City of Greenwood v. Peacock/Opinion of the Court

by Potter Stewart

United States Supreme Court

384 U.S. 808

City of Greenwood  v.  Peacock

 Argued: April 26, 1966. --- Decided: June 20, 1966

These consolidated cases, sequels to State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, involve prosecutions on various state criminal charges against 29 people who were allegedly engaged in the spring and summer of 1964 in civil rights activity in Leflore County, Mississippi. In the first case, 14 individuals were charged with obstructing the public streets of the City of Greenwood in violation of Mississippi law. ^[1] They filed petitions to remove their cases to the United States District Court for the Northern District of Mississippi under 28 U.S.C. § 1443 (1964 ed). ^[2] Alleging that they were members of a civil rights group engaged in a drive to encourage Negro voter registration in Leflore County, their petitions stated that they were denied or could not enforce in the courts of the State rights under laws providing for the equal civil rights of citizens of the United States, and that they were being prosecuted for acts done under color of authority of the Constitution of the United States and 42 U.S.C. § 1971 et seq. (1964 ed.). ^[3] Additionally, their removal petitions alleged that the statute under which they were charged was unconstitutionally vague on its face, that it was unconstitutionally applied to their conduct, and that its application was a part of a policy of racial discrimination fostered by the State of Mississippi and the City of Greenwood. The District Court sustained the motion of the City of Greenwood to remand the cases to the city police court for trial. The Court of Appeals for the Fifth Circuit reversed, holding that 'a good claim for removal under § 1443(1) is stated by allegations that a state statute has been applied prior to trial so as to deprive an accused of his equal civil rights in that the arrest and charge under the statute were effected for reasons of racial discrimination.' Peacock v. City of Greenwood, 347 F.2d 679, 684. Accordingly, the cases were remanded to the District Court for a hearing on the truth of the defendants' allegations. At the same time, the Court of Appeals rejected the defendants' contentions under 28 U.S.C. § 1443(2), holding that removal under that subsection is available only to those who have acted in an official or quasi-official capacity under a federal law and who can therefore be said to have acted under 'color of authority' of the law within the meaning of that provision. ^[4]

In the second case, 15 people allegedly affiliated with a civil rights group were arrested at different times in July and August of 1964 and charged with various offenses against the laws of Mississippi or ordinances of the City of Greenwood. ^[5] These defendants filed essentially identical petitions for removal in the District Court, denying that they had engaged in any conduct prohibited by valid laws and stating that their arrests and prosecutions were for the 'sole purpose and effect of harassing Petitioners and of punishing them for and deterring them from the exercise of their constitutionally protected right to protest the conditions of racial discrimination and segregation' in Mississippi. As grounds for removal, the defendants specifically invoked 28 U.S.C. §§ 1443(1) ^[6] and 1443(2). ^[7] The District Court held that the cases had been improperly removed and remanded them to the police court of the City of Greenwood. In a per curiam opinion finding the issues 'identical with' those determined in the Peacock case, the Court of Appeals for the Fifth Circuit reversed and remanded the cases to the District Court for a hearing on the truth of the defendants' allegations under § 1443(1). Weathers v. City of Greenwood, 347 F.2d 986.

We granted certiorari to consider the important questions raised by the parties concerning the scope of the civil rights removal statute. 382 U.S. 971, 86 S.Ct. 532, 15 L.Ed.2d 464. ^[8] As in State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, we deal here not with questions of congressional power, but with issues of statutory construction.

The individual petitioners contend that, quite apart from 28 U.S.C. § 1443(1), they are entitled to remove their cases to the District Court under 28 U.S.C. § 1443(2), which authorizes the removal of a civil action or criminal prosecution for 'any act under color of authority derived from any law providing for equal rights * * *.' The core of their contention is that the various federal constitutional and statutory provisions invoked in their removal petitions conferred 'color of authority' upon them to perform the acts for which they are being prosecuted by the State. We reject this argument, because we have concluded that the history of § 1443 (2) demonstrates convincingly that this subsection of the removal statute is available only to federal officers and to persons assisting such officers in the performance of their official duties. ^[9]

The progenitor of § 1443(2) was § 3 of the Civil Rights Act of 1866, 14 Stat. 27. Insofar as it is relevant here, that section granted removal of all criminal prosecutions 'commenced in any State court * * * against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a Bureau for the relief of Freedmen and Refugees, and all acts amendatory thereof * * *.' (Emphasis added.)

The statutory phrase 'officer * * * or other person' characterizing the removal defendants in § 3 of the 1866 Act was carried forward without change through successive revisions of the removal statute until 1948, when the revisers, disavowing any substantive change, eliminated the phrase entirely. ^[10] The definition of the persons entitled to removal under the present form of the statute is therefore appropriately to be read in the light of the more expansive language of the statute's ancestor. See Madruga v. Superior Court, 346 U.S. 556, 560, n. 12, 74 S.Ct. 298, 300, 98 l.Ed. 290; Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227-228, 77 S.Ct. 787, 790-791, 1 L.Ed.2d 786.

