Bryan v Austin Jr Statement in Opposition to Jurisdiction and Motions to Dismiss or Affirm

    1st the

I n to  (Emtrt ni Apprais
F oe the F ifth  Circuit 

No. 22172

Christine A u stin , et at., 

S tate of Mississippi,

Appellants,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANTS

Carsie H all
115% N. Parish Street 
Jackson, Mississippi 39201

J ack Greenberg
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

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

Attorneys for Appellants

JAM ES' M. N A S RUT, HI



TABLE OF CONTENTS

PAGE

Statement of the C ase ........................................................ 1
Specifications of E rror ..................... ........ ................ ......  6
A rgument

Appellants’ Removal Petitions Adequately State 
a Case for Removal Under 28 XL S. C. §1443 .... . 6

Conclusion ............................................................................................ 9

Statutory Appendix .............................................................. la

Table of Cases

Alabama v. Boynton, S. D. Ala., C. A. No. 3560-65,
decided April 16, 1965 ..................................................    8

Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark. 
1963) ...................................................................................  8

Braun v. Sauerwein, 77 U. S. (10 Wall.) 218 (1869) .... 7

Colorado v. Maxwell, 125 F. Supp. 18 (D. Colo. 1954), 
leave to file petition for prerogative writs denied 
sub nom. Colorado v. Knous, 348 U. S. 941 (1955) .... 7

Cox v. Louisiana, 85 S. Ct. 453 (1965) ..........................  8
Edwards v. South Carolina, 372 U. S. 229 (1963) .......  8
Ex parte Dierks, 55 F. 2d 371 (D. Colo. 1932), manda­

mus granted on other grounds sub nom. Colorado v. 
Symes, 286 U. S. 510 (1932) ...............................................  7



11

PAGE

Fields v. South Carolina, 375 U. S. 44 (1963)  ...   g

Hague v. CIO, 307 U. S. 496 (1939) ...................  g
Henry v. Rock Hill, 376 U. S. 776 (1964) ....ZZZZ 8
Hodgson v. Millward, 3 Grant (Pa.) 412 (1863) .... 7
Hodgson v. Millward, 12 Fed. Cas. 285 (No. 6568)

(E. D. Pa. 1863) ............................................... 7
Logeman v. Stock, 81 F. Supp. 337 (D. Neb. 1949) .... 7
Louisiana v. United States, 85 S. Ct. 817 (1965) ......  9

New York v. Galamison, -----  F. 2d ___ , 2d Cir.
Nos. 29166-75, Jan. 26, 1965, cert. den. ___ . XJ. S.
——, April 26, 1965 ........................................... 7

Potts v. Elliott, 61 F. Supp. 378 (E. D. Ky. 1945) .....  7
Rachel v. Georgia, 5th Cir., No. 21354, March 5 

1965 ................... .................................................................  o, (>

Strauder v. West Virginia, 100 U. S. 303 (1880) .......  9
Tennessee v. Davis, 100 U. S. 257 (1880) ......................  7
United States v. Clark, S. D. Ala., C. A. No. 3438-64, 

decided April 16, 1965 ....................................  ’ g
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961), 

cert. den. 369 U. S. 850 (1962) 8



Ill
PAGE

S tatutes I nvolved

28 U. S. C. §1443(1) ................................. ................6, 7, 8, 9
28 IT. S. C. §1443(2) ..................................................... 6,7,8
42 U. S. C. §1971 .............................................................  7, 8
42 U. S. C. §1983 .............................................................  7’ 8
Habeas Corpus Suspension Act of 1863 ......................  7
Miss. Code Ann., §1762 (Supp. 1962) ..........................  9
Miss. Const., art. 12, §244 ................... ............................ 9
Miss. House Bill No. 546, approved April 8, 1964 .......  2

Ordinance of City of Canton, approved May 2, 1961 .... 2



I n  the

Imtrfr ( ta r t  nf Appeals
F oe the F ifth  Cibcuit 

No. 22172

Christine A ustin , et al.,
Appellants,

-v.-

S tate of Mississippi,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANTS

Statement of the Case

These are appeals from orders of United States District 
Judge William Harold Cox remanding to the Mississippi 
courts from which appellants had removed them criminal 
prosecutions arising out of attempts by Negro citizens of 
Canton, Mississippi to register to vote and to peacefully 
demonstrate in support of their rights to register without 
racial discrimination.

