966, 1800, 384 support- and that the initial arrests were stated, Simply ques- L.Ed.2d 944. by probable cause,4 ted while at the same tion is whether removal relief is available explicitly refusing time to consider as petitioners alleged when have and prosecutorial relevant pur- to issue of proven pending their arrests and pose charges the undeniable fact that the tempo- State criminal prosecutions, while groundless. all are The Court here has rally geographically and unrelated to by implication procedural- sanctioned that protest protected antecedent activities ly approach. defective specific providing Federal for statute rights I race, findings dissent because in terms of of fact regarding the exclusively prosecu- nevertheless initiated motivation for for the appendixes 3. Esther, particularly 1. two See Book of the end eh. opinion complete listing contain a 1-2. of all vs. charges and their but sources. All Judge opinion see But Tuttle’s for Douglas two of the Huem- defendants — Court, Judge dissent, and in Godbold’s mer Phil and Ira Freshman —are black. Cir., Achtenberg Mississippi, 4. Under Rachel neither these facts removability. relevant the issue of 38 and See notes infra. charged Dis- hopelessly were arrested infected tions were adjoining erroneous hours later Rankin several trict Court’s utilization Highway (the “probable County, legal (“fair either main trial” and standard highway cause”) the evidence. between Mendenhall Jack- in its assessment of son) Brandon, county adopt jail compelled such at the we Since are findings (see infra), should seat. Thus the arrests the exercise we allegedly provoked on the basis hesitate to conclude were, strictly temporal thoroughly undisputed developed them in a sense, unrelated, geographical proceedings and the facts charges ill-disguised pertain merely attempts do not on their face are here protected protected under Federal law. punish Federal conduct under conduct targets As are classic law. such remedy for The Mendenhall Demonstrations prescribed by Rachel terms days In late Christ- Peacock. two before mas, black Mendenhall residents Geographical designed Locale campaign protest initiated ultimately dis- to eradicate racial protected Federally activities All of the community. In addi- crimination in the place in case in this took involved boycott organizing tion to an economic Mississippi, Mendenhall, town in small they published of local white merchants County Simpson about 45 miles southeast hand, enumerating other a list demands5 of Jackson. all On em- THE BLACK e. We Black “DEMANDS OP demand 30% 'Voting-members ployees COMMUNITY local draft board Dec. buying campaign Black members on in Men- f. We demand The selective today, denhall, Simpson Co., was launched school board employ- g. 23, 1969, primarily all businesses We demand Dec. secure employees establishments our with more than ment the business employees employ- Black of all town. We demand 30% person we be fired for not establishments as 2. No Black shall ment all business buying buying population. We Mendenhall. 30% urge desegregated employment of also and call 3. We demand recreational city-paid city hall, house. court facilities and Black full-time Black citizens police brutality j)ersonnel supervisors. come to We call be hired as Roy Berry personnel, inci- that all includ- an end so no more 4. We demand develop. wage paid maids, will We call for additional the minimum dents city police including premium pay employment force. Blacks on over-time. of deputy closing We call Black sheriffs 5. We of all for demand back-door court house. We call Blacks cafes. complete brutality police call for school and school board. We desegregation. 6. AVedemand that upon people stopped. murder We call reasonable of Black be white, men, help police in this and to us an to all harass- Black We demand end beatings, threats, justice equality ment, shakedown, bring in- Men- move to and County. Simpson sults, language, denhall abusive threats of vio- and lence, illegal illegal and ar- WE searches DEMAND: employment all 1. We of demand rests. 30% obey police all 7. We demand that must business establishments. Supreme policemen on a. Black U. and We demand S. Constitution police legally be ar- force orders. Persons must employees rested, rights, rights b. We demand Black advised of his post office, bail, office, silent, remain PHA ASCS to immediate office, stamp phone call, office, attorney, of- clean food welfare fice, bank, Sup’t healthy of office. and Education containment. sheriffs, highway patrol Police, deputy S. must c. Black sheriffs AVedemand jailers. have sworn of and warrant the arrest Black any person, of the search house d. AVe Black recorders J. demand P. car. court grievances popula- sympathized objec- of the black dents who town’s with the calling things among other tives of the and tion and Mendenhall residents integration participate of and all who desired to march- the immediate total schools, day. public employment, public Upon for that es scheduled return- ing they oth- municipal and to Mendenhall facilities held a meet- recreational mass cooperative To public the local places black store er of accommodation. boycott plan protest discuss and to conducted dramatize their timing and and route the march. When a series mass demonstrations approximately beginning in late 100 to 150 demonstrators marches Mendenhall continuing subsequently paraded through into the the center and December 1969 signs carrying publicizing occa- town each two months On first demands, minor encountered sion the demonstrators were some hostility bystanders, from uniformed but there was surveillance of close numerous and no plainclothes Missis- violence was arrested. of the one and officers Highway Patrol, approxi- The marchers each demonstrated for sippi followed who mately minutes, partici- pictures ac- of the and as usual their and took march picture pants still cam- tivities were motion monitored a substantial police officers, up number a who set eras.6 roadblock and drivers check on license February 7, dem- 1970 two On Highway leading 13, the into main road Douglas organizers, B. onstration’s Among the black section of town. Perkins, and Rev. John M. Huemmer official observers was Edwards Jonathan Tougaloo College near Jackson drove to college III, neighboring up group stu- the son of the pick sheriff of black attorney buying court-appointed will em- Selective continue until demand 9. We persons arrested, ployment Then, provided situation is corrected. all be only then, will be end of the other items time of arrest negotiable. negotiated can These be trial. people police Black chief Sher- the selected chosen demand that 10. We Community. person man, Coleman, R. and officer Black No one officer negotiate prohibited these ac- can demands. Final T. Walker fired ceptance holding any enforcement settlement lies with from position law Community.” county. Blade complete remodeling of demand a 11. We inspections by Ivy, jail monthly the director Sam of the Identification Highway Dep’t Patrol, Bureau of the testified U. S. Health. dispatched of a that he 12. We demand the establishment his at least two of agents Human Committee Mendenhall to cover the bi-racial Relations police board, February protest activities, Inspec- hear to act as a review while Lloyd concerning Jones, charge complaints police, tor all iffs, sher- officer jailers. patrolmen will This committee uniformed of the Jackson Division, investigations power stated that at least six have to make jail duty inspections time, including complaints, condi- men were on at that specially tions, police photographer rights, trained mis- violations of conduct, police headquarters; will “electronics surveillance man.” The offi- sheriffs, employed power police, cers number of devices for to fire identifying jailers highway patrol participants and remove leaders and marches, county by cross-checking either officers beats. by verifying with each other or registrations, vehicle in the IS. We demand that all streets during and the demonstra- community paved. be Black they operated tions radar and VASCAR charges 14. We demand that all be speed traps highway leading on the in and dropped against and Rev. Perkins out of Mendenhall. Doug Berry. Roy Huemmer and Inspector Ivy also We demand de- testified that 15. our We freedom. Highway power permanent Patrol mand the to determine maintained a investigations involving destiny community. file on Men- of our Black rights people not denhall civil will free are movement. The Dis- until we petitioners’ destiny. trict Court denied the motion able to determine our own production of it. following sup- Lloyd duty County, Inspector just on Rankin he had come . community nearby Highway Mississippi per Patrol. in the at his home Jones of followed the he had of Florence and that Highway stop- Arrests miles before four or five van for weaving allegedly it, after ping because Following through the march an- town it had times lane into the inside several meeting other was held late in the after- (whose color, passing a car almost hit church, noon at Perkins’ after Rev. recall). description he could make Tougaloo which 19 boarded students ordering out of the Huemmer After Dodge trip Huemmer’s van for the back li his driver’s van, asked Baldwin college. The route from Menden- pa in the him to sit directed cense and Highway 49, hall to Jackson was U.S. a Huemmer, according There, trol car. modern four-lane road a divided with discovering group par that the after posted speed maximum limit of 65 miles demonstra ticipated Mendenhall per Huemmer, driving, hour. who was day, nu made Baldwin tion earlier proceeded testified that north at incorporated refer speed threats that moderate rate of being he was merous County7 Simpson protests in followed the rest of the stu- ences request for assist. Volkswagen radioed a dents in a re- and then and that he right-hand mained in the lane all times at except passing when two other vehicles. During Bald between the conversation passenger A van testified got out two students win and Huemmer group Simpson was followed from Coun- High- legs but were of the van to stretch their ty (Mendenhall) Mississippi get into back the officer ordered way Patrol car. They minutes A few did. vehicle.9 request, later, response the radio m., approximately p. At 6:30 immedi- High Mississippi ately crossing four and six County after between into Rankin way the scene. Plain, cars near Patrol arrived the town of and its van patrolmen or occupants pistols drawn the stopped Highway With Pa- get Douglas out Baldwin, trolman previously dered all of the students to O. who had van, assigned point search were all at which been to cover one or handcuffed, transported ed, arrested, two the Mendenhallmarches and who was County jail familiar going Brandon.10 activities to the Rankin persons Huemmer, white there. Baldwin testified that one of two ^[*] “ were a then I going more of this shit said, well, them all thing from the back strators yeah armed, and called other asked me are lane for miles. Then he saw some of the at the you pickup, couple out of the rear * mean and then he and he car, stuff, asked him if I was under arrest come on * and I few out from Mendenhall take because I’ve been in that he was we’re not He niggers and I responses tonight, picked up replied you said, you down and Tougaloo units and said I’ve anymore just about one car’s windows of the some of the demon- just more of this civil truck, I don’t so with that going sorta smiled and on the radio so whites, didn’t looked students look- help and we’re not almost hit a to take and then he and I said microphone know what me clean say any- up length truck there same got 9. David never 201). for the arrest making got Patrolman Baldwin. white “You refute Baldwin In his (jeople inside the van? shut say anything The State did he told me to the head.” or what was “Q Patrolman Baldwin’s niggers get with them.” truck managed this evidence with the Baldwin did not contradict Nall, up the call he Officer testimony admitted he was load of one of the (Tr. going else why did shut back in the van.” the 19 212-13). going might satisfactorily attempt (Tr. 152). niggers under oath on and he after Patrolman It is uncontradicted. up students, to shoot me have said passengers: you that, and there’s words testimony impeach if I arrest just Baldwin testified account this. didn’t didn’t were, “I’ve then (Tr. stated he Huemmer also arrestees, Patrol.11 among testified previously his threatened Thames separate car and beaten taken was participation jail of his life because at the after arrival en route County.12 Simpson Highway rights activities Thames Frank Officer go. they He the handcuffs handcuffs off. took Well wanted A my right and it was still every off of hand them indicate place Did one Q my my pulled you hand they left hand and he them wanted my hand went down on the down until arrest? then he continued to front seat and A Sir? slap pass up every hit me as we would them come Did one Q ‘Officer, you say, like to another car or another truck on I would highway stop, and then as we he would Is that fact? be arrested.’ go by car he that one would or truck would made was The statement A again. hitting me in person going start Then he was all went. wasn’t unless my person with fist then he took the face made that statement? Q One other it some- handcuff off stored A Yes. by my place and then he took me hair Nobody statement? else made that Q my and twisted me so that neck was say. A I couldn’t punched my groin, kinda bent my me in that state- on the basis of Q And my my stomach and face and neck all, ment, you them is that arrested pushed and then me over toward Offi- right? couple cer Baldwin who hit me a Yes, A sir.” times. (Tr. 149-50.) happened? Q Then what you did “BY THE COURT: What during arrest all of them for? saying A All this he was rights stuff, For interfer- BY THE WITNESS: had warned me about civil ing my duty. give with that he didn’t a damn about civil they rights stuff, cuban, BY THE COURT: How that I was a damn interfering your duty? god man, and called me a damn Moscow They profanity, BY THE WITNESS: could and all sorts of other jeopardizing my got jail stopped then been life. when we we alley, alley in an it’s an between BY THE what were COURT: Well jail parking stayed you and the doing lot and I arrest them did thirty in the back seat for about for? forty minutes and I could see from the BY THE I arrested WITNESS: up jail guess window where I interfering them for with the duties processing students, other weapons.” a law officer and concealed during they kept the time me in the (Tr. 112-13.) alley car out in the he would continue every to come two or three minutes and you 11. “Q Were then taken to the Rankin open, slap the door and kick me or me County Jail Mr. Huemer? kept worrying saying, and he me with A Yes. After the students were you tonight I want to kill that’s what pulled off, I handcuffed and taken wanted, going I that he wasn’t to kill out the car and handcuffed Offi- going me but he was to teach me a Thames, cer and one or two of the other lesson and this lasted for about 30 put going officers were me in another (Tr. 215-17.) minutes.” patrol car with some of the other Although Officer Thames was available said, students and Officer Thames testify, the State did not call him. myself I want him for and went and testimony Huemmer’s is uncontradicted. put me in the seat back of Officer patrol car; “Yes, Baldwin’s then Officer summer, last I believe it was dur- got passenger Thames side of July, driving the month of I was Officer Baldwin’s car with Officer High- from Jackson to Mendenhall and driving way Baldwin the car and we left then pulled [Patrolman] Thames me over jail, handcuffed, for the I and was still get my and told me to out of car and and then he turned around I about, uh, and said lectured to me he said he you you get told last going summer if didn’t wasn’t to stand for me to do out of this civil stuff I was Mendenhall, civil anything work in if I did going you, to take care of going and then he me, he was to harm in so slapped many words, turned around and me a few me, threatened to kill told face, get times in the state, and then he me told me to didn’t, out of the if I said to turn going around so he could take he was to see that he was Volkswagen following go van The was have ticketed Huemmer and let him way stopped, occupants and its returned on his officer knew who his —the subjects reported they to Mendenhall and what had were and what had been doing happened. in Mendenhall a few hours ear- lier.13 opinion quotes In its testi-