In the context of its original enactment as part of § 3 of the Civil Rights Act of 1866, the statutory language 'officer * * * or other person' points squarely to the conclusion that the phrase 'or other person' meant persons acting in association with the civil or military officers mentioned in the immediately preceding words of the statute. That interpretation stems from the obvious contrast between the 'officer * * * or other person' phrase and the next preceding portion of the statute, the predecessor of the present § 1443(1), which granted removal to 'any * * * person' who was denied or could not enforce in the courts of the State his rights under § 1 of the 1866 Act. The dichotomy between 'officer * * * or other person' and 'any * * * person' in these correlative removal provisions persisted through successive statutory revisions until 1948, even though, were we to accept the individual petitioners' contentions, the two phrases would in fact have been almost entirely co-extensive.

It is clear that the 'other person' in the 'officer * * * or other person' formula of § 3 of the Civil Rights Act of 1866 was intended as an obvious reference to certain categories of persons described in the enforcement provisions, §§ 4-7, of the Act. 14 Stat. 28-29. Section 4 of the Act specifically charged both the officers and the agents of the Freedmen's Bureau, ^[11] among others, with the duty of enforcing the Civil Rights Act. As such, those officers and agents were required to arrest and institute proceedings against persons charged with violations of the Act. ^[12] By the 'color of authority' removal provision of § 3 of the Civil Rights Act, 'agents' who derived their authority from the Freedman's Bureau legislation would be entitled as 'other persons,' if not as 'officers,' to removal of state prosecutions against them based upon their enforcement activities under both the Freedmen's Bureau legislation and the Civil Rights Act. ^[13] Section 5 of the Civil Rights Act, now 42 U.S.C. § 1989 (1964 ed.), specifically authorized United States commissioners to appoint 'one or more suitable persons' to execute warrants and other process issued by the commissioners. ^[14] These 'suitable persons' were, in turn, specifically authorized 'to summon and call to their aid the bystanders or posse comitatus of the proper county.' ^[15] Section 6 of the Act provided criminal penalties for any individual who obstructed 'any officer, or other person charged with the execution of any warrant or process issued under the provisions of this act, or any person or persons lawfully assisting him or them,' or who rescued or attempted to rescue prisoners 'from the custody of the officer, other person or persons, or those lawfully assisting.' ^[16] Finally, § 7 of the Act, now 42 U.S.C. § 1991 (1964 ed.), awarded a fee of five dollars for each individual arrested by the 'person or persons authorized to execute the process'-i.e., the 'one or more suitable persons' of § 5. Thus, the enforcement provisions of the 1866 Act were replete with references to 'other persons' in context obviously relating to positive enforcement activity under the Act. ^[17]

The derivation of the statutory phrase 'For any act' in § 1443(2) confirms the interpretation that removal under this subsection is limited to federal officers and those acting under them. The phrase 'For any act' was substituted in 1948 for the phrase 'for any arrest or imprisonment or other trespasses or wrongs.' Like the 'officer * * * or other person' provision, the language specifying the acts on which removal could be grounded had, with minor changes, persisted until 1948 in the civil rights removal statute since its original introduction in the 1866 Act. The language of the original Civil Rights Act-' arrest or imprisonment, trespasses, or wrongs'-is pre-eminently the language of enforcement. The words themselves denote the very sorts of activity for which federal officers, seeking to enforce the broad guarantees of the 1866 Act, were likely to be prosecuted in the state courts. As the Court of Appeals for the Second Circuit has put it, "Arrest or imprisonment, trespasses, or wrongs,' were precisely the probable charges against enforcement officers and those assisting them; and a statute speaking of such acts 'done or committed by virtue of or under color of authority derived from' specified laws reads far more readily on persons engaged in some sort of enforcement than on those whose rights were being enforced * * *.' People of State of New York v. Galamison, 342 F.2d 255, 262.

The language of the 'color of authority' removal provision of § 3 of the Civil Rights Act of 1866 was taken directly from the Habeas Corpus Suspension Act of 1863, 12 Stat. 755, which authorized the President to suspend the writ of habeas corpus and precluded civil and criminal liability of any person making a search, seizure, arrest, or imprisonment under any order of the President during the rebellion. ^[18] Section 5 of the 1863 Act provided for the removal of all suits or prosecutions 'against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress.' 12 Stat. 756. See Mayor v. Cooper, 6 Wall. 247, 18 L.Ed. 851; Phillips v. Gaines, 131 U.S.App. clxix. Since the 1863 Act granted no rights to private individuals, its removal provision was concerned solely with the protection of federal officers and persons acting under them in the performance of their official duties. ^[19] Thus, at the same time that Congress expanded the availability of removal by enacting the 'denied or cannot enforce' clause in § 3 of the Civil Rights Act of 1866, it repeated almost verbatim in the 'color of authority' clause the language of the 1863 Act ^[20] language that was clearly limited to enforcement activity by federal officers and those acting under them. ^[21]

For these reasons, we hold that the second subsection of § 1443 confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights. ^[22] Accordingly, the individual petitioners in the case before us had no right of removal to the federal court under 28 U.S.C. § 1443(2).

