NAACP v. Thompson Brief for Appellants

    ]

1st the

States GJmtrt of Appeals
F oe the F ifth Circuit 

No. 22424

A nnie Lee Cooper and Stanley Leroy W ise,

Appellants,

State of A labama,
Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

REPLY BRIEF FOR APPELLANTS

Peter A. H all
1630 Fourth Avenue, North 
Birmingham, Alabama

Jack Greenberg
N orman C. A maker
Charles H. Jones, Jr.
Charles Stephen Ralston
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Appellants



I N D E X

PAGE

A rgument :

Appellants’ Removal Petition Adequately States 
a Case for Removal Under 28 U. S. C. §1443 .... 1

Conclusion...............................................................................—  15

Table of Cases

Arkansas v. Howard, 218 F. Snpp. 626 (E. D. Ark. 
1963) ................................................................... - ...... -....

^/^Boynton v. Clark, 10 Race Rel. L. Rep. 215 ........... 3, 4, 8, 9
Braun v. Sauerwein, 77 U. S. (10 Wall.) 218 (1869) .... 6, 8 
Bush v. Kentucky, 107 U. S. 110 (1883) .......... ............  13

Colorado v. Maxwell, 125 F. Supp. 18 (I). Colo. 1954), 
leave to file petition for prerogative writs denied
sub nom. Colorado v. Knous, 348 U. S. 941 (1955) .... 8

Colorado v. Symes, 286 U. S. 510 (1932) — ............  8
ox v. Louisiana, 348 F. 2d 750 ..... ........... - ........... 1, 9,13

Cunningham v. Neagle, 135 U. S. 1, 10 S. Ct. 658, 34 
L. Ed. 55 (1890) ............................ - ................................  6

Dilworth v. Riner, 343 F. 2d 226 (5th Cir. 1965) ____ 11

Ex parte Dierks, 55 F. 2d 371 (L>. Colo. 1932), man­
damus granted on other grounds sub nom. Colorado
v. Symes, 286 U. S. 510 (1932) ..... ......... ...............  8

Gibson v. Mississippi, 162 U. S. 565 (1896) ...................  13



11

PAGE

Hodgson y . Mill ward, 12 Fed. Cas. 285 (No. 6568)
(E. D. Pa. 1863) ........................................... ................  6, 8

Hodgson v. Millward, 3 Grant (Pa.) 412 (1863) .......  8

Johnson, et al. v. City of Montgomery, Nos. 11,740, 
11,741-N (M. H. Ala. 8/3/65) ................................ 14

Kentucky v. Powers, 201 U. S. 1 ........ - .................... 12,13

Logemann v. Stock, 81 F. Supp. 337 (D. Neb. 1949) .... 8

Maryland v. Soper, 270 H. S. 9 ..........................................  7
John L. M(-Means, et al. v. Mayor’s Court of Fort 

Deposit, Alabama, et al., No. 11,759-N (M. D. Ala. 
9/30/65) ............................................................................  14

Neal v. Delaware, 103 U. S. 370 (1881) 13

v̂ / ' l 5eacock v. City of Greenwood, 347 F. 2d 679 ....1, 2, 3, 4, 5, 8,
9,10,12, 13,14

People of New York v. Galamison, 342 F. 2d 255 (2nd
Cir. 1965)  ......................................................3 ,4 ,6 ,7 ,8 ,10

Potts v. Elliott, 61 F. Supp. 378 (E. D. Ky. 1945) .... 8

^S&achel v. Georgia, 342 F. 2d 336 (5th Cir. 1965) ..8, 9,10,11,
12,13

iobinson v. State of Florida, 345 F. 2d 133 (5th Cir. 
1965) ................................................................................. 8,14

Tennessee v. Davis, 100 H. S. 257 (1880)

,/H jn ite d  States v. Clark, 10 Race Eel. L. Rep. 236 .......10,11
l/lln ite d  States v. Wood, 295 F. 2d 772 (5th Cir. 1961) ..10,11



PAGE

111

Virginia v. Rives, 100 U. 8. 313 .................................... . 12

'^Weathers v. City of Greenwood, 347 F. 2d 986 (5th
Cir. 1965) ............... ............................... .................... .......8,14

