City of Greenwood, MS v. Peacock Brief Amicus Curiae

    Nos. 471 and 649

J tt the Jsujjreme f̂ rrarf of the United p lates
October T erm , 1965

T h e  City of Greenwood, M ississippi, petitioner

v.
W illie  P eacock, et al.

W ill ie  P eacock, et al., petitioners

v.
T h e  City of G reenwood, M ississippi

ON C E R T IO R A R I TO T H E  U N ITED  S T A T E S  COURT OF A P P E A L S  
F O R  T H E  F IF T H  C IR C U IT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

THURGOOD m a r s h a l l ,
Solicitor General,

JO H N  DQAR,
A ssis ta n t A tto rney  General,

LO U IS F. C LA IB O RN E,
A ssis ta n t to th e  Solicitor General,

D A V ID  L. N ORM A N,
LO U IS M. K A U D E R ,

A ttorneys,
D epartm ent o f Justice , 

W ashington, D.C., 20530.



I N D E X

Page
Opinions below_ ___________________________________  1
Jurisdiction________________________________________  1
Statute involved____________________________________  2
Questions presented_________________________________  2
Interest of the United States_________________________  3
Statement_________________________________________  3
Argument:

Introduction and Summary____________ _________  8
A. The “denial” provision of the removal statute (28

U.S.C. 1443(1)) permits pre-trial relief against 
discriminatory and repressive prosecutions____  21

B. The “color of authority” provision of the removal
statute (28 U.S.C. 1443(2)) is available to 
private defendants, _______________________  36

C. The removal statute protects all rights to equality
free of racial discrimination, and the associated 
rights of advocacy and protest_______________ 53

D. The removal petitioners are entitled to an oppor­
tunity to show a right of removal under both
paragraphs of Section 1443__________________  57

Conclusion_________________________________________ 59

CITATIONS
Cases:

Baines v. Danville, No. 9080, decided January 21,
1966 (C.A. 4), petition for certiorari pending, No.
959, this term--------------------------------------------  21, 28, 36

Bell v. Hood, U.S. 327 U.S. 678___________________ 35
Blyew v. United States, 13 Wall. 581_______________  38
Brown v. Louisiana, No. 41, October Term, 1965,

decided February 23, 1966_____________________  25
Burton v. Wilmington Pkg. Auth., 365 U.S. 715_____  42
Bush v. Kentucky, 107 U.S. 110__________________  22, 33
Cameron v. Johnson, 381 U.S. 741_________________ 11
City oj Chester v. Anderson, 347 F. 2d 823 petit on for

certiorari pending, No. 443, this term___________  36
City oj Clarksdale v. Gertge, 237 F. Supp. 213____  1, 7, 40
212-260—-66---1 (I)



IX

Cases—Continued p»g»
Civil Rights Cases, 109 U.S. 3-------------------------------- 42
Cohens v. Virginia, 6 Wheat. 264---------------------------  47
Colorado v. Symes, 286 U.S. 510----------------------------  38, 51
Cox v. Louisiana, 347 F. 2d 679----------------------------  37
Cox v. Louisiana, 379 U.S. 536-----------------------------  25
DeBusk v. Harvin, 212 F. 2d 143--------------------------  32
Dilworth v. Rines, 343 F. 2d 226---------------------------- 25
Dombrowski v. Pfister, 380 U.S. 479-----------------------  11, 26
England v. Medical Examiners, 375 U.S. 411-------  13, 32, 33"
Ex parte Yarbrough, 110 U.S. 651--------------------------  42,48
Fay v. Noia, 372 U.S. 391_______________________  H, 13
Gayle v. Browder, 352 U.S. 903------------------------------ 42
Georgia v. Rachel, No. 147, this Term----------------- 3, 26, 37
In  re Neagle, 135 U.S. 1---------------------------------------  46
Kentucky v. Powers, 201 U.S. 1-----------------------------  22, 44
McDonnell v. Wasenmiller, 74 F. 2d 320-----------------  32
McNeese v. Board of Education, 373 U.S. 668-----------  9
Martin v. Hunter’s Lessee, 1 Wheat. 304-----------------  47
Maryland v. Soper (No. 2), 270 U.S. 36------------------  34
Maryland v. Soper (No. 1), 270 U.S. 9--------------------34, 51
Mayor, The v. Cooper, 6 Wall. 247--------------------- U, 34, 48.
Monroe v. Pape, 365 U.S. 167----------------------------  9, 41, 43
Murray v. Louisiana, 163 U.S. 101------------------------  33
N.A.A.C.P. v. Alabama, 377 U.S. 288_____________  56.
N.A.A.C.P. v. Button, 371 U.S. 415-----------------------  32, 56
Neal v. Delaware, 103 U.S. 370------------------------------ 22
New York v. Galamison, 342 F. 2d 255, certiorari de­

