Petitioners, six Negroes, who had been picketing and urging
boycott of certain business establishments in Vicksburg, Miss.,
because of their alleged racial discrimination in employment, were
arrested with others and charged with unlawfully conspiring to
bring about a boycott. Those arrested then sought removal of the
prosecutions from state to federal court pursuant to 28 U.S.C.§
1443(1), which provides for removal of state proceedings
"[a]gainst any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the equal
civil rights of citizens,"
alleging that the conspiracy statutes underlying the charges
were unconstitutional, that the charges were groundless, and made
solely to deprive those arrested of their federally protected
rights, and, more particularly, that their activities were
protected by 18 U.S.C. § 245 (Title I of the Civil Rights Act of
1968). Section 245(b)(5),
inter alia, makes it a crime by
"force or threat of force" to injure, intimidate, or interfere with
any person because he has been "participating lawfully in speech or
peaceful assembly" opposing racial discrimination in employment,
but § 245(a)(1) provides that § 245 shall not be construed as
indicating Congress' intent to prevent any State from exercising
jurisdiction over any offense over which it would have jurisdiction
in the absence of § 245. The District Court denied removal, and the
Court of Appeals affirmed, holding that § 245 "confers no rights
whatsoever," and that a federal statute must "provide" for the
equal rights of citizens before it can be invoked as a basis for
removal of prosecutions under § 1443(1).
Held: Removal under § 1443(1) was not warranted based
solely on petitioners' allegations that the statutes underlying the
charges were unconstitutional, that there was no basis in fact for
those charges, or that their arrest and prosecution otherwise
denied them their constitutional rights.
Georgia v.
Rachel, 384 U. S. 780;
City of Greenwood v. Peacock, 384 U.
S. 808. Nor does § 245 furnish adequate basis for
removal under § 1443(1). Pp.
421 U. S.
222-227.
(a) The Mississippi courts undoubtedly have jurisdiction over
conspiracy and boycott cases brought under state law, and §
245(a)(1)
Page 421 U. S. 214
appears to disavow any intent to interrupt such state
prosecutions, a conclusion that is also implicit in § 245's
operative provisions, since § 245(b), on its face, focuses on the
use of force, and its legislative history confirms that its central
purpose was to prevent and punish violent interferences with the
exercise of specified rights, and that it was not aimed at
interrupting or frustrating the otherwise orderly processes of
state law. Pp.
421 U. S.
223-227.
(b) Thus, viewed in the context of § 245's being directed at
crimes of racial violence, a state prosecution, proceeding as it
does in a court of law, cannot be characterized as an application
of "force or threat of force" within the meaning of § 245, and,
whatever "rights" that section may confer, none of them is denied
by a state criminal prosecution for conspiracy or boycott, there
being no "federal statutory right that no State should even attempt
to prosecute [petitioners] for their conduct,"
Peacock,
supra, at
384 U. S. 826.
P.
421 U. S.
227.
(c) The absence of any evidence or legislative history
indicating that Congress intended to accomplish in 18 U.S.C. § 245
what it has failed or refused to do directly through amendment to
28 U.S.C. § 1443 also necessitates rejection of the right of
removal in this case, in addition to which there are other avenues
of relief open to petitioners for vindication of their federal
rights that may have been or will be violated. Pp.
421 U. S.
227-228.
488 F.2d 284, affirmed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post, p.
421 U. S. 229.
DOUGLAS, J., took no part in the consideration or decision of the
case.
Page 421 U. S. 215
MR. JUSTICE WHITE delivered the opinion of the Court.
This case concerns the application of 28 U.S.C. § 1443(1),
permitting defendants in state cases to remove the proceedings to
the federal district courts under certain conditions, in the light
of Title I of the Civil Rights Act of 1968, § 101(a), 82 Stat. 73,
18 U.S.C. § 245.
I
During March 1972, petitioners, six Negro citizens of Vicksburg,
Miss., along with other citizens of Vicksburg, made various demands
upon certain merchants and city officials generally relating to the
number of Negroes employed or serving in various positions in both
local government and business enterprises. In late March,
petitioners began picketing some business establishments in
Vicksburg and urging, by word of mouth and through leaflets, that
the citizens of Vicksburg boycott those establishments until such
time as petitioners' demands were realized. [
Footnote 1] On May 2, 13, 14, and 21 of that year,
petitioners, along with 43 other Negroes, were arrested [
Footnote 2] on the basis of warrants
charging, in general terms, their complicity in a conspiracy
unlawfully to bring about a boycott of merchants and businesses.
[
Footnote 3] At least some
Page 421 U. S. 216
of these arrests took place at a time when some of those
arrested were engaged in picketing in protest of the racial
discrimination allegedly practiced by certain merchants of
Vicksburg. Following the arrests, which were made by Vicksburg
police officers, those arrested were transported to the city jail,
where they each remained after processing until the posting of
bail. There is no indication in the record in this case that the
arrests and subsequent detentions of petitioners or the other 43
persons so arrested and detained involved the application of any
force by the arresting officers beyond the verbal directions issued
by those officers and the coercive custody normally incident to
arrest, processing, and detention.
On May 25, 1972, those arrested filed a petition in the Federal
District Court in compliance with the procedures established by 28
U.S.C. § 1446 seeking transfer of the trial of charges against them
to the District Court pursuant to 28 U.S.C. § 1443, which reads, in
pertinent part, [
Footnote 4] as
follows:
"Any of the following civil actions or criminal prosecutions,
commenced in a State court, may be removed by the defendant to the
district court of the United States for the district and division
embracing the place wherein it is pending: "
Page 421 U. S. 217
"(1) Against any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the equal
civil rights of citizens of the United States, or of all persons
within the jurisdiction thereof. . . ."