mony of Patrolman Baldwin to effect County The Rankin Jail Arrests that at the time he arrested demon- par- had strators he did not know learning Highway After 49 ar ticipated in the Mendenhall marches. rests the two black of the Men leaders However, qualified immediately he rights movement, denhall civil Rev. Per statement, transcript reveals: Curry Brown, accompanied kins and Rev. by man, Buckley, a third Joe Paul drove you ar- “BY THE COURT: When County jail the Rankin with the intern you people these did know rested posting tion of who had bond those were the Mendenhall marchers? previous been arrested. Because BY THE No WITNESS: sir. threats life Rev. Perkins carried BY THE You didn’t know COURT: rifles, with him in his car one shot two at the time? gun pistol, all of which were BY THE I WITNESS: Well after plain in the seat and all of view back got I them out the truck assumed legally possession un which were in his they were, yes sir, I didn’t it but know Arriving Mississippi der law. at (Tr. (Em- 126-27.) time.” Brandon, jail the men courthouse phasis added.) parking place were directed to a “Q. Now, you did decide when Of- they got highway partolman, after which you stopped ficer Baldwin that had talking out the car and stood beside people boycott associated with the weapons for a few minutes. re marches and demonstrations in Men- all mained inside the car at times. denhall ? by approxi three were then surrounded officers,14 mately got enforcement A: law When all of them out of the 141.) (Tr. searched and Rev. Brown testi arrested. truck.” fied that he kicked beaten was actually But one was arrested —cer- being taken into Officer Thames while tainly resisting not for arrest —until aft- jail.15 got er the students out of the van. Thus unfolded events that dispute, by Of all the violent there is no Baldwin’s own night, only jail one —the inside the admission, that before the defendants really swing purported sheriff —is custody— at the were arrested and taken into disputed. is, sharply No one denies that at a time when Baldwin could arresting Among In- going me, officers was to take me care and told Highway Lloyd spector get leave, Jones back in I the car and so went day par- (Tr. Patrol, ear-lier who and went on to Mendenhall.” back ticipated 197-98.) activities surveillance testimony This was likewise con- Mendenhall. any- tradicted Officer Thames or up the me drive- Thames took 15. “Officer one else. taking way we me and he was and as driveway up log started kick- Mississippi he started The official radio back, Highway February me in the he kicked me in Patrol my slapped kidney entry pertaining me back contains vehicle hit- know if he was I don’t head and license cheek radioed to the scene of the hitting ting me (panel truck) hand or me with his in- arrests: “B./6152770 something did this all but he with volved in demonstration.” Baldwin testi- jail way up then he got door and after fied that Huemmer out of ” * ** (Tr. 283- me inside he shoved van “assumed” the Men- 84.) denhall demonstrators “he was anyone just type.” (Tr. 142). hippie con- nor else Neither Thames testimony. tradicted this (Tr. 349), progress and pe- in Mendenhall While the there was disturbance. jail they prior in the at- that to the disturbance were that all contend titioners any provocation, or resist- no one had caused trouble without and beaten tacked 341). By (Tr. there Rev. ed his count that Perkins’ arrest is the version State’s deputy and alleged set were at least five sheriffs attempt the sheriff strike highway pa- and re- between seven twelve spontaneous free-for-all that off a fight jail trolmen in the at the the the time of what District the use sulted in that The sheriff testified “rather violent broke out. as characterized swung appar- prisoners. against Rev. at him for of the no Perkins force” several point responded hit- ent and that he Despite on this some reason the conflict ting emerge him or three undisputed two times with facts relevant unexplained fist. nei- For some reason the record. other ther Perkins nor Rev. was for the State16 witness assaulting charged prisoners were with Sheriff, County Ed- Jonathan the Rankin other sheriff officer. jail wards,17 appeared son whose night Rev. affair is participating the sur- Perkins’ account that after He that Mendenhall earlier somewhat different. testified veillance activities brought jail day. that after he was into the several Edwards stated in the Sheriff officers, including sheriff, proceeded prisoners he knew brought (Tr. provocation into they without him beat after workers boycott insensibility.18 con- 345), His version was he there was a that knew “ * * * along got jail testified, 18. I and when Six people jail, I saw in the of course adverse officials called four State why Martin, Deputy ar- B. who was horrified as we were A. witnesses. got jail during present and and when I in the the disturbance rested Sheriff was charges came to me Rev. Per- Jonathan Edwards over who filed the right away said, Buckley (see App. kins, and this the smart and Rev. Brown ballgame, nigger, B), and this is a new the State. not called was you’re Simpson now, County you Brandon, began, are in and second encounter we and This the Court’s uh, began me, he to beat that The first was and from with this individual. they Edwards, Cir., beating me, continued I States v. time United just Department punched was beat to the floor and 333 F.2d in which sought injunction just really and beaten.” Justice (Tr. 304-05.) (Emphasis added.) to restrain his Civil Act of 1957 “ * * * Federally protected they there interference with the right came back over stomped up and beat me to the floor and he beat a black to vote after register me, they waiting citizen County Rankin and then took me the fat Affirming to me Dis well and seemed that there was courthouse. injunctive coming trict Court’s relief on radio denial some sounds over the theory coming, the engaged the F.B.I. or someone was defendant had systematic continuing they get mop and so made me blood and coming my they intimidation, was all course of the Court referred out of head and mop get mop to the incident as an “isolated occurrence” made me the floor and accepted finding they and hit me “there was would and kick me as justification up mopped got I reasonable to believe that the floor I and then put again.” mopped such an incident would ever occur floor the officers they 333 F.2d at me in a room and back had me to my dissenting panel my As a member of that wash head and wash face my myself they up then conclusion was affair clean and when found momentary they coming was “no case of out the F.B.I. wasn’t isolated vio- Implicit beating up again, lence.” 333 at 581. was me started ing and curs- my flagrantly conviction that such at me then lawless me in took repeated fingerprint taking conduct would be in- room started * * * junctive my imperative. Now, fingerprints relief was then years later, torturing us, more than seven this record started it was horri- favorably fying, imagine (cid:127) —even when most read I couldn’t even my prediction. happening, sheriff —bears out was one of the officers took Brown, firmed who Rev. stated Sheriff Edwards testified that afterward mop up the sheriff made several references ordered Rev. Perkins to prisoners’ (Tr. 357). activities on the floor blood during Mendenhall before and the as- also admitted that follow- sheriff story repeated sault.19 The same jng deputies proceed- his disturbance by Douglas Huemmer20 and Manorris 0f ed to shave the heads Rev. Brown Odom, students, one of the who testified personally and Huemmer and that he that the sheriff “beat so [Rev. Perkins] whiskey poured on Huem- moonshine viciously (Tr. 243). (Tr. his shirt out.” 359). came mer’s head There was they demands, a fork that was bent down and where I don’t know up said, brought guess from, got copy me and that fork he I of them had you this, began Mendenhall, and he took that seen read and he my nose, put nigger they say, that fork into fork and read them and would pushed said, it policemen then he took that fork and louder, one of the and my they nigger took down throat and then that can’t read I can’t stand a reading them, beat me me over ground, there and loud. Then he started Thames, they standing he was and Officer me and then saw they doing talking, said, get most of the then and them that the wall and one of Lloyd they nigger here, beat me to the floor and Mr. started out of and sitting talking was down on the front Jones I and started out me out when up stomped got somebody desk and he and he me hit me from the door my they I head, and this time was almost out.” then kicked back on and (Tr. 307-08.) against the and me and knocked me door they there, then they got beat me out of and “ * * * say I heard Sheriff Edwards up the me around and stairs Perkins, to Reverend this is Brandon they got when me to the iron door and Mendenhall, and not and then he walked they open, it beat me there and wasn’t hitting over and him started and then me into the kicked cell.” leaning said to one against students (Tr. 288.) nigger get the counter he said “ * * * Edwards and Sheriff Sheriff somebody off that counter and hauled Highway Patrol- Edwards’ son and two billy off and smacked him with a club men that I don’t know the names of they and beat Reverend Perkins to the and a leather black- Officer Thames had up they get and floor he couldn’t and jack they began thing beating and kept telling get up him to and Officer Perkins, Brown, Reverend Reverend said, get up Thames I’ll him and he myself Nall David and and one of kicking walked over there started students, other beat Reverend him, and then the officer who had to the floor then Brown down fingerprinted inme Mendenhall he came dragged Reverend Perkins was over on out he had on the same suit and he the other side and beaten down said, whip came out I wanted to officers, five other I hear about could nigger I when was Mendenhall being him I beaten and then was beating and he walked over and started knocked out and when I I came to heard with me his stick.” ordering mop them Reverend Perkins to (Tr. 284r-85.) up the blood that was on the floor. “Well then he beat me for a while and By bleeding this time Nall David was he walked off and then Officer Thames all over floor and Reverend Perkins flashlight came back and he lying was sorta stunned on the floor his hands and he hauled off hit got up him kicked until he my up me with it and I had hands * * * Edwards, then Sheriff Sheriff my like this and he hit hands and his son, patrol Edwards’ and two or three flashlight flew out of his hands and by every officers would walk two or really got broke and then he mad and three minutes and kick or hit Reverend then he hit me three or four more times blackjacks Perkins with one of their said, through you I’m or their feet.” yet.” (Tr. 218-19.) (Tr. 285-86.) they brought deputies “Then 21. Huemmer Reverend testified that Perkins justified standing against procedure by in while I saying “they wall, policemen nigger.” and then all didn’t want me to look like a got (Tr. 223.) him around and told him to read whiskey evidence introduced where the establish evidence to doing graphically illustrates the treatment it was nor what came from testimony although night, re- jail the was accorded them.22 time of at that garding deny strenuously purpose behind brutal- sheriff did drinking ity was uncontradicted or were clear and had been men during question. hours in drunk days arrests all 23 de- after the Five however, prisoners, testified sought pending remove fendants drinking deputies a clear several prosecutions the Dis- State criminal liquid cups, like paper smelled pursuant the civil trict Court they appeared in- to be alcohol and alleging statute,24 in their veri- there no evidence toxicated. While deprivations of petition suggesting of- fied removal whatever injuries by rights guaranteed minor ficers even suffered under Federal law incident, photographic 245(b) specifically result of the 18 U.S.C.A. § photographs County 22. in the exhibits Included son. In fact Rankin deep showing jail, lacerations in the back two into the when I first led was head, in, numerous bruises of Rev. Brown’s Brown were when Perkins and led torso, and mouth thing on Perkins’ Rev. that the Sheriff said was first whose ballgame, of teeth were one of students this new ain’t is a whole this County that Simpson County, Rev. Brown testified knocked out. this is Rankin shirts, the students used their some of then and I’m in control here and went stop water, blackjack to bleed- soaked cold down with his beating started finally jail ing. was released from He on Reverend Perkins.” Monday, posting the (Tr. 221-22.) $5000 after bond by day Mendenhall, the sheriff. demanded after Earlier that being owner, by denied oath Sheriff Edwards under a local store assaulted any prisoners charge of with that he struck Rev. on a Brown was arrested blackjack. disorderly District Court sus- conduct. He testified objection attempt fingerprinted to an tained the State’s who him there officer by testimony introducing present impeach County jail. this was the Rankin at deposition son, of the sheriff’s who “Ho he had on the came out same suit said, Edwards struck Rev. Perkins stated that I and he came out and wanted to blackjack (Tr. whip nigger least twice with I when was in Men- testimony 353-54). Huemmer denhall and he walked over started (Tr. (Tr. 222) 269) beating David Nall con- me with his stick.” (Tr. 284r-85.) firmed this account. Ironically, by a similar disclaimer “Any following of the or actions sheriff identical connection pi-osecutions, commenced in a injunction led issue in the 1964 action may State court be removed Judge District same conclude defendant to the district court of the “Reject- perjured Edwards had himself. United for the district States and divi- any- denial that he Sheriff’s used embracing place sion wherein it is thing hands, [Judge but his found Cox] pending: * * * Grim the ‘Sheriff struck (1) Against any person ” who is denied blackjack.’ with a United States or cannot enforce in the courts of such Edwards, 17, supra, 333 F.2d right any providing State a under law (dissenting opinion). rights for the citizens testimony leaves Huemmer’s little doubt States, persons the United or of all as motive: jurisdiction within the thereof.” “ * * * They kept repeatedly saying 1443(1). § U.S.C.A. going you to me that teach people protected Federally lesson and teach those a lesson activities. “§ 245. rights, highway patrol about civil saying kept going (b) acting Whoever, officers we’re not whether or law, stand for that civil Mis- or stuff force threat color sissippi. willfully injures, intimidates or force attempts with, injure, BY THE COURT: or What officers interferes saying that? or interfere with— intimidate (1) any person he is BY THE WITNESS: because or has Officer Bald- win, Thames, been, in order to intimidate such Officer or Sheriff 245(b) (5) Mississippi provided in to “law- tions to the courts of fully [encourage] persons or other holding probable [aid] after there was participate, without discrimination on arrests, peti- cause for all the * * * color account race [or] trial, tioners would receive a fair any or activities de- the benefits there therefore no “federal partici- scribed” in that section and to being prose- which violated pate “lawfully speech peaceful or as- charges against [peti- cution of these any sembly opposing oppor- denial of the court, in the state whether tioners] tunity participate.” (Emphasis to so groundless added.) (Emphasis or not.” added.) Following requisite eviden- stayed This Court the remand order tiary hearing26 the District Court en- pending remanding appeal. prosecu- tered an order establishments or which serves the ises, lodging the aforesaid other which holds itself out as other establishment public any ment which serves the cert beverages principally of such public or other establishment which counter, or commodations of ment, restaurant, been — cility cilities, privileges, any tered employment agency; ment, ;of benefit, service, privilege, program, agency person color private employer or (F) enjoying (C) applying for or (B) participating (2) (C) applying ^{[*****] [*] [*]} which is persons using premises motion any person hall, sports arena, stadium, or labor or of by any place or subdivision or or * * * (A) enrolling school or or establishments to transient soda any any perquisite thereof, the services activity any ^{[*] [*]} organization, from—(cid:127) engaged (i) any gasoline station, cafeteria, picture house, theater, con- of exhibition physically State or consumption fountain, perquisite establishments, other which is located and because because of his race United public college; any ^{[*] [*]} provided public within the in or goods, services, advantages, in or person any agency thereof, which serves guests, lunchroom, ; subdivision there- inn, hotel, enjoying or enjoying employ- public, or or other selling serving patrons or located States; thereof, hiring hall, advantages and which the aforesaid attending any enjoying ^[*] or entertain- ^[*] on the or or adminis- he is or has or of or any premises provides food employ- facility joining or of within motel, [or] prem- lunch or ^{[*] [*]} class [or] any any any any any any (ii) ac- fa- fa- or or of is date the removal action sought 705; Cooper v. proceeding 353 F.2d 729. City Hartfield v. both; or graphs (2) shall be fined not subject shall imprisoned or pating been, assembly of tion on account of been, or in order to intimidate such fully aiding activities described * * * citizen or sons to tivities described opportunity tion person so * * (2) (5) any citizen (4) any person (B) affording (1) (A) through (1) (A) participating, Cir., 1966, * F.2d years persons opportunity persons imprisoned participate; both; prosecutions. District Court declined (A) through (2) (A) through be fined not more than on account Federal or Jackson, or and if death results 362; lawfully * participate, or for life.” in which in order opposing * and if any n from-— imprisonment not more than ten in to so (A) through 360 F.2d or any Mississippi, Kaslo injunctive other not more than one another any Alabama, other or encouraging of the benefits or ac- (E) participate * bodily injury Cir., 1966, (1) of race [or] the same without without discrimina- any speech of the benefits person more than subparagraphs citizen from law- City or race (E) or (F), or intimidate 282; person subparagraphs subparagraphs denial with another relief he is or has (2) * protection or —(cid:127) or or $10,000, Cir., Cir., discrimina- [or] to consoli- other is or Meridian, any Smith any years, shall (F) ; subpara- or class peaceful against partici- $1,000, of results color, year, * color class term such per- has (1) or or or or temporal geographical mere or remote- The Law (except ness is irrelevant in an eviden- cases in which several Unlike tiary sense). The critical factor rejected attempts to remove we have purpose whether the sole of the State pending prosecutions to State criminal discourage proceedings or criminal tois present in- courts, Federal effort punish activity pro- protected a law 1443(1) jurisdiction voke cannot real- viding rights equal civil racial istically be characterized frivolous. terms.29 Quite obviously its aim is to vindicate Novelty pres- under the no barrier right statutory specific Federal circumstances, ent The thrust however. segregation following protest racial Rachel, prior Peacock and our own attempt by enforcement of- State law clearly pe- decisions establishes discourage suppress ficers to or ex- allegations require- titioners’ meet the through ercise of that the initia- undisput- ments for removal relief. The groundless prosecutions tion of ed evidence in the record shows that be- wholly upon based offenses. fictitious yond doubt are entitled to it. novelty assertion, Its lies seldom squarely considered before this Cir- present Within the context Ra- both cuit,28 rights rem- that the civil removal chel and Peacock stand for no more than edy may racially be invoked dis- acknowledged proposition the now criminatory prosecutions State criminal jurisdiction Federal civil regardless of where or when the arrests predicated cannot be on a bare assertion (or allegedly criminal conduct osten- prosecutions illegal, the State are sibly motivating them) place take charges racially or that the are motivat- —that is, regardless of whether the defendants unsupported evidence, ed or actually exercising attempting proceedings infringe that the on the ex- exercise their at the enjoyment ercise or of asserted consti- theory moment of their arrests. rights.30 On tutional See Sinclair v. State g., Cir., Mississippi, 27. E. Griffin v. prohibits 5 application Act of state laws 1970, 168; Boring 435 F.2d way v. Missis deprive any person in a that would sippi, Cir., 1970, 484; 5 431 F.2d Miller rights granted of the under the Act.” Wade, Cir., 1969, 489, v. City 5 420 F.2d cert. 1964, Hill, Hamm v. of Rock 379 denied, 1970, 1068, 397 U.S. 90 S.Ct. 306, 311, 384, 389, U.S. 85 S.Ct. 13 L.Ed. 1509, 609; 25 L.Ed.2d v. 300, Louisiana 2d 305. Rouselle, Cir., 1969, 873; 5 418 F.2d “ * * * enough support It is not City Birmingham, Shuttlesworth v. of 5 1443(1) allege removal under § or Cir., 1968, 529; 399 F.2d Archie v. Mis equal show that federal defendant’s sissippi, Cir., 1966, 5 362 F.2d In rights illegally civil have been and cor- petition none of these instances did the ruptly denied state administrative allege prove trig ers the conduct prosecutions trial, officials in advance of gering their arrests and charges against false, the defendant are protected by providing equal a law for or that the defendant is unable ob- rights race, prose in terms of or that the particular tain a fair trial in a state exclusively cutions were initiated for the court. The motives of the officers purpose punishing, harassing, intimi bringing may charges corrupt, be dating interfering with the exercise of but that does not show that the state rights. such guilty trial court will find the defendant Achtenberg Mississippi, 28. But see innocent, v. in if he is or that in other- fra; Louisiana, Griffin see also v. E.D. manner the defendant will be ‘denied La., 1967, F.Supp. 32, 269 and vacated or cannot enforce in the courts’ of the remanded, Cir., 1968, 991; any right 5 395 F.2d State under a law federal Heymann Louisiana, 1967, E.D.La., providing equal City v. rights.” civil F.Supp. problem Greenwood, 269 36. The Peacock, involved Miss. 384 v. by implication here was 827-828, in favor 1812, resolved U.S. at 86 S.Ct. at 16 Whatley City of removal in v. of Vidalia L.Ed.2d at 956-957. Alabama, and Davis v. infra. “protective 29. The law” in this case is the Civil Act of 1968. “In effect the

23 Cir., 310; subject appellate Louisiana, 1967, review between 1887 384 5 1967, Cir., Mississippi, 1964, Rachel rights 5 381 F. and Peacock were v. Bass 697; first Coor- civil to reach 692, Student Non-Violent cases 2d Cir., Supreme sixty years. dinating Smith, Court in In v. 5 Committee 11, pre- 9, question 1967, each of them the cited in broad 382 F.2d cases supra. Something scope 27, sented for more is re- decision involved the allegations application language quired specifically, of the in § — providing proof prosecutions 1443(1) for removal to the arrest legiti- prose- District Courts of initiated for the State criminal have been enforcing purpose cutions in which an otherwise the defendant de- mate “is solely nied or order cannot valid law enforce courts State but deny provid- such the benefits of a State law defendant equal rights specific “providing civil citizens law 31 equality.” the United stated terms racial States.” Georgia Rachel, 792, v. U.S. at possible At least two alternative inter L.Ed.2d pretations provision of this were availa drawing first, support ble. The The RachelrPeacock Distinction suggestions to that effect a series Regardless superficial ease beginning nine with cases Strauder v. may with cases be distin- which two Virginia, West U.S. guished abstract, however, Virginia Rives, 1880, L.Ed. problems applying correctly involved ending 100 U.S. 25 L.Ed. principles in Rachel and announced Kentucky Powers, with present Peacock to the facts are consid- 1, 50 L.Ed. would have difficulty primarily arises erable. application exclusively limited its situ divergent radically interpre- from two ations in which the defendant denied reasonably given may tations of an unconsti language decisions, some of the both second, tutional re State statute.32 diametrically opposite results. Be- lying primarily upon contemporary analyzing fore the accretion of case law expansion principle of the constitutional them, might begin that encrusts we best equal protection law, would have with a determination of do— what permitted any prosecution in removal of and do not—decide. which the defendant could establish remanding Because cases re- orders deprive his trial in a court would to the moved District Courts were not “equal” right him of an under law— rejected 31. Court rights, inability them, also considered but an or enforce arguments 1443(2) resulting that authorized re § from the Constitutional or laws moval, history concluding that State, “the of § of the than denial first rather a 1443(2) convincingly demonstrates made manifest at trial of the case. words, this subsection of removal is statute In other statute has refer- legislative available to federal officers and to ence to a in- denial or an persons assisting per Virginia ability resulting such officers it.” v. City Rives, 319-320, formance of their official duties.” 100 at 25 L.Ed. U.S. Greenwood, Peacock, Delaware, of v. Miss. 384 U.S. at See also Neal 670. v. 815, 1805, 567; 1881, 370, at 86 at S.Ct. 16 at L.Ed.2d 103 26 L.Ed. U.S. practical purposes 1443(2) Kentucky, 1883, 110, 949. For all § Bush v. 107 U.S. 625, 354; is now dead letter. 1 v. 27 L.Ed. Gibson S.Ct. Mississippi, 1896, 565, 162 16 U.S. evident, therefore, 904, 1075; is v. “It the de- 40 S.Ct. L.Ed. Smith inability judi- Mississippi, 1896, 592, nial or enforce in U.S. 16 S. 162 State, 1082; Murray rights 900, cial tribunals Lou- of secured 40 Ct. L.Ed. by any 990, providing isiana, 1896, 101, to a defendant law 16 for 163 S.Ct. equal 87; Mississippi, rights persons of civil all citi- 41 L.Ed. Williams States, 583, 213, 1898, zens of of which United 170 U.S. primar- speaks, removal [the statute] L.Ed. 1012. ily, exclusively, if of denial such providing course, specific of Fourteenth mean law for civil including, Disclaiming rights equality,” either of Amendment. terms of racial stated Court, guaran- Supreme like rather than broad these extremes constitutional Aristotle, general adopted “phrased appli- a middle tees in terms of course. persons cation available to all citi-