On June 11, 1964, appellants filed in the United States 
District Court for the Southern District of Mississippi their



2

51 separate petitions for removal (R. 2-21).1 The prose­
cutions sought to be removed involved charges of picketing 
so as to obstruct a public street (in violation of Miss. House 
Bill No. 546, approved April 8, 1964, set out in the Statu­
tory Appendix), parading without a permit (in violation 
of an ordinance of the City of Canton, ordained May 2, 
1961, set out in the Statutory Appendix) and, in the case 
of appellant Hamblin, using profane language tending to 
lead to a breach of the peace, and resisting arrest by curs­
ing and striking an officer (R. 3-8, 39). On July 24, 1964, 
appellee’s Answer and Motion to Dismiss and Remand 
“for trial before the Honorable L. S. Matthews, Mayor of 
the City of Canton, Mississippi, sitting as ex officio Justice 
of the Peace” (R. 23) was filed (R. 23-26). The Answer 
challenged the sufficiency of the removal petitions on their 
faces (R. 24), admitted some of the allegations of the peti­
tions, and denied others (R. 24-26). Affidavits were filed 
in support of the motion to remand (R. 29-30, 33-36) and 
in opposition to it (R. la-3a, 7a) ;2 thereafter, without hear­
ing evidence on such issues of fact as were contested on 
the pleadings and affidavits, Judge Cox entered his order 
sustaining the motion and remanding the cases “to the 
Police Court of the City of Canton, Mississippi” (R. 45, 
46).

Since the prosecutions were remanded without hearing 
on the jurisdictional facts, the factual allegations of the 
removal petitions must be taken as true for purposes of

1 As the 51 petitions were identical, only one is printed in the 
Transcript. One representative warrant is printed for each of the 
offenses charged (R. 3-8), save for the profanity charge against 
Hamblin, the warrant for which was omitted by inadvertence.

2 The affidavits printed at R. 30-32, 36-38, 3a-6a pertain to cases 
not involved in the present appeal.



3

this appeal. Rachel v. Georgia, 5th Cir. No. 21354, decided 
March 5,1965. Those allegations are as follows.3

At about 9 :00 a.m. on May 29, 1964, judicially noticed as 
“a highly advertised day in this small rural town [Canton]” 
(E. 39), a group of Negro citizens, including some of the 
appellants, assembled inside the Mount Zion Baptist 
Church, preparatory to walking to the registrar’s office at 
the County Courthouse to attempt to register to vote (R. 
9-10). Eight or ten of them left the church and proceeded 
together toward the courthouse. They were stopped by 
police and returned to the church. Three Negroes then left 
the church singly, one preceding the other by a distance of 
almost a block, and proceeded toward the courthouse. They 
too were stopped by police and returned .4 Thereafter about 
20 Negroes,5 including some of the appellants, left the 
church and proceeded in a peaceful and orderly fashion 
down the street to the courthouse, two or three abreast,

3 The version of the facts appearing in appellee’s affidavits differs 
in some regards from the version appearing in the allegations of 
the removal petitions. In the following statement, such differences 
as exist are indicated in footnote.

4 City Attorney Goza’s affidavit recites that he explained to the 
Negro leaders at the church that the police “did not intend to inter­
fere with nor hinder the effort of any person” to proceed to the 
courthouse but that “no group of persons would be allowed to 
march to or parade tuward such courthouse” (R. 33). The affidavit 
estimates at 250 the number of persons who first left the church 
and attempted to walk to the courthouse, and asserts that these 
were stopped and dispersed by police (R. 33-34). No estimate is 
offered of the size of the second set of persons similarly dispersed 
(R. 34), but the affiant avers that “numerous persons were allowed 
to proceed in small groups” from the church toward the courthouse 
(R. 34-35).

5 The number is put at 14 by Goza’s affidavit, which recites that 
they proceeded “in parade formation down the middle of North 
Street” but does not allege that the Negroes obstructed the street 
or interfered with pedestrian or vehicular traffic (R. 34).



4
leaving ample room for pedestrian and vehicular traffic 
and singing songs of the civil rights movement (E. 10). 
They were arrested by police and taken in a truck to jail 
(E. 11).6 Some time later, about 15 Negroes,7 including 
some of the appellants, similarly left the church, proceeded 
toward the courthouse, and were arrested (E. 11).