In Re Wright, et al., No. 11,739-N (M. D. Ala. 6/3/65) .. 14

Statutes I nvolved

28 U. S. C. §1443 .......      1

28 U. S. C. §1443(1) ....................... ................9,11,12,13,14

28 II. S. C. §1443(2) .............................. ....... 2, 3, 4, 5, 6, 7, 8

42 U. S. C. §1971 ....... ........................................2, 9,10,11,12

42 U. S. C. §1971 (b) ....................... .............................   11

42 U. S. C. §1971 (c) .......................................   11

42 IT. 8. C. A. §2000a-2(c) ..........    11

42 IT. S. C. A. §2000a-3(a) ...........      11

Habeas Corpus Suspension Act of 1863 ..... .....................  8

Act of April 9, 1866, ch. 31, §3, 14 Stat. 27 ............... . 5

Other A uthority

Amsterdam, Criminal Prosecutions Affecting Federally 
Guaranteed Civil Rights: Federal Removal and 
Habeas Corpus Jurisdiction to Abort State Court 
Trial, 113 U. of Pa. L. Rev. 793 (1965) _____ ___ ___  13



In the

littfrii BUUb (Enurt nf Appeals
F oe the F ifth Circuit 

No. 22424

A nnie L ee Cooper and Stanley Leroy W ise,

Appellants,
—v.—

State of A labama,
Appellee.

a p p e a l  f r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t  f o r  t h e

SOUTHERN DISTRICT o f  ALABAMA

REPLY BRIEF FOR APPELLANTS

A R G U M E N T

Appellants’ Removal Petition Adequately States a 
Case for Removal Under 28 U. S. C. §1443.

Subsequent to the filing of briefs by appellants and ap­
pellees, the United States Court of Appeals for the Fifth 
Circuit decided Peacock v. City of Greenwood, 347 F. 2d 
679 and Cox v. Louisiana, 348 F. 2d 750 (granting stay of 
remand order), more precisely delimiting the scope of 
removal jurisdiction under 28 U. S. C. §1443 and lending 
further support to appellants’ claims for removal.



2

A. The Removal Petition Is Sufficient Under 28 U. S. C.
§1 4 4 3 (2 ).

In Peacock, supra, this court placed an obvious restraint 
on access to subsection (2) removal by deciding that its 
coverage “ is limited to federaLafficars. and those assisting 
them or otherwise acting in an official or quasi-official ca­
pacity.” 347 F. 2d at p. 686.

The factual distinction between Peacock and the case 
at bar is significant. In Peacock, 14 petitioners alleged 
they were being prosecuted for acts under color of au­
thority of the Equal Protection Clause and 42 U. S. C. 
§1971. This Court considered the allegation to be “ [i]n 
essence . . . that subsection (2) of §1443 authorizes removal 
by any person who is prosecuted for an act committed while 
exercising an equal civil right under the Constitution or 
laws of the United States.” 347 F. 2d at 684. Peacock, 
rejecting this contention reasoned that:

. . . [Appellants’ construction of paragraph (2) 
would bring within its sweep virtually all the cases 
covered by paragraph (1), thereby rendering that para­
graph of no purpose or effect. Paragraph (1) requires 
a denial or the inability to enforce equal rights in the 
state court. If paragraph (2) covers all who act under 
laws providing for equal rights, as appellants contend, 
this requirement could be avoided simply by invoking 
removal under the second paragraph. . . .  we find no 
warrant for giving paragraph (2) the strained and 
expansive construction here urged (Ibid., p. 686).

Appellants’ narrower construction of subsection (2) ob­
viates the dangers above elucidated. Their claim is twofold: 
(1) that their arrests arose out of activity ostensibly under



3

“ color of authority” of a federal court order (see pp. 3, 4, 
infra) within the meaning of People of New York v. Galam- 
ison, 342 F. 2d 255 (2nd Cir. 1965); and (2) that the neces­
sary effect of judicial conferment of “ color of authority” 
is to make their conduct “quasi-official” and, thus, remov­
able within the Peacock construction of §1443(2).

The order upon which this claim is bottomed was issued 
two days preceding appellants’ arrests, in Boynton v. Clark, 
10 Face Eel. L. Eep. 215, and read in part, as follows:

. . . People legally entitled to register should be 
permitted to do so in an orderly fashion calculated to 
produce that result. And this court intends to see that 
opportunity is afforded.