nied, 380 U.S. 977____________________________  36, 43
O’Campo v. Hardisty 262 F. 2d 621------------------------  32
Petersen v. Greenville, 373 U.S. 244------------------------  42
Rachel v. Georgia, 342 F. 2d 336----------------------------  37
Sam Fox Publishing Co. v. United States, 366 U.S. 683, 34
School v. New York Life Ins. Co., 79 F. Supp. 463----- 32
Screws v. United States, 325 U.S. 91-----------------------  41
Smith v. Mississippi, 162 U.S. 592------------------------- 33
Strauder v. West Virginia, 100 U.S. 303-------------- 14, 22, 54
Tennessee v. Davis, 100 U.S. 257--------------  U, 34, 39, 48, 52,
Terry v. Adams, 345 U.S. 461-------------------------------  42,
United States v. Classic, 313 U.S. 299---------------------  41,



Cases—Continued Pag6
United States v. Guest, No. 65, this Term___________ 42
United States v. Mosley, 238 U.S. 383______________ 46, 55
United States v. Price, Nos. 59 and 60, this Term, de­

cided March 28, 1966__________________________40, 46
United States v. Williams, 341 U.S. 70_____________  40
Venable v. Richards, 105 U.S. 636________________  38
Virginia v. Rives, 100 U.S. 313_______  18, 21, 22, 23, 27,44
Williams v. Mississippi, 170 U.S. 213_____________  33
Williams v. United States, 341 U.S. 97________ ____  41

U.S. Constitution:
Article III:

§ 1 , -------------------------------------------------    48
§ 2, cl. 1-----------------------------------------------------  48

First Amendment___________________________ 4, 7, 51, 56
Fourteenth Amendment_______________  4, 7, 20, 42, 51, 56
Fifteenth Amendment___________________________  56

Statutes and Rules:
Act of March 3, 1863, 12 Stat. 755________________  32
Act of March 3, 1865, 13 Stat. 507________________  53
Act ol July 13, 1866, 14 Stat. 98___________________ 39,41
Act of July 16, 1866, 14 Stat, 173_________________  53
Act of September 24, 1789, 1 Stat. 73_____________  39
Amendatory Act of February 28, 1871, 16 Stat. 433__ 40
Amendatory Act of May 11, 1866, 14 Stat. 46______  32
Civil Rights Act of 1866, 14 Stat. 27:

Section 1--------------------------------------------- 9, 16, 19, 43
Section 2---------------------------------------------  9, 36, 42, 43
Section 3--------------------------------------------- 9,14,32,53
Sections 4-10_________________________  39

Civil Rights Act of 1964, 78 Stat. 266:
Title I I_______________________________ 25
Section 901___________________________  24

Enforcement Act of May 31, 1870, 16 Stat. 140:
Section 6_____________________________  9
Section 16____________________________  53
Section 17____________________________  9,42
Section 18_________________________________ 42, 54

Habeas Corpus Act of February 5, 1867, 14 Stat. 386_ _ 11
Judicial code of 1911, § 31, 36 Stat. 1096______  14

I l l



IV

Statutes and Rules—Continued Page.
Judiciary Act of 1789, § 12, 1 Stat. 79____________ 13
Ku Klux Act of April 20, 1871, 17 Stat. 13:

Section 1_____________________________ 9, 11, 43, 54
Section 2 __________________________________  9, 54

Revised Statutes of 1874:
Section 641__________________________  14,32,47,55
Section 643________________________________ 30, 47

Voting Rights Act of 1965:
Section 11(b)_______________________________ 26

18U.S.C. 241__________________________________  9,26
18 U.S.C. 242_____________________________  9, 42, 43, 56
28 U.S.C.:

§ 74______________________________________  14
§ 1442(a)(1)__________________________   47
§ 1443_________________________________ in passim
§ 1446(e)__________________________________  35
§ 1446(f)__________________________________  35
§ 1447(c)__________________________________  32
§ 1447(d)__________________________________  3,24
§ 1448(c)__________________________________  34
§ 2241(c)(3)_______________________________  11
§ 2251_____________________________________ 11
§ 2283_____________________________________ 11