We come, then, to the issues which this case raises as to the scope of 28 U.S.C. § 1443(1). In State of Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783 decided today, we have held that removal of a state court trespass prosecution can be had under § 1443(1) upon a petition alleging that the prosecution stems exclusively from the petitioners' peaceful exercise of their right to equal accommodation in establishments covered by the Civil Rights Act of 1964, § 201 et seq., 78 Stat. 243, 42 U.S.C. § 2000a et seq. (1964 ed.). Since that Act itself, as construed by this Court in Hamm v. City of Rock Hill, 379 U.S. 306, 310, 85 S.Ct. 384, 388, 13 L.Ed.2d 300, specifically and uniquely guarantees that the conduct alleged in the removal petition in Rachel may 'not be the subject of trespass prosecutions,' the defendants inevitably are 'denied or cannot enforce in the courts of (the) State a right under any law providing for * * * equal civil rights,' by merely being brought before a state court to defend such a prosecution. The present case, however, is far different.

In the first place, the federal rights invoked by the individual petitioners include some that clearly cannot qualify under the statutory definition as rights under laws provided for 'equal civil rights.' The First Amendment rights of free expression, for example, so heavily relied upon in the removal petitions, are not rights arising under a law providing for 'equal civil rights' within the meaning of § 1443(1). The First Amendment is a great charter of American freedom, and the precious rights of personal liberty it protects are undoubtedly comprehended in the concept of 'civil rights.' Cf. Hague v. C.I.O., 307 U.S. 496, 531 532, 59 S.Ct. 954, 971, 83 L.Ed. 1423 (separate opinion of Stone, J.). But the reference in § 1443(1) is to 'equal civil rights.' That phrase, as our review in Rachel of its legislative history makes clear, does not include the broad constitutional guarantees of the First Amendment. ^[23] A precise definition of the limitations of the phrase 'any law providing for * * * equal civil rights' in § 1443(1) is not a matter we need pursue to a conclusion, however, because we may proceed here on the premise that at least the two federal statutes specifically referred to in the removal petitions, 42 U.S.C. § 1971 and 42 U.S.C. § 1981, do qualify under the statutory definition. ^[24]

The fundamental claim in this case, then, is that a case for removal is made under § 1443(1) upon a petition alleging: (1) that the defendants were arrested by state officers and charged with various offenses under state law because they were Negroes or because they were engaged in helping Negroes assert their rights under federal equal civil rights laws, and that they are completely innocent of the charges against them, or (2) that the defendants will be unable to obtain a fair trial in the state court. The basic difference between this case and Rachel is thus immediately apparent. In Rachel the defendants relied on the specific provisions of a pre-emptive federal civil rights law-ss 201(a) and 203(c) of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a(a) and 2000a-2(c) (1964 ed.), as construed in Hamm v. City of Rock Hill, supra-that, under the conditions alleged, gave them: (1) the federal statutory right to remain on the property of a restaurant proprietor after being ordered to leave, despite a state law making it a criminal offense not to leave, and (2) the further federal statutory right that no State should even attempt to prosecute them for their conduct. The Civil Rights Act of 1964 as construed in Hamm thus specifically and uniquely conferred upon the defendants an absolute right to 'violate' the explicit terms of the state criminal trespass law with the impunity under the conditions alleged in the Rachel removal petition, and any attempt by the State to make them answer in a court for this conceded 'violation' would directly deny their federal right 'in the courts of (the) State.' The present case differs from Rachel in two significant respects. First, no federal law confers an absolute right on private citizens-on civil rights advocates, on Negroes, or on anybody else-to obstruct a public street, to contribute to the delinquency of a minor, to drive an automobile without a license, or to bite a policeman. Second, no federal law confers immunity from state prosecution on such charges. ^[25]

To sustain removal of these prosecutions to a federal court upon the allegations of the petitions in this case would therefore mark a complete departure from the terms of the removal statute, which allow removal only when a person is 'denied or cannot enforce' a specified federal right 'in the courts of (the) State,' and a complete departure as well from the consistent line of this Court's decisions from Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664, to Commonwealth of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633. ^[26] Those cases all stand for at least one basic proposition: It is not enough to support removal under § 1443(1) to allege or show that the defendant's federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial, that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court. The motives of the officers bringing the charges may be corrupt, but that does not show that the state trial court will find the defendant guilty if he is innocent, or that in any other manner the defendant will be 'denied or cannot enforce in the courts' of the State any right under a federal law providing for equal civil rights. The civil rights removal statute does not require and does not permit the judges of the federal courts to put their brethren of the state judiciary on trial. Under § 1443(1), the vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. State of Georgia v. Rachel, supra; Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664.