In their removal petition, it was alleged,
inter alia,
that those arrested were being prosecuted under several state
conspiracy statutes [
Footnote
5] which were, "on their face and as applied, repugnant to the
Constitution . . . ," and that:
"The charges against petitioners, their arrest, and subsequent
prosecution on those charges have no basis, in fact, and have been
effectuated solely and exclusively for the purpose and effect of
depriving petitioners of their Federally protected rights,
including by force or threat of force, punishing, injuring,
intimidating, and interferring [
sic], or attempting to
punish, injure, intimidate, . . . and interfere with petitioners,
and the class of persons participating in the . . . boycott and
demonstrations, for the exercise of their rights peacefully to
protest discrimination and to conduct and publicize a boycott which
seeks to remedy the denial of equal civil rights . . . which
activities are protected by 18 U.S.C. [§] 245."
On December 29, 1972, after an evidentiary hearing was held by
the District Court in which testimony was
Page 421 U. S. 218
presented both by petitioners and the Vicksburg chief of police,
who was one of the named respondents to the removal petition, the
District Court remanded the prosecutions to the state courts. The
Court of Appeals affirmed, [
Footnote 6] reasoning that § 245, as a criminal statute,
"confers no rights whatsoever . . . ," 488 F.2d 284, 287 (CA5
1974), and that, under this Court's decisions in
Georgia v.
Rachel, 384 U. S. 780
(1966), and
City of Greenwood v. Peacock, 384 U.
S. 808 (1966), a federal statute must "provide" for the
equal rights of citizens before it can be invoked as a basis for
removal of prosecutions under § 1443(1). Rehearing and rehearing en
banc, Fed.Rule App.Proc. 35, were denied, five Circuit Judges
dissenting in an opinion. [
Footnote
7] 491 F.2d 94 (CA5 1974). We granted certiorari, 419 U.S. 893
(1974), and, for reasons stated below, affirm the judgment of the
Court of Appeals.
Page 421 U. S. 219
II
Our most recent cases construing § 1443(1) are the companion
cases of
Georgia v. Rachel, supra, and
City of
Greenwood v. Peacock, supra. Those cases established that a
removal petition under 28 U.S.C. § 1443(1) must satisfy a
two-pronged test. First, it must appear that the right allegedly
denied the removal petitioner arises under a federal law "providing
for specific civil rights stated in terms of racial equality."
Georgia v. Rachel, supra at
384 U. S. 792.
Claims that prosecution and conviction will violate rights under
constitutional or statutory provisions of general applicability or
under statutes not protecting against racial discrimination, will
not suffice. That a removal petitioner will be denied due process
of law because the criminal law under which he is being prosecuted
is allegedly vague or that the prosecution is assertedly a sham,
corrupt, or without evidentiary basis does not, standing alone,
satisfy the requirements of § 1443(1).
City of Greenwood v.
Peacock, supra at
384 U. S.
825.
Second, it must appear, in accordance with the provisions of §
1443(1), that the removal petitioner is "denied or cannot enforce"
the specified federal rights "in the courts of [the] State." This
provision normally requires that the "denial be manifest in a
formal expression of state law,"
Georgia v. Rachel, supra
at
384 U. S. 803,
such as a state legislative or constitutional provision,
"
rather than a denial first made manifest at the trial of the
case.'" Id. at 384 U. S. 799.
Except in the unusual case where
"an equivalent basis could be shown for an equally firm
prediction that the defendant would be 'denied or cannot enforce'
the specified federal rights in the state court,"
id. at
384 U. S. 804,
it was to be expected that the protection of federal constitutional
or statutory rights could be
Page 421 U. S. 220
effected in the pending state proceedings, civil or criminal.
Under § 1443(1),
"the vindication of the defendant's federal rights is left to
the state courts except in he 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."
City of Greenwood v. Peacock, supra at
384 U. S.
828.
In
Rachel, the allegations of the petition for removal
were held to satisfy both branches of the rule. The federal right
claimed arose under §§ 201(a) and 203(c) of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000a(a) and 2000a-2(c). Section 201(a) forbids
refusals of service in, or exclusions from, public accommodations
on account of race or color; and § 203(c) prohibits any "attempt to
punish any person for exercising or attempting to exercise any
right or privilege secured by section 201. . . ." The removal
petition fairly alleged that the prosecutions sought to be removed
from state court were brought and would be tried "solely as the
result of peaceful attempts to obtain service at places of public
accommodation." 384 U.S. at
384 U. S. 793.
[
Footnote 8] We concluded that,
if the allegations in the removal petition were true, the
defendants by being prosecuted under a state criminal trespass law
would be denied or could not enforce their rights in the courts of
Georgia, since the "burden of having to defend the prosecutions is
itself the denial of a right explicitly conferred by the Civil
Rights Act of 1964."
Id. at
384 U. S. 805.
In
Peacock, on the contrary, the state court
defendants
Page 421 U. S. 221
petitioning for removal were being prosecuted for obstructing
public streets, assault and battery, and various other local
crimes. [
Footnote 9] The
federal rights allegedly being denied were said to arise under the
Constitution as well as under 42 U.S.C. §§ 1971 and 1981, the
former section guaranteeing the right to vote without
discrimination on the grounds of race or color and forbidding
interference therewith, and the latter guaranteeing all persons
equal access to specified rights enjoyed by white persons.
[
Footnote 10] The Court
assumed that the claimed statutory
Page 421 U. S. 222
rights were within those rights contemplated by § 1443(1), but
went on to hold that there had been no showing that petitioners
would be denied or could not enforce their rights in the state
courts. The removal petitions alleged
"(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."
384 U.S. at
384 U. S. 826.
The Court held, however, that it was not enough to support removal
to allege that
"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."