42 U.S.C.:
§ 1971_____________________________________ 4, 55
§1971 (a)__________________________________  19
§1971(b)__________________________________  26
§ 1981__________________________________ 19, 53, 55
§ 1982__________________________________ 19, 53, 55
§ 1983_____________________________ 9, 11,42,43,56
§ 1985___________________________________  9, 19, 55
§ 2000(a)_______________________________  19,26,55
§ 2000(e)__________________________________  19,55

State Laws:
Mississippi Code:

Section 2296.5______________________________ 4



V

Miscellaneous:
Amsterdam, Criminal Prosecutions Affecting Federally 

Guaranteed Civil Rights: Federal Removal and Habeas 
Corpus Jurisdiction to Abort State Court Trial, 113 Page.
Pa. L. Rev. 793____________________________ 9, 11, 38

Cong'. Globe, 39th Cong., 1st Sess:
p. 503_____________________________________  8
pp. 602-603________________________________ 10
pp. 1124-1125______________________________ 9
p. 1367____________________________________ 17
p. 1758____________________________________ 43
p. 2063------------------------------------------------------  10

Cong. Globe. 41st Cong., 2d Sess., p. 3663_________ 42, 43
Cong. Globe, 42d Cong., 1st Sess., App. 68_________ 43
110 Cong. Rec. 2770____________________________  24
110 Cong. Rec. 6955____________________________  24
1 Farrand, Records oj the Federal Convention of 1787

(1911), p. 124______________________________ „ 47



Jtt to Jsujjrtntt (ffottrt of to United states
October T erm , 1965

No. 471
T h e  City of Greenwood, M ississippi, petitioner

v.
W illie  P eacock, et al.

No. 649

W illie  P eacock, et al., petitioners

v.
T h e  City of Greenwood, M ississippi

ON C E R T IO R A R I TO TH E  U N ITED  S T A T E S  COURT OF A P P E A L S  
F O R  T H E  F IF T H  C IR C U IT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

O PIN IO N S BELOW

The opinions of the court of appeals (R. 21-32, 
96) are reported at 347 F. 2d 679 and 347 F. 2d 986. 
The opinions of the district court in these cases 
(R. 8-17, 67-71, 89-91, 92-94, 94-96) are not officially 
reported, but its opinion in a related case which was 
adopted by reference (R. 72-87) is reported at 237 
F. Supp. 213.

(i)



2

JU R IS D IC T IO N

The judgment of the court of appeals in the Pea­
cock case (R. 33) was entered on June 22, 1965, and 
the judgment in the Weathers case (R. 96) on July 
20, 1965. Cross-petitions for writs of certiorari were 
granted on January 17, 1966, 382 U.S. 971 (R. 97- 
98). The cases were consolidated and set for oral 
argument immediately following Georgia v. Thomas 
Rachel, et a l No. 147, this Term, certiorari granted, 
382 U.S. 808 (R. 98). The jurisdiction of this Court 
rests on 28 U.S.C. 1254(1).

ST A T U T E  IN V O LV ED

Section 1443 of Title 28, United States Code, pro­
vides :

Any of the following civil actions or crim­
inal prosecutions, commenced in a State court 
may be removed by the defendant to the dis­
trict 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 jurisdiction thereof;

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

QUESTION S P R E SE N T E D

1. Whether Section 1443(1) of the Judicial Code 
authorizes the removal to federal court of a State 
criminal prosecution founded on a State statute



3

which, although valid and non-discriminatory on its 
face, is applied so as to deny the accused a right 
under a law providing for equal civil rights.

2. Whether Section 1443(2) of the Judicial Code 
extends the remedy of removal to private persons 
with respect to a criminal prosecution arising out 
of their exercise of equal civil rights, and the asso­
ciated rights of advocacy and protest.

IN T E R E S T  OF T H E  U N IT E D  STATES

Together with Georgia v. Rachel, Ho. 147, this Term, 
these cases are the first under the civil rights removal 
statute to reach this Court since 1906. They are here 
by virtue of the provision of the Civil Rights Act of 
1964 which, for the first time in three-quarters of a 
century, permits appeals from orders remanding cases 
removed pursuant to Section 1443. See 28 U.S.C. 
1447(d), as amended. The questions presented are of 
obvious importance to those who are engaged in ef­
forts to obtain the promise of equality for Negroes. 
Their resolution, moreover, may significantly affect 
the business of the federal courts. Accordingly, it 
seems appropriate that the United States express its 
views on the far-reaching issues involved.