What we have said is not for one moment to suggest that the individual petitioners in this case have not alleged a denial of rights guaranteed to them under federal law. If, as they allege, they are being prosecuted on baseless charges solely because of their race, then there has been an outrageous denial of their federal rights, and the federal courts are far from powerless to redress the wrongs done to them. The most obvious remedy is the traditional one emphasized in the line of cases from Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667, to Commonwealth of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633-vindication of their federal claims on direct review by this Court, if those claims have not been vindicated by the trial or reviewing courts of the State. That is precisely what happened in two of the cases in the Rives-Powers line of decisions, where removal under the predecessor of § 1443(1) was held to be unauthorized, but where the state court convictions were overturned because of a denial of the defendants' federal rights at their trials. ^[27] That is precisely what has happened in countless cases this Court has reviewed over the years-cases like Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176, to name one at random decided in the present Term. 'Cases where Negroes are prosecuted and convicted in state courts can find their way expeditiously to this Court, provided they present constitutional questions.' England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 434, 84 S.Ct. 461, 475, 11 L.Ed.2d 440 (Douglas, J., concurring).

But there are many other remedies available in the federal courts to redress the wrongs claimed by the individual petitioners in the extraordinary circumstances they allege in their removal petitions. If the state prosecution or trial on the charge of obstructing a public street or on any other charge would itself clearly deny their rights protected by the First Amendment, they may under some circumstances obtain an injunction in the federal court. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22. If they go to trial and there is a complete absence of evidence against them, their convictions will be set aside because of a denial of due process of law. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654. If at their trial they are in fact denied any federal constitutional rights, and these denials go uncorrected by other courts of the State, the remedy of federal habeas corpus is freely available to them. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. If their federal claims at trial have been denied through an unfair or deficient fact-finding process, that, too, can be corrected by a federal court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

Other sanctions, civil and criminal, are available in the federal courts against officers of a State who violate the petitioners' federal constitutional and statutory rights. Under 42 U.S.C. § 1983 (1964 ed.) the officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well. ^[28] Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. And only this Term we have held that the provisions of 18 U.S.C. § 241 (1964 ed.), a criminal law that imposes punishment of up to 10 years in prison, may be invoked against those who conspire to deprive any citizen of the 'free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States' by 'causing the arrest of Negroes by means of false reports that such Negroes had committed criminal acts.' ^[29] United States v. Guest, 383 U.S. 745, 756, 86 S.Ct. 1170, 1177, 16 L.Ed.2d 239.

But the question before us now is not whether state officials in Mississippi have engaged in conduct for which they may be civilly or criminally liable under federal law. The question, precisely, is whether the individual petitioners are entitled to remove these state prosecutions to a federal court under the provisions of 28 U.S.C. § 1443(1). Unless the words of this removal statute are to be disregarded and the previous consistent decisions of this Court completely repudiated, the answer must clearly be that no removal is authorized in this case. In the Rachel case, decided today, we have traced the course of those decisions against the historic background of the statute they were called upon to interpret. And in Rachel we have concluded that removal to the federal court in the narrow circumstances there presented would not be a departure from the teaching of this Court's decisions, because the Civil Rights Act of 1964, in those narrow circumstances, 'substitutes a right for a crime.' Hamm v. City of Rock Hill, 379 U.S. 306, 315, 85 S.Ct. 384, 391, 13 L.Ed.2d 300.

We need not and do not necessarily approve or adopt all the language and all the reasoning of every one of this Court's opinions construing this removal statute, from Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664, to Commonwealth of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633. But we decline to repudiate those decisions, and we decline to do so not out of a blind adherence to the principle of stare decisis, but because after independent consideration we have determined, for the reasons expressed in this opinion and in Rachel, that those decisions were correct in their basic conclusion that the provisions of § 1443(1) do not operate to work a wholesale dislocation of the historic relationship between the state and the federal courts in the administration of the criminal law.

It is worth contemplating what the result would be if the strained interpretation of § 1443(1) urged by the individual petitioners were to prevail. In the fiscal year 1963 there were 14 criminal removal cases of all kinds in the entire Nation; in fiscal 1964 there were 43. The present case was decided by the Court of Appeals for the Fifth Circuit on June 22, 1965, just before the end of the fiscal year. In that year, fiscal 1965, there were 1,079 criminal removal cases in the Fifth Circuit alone. ^[30] But this phenomenal increase is no more than a drop in the bucket of what could reasonably be expected in the future. For if the individual petitioners should prevail in their interpretation of § 1443(1), then every criminal case in every court of every State-on any charge from a five dollar misdemeanor to first-degree murder-would be removable to a federal court upon a petition alleging (1) that the defendant was being prosecuted because of his race ^[31] and that he was completely innocent of the charge brought against him, or (2) that he would be unable to obtain a fair trial in the state court. On motion to remand, the federal court would be required in every case to hold a hearing, which would amount to at least a preliminary trial of the motivations of the state officers who arrested and charged the defendant, of the quality of the state court or judge before whom the charges were filed and of the defendant's innocence or guilt. And the federal court might, of course, be located hundreds of miles away from the place where the charge was brought. This hearing could be followed either by a full trial in the federal court, or by a remand order. Every remand order would be appealable as of right to a United States Court of Appeals and, if affirmed there, would then be reviewable by petition for a writ of certiorari in this Court. If the remand order were eventually affirmed, there might, if the witnesses were still available, finally be a trial in the state court, months or years after the original charge was brought. If the remand order were eventually reversed, there might finally be a trial in the federal court, also months or years after the original charge was brought.