Id. at
384 U. S. 827.
Petitioners could point to no federal law conferring on them the
right to engage in the specific conduct with which they were
charged, and there was no "federal statutory right that no State
should even attempt to prosecute them for their conduct."
Id. at
384 U. S.
826.
III
With our prior cases in mind, it is apparent, without further
discussion, that removal under § 1443(1) was not warranted here
based solely on petitioners' allegations that the statutes
underlying the charges against them were unconstitutional, that
there was no basis in fact for those charges, or that their arrest
and prosecution otherwise denied them their constitutional rights.
We are also convinced for the following reasons that
Page 421 U. S. 223
§ 245, [
Footnote 11] on
which petitioners principally rely, does not furnish adequate basis
for removal under § 1443(1) of these state prosecutions to the
federal court.
Whether or not § 24, a federal criminal statute, provides for
"specific civil rights stated in terms of racial equality . . . ,"
Georgia v. Rachel, 384 U.S. at
384 U. S. 792,
it
Page 421 U. S. 224
evinces no intention to interfere in any manner with state
criminal prosecutions of those who seek to have their cases removed
to the federal courts. On the contrary, § 245(a)(1) itself
expressly provides:
"Nothing in this section shall be construed as indicating an
intent on the part of Congress to prevent any State . . . from
exercising jurisdiction over any offense over which it would have
jurisdiction in the absence of this section. . . . [
Footnote 12]"
The Mississippi courts undoubtedly have jurisdiction over
conspiracy and boycott cases brought under state law; and §
245(a)(1) appears to disavow any intent to interrupt such state
prosecutions, a conclusion that is also implicit in the operative
provisions of that section. Section 245(b) makes it a crime for any
persons, by "force or threat of force," to injure, intimidate, or
interfere with any individual engaged in specified activities. The
provision, on its face, focuses on the use of force, and its
legislative history confirms that its central purpose was to
prevent and punish violent interferences with the exercise of
specified rights, and that it was not aimed at interrupting or
frustrating the otherwise orderly processes of state law.
Section 245, which was Title I of the Civil Rights Act of 1968,
was the antidote prescribed by Congress to deter and punish those
who would forcibly suppress the free exercise of civil rights
enumerated in that statute. The bill which eventually became Title
I, H.R. 2516, was substantially identical to H.R. 14765, passed by
the
Page 421 U. S. 225
House as Title V of the Civil Rights Act of 1966. [
Footnote 13] Title I was enacted
against a background of racial violence described in the Report of
the bill that was adopted by the House:
"The brutal crimes committed in recent years against Negroes
exercising Federal rights and against white persons who have
encouraged or aided Negroes seeking equality need no recital.
Violence and threats of violence have been resorted to in order to
punish or discourage Negroes from voting, from using places of
public accommodation and public facilities, from attending
desegregated schools, and from engaging in other activities
protected by Federal law. Frequently the victim of the crime has
recently engaged or is then engaging in the exercise of a Federal
right. In other cases, the victim is a civil rights worker -- white
or Negro -- who has encouraged others to assert these rights or
engaged in peaceful assembly opposing their denial. In still other
cases, Negroes not known to have had anything to do with civil
rights activities have been killed or assaulted to discourage other
Negroes from asserting their rights."
H.R.Rep. No. 473, 90th Cong., 1st Sess., 3-4 (1967). [
Footnote 14]
Page 421 U. S. 226
The Senate Report likewise explained Title I as a measure "to
meet the problem of violent interference, for racial or other
discriminatory reasons, with a person's free exercise of civil
rights." S.Rep. No. 721, 90th Cong., 1st Sess., 3 (1967). This
concern with racially motivated acts of violence pervaded the
report,
see id. at 4, 5, 6, 7, 8, and 9. In the debate on
the floor of the Senate, frequent references to the bill's being
directed at crimes of racial violence were made, [
Footnote 15] the following being
particularly relevant here:
"This new law would provide that, when a law enforcement officer
totally abandons his duty in order to violently intimidate
individuals seeking
Page 421 U. S. 227
lawfully to exercise certain enumerated Federal rights, he will
be punished like any other citizen."
"
* * * *"
"So long as it appears that an officer reasonably believed he
was doing his duty, that is, that the arrest took place because of
a perceived violation of a then-valid law, no case of knowing
interference with civil rights could be made against him."
114 Cong.Rec. 2268 (1968).
Viewed in this context, it seems quite evident that a state
prosecution, proceeding as it does in a court of law, cannot be
characterized as an application of "force or threat of force"
within the meaning of § 245. That section furnishes federal
protection against violence in certain circumstances. But whatever
"rights" it may confer, none of them is denied by a state criminal
prosecution for conspiracy or boycott. Here, as in
Peacock, there is no "federal statutory right that no
State should even attempt to prosecute them for their conduct." 384
U.S. at
384 U. S. 826.
[
Footnote 16]
IV
We think further observations are in order. We stated in
City of Greenwood v. Peacock:
"[I]f 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,
Page 421 U. S. 228
in 1964, declined to act on proposals to amend the law. 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."
Id. at
384 U. S.
834-835. When we decided that case, there had been
introduced in the Congress no fewer than 12 bills which, if
enacted, would have enlarged in one way or another the right of
removal in civil rights cases.
Id. at
384 U. S. 833
n. 33. None of those bills was reported from the cognizant
committee of Congress; none has been reported in the intervening
years; and the parties have informed us of no comparable bill under
active consideration in the present Congress. The absence of any
evidence or legislative history indicating that Congress intended
to accomplish in § 245 what it has failed or refused to do directly
through amendment to § 1443 necessitates our considered rejection
of the right of removal in this case. Also, as we noted in
Peacock, there are varied avenues of relief open to these
defendants for vindication of any of their federal rights that may
have been or will be violated, 384 U.S. at
384 U. S.
828-830; and, indeed, it appears from the record in this
case that at least one such avenue was pursued early on by them and
continues to be pursued. [
Footnote 17]
Affirmed.