ST A TEM EN T

On April 3, 1964, the thirteen State court defend­
ants in the Peacock case filed petitions for removal 
(R. 3) in which they alleged that each of them was a 
civil rights worker affiliated with the Student Non- 
Violent Coordinating Committee engaged in a voter 
registration drive in Leflore County, Mississippi
aimed at encouraging the registration of Negroes.

212—260—66--- 2



4

They recited that, on March 31, 1964, they were ar­
rested in Greenwood and subsequently charged with 
obstructing public streets in violation of Section 
2296.5 of the Mississippi Code. They alleged that the 
State statute invoked against them was unconstitu­
tionally vague, that it was arbitrarily applied and 
used, and that its enforcement against them was “ a 
part and parcel of the unconstitutional and strict pol­
icy of racial segregation of the State of Mississippi 
and the City of Greenwood” ( R. 4), and on that basis 
asserted that they could not enforce in the courts of 
Mississippi their rights of free speech, free assembly,, 
and the equal protection of the laws under the First 
and Fourteenth Amendments. They further generally 
alleged in the language of § 1443(1) that they were 
being “denied [and]/or cannot enforce in the courts 
of such State” their rights under laws providing for 
the equal rights of citizens, and in the language of 
§ 1443(2) that because of their arrests they could not 
“act under * * * authority” of the First and Four­
teenth Amendments and 42 U.S.C. § 1971 (dealing 
with the right to vote free from racial discrimina­
tion). The district court remanded the cases to the 
State court, holding that § 1443 “authorizes removal 
of a criminal case from a state court to a federal 
court only when the Constitution or laws of the state 
deny or prevent the enforcement of equal rights * *
(R. 13). The Court of Appeals stayed the remand 
orders pending appeal (R. 19).

The fifteen State court defendants whose removals 
were consolidated in the Weathers case filed removal



5

petitions between July 23, 1964, and August 21, 1964 
(R. 36-63). Their petitions were identical except for 
the specification of the State charges against them and 
brief descriptions of their conduct at the time of their 
arrests. The petitioners alleged that they were civil 
rights workers affiliated with the Council of Federated 
Organizations (COFO), the activities of which were 
“designed to achieve the full and complete integra­
tion of Negro citizens into the political and economic 
life of the State of Mississippi” (R. 37). They re­
moved 21 separate charges against them. Three of 
the petitioners were arrested on July 16, 1964, while, 
according to their allegations, they were “peacefully 
picketing” at the Leflore County Courthouse in 
Greenwood (R. 38). They were charged with assault 
and battery (R. 36) and, in addition, petitioner 
Weathers was charged with interfering with an officer 
(R. 47). On July 31, 1964, two others were charged 
with operating motor vehicles with improper license 
tags while driving in Greenwood (R. 52, 61), a third 
who was riding as a passenger was charged with 
interfering with a police officer (R. 51), and a fourth, 
a member of a group “walking along the roadside 
singing songs” was charged with contributing to the 
delinquency of a minor and parading without a per­
mit after obeying an officer’s order to disperse (R. 
53-54). On August 1 one of the petitioners was 
arrested and charged with assault while “engaged 
* * * in * * * voter registration activity, when he 
was accosted and assaulted in said exercise” (R. 59) ; 
another was charged with disturbing the peace while



6

engaged in COFO’s “ Freedom Registration” program 
(R. 55) ; and two others were charged with disturbing 
the peace while protesting police brutality “by word 
of mouth, pamphlets, and photographs” on a public 
street (R. 50). Others were charged on various dates 
with the use of profanity while on a public street 
(R. 57); disturbing the peace while participating 
in an economic boycott (R. 58) and assembling on a 
street (R. 62) ; inciting to riot while promoting an 
economic boycott of a grocery store the owner of 
which, a part-time policeman, had allegedly engaged 
in police brutality (R. 60) ; and assault and battery 
while at a police station making an inquiry during 
which “ assault and battery was accomplished with 
the intent to intimidate and harass petitioner” 
(R. 63).