Rachel U.S. at zens.” 384 at S.Ct. at L.Ed.2d 933-934. The Court held the alle- In Rachel the Court theory disclaimed therefore a removal gations petition, the removal if estab- of grounded on an asserted denial of First lished, the ex- were to invoke sufficient rights. and Fourteenth Amendment ju- rights removal of Federal civil ercise portion opinion, In the second of its in 20 There the defendants risdiction. however, the Court declined to likewise pending trespass prosecutions adopt the entrenched Strauder-Rives- sought proceedings from to remove the suggested Powers doctrine insofar Georgia they after the State courts of remedy was available peacefully were arrested in while only if the defendant could establish seeking privately owned res- service prosecution deprived equal him of Many taurants. establishments such operation civil virtue eventually subject public of an unconstitutional State In- law. provisions of the Civil accommodations stead, analyzing legislative after his- Rights Act of 1964.33 In their removal tory purposes and the alleged it was petition they § were ar- designed effect, the Court determined exclusively rested their at- because of might justified, that “removal even nondiscriminatory tempts to serv- obtain discriminatory in the enactment, absence state prose- ice that as a of their result equivalent if an basis [can] cutions or could not rights denied equally prediction be shown an firm enforce the State courts that the defendant ‘denied or providing [will] be equal laws specified cannot enforce’ the federal citizens of the United States.35 rights in the state court.” at 384 U.S. opinion of the deals with 804, 86 S.Ct. 16 L.Ed.2d at distinguishable sharply two issues. The meaning 1443(1) pre- first of the The “firm basis” for “clear § “any phrase providing provided by allegations law diction” rights.” Rejecting expansive petition in- of the removal in Rachel because terpretation language previous City the ba- decision in Hamm v. data, Hill, sis available historical the Court of Rock 379 U.S. concluded that it Supreme be construed to “must 13 L.Ed.2d There 33. Title II of the 34. As the Court defendants modation effected members of the terms abetting, the 42 U.S.C.A. § 2000a. of] * * * custom accommodation racially casian race.’ í¡« ^[*] segregation Negro to “the full and í¡! » for discriminatory and * * * serving race conditions not alleged: ” the sole any place perpetuating explicity pointed out, 384 U.S. at and convenience on the in Act, so-called and without discrimination such ‘their arrests were purpose seating 201(a), basis equal enjoyment ground places white or imposed public 783, * * * members of and provides of of upon accom- aiding, public upon upon Cau- “the race [the 35. The Title of A only ever, on rights under the removal facts” enactment of the Public Accommodations age of ated. Amendments because the Civil lief. 28 U.S.C.A. § S.Ct. (Emphasis could removal 1964 appeal.” under “a at which entitle the “Since petition short and 16 L.Ed.2d at 928. had not been not have the 1790-1791, that Act. invoke petition added.) proceedings 384 U.S. at Civil the First the alleged application explicitly alleged plain petition predated is 1446(a). Rights It 16 required enacted until after recites statement of the L.Ed.2d at defendant and Fourteenth deprivations had been initi- 793, Act of of facts, Rights Act to n. that Act contain 21, cover- 1964, how- 934. the re- 86

25 Rights of no ted in their State trials was rele- the 1964 Civil Court held that 203(c) of “at- vance whatever.38 Act’s interdiction § 36 peaceful tempts punish” efforts to Peacock nondiscriminatory plac- obtain service meant, by public of accommodation es Supreme In Peacock the Court consid- prosecute implication, attempts to them petitions ered two removal and found Thus, petitioners if in Ra- as well.37 both of them insufficient. The reasons chel asked of their had been have, inadequacy for their for more than restaurants, re- and as a race leave years, enigma wrap- five remained “the arrested of their refusal had been sult mystery ped in a enshrouded [and] 39 exclusively prosecuted for conduct fog.” against prosecution by Fed- immunized petition of The first the case involved law, pendency “then eral the mere people charged obstructing with prosecutions enables federal court public Greenwood, Mississippi. streets prediction that de- make the clear alleged It that the mem- were en- fendants will ‘denied or cannot be engaged regis- group of a bers in voter in the courts of State’ force [the]. County, tration activities Leflore any pun- right ‘attempt to to be free of charg- the statute under which activity.” protected ish’ them for vague unconstitutionally ed its 1797, 805, L.Ed. at U.S. at face, application and that its to them was 941. 2d at part policy designed perpetuate of a segregation city racial and State. crys- then went on to make The Court alleged It a result of their also allegations if in the tal clear that prosecutions the defendants were denied petition proven the mere or could constitu- enforce probability, possibility, the substantial statutory41 tional40 and certainty even or the absolute that the courts. State ultimately acquit- defendants would comply * * * would courts person (c) punish 36. “No shall Hamm, acquit decision attempt any person punish or for ex- Cir., Georgia, 5 Rachel v. defendants. any ercising attempting or to exercise 336, F.2d 343-345. right privilege or [this Act].” secured note 42 U.S.C.A. 2000a-2. See § Cir., Farmer, 5 Electric Co. 39. Emerson supra. 1086. face, language prohibits its “On Specifically, to freedom seeking any prosecution person assembly petition speech, under establishment, be- in a covered service Amendments Fourteenth First and cause of his race color.” equal protec- rights guaranteed City Hill, Hamm v. Rock privileges process im- tion, due 13 L.Ed.2d 85 S.Ct. at Fourteenth Amend- munities clauses supra. 304. See also ment. 38. “It answer in these circumstances right Specifically, to vote without eventually might the defendants regard guaranteed 42 U.S.C.A. to race prevail burden in the court. The state provides (1). 1971(b) 1971(a) Section prosecutions having to defend the acting person, whether “no right explicitly con- itself the denial aof intimidate, otherwise, shall law or color of Act ferred Civil attempt intimidate, threaten, coerce, * ** the denial courts person * * * threaten, other clearly appears or coerce the State interfering purpose with the analysis without detailed person or to vote to vote any particular other likely such state behavior of may choose.” as court.” point the Peacock this that 1797, It is at 805, 16 S.Ct. at 384 U.S. at 86 shape, begins enigma in for the to take L.Ed.2d at 941. quotes the Court in which same footnote Judge had In this Bell contended Court 1971(b), 1971(a) (1) it also § and dissenting opinion § in a that considerations elaboration, quotes, 11 principles § comity regard without for the of and further 1965, Voting Rights 42 (b) Act of assumption of the Federalism dictated of 26 petition petition,44 arose from the ar- The Unlike the Rachel second the Pea- charged variety petitions allegation, people with a cock or

rest of 15 contain inciting offenses, including allega- criminal statements from which such permit might inferred, riot, parading and tion without that the be defend- by biting battery police- charged were assault ants ly arrested and participation exclusive- defendants essen- man.42 tially filed because of their “These in an ac- tivity petitions by for against removal identical immunized Federal law Court, denying prosecution.45 that the engaged State District In other prohibited words, petitions conduct while both Peacock stating (broadly construed) that their arrests valid laws assert that the de- pur- prosecutions for the equal ‘sole fendants’ “federal have harassing pose illegally Petitioners corruptly been and effect denied deterring punishing for and them state officials administrative advance trial,” 827, of their constitu- them exercise from the 384 at 86 at U.S. S.Ct. right protest tionally protected 1812, 956-957, 16 L.Ed.2d at neither of discrimination of racial conditions segregation’ (unlike petition) by them the Rachel im- Mississippi.” at 384 U.S. plicit allegations explicit or refutes 1804-1805, at 813, 16 L.Ed.2d 86 S.Ct. at prosecu- inference that the arrests and 948.43 tions were also initiated the conced- held that “to sus- Supreme Court edly legitimate purpose enforcing oth- prosecutions ato tain of these removal erwise valid that criminal laws neither allegations upon federal court anyone the defendants nor else had a petitions therefore case would in this right Federal to violate. Absent such departure from complete mark a allegations petition * a removal * not suffi- statute terms of jurisdiction cient to invoke the 1812, 16 L. at added). 827, 384 U.S. at 86 S.Ct. prescrib- District Court under the terms (emphasis This Ed.2d at 956 ed Rachel. key door. that unlocks sentence is the petition upon alleging prosecu- prohibits 1973i(b), which U.S.C.A. § petition- exclusively attempted merely tion from the stems interference or actual Federally protected ers’ of a [exercise to vote but also similar with the ** * present right]. “any urging person interference case, City however, attempt any person is far different.” aiding to vote Peacock, Greenwood, 811, 3, 384 at Miss. v. U.S. n. 86 to vote.” at S.Ct. 384 U.S. 824-825, 1811, 1803-1804, 16 L.Ed.2d at 86 S.Ct. at at L.Ed.2d at 948. As 16 (emphasis added). subsequent 955 Rachel the statute was enacted petition filing of the removal In Rachel the Court does not once refer the District Court. regarding petitioners’ allegations prosecution without motives 42. The Court as Weathers case came “exclusively” employing as such terms Cir., 1965, City Greenwood, 5 may “solely.” petition, “The removal F.2d 986. fairly allege be read to defend- invoking 1443(1) In addition to solely brought will ants to trial petitioners 1443(2). relied on § also attempts peaceful result of to obtain serv- ground argument Their on the second places public at ice accommodation.” rejected. 31, supra. See note at U.S. at 86 S.Ct. added). (emphasis L.Ed.2d Fol- at 934 supra. 44. See 34 and being exclusively prosecuted interpretation opinion is were be- This by previous own of their Fed- Supreme Court’s cause exercise reinforced equal rights,46 (ii) they petitions Pea- eral civil characterization of the allege this did that conduct for which claim in not cock. “The fundamental being case, then, they prosecuted immu- is were is a case for removal that against prosecution terms 1443(1) upon petition nized under a made § providing equal alleging: specific a (1) were statute that defendants rights charged Of civil terms of race.47 arrested state officers course, petitioners did. under law Rachel offenses state various they Negroes or because Negroes they engaged helping Distinguished Rachel Peacock rights equal assert federal by implication Peacock does over- rights laws, com- civil that ap- rule Rachel. It does not limit charges pletely innocent of the plication reasoning of the to Rachel (2) them, or be that the defendants will racially discriminatory denials of restau- obtain trial unable to a fair state rant service in violation the 1964 Civil basic court. The between difference hold, Act. What Peacock does ap- immediately case and Rachel thus is Rachel, like is that before Federal parent.” at at U.S. Judge is asked to extraor- undertake the (emphasis 16 L.Ed.2d at 955-956 dinarily step halting pending serious added). prosecutions criminal State must be difference,” as the The “basic presented pre- with the for a “clear basis out, goes point (i) then on to is Federally diction” that defendant’s petitioners allege, by in- did not either protected rights by the will be denied voking explicit an Federal or very statute bringing act him trial in a to asserting effect, to facts Initially only possi- court.48 “ * * * 46. law no federal confers an But the nature from refusal. right private absolute on citizens—on right depends upon the reason for rights Negroes, advocates, on on simply prosecution, upon char- anybody public to, charged obstruct of the crimi- acter conduct to be else— street, delinquency to contribute to the allegations nal. Rachel’s still would minor, if, of a to drive automobile sufficient been absent tres- license, police- pass statute, police without bite a end decided by falsely charging man.” his sit-in him with 826-827, robbery. at U.S. 86 S.Ct. at armed 16 L.Ed.2d at 956. “ * * * im- law confers federal many interpreters This sentence had led munity prosecution such state on Supreme of Peacock to conclude that charges.” Court, despite painstaking elaboration 384 U.S. at S.Ct. at Rachel, of removal criteria in intended at L.Ed.2d remedy exclusively to limit the removal prosecutions 1443(1), charged which “Under vindication the conduct rights protected by as a criminal defendant’s federal left to the is offense (see except in state courts Federal rare situations law dis- clearly predicted by “scope theory, it where can cussion of conduct” infra). plainly operation pervasive It reason of the of a did not. explicit state or While none of the federal law Peacock right” inevitably police- had an “absolute man, those to' bite a will be denied very equally bringing act of true “no defendant federal right” law to trial in an absolute the state court.” [conferred] City Greenwood, Peacock, Thomas Rachel Miss. to commit the offense of trespass by refusing criminal premises L.Ed. leave the private of a 2d at 957. restaurant when requested 45, supra. phrase “pervasive do so. explicit See note state He did have an absolute perhaps to refuse or federal law” is somewhat mis- peacefully acquiesce racially leading in a However, dis- in this context. “state criminatory obviously exclusion and to be free law” law sort of refers prosecution resulting only State criminal support sufficient removal under the allega- infringement ble that are basis for forecast the ceded collateral of a Fed- petition. right In eral prevent tions the removal Rachel does not the State allegations enforcing against those were sufficient to in- from specific its criminal laws rights juris- types voke Federal civil of not “pervasive conduct immunized against they prosecution by diction. In Peacock were not. explicit” Federal law.50 theory Supreme On the Court’s cryptic Likewise, charges footnote in Peacock to reference the fact the that are Voting Rights (see may evidentiary of false significance of the Act be considerable 41, supra) easily still leaves the case dis- in the ultimate determina- tinguishable prior purpose underlying from if tion Rachel. Even the ar- petitioners prosecution, to their engaged rest and arrests the had been as would be the de- protected registration race, previous voter fendant’s exercise of they “equal rights,” activities tomatically would not au- nevertheless civil the nearness or re- Rachel invoke the Act—as moteness the arrest in relation the Rights right, had invoked the Act exercise of the Civil of 1964 number they —simply by asserting of other that had been factors. But the absence evi- nothing ques- arrested because and dence those activities has to do with the charges tion petition the were false. The reason of whether the has invoked charged jurisdiction by obvious: the conduct of the District Court providing allegations offense Peacock was in its criminal not for basis Voting protected by Rights prediction” conduct required by “clear good Act. may Rachel. The blunder may prosecu- faith. It initiate criminal By substance, failing allege, tions, through charges even if error the they being prosecuted exclusively were false, enforcing purpose are for registration activities, for their voter may its criminal law. not What do is petitioners open possi- in Peacock left charge solely arrest a defendant bility being prosecut- also previously because has exercised a ed for criminal misconduct unrelated engage protected by in conduct Federally protected of a exercise against prose- Federal law State criminal right.49 The is arrested defendant who cution. charged po- he has bitten a escape responsi- liceman cannot course, criminal Of since the crucial issue is the bility by simply contending underlying for the act prosecution, motivation nothing encouraging time he was in either Rachel Peacock rules or registration, voter possibility or that the arrest and out removal relief even prosecution motivated, simply having guilty not when the defendant is by bite, previous but also exer- it- committed criminal offense equal right. against cise of an prosecution. con- Even a self immunized (i. here, Strauder-Rives-Powers I doctrine e. a vision we consider Title operation application law which its or Act § Civil U.S.C.A. unconstitutionally abridges 245(b). the defend- rights). ant’s hand, On the other “Clearly, the state subdivisions and its law” “federal refers to the kind of may reasonably enforce their criminal (i. statute involved Rachel a statute e. may such enforcement laws. Often valid prohibits prose- own its terms incidentally inhibiting in- have an or pro- cution of the defendant conduct upon timidating effect exercise of a law). tected under Federal protected right. Yet, unfortunate group may grounds 49. Of course the second effect not be incidental allege being prosecuted did setting enjoining the otherwise aside solely protesting justifiable “racial discrimina- enforcement the valid Mississippi.” tion in But conduct criminal law.” Cir., County, immunized unwarranted United v. Leflore States prosecution under 371; either the 1964 see also 18 245(c), quoted 1965 civil laws. Its time did U.S.C.A. Court’s pro- not come opinion, until enactment of the supra. may legitimately do not such laws invoked Federal civil grant immunity prosecution circumstances. terms simply be- for all violations State law Considered— Peacock-Rachel in con- cause those occurred violations and Reconsidered

junction Federal a with the exercise right. grant But immuni- do broad At fact now be clear: least one should ty against any prosecution ex- motivated right of a state “the of removal clusively by purpose the to intimidate a prosecution not been re- has defendant, guilty not, whether or by Supreme Court to the stricted the —and a because—he has exercised group of a small in which state cases right. Federally protected The prosecution trespass to forbid seeks statute, pro- injunction, the Federal like equal enjoyment right ac- the the invoking im- vides munity.51 means guaranteed commodations II Title Rights 1964.” of the ley City Vidalia, Act What- Civil Cir., 1968, v. 5 399 F. Finally, Rachel Peacock since both divergent judicial 2d Yet the 521. two hinge alleged prosecutorial on the motive interpretations of and Peacock Rachel —or, alleged support Peacock, not —to emerged succeeding during that years five relief, is no the claim for removal there precisely parted company almost on necessity allegedly inherent crimi- point Peacock did restrict —whether underlying prosecu- nal misconduct facts, than to the Rachel to its rather le- temporally geograph- tion to be either gal principles prescribed. ically concurrent exercise of with the right. The Rachel issue under approach interpreting Pea The first why Second,52 arrested, is defendant was exemplified by cock, decisions of the arrested, when or where he was or what d52A Circuits Fourth53 Thir charged having he is in- done. The dissenting by opinion of our and in a one nondiscriminatory dividual who ad- seeks Judges,54 may as own characterized place public mission a accommoda- “scope theory. Essen the tially of conduct” tion and then arrested miles is several reasoning follows: one of is as spurious charges aris- hours later on underlying major considerations ing solely prior from exercise expan Supreme rejection of Court’s being pre- “punished” Federal interpretation removal statute sive cisely prohibited by the sense the 1964 necessity for avoid Peacock was the remedy Civil Act. The removal evidentiary hearing protracted in- See, g., McLeod, 51. e. 5 United States v. only pur- iu tablished this record. Cir., 1967, 734, 385 pose voting F.2d 744: was to harass workers —a “ * * * every indication is that [Voting proscribed purpose police made arrests to redress viola- Rights Act of 1965].” law, simply tions of the but to harass added.) (Emphasis Perez, Cf. Duncan voting It 1971, 557, denied, workers. is common Cir., knowl- cert. 5 445 F.2d edge police often 940, overlook vio- 282, 404 92 30 L.Ed.2d S.Ct. U.S. relatively lations of trivial traffic laws. 254. Rarely police if ever do mount massive Davis, Cir., 1969, 52. New York v. 2 411 law enforcement drives to eradicate 750, 856, denied, F.2d cert. 396 U.S. 90 practice driving sinful with burned 119, 24 S.Ct. L.Ed.2d 105. license-plate lights. out When do evening registration Cir., 1971, Pennsylvania, so on the of a voter 52A. Hill meeting 985, and, fortuitously denied, course, cert. twenty-nine Negroes way catch 30 L.Ed.2d 370. meeting home from that one and no Hawkins, Cir., North Carolina v. else, justifiable inference enforce- denied, 365 F.2d cert. 385 U.S. ** * ment loses much of its force. 322, 17 L.Ed.2d 227. 87 S.Ct. dissipated What little force is left history Judge Godbold, Achtenberg of official obstruction of the v. Mis- voting registration process clearly Cir., sissippi, so es- 393 F.2d Peacock,