People who are interested in encouraging people”” 
legally qualified to register have a perfect right to lend 
such encouragement; and as long as this is sought 
through peaceful assemblage, such assemblage is not 
to be illegally interfered with. „

# =& =& 4E= #

What has heretofore been said applies to applicants, 
both white and Negro. Those seeking to register and 
those seeking, .to act as vouchers will form an orderly 
line, not more than two abreast, from the entrance of 
the office of the Board of Registrars down the corridor 
of the court house in a line most direct to and through 
the entrance of the Lauderdale Street door, on a ‘first 
come, first served’ basis for the white or colored. The 
Sheriff’s office is directed to issue each such person a 
consecutive number from one through one hundred; 
and such persons are to be admitted in the office of 
the Board of Registrars numerically.

* # # # #

hj.

I -

C 'Pft ojl



4

Those interested in encouraging others to register 
to vote have the right peaceably to assemble outside 
the court house, but shall not do so in such a way as 
to interfere with lawful business expected to be trans­
acted in the court house. Such persons also have a 
right to peaceably assemble without molestation, and 
wTO bo permitted to do so ; but violence, either by those 
so assembled or^omcers entitled to surveillance over 
such assemblages, or on the part of outsiders, will not 
be tolerated at such assemblage.

•U* J/- JA.w W •W #

• 6  

Ar

This order in nowise is intended to interfere with 
the legal enforcement of the laws of the State of 
Alabama, Dallas County, or the City of Selma. But 
under the guise of enforcement there shall he no in- 
timidation, harassment or the like, of the citizens of 
Dallas County legitimately attempting to register to 
vote, nor of those legally attempting to aid others in 
registering to vote or encouraging them to register to 
vote (10 Race Rel. L. Rep. at pp. 216, 217). (Emphasis 
added.)

The focal point of appellants’ §1443(2) claim is the mean­
ing of the language in Peacock “ those . . . otherwise acting 
in . . . [a] quasi-official capacity.” 347 F. 2d at p. 686. 
Obviously, the referent to “ those . . . otherwise” is not cir­
cumscribed by the preceding “ federal officers . . . and those 
assisting them,” and ostensibly embraces private persons 
not aiding or assisting federal officers.1 But, this conclusion

1 The question of whether wholly unofficial conduct is covered 
by 1443(2) is the precise question pretermitted by the Second Cir­
cuit in People of the State of New York v. Galamison, supra, see 
pp. 263, 264.



5

is somewhat clouded by the court’s preceding analysis of 
subsection (2). The restrictive reading of §1443(2), ap­
parently excluding wholly unofficial persons, results from 
the Peacock interpretation of the present subsection “ in 
the context of the Act (of 1866)2 as a whole” and the con­
clusion that the subsection more readily encompasses fed­
eral officers or persons assisting them, because “ that Con­
gress (of 1866) was primarily concerned with protecting 
federal officers engaged in enforcement activities.” 347 F. 
2d at p. 686. Peacock offered in support of this view the 
following summary of the Act:

Section 1, now 42 U. S. C. A. §1981, declared Negroes 
to be citizens, conferred upon them various juridical 
rights of citizenship, such as the ability to make and 
enforce contracts, and guaranteed them the ‘full and 
equal benefit of all la v̂s and proceedings for the secur­
ity of person and property, as is enjoyed by white 
citizens, and shall be subject to like punishment, pains, 
and penalties, and to no other . . . ’ Section 2 made it 
a crime to deprive persons of rights secured by the act. 
Next followed the removal provision, now 28 U. S. C. A. 
§1443. Sections 4-10 of the Act were devoted to com­
pelling and facilitating the arrest and prosecution of 
violators of §2. These sections, inter alia, authorized 
federal commissioners to appoint ‘suitable persons’ 
to serve warrants, and allowed the persons so appointed 
to ‘summon or call to their aid the bystanders or posse 
comitatus of the proper county.. . .  ’ {Id.).

Although, certainly, persons claiming quasi-official status 
through appointments by federal officers can plainly do so,

2 Act of April 9,1866, ch. 31, §3, 14 Stat. 27.



6

a limitation of the quasi-official concept solely to such per­
sons would render the added words “ those . . . otherwise 
acting” redundant. Appellants submit that the concepts 
“ quasi-official” and “ color of authority,” as analyzed in 
Galamison, are interrelated and on the present facts co­
incide. That is, where a private unofficial person “point[s] 
to some law that directs or encourages him to act in a cer­
tain manner,” he acts under “ color of authority” of that 
law but his acts are also “ quasi-official.”