The petitioners in Weathers alleged that they had
engaged in no conduct prohibited by any valid law 
or ordinance of the State or city (R. 38) and that 
their arrests and prosecutions were for the sole pur­
pose of “harassing Petitioners and of punishing them 
for and deterring them from the exercise of their 
constitutionally protected right to protest the condi­
tions of racial discrimination and segregation” in 
Mississippi (R. 38). Their petitions alleged denials 
of, or the inability to enforce in State court, equal 
rights protected by § 1443(1) because of practices of 
racial segregation and discrimination throughout the 
State of Mississippi in state courts, in the electoral 
process, and in the selection of jurors (R. 40-41). 
They further asserted a right to remove under



7

§ 1443(2) because the conduct for which they were 
arrested was “engaged in by them under color of 
authority derived from the Federal Constitution and 
laws providing for equal rights of American citizens” 
(R. 41) in that their acts were protected by the Equal 
Protection Clause of the Fourteenth Amendment and 
the free speech and assembly guarantees of the First 
and Fourteenth Amendments. They further alleged 
that the statutes under which they were charged are 
unconstitutionally vague or unconstitutional if con­
strued to apply to their conduct, that the prosecutions 
had no basis in fact and were therefore groundless, 
and that there is no theory under which their conduct 
could lawfully be brought within the ambit of these 
statutes (R. 41-42). The district court on December 
30, 1964, remanded the Weathers cases to the State 
court for the reasons stated in the Peacock opinion 
and in the district court’s opinion in City of Clarks- 
dale v. Gertge (R. 67-71, 89-91, 92-94, 94-96, see 
R. 72-87). The district court granted a stay of the 
remands pending appeal (R. 71, 91, 94).

The court of appeals, on June 22, 1965, reversed the 
order remanding the Peacock cases (R. 33) for rea­
sons given in an extensive opinion (R. 21-32). On 
July 20, 1965, the court likewise reversed the remand 
orders in the Weathers cases by a per curiam decision 
invoking its opinion in Peacock (R. 96). The court 
in its Peacock opinion read the removal petition there 
to allege that a State statute “is being invoked dis- 
criminatorily to harass and impede appellants in their 
efforts to assist Negroes in registering to vote” in



8

violation of the equal protection clause (R. 24), and, 
on that basis, concluded that a ground for removal 
under § 1443(1) had been stated (R. 24-25). And 
the court accordingly remanded the cases to the dis­
trict court with a direction that it permit the peti­
tion to prove that allegation, in which event the prose­
cutions should be dismissed (R. 32, 96).

The court went on, however, to reject petitioners’ 
claim of a right to remove under § 1443(2). That 
conclusion was compelled by the court’s view that 
private individuals, as distinguished from public 
officials and persons acting under their direction, can­
not be said to be acting “ under color of authority” 
of civil rights laws within the meaning of § 1443(2) 
(R. 29-32).

A R G U M E N T

Introduction and Summary
A century ago the Regro won his freedom and was 

solemnly declared a citizen and an equal before the 
law. Rut, from the first, it was realized that no mere 
declaration—even if enshrined in the Constitution it­
self—would overcome resistance in the defeated 
States.1 And so federal statutes were promptly en­

1 See, e.g., the statement of Senator Howard in January 1866 
(Cong. Globe, 39th Cong., 1st Sess., p. 503) :

I t  was easy to foresee, and of course we foresaw, that in 
case this scheme of emancipation was carried out in the 
rebel States it would encounter the most vehement resistance 
on the part of old slaveholders. I t  was easy to look 
far enough into the future to perceive that it would be a 
very unwelcome measure to them, and that they would 
resort to every means in their power to prevent what they 
called the loss of their property under this amendment. 
We could foresee easily enough that they would use, if they



9

acted to vindicate the rights of the new freedmen. 
The majestic generalities of the new constitutional 
guaranties were given concrete content by positive 
legislation defining specific rights; 2 criminal laws were 
passed to punish disobedience, by officials3 and private 
conspiracies 4 alike; civil remedies were provided for 
those who still would be denied; 5 and, in each in­
stance, jurisdiction to implement the new laws was 
given to the federal courts.6 There remained one 
further danger to guard against, however: the pos­
sibility that the Negro or his protector would be the 
victim of a hostile judicial system when he was

should be permitted to do so by the General Government, 
all the powers of the State governments in restraining and 
circumscribing the rights and privileges which are plainly 
given by it to the emancipated negro.