We have no doubt that Congress, if it chose, could provide for exactly such a system. We may assume that Congress has constitutional power to provide that all federal issues be tried in the federal courts, that all be tried in the courts of the States, or that jurisdiction of such issues be shared. ^[32] And in the exercise of that power, we may assume that Congress is constitutionally fully free to establish the conditions under which civil or criminal proceedings involving federal issues may be removed from one court to another. ^[33]

But before establishing the regime the individual petitioners propose, Congress would no doubt fully consider many questions. The Court of Appeals for the Fourth Circuit has mentioned some of the practical questions that would be involved: 'If the removal jurisdiction is to be expanded and federal courts are to try offenses against state laws, cases not originally cognizable in the federal courts, what law is to govern, who is to prosecute, under what law is a convicted defendant to be sentenced and to whose institution is he to be committed * * *?' Baines v. City of Danville, 357 F.2d 756, 768-769. To these questions there surely should be added the very practical inquiry as to how many hundreds of new federal judges and other federal court personnel would have to be added in order to cope with the vastly increased caseload that would be produced.

We need not attempt to catalog the issues of policy that Congress might feel called upon to consider before making such an extreme change in the removal statute. But prominent among those issues, obviously, would be at least two fundamental questions: Has the historic practice of holding state criminal trials in state courts-with power of ultimate review of any federal questions in this Court-been such a failure that the relationship of the state and federal courts should now be revolutionized? Will increased responsibility of the state courts in the area of federal civil rights be promoted and encouraged by denying those courts any power at all to exercise that responsibility?

We postulate these grave questions of practice and policy only to point out that if changes are to be made in the long-settled interpretation of the provisions of this century-old removal statute, it is for Congress and not for this Court to make them. Fully aware of the established meaning the removal statute had been given by a consistent series of decisions in this Court, Congress in 1964 declined to act on proposals to amend the law. ^[34] All that Congress did was to make remand orders appealable, and thus invite a contemporary judicial consideration of the meaning of the unchanged provisions of 28 U.S.C. § 1443. We have accepted that invitation and have fully considered the language and history of those provisions. Having done so, we find that § 1443 does not justify removal of these state criminal prosecutions to a federal court. Accordingly the judgment of the Court of Appeals is reversed.

It is so ordered.

Judgment reversed.

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice FORTAS concur, dissenting.