Galamison, in analyzing the “ color of authority” language 
of §1443(2) decided that it would reach such private per­
sons whose conduct, similar to officers or their assistants, 
is directed by a specific statute or order.3

We gain a valuable insight into the meaning of ‘color 
of authority’ if we reflect on the cases at which §1443 
(2) was primarily aimed and to which it indubitably 
applies—acts of officers or quasi-officers. The officer 
granted removal under §3 of the Civil Rights Act of 
1866 and its predecessor, §5 of the Habeas Corpus Act 
of 1863, would not have been relying on a general con­
stitutional guarantee but on a specific statute or order 
telling him to act. Cf. Hodgson v. Millward, 12 Fed. 
Cas. No. 6,568 (C. C. Pa. 1863), approved in Braun v. 
Sauerwein, 77 U. S. (10 Wall.) 218, 224, 19 L. Ed. 895 
(1869).9 A private person claiming the benefit of §1443

9 Cunningham v. Neagle, 135 U. S. 1, 10 S. Ct. 658, 34 
L. Ed. 55 (1890), cited in the dissent, did not arise under a 
statute using the phrase ‘color of authority.’ However, the 
specific direction of the Attorney General to Neagle, 135 U. S. 
at 10 S. Ct. at 663, is a good example of what would clearly 
constitute ‘color of authority.’

3 The Galamison court in part IV of its opinion discussed “color 
of authority” after assuming, arguendo, that §1443(2) was not 
available exclusively to “ officers or persons acting at their instance 
or on their behalf.” 342 P. 2d at p. 264.



7

(2) can stand no better; he must point to some law that 
directs or encourages him to act in a certain manner, 
'not merely to a generalized constitutional provision 
that will give him a defense or to an equally general 
statute that may impose civil or criminal liability on 
persons interfering with him (342 F. 2d at 264).

Where the impetus to the private actor is the order of a 
federal judge, its directives are tantamount to official ap­
pointment, otherwise the anomaly is created that the private 
person’s conduct, induced by a federal judicial officer, would 
be considered less quasi-official than conduct of the private 
person authorized by an officer such as a federal marshal. 
Indeed, the conclusion reached in Galamison that some un­
official actors can act under color of authority would be 
wholly defeated.

Appellants Cooper and Wise clearly meet this test. At 
the time of their arrests they had queued up in a voter 
registration line pursuant to the instructions of the above- 
mentioned order. Doubtless they are not required to show 
that their arrests were effected for engaging in the precise 
conduct directed by the order, only that their acts or 
presence at a place, dictated by the guidelines of the lower 
court’s injunction, constitute the basis of the state prose­
cution. Cf. Maryland v. Soper, 270 U. S. 9, 33 (federal 
officer removal).

The real question, upon which subsection (2) jurisdiction 
turns, is whether the conduct of the actor is colorably4

4 Unquestionably, a state defendant petitioning for removal un­
der §1443(2) would not be required to show that he is protected 
by federal law: that question is the issue on the merits after re­
moval jurisdiction has been sustained. On the preliminary question 
of jurisdiction, it should be sufficient to show colorable protection.



8

within the contemplated ambit of either the instructions 
of a deputizing officer or an order giving impetus to his 
action.

Absent a hearing, the question of whether appellants’ 
conduct was authorized by the lower court’s injunction 
cannot be resolved. At the very least, appellants should 
be afforded an opportunity to demonstrate that their ar­
rests and prosecutions were causally related to an exercise 
of rights secured by the district court’s order, and thus 
removable.5 Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 
1965) ; Peacock v. City of Greenwood, supra; Robinson v. 
State of Florida, 345 F. 2d 133 (5th Cir. 1965); Weathers 
v. City of Greenwood, 347 F. 2d 986 (5th Cir. 1965).