Appellant Hamblin, who was standing with other persons 
in the churchyard following the second set of arrests, re­
marked to the persons with him that Mississippi was a 
dirty place. A policeman called Hamblin a son of a bitch, 
and Hamblin replied that it was not worth it to call another 
policeman a son of a bitch, or that the policeman was not 
worth calling a son of a bitch. Hamblin was then dragged 
out of the churchyard by police, brutally beaten into un­
consciousness, thrown into a jeep, and driven to jail (E. 
11).8

Meanwhile, a second group of Negro citizens, mostly 
juveniles, had assembled at the Asbury Park Church for 
the purpose of going to the courthouse with signs support­
ing the attempt of the Mount Zion Baptist Church group 
to register (E. 12). Sets of about eight left the Asbury 
Park Church to go to private homes to pick up the signs 
and posters which they were to display at the courthouse 
(E. 12). As these sets, including some of the appellants,

6 Goza’s affidavit recites that the Negroes were asked to disperse, 
refused, were three times ordered to disperse, and were then 
arrested (R. 34).

7 Goza’s affidavit estimates at 10 the number of persons who 
“proceeded to attempt to march down North Street” before they 
were ordered to disperse and, on refusal, arrested (R. 34).

8 Appellee’s Answer asserts that Hamblin was arrested for using 
obscene language, resisted arrest by striking the arresting officers, 
and was arrested, “sufficient force . . .  to over come [sic] such 
resistance” being employed (E. 25).



5

were proceeding in a peaceful and orderly manner, not 
disrupting pedestrian or vehicular traffic, they were ar­
rested (E. 12-13). Some were later arrested at their homes 
(R. 13).

The arrested persons were held incommunicado for two 
days (E. 8-9, 16). Their arrests and subsequent prosecu­
tions were carried out for the purpose and effect of harass­
ing them and punishing them for their attempt to register 
and to exercise their rights of free speech to protest dis­
crimination (E. 18). The conduct for which they were 
prosecuted was protected by the First, Fourteenth and F if­
teenth Amendments and implementing federal legislation, 
so that the state statutes and ordinances under which they 
were charged are unconstitutional on their faces or in their 
application (E. 16-17,19).

As previously indicated, Judge Cox granted appellee’s 
motion to remand, holding: 1) that the petitions stated 
no case for removal (R. 42-43), 2) that appellants “have 
failed to show or prove by a preponderance of the evidence 
that there is any merit in any one of the petitions” (E. 44), 
and 3) that the petitions were untimely filed, since filed 
“after the trial in the magistrate’s court” (E, 44). The 
latter two grounds are patently unsupportable, ground 2) 
because Judge Cox’s findings were made without hearing 
evidence and ground 3) because, as indicated by appellee’s 
motion to remand (R. 23), appellee’s counsel’s affidavit 
supporting remand (R. 35-36), and Judge Cox’s own re­
mand orders (R. 45-46), the cases were never tried in the 
magistrate’s court.

The remand orders having been entered October 20, 1964 
(R. 45-46), notices of appeal were timely filed October 29, 
1964 (E. 46-47); subsequently, the appeals were consolidated 
and the remand orders stayed by this Court.



6

Specifications of Error

1. The court below erred in holding that appellants’ 
verified petitions for removal did not adequately allege a 
removable case under 28 U. S. C. §1443.

2. The court below erred in remanding the cases on the 
basis of purported findings of fact, having conducted no 
evidentiary hearing .9

3. The court erred in finding that appellants’ petitions 
for removal had not been timely filed.9

A R G U M E N T

Appellants’’ Removal Petitions Adequately State a 
Case for Removal Under 28 U. S. C. §1443.

“If a petition for removal states sufficient in the way of 
allegations to support proof of adequate grounds for re­
moval, it is to be treated in the same manner as a complaint 
in federal court.” Rachel v. Georgia, 5th Cir., No. 21354, 
decided March 5, 1965, slip opinion at p. 8. “Unless there 
is patently no substance in [the] . . . allegation, a good 
claim for removal . . .  has been stated.” Id. at p. 9.

A. The Removal Petitions Are Sufficient Under 28 U. S. C.
§1443(2).

Appellants’ petitions adequately allege that they are 
prosecuted for acts under color of authority of federal law 
providing for equal civil rights (R. 16-20). See appellants’

9 This error, apparent on the face of the record, see p. 5, 
supra, will not be considered further.



7

Appendix Brief, Parts IIA, C, filed herewith.10 The laws 
providing for equal civil rights which appellants invoke 
are 42 U. S. C. §1971 (protecting the right to vote free of 
racial discrimination and to peacefully encourage others to 
do so) and 42 U. S. C. §1983 (protecting the F irst and 
Fourteenth Amendment rights of freedom of expression, 
and the federal privilege and immunity of supporting the 
right of Negro citizens to register to vote in state and 
federal elections free of the racial discrimination proscribed 
by 42 U. S. C. §1971), discussed in appellants’ Appendix 
Brief, Parts IIA, B (l). On the facts alleged in the removal 
petitions, there can be no doubt that the conduct for which 
appellants are prosecuted is eolorably11 protected by the

10 Because counsel for appellants are counsel in numerous cases 
pending in this Court which raise virtually identical issues of con­
struction of 28 U. S. C. §1443 (1958), appellants have sought leave 
of the Court to include the arguments common to all eases in an 
Appendix Brief, to be filed in all.