Notes

1. The defendants were charged with violating paragraph one of § 2296.5 of the Mississippi Code (1964 Cum.Supp.), Laws 1960, c. 244, § 1, which provides: 'It shall be unlawful for any person or persons to wilfully obstruct the free, convenient and normal use of any public sidewalk, street, highway, alley, road, or other passageway by impeding, hindering, stifling, retarding or restraining traffic or passage thereon, and any person or persons violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than five hundred dollars ($500.00) or by confinement in the county jail not exceeding six (6) months, or by both such fine and imprisonment.'
2. 'Civil rights cases.
3. The removal petitions specifically invoked rights to freedom of speech, petition, and assembly under the First and fourteenth Amendments to the Constitution, as well as additional rights under the Equal Protection, Due Process, and Privileges and Immunities Clauses of the Fourteenth Amendment. 42 U.S.C. § 1971(a)(1) (1964 ed.), which guarantees the right to vote, free from racial discrimination, provides:
4. '* * * § 1443(2) * * * is limited to federal officers and those assisting them or otherwise acting in an official or quasi-official capacity.' Peacock v. City of Greenwood, 347 F.2d 679, 686 (C.A.5th Cir.). In reaching this conclusion, the Court of Appeals relied strongly on the decision of the district Court in City of Clarksdale v. Gertge, 237 F.Supp. 213 (D.C.N.D.Miss.). The Court of Appeals for the Fourth Circuit has also adopted this construction of § 1443(2). Baines v. City of Danville, 357 F.2d 756, 771-772. The Courts of Appeals for the Second and Third Circuits have refused to grant removal under § 1443(2) on allegations comparable to those in the present case. People of State of New York v. Galamison, 342 F.2d 255 (C.A.2d Cir.); City of Chester v. Anderson, 347 F.2d 823 (C.A.3d Cir.). See also State of Arkansas v. Howard, 218 F.Supp. 626 (D.C.E.D.Ark.).
5. The several defendants were charged variously with assault, interfering with an officer in the performance of his duty, disturbing the peace, creating a disturbance in a public place, inciting to riot, parading without a permit, assault and battery by biting a police officer, contributing to the delinquency of a minor, operating a motor vehicle with improper license tags, reckless driving, and profanity and use of vulgar language.
6. Under § 1443(1), the defendants alleged that they had been denied and could not enforce in the courts of the State rights under laws providing for equal civil rights, in that the courts and law enforcement officers of the State were prejudiced against them because of their race or their association with Negroes, and because of the commitment of the courts and officers to the State's declared policy of racial segregation. The defendants also alleged that the trial would take place in a segregated courtroom, that Negro witnesses and attorneys would be addressed by their first names, that Negroes would be excluded from the juries, and that the judges and prosecutors who would participate in the trial had gained office at elections in which negro voters were excluded. The defendants also urged that the statutes and ordinances under which they were charged were unconstitutionally vague on their face, and that the statutes and ordinances were unconstitutional as applied to the defendants' conduct.
7. Under § 1443(2), the defendants alleged that they had engaged solely in conduct protected by the First Amendment, by the Equal Protection, Due Process, and Privileges and Immunities Clauses of the Fourteenth Amendment, and by 42 U.S.C. § 1981 (1964 ed.), which provides:
8. The City of Greenwood, petitioner in No. 471, challenges the Court of Appeals' interpretation of § 1443(1); the individual petitioners in No. 649 challenge the court's interpretation of § 1443(2).
9. The provisions of what is now § 1443(2) have never been construed by this Court during the century that has passed since the law's original enactment. The courts of appeals that have recently given consideration to the subsection have unanimously rejected the claims advanced in this case by the individual petitioners. See, in addition to the present case in the Fifth Circuit, 347 F.2d 679, the following cases: People of State of New York v. Galamison, 342 F.2d 255 (C.A.2d Cir.); City of Chester v. Anderson, 347 F.2d 823 (C.A.3d Cir.); Baines v. City of Danville, 357 F.2d 756 (C.A.4th Cir.). See note 4, supra.
10. See Rev.Stat. § 641 (1874); Judicial Code of 1911, c. 231, § 31, 36 Stat. 1096; 28 U.S.C. § 74 (1926 ed.); 28 U.S.C. § 1443 (1952 ed.). Although the 1948 revision modified the language of the prior provision in numerous respects, including the elimination of the phrase 'officer * * * or other person,' the reviser's note states simply that 'Changes were made in phraseology.' H.R.Rep.No. 308, 80th Cong., 1st Sess., p. A134. The statutory development of the civil rights removal provision is set out in the Appendix to the Court's opinion in State of Georgia v. Rachel, supra.
11. By the Act of March 3, 1865, 13 Stat. 507, Congress established a Bureau under the War Department, to last during the rebellion and for one year thereafter, to assist refugees and freedmen from rebel states and other areas by providing food, shelter, and clothing. The Bureau was under the direction of a commissioner appointed by the President with the consent of the Senate. Under § 4 of the Act, the commissioner was authorized to set apart for loyal refugees and freedmen up to 40 acres of lands that had been abandoned in the rebel states or that had been acquired by the United States by confiscation or sale. The section specifically provided that persons assigned to such lands 'shall be protected in the use and enjoyment of the land.' 13 Stat. 508. The Act was continued for two years by the Act of July 16, 1866, c. 200, § 1, 14 Stat. 173. In addition, § 3 of the latter Act amended the 1865 Act to authorize the commissioner to 'appoint such agents, clerks, and assistants as may be required for the proper conduct of the bureau.' The section also provided that military officers or enlisted men might be detailed for service and assigned to duty under the Act. 14 Stat. 174. Further, § 13 of the amendatory Act of 1866 specifically provided that 'the commissioner of this bureau shall at all times co-operate with private benevolent associations of citizens in aid of freedmen, and with agents and teachers, duly accredited and appointed by them, and shall hire or provide by lease buildings for purposes of education whenever such associations shall, without cost to the government, provide suitable teachers and means of instruction; and he shall furnish such protection as may be required for the safe conduct of such schools.' 