This is the rule in federal-officer removal cases, e.g., Tennessee v. 
Davis, 100 U. S. 257, 261-62 (1880); Potts v. Elliott, 61 F. Supp. 
378, 379 (E. D. Ky. 1945) (civil case) ; Logemann v. Stock, 81 
F. Supp. 337, 339 (D. Neb. 1949) (civil case) ; Ex parte Dierks, 
55 F. 2d 371 (D. Colo. 1932), mandamus granted on other grounds 
sub nom. Colorado v. Symes, 286 U. S. 510 (1932) ; Colorado v. 
Maxwell, 125 F. Supp. 18, 23 (D. Colo. 1954), leave to file petition 
for prerogative writs denied sub nom. Colorado v. Knous, 348 U. S. 
941 (1955), and it was so held under the Habeas Corpus Suspen­
sion Act of 1863 removal provisions, see text at notes 68-70 supra, 
on which the Civil Eights Act of 1866 removal section was based. 
See Hodgson v. Millward, 12 Fed. Cas. 285 (No. 6568) (E. D. Pa. 
1863) (civil case). The facts of the case appear in Hodgson v. 
Millward, 3 Grant (Pa.) 412 (Strong, •/., at nisi prius, 1863) and 
Justice Grier’s decision is approved in Braun v. Sauerwein, 77 
U. S. (10 Wall.) 218, 224 (1869). Oalamison takes this view, in 
dictum, under present §1443(2). 342 F. 2d at 261, 262. Cf. A r­
kansas v. Howard, 218 F. Supp. 626 (E. D. Ark. 1963), where de­
fendant was unable to make a colorable showing.

5 It should be noted that on September 2, 1965, after a contempt 
hearing in Boynton v. Clark, supra, the defendant Sheriff James 
Clark, the officer arresting appellant Cooper, was found to be in 
contempt of court for violating the injunction here in issue by un­
lawfully interfering with peaceful demonstrations, and fined 
$1,500.00.



9

B. The Removal Petition Is Sufficient Under 28 U. S. C.
§1 4 4 3 (1 ).

Appellants alleged, and the district court must have taken 
as true (Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965); 
Cox v. Louisiana, 348 F. 2d 750 (5th Cir. 1965)), that their 
arrests (R. 9-10) :6

. . . have been and are being carried on with the sole 
purpose and effect of intimidating and harassing them 
and of punishing them for, and deterring them from, 
exercising constitutionally protected rights of free 
speech and of assembly. . . .

This Court, in Rachel, supra, said that “ [ujnless there 
is patently no substance in this allegation [that appellants 
suffered a denial of equal civil rights by virtue of the un­
constitutional application of the statute under which they 
were being prosecuted], a good claim for removal under 
§1443(1) has been stated.” 342 F. 2d at p. 340.

Appellants’ claim is substantial: that they are denied and 
cannot enforce in the state courts a right under federal laws 
providing for equal rights (viz., 42 U. S. C. §1971); the 
equal protection clause; an injunctive order of the lower 
court (see A, supra, pp. 3, 4), particularly, the right to be 
free of official interference, through arrest, and prosecution, 
for peacefully attempting to register and for encouraging 
other Negroes to register to vote free of racial discrimina­
tion.

6 In Peacock v. City of Greenwood, 347 F. 2d 679 (5th Cir. 1965), 
this Court followed Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 
1965) in upholding the applicability of the rules of federal notice 
type pleading to removal petitions. Thus, the “bare bone” allega­
tion that appellants are denied or cannot enforce in the courts of 
Alabama [R. 11] their rights under the equal protection clause 
is sufficient. Peacock, supra, at p. 682.



10

The equal protection clause is clearly a “ law providing 
for equal rights.” Peacock v. City of Greenwood, 347 F. 2d 
679 (5th Cir. 1965); People of New York v. Galamison, 
342 F. 2d 255 (2nd Cir. 1965), cert. den. 380 U. S. 977 
(1965). 42 U. S. C. §1971 is equally clearly such a law, 
Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965), for, even 
under the most restrictive possible construction of the re­
moval statute as referring only to laws “ couched in terms 
of equality, such as the historic and the recent equal rights 
statutes,” People of New York v. Galamison, supra, at p. 
271, 42 U. S. C. §1971 plainly qualifies.

The right appellants assert under 42 U. S. C. §1971 is 
freedom from prosecution for peacefully attempting to 
register, and encouraging voter registration of Negroes 
free of racial discrimination recognized in United States v. 
Wood, 295 F. 2d 772 (5th Cir. 1961); and United States v. 
Clark, 10 Race Rel. L. Rep. 236.