11 A state defendant petitioning for removal under §1443(2) is
not required to show that he is protected by federal law : that ques­
tion is the issue on the merits after removal jurisdiction has been 
sustained. On the preliminary question of jurisdiction, it should 
be sufficient to show colorable protection. 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 ease) ; Logemann v. Stock, 81 F. Supp. 337, 339 (D. Neb. 
1949) (civil ease); Ex parte Dierks, 55 F. 2d 371, 374 (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 Suspension Act of 1863 
removal provisions, on which the removal section of th e . Civil 
Rights Act of 1866, now 28 U. S. C. §1443(2) (1958), was based. 
See Hodgson v. Millward, 12 Fed. Cas. 285 (No. 6568) (E. D. Pa. 
1863) (civil ease). The facts of the case appear in Hodgson v. 
Millward, 3 Grant (Pa.) 412 (Strong, J., at nisi prius, 1863), and 
Justice Grier’s decision is approved in Braun v. Sauerwein, 77 U. S. 
(10 Wall.) 218, 224 (1869). New York v. Galamison, 2d Cir., Nos. 
29166-75, decided January 26, 1965, cert, den., -----  U. S. ----- ,



8

First-Fourteenth Amendments, Edwards v. South Caro­
lina, 372 U. S. 229 (1963); Fields v. South Carolina, 
375 U. S. 44 (1963) (per curiam ); Henry v. Rock Hill, 376 
U. S. 776 (1964) (per curiam ); Cox v. Louisiana, 85 S. Ct. 
453 (1965), and constitutes an exercise of the federal priv­
ilege and immunity of supporting the efforts of Negro 
citizens to register to vote free of racial discrimination, cf. 
Hague v. C. I. 0., 307 U. S. 496 (1939). The acts of both 
those appellants who themselves sought to register to vote 
and those appellants who sought to support others in at­
tempting to register to vote are also protected by 42 U. S. C. 
§1971. See United States v. Wood, 295 F. 2d 772 (5th Cir. 
1961), cert, denied, 369 U. S. 850 (1962); United States v. 
Clark, S. D. Ala., C. A. No. 3438-64, decided April 16, 1965 
(three judge district court). For these reasons, prosecu­
tions for those acts are removable.

B. The Removal Petitions Are Sufficient Under 28 U. S. C.
§1443(1).

Appellants’ petitions adequately allege that they are 
denied and cannot enforce in the Mississippi state courts 
rights under federal laws providing for equal civil rights 
(R. 16-20). See appellants’ Appendix Brief, Parts IIA, B. 
The rights claimed are those enumerated in the preceding 
paragraph under the First, Fourteenth and Fifteenth 
Amendments and 42 U. S. C. §§1971, 1983, and discussed 
in appellants’ Appendix Brief, Part IIB (l) . The prosecu­
tions are therefore removable. See Alabama v. Boynton, 
S. D. Ala., C. A. No. 3560-65, decided April 16, 1965.

April 26, 1965, takes this view, in dictum, under present §1443(2). 
Slip opinion at p. 976. Compare Arkansas v. Howard, 218 F. 
Supp. 626 (E. D. Ark. 1963), where defendant was unable to make 
a colorable showing.



CONCLUSION

For the foregoing reasons, the orders of the district 
court remanding appellants’ cases should be reversed. In 
addition, it now appears that the present cases are re­
movable under 28 U. S. C. §1443(1), as construed in 
Strcmder v. West Virginia, 100 U. S. 303 (1880), because 
appellants are denied and cannot enforce in the state courts 
their right to trial by a jury from which Negroes are not 
discriminatorily excluded. By force of the holding in 
Louisiana v. United States, 85 S. Ct. 817 (1965), Missis­
sippi’s constitutional provision governing the qualifications 
of electors (Miss. Const., art. 12, §244) is void on its face, 
and hence Miss. Code Ann. §1762 (Supp. 1962), which quali­
fies as jurors only electors or resident freeholders, is 
equally facially unconstitutional. In view of the clear ap­
plicability of Strauder, appellants ask that this Court’s 
order on remand permit amendment of the removal peti­
tions to expressly present this ground for removal.