quiring prosecution’s theory into merit or “causal relation” de- a trial of the which of whether lack of merit—-in effect entails determination charges prosecution, in a Federal fendant on defendant’s arrest State though ostensibly resulting City Greenwood, Pea- Miss. v. even court. entirely 832-834, previous cock, conduct unrelated to 384 U.S. 1814-1816, Federally protected right, Con- L.Ed.2d at 959-961. exercise of exclusively any interpretation sequently, of Peacock were nevertheless motivated suggests protected approach, such as such an conduct crimi- prosecution theory petitioner re- in a nal Federal law. alleges may compet- if he succeed occasion moval action for this choice between ing Achtenberg proves interpretations and causal connection between was activity his Federally protected Mississippi, supra, and note prosecution, probably incorrect. is Achtenberg confront- In the Court was reasoning, according Instead, to this allegations petition ain removal ed with allege prove and the defendant must charges vagran- prosecution’s of that “the charged a violation conduct to be the of cy exclusively attempts were based against prosecu- law is immunized rights guar- by appellants the exercise requisite “equal civil under tion the Rights the Civil anteed them under 1964 sup- rights” This law.55 conclusion added). (emphasis Act.” F.2d at 469 393 language posedly compelled by in the actually been Four the defendants of falsity of the Peacock to the effect seeking charged ra- while and arrested charges “corrupt or the denial” the nondiscriminatory cially the service at rights prior the defendant’s Mississip- library Hattiesburg, public sup- enough, by itself, to to trial is not defendant, pi. teacher fifth white port supra), (see 30, and removal note Adickes, arrested sev- named was Sandra by petitioners in Pea- the that the fact her days and earlier. several eral She charg- cock, Rachel, unlike those sought re- Negro and were friends had prosecuted not itself ed and for conduct library, after which at fused the service by against prosecution Fed- immunized to eat the Kress store went to local law. eral again re- lunch, Adickes was Miss where accompa- hand, the Fifth Circuit On other the because she was fused service store, might adopted Negroes.56 Leaving be described by has what best the nied police Peacock] “The line Rachel ployees [between her arrest to effect and the prosecutions charge vagrancy. spurious is thus between which aon necessary summary judg- the granted the to constitute conduct Court District by specifically protected defendant, state offense is the Court ment equal rights reversing, federal Appeals statute under In affirmed. alleged by petitioner, plain- pointed Supreme circumstances out that prosecutions only grounds where the § relief 1983 tiff be entitled to under “will charge employee, prove is false that a Kress if she can by discourage employment, Hatties- motivated desire and a the course petitioner exercising pen- burg policeman or to an reached un- somehow having derstanding deny alize him for exercised a federal service Miss Adickes right.” store, her to cause subse- the Kress Davis, per- supra, 52, quent New York note she a white arrest was Pennsyl- Negroes.” company F.2d at 754. See Hill v. Adickes also son Hawkins, 1970, Company, vania and North Carolina v. Kress v. S. H. supra, 144, 152, notes 52a 90 S.Ct. added). (emphasis L.Ed.2d aspect plaintiff 56. This case has interest- also held The Court ing sequel. Upon returning prove to her home if to recover she could was entitled in New York Miss filed a her Adickes suit for “that to serve was Kress’ refusal damages alleg- by U.S.C.A. custom motivated state-enforced [a] deprivations ing segregation].” at of Federal result- 398 U.S. [of racial ing (em- pur- from the refusal of service and L.Ed.2d at ported conspiracy added). phasis em- between store immediately interpretation arrested virtually was Miss Adickes of Peacock is vagrancy by in front adopted Second, on the sidewalk identical to that (see it. Third and Fourth Circuits supra). The Court found affidavits petitioners were themselves sufficient allegation support “that con- Inadequacy “Scope duct these which caused the arrest of Theory Conduct” persons vagrancy five under the statutes actually point At this I need do no * * " clearly conduct which was point more than out that “causal con- * * protected provisions of under the prescribed Achtenberg nection” test Civil of 1964.” 393 Act is still the law this Circuit added). (emphasis at 474 Characteriz- present are bound we to follow it in the vagrancy law as a “convenient However, case. in view of the fact tag” immunized attached activities adopted interpretation our Peacock prosecution, Federal law contrary to the conclusions reached Court remanded with instructions circuits, least three other I feel com- charges. dismiss all of the pelled my believing to state reasons for Judge dis- in this Godbold concurred approach that the “causal connection” charges against position the as to the is the correct one. actually inside four arrested place In the first the most obvious dif- library, agreeing of that “the use the ficulty “scope the with of conduct” test charges ‘vagrancy’ in the the label against completely is that it ing nullifies the reason- ‘tres- them instead of the label Supreme in Rachel. the There pass’ require result different does not a prosecutions held that State criminal How- from Rachel.” ever, F.2d at 476. subject are to removal if the defendant against as to case he dissented the alleges pur- proves that the exclusive Conceding va- that the Miss Adickes. pose proceedings “punish” is to grancy charge un- and an was “baseless by him for immunized Federal conduct reasoning subterfuge,” sophisticated his against “attempted punishment.” law spe- Peacock nevertheless was that very pen- such Under circumstances ground- cifically allegations held dency prosecutions a Fed- enables deny charges, corrupt to less motives prediction” eral court to make the “clear rights alleged equal Federal or an rights defendant’s prospective in denial of a fair trial State bring- by very be denied act of will courts re- were insufficient to invoke punitive him to trial. The conse- jurisdiction. moval concluded that He quences prosecutions al- of such are not outrageous rights “an denial of federal simply leviated defendant because the right is not a re- coterminous with to charged allegedly * * maliciously * unre- with 1443(1). move under Close- rather than lated criminal misconduct ness or even concurrence is not the test—(cid:127) protected law. Federal acts charged scope quality of conduct imper- in same: result either case is the law,

be a violation of measured the ex- missible State interference with the four corners of conduct the exercise rights Congress has immunized ercise of guaranteed Act, of which is the 1964 against intimidation. “charges Thus, re- test.” Id. are “scope place of con- qualita- quantitatively In the second movable if vindi- tively they approach permits effective conduct coterminous duct” involve through rights re- activity protected cation of Federal the Civil effortlessly remedy circum- to be This moval Act.” 393 F.2d at 477. Horelick, Cir., 1970, Adickes, politically cert. apparently Miss denied, sort, subsequently in active was involved 398 U.S. juris- attempt L.Ed.2d another to invoke removal diction. It failed. See York v. New expedient navigated simple motiva- issue is the ultimate same —the abeyance proceedings. holding spurious tion for the Arrests arrest arising peaceful prosecutions at- has been exercised until after begun gain pub- tempts places of has service in defendant and the innocent (as activity.” Rachel) do engage “unprotected Un- lic accommodation automatically re- at all defendant not be it would entitle such a standard der imagine spectacle court. move case to a Federal difficult Adickes, allege prove petitioner must still or a Sandra Thomas Rachel only sanctity prosecuted cowering arrested and inside sheltered library attempt that his ef- because of that public the restaurant rights, Federally he was protected forts were thwarted exercise of Negro. Resolving re- step arms such issues yet into the outside afraid waiting quires inquiry no exten- less around factual police officers charges trumped-up va- needed to determine sive than corner with second-degree prosecutions “unprotected” grancy, bigamy mur- whether merely en- interpretation of Peacock conduct smokescreens An der. tailing consequences officially deprivation its own Fed- carries such sanctioned rights.57 eral refutation. argument argument place place any In the

In the third fourth support Pea- in- “scope Rachel and conduct” the distinction between evidentiary suggests scope terpretation in- cock Peacock lies hearing necessary part whether its tended to limit Rachel to facts as determine compromise competing Federal have been violated of a between the prosecutions en- overlooks demands of Federalism and the vindica- complete- tirely the fact case tion of individual civil either * * * City Rouge See, Doug- system. g., ing 57. of It is e. Baton v. of federal our las, undesirable, especially respect Cir., 1971, 5 F.2d There with 874. charged prosecutions, a defendant in a Louisiana State that a removal criminal preliminary disorderly require con- court with the offense of statute should a alleged prosecu- duct that federal of the of his arrest trial in the court issue * * attempts exclusively removability *; tion from his of arose avoidance nondiscriminatory purposes a the to secure service at one of of the subject Rights reading prede- the Act of restaurant Civil Strander-Rives the manager 1443(1). of 1964. The had refused ad- does cessor of While Rachel § allegedly mission, pre- the defendant in a entail some instances trial wearing tie, although liminary a was not to the determination of federal coat patrons jurisdiction, several white ing were also not wear- what this is on the Court Douglas evidently the a coats and ties. called considered to be rather nar- securing charged police help issue, and demanded their row whether the conduct by the service. Instead was arrested. We is within the area withdrawn he the for a full from the ambit allow- remanded to evidentiary District Court federal statute hearing. prosecution not, able here state as is — Georgia, Cir., very question proposed, is See also Walker that charge. v. on subject at- of the criminal 405 F.2d tempt where defendant’s state charge Supreme that to secure service led to The Court determined has history language find- assault. We remanded for additional nor neither ings by pointing 1443(1) supports after that the District Court a conclusion § radically petitioner’s disrupt Congress al- so out that the victims of the leged meant to “just processes fifty happened to states assault be armed the criminal blackjack.” pistol impose so a burden and to considerable throughout Wyche Louisiana, And see v. 1192. on the federal courts Cir., 1967, 394 F.2d 927. nation.” 411 F.2d at 754-755. analysis See, g., Davis, supra, both incon- 58. New v. This involves an e. York sistency misapprehension. in- note and a 52: only consistency assuming con- lies “The distinction thus made charged [Supreme] “is as a criminal Rachel and Pea- duct [in offense responsive proper federal is the area withdrawn cock] work- within charged disregards was, effect, ly equivalent 1443(1) fact unless exercising imposed on an for I think that result have not been it. limitations grant- remedy clearly terms of is inconsistent with the even broader Federal —the ing against injunctive pending the removal statute itself. relief brought prosecutions State criminal Significance Younger Harris v. solely purposes for of harass- bad faith ing a Fed- the defendant’s exercise of Probably compelling the most reason right.59 statutory eral constitutional rejecting “scope in- of conduct” hardly plausible It is contend Peacock, however, pro- terpretation is prescribes policy non-inter- Peacock analysis parallel rem- vided an by way cir- ference of removal under edy injunctive relief of Federal the de- cumstances that would entitle pending prosecutions. In State injunction. fendant to an clarifying opinions its earlier series Finally “scope test im- of conduct” (see decision in Dombrowski plies, practical matter, as a the Fed- supra) Supreme Court has reaf- remedy eral civil long-established removal principle firmed remedy all, except precisely under injunction prerequisite that as a existed in Rachel. allege circumstances prove ir- the defendant must plain No matter how un- the fact reparable injury “special form of disputed defendant circumstances,” evidence such facts establish- “denied or cannot enforce” proceedings have the criminal right specific courts a under Federal been initiated in bad faith for the providing harassing intimidating statute purpose right.60 terms of race —the standard for of a constitutional exercise prescribed by Rachel —he still will be has also the other hand the Court On clearly spelled out circumstances unable to vindicate that those Pfister, 1965, statute from the ambit of prosecution.” See Dombrowski allowable state 14 D.Ed.2d The 1964 and 1968 Civil Younger Voting Rights v. Harris and the discussion of Acts Act prohibit companion cases, merely open and ob- infra. vious official harassment but all actual attempted Younger Harris, 1971, 401 U.S. interferences with the exer- 746, 669; rights protected v. cise of Federal 91 27 L.Ed.2d Samuels under those S.Ct. 764, statutes, regardless 1971, 66, Mackell, 91 of whether 401 U.S. S.Ct. the tech- Boyle 1971, nique 688; Landry, clandestine, v. is overt or direct 27 L.Ed.2d or indirect, 77, Spurious 758, L.Ed.2d immediate or remote. 91 27 401 U.S. S.Ct. prosecutions Ledesma, 1971, designed 696; arrests and U.S. effect Perez v. 401 Dyson purpose 701; illegal simply 82, 674, that L.Ed.2d are no less be- 91 S.Ct. 27 they ostensibly Stein, 1971, 200, cause 91 arise from 401 U.S. S.Ct. unrelated v. 769, Byrne Karalexis, 781; activities. 27 L.Ed.2d v. 777, misapprehension 1971, 216, L.Ed. from U.S. 91 S.Ct. 27 arises 401 assumption mistaken interpretation that alternative 2d 792. “to inter of Peacock a should refuse necessitates Federal courts proceed guilt determination of the threatened defendant’s or fere with or embarrass ings excep Judge innocence. It does not. in those A District in state courts save try interposi petitioner’s does not for the issue of the which call tional cases guilt prevent action, equity in a removal no more than of a court tion guilt injury irreparable he must im determine the which is clear and innocence * * * person seeking injunctive of a defendant against alleged No is immune relief minent. good prosecution. prosecution in bad-faith for All faith City simply Douglas alleged v. need do both cases is to de acts.” criminal 163, Jeannette, 1943, 157, termine on the basis of the 319 U.S. available evi him, sufficiency 1324, including 881, 877, dence before 1329 87 63 S.Ct. L.Ed. Young, support conviction, added) ; parte (emphasis of the evidence to Ex cf. allegations 123, 441, whether the 87, infra; L.Ed. are true. S.Ct. 52 See note 209 U.S. 28 Cir., Wanick, Johnson, 1968, 5 Cameron Hudson v. cf. v. also 714. See 1971, Dobbs, 218; 390 U.S. 88 v. 20 L.Ed.2d Jackson 444 F.2d 928; Cir., 1971, Gordon v. 442 F.2d 5 34 wrongs themselves, courts that, by those be left State not sufficient are or, Supreme upon default, anticipatory justify relief from a Fed- Court, place simply in a is relevant eral court. considerations There system priori presump- here, precisely for not identical Federal while Judges Peacock, more in- are tion Federal in Rachel that those involved Judges remarkably clined able than similar.61 or better State nevertheless carry dictates of Constitu- out the allegations example, mere For tion.63 de- under which the statute the criminal granted vague being prosecuted if it is a State’s Even fendant is taint- overbroad, has of its criminal laws is enforcement or that its enforcement ignoble purpose, “chilling ed the human on the exercise effect” rights, agents particular not enforcement do frailties of the constitutional prosecutors injury, —police requisite irreparable not show the officers —do against automatically criminal provide insulate whatever for since no basis being prosecution assumption broken those who that the statute is responsibili- Historically applied manner law. dual in an unconstitutional protecting enforcing sanction ties of the law and courts would State rights primar- Likewise, application. individual have remained such an even incidentally ily showing difficult and has with the States. The pur- progressively of ef-

abridged task burdensome constitutional legitimate carrying responsibil- objective fectively out these of en- suit of the enough.62 accomplished forcing if the ities law is could be criminal pe- regard maintaining good-faith to be States’ Due intact efforts comity riodically disrupted by courts principles re- Federal of Federalism discover and quires can the ultimate correction whenever the defendant reasoning Compare Landrieu, Cir., 1971, 926; in Pea- the similar 5 442 F.2d 48, supra. Star-Satellite, Cir., 1971, cock, Rosetti, v. Inc. 650; City Peoples Birming- F.2d v. 1352; ham, Cir., 1971, anticipated Thevis a defendant whose Thus Moore, Cir., 1971, 1350; upon v. 440 F.2d may prosecution evi- rest Thomas, Cir., 1971, Gornto 439 F.2d illegally in violation of seized dence not entitled Fourth Amendment injunctive such relief Federal prosecution something passing 61. There is than of more allege merely he can significance in Mr. the fact Justice any resulting prove conviction opinion Stewart’s Pea- constitutionally “Dom- infirm. would bo injunctive suggests pos- cock relief as a the well-established browski confirmed sible alternative to the civil re- principle defenses that constitutional remedy, moval initially charge must state criminal 16 L.Ed.2d at while his in federal rather than state tested subsequent Younger concurrence in inti- Ledesma, Perez courts.” underlying mates that the rationale the 693, 117, L.Ed.2d 27 at 91 S.Ct. at U.S. anticipatory denial of relief absent a show- Brennan, (concurring opinion of at 724 ing of “official lawlessness” be cannot 1951, J.) Minard, ; U.S. v. 342 Stefanelli il- extended to situations which the 138; Douglas 118, 117, 96 L.Ed. legitimacy the has of State’s action been Jeannette, supra. City of proven. “In such circumstances the rea- reasoning Compare in Pea- the similar policy deferring sons of judication for outweighed by ad- state 30, supra. cock, note injury are Peacock, flowing very bringing City Greenwood, Miss. 63. Cf. 1812, 828, proceedings, perversion 16 86 at state at S.Ct. 384 U.S. very process supposed pro- rights removal “The which is 957: civil L.Ed.2d at require vindication, does not not vide does need statute permit judges speedy protect courts of the federal and effective fed- action judici- rights.” 56, put the state 91 brethren of eral 401 U.S. at S.Ct. Immediately ary L.Ed.2d at 27 at 682. trial.” on following this statement Justice Stew- Mr. Rachel. art cites