In Wood, the United States Court of Appeals for the 
Fifth Circuit held that John Hardy, a Negro voter regis­
tration worker in Mississippi, had the right to be free from 
state prosecution for peacefully attempting to encourage 
Negro citizens to attempt to register to vote. Hardy was 
arrested, without cause, for breach of the peace. The Court 
asked, “ The question then arises how the arrest and prose­
cution of Hardy can irreparably injure these other citizens 
[potential Negro voters in the county], if we must assume 
that, Hardy will receive a fair trial and that his acquittal 
is a possible result.” The Court answered, “ that the prose­
cution of Hardy, regardless of outcome [favorable to 
Hardy] will effectively intimidate Negroes [generally] in



11

the exercise of their right to vote in violation of 42 U. S. C. 
§1971.” The Court pointed out that the “ legislative history 
of section 1971 would indicate that Congress contemplated 
just such activity as is here alleged—where the state crim­
inal processes are used as instruments for the deprivation 
of constitutional rights.”  295 F. 2d at 781. In Clark, a 
three-judge Federal District Court enjoined law enforce­
ment officials from interfering in any way—through arrest, 
prosecution or otherwise—with the right to advocate the 
exercise of the right to vote. Wood and Clark are solidly 
supported by a comparison of 42 TJ. S. C. §1971 (b) with 
§203 (c) of the Civil Rights Act of 1964, 42 U. S. C. A. 
§2000a-2(c) and 42 U. S. C. §1971(c) with §204(a), 42 TJ. S. 
C. A. §2000a-3(a); as interpreted in Dilworth v. Riner, 343 
F. 2d 226 (5th Cir. 1965), the 1964 Act’s provisions accord 
a right against prosecution for peacefully claiming the right 
to equal public accommodations. Similarly, the 1957 Act’s 
provisions, as amended and codified as 42 U. S. C. §1971, 
accord a right against prosecution for peacefully encourag­
ing and assisting Negroes in attempting to register to vote 
free of racial discrimination.

Appellants’ right to removal under 42 U. S. C. §1971 and 
§1443(1) is solidly supported by Rachel v. Georgia, supra. 
In Rachel, sit-in demonstrators were prosecuted under a 
Georgia anti-trespass statute which was nondiscriminatory 
on its face; they removed their prosecutions to federal 
court, alleging that the statute was being applied to them 
in violation of Title II of the Civil Rights Act of 1964. The 
United States Court of Appeals for the Fifth Circuit upheld 
this claim, holding that §1443(1) allowed removal based on 
the application of a state statute contrary to an Act of 
Congress. The logic of this holding controls this case, for



12

the assault and battery and public drunkenness statutes are 
being misapplied to conduct protected by 42 U. S. C. §1971.

Appellants also rely on the equal protection clause of the 
Fourteenth Amendment, for their prosecutions are designed 
to thwart appellants’ registration effort, and effort to assist 
Negroes to register to vote. In Peacock v. City of Green­
wood, supra, the United States Court of Appeals for the 
Fifth Circuit applied Rachel to denials of equal protection, 
saying (347 F. 2d at p. 683):

Thus, Rachel allowed removal based on the alleged 
application of a state statute contrary to an Act of 
Congress, while the instant case involves the alleged 
application of a state statute contrary to the equal 
protection clause. The rationale of Rachel is inescap­
ably applicable here, since both cases involve the denial 
of equal rights through statutory application, rather 
than through some infirmity appearing on the face 
of the state statute.

Peacock involved the arrest of 14 civil rights workers in 
Greenwood, Mississippi, whose prosecutions for obstruc­
tion of public streets were removed to federal district court 
under §1443(1). The district court remanded on the ground 
that corrupt and illegal acts of state officials did not create 
a denial of federally protected rights cognizable by §1443 
(1). The Court of Appeals reversed holding that appel­
lants’ allegation that the “ [Mississippi] statute is being in­
voked discriminatorily to harass and impede [petitioners] 
in their efforts to assist Negroes in registering to vote,” 
was “ sufficient to meet [the] test [of removal under §1443 
(1 )]” (347 F. 2d at p. 682). Peacock, in distinguishing Vir­
ginia v. Rives, 100 U. S. 313, and Kentucky v. Powers, 201



13

U. S. 1, reasoned that while those cases7 * * limited removal 
where the federal claim lay at “ the very heart of the state 
judicial process,” they could not be read as limiting §1443(1) 
where the claim for removal is based on 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” (347 F. 2d at p. 684).