Page 421 U. S. 229
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
With respect to these business establishments, the specific
demands made by the petitioners were that 40% of their employees
and managers should be drawn from the Negro community.
[
Footnote 2]
All of the petitioners were arrested on May 2, 1972; petitioners
Albert Johnson, Eddie McBride, Charles Chiplin, and James Odell
Dixon were arrested again on either May 13 or 14, and petitioner
Johnson was arrested once again on May 21.
[
Footnote 3]
The warrants w ere supported by the sworn affidavits of the
Vicksburg chief of police, and charged various persons among the
total of 49 eventually arrested
"with the felonious intent on their part, and each of them to
commit acts injurious to trade or commerce among the public and did
willfully, unlawfully, and feloniously conspire, combine,
confederate and agree among themselves and each of them with the
other, and did enter into an unlawful conspiracy, plan and design
among themselves, and each with the other, to unlawfully and
feloniously bring about a boycott of merchants and businesses and
pursuant of the said unlawful conspiracy did then and there
promote, encourage and enforce acts injurious to trade or commerce
among the public."
[
Footnote 4]
Although the petitioners pleaded § 1443 generally, they made no
suggestion that any among them was in the position to claim the
protection of § 1443(2) as construed by our decision in
City of
Greenwood v. Peacock, 384 U. S. 808,
384 U. S.
815-824 (1966), nor do they press such a claim in this
Court.
[
Footnote 5]
At the time the removal petition was filed, the precise statutes
under which prosecutions might eventually be brought were
apparently unknown to petitioners and the other persons arrested.
In their amended petition filed in the District Court, petitioners
claimed that they were to be prosecuted under "[c]onspiracy
statutes 2056 and all other conspiracy statutes as well as 2384.5.
. . ." The reference to "2056" is an apparent reference to § 2056
of the 1942 Code, now recodified as Miss.Code Ann. § 97-1-1 (1972).
The reference to "2384.5" is an apparent reference to § 2384.5 of
the 1942 Code, now recodified as Miss.Code Ann § 97-23-83
(1972).
[
Footnote 6]
After filing a notice of appeal, petitioners applied to the
District Court for a stay of its mandate remanding the prosecutions
to the state courts, which stay was denied. The record does not
indicate that a stay was sought at that point from the Court of
Appeals, the prosecutorial process proceeding in its normal fashion
until March, 1973, when the grand jury having cognizance over the
charges "no-billed" the charges against 43 of the persons having
been previously arrested. App. 14. That same grand jury at the same
time returned indictments against the six remaining persons,
petitioners here; two of the petitioners were indicted for
violation of Miss.Code Ann. § 97-23-83 (1972), and the other four
with violation of Miss.Code Ann. § 97-23-85 (1972). Tr. of Oral
Arg. 26.
[
Footnote 7]
Shortly after the Court of Appeals denied a petition for
rehearing en banc, 491 F.2d 94 (CA5 1974), that court granted an
application for a stay of its mandate to petitioners for purposes
of their seeking a writ of certiorari in this Court, that stay
being effective until disposition of the case by this Court. Since
that time, the prosecution of petitioners on the indictments handed
down by the grand jury has not gone forward.
[
Footnote 8]
We had earlier construed § 203(c) as prohibiting "prosecution of
any person for seeking service in a covered establishment, because
of his race or color."
Hamm v. City of Rock Hill,
379 U. S. 306,
379 U. S. 311
(1964).
[
Footnote 9]
"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."
384 U.S. at
384 U. S. 813
n. 5.
[
Footnote 10]
Title 42 U.S.C. § 1971 reads, in pertinent part:
"(a)(1) All citizens of the United States who are otherwise
qualified by law to vote at any election by the people in any State
. . . shall be entitled and allowed to vote at all such elections,
without distinction of race, color, or previous condition of
servitude; any constitution, law, custom, usage, or regulation of
any State . . . to the contrary notwithstanding."
"
* * * *"
"(b) No person, whether acting under color of law or otherwise,
shall intimidate, threaten, coerce, or attempt to intimidate,
threaten, or coerce any other person for the purpose of interfering
with the right of such other person to vote or to vote as he may
choose. . . ."
We take note of the similarity between the language of § 1971(b)
set out above and the comparable language of § 245(b) as set out in
n 11,
infra.
Title 42 U.S.C. § 1981 provides:
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other."
[
Footnote 11]
Title 18 U.S.C. § 245, in relevant part, provides:
"(b) Whoever, whether or not acting under color of law,
by
force or threat of force willfully injures, intimidates or
interferes with, or attempts to injure, intimidate or interfere
with --"
"
* * * *"
"(2) any person because of his race, color, religion or national
origin and because he is or has been --"
"
* * * *"
"(C) applying for or enjoying employment, or any perquisite
thereof, by any private employer . . ."
"
* * * *"
"(4) any person because he is or has been, or in order to
intimidate such person or any other person or any class of persons
from -- "
"(A) participating, without discrimination on account of race,
color, religion or national origin, in any of the benefits or
activities described in [subparagraph (2)(C)]; or"
"(B) affording another person or class of persons opportunity or
protection to so participate; or"
"(5) any citizen because he is or has been, or in order to
intimidate such citizen or any other citizen from lawfully aiding
or encouraging other persons to participate, without discrimination
on account of race, color, religion or national origin, in any of
the benefits or activities described in [subparagraph 2(C)],
or
participating lawfully in speech or peaceful assembly opposing
any denial of the opportunity to so participate -- 'shall be
fined.' . . ."