See, also, the remarks of Representative Cook, id. at 1124—1125. 
The materials are collected in the exhaustive article of Professor 
Amsterdam, Criminal Prosecutions Affecting Federally Guar­
anteed Civil Rights: Federal Removal and Habeas Corpus Juris­
diction to Abort State Court Trial, 113 Pa. L. Rev. 793, at 808- 
828.

2 E.g., § 1 of the Civil Rights Act of 1886, 14 Stat. 27, and 
§ 17 of the Enforcement Act of May 31, 1870, 16 Stat. 144, now 
42 U.S.C. 1981, 1982. See, also, Brief for the Appellants in 
Katzenbach v. Morgan, No. 847, this Term, pp. 31-41.

3 E.g., § 2 of the Civil Rights Act of 1866, 14 Stat. 27, and 
§ 17 of the Enforcement Act of May 31, 1870, 16 Stat. 144, now 
18 U.S.C. 242. See, also, Brief for the United States in United 
States v. Price, Nos. 59 and 60, this Term.

i E.g., §6  of the Enforcement Act of May 31, 1870, 16 Stat. 
141, now 18 U.S.C. 241. See, also, Brief for the United States 
in United States v. Guest, No. 65, this Term.

5 E.g., §§ 1 and 2 of the Ku Klux Act of April 20, 1871, 17 
Stat. 13, now 42 U.S.C. 1983, 1985.

6 E.g., § 3 of the Civil Eights Act of 1868, 14 Stat, 27. See, 
also, Monroe v. Pape, 365 U.S. 167, 183; McNeese v. Board of 
Education, 373 U.S. 688.



1 0

brought before the State court as a defendant on a 
local charge.7

Two potential problems lurked in that situation. 
The first was that the suit or prosecution itself might 
be instituted and carried through in total disregard 
of the federal law which authorized the Negro to 
engage in the activity for which he was now sued and 
which directed federal officers to protect him in the 
enjoyment of his new equality. The other danger— 
perhaps more common—was that, even if the suit was 
justified, the defendant—because of his race or be­
cause of his cause—might not obtain a fair trial in the 
local court. There were many variants of the second 
situation. In the case of the Negro defendant, it 
might be the consequence of continuing local proce­
dural rules which, in defiance of federal law, denied 
his race representation on the jury, or the right to 
testify, or some other courtroom prerogative enjoyed 
by whites. For both the Negro and his protector, the 
prejudice might come, less obviously, but as effectively, 
from local hostility to the cause of civil rights which 
could infect the whole judicial process in a community.

7 See, e.g., the remarks of Senator Lane (Cong. Globe, 39th 
Cong., 1st Sess., p. 602) :

But why do we legislate upon this subject now? Simply 
because we fear and have reason to fear that the emanci­
pated slaves would not have their rights in the courts of the 
slave States. The State courts already have jurisdiction of 
every single question that we propose to give to the courts 
of the United States. Why then the necessity of passing 
the law? Simply because we fear the execution of these 
laws if left to the State courts. That is the necessity for 
this provision.

See, also, the colloquy between Senators Hendricks, Stewart, 
Doolittle, and Clark, at id. 2063.



11

'These are the cases that concern us here. The ques­
tion is whether the architects of the first civil rights 
revolution left those problems without adequate 
solution.

I t would be strange indeed if the great egalitarians 
•of the Reconstruction decade overlooked so obvious a 
danger or failed in the attempt to devise an effective 
remedy. The men of the early post-War Congresses 
were realists, neither callous nor inept. We think it 
plain they saw the problem and solved it for each of 
the cases we have suggested by declaring a right of 
removal to a federal court. This is not to say that, 
for those cases in which a criminal prosecution was 
wholly unwarranted, more radical remedies were not 
also provided—by way of habeas corpus before tr ia l8 or 
injunctive relief.9 But, for all other situations at least, 
the already familiar device of removal10 was the 
obvious solution, because it both assured sufficient 
protection to the exercise of civil rights and involved 
the least impingement on State prerogatives. The

8 § 1 of the Habeas Corpus Act of February 5, 1867, 14 Stat. 
386, now 28 U.S.C. 2241(c)(3), 2251, discussed at some length 
in Amsterdam, op. eit. supra, at 819-825, 882-908. See Fay v. 
Noia, 372 U.S. 391, 415-419.