14 Stat. 176. Section 14 of the amendatory Act of 1866 established, in essentially the same terms for States where the ordinary course of judicial proceedings had been interrupted by the rebellion, the rights and obligations that had already been enacted in § 1 of the Act of April 9, 1866 (the Civil Rights Act), and provided for the extension of military jurisdiction to those States in order to protect the rights secured. 14 Stat. 176-177. By the Act of July 6, 1868, 15 Stat. 83, the Freedmen's Bureau legislation was continued for an additional year.
12. 'Sec. 4. And be it further enacted, That * * * the officers and agents of the Freedmen's Bureau * * * shall be, and they are hereby, specially authorized and required, at the expense of the United States, to institute proceedings against all and every person who shall violate the provisions of this act, and cause him or them to be arrested and imprisoned, or bailed, as the case may be, for trial before (the circuit) court of the United States or territorial court as by this act has cognizance of the offence.' Act of April 9, 1866, 14 Stat. 28.
13. Section 3 of the Civil Rights Act of 1866 provided for removal by any 'officer * * * or other person' for acts under color of authority derived either from the Act itself or from the Freedmen's Bureau legislation. See p. 815, supra. Thus, removal was granted to officers and agents of the Freedmen's Bureau for enforcement activity under both Acts. The Civil Rights Act, however, made no specific provision for removal of actions against freedmen and refugees who had been awarded abandoned or confiscated lands under § 4 of the Freedmen's Bureau Act. See note 11, supra.
14. Section 5 also provided that, 'should any marshal or deputy marshal refuse to receive such warrant or other process when tendered, or to use all proper means diligently to execute the same, he shall, on conviction thereof, be fined in the sum of one thousand dollars, to the use of the person upon whom the accused is alleged to have committed the offence.' 14 Stat. 28. The Civil Rights Act of 1866 was passed over the veto of President Johnson. Because of the hostility between Congress and the President, it was feared that the United States marshals, who were appointed by the President, would not enforce the law. In § 5, therefore, Congress provided severe penalties for recalcitrant marshals. At the same time Congress ensured the availability of process servers by providing for the appointment by the commissioners of other 'suitable persons' for the task of enforcing the new Act. Cf. In re Upchurch, 38 F. 25, 27 (C.C.E.D.N.C.).
15. Section 5 of the Civil Rights Act of 1866 provided:
16. This aspect of § 6 thus draws a threefold distinction: 'officers,' 'other persons' (probably the 'one or more suitable persons' referred to in § 5), and those 'lawfully assisting' them. We have no doubt that the general 'officer * * * or other person' language in § 3 of the Act comprehended all three of these categories.
17. 'It thus appears that the statute contemplated that literally thousands of persons would be drawn into its enforcement and that some of them otherwise would have little or no appearance of official authority.' Baines v. City of Danville, 357 F.2d 756, 760 (C.A.4th Cir.). No support for the proposition that 'other person' includes private individuals not acting in association with federal officers can be drawn from the fact that the 'color of authority' provision of the Civil Rights Act of 1866 was carried forward together with the 'denied or cannot enforce' provision as § 641 of the Revised Statutes of 1874, whereas other removal provisions applicable to federal officers and persons assisting them were carried forward in § 643. Prior to 1948 the federal officer removal statute, as here relevant, was limited to revenue officers engaged in the enforcement of the criminal or revenue laws. The provision was expanded in 1948 to encompass all federal officers. See 28 U.S.C. § 1442(a)(1) (1964 ed.). At the present time, all state suits or prosecutions against 'Any officer of the United States * * * or person acting under him, for any act under color of such office' may be removed. Thus many, if not all, of the cases presently removable under § 1443(2) would now also be removable under § 1442(a)(1). The present overlap between the provisions simply reflects the separate historical evolution of the removal provision for officers in civil rights legislation. Indeed, there appears to be redundancy even within § 1442(a)(1) itself. See Wechsler, Federal Jurisdiction and
18. Act of March 3, 1863, c. 81, §§ 1, 4, 12 Stat. 755, 756. See also the amendatory Act of May 11, 1866, 14 Stat. 46.
19. The provision in § 5 of the Act of March 3, 1863, specifically extending removal to criminal as well as civil proceedings, was added on the Senate floor. Cong.Globe, 37th Cong., 3d Sess., 538. The debates focused on the need to protect federal officers against state criminal prosecutions. See, e.g., id., at 535 (remarks of Senator Clark); id., at 537-538 (remarks of Senator Cowan).