(Emphasis added.) This truncated quotation of § 245 merely
focuses on that activity, enumerated in subparagraph (2)(C), which
would appear to be most closely connected to both the activity in
which some defendants were engaged when actually arrested and the
activity to which the state charges most closely relate. We
recognize that the defendants' picketing during the several months
relevant expressed their dissatisfaction with what they contended
to be racial discrimination in areas other than private
employment.
[
Footnote 12]
Section 245(a)(1) goes on to negative any intent by Congress to
foreclose state prosecution of the acts forbidden by that
section:
"nor shall anything in this section be construed as depriving
State and local law enforcement authorities of responsibility for
prosecuting acts that may be violations of this section and that
are violations of State and local law."
[
Footnote 13]
The Proposed Civil Rights Act of 1966, while it passed the
House, did not pass the Senate.
[
Footnote 14]
This Report stated: "The bill is intended to strengthen the
Government's capability to meet the problem of civil rights
violence." H.R.Rep. No. 473, p. 3. The bulk of the Report simply
adopted by reference certain language that had appeared in the
"Additional Views" of Chairman Celler of the House Committee on the
Judiciary that had been appended to the House Report of the Civil
Rights Act of 1966, H.R.Rep. No. 1678, 89th Cong., 2d Sess., pt. 2
(1966). The language quoted in the text is taken from those views
of Chairman Celler as expressed in the earlier House Report and as
adopted by the House in the subsequent Congress. Chairman Celler
made abundantly clear in those views that the bill that became §
245 "is designed to meet the problem of present-day racial violence
. . . ," H.R.Rep. No. 473,
supra, at 5, and he reiterated
this view of the bill when it arrived on the House floor for
consideration after finally passing the Senate in 1967:
"[The Senate version of the bill] reenacts the bill that we
passed, giving protection to civil rights workers who might be
endeavoring to express their beliefs in various parts of the
country, and the provisions therein would protect them against
violence."
114 Cong.Rec. 6490 (1968).
See id. at 9559.
[
Footnote 15]
See id. at 318-320, 333, 335, 399, 535, 538, 913, 928,
1391, 1392. A Department of Justice witness testifying before a
Senate subcommittee in support of Title I, stated that it
"would afford the Federal Government an effective means of
deterring and punishing forcible interference with the exercise of
Federal rights,"
and that "[t]he mere fact that a policeman who is performing his
duty in good faith uses force does not bring him under the act at
all." Hearings on the Proposed Civil Rights Act of 1967, before the
Subcommittee on Constitutional Rights of the Senate Committee on
the Judiciary, 90th Cong., 1st Sess., 82, 355 (1967). Those
hearings, like the Senate Report and the floor debate in the
Senate, are replete with numerous references to the use of violence
to deter the exercise of federal rights.
See id. at 61,
81, 210-212, 222, 312, 322, 325, 349.
[
Footnote 16]
The three Courts of Appeals faced with the issue now before us
are in accord with our decision.
New York v. Horelick, 424
F.2d 697, 703 (CA2),
cert. denied, 398 U.S. 939 (1970);
Hill v. Pennsylvania, 439 F.2d 1016, 1022 (CA3),
cert.
denied, 404 U.S. 985 (1971) (alternative holding);
Williams v. Tri-County Community Center, 452 F.2d 221, 223
(CA5 1971) (
quo warranto proceeding).
[
Footnote 17]
Brief for Petitioners 16 n. 9:
"Simultaneously [with the filing of the removal petition
sub
judice], the petitioners also filed a complaint pursuant to 42
U.S.C. § 1983 seeking injunctive relief against the arrests and
prosecutions in a companion action,
Concerned Citizens of
Vicksburg v. Sills, Civ. No. 72W-18 (N) (SD Miss. filed May
24, 1972), but the District Court denied temporary injunctive
relief which would have held the prosecutions in
status
quo pending a final hearing on the merits (Order of May 26,
1972). A final hearing in that action has not yet been held, and is
not part of this appeal."
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.
I believe the dissenters in
City of Greenwood v.
Peacock, 384 U. S. 808
(1966), correctly construed the civil rights removal statute, 28
U.S.C. § 1443.
See New York v. Galamison, 342 F.2d 255,
275 (CA2) (Marshall, J., dissenting),
cert. denied, 380
U.S. 977 (1965). On that broader view of the statute, removal would
plainly be proper here, and if the Federal District Court
determined that the state proceedings were being used to deny
federally protected rights, it would be required to dismiss the
prosecution.
See City of Greenwood v. Peacock, supra at
384 U. S.
840-848 (DOUGLAS, J., dissenting). Even under
Peacock and its companion case,
Georgia v.
Rachel, 384 U. S. 780
(1966), however, I think that removal should have been available on
the particular facts of this case.
As the Court today observes,
Rachel and
Peacock imposed sharp limitations on the scope of the
removal statute. The statute was held to permit removal only in the
rare case in which (1) the federal right at issue stemmed from a
law providing expressly for equal civil rights; (2) the conduct
with which the removal petitioners were charged was arguably
protected by the federal law in question; and (3) the federal law
granted the further right not only to engage in the conduct in
question, but to be free from arrest and prosecution by state
officials for that conduct. Focusing on the third requirement, the
Court today holds that Title I of the 1968 Civil Rights Act, 18
U.S.C. § 245, does not provide a right to be free from arrest and
prosecution for engaging in specific federally protected conduct.
In my
Page 421 U. S. 230
view, the three requirements from
Peacock were
satisfied to the extent necessary to call for a full hearing on the
removal petition, and I would therefore vacate the judgment of the
Court of Appeals and remand for further proceedings. [
Footnote 2/1]
I
The Court of Appeals based its ruling on the first of the three
requirements, holding that § 245 was not a "law providing for . . .
equal civil rights." The court reasoned that the statute failed to
meet this requirement because it did not "provide" any substantive
rights, but merely supplied a criminal sanction for the violation
of rights that had been elsewhere created. This misses the point.