35 bring good a constitutional defect in the purpose forth rather than in faith for the allege preliminary proceedings, enforcing or can criminal laws. State counterargument prove prosecuting him are that those that the defendant will absolutely Younger pure ultimately prevail of heart. at trial if he is recognize companions weight and its thus innocent carries no at all in that give indisputably case, very sound pendency effect because the of the proposition ordinarily prosecution vindica- deprivation the right entails of a pursue tion of a criminal defendant’s constitu- Federal in a —the rights initially guaranteed left tional must be lawful manner the freedom being State courts. the Constitution re- without quired precondition as a to defend Younger explicitly But the cases also against illegitimate charge. criminal recognize ex- there are nevertheless Judges grant When Federal such relief traordinary circumstances in which by implication asper- do not cast usually persuasive com- considerations of sions at their brethren on the State ity regard proper primacy Extraordinary bench. circumstances re- system of State in our Federal courts quire extraordinary relief. Time is of legit- place. A have no State can have essence, and in order to obviate prosecuting imate interest citizens intimidatory spurious pro- effects of the charges merely purpose spurious for the ceedings they once, stopped must be at harassing intimidating exer- weeks, years not several months or after right. other cise of Federal On “Accordingly, are initiated. in this prosecu- hand, subjected those to such ap- context a is an suit [Federal] may (and tions threatened others who propriate means to cut short the uncon- interest, them) paramount have a prosecution.” stitutional state Ledesma, Perez v. gaining merely acquittal ultimate 401 U.S. at proceeding, in a in never criminal but (concurring opinion 27 L.Ed.2d at 725 being brought In such to trial at all. Brennan, J.). necessity for circumstances there is no weighing against individual inter- State Younger itself, philosophy Like the respects ests. In all the balance is logic “special circumstances” favor of individual and exception virtually indisputable. The State, pretext State “when a under the logic applies same rem- irrefutable to all preserving of laws, law and order uses local deprivation edies for Federal face, valid on their to harass and rights by means of illicit punish citizens for the exercise of their proceedings, including the exercise federally protect- constitutional jurisdiction statutory rights.” Louisiana, ed Cox v. 1443(1). consideration The fundamental Cir., 1965, F.2d purpose underlying prosecu- —the faith” and tions—is the “Bad Younger same. explicit- sextet therefore merely lin- ly “harassment” shorthand anticipatory sanctions Federal relief guistic describing a conveniences allege prove when the defendant can by way subject proceeding interdiction prosecution that the has been instituted harassment, injunction,64 just purposes phrase in bad “de- faith for as the McGraw, Cir., 254; concurring opin See Justice Brennan’s Gaines v. Garrison, Perez, 393; ion in Sheridan v. n. F.2d 118 and denied, 693-694, 724-725, Cir., cert. S.Ct. at 1969. 415 27 L.Ed.2d at 685, 1040, citing Aehtenberg, supra, 1970, 24 our in 396 U.S. 90 S.Ct. decision Garrison, 1968, 685; Johnson, E.D. v. Cameron v. 390 U.S. L.Ed.2d Shaw 390; 611, 1335, 1971, F.Supp. La., Morrison For cf. 88 S.Ct. 20 L.Ed.2d 182. 328 examples 1958, 102, judicial interpretation Davis, Cir., cert. 252 F.2d the v. 5 1008, 968, application denied, U.S. of the “bad faith-harass 356 1075; Gayle, standard, Perez, M.D. v. ment” v. 2 L.Ed.2d Browder see Duncan aff’d, denied, F.Supp. 707, Cir., 1956, 1971, 557, Ala., 352 5 F.2d 142 445 cert. 145, 1 L.Ed.2d 404 U.S. 92 S.Ct L.Ed.2d 77 Voting 1443(1) subprovision the in the § nied or cannot enforce” Rights cryptically ain Act alluded to in which so situation denotes a supra). (see in note may appropriate. In both cases footnote Peacock relief importance removal relief is Peacock had denied paramount Since the issue of being deprived petitioners apparently been had who defendant the whether activities, engaged in and since veneer of the similar beneath of Federal explicitly prosecution, Supreme taken legitimate not the had Court 1973i(b), question be- charged with offenses account the § whether he effect, Whatley was, protect- in Court in themselves fore the are not conduct that controlling. whether Peacock was ed. not, point- remedy Congress that provided held it was for The Court has the rights petitioners in Peacock that the because out deprived those of Federal grounds re- had for removal that invoked as of their cannot assume race. We pro- Supreme lief Court conclud- in District those Court has somehow deserving prohibited at- rights that visions of 1973 which ed those § less protection tempted with individuals of all citi- interference than the injunc- “voting attempting safeguarded by to vote.” Since zens the Federal guarantees provided that time the new tion. Rights Voting of 1965 Act enacted, not concluded been Court Whatley prohibitory protection of the that “the interpretation “scope of The conduct” language was now in the statute that is therefore, cannot, be recon- of Peacock be, not, invoked- it could not pri- Of course the ciled with Rachel. present in Peacock. movants why mary (if only) its reason not problem. are not faced with movants they proponents adopted that alleges have it is expressly petition Their removal cannot reconcile approach “causal connection” engaged they which acts were accom- with Peacock. We protected statute.” new were City plished Whatley this feat in F.2d at 526. Vidalia, Cir., 1968, al- Whatley reasoning court of the though wholly find for reasons I do not petitioners in Peacock thus that the was satisfactory. allege deprivations of unable were requisite Whatley equal under the petitioners In were ar- rights” by city allegedly providing rested “law for officials while regardless that, engaged designed peaceful activity terms of race succeeding encourage activity registration, footnote reference voter they statute, Supreme had denied alleged protected was under U.S. 1973i(b).65 Quite ground.66 solely ob- C.A. course this was Of on that § relief (lo Whatley apparently disagree re- 65. The with the “While we * * * allege they being prose- Whatley did not we decision cent exclusively majority accept cuted result of view of the cannot registration However, opinion voter activities. court did the Peacoch Voting explicitly protective 11(b) did invoke the account of take provisions Voting Rights Act, was enacted al- which Act of leging “protected prose- subsequent their conduct the state initiation of prosecution” sought removed. Mr. statute. there to be cutions By writing majority, implication Stewart, F.2d at this amount- Justice * * * allegation being ed to Mr. Justice referred to [it] prosecuted exercising Federally pro- Douglas principal basis for it a made * * rights and tected no other reason. dissent supra, Davis, 52, 411 York New 66. The Second Circuit has crossed F.2d at swords n. 3. subsequently significance However, con- with the Fifth on that Court of this “scope footnote would footnote its elaboration ceded “citation way interpretation elliptical to decide such rather conduct” be a Peacock.

37 distinguishes viously jurisdiction satisfactorily exclusively this removal to those Whatley Peacock, Whatley in in from since circumstances ally charged the actu- which conduct upon petitioners explicitly pro- relied the the as a criminal offense is 1973i(b), provisions against the prosecu- which tected tion, Federal law § immunity provide logically only possi- an Court found to there are two against prosecution remaining: more broad even bilities either 1973i (i) § immunity provided (b) distinguishable equivalent is for some the reason than by Rights Act. from the in the 1964 Civil statute found sufficient (an unlikely possibility, Rachel that since reasoning Unfortunately, in the while rationally inexplicable) distinction is Peacock, it Whatley neatly side-steps (ii) the “factual recitations” in the Pea- Rachel, there into slams head-on petitions cock simply insufficient explicitly “in- did also not the jurisdiction to the invoke removal protective provision of voke” the the prescribed by (as terms previously suggested). Rachel have I Voting Rights 1964 the Civil Act. Like Rights Peacock, Act in it had been Judge petition at enacted time the the the removal Sobeloff of Fourth Circuit has, Supreme reluctantly, adopted filed. alter-

was Nevertheless the the first petition held Court that Rachel’s al- native. did contain “Since § grounds leged specific prohibition ac- “it the state for removal because * * * ap- ‘punish attempts pun- tion to recites that facts that invoke [es] Rights present plication ish’ in Rachel the distin- Court Act] Civil [the guished voting rights public appeal.” 35, supra. In cases on short, See note cases, accommodations and refused if Rachel were entitled to retro- permit interpreta- application removal. this Under active Rights the 1964 Civil binding 1971(b), upon petition, is tion of me, Act his removal which to save § agree might present must that I case it that should also seem Peacock North be held not entitled to removal.” have been accorded similar assistance Hawkins, supra, Voting Carolina v. note connection with the Act (concurring opinion). F.2d at 562-563 of 1965.67 immediately However, preceding Adequacy of the “Causal Con- that “in Peacock sentence * * * states nection” Test voting rights pro- where the sup- visions of invoked If, then, 1973i(b) adequate stat- an claim, port Supreme removal utory of removal vehicle for exercise federal confers Court held ‘no law jurisdiction and, like Court — ’ immunity prosecution [s] from state only Whatley, I it is—the believe growing attempts to out of secure possible Rachel and distinction between I Id. at 562. As vote.” (other than untenable one Peacock already however, pointed out, not what discussed connection Supreme at Court held all. “scope test) must conduct” lie simply Supreme removal “factual recitation” in the held that petitions. petitions words, allegations exclud- In after Peacock other demonstrably unlikely hypothesis sufficient invoke were not because, required jurisdiction Supreme limit Court intended open. City important question” Hill, left Rock Hamm 312-317, Horelick, supra, 389-392, L.Ed. New York at at 305-308, complete 702-703, coupled with 424 F.2d n. 2d of the retroactiv absence of mention point ity Peaeoeh, might question course, be leads me to be refuted Of Court, Supreme Supreme ex Court never lieve that contention simply plicitly problem itself, known decided considered the for reasons applicable against giving application Act assumed retroactive prior place However, its took discussion of to conduct 1965 Act. application the 1964 the retroactive Act enactment. they by 1443(1), prediction” by very being did assert fact of § brought “denied or in defendants were trial court the de- [could] State rights equal their civil fendant will be “denied or cannot not enforce” They might rights. have done the this, courts. enforce” his Federal That is all by invoking 1443(1), theoretically, Rachel, an ex- and Peacock re- § providing equal quire. plicit Federal statute for rights race, civil in terms of Voting but Davis 1965) Rights (the ofAct statute their removal enacted when not been foregoing For I reasons believe Court. petition filed District was Whatley’s companion ease, decision might Alternatively, have asserted Alabama, Cir., 1968, Davis v. 527, petition did—that Rachel —as the petitioner was incorrect. There the charges arrests, prosecutions arose alleged prosecution “the arrest exclusively subsequently conduct being pur- carried on with the sole against prosecution insulated pose harassing peti- effect fortuitously equal enacted civil punishing tioner and of for, him and others neither these statute. But did deterring him and others from things. effect, In Peacock was dismissed * * * urging Negroes register for failing to a claim. state voting free of racial discrimination.” interpretation Nor is this shaken added). (emphasis 399 F.2d at 528 universally acknowledged the otherwise clearly Such conduct was immunized pleadings precept that in Federal courts against prosecution State criminal liberally are to be As the construed. 1973i(b), as the Court § had held Supreme thirty Court has held for at least Whatley. years certainly it held —and However, the Court had also held in policy Rachel and Peacock—the under- Whatley that the distinction between lying calling the removal statute is “one case and Peacock was that the defendants legis- strict construction such explicitly there had invoked in re- Corp. lation.” Shamrock Oil & Gas petition 1973i(b), moval while the § Sheets, 1941, 100, 108, 313 U.S. petitioners Peacock had been unable to 868, 872, (emphasis 85 L.Ed. provision invoke the same because it had added). By implication, policy calls yet Therefore, been enacted. peti- for strict construction of removal Court in Davis reasoned that since the de- tions as well. prohibition fendant relied on 1971’s § against against intimidation directed analysis On this of Peacock it is now voting (rather 1973i(b)’s proscrip- than ap- § clear that the “causal connection” “urging tion with those proach interference adopted Achtenberg we is the aiding” vote) or others to Regardless “there was no physical correct one. explicit prohibition by a federal statute temporal immediacy or remoteness of against intimidation, threat charged the conduct as a criminal of- coercion which Davis contends fense to the actual exercise of Federal basis of his arrest.” F.2d at 528. rights, equal petitioner in a re- (i) moval action is entitled to relief if problem analysis with this is that alleges, explicitly implica- he either apparently overlooks the fact that tion, proceedings that criminal have been Rachel the also did not ex- exclusively instituted him plicitly be- provisions invoke the relevant previously participated cause he has Rights of the 1964 Civil Act but were against prosecution activities insulated pro- nevertheless held to its be entitled to preemptive pro- Federal statute petition tection because their recited facts viding in terms of application ap- that invoked of the Act on race, (ii) proves allegations. those peal. 35, supra. See note In Davis Under such circumstances a court petition Federal in- likewise “recited facts” that provided with the basis for a “clear 1973i(b), application voked even Congress ostensibly though petitioner relied on as Title I of the Civil provi- altogether statutory By plain pro Act different of 1968.69 its terms it rely protection entitled to vides If Rachel was broad for numerous sion. allegations categories petition specifically in to of factual enumerated “Federally protected application pro of the 1964 Civil and activities” invoke Act, any attempt by Rights I that Davis was like- hibits or of believe force threat force, law,70 to relief under the entitled 1965 whether or under color of wise Voting Rights injure, of the al- Act on basis intimidate or interfere with petition. any engaging having legations person in his for or for engaged pre in such activities.71 More Sufficiency The of the Petition cisely proscribes the statute interference any person “aiding encouraging with or Beyond any peti- doubt removal persons participate, other without dis stringent pre- meets criteria here tion crimination on account of race color [or] by In Rachel and addi- scribed Peacock. * * * any in of or the benefits invoking provisions of tion described, or similar inter activities” providing specific Federal for statute person any participating ference with rights terms, equal it also civil racial “lawfully peaceful speech assembly or negates hypothesis any explicitly that the any opposing opportunity of denial rights alleged equal deprivation of civil 245(b) participate.” 25, (5), so § legitimate resulted from efforts supra. appellants activities the 23 Mississippi to enforce otherwise State protest connection with Mendenhall valid criminal law.68 precisely fit demonstrations within this upon petitioners The statute which category.72 by 245, rely, was enacted 18 U.S.C.A. § 245(b) Compare language 71. with §of allege that all of the 68. 2000a-2(c), 42 the statute U.S.C.A. § charges and have “have no basis fact as a vehicle exclusively utilized for solely and for been effectuated “injury, pe- intimidation or Rachel. Since depriving purposes and effect interference” “force threat of force” Federally or protected titioners linguistic equivalent of is at least rights, including by threat or force or provide 245(b) “punish,” intimidating, § must likewise force, punishing, injuring, removal, “on an identical basis for since interfering, attempting punish, and or prosecu- prohibits face, language pe- its intimidate, injure, with and interfere attempted exercise or exer- par- tion” persons titioners, and the class rights. City equal boy- Hamm County cise of civil ticipating Simpson v. 311, 1964, 306, Hill, of Rock 379 U.S. demonstrations, the exercise cott 389, 384, 300, 13 L.Ed.2d 304. 85 S.Ct. peacefully protest rights dis- of their publicize crimination to conduct 25, supra: 72. 5 remedy See notes boycott de- which seeks to * * * which nial of (C) (1) “applying for or en- : Section protected § 18 U.S.O. activities are any perquisite joying employment, or 15.) (App. 245.” by any agency thereof, United States;” (“We Black Em- 73; demand 90-284, see also Stat. 69. PubX. post office, office, ployees in FHA (1967), S.Rep. Cong., 721, 2d 90th Sess. office, office, stamp News, food welfare Cong. ASCS & Code Admin. 1968 U.S. ” * * * “We demand office p. 1837. employees voting Black 30% police Beyond officers doubt State board.”) of the local draft members Federally pro- deprive citizens of who “enrolling (2) (A) : or at- public Section tending arrest, of false means tected or school xmblic acting imprisonment prosecution (“We complete college;” call for school States v. of law.” United “under color desegregation.”) 299, 1941, 326, Classic, 313 U.S. “participating (B) (2) in or : 1383; 1368, 1031, Section Monroe 85 L.Ed. service, privilege, any benefit, enjoying Pape, 365 U.S. provided facility activity program, 505; or L.Ed.2d by any or sub- administered State Nosser, supra, F.2d at Anderson v. deseg- thereof;” (“We Cir., demand Bragan, division regated Tolbert 188. See also 1971, and Black recreational facilities force”), recently “threats held entail utilization of Admittedly we Congress plainly at- did intend an unsuccessful connection narrowly ambit courts to circumscribe the pending tempt to remove prohibited impermissible intimidation proceeding Federal court to a I injury, Title attempted Act Civil (b)’s interdiction legislative long, response “by or was the force interference intimidation history quo and nonviolent to a sordid of violent extend does not of force” threat against brought by civil the State of harassment directed action warranto white, workers, spoke out who of a black Mississippi charter to revoke the against disgrace racial operating free the national corporation a nonprofit segregation. participated No who the benefit one program for service health Negroes, as primarily its could have been so naive poor people, enactment County. to believe that the official and unofficial v. Hinds Williams Jackson Center, Cir., techniques silencing Community for dissent con- Tri-County 5 physical brutality. 1971, The force fined F.2d 221.73 Whatever 452 variety employed forms, approach in assumed those cir- merits such an blackjack, prod legitimately ap- cumstances, from the sheriff’s cattle it cannot gas pending plied tear confinement for “in- of a here to bar vestigation” prosecution. followed cold-blooded criminal murder.74 There were also covert more Force” “Force Or Threat Of including measures, mass arrests on trumped-up charges, bail, and denial of place, apart from the fact In the first arrest, grounded confinement and criminal convictions on nonexistent evi- inherently prosecution coupled ridiculously coercive are all dence severe with (and invariably therefore in nature sentences. We need no exten- undertake personnel city-paid action, hired ns full-time supervisors.”) rather a civil criminal than might factor that well have influenced (2) (O) Delphic “applying attempt decipher or : en- Section Court’s any joying employment, perquisite pronouncements 245(b). or The broad of § by any private employer thereof, ade found brush quate Second Circuit any any agency permissible paint State or subdivision the limits of ”* * * (“We thereof demand intrusion Federal into administration 30% employment of all in all business es- of a State’s law need not neces criminal sarily prove prob we of the tablishments as sufficient to handle 30% buying statutory population. also call for We lem of in a construction employment city where, of Black citizens has context Mr. Justice Stewart house.”) hall, pointed out, reasons, bal court “for various (F) “enjoying goods, differently.” Young (2) might : Section ance be struck facilities, services, privileges, advantages Harris, 1971, 55, 37, 91 er U.S. v. 401 * * * (con 757, 746, 669, or accommodations of L.Ed.2d 682 S.Ct. cafeteria, lunchroom, restaurant, opinion). curring lunch facility counter, fountain, or other soda 1966, See, g., Price, v. e. United States public which and which is serves 1152, 787, 16 L.Ed.2d 86 S.Ct. principally engaged selling food or Posey Cir., States, v. United prem- beverages consumption denied, 1969, 545, cert. Snowden ” * * * closing (“We ises demand States, v. 397 U.S. United cafes.”) all back-door 964, 25 L.Ed.2d memorable reaching involving 73. In this conclusion three civil workers cases incorporated opinion Goodman, Sellwerner, into its as dictum the Andrew —Michael Chaney reasoning mur Second that “intimi Earl Circuit’s and James —who * * force,’ ‘by dation Mis force or threat of of 1964 dered summer cooperation activity, sissippi denotes violent with the ordered Ivu Klux Klan legal functioning processes, County deputy what Earlier state a Neshoba sheriff. Chaney ever York the motivation.” New had arrested the sheriff Horelick, fixing Cir., 1970, (while “speeding” 424 F.2d flat he was denied, tire) cert. other men 398 U.S. had held the two However, investigation.” 26 L.Ed.2d the abortive also Anderson See “for supra. Nosser, in Iloreliclc. removal effort involved a Congress adopted explicitly point examples official out of the search for sive language than statutory pur- broader processes for the misuse of it or threat violence” to “violence compelling meek subservience pose of accomplish a result. broader wished to supremacy. Our principle of white implausibility enshrouds An aura of with them.75 are filled cases monosyllabic suggestion despite its magni- problem this with Faced mis- simplicity purpose somehow has might Congress responded with tude carried. proponents protecting of racial a law Moreover, even if we were neverthe- “by vio- equality interference ordinary crimi- less to conclude that the Instead violence.” lence threat prosecution not constitute a does nal of force.” term “force or threat chose the depriving defendant force” “threat of familiarity passing more than No hardly rights, we could language English required when the evidence the same result reach conclusively phrase that difference. The discern the actually that the custodial establishes 245(b) appears in far the treatment of comprehends not two broader merely devastatingly merely brutal. violent but physical or in- threatened actual ensuing circumstances Under such possible timidation all the modes of but segre- artificially proceedings cannot be unofficial, compulsion, official con- illegal gated previous force but warped minds of ceivable those integral part of an considered as must be discourage few who seek or eliminate initiated course of action one continuous exercising Federally protected individuals exclusively purpose of intimida- for the rights. In view of the events that trial, than the arrests no less tion. prompted statute, prohibitory that accom- themselves and the violence language hardly could have been less them, merely panied one more mani- expansive. harassing To exclude crimi- to utilize the festation of intention prosecutions scope nal from the of § by ar- force—whether threat of official 245(b)’s immunity simply because beat- convicting confining, resting, the de- ings killings may provided have by beating up ef- them fendants or fectively primary impetus for its enactment is to —to the lawful exercise neutralize homage pay while eviscer- 245(b) rights.76 ating remedy. § The ultimate conse- same, quence of intimidation is the jail,