20. Although, in the revenue officer removal provision of the Revenue Act of 1866, Act of July 13, c. 184, § 67, 14 Stat. 171, Congress expressly characterized the 'other person' as one 'acting under or by authority of any (revenue) officer,' that statute obviously drew on the comparable characterization of the 'other person' in the Customs Act of 1815, supra, note 17. And the 'title' clause included in the 1866 revenue officer removal provision was obviously derived from the Force Act of 1833, supra, note 17. Thus, the same legislative inertia that led the Reconstruction Congress not to qualify 'other person' in the Civil Rights Act of 1866 also led it to retain such a qualification in the revenue officer removal provision enacted later the same year. Compare § 16 of the Act of February 28, 1871, 16 Stat. 438 ('title' clause included in the officer removal provision of a civil rights statute). Cf. City of Philadelphia v. Collector, 5 Wall. 720, 18 L.Ed. 614; The Assessors v. Osbornes, 9 Wall. 567, 19 L.Ed. 748.
21. The language 'arrest or imprisonment, trespasses, or wrongs' is, of course, easily read as describing the full range of enforcement activities in which federal officers might be engaged under the Civil Rights Act. In a case arising under § 5 of the Habeas Corpus Suspension Act of 1863, this Court disallowed removal of an action of ejectment brought in a Virginia state court by the heir of a Confederate naval officer whose land had been seized under the Confiscation Act of July 17, 1862, 12 Stat. 589. The confiscated land had been sold at public auction, and the rights to the land subsequently vested in a man named Bigelow, against whom the action of ejectment was brought. In denying removal under § 5 of the 1863 Act, Mr. Justice Strong for a unanimous Court stated, 'The specification (in § 5) of arrests and imprisonments * * * followed by more general words, justifies the inference that the other trespasses and wrongs mentioned are trespasses and wrongs ejusdem generis, or of the same nature as those which had been previously specified.' Bigelow v. Forrest, 9 Wall. 339, 348-349, 19 L.Ed. 696.
22. The second phrase of 28 U.S.C. § 1443(2), 'for refusing to do any act on the ground that it would be inconsistent with such law,' has no relevance to this case. It is clear that removal under that language is available only to state officers. The phrase was added by the House of Representatives as an amendment to the Senate bill during the debates on the Civil Rights Act of 1866. In reporting the House bill, Representative Wilson, the chairman of the House Judiciary Committee and the floor manager of the bill, said, 'I will state that this amendment is intended to enable State officers, who shall refuse to enforce State laws discriminating in reference to (the rights created by § 1 of the bill) on account of race or color, to remove their cases to the United States courts when prosecuted for refusing to enforce those laws.' Cong. Globe, 39th Cong., 1st Sess., 1367.
23. See State of Georgia v. Rachel, ante, 384 U.S. at 788 792, 86 S.Ct. at 1788-1790. See also, People of State of New York v. Galamison, 342 F.2d 255, 266-268 (C.A.2d Cir.).
24. See note 3 and note 7, supra.
25. Section 203(c) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-2(c) (1964 ed.), the provision involved in Hamm v. City of Rock Hill, 379 U.S. 306, 310, 85 S.Ct. 384, 388, 13 L.Ed.2d 300, and State of Georgia v. Rachel, 384 U.S. at 793-794, 804-805, 86 S.Ct. at 1790-1791, 1796-1797, explicitly provides that no person shall 'punish or attempt to punish any person for exercising or attempting to exercise any right or privilege' secured by the public accommodations section of the Act. None of the federal statutes invoked by the defendants in the present case contains any such provision. See note 3 and note 7, supra.
26. See also Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667; Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Bush v. Commonwealth of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354; Gibson v. State of Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Smith v. State of Mississippi, 162 U.S. 592, 16 S.Ct. 900, 40 L.Ed. 1082; Murray v. State of Louisiana, 163 U.S. 101, 16 S.Ct. 990, 41 L.Ed. 87; Williams v. State of Mississippi, 170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012; Dubuclet v. State of Louisiana, 103 U.S. 550, 26 L.Ed. 504; Schmidt v. Cobb, 119 U.S. 286, 7 S.Ct. 1373, 30 L.Ed. 321. Cf. State of Georgia v. Rachel, 384 U.S. at 797 et seq., 86 S.Ct. at 1793 et seq.
27. Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567; Bush v. Commonwealth of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354.
28. 'Civil action for deprivation of rights.
29. 'Conspiracy against rights of citizens.
30. Annual Report of the Director of the Administrative Office of the United States Courts 214, 216 (1965). See State of Georgia v. Rachel, 384 U.S. p. 788, 86 S.Ct. p. 1788, n. 8.
31. Such removal petitions could, of course, be filed not only by Negroes, but also by members of the Caucasian or any other race.
32. See Romero v. International Terminal Operating Co., 358 U.S. 354, 359-380; 389-412, 79 S.Ct. 468, 473-484, 489-500, 3 L.Ed.2d 368 (separate opinion of Mr. Justice Brennan).
33. See Martin v. Hunter's Lessee, 1 Wheat. 304, 348-350, 4 L.Ed. 97; The Moses Taylor, 4 Wall. 411, 428-430, 18 L.Ed. 397; Mayor v. Cooper, 6 Wall. 247, 251-254, 18 L.Ed. 851; Railway Co. v. Whitton's Adm'r, 13 Wall. 270, 287-290, 20 L.Ed. 571; State of Tennessee v. Davis, 100 U.S. 257, 262-271, 25 L.Ed. 648; Strauder v. State of West Virginia, 100 U.S. 303, 310-312, 25 L.Ed. 664. A number of bills enlarging the right of removal to a federal court in civil rights cases are before the present Congress. See, for example: S. 2923, S. 3170, H.R. 12807, H.R. 12818, H.R. 12845, H.R. 13500, H.R. 13941, H.R. 14112, H.R. 14113, H.R. 14770, H.R. 14775, H.R. 14836 (89th Cong., 2d. Sess.).
34. Section 903 of H.R. 7702, 88th Cong., 1st Sess., would have amended 28 U.S.C. § 1443 to enlarge the availability of removal in civil rights cases. H.R. 7702, however, did not emerge from the Judiciary Committee of the House of Representatives. Cf. State of Georgia v. Rachel, 384 U.S. p. 787, 86 S.Ct. p. 1787, n. 7.