0 See § 1 of the Ku Klux Act of April 20, 1871, 17 Stat. 13, 
now 42 U.S.C. 1983, which (insofar as it authorizes injunc­
tive relief) may well have been intended as an exception to the 
rule, now embodied in 28 U.S.C. 2283, prohibiting a stay of 
State court proceedings. The question has been left open in 
this Court. See Dombrowski v. Pfister, 380 U.S. 479, 484, n. 2; 
■Cameron v. Johnson, 381 U.S. 741.

10 The earlier removal legislation is canvassed in this Court’s 
opinions in The Mayor v. Cooper, 6 Wall. 247, and Tennessee v. 
Davis, 100 U.S. 257.

2 1 2 -2 6 0 — 66------- 3



12

very appropriateness of the remedy strongly suggests, 
it must have been intended to operate in the circum­
stances we are discussing.

What were the virtues of removal in this context? 
First, unlike habeas corpus or injunctive relief, it 
would not finally arrest a suit or prosecution that 
ought to be tried; in all instances in which the insti­
tution of the proceeding was not wholly unwarranted, 
the removal case could go forward in a changed 
forum, free of prejudice. Removal would not im­
munize the new freedman and his protectors from the 
rightful grievances of local suitors or place them be­
yond the reach of the State criminal law. Moreover, 
because the transfer would often be automatic, there 
would be little occasion for the federal judge to try 
his State court brother—an unseemly spectacle at 
best and one frought with serious dangers of enervat­
ing Federal-State relations. In  some cases removal 
would depend on the existence of hostile State legis­
lation, avoiding any inquiry into the actual practices of 
the particular local judge. More often, the transfer 
would be effected simply because the alleged wrong 
had been committed in the course of civil rights 
activity, without stopping to finally determine, at this 
point, whether the defendant had indeed overreached 
the bounds of his federal privilege, much less whether, 
in the particular instance, the context of the case 
would really prejudice the trial. And, finally, be­
cause removal—unlike post-conviction habeas corpus 
or appellate review in this Court—is a pre-trial 
remedy, it would involve none of the friction inherent



13

in the procedures which permit federal courts to re­
examine the decisions of State tribunals.

To be sure, the rule permitting removal in such 
circumstances would itself embody an unflattering 
implication against the State judiciary as a whole. 
But that impersonal distrust of local courts, made 
anonymously by the law as a matter of general regula­
tion, could not carry the same sting. I t  would be 
merely a limited exercise of federal jurisdiction which 
the Constitution itself had condoned from the begin­
ning ; 11 and in time, it might come to be accepted as no 
more offensive than the diversity removal rule which 
had been in force since the first Judiciary Act of 
1789.12 On the other hand, removal was a swift and 
sure remedy against local prejudice—-necessarily, a 
far more effective shield against discriminatory treat­
ment of the freedom attempting to assert their newly 
won rights than the ultimate revisionary power of 
this Court over the judgments of State tribunals.13

I t is against this background that we must ex­
amine the contemporary legislation which provided 
for removal of “civil rights” cases. The problems of 
the time—still too familiar—and the knowledge that 
the Congress of that day was dedicated to resolving 
them, must inform the exegesis. To borrow the lan­
guage of this Court in construing the Fourteenth 
Amendment itself—framed by the same men who 
wrote the statutes wre examine—“ [t]he true spirit

11 See, infra, pp. 47-48.
12 Act of September 24, 1789, § 12, 1 Stat. 73, 79.
13 Cf. Fay v. Noia, 372 U.S. 391, 416. See also, England v. 

Medical Examiners, 375 U.S. 411, 416-417.



14

and meaning of the [provisions] cannot be under­
stood without keeping in view the history of the 
times when they were adopted, and the general ob­
jects they sought to accomplish,” in light of which 
they should be “construed liberally.” Strauder v. 
West Virginia, 100 U.S. 303, 306, 307. Whatever 
hesitation there may be to return to the spirit of 
1866—as the normal rules of legislative construction 
in any event suggest—must yield to the unhappy 
truth that a century of cautious waiting has not re­
moved the problem. Accordingly, we turn to the 
early provisions which, still today, supply a needed 
remedy.