whether the victim is in “Rights” “Benefits” v. grave. hospital or in the might objection ad- Another against Stacked these considerations 245(b) as the use § vanced only we have as an alternative the ex of removal the exercise vehicle for a pronouncement cathedra that “force” criminal jurisdiction it is a is that since means “violence” not “force.” Some- explicit- does not its terms statute ly logic interpretation how the escapes of this “rights” there- it is confer substantive debating me. Without “equal providing for civil a fore law questionable proposition that a law de- 1443(1) meaning rights” within the § signed century to correct the abuses of a totally position is a strictly construed, and Rachel.77 Such should be I need F.Supp. Clark, S.D.Ala., 1965, See, 249 720 g., Nosser, supra; e. Anderson v. court) preceding ; (3-judge McLeod, see also Cir., 1967, United States v. 5 734; Thompson, F.2d footnote. 385 v. N.A.A.C.P. Cir., 1966, 831, 5 357 F.2d cert. denied Button, 1963, U. 371 v. Cf. N.A.A.C.P. N.A.A.C.P., sub nom. Johnson v. 385 328, 338, 433, 415, 9 L.Ed.2d 83 S.Ct. S. 820, 45, 58; 17 L.Ed.2d 405, 418. Riner, Cir., 1965, Dilworth v. 5 343 F.2d suggested Bailey possibility 226; Patterson, 1963, Cir., 77. This 5 v. supra, Horelick, 201; Fair, Cir., 323 F.2d Circuit Meredith v. 5 Second 702, found 586; 73, the Court but 424 F.2d at 328 F.2d v. United States 42 triggered exclusively by activity. our well-entrenched inconsistent with right is, course, according provided

policy of full effect Such underlying guaranteed objectives broadly under the First Amend- remedial Congressional ment.79 Rachel of Fed- While teaches that the authorization protection rights jurisdiction. broad afforded all citizens We eral civil precludes sweeping consistently Constitution the charac- exhor- heeded the facilitate, provisions terization its of 42 tation U.S.C.A. 1988 § rights” providing equal “law hinder, rather than the vindication 1443(1), meaning within See, rights. g., Moreno v. § those e. (5) 245(b) provides 1299; Cir., nevertheless Henckel, § F.2d 5 431 unique, specific protection- phrased in Garson, Cir., 430 F.2d Hall — terms of race—for the right 430; Employ- First Amendment v. Florida State Gomez protest segregation. Service, Conse- Cir., F.2d Cir., ment quently providing a law Meridian, 569; City Brown v. rights, satisfying requirements City 602; Lefton 356 F.2d of the civil 280; Cir., statute. Hattiesburg, Cherry, Cir., 293 F.2d Brazier v. Nothing 245(a) (1) in either § po- from that We cannot retreat closing quotes (c), the Court which its as a result of ostensi- sition now some suggests opinion, contrary result. bly persuasive difference be- substantive Obviously subprovision the first does “right” a Federal tween Federal Congressional more than disclaim a intent “benefit,” judicial interpreta- unless the deprive jurisdiction the States of application tion of the Civil prosecute otherwise misconduct degenerate Act 1968 is into sterile that also constitutes a 245,80 violation § manipulation. in The exercise verbal merely pro- the while other section grim enough repel here are facts to such immunity police vides officers with linguistic frivolity. against possible prose- Federal criminal cution for otherwise official there is But an even more funda- lawful provisions acts. Neither these has justification rejecting mental the re- for any by relevance to the the facts revealed interpretation strictive 245 that of § record of this case. post application limit its the would to ex punishment illegal coercion rath- purpose (preventing In its facto er than both un- prevention by way of it of re- warranted exer- interference with the 1443(1) moval: neither nor Federally Rachel protected equal § cise of rights) civil speaks creating in terms of a law Federal scope prohibition and the of its rights equal providing (against civil a but of law attempted injury, intimidation “right” them.78 for by asserted within or interference force or threat prerogative context force) 245(b) indistinguishable this case is the from is § protest peacefully to provisions racial discrimination the relevant Civil of the 1964 harassing, prosecutions free bad-faith support Act held re- to sufficient unnecessary question. it (“Nothing to decide the in “offense” this context * * * Tri-County, supra,, prevent Likewise states that this section shall * * * jurisdiction a exercising 245 is criminal “§ statute that terms from State rights. prohibits pro confers no It over over it which would have offense penalties types jurisdiction vides for certain of con in the absence of this section * * * protected ”) duct relative to activities enu refers to the conduct of petitioners merated therein.” 452 F.2d at 3. n. a removal action rather than to acts of those who violate 24, supra; Georgia Rachel, 78. See note v. (the referent), is § 245 obvious there U.S. at at S.Ct. impediment still no here. “Offense” means at L.Ed.2d 933-934. a criminal act. These commit- 59, supra. 79. See note They merely ted no “offenses.” victims. if Even some tortuous construction could somehow we that the term conclude question jurisdiction Rachel. cumstances of whether moval Unlike prosecutions are not the removable Peacock does not this case involve 245(b) Supreme specific petition’s and Rachel. The failure a to invoke Court,83 Circuit,84 re- providing equal like Fifth has Federal statute jected failing proposition rights race, the defend- either in terms of acquittal by ant’s a rely ultimate explicitly a such statute on invariably trial neglecting allege constitutes sufficient facts from which rights and an ade- protected vindication Federal prosecute purpose to exclusive denying quate anticipatory reason for may conduct be inferred.81 petitioner Federal relief. who If remaining, only practical question allege prove removal is able seeks then, District adequacy is the very bringing act of him finding “no federal Court’s rights trial * * State court * violates being prose- is violated protected by preemptive * * * Federal law charges wheth- cution of these providing specifically groundless er or not.” terms, help plea racial Findings: The District Court’s protection must answered with be Trial” “Fair true, court. Federal No matter how accompanying the order opinion In defendant alternative answer its remanding prosecutions eventually the District will fair trial receive separate acquitted Court occasions will in the courts if he refers two State establishing is, Supreme has the absence of evidence innocent it, Georgia phrased a fair trial will v. the defendants be denied “no answer.” Rachel, here courts.82 The Court finding “supported 16 L.Ed.2d at that the concludes also refers evidence” There is no civil thus agreed point, twice. are all on this We “abstention doctrine.” McNeese Cf. absolutely no too have doubt because I Education, 1963, Board of 373 U.S. be fair trials would the defendants’ 622; 10 L.Ed.2d Monroe Supreme impartial allega- Pape, supra, If the ultimately Mississippi re- would Court of satisfy proof requirements tions and transgressions might re- dress 1443(1) is, Rachel and § —that sult. jurisdiction must be Peacock—removal regardless Unfortunately finding, prospective however exercised indisputable be, may the State’s it is to- fairness or unfairness of nevertheless tally proceedings. present irrelevant cir- 35, justifiable supra. courts 81. reliance on State See note 84. Even of Federal vindication for the ultimate 82. in this case “There is no contention statutory rights “does constitutional support record evidence in this no protect from harass [defendants] not petitioners any suggestion can- these by enforce intimidation the law ment and perfectly fair not will not receive county, city, agencies ment court.” trial of their cases state protect from ar not them State. It does 30.) paragraphs (App. later Several en masse frivolous or unfounded rest repeats again one that “there is not protect charges; them from it does not anywhere be found breath of evidence and incarceration until continued arrest any suggestion support this record release; deposited their bond could for every one of these [or] inference * * * protect them from it not does perfectly will receive not litigation rights expensive their until often his the state court.” fair trial of case protect finally ; it not does vindicated 34.) (App. away frightened being from the them from 38, supra: see Zwickler also Seo of their and lawful assertion lawful 1967, 241, Koota, protest S.Ct. v. U.S. 88 denial of the continued Cir., 444; 391, Thompson, Dombrowski v. 19 L.E'd.2d N.A.A.C.P. them.” 479, 487, Pfister, denied sub cert. U.S. 357 F.2d 1116, 1121, N.A.A.C.P., 14 L.Ed.2d nom. Johnson L.Ed.2d Findings: The District Court’s regardless lief of whether other evidence “Probable Cause” strong suggested —no matter how — exclusively the whole affair the re- The District Court concluded that the protest sult of the Mendenhall demon- protest defendants’ Mendenhall activi- clearly strations. Yet is law that the subsequent ties and their arrests in ad- hearing evidentiary District Court in an joining County entirely Rankin un- were petition on a removal consider all must temporal, geographical related in a relating purpose evidence to the “they causal sense and that ar- not prosecutions, simply arrests and doing by any- rested these officers single question probable cause.86 thing which a federal Judge here inquiry confined his (App. 35). foregoing do.” As the dis- probable the issue of cause and over- suggests, pivotal cussion this is the find- everything looked else. ing upon which all else turns. legitimacy of this characterization Ordinarily our a de- review such Court’s, by opin- is confirmed the District by Judge termination the Trial would be findings explicit ion. There are that all sharply by stringent curtailed re- probable of the arrests made with quirements “clearly erroneous” cause, Highway Patrol main- prescribed by test F.R.Civ.P. 52. How- tained surveillance activities on Men- ever, abundantly it here clear that the demonstrations, denhall that Patrolman misimpres- District Court was under the Baldwin knew of the demonstra- none sion that the factual issue relevant tors before he “apparently” arrested them to a determination of the motive for “ani- was motivated prosecutions question was the whether mosity,” protest and that the activities supported initial arrests were subsequent arrests were unrelated. probable Indeed, cause. obvious However, explicit the Court made no cursory reading from even a of the Dis- findings following at all on relevant Judge’s opinion finding trict that the evidentiary presumably issues and de- no “causal connection” between the exer- clined to consider them: cise 245(b) of insulated and the part, (i) arrests was for the most if Whether the van was followed entirely, product findings High- Mississippi Mendenhall all of proba- way car, were made arrests Patrol ble cause. (ii) Whether Baldwin the state- made words, In other the District Court mis- ments attributed to him Huemmer takenly finding prob- (referring “niggers” assumed that a defendants able threatening cause the arrests awas suffi- them because of predicate denying cient re- protests), Mendenhall validity 85. The doing anything they of this conclusion is some- arrested for had a what right tainted other statements in the federal to do” were not because Judge’s opinion suggest chm-ged Mississippi District which what with is under completely he protesting misconceived our hold- law the criminal offense of ings Aohtenberg Whatley, supra. infra). segregation (see in and racial note example, distinguished present finding any redeeming For the Such a is without petitioners case from those the cited value. pointing charges every out that “the only to, precisely one of those cases not related but 86. The here is the same as error actually enjoyment by Cir., stemmed Georgia, from the involved Walker petitioners right positively given those of a the earlier 5 and unre- by Congress public Cir., them Georgia, under the accom- of Walker v. lated case modations section of the Civil F.2d 1191. In both of those (App. 36). Act.” instances the District had incorrect- Court “scope only ly Of course this is the discredited was to assumed its function approach already of conduct” we have re- evi- determine whether there was some jected Aohtenberg. justifying The District Court the arrests of the defend- dence simply petitioners assumed the were “not ants. now, you (see County Brandon” (iii) in his stated Baldwin Whether got supra), note assistance, “I’ve request for radio niggers a white and truckload of there’s (xiv) Edwards Whether Sheriff them,” to read the demands Rev. Perkins forced (see Mendenhall demonstrators (iv) to the the said stu- Whether Baldwin 19, supra), van,” niggers get note dents, in the back “You against charges (xv) Whether (v) beaten Huemmer was Whether demon- way jail, two leaders of the Mendenhall to Officer Thames on strations circumstances sur- Huem- had threatened whether Thames rounding alleged justified the offense Mendenhall civil mer of his bond, $5,000 activities, any (xvi) evidence (vi) previously Whether there was had Thames Whether charge support driv- life, to of reckless Huemmer’s threatened charges ing against Huemmer or the swung (vii) at Rev. Whether Perkins against resisting for arrest students sheriff, carrying weapon, deadly concealed (viii) Rev. the sheriff beat Whether (xvii) any evidence Whether there was blackjack, awith Perkins charges support to Rev. previ- (ix) Rev. Brown Whether Perkins, Paul Buck- Rev. Brown Joe ously day by in the arrested earlier been ley carrying weapons, re- for concealed jail one who in the of the officers was sisting inciting arrest to riot. night, Dis- In view of the which the evidence (x) prisoners jail Whether consider, to his conclu- trict Court failed “niggers,” repeatedly referred as ar- “were not sion that defendants abused, or threatened doing any- rested these officers (xi) heads of of the Whether two right thing had a federal which prisoners were shaved and moonshine particularly surprising. do” is not them, whiskey poured on one Throughout hearing opin- its (xii) depu- or his Whether sheriff repeatedly dis- ion District drunk, ties were any intention determine claimed guilt (xiii) said, of the defendants.87 Whether or innocence Sheriff Edwards Judge nigger, Certainly as- correct “This is the and this is a smart game, try you’re Simpson suming required new ball not not he was “They may Johnson, guilty supra, be or innocent of these Of. Cameron 621-622, thing at offenses but I want to find 390 U.S. ap- out what it federal these state of- But is [is] L.Ed.2d 190-191. petitioners propriate ichat- violated them to when there no evidence ficers charges any support here. I com- ever don’t believe the suggesting any right speed nothing le- or the record here have re- at all in carry gitimate prosecutions. weapons. sist or arrest concealed motives ** supra. 38, 58, 61 and Those are federal See notes (Tr. suggestions 104.) Moreover, despite the con- necessary trary by Court, hardly we resolve find it need “This court does not credibility proper conflicting discharge inferences of its function to decide choices my guilt The evidence conclusion. to reach innocence undisputed. compelling petitioners.” (App. 32.) In event these justification be conceivable The Court here falls the same there can no into “credibility supposed trap leaving it when that “if there is in for these states charges, when the District Court fact no basis for the that defi- choices” tlie respect ciency by exposed to seven- will be is clear that the evidence record acquit- the District of fact and a of material issues adduced directed verdict teen findings necessarily make tal will follow as a matter of Court declined may perfectly ir- viewed those issues law.” all bur instead Such statement question important appropriate to the most when is some evidence relevant there text, supra. justify the an in- in the case. See advanced State good-faith prosecution. ference of 46 charges Supreme reversed Court court the has in a Federal State criminal grounded in- so petition on evidence But he went convictions for removal.88 on a of due a denial not sufficient as to constitute further and assumed that he 1964, Columbia, sufficiency process obligated law. Barr v. of even consider 1734, 146, L.Ed.2d 12 factors—not 84 S.Ct. one of the 378 of the evidence as U.S. 1962, 766; Taylor Louisiana, 370 U.S. factor, them— v. as one of as the sole but 395; pur- 154, 1188, of L.Ed.2d Gar- 8 in the ultimate determination 82 S.Ct. 157, Louisiana, 1961, prosecutions. 82 In- pose ner 368 U.S. the arrest v. for findings 207; prob- Thompson 248, v. of on his 7 L.Ed.2d stead he relied S.Ct. City 1960, 199, Louisville, 80 362 U.S. of able cause.89 654; 624, Ar- 4 L.Ed.2d Cole v. S.Ct. ap- of inadequacy this sort of 514, 196, kansas, 1948, S.Ct. 333 U.S. 68 present- proach problems proof 644; City Palmer v. 92 L.Ed. cf. is action ed a civil 1563, 1971, 554, Euclid, 91 S.Ct. 402 U.S. testimony in- obvious. Since the 98; Mississippi, v. L.Ed.2d 29 Johnson invariably parties con- terested fusing is almost 212, 1778, 1971, 29 403 91 U.S. contradictory,90 ab- an utter 1964, Columbia, 423; v. L.Ed.2d Bouie support a criminal sence of evidence to charge 1697, 347, L.Ed.2d 12 378 significance becomes of critical 894. not to a determination of whether indisputable racially fact that prosecution Given are the arrest and regarding finding meaningful District Court’s There can be no motivated. prosecu- purpose for the arrests motives when assessment of official 92 grounded inadequate as- is on an consequences tions action of official ultimate resulting from unexplored.91 sessment of the evidence Particu- remained have larly improper application an de- the legal most of the erroneous is true when re- standard, not bound coin- we are

fendants are It is no mere black. viewing re- familiar Negroes figured promi- this record cidence that have pertinent nently many of Rule 52.93 strictions cases which those exempt Cf., my opinion done for acts crime. It does 88. for the United interfering purposes County, Cir., 1967, with the other than States v. Holmes probable It is here that F.2d 149. to vote. person guilt arrested or innocence of the person only single sug- If is clear- relevant. 89. In have we even becomes case police probability gested finding probable cause, ly guilty, that a apart legitimate is much reason all have acted for a from a consideration of the evi- clearly produced greater hearing, is is if the arrest dence itself than McLeod, ground concluding v. a sufficient baseless.” United States illegit- Oil-., F.2d 744. arrest was not undertaken Presley City purpose. imate v. of Monti- shortcoming single greatest Cir., 1968, Perhaps cello, F.2d 92. opinion that, testimony case, however, In Court’s other of the District purpose petitioner holding the ar- refuted the claim. While the while the exercise contended been was not to intimidate that he had arrested rests only” trying Federally protected rights, it does not once to use a “white restroom legitimate station, independ- suggest conceivable at a service there was other prompted might establishing ent he was loud evidence motive drinking. equiv- no such There can be There is no here. been State’s action course, suggestion, because there alent evidence here. underlying legitimate these ar- motives prosecutions. See, g., rests and e. infra. equivalent prob- failed to em- has the fact-finder In 93. “When connection with an making legal injunc- proper involving propriety ploy standard lem may finding Voting Rights determination tive relief under the Act of its Flemming, Cir., 1965, Judge pointed Ferran has out that stand.” Wisdom 571; exempt prohibi- United States “the Act from its does 1966, Service, Cir., 360 persons guilty against 5 Food Pickett’s tion acts directed