In Cox v. Louisiana, supra, the principle of these cases 
was generalized as follows:

There is a common denominator in Rachel, Peacock and 
Cox: The defendants, as a result of their actions in ad­
vocating civil rights, are being prosecuted under stat­
utes, valid on their face, for conduct protected by fed­
eral constitutional guarantees or by federal statutes 
or both constitutional and statutory guarantees.10 In 
essence, these guarantees rest on national citizenship, 
as opposed to state citizenship, not expressly recognized 
until the three Civil War amendments.

In Rachel, Peacock, and Cox, and in similar cases, 
there is no federal invasion of states’ rights. Instead, 
there is rightful federal interposition under the Su­
premacy Clause of the Constitution to protect the indi­
vidual citizen against state invasion of federal rights.

10 See Amsterdam, Criminal Prosecutions Affecting Fed­
erally Guaranteed Civil Bights: Federal Bemoval and Habeas 
Corpus Jurisdiction to Abort State Court Trial, 113 U. of 
Pa. L. Bev. 793 (1965). (348 F. 2d at pp. 754, 755.)

Clearly, appellants’ allegations bring them within the 
principles of Rachel, Peacock, and Cox, for they allege that

7 Including also, Neal v. Delaware, 103 U. S. 370 (1881); Bush
v. Kentucky, 107 U. S. 110 (1883); and Gibson v. Mississippi, 162
U. S. 565 (1896).



14

state statutes are being applied purposefully to thwart con­
duct protected by federal constitutional or statutory guar­
antees. Peacock, supra; Robinson v. State of Florida, 345 
F. 2d 133 (5th Cir. 1965); and Weathers v. City of Green­
wood, 347 F. 2d 986 (5th Cir. 1965), upon such allega­
tions, mandate a hearing.

Moreover, even if the prosecutions were not alleged to 
have been carried on solely for harassment or intimidation, 
they would still be invalid. This is plainly stated in three 
recent decisions of the United States District Court for the 
Middle District of Alabama, ruling on the merits, that no 
“ peaceable, orderly, and lawful demonstrations . . . for 
purposes of dramatizing grievances or protesting dis­
crimination can ever justify arrests and prosecutions . . . ” 
Johnson, et al. v. City of Montgomery, Nos. 11,740, 11,741-N 
(M. D. Ala., 8/3/65). Judge Johnson, in In Re Wright, et 
al., No. 11,739-N (M. D. Ala., 8 /3 /65 ); and John L. Mc- 
Means, et al. v. Mayor’s Court of Fort Deposit, Alabama, et 
al., No. 11,759-N (M. D. Ala., 9/30/65), dismissed removed 
criminal prosecutions, reasoning that municipal ordinances, 
when applied to make constitutionally protected conduct 
punishable, make the resulting arrests and prosecutions 
unconstitutional. Hence, such prosecutions are removable 
under §1443(1), and under the authority of Peacock, supra, 
dismissable.



15

CONCLUSION

For the foregoing reasons, the order of the district court 
remanding appellants’ cases should be reversed, or, at 
the least, reversed and remanded for a hearing upon both 

,̂1443 claims.

Respectfully submitted,

Petek A. H all
1630 Fourth Avenue, North 
Birmingham, Alabama

Jack Greenberg
N orman C. A maker
Charles H. Jones, Jr.
Charles Stephen Ralston
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Appellants



CERTIFICATE OF SERVICE

This is to certify that on October .....~, 1965, I served
a copy of the foregoing Reply Brief for Appellants on 
the attorneys for appellee listed below, by mailing copies 
thereof to them by United States mail, postage prepaid:

Honorable Blanchard McLeod,
Circuit Solicitor,

Dallas County Court House,
Selma, Alabama.

Honorable A. T. Reeves, Jr.,
City Prosecutor,

Dallas County Court House,
Selma, Alabama.

Honorable Henry Reese,
County Solicitor,

Dallas County Court House,
Selma, Alabama.

McLean Pitts, Esq.,
City Attorney,

Selma, Alabama.

Attorney for Appellants



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