[
Footnote 2/2]
Even if § 245 is regarded solely as creating criminal penalties
for interference with previously established civil rights, it
certainly "provid[es] for" those rights by facilitating their
exercise. Congress plainly intended § 245 in part to render certain
rights meaningful, even though the rights themselves had, in some
instances, been
Page 421 U. S. 231
created in prior legislation.
See S.Rep. No. 721, 90th
Cong., 1st Sess., 4-6 (1967); H.R.Rep. No. 473, 90th Cong., 1st
Sess., 5-7 (1967). If Congress had provided private legal or
equitable remedies for the vindication of preexisting rights, such
a statute would certainly be deemed one "providing for" equal civil
rights. The fact that Congress has invoked the criminal sanction to
protect and enforce those rights, rather than relying on private
remedies, should make no difference.
In any event, § 245 does more than enforce preexisting rights:
in several respects, it creates rights that had no previous
statutory recognition. First, the statute protects not only those
participating in the exercise of equal civil rights, but also those
"encouraging other persons to participate" and those "participating
lawfully in speech or peaceful assembly opposing any denial of the
opportunity to so participate," § 245(b)(5).
See S.Rep.
No. 721,
supra, at 4. Second, because it is based on § 5
of the Fourteenth Amendment, rather than the Commerce Clause, § 245
goes beyond the specific protections of prior civil rights laws in
various particulars. As the House Report noted:
"[T]he scope of the activities described in section [245(b)] is
not limited to the scope of the 'rights' created by other Federal
laws outlawing discrimination with respect to those activities.
Accordingly, in appropriate cases, . . . the bill would reach
forcible interference with employment, regardless of the size and
regardless of the public or private character of the employer; with
service in all of the described types of places of public
accommodation, whether or not they happen to fall within the scope
of the 1964 Civil Rights Act; and with common carrier
transportation whether interstate or intrastate."
H.R.Rep. No. 473,
supra, at 5.
Page 421 U. S. 232
Finally, the statute goes beyond protecting against racially
motivated misconduct by state officials and those acting in concert
with them. It reaches racially motivated conduct by private
individuals as well, thus extending both a right against, and a
remedy for, certain private misconduct. The inclusion of private
individuals within the reach of § 245 was a topic of intense
dispute during the congressional debates over the statute. Both the
advocates and opponents of the statute recognized that § 245 would
criminalize a whole new sphere of conduct, and thus significantly
expand the scope of federal statutory protection for civil rights.
See S.Rep. No. 721,
supra, at 7-8, 21-26; 113
Cong.Rec. 22763-22764 (1967); 114 Cong.Rec. 319, 389-391, 539-544
(1968). In view of the statute's broad remedial purposes and
effects, only on the most grudging reading can it be said not to
"provid[e] for equal civil rights."
II
Although neither the Court of Appeals nor this Court has
discussed the second requirement for § 1443 removal, I believe
that, under
Rachel and
Peacock, a sufficient
showing has been made to require further proceedings below. The
Court in
Peacock established that, where the state
criminal charge includes allegations of conduct clearly unprotected
by federal law, removal is not available. In that case, the state
charges included obstruction of the streets, assault, and
interference with a police officer -- all forms of conduct not even
arguably protected under federal law. 384 U.S. at
384 U. S.
826-827. [
Footnote
2/3]
Page 421 U. S. 233
In
Rachel, by contrast, the Court observed that the
defendants had been charged only with violating the state criminal
trespass statute, which required that a person leave a place of
business when requested to do so by the owner. The defendants
alleged in their removal petitions that they had remained on the
premises of the privately owned restaurants where they were
arrested in the course of seeking service to which they were
entitled by the 1964 Civil Rights Act. Thus, none of the conduct
that the defendants were allegedly engaged in fell plainly outside
the protection of federal law, as was the case in
Peacock.
Accordingly, the District Court was instructed to hold a hearing to
determine whether the defendants were ordered to leave the
restaurant facilities solely for racial reasons, and whether the
conduct was, in fact, within the protection of federal law -- in
that case by determining whether the restaurants in question were
within the coverage of the Civil Rights Act. 384 U.S. at
384 U. S. 805
and n. 31.
On this point, the instant case is controlled by
Rachel, rather than
Peacock. The arrest
affidavits charged merely that the petitioners had conspired to
promote a boycott of merchants and businessmen, and that they had
engaged in and promoted acts "injurious to trade or commerce among
the public." App. 3-17. In their removal papers, the petitioners
alleged that the conduct underlying their arrests on these charges
was wholly within
Page 421 U. S. 234
the protection of federal law. [
Footnote 2/4] There is nothing in the arrest affidavits
or the statute under which the petitioners were charged that rebuts
this claim. The line between
Rachel and
Peacock
is that between
"prosecutions in which the conduct necessary to constitute the
state offense is specifically protected by a federal equal rights
statute under the circumstances alleged by the petitioner, and
prosecutions where the only grounds for removal are that the charge
is false and motivated by a desire to discourage the petitioner
from exercising or to penalize him for having exercised a federal
right."
New York v. Davis, 411 F.2d 750, 754 (CA2),
cert.
denied, 396 U.S. 856 (1969). Like
Rachel, this case
falls into the former category. Accordingly, the courts below
should determine whether the petitioners' conduct was, in fact,
protected. If it was, the prosecutions should be dismissed.
[
Footnote 2/5]
Page 421 U. S. 235
III
Finally, the
Rachel-Peacock test requires that the
federal law invoked by the petitioners must do more than merely
provide a defense to conviction: it must immunize them from arrest
and prosecution for the conduct in question. In
Rachel,
the Court held that this test was met, since § 203 of the 1964
Civil Rights Act provided:
"No person shall . . . (c) punish or attempt to punish any
person for exercising or attempting to exercise any right or
privilege secured by section 201 or 202."