47 testimony wholly the iden- testimony that Baldwin knew uncontradict- is almost one, occupants by Mississippi. No of the when tities stopped van’s the ed it, “undisputed Judge con- to who and refers District least of all the suggested yet testimony” hearing, “routine traf- that he made a the has ducted arrest,” surely implication suggest accu- fic it is it does not or could rately prescribing completely extensively present full unrealistic the during proof transpired the standard of met, that could seldom picture of what testimony Highway 49 it is to confined as march on U. S. Mendenhall jail County Bald- of the officer himself. No one but Rankin and at the prior February 7, possibly night offered direct 1970. Our win could have way. testimony there after- point his intentions that “Where decisions hearing adequate Highway purpose of and the noon on 49. If has been an forcefully undisputed in- an utter absence to show the arrests was fact facts charge, support jure, interfere the state intimidate or with of evidence participated re- proper for this court to cause is direc- in Mendenhall demonstrations earlier the district court mand to charge].” afternoon, would have Walker Baldwin tions to dismiss [the it, Cir., 1969, unlikely particu- Georgia, 417 F.2d been rather to admit 5 v. larly pen- maximum criminal since the under 245 are for such conduct § alties The Relevance of Circumstantial $1,000 imprisonment for one fine and Evidence year bodily injury not result. does when here) course, (as obliquely require Of when the conduct self-incrim- cannot We charged inatory testimony precondition a criminal offense is not as as a rights. law Federal conduct against immunized of Federal the vindication prosecution, the State criminal assessing legitimacy the mo- In of evi- fact that there is not one shred underlying have action we tives official charges support does still dence recognized previously “coer- finding automatically not mandate a proved purpose direct cannot be cive proceedings ex- initiated been have to circumstan- evidence. We must look clusively purpose. proscribed As for the develop tial a standard evidence charges teaches, * * * Peacock even false adequacy measure recently individuals who have Cir., McLeod, proof.” v. 5 States United not re- exercised now 741. Were we 385 F.2d showing More- alone. movable on that suddenly every removal demand in over, evidence if at least some there is who the officers an admission from case underlying prosecutions, that fact illegal filed the arrests and made the may very tip in favor the balance well 1443(1) charges, ob- would frivolous may though State, even its action viously than a useless shrink to no more racially discriminatory overtones. body appendage of Federal on the one is the nebulous and evasive issue only. “remedy” rights law, in name motivation, purpose in resolv- of ing easily com- an alternative does Such necessarily presume the must we consideration. mend itself for serious legitimacy purpose and of the State’s rele- Instead, all the must we consider purity of its motives. including evidence, offered vant officers, determine whether police our account of But we must also take charges merely purpose arrests and experiences, own common demon- Mendenhall Judges, intimidate Court was to men. When the but as strators, conced- rather than enforce opinion is no there states in its 882; Riner, Cir., 1960, 341; F.2d United States 5 v. 5 Dilworth F.2d 512; Cir., 1958, Williamson, 232; F.2d Cir., v. v. F.2d Mitchell Cir., Raines, F.2d Cir., 1961, Line, Inc., Mitchell Mitchell Truck Flemming, 721; Henderson edly legitimate considering State criminal laws the circumstantial evidence against resisting driving, reckless arrest necessarily we must also consider the cir- impermissible and other varieties of cumstances. opinion here conduct. Court’s by sug- in makes a start that direction Advocacy equality of social between gesting tending prove a three factors activity white in and black races —the purpose: (i) Huemmer had nev- lawful volved in the Mendenhall demonstrations any previous er had encounter with Of- prosecution and Title sheltered prior ficer to his arrest Baldwin I of 1968 —is Act of Civil Highway 49, (ii) nor neither Huemmer Mississippi.95 On in offense of the other demonstrators question all date of the events previously Mendenhall, been arrested Mississippi enforcement officers law following (iii) and vehicle the second statutory duty imposed were under a stopped.94 Huemmer van was not pro “lawfully” Legislature this evidence The Court then finds mixing any attempt or hibit to cause “a finding “supports individ- these integration Negro races uals the white and were not arrested because of of other, Amendment, schools, public public of First or public parks, exercise rights.” Constitutional waiting places rooms, public amuse of assembly” analysis, ment, in the But this correct far recreation or as go goes, nearly enough. In does not far in ef statute was State.96 While By implication suggests constables, mayors, supervisors, tlio also Court boards of subsequent governing at the tlio three arrests other aldermen and boards of officials of name highway superintendents County jail by by municipalities by Rankin legitimate purposes were motivated whatever police, policemen, known, the act chiefs of county parking patrolmen, men of contain- of three black car all boards jail education, Mississippi all and oth- firearms front of a of Saturday night, illegal persons falling the executive on a while within er government itself, local state and was nevertheless under circum- of said branch spe- Mississippi, improvident, “bellig- whether of stances immoral or in the State not, opposed cifically conceding that, or as named herein erent.” Even all ar- distinguished improvidence, immorality of from members or bel- and rests judicial ligerence justified legislature branches and are still not under- they state, government and, case, be of said state law under Fed- them, ca- in their official each of and pacity law eral as well. required, hereby are equality, marriages 95. “Races—social be- give force and full them shall each of advocacy punished. of tween— performance official of their effect Any person, corporation firm or who duties, political of the Resolution publishing guilty printing, shall be of or Interposition, Resolu- Senate Concurrent adopted by circulating printed, typewritten or writ- Legislature tion No. pub- urging presenting ten matter or Mississippi 29th on the of of the State day information, acceptance general or lic February, which Resolution of arguments suggestions in favor of adopted by Interposition virtue of equality intermarriage social or of be- authority the reserved of and under negroes, guilty tween whites and shall Mississippi, of the State subject of a misdemeanor and to a fine Amendment guaranteed Tenth exceeding not imprisonment five hundred dollars States; United the Constitution exceeding six months the executive members of of said and all branch be imprisonment or both fine and hereby directed are discretion of Ann. the court.” Miss.Code fully, comply Constitution to the State § 2339. Mississippi, the Statutes Mississippi, Res- Compliance prin- and said of the State with the “§ 4065.3. Interposition, further ciples segregation olution of the races. prohibit, required to 1. That the entire branch directed executive means, lawful, peaceful government and constitutional of the sissippi, persons responsible thereto, including governor, of the State of Mis- compli- implementation or the subdivisions, the ance with and of and all its Integration Decisions the the Supreme governor, States the United lieutenant ([Brown of Edu- May 17, Board departments, sheriffs, heads of state kept rigor- occasion Patrol has the march under feet this Court had to consider deputy surveillance, one in a ous one of instance which and the vehicle’s least following duty passengers patrol overzealously a car carried out his notices sheriff conspiring by Ku Klan them out of the Klux town. young rights

murder worke three placing After driver of the vehicle the And no more rs.97 the law itself was patrol car, him the the officer asks pale Judge than a of what Wis reflection passengers par- whether he and his “steel-hard, Mississippi’s dom has termed ticipants Upon in the demonstration. inflexible, undeviating policy of official receiving answer, pa- the affirmative segregation.” City of United States v. subject, trolman his refers threatens Jackson, Cir., 1963, 1, 5, on 318 F.2d passengers “niggers,” and then rehearing, 320 870.98 of radios for He calls to two assistance. gotten occupants the vehicle’s who have niggers get out, “You back that van.” What the Record Reveals They do. quick Now for This is the context. A and few later between four minutes testimony recap of offered patrol up, pull six cars and officers carrying petitioners: 18 blacks a vehicle get guns. than out with drawn Rather by Mississippi stopped and 2 whites ticketing traffic the driver for minor Highway after a few hours Patrolman offense, passen- him arrest and his participated in a occupants all of its them, gers, them to handcuff and take peaceful discrimi- protesting racial march way jail. The driver claims on the Highway nearby in a town. The nation equity, soever in law or or a civil of 68G, 98 cation] 347 U.S. may or criminal nature which hereafter 873) ([Brown May L.Ed. of brought against the aforesaid execu- Education] v. Board of officers, officials, agents or em- tive 1083), pro- and to 99 L.Ed. ployees of the executive branch of State lawful, peaceful, by any and con- hibit Mississippi by person, any of Government means, causing a mix- of stitutional corporate, or real sippi the State of Missis- Negro integration or of white and any or or fed- other state public pub- public schools, parks, races States, government eral of the United places waiting rooms, public of amuse- lic ment, any commission, agency, or subdivision assembly in this recreation or employee thereof.” gov- state, by any of federal branch Legislature repealed this statute ernment, Tiio person employed by any April on Sheet, Gen.Acts, See S.B. Adv. any commission, government, federal Sess., 7, p. 4. No. agency, govern- board or of federal repealed At same time it also crim- ment, any federal or subdivision providing racially segre- inal laws for government, prohibit, by any law- gated cars, facilities, toilet railroad means, ful, peaceful and constitutional waiting common rooms carriers. implementation any orders, rules Laws, 1970, cli. 2.§ board, regulations any or commission agency government, or federal of the 74, supra. See note murders authority supposed on of said based Integration Scliwerner, Chaney provid- Goodman and Decisions, mixing cause significant impetus (cid:127)ed Negro enactment integration white or of the repeatedly 245 and mentioned schools, public parks, public races during debate on the measure in 'Con- public rooms, public places waiting Cong.Ree. gress. See, g., e. amusement, 9589-90 assembly in recreation (remarks Congressman (1968) Ryan). this state. prohibitions mandates hangs find over terror 98. “IVe this act are directed the aforesaid expectancy Mississippi Negro government and is an executive branch of accept Mississippi, those who refuse all aforesaid State of Report inferiority.” badge subdivisions, boards, as a color and all individuals Advisory Mississippi only. capacity Commission thereof Compliance official tlieir Rights, prohibitions S. Civil U. Commission with said Mississippi of Justice Administration all of aforesaid mandates of this act (1963). a full executive shall be and is officials complete defense to suit what- says Highway after the who stances. The Patrolman sheriff he is beaten swung pre- do at him he re- previously civil sponded leader made threats has give worse, of his cisely if he did with two three blows that, or general fist and that disturb- up there was a activities. Although ance. he was in the room at protest Negro leaders Two'of time, say hit the sheriff cannot “who man, hearing of and a third black march who.” sheriff of his The denies jail purpose arrests, go for the drinking men were because he doesn’t al- posting arrested. After for those bond per- it. he low The sheriff admits that getting jail parking and in front of sonally poured whiskey on moonshine one immediately they are out of their car ordering prisoners after his their taken inside. officers arrested heads shaved. way. on them is beaten One many major There are other and minor jail the three two of Once inside course, high details, of but are the these prisoners earlier and the driver arrested lights. My conception of traf a “routine blackjacks, kicked, are beaten with fic arrest” with the Court’s. variance During punched verbally abused. Judge As a I cannot be to what blind county proceedings sheriff these everyone else can see. United States demon- the leader of the afternoon forces Mississippi, S.D.Miss., F.Supp. 1964, 229 by his made stration group, read the demands 925, reversed, (dissenting opinion), telling that he is after nigger” him 1965, 13 L.Ed. S.Ct. presence in and that his “smart 2d 717.99 county “a new ball- constitutes whole game.” son, earlier The sheriff’s who Charges Highway participated in Patrol sur- demonstration, Federally Certainly veillance of jail violation of no time, approximately 15 protected rights at the are simply is involved be- enforcement officers. stopped other law routine cause a vehicle is for a enforc- traffic violation. Police officers organiz- Subsequently two of the three traffic of their not laws are State ers of the march have hampered at all the coincidence that shaved, himself heads and the sheriff ticketing may have the driver happened are pours whiskey one of moonshine over some time in near or re- kept prisoners then them. The past part mote taken have in activi- jail overnight released the and most are although Congress has ties that seen fit to immu- following day, head one—whose against nize official intimidation. Such blackjack— split open has been with a collateral incidents not day Sunday do themselves jail and is remains all intimidatory requisite purpose finally Monday posting show the on after released removal relief.100 $5,000 sheriff. bond demanded pointed out, however, IAs Mississippi have counters with much more. here have shown the claim that produces is all a coincidence They though have established that even one witness—the sheriff —who may Patrolman Baldwin known anyone have denies that he with black- struck van, prior stopping jack, who made a denial similar to one he has he aware of their years was identities before six earlier under eireum- similar every opportunity, trivial, Thompson, supra, serious In N. A. A. P. v. C. up protest break these demonstrations concluded on the basis against discrimination, injunctive racial and that of similar facts that Federal large municipal number of the arrests had no relief officials motive, justifica- despite holding other some had Jackson was warranted by municipal, whatever, tion either under it was not. District Court State, or pattern Federal law.” 357 F.2d at 838. “The record discloses a of con- part duct on the of the of the officials 50, supra. city See note Jackson that leads to the con- us advantage of took clusion defendants totally foundation. without into them are them all them took he arrested attempting Rather than counter offi- custody assistance testimony, barrage the State They massive have demon- he had called.101 cers virtually Mississippi mute. Un- stood likewise Edwards that Sheriff strated by itself up der such circumstances silence them before beat knew convinc- constitutes ing the most evidence of the two black arrivals included three late Circuit, Inc. character. Interstate leaders Mendenhall States, 306 U.S. They presented United abun- movement. 467, 474, 83 L.Ed. sequence that the events dant evidence ending beginning Highway perspective from this we Considered County jail the Rankin cells at Douglas Huemmer must conclude simply aris- an unforeseen coincidence passengers arrested and his 19 ing only legitimate effort to en- charged prosecution and now face To this traffic laws. extent force State only in the courts because—and State proving gone they far toward relationship have participated had earlier because— necessary causal between day protests, ac- in the Mendenhall protest demonstration and the afternoon subsequent against in- official tivities immunized arrests several miles mass timidation Civil Act hours later. and several Perkins, and Rev. Brown Rev. yet, far, thus And we have not even Buckley similarly treated because— directly considered most crucial fact only ex- had dared to because— indisputable undisputed of all: right Federally protected ercise their any support lack of whatever evidence segregation Simpson protest racial charges against the criminal the defend- County. simply ra- is no other There any ants. there were If some evidence— explanation what tional account tending any of to show that evidence— happened.102 committed criminal of- fense, might at least have some bear- ing on the uncontested infer- otherwise Highway 49 The Arrests to be drawn from the circumstances ences try previously need not described. We pending prosecutions against The the defendants here order consider passengers two Huemmer’s charges: involve point. question the they The is not whether arrest, resisting (i) Huemmer’s guilty. simply innocent It is (ii) deadly possession and weapon, of a concealed any