Respectfully submitted,

Carsie IT ata ,
115% N. Farish Street 
Jackson, Mississippi 39201

J ack Greenberg
Melvyn Zabb

10 Columbus Circle
New York, New York 10019

A nthony G-. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for Appellants



10
Certificate of Service

T his i s  to  c e r t if y  that on M ay .... ...... , 1965, I  served a
copy of the foregoing Brief for Appellants and Appendix 
Brief for Appellants upon B. L. Groza, Esq., attorney for 
appellee, by mailing a copy thereof to him, c/o Goza and 
Case, 114 West Center Street, Canton, Mississippi, by United 
States mail, postage prepaid.

Attorney for Appellants



A P P E N D I X



la

STATUTORY APPENDIX

28 U. S. C. §1443 (1958):

§1443. Civil rights cases

Any of the following civil actions or criminal prose­
cutions, 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:

(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 juris­
diction thereof;

(2) For any act under color of authority derived 
from any law providing for equal rights, or for re­
fusing to do any act on the ground that it would be 
inconsistent with such law.

Acts of Mississippi, House Bill No. 546:

H ouse B ill No. 546

A n  A ct to prohibit the unlawful picketing of state  
buildings, courthouses, public streets, and side­
walks.

Be it enacted by the Legislature of the State of 
Mississippi:

Section 1. It shall be unlawful for any person, singly 
or in concert with others, to engage in picketing or 
mass demonstrations in such a manner as to obstruct



2a

or interfere with free ingress or egress to and from 
any public premises, State property, county or munici­
pal courthouses, city halls, office buildings, jails, or 
other public buildings or property owned by the State 
of Mississippi or any county or municipal government 
located therein or with the transaction of public busi­
ness or administration of justice therein or thereon 
conducted or so as to obstruct or interfere with free 
use of public streets, sidewalks or other public ways 
adjacent or contiguous thereto.

Section 2. Any person guilty of violating this act 
shall be deemed guilty of a misdemeanor and, upon 
conviction thereof, shall be fined not more than Five 
Hundred Dollars ($500.00), or imprisoned in jail not 
more than six (6) months, or both such fine and 
imprisonment.

Section 3. This act shall take effect and be in force 
from and after its passage.

Approved April 8, 1964.

Ordinance of the City of Canton, Mississippi:

A x  Ordinance to Require a P ermit to H ave a P arade 
in  the City of Ca n to n ; Setting Out the P ro­
cedure to B e F ollowed in  Obtaining S uch P er­
m it ; P roviding P enalties for V iolation and for 
Other R elated P urposes.

B e I t Ordained by the Mayor and B oard of 
A ldermen of the City of Canton, Madison County, 
Mississippi :

S ection 1. Any person, firm or corporation desir­
ing to have or conduct a parade upon any of the streets,



3a

avenues or sidewalks of the City of Canton shall first 
obtain a permit for such parade.

S ection 2. Any person, firm, or corporation desir­
ing to have such parade shall file an application for a 
permit therefor with the Chief of Police of the City 
of Canton not less than forty-eight (48) hours prior 
to the time of such parade. Said application shall 
contain the name of the person, firm or corporation 
requesting the permit, the nature and purpose thereof, 
the approximate number of persons to be engaged in 
such parade, the approximate number of vehicles and 
type of vehicles to be engaged in such parade, the 
date and hour of such parade, the approximate time 
to be consumed by such parade, the exact route of 
such parade, including the names of all streets, ave­
nues and sidewalks to be used. Upon receipt of such 
application, the Chief of Police shall issue a permit 
to the applicant for such parade, unless the same shall 
violate any of the laws or ordinances of the City of 
Canton and the State of Mississippi.

S ection 3. I t shall be unlawful for any person, firm 
or corporation to have any parade along, over, or upon 
any street, avenue or sidewalk of the City of Canton 
without first obtaining a permit therefor, as herein­
above provided.

S ection 4. Any person, firm or corporation violat­
ing this ordinance shall, upon conviction be punished 
by a fine of not more than One Hundred ($100.00) 
Dollars or by imprisonment in the City Jail for not 
more than thirty (30) days or by both such fine and 
imprisonment.



4a

S ection 5. This ordinance shall take effect and be 
in force from and after its passage.

Passed, Adopted and Approved at This the Regular 
May Meeting of the Mayor and Board of Aldermen 
of the City of Canton, Madison County, Mississippi, 
Held on the 2nd Day of May, 1961.