42 U.S.C. § 2000a-2(c). The rights protected by § 201 included
the right to "full and equal enjoyment of the . . . facilities . .
. of any place of public accommodation . . . without discrimination
. . . on the ground of race." 42 U.S.C. § 2000a(a). Viewing this
language in light of a subsequent construction in
Hamm v. City
of Rock Hill, 379 U. S. 306,
379 U. S. 311
(1964), the Court in
Rachel concluded that, if the facts
in the removal petition were found to be true, the defendants would
not only be immune from conviction under the Georgia trespass
statute, but they would also have a right under the Civil Rights
Act of 1964 "not even to be brought to trial on these charges in
the Georgia courts." 384 U.S. at
384 U. S.
794.
The Court today distinguishes the language of 18 U.S.C. § 245
from that of § 203(c) of the Civil Rights Act of 1964, 42 U.S.C. §
2000a-2(c), holding that the former does not grant the same
immunity from prosecution that was implied in the latter. To me,
the language of the two statutes is not sufficiently different to
support such a distinction. While the statute in
Rachel
provided that no person should "punish or attempt to punish" a
person engaged in conduct protected under the Act, the statute at
issue here provides sanctions
Page 421 U. S. 236
against anyone who,
"whether or not acting under color of law, by force or threat of
force willfully injures, intimidates or interferes with, or
attempts to injure, intimidate or interfere with"
any person who is engaged in protected civil rights activity or
is "lawfully aiding or encouraging other persons to participate" in
various protected activities. The use of force or the threat of
force to intimidate or interfere with persons engaged in protected
activity fairly describes an "attempt to punish" the same persons,
and it would seem plainly to include pretextual arrests such as are
alleged to have occurred in this case. [
Footnote 2/6]
Besides the difference in language between § 203(c) and § 245,
the Court points to two other factors that it contends provide a
further basis for denying removal here. I do not find either to be
dispositive.
First, the Court relies on § 245(a)(1), in which Congress
emphasized that § 245 was not intended to prevent
Page 421 U. S. 237
"any State . . . from exercising jurisdiction over any offense
over which it would have jurisdiction in the absence of this
section. . . ." The Court argues that this "nonpreemption"
provision indicates that § 245 "appears to disavow any intent to
interrupt . . . state prosecutions [for offenses such as boycotting
and conspiracy]."
Ante at
421 U. S. 224.
I cannot agree that § 245(a)(1) means to do that much. The
legislative history of this subsection indicates that it was
intended to avoid the risk that § 245 would be read to bar or
interfere with state prosecutions of those who violated § 245 as
well as parallel state laws. The fear was that § 245, because of
its potential breadth, might appear to give preemptive authority to
federal law officers in prosecuting a broad spectrum of offenses
that were traditionally subject to local criminal jurisdiction.
[
Footnote 2/7] There is no
indication in the legislative history
Page 421 U. S. 238
that § 245(a)(1) was intended to defeat removal of state
prosecutions by those protected under the Act, nor is there any
suggestion that it was meant to reduce the protection for the
beneficiaries of § 245 in an other way.
Second, the Court relies heavily on the main purpose of § 245:
to penalize violent interference with the exercise of specific
rights. Certainly, violent interference with the exercise of civil
rights was a primary target of the statute. But curbing private
violence was not the drafters' sole aim. The Act was intended to
reach law enforcement officers as well as private citizens, and the
process of arrest and prosecution in state courts is precisely the
means by which state officials, acting under color of State law,
can most plausibly exert force or the threat of force to interfere
with federally protected rights.
See Perkins v.
Mississippi, 455 F.2d 7, 11, 391 (CA5 1972) (Brown, C.J.,
dissenting).
The Court is correct, of course, in noting that Congress did not
expressly indicate that § 245 should be available as a means of
removing prosecutions to federal courts. But the Court in
Rachel did not require any showing that Congress had
specifically intended the statute in issue to be used as a vehicle
for removal. All that was necessary was that the statute protect
against the institution of criminal actions against those engaged
in protected federal rights, and, in my view, that standard is met
here.8 [
Footnote 2/8]
Page 421 U. S. 239
IV
If the facts of this case are as alleged in the removal
petition, then the protest effort of the petitioners and their
group, although well within the protection of federal law, has been
muffled, if not altogether stilled, by discriminatory and cynical
misuse of the state criminal process. The Court makes reference to
the possibility of federal injunctive relief, which would be
available in this case if the petitioners can show that the arrests
and prosecutions were instituted in bad faith or for the purpose of
harassment.
See Dombrowski v. Pfister, 380 U.
S. 479,
380 U. S. 482,
490 (1965);
Younger v. Harris, 401 U. S.
37,
401 U. S. 47-50
(1971). I only hope that the recent instances in which this Court
has emphasized the values of comity and federalism in restricting
the issuance of federal injunctions against state criminal and
quasi-criminal proceedings will not mislead the district
courts into forgetting that, at times, these values must give way
to the need to protect federal rights from being irremediably
trampled. The possibility that the petitioners might be vindicated
in state court criminal actions or through subsequent habeas corpus
relief will do little to restore what has been lost: the right to
engage in legitimate, if unpopular, protest without being subjected
to the inconvenience, the expense, and the ignominy of arrest and
prosecution. If the federal courts abandon persons like the
petitioners in this case without a fair hearing on the merits of
their claims, then, in my view, comity will have been bought at too
great a cost.
I respectfully dissent.