whether there are rec- facts arrest ticket which Baldwin’s remote, ord, no matter how tenuous charg- describes as a brick. Huemmer is suggesting charges that arrest, resisting (ii) (i) ed with his own (iii) brought good been faith for the have brick-carrying, driv- reckless justifiable purpose enforcing Missis- ing. sippi law. There is such evidence. At Passive Resistance hearing peti- in the Court District overwhelming charge presented preposterous. proof is The tioners first group charges pending students that all of testified text, supra. any denhall 101. See note 13 demonstration. Por Before inexplicable transpired arresting some apparently officers reason the Court lias knew tlie critical their identities. assumed that issue is whether knew when Baldwin stopped the van 102. The it contained the conclusive character of the cir- course, presented Mendenhall demonstrators. Of ab- cumstantial evidence here is point stronger knowledge ir- even sence than that in United States question McLeod, supra, relevant. whether where subsequently arrested, “a defendants arrest concluded baseless prosecuted prosecution person custody prominently taken into of a participation voting compels active in a the in- Men- drive quiet orderly.103 By satisfactorily explain why Baldwin’s own he had arrest- any- any all,104 account did or said ed none the 19 of them at other than thing rationally suggesting that could every- whatever that “someone” —not one, Huem- them, two, been as resistance or most construed or even but fact, arrest, In requested mer’s nor did Huemmer. someone —had the arrest.105 testimony request, Baldwin was unable Such even if had “someone” 103. For firmed anyone else (Tr. 148.) as follows: at 744-745. ference of an unlawful fere with the (Tr. 238.) didn’t we find out driving look at they when life ly they’ve got weapons or not. people arrest when I van I felt like in the van were at there at the officex-s? threat or make guns ? out on the ordered to highway patrolman on the scene? to do at all to “Q BY TIIE BY BY TIIE A Well when ^[*] BY THE A Not that I Q A Not Q “Q Now, why ^[*] A No.” A No A A A No I did not because when I was Q Q “Q Q other got have When Did No, they Now Officer none of the Did the Was the No, Did you? example, you stopped anything by Jacqueline Johnson, jeopardy. Mr. THE WITNESS: No him to anybody students. Neither Baldwin nor Plain, they interfere with least four or :¡: I did not. directly, you ^[*] this. any weapons refuted actually Odom, they, got got him COURT: WITNESS: ground COURT: Well want This (Tr. 153.) car, get group hear make jail. weren’t. did not.” stopped group Manorris Odom did when the out of the they charged 10 feet and tell where out of the van there saw, did he resist arrest? This they did ^[*] it. testimony no.” did him? they? to vote.” 385 F.2d resisted and who was any curse? obscene out loud? were you purpose but you 1-Ie didn’t him. got man that in their hands? student make five threats patrolmen He did ^[*] van, ^[*] arrest you do your putting the van did out of the duty I gesture was con- patrolmen resisting to inter- Officer? anything couldn’t testified one of direct- sir, people arrest resist when these ^[*] going ^[*] was my I rest in his patrolman (Tr. with talking about? was yes, sir.” The District Court with getting you them with that at the scene. life in cluding myself, didn’t resisting trying ones outside for started there was terfere with driver of the truck was out there and body referring I told them to doing? duty, less, at that time. arrest them for? toward traffic him with the traffic violation? See BY THE WITNESS: BY THE BY THE WITNESS: BY THE BY BY BY BY THE WITNESS: BY THE COURT: What did BY THE WITNESS: BY THE BY THE WITNESS : BY THE COURT: That’s what I’m BY BY THE BY TIIE ** 159-62.) charged at the resisting you testimony bus, nineteen students time, resisting THE THE that’s the jeopardy right do THE TIIE to find violation, after. You did not resisting coming and if more of them these What were was arrest? 10, supra. arrested anything did a WITNESS jail COURT: But COURT: WITNESS : COURT: your duty? COURT: them COURT: chance very vague COURT: But neverthe- arrest, (App. WITNESS: anybody eight arrest about the out. out of the truck after get only charge did arrest? with Is that all interfering original at that time concluded 29.) back in. is that there. that anybody else, any- you charged they doing at the scene. of them? What That’s what You : I didn’t All else do resisting All passengers and indefinite I No, got they put Yes, Yes, participation right? Yes, At the nevertheless, resisting ar- of charge time of this just charged what arrested the right, Well that I had were that “the them, nobody. out Just anything sir. sir. got sir. arrest? toward charge you’re as of them them last, they they jail, I’m you out my my in- in- It Deadly The Concealed Brick it, oth- an not have validated made could person. illegal Pier- arrest erwise regard deadly the concealed With Ray, 1967, 386 U.S. son weapon charge, I that the Mis- assume L.Ed.2d Legislature yet sissippi not has resolved attempting might have been Baldwin simple possession to characterize the explanation Huem- advance offense, stig- a a or to brick as actually re- not others did mer and the every bricklayer potential a matize as highway but arrests on sist their Certainly criminal. concealed State’s later, presumably more for a waited until appropriate weapons statute,107 particularly which moment, ac- were until variety prohibited enumerates a wide explana- tually jail.106 inside the This items, bricks, does not mention either patently view tion is frivolous generally specifically. or If it did men- obviously place took fact that arrests tion basis bricks there would still security highway, on the within not riding merely concluding as a County If courthouse. the Rankin passenger containing a brick a vehicle (including custody hand- somehow the posses- constitutes actual or constructive prisoners’ cuffs) and restraint brick, sion it. or No one held brand- liberty until constitute arrest did not menacing one, ished or used one in a actually after the defendants jail manner to threaten officers. utterly supposition such —and simply There was a brick van— could there still incredible—resistance that’s all. “resisting if arrest” be characterized Judge adopted slightly District unlawfully prisoners confined approach. different He found there place. or first It is restrained probable for the arrest of the cause Mississippi to resist an unlaw- crime resisting 19 students arrest and “for hav- ful to “obstruct or resist arrest but possession a least constructive by force, violence, threats, or shotgun in the time when the vehicle at manner, other arrest or [a] lawful one or more of them announced de- person.” another Miss. arrest lawful cision that all or none of them should be added). (emphasis Code 2292.5 Ann. § jail; defiantly, taken that or stated resisting presup- “The offense of arrest that if one of them arrested of was all person poses A a a lawful arrest. has them would arrested and it be right force reasonable to resist use patrolman must be that this realized was State, Miss. unlawful arrest.” Smith race, alone and of a on a coun- different S.Ct., cases 208 So.2d and try very presence road in the of a cited of deci- therein. On the basis disrespectful group may hostile and who had sion discount absurdi- alone we as charges resisting ties arrest. all in the the ‘difference’ with them form Unfortunately, knife, 106. knife, knife, he also admitted that butcher switchblade resisting blackjack, slingshot, knuckles, he one had seen no arrest there metallic (Tr. Moreover, 167). charges any pistol, revolver, all of the or rifle a barrel against (16) length, students were returnable of less than inches in sixteen Florence, any shotgun Peace who Justice or with a barrel of less than jurisdiction point High- eighteen (18) length, had over that inches machine way stopped, gun any fully where the van was or firearm automatic or deadly any weapon, all of the arrest tickets showed Plain as muffler or silencer or alleged any firearm, the location of the offenses. it is whether or not ac- why charged companied by firearm, When asked he had John or or at- a uses (see resisting Appendix tempts person any Smith with arrest another use firearm, A), upon Baldwin could remember imitation shall conviction ** identify punished doubted whether he could even as follows Miss. (Tr. 164). individual Ann. Code “Carrying deadly weapons. Any carries, person who concealed any part, knife, bowie dirk whole or in simply testimony justify up shotgun There is no their decisions.” of a to back adjectives. added). 33) of such And I as- (App. (emphasis the use unwilling to sume this Court would be is unusual several This statement finding probable a sanction cause bas- place respects. there was In the first solely upon ed the officer fact testimony contain- van no direct race,” par- a different was “alone shotgun shotgun,108 much less ed a ticularly since the actual arrests possession of which was unlawful not made until after at least six four to weapons Mississippi stat- concealed fellow on his officers arrived any ute, was evidence there pistols with their Of scene drawn. actually shotgun (if it kind that such course, they were all white. existed) concealed that was was posses- or constructive either the actual The Reckless Driver prisoners, or all sion posses- Baldwin based his arrest allegedly stopped Baldwin Huemmer shotgun, sion of a or that driving. for reckless But his own possession prosecutions involved him admission arrested him and took shotgun rather than brick referred (rather custody simply giving into than to in tickets Baldwin’s arrest as the basis ticket) driving him a not because of his for the arrests.109 passengers” (Tr. but “because of his Moreover, District charac- Court’s 140). testimony110 by it- Yet Baldwin’s group terization of the conduct of the conclusively self establishes that there “defiant,” “disrespectful” “hostile” and charge no foundation was be- support finds no in the record. driving whatever cause Huemmer was not 109. There was finding was that “someone” with the items. Mississippi to were of the charged allegedly cluding is no other evidence to But see note 109. ical the middle tines turned to a 173). that admissible, Huemmer had told cross examination Patrol delivered to his office several items (rather ing. the motions of the van? van do lane to the situation? testimony is. What are the facts of “Q Baldwin made no reference to the A He was forks, shotgun point. the van contained leading question Judge Well, defendants The “knives” the sheriff referred than several silverware there was a the left lane and testimony taken from see note probable law enforcement backfield at terms of the then a Sheriff Edwards’ on direct I’m Cox overruled the apparently mix-up possession shotgun) going from knives, proceeded What 18, supra. asking you he testified him in cause on it. There Huemmer’s shotgun (Tr. 336). by'the down, examination. On support hearsay facts, did two forks with (Tr. 334). arrested for or back shotgun any you and a in the van. what what were patrol and weav- testimony Highway the find- base objection of these response van, see the As in myth- pistol None hand your (Tr. car in- center hand lanes? forth. timony block both once? changing lane us the number on that? lane but lanes, the van do that? again, mean he was A A Q I A A Several. A Not A % A I said he was A It’s Q Q Q Was A Could have been. Q Several Q Q Q Was it twice? Well He No He didn’t No. Well Now, Now, lane, he went far to the left hand lane and back is that line and almost believe was that didn’t sir, enough possible. lanes ^[*] completely of the lanes. back. it the white van crossed you how when he times, right? more than twice? going it go completely in change many said several didn’t to take you say ^[*] van from the now could weaving you times did lanes? your change enough times, up was hit saw the van :¡: weaving both of the earlier left back and changing lanes. you give is that the left you over to s>: hand hand ear. you tes- see 729, If an 203 Miss. 34 So.2d by the stat- proscribed manner “reckless” standing alone, collision, not is actual Supreme Mississippi Court As the ute.111 offense, negli- to establish involving sufficient situation in a has held hardly committed Huemmer could have gent collision: by merely having a the offense almost can view “The most favorable collision, particularly ad- when Baldwin is taken the state’s evidence drunk and mitted that Huemmer not was neglected a constant to be on accused speeding (Tr. 141).112 was not approaching vehicle to see an lookout striking stop car in time to before County proof was he Rankin Jail Arrests it. There is no driving The a or at manner in a reckless Perkins, Paul Rev. Rev. Brown Joe a speed to indicate such as rate charged Buckley of- with three disregard for the or wanton wilful (i) riot, (ii) inciting resist- fenses: * * * property. safety persons or jail, their own arrests guilty most, to be was shown At deadly (iii) possesson of a concealed only in negligence, liable of mere weapon. peaceful Their a mission was evidently It was a action. post al- one—to bond for who had those purpose here involved statute ready been arrested and who were inside simple punish such acts of as criminal might assume, jail. Of course one negli- gross negligence, or even where does, apparently as the Court shown, gence in traffic accidents is lawfully carrying mere fact of even toas character is such unless weapons parking in an to a automobile disregard for or wanton evince wilful jail space Mississippi in front on property safety persons night justifies Saturday somehow highways.” arrests of the men who drove the three State, 1944, 896, 16 Miss. v. passengers. Sanford in it But I car and rode 629; 1948 Pontiac see One may safely So.2d also im- believe we discount State, 1954, 221 Miss. Automobile plication here that Perkins —the Rev. 696; State, Gause eight 72 So.2d children, father an ordained you right, citing State, 1964, see how far By All could Q Barnes v. Dodge propo- center line the white across Miss. 865 for the So.2d sup- van went? sition arrest I-Iuemmer’s ported probable cause, wheels crossed the A His left two here Court line. center falls into the same error the Dis- by assuming that trict committed Highway finding probable Patrol Q does the cause is conclu- Xow policies conclusive, sive, written instructions or on the issue have almost why question removability. of a when to the driver as to take arrested, give jail him a not whether or when to Huemmer was vehicle to technically, legal. go arrest was Civil let him on? ticket and exempt any. of 1968 Act does A I don’t know of probable your policy. Xow, made with cause arrests Officer Q what scope prohibition if their of its ? Baldwin purpose policy interfere with the exer- particularly is to A I don’t Federally protected rights. cise of on it. however, Significantly, Barnes your case highly in own discretion Q Is it prob- support finding a does not even when to do that? as to opinion contains cause because able A Yes.” explicit in- no facts statement 139-40.) (Empha- (Tr. 129, 130, the term “wob- there. Whatever volved added.) sis bling swaying” record on the and meant Supreme Court, Mississippi before the defines § Miss.Code Ann. simply obviously more than entailed much “any driving vehicle offense as the crossing lane divider “several times” a a manner as to indicate either such miles, or of four five over a distance disregard wanton for or a wilful safety only Tluem- (emphasis evidence of persons property” which was the or added). mer’s “recklessness.” acknowledged leave, they to that no here leader had business and the minister * * * night. at this for an entire time So movement they county- ad- unlawful were and then I Mississippi advised was —had ** they gone purpose vised that had mind. .in (Tr. added.) 324-25.) (Emphasis While, opinion of the District From statements Trial these alone the “sought in that the men an states Judge apparently (i) that the inferred belligerency to extricate [the attitude of prisoners] Perkins, sheriff “told” Rev. Rev. Brown (App. from their custodian” Buckley attorney (who and ac- 30), merely this one more assertion tually did not arrive until the next morn- support no finds whatever ing) way, (ii) on the that the was and testi- record. mony It is contradicted they three men ar- knew before were arresting officers of the of, one attorney that an notified. rested been (see infra). Obviously neither of these inferences found The District Court also that warranted.113 Buckley Perkins, Rev. Rev. Brown were advised the sheriff a black Inciting Riot attorney coming from Jackson charge closest This comes describ- prisoners and that make bond for the ing actually happened what inside “requested such Sheriff Edwards jail deputies when the sheriff em- regular matters their be allowed follow ployed “rather force” violent by awaiting course the arrival of Mississippi prisoners. law Under (App. attorney with these bonds.” 30- “any force defined as use of or riot is 31.) testimony by the sher- relevant disturbing public peace, or violence point iff on this follows: is as violence, any threat to use such force “ * * * During the that these time accompanied by power if immediate being I booked was advised execution, by persons (2) or more two patrolmen one of the that there was acting together authority and without second bus load that had arrived out- “Inciting urg- law.” “the to riot” is side, I asked if some of the officers instigating leading or or others [of] they they were under arrest and if by organizing promoting or or en- riot custody they they were in said couraging participate in a others to my deputies I weren’t. called one of say, riot.”115 Needless to there is no evi- and told him for him and one two or dence whatever that of the defend- boys go out State’s there “organized” “encouraged” ants people tell these weren’t “promoted” in the Rankin riot while charged anything County jail. Although he was in attorney knew that hadwe these other during period room the entire Sheriff subjects there, them to advise accurately could Edwards not even de- leave, them to couldn’t them make transpired scribe the incidents that after leave, allegedly I swung but them told to advise them Rev. Perkins him.116 foregoing testimony 1 13. (B) (em- Ann. Miss.Code 2363.5-01 § Sheriff phasis added). Edwards is also basis assumption record this Court’s you 116. “BY THE COURT: Who do place parking the three men went breaking refer as melee out? jail visiting in front of the “after hours.” BY THE WITNESS: That’s when remotely There is other even evidence fight broke out and the officers suggesting jail’s visiting what hours came on out when licks (or visiting parking hours its passed Judge, between me Perkins and places) were. and the officers came out there (A). Ann. hitting, Miss.Code 2361.5-01 En- was some I didn’t see who hit felony appar- (Tr. acted this statute who but there was a fracas.” ently yet judicially 340-41.) not has been con- strued. Resisting weapon, Arrest concealed described charging arresting offi- affidavit All three defendants ar- of the were 12-gauge shotgun (see Appendix cer as a jail rested and then taken in- outside B). Carrying ordinary shotgun, an alleged resisting side. The offense not, whether concealed is not a crime place arrest therefore must have at taken Mississippi,119 and there was no evi- car, Rev. Perkins’ once inside the since suggesting dence the barrel of Rev. building prisoners already had been shotgun Perkins’ was so sawed off custody arrested confined in bring it within the State’s concealed between seven and twelve law enforce- weapons any statute. In the un- event ment Yet officers. the uncontradicted testimony weap- contradicted is that testimony everyone,117 including concealed,120 ons in the ear were not sheriff,118 is that no one resisted arrest dispute there is likewise no that when before the trouble inside out. And broke got men out of the automobile the through men if three were some weapons they remained inside after until oversight actually “under arrest” un- were arrested. Neither Rev. Brown nor jail, Mississippi til were inside Buckley was ever in either actual or con- gave law still them “a to use rea- possession any firearm, structive hav- sonable force to resist an ar- unlawful ing merely passengers been in the ve- State, supra. any rest.” Smith v. On hicle, Mississippi and under law Rev. theory charge totally ground- thus carry Perkins was entitled to even less. weapon previous concealed because of Shotgun grim irony threats to his life.121 There is Mississippi Supreme the fact that Rev. Perkins and the other two de- charged complete carrying fendants Court has held were also that a defense with Lloyd enough Highway 117. Officer Jones of the to inform officer Patrol, possession prohibited who observed the under Mis- Mendenhall was sissippi law.”). march in the afternoon and then showed up jail County the Rankin in time 120. Rev. Brown testified that earlier he help arrest Rev. Perkins and his asso- Inspector told Jones a local FBI ciates, testified' as follows: agent guns carrying the men were give “Q Now did of these three protection “up for their own behind the you any trouble at the time open 281). (Tr. back seat” view arrested? 2081(a) provides me, Ann. § Miss.Code A Not no sir. person charged carrying a They that a with along you Q came all deadly weapon may right? concealed establish threatened, he (Tr. 181.) as a defense “that A Yes sir.” good and had apprehend and sufficient reason during Rev. Perkins testified that a serious attack from en- first Mendenhall march in December he emy, apprehend.” and that he so Rev. “long did and Jones had a conversation” Perkins testified that “had 'received talking which did most of “he be- many phone calls, threats, afraid, and it was cause I was and he said a lot widely things me, known Mendenhall there things I wouldn’t want people offering repeat thousands dol- in this court (Tr. 301.) lars kill (Tr. 297.) me.” ladies here.” Jones admit- course, carry a Of Rev. Perkins did given copy ted that he had been pistol car, protest in his but he was neither the Mendenhall demands and that charged for (Tr. 99-100). arrested nor that. As Sher- he had read them (Tr. 325), iff testified all' three Edwards 1 18. “Q And there had been no trouble indisputably men were for the arrested prior fight! to [the ? possession shotgun of a two lawful right. A That’s Moreover, pending even if rifles. resisting Q No of arrests? prosecutions way in some relate to do UpA until that time there had been possession of a the actual concealed trouble, 841.) right.” (Tr. that’s weapon, obviously had the defendants appre- “good supra; sufficient reason See note cf. United States subsequent Cir., Pearson, attack.” The hend serious 448 F.2d jail prove (“One quick glance it. events inside these bolt- action full barrel rifles would have been findings upon charge carrying weap- quired to a a to make new based concealed application by proof a on is correct of the law made out that the defend- traveling setting ant out facts. taking “beyond journey him the circle Epilogue acquaintances.” of his Morgan and friends 1963, Heidelberg, v. Town States, 1945, 325 Like Screws v. United Miss. 150 So.2d 516. L.Ed. shocking and revolt- “this case involves “Routine Arrests” ing episode It also enforcement.” law explicit provides ex- us with another classic The District Court no still made findings credibility ample respect with of the misuse of State procedures purpose of the sole of intimi- witnesses. The fac- dating really disputed— tual issues that were exercise of rights,123 precisely whether Rev. Perkins or the sheriff situation § swung 1443(1) designed to first and whether the officers and Rachel were drinking somehow, never resolved. In- correct. Yet for reasons —were ' stead, relying entirely findings quite upon comprehensible me, the Court probable arrests, juris- cause for the without removal concludes sug- referring specifically peti- and exercised of the diction should not be wholly testimony regarding-their gests appeal without tioners’ treat- Highway ment on and Rankin at the merit. jail, County by-passing entirely and enough is unfortunate a result Such allegations petition removal prece- us, but on the facts now before prosecutions groundless in- and Ap- more ominous. we set is even dent solely purpose stituted for the in- “geograph- parently any arrest timidating the defendants because ically temporally remote” previous 245(b) their rights,122 exercise of § 245(b), protected no mat- activities simply the District Court re- exclusively plainly motivated ter how by general manded on the of a con- basis of the Federal exercise the antecedent clusory finding that the defendants “were segregation, will right protest racial doing not arrested these officers subsequent automatically insulate the anything which federal against a prosecution spurious criminal to do.” The fact that there is evi- painless removal quick death support any charges dence at toall of the encouraging thereby court, a Federal was never even considered. present repetition like of incidents required This Court is not to sanction merely in- here is decision one. Our finding obviously product so of the fundamentally inconsistent It is correct. misapprehension District Court’s of the spirit letter with the statute, legal appropriate standard to utilized Act the Civil making proper it. The course would guarantees under- the constitutional be to prosecutions direct dismissal lying them. since ing adequate “there has been an hear- District undisputed vacate I would show val- I dissent. facts of these all id remand Georgia, case for order removal.” Walker v. Court’s dis- Cir., 1969, prosecutions instructions But at 417 F.2d very charges. least Trial Court should be re- miss the 75, supra. 68, supra. See note See — THE COUNTY

APPENDIX B RANKIN JAIL ARRESTS Charged Charging Offenses Affidavits

Petitioner Deputy B. Martin A. (R. 117-123; Ex. Pis. P-5 Inciting riot; resisting arrest; Rev. his John M. Perkins own deadly possession concealed, weapon, gauge shotgun 12a automatic Inciting Curry riot; resisting arrest, Rev. Brown own possession deadly weapon concealed, of a Buckley Inciting riot; resisting Joe Paul arrest, his own possession deadly weapon concealed, aof Wesley Resisting John Smith his own arrest Todd, Resisting arrest; possession his Alfonso Jr. own deadly concealed, weapon Resisting Nall, Jr. David Lee own arrest Douglas Resisting Huemmer B. his own arrest [A49033] AND PETITION REHEARING

ON PETITION FOR EN BANC REHEARING FOR GEWIN, WISDOM, BROWN, Judge, R. Chief Before JOHN AINSWORTH, GOLDBERG, COLEMAN, THORNBERRY, BELL, SIMPSON, MORGAN, CLARK, INGRAHAM GODBOLD, DYER, Judges. RONEY, Circuit BY THE COURT: poll having requested a service A the Court active member rehearing majority of the and a application en banc granting having a re- judges voted favor in active service

hearing banc, en en reheard shall be It the cause is ordered that fixed. argument hereafter on a date oral

banc with filing supple- briefing schedule specify a Clerk will mental briefs. notes lowing petitioners were remand the to be given “opportunity to establish opinions Throughout both to leave restaurant ordered repeatedly emphasizes Rachel solely pur- facilities reasons.” alleged for racial exclusive at at 16 L.Ed. punish pose prosecutions was (emphasis added). at “If 2d protected service Federal conduct reasons, for other no case for was denied “puishment.” “In law * * * Georgia removal has been made out.” 384 U.S. we held v. Rachel at trespass L.Ed.2d a state court removal of opinion). (concurring 1443(1) prosecution under § be had can

Case Details

Case Name: Reverend John M. Perkins v. State of Mississippi

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 2, 1972

Citation: 455 F.2d 7

Docket Number: 30410

Court Abbreviation: 5th Cir.