[
Footnote 2/1]
Although the District Court initially held a hearing on the
removal petition and made various factual findings adverse to the
petitioners, the Court of Appeals disposed of the case without
reviewing the findings of the District Court. I would therefore
remand the case to the Court of Appeals to review the findings
relevant to the availability of removal and to order further
proceedings if necessary.
[
Footnote 2/2]
The Court of Appeals acknowledged that § 245 met the requirement
that the statute under which removal is claimed be a law dealing
with "specific civil rights stated in terms of racial equality,"
Georgia v. Rachel, 384 U. S. 780,
384 U. S. 792
(1966).
See 488 F.2d 284, 286 (CA5 1974). The statute was
plainly addressed to problems associated with the exercise and
advocacy of minority rights. Like the 1964 Civil Rights Act, and
unlike the more general constitutional and statutory provisions
that were rejected as bases for removal in
Rachel and
Peacock, § 245(b)(2) refers throughout to conduct premised
on racial discrimination.
[
Footnote 2/3]
The Court rejected the argument made in dissent that it was the
allegations in the removal petition that should be looked to in
determining whether the conduct was arguably protected by federal
law, not the charges filed in the state proceeding. As has been
suggested elsewhere, relying on the charges to determine whether
the conduct is protected would immunize from removal any case in
which the state charges included allegations of conduct plainly
outside the scope of federal protection.
See H. Hart &
H. Wechsler, The Federal Courts and the Federal System 1228 (2d
ed.1973);
Perkins v. Mississippi, 455 F.2d 7, 11, 31-33
(CA5 1972) (Brown, C.J., dissenting); Comment, Civil Rights Removal
after
Rachel and
Peacock: A Limited Federal
Remedy, 121 U.Pa.L.Rev. 351, 368 (1972).
[
Footnote 2/4]
Specifically, the petitioners alleged that, in order to protest
various forms of private and public racial discrimination, they
"began to peacefully and lawfully picket the business
establishment of [offending] merchants in Vicksburg, Mississippi,
and began to urge the citizens of Vicksburg to boycott these
business establishments. All of this picketing by the petitioners
and other members of their class was done in a lawful and peaceful
manner, and without infringing upon the rights of any other citizen
of Vicksburg. . . ."
App. 22.
[
Footnote 2/5]
The respondents contend in their brief that the petitioners were
arrested for acts ranging from engaging in a secondary boycott to
physically interfering with and intimidating a customer who was
trading with a white merchant. The petitioners respond that both
the arrest affidavits and the testimony at the remand hearing
before the District Court were to the effect that they were all
arrested pursuant to the general state conspiracy statute, and
specifically for entering into "a conspiracy harmful to trade or
commerce."
Id. at 30. Since the remand order was the only
judgment before the Court of Appeals, it is not clear what effect
subsequent actions taken by state officials would have on the
removal suit on appeal. In any event, because of the continuing
dispute over what state statute was used as the basis for the
charges in state court, and correspondingly, what conduct was
alleged, the question whether the conduct was protected under
federal law is one that should be left to the courts below to
determine on remand.
[
Footnote 2/6]
The Court notes "the similarity between the language of §
1971(b) . . . and the comparable language of § 245(b),"
ante at
421 U. S. 221
n. 10. The statutes do, indeed, have similar language, but the
conduct protected under § 1971(b) is
voting, and there was
no allegation in
Peacock that the defendants were engaged
in voting. It was unnecessary for the Court to determine whether §
1971(b), or a statute with similar prohibitory language, would
provide a means for removal because (1) the conduct with which the
defendants were charged was not protected under
any
federal law; and (2) their conduct, as alleged in their own removal
petition, was not within the scope of § 1971(b).
Another statute, 42 U.S.C. § 1973i(b), which was enacted after
the removal in
Peacock, protected those urging others to
exercise their rights to vote, and thus would have reached the
conduct in which the
Peacock defendants claimed to have
been engaged.
See Whatley v. City of Vidalia, 399 F.2d 521
(CA5 1968). Even under that statute, however, removal would not
have been available in
Peacock because the conduct with
which the defendants were charged in the state court proceeding was
unprotected by that or all other federal law.
[
Footnote 2/7]
Section 245(a)(1) had its origin in an amendment offered to the
House bill by Representative Whitener. In his words, the amendment
was intended to ensure:
"[N]othing contained in this act shall indicate an intent on the
part of Congress to occupy the field in which any provision of the
act operates to the exclusion of State laws on the same subject
matter, nor shall any provision of this act be construed as
invalidating any provision of State law unless such provision is
inconsistent with any of the purposes of this act or any provision
thereof. . . . Without the amendment, there would be an unwarranted
deprivation of criminal jurisdiction now exercised by the several
States in most of the fields of criminal law touched by this
bill."
113 Cong Rec. 22745 (1967).
See also id. at 22683 (Rep.
Whitener).
In the Senate, the final language of § 245(a)(1) was adopted as
part of Senator Dirksen's amendment to the bill. The explanation of
the provision given to the Senate was as follows:
"Section (a) of the bill expresses the intent of Congress not to
supersede state and local law enforcement except where required by
the public interest in order to obtain substantial justice. In all
cases, state and local law would continue to apply, and would not
be preempted by federal law. However, in those situations when
state and local law enforcement is unable or unwilling to prosecute
effectively, federal prosecution may be undertaken. To assure that
decisions relating to exercise of this dual jurisdiction are
carefully made, the bill requires advance certification of
prosecutorial authority by the Attorney General or the Deputy
Attorney General."
114 Cong.Rec. 4907 (1968).
[
Footnote 2/8]
In its analysis, the Court relies in part on a statement by
Senator Kennedy to the effect that a state law enforcement officer
reasonably believing that he is doing his duty, would not violate §
245, which requires at least knowing interference with civil
rights. The interference alleged in the removal petition, however,
is intentional interference, which would fall within the literal
terms of the statute.