The law of removal in this area derives from Sec­
tion 3 of the very first Civil Rights Act, the Act of 
April 9, 1866 (14 Stat. 27). Despite several changes 
in terminology,14 everyone agrees that the substance 
of the matter is circumscribed by the terms of this 
old statute and we are content to rest our argument- 
on that text—reserving only the question of the rights 
protected which later revisions somewhat expanded.15 
In pertinent part, the removal section of the 1866 
Act read as follows:

* * * the district courts of the United 
States, within their respective districts, shall 
have, exclusively of the courts of the several 
States, cognizance of all crimes and offences 
committed against the provisions of this act, 
and also, concurrently with the circuit courts 
of the United States, of all causes, civil and

14 See E.S. §641; Judicial Code of 1911, §31, 36 Stat. 
1096; 28 U.S.C. 74(1940); 28 U.S.C. 1443 (1948).

15See discussion, infra , pp. 53-56.



15

criminal, affecting persons who are denied or 
cannot enforce in the courts or judicial tri­
bunals of the State or locality where they may 
be any of the rights secured to them by the 
first section of this act; and if any suit or 
prosecution, civil or criminal, has been or shall 
be commenced in any State court, against any 
such person, for any cause whatsoever, or 
against any officer, civil or military, or other 
persons, for any arrest or imprisonment, tres­
passes, or wrongs done or committed by virtue 
or under color of authority derived from this 
act or the act establishing a Bureau for the 
relief of Freedmen and Refugees, and all acts, 
amendatory thereof, or for refusing to do any 
act upon the ground that it would be inconsist­
ent with this act, such defendant shall have 
the right to remove such cause for trial to the 
proper district or circuit court in the manner 
prescribed by the “ Act relating to habeas 
corpus and regulating judicial proceedings in 
certain cases,” approved March three, eighteen 
hundred and sixtv-three, and all acts amenda­
tory thereof. * * '* 16

In terms, this provision grants a right of transfer 
to the federal court at the instance of a defendant

16 Inadvertently, in quoting tliis section, the opinion below 
(as reprinted in the City of Greenwood’s petition for certiorari, 
p. 76, and the record here, R. 30, n. 7) omits from the second por­
tion of the section the words “against any such person, for any 
cause whatsoever, or”—which, by reference back to the preceding 
clause, states the first ground of removal, now 28 U.S.C. 
1443(1). The same error is repeated in the Brief for Re­
spondents in Georgia v. Rachel, No. 147, this Term, p. 55. 
The provision is correctly reproduced in the Petition for 
Certiorari (App., p. 36) and the Brief for Petitioner in the 
same case (pp. 59-60).



16

called before a State court to answer a civil or crim­
inal complaint in three distinct situations:

(1) When the defendant, regardless of the nature 
of the case (“for any cause whatsoever”), “ [is] 
denied or cannot enforce in the courts or judicial tri­
bunals of the State or locality * * * any of the rights 
secured to [him] by the first section of [the Civil 
Rights Act of 1866]” (all, in effect, aspects of the 
right to equal treatment by the law, in both substantive 
and procedural matters) ;11 * * * * * 17

(2) When the defendant, whether he be “any of­
ficer, civil or military, or other person/’ is held to 
answer on account of “any arrest or imprisonment, 
trespasses or wrongs done or committed by virtue or 
under color of authority of [the Civil Rights Act of 
1866 or the Freedmen’s Bureau legislation]” 18; and, 
finally,

(3) When the defendant (presumably a State offi­
cial)19 is sued or prosecuted “for refusing to do any 
act upon the ground that it would be inconsistent 
with [the Civil Rights Act of 1866]”.

11 Section 1 of the Act declared Negroes citizens and con­
ferred upon them “the same right * * * to make and enforce
contracts, to sue, be parties, and give evidence, to inherit, pur­
chase, lease, sell, hold, and convey real and personal property,
and to the full and equal benefit of all laws and proceedings
for the security of person and property, as is enjoyed, by white
citizens, and [to] be subject to like punishment, pains, and
penalties, and to none other * * *.”

18 Today, and ever since 1874, “any law providing for equal 
rights” replaces the bracketed words. See, infra , pp. 54-55.

19 A restrictive reading of the “refusal” clause is suggested 
by its legislative history. The provision came in by amend­
ment to the Civil Rights Act of 1866 and was explained by its



17

We are not here concerned with the last situation— 
involving as it does only the plight of the local official 
called to answer in his own court for refusing to obey 
the directives of local law or local superiors when 
they conflict writh the supervening federal statute. 
I t  is worth noting, however, because it indicates that 
the framers of the Civil Rights Act of 1866 over­
looked nothing. Our immediate focus is on the other 
two occasions for removal. There, if at all, we must 
find a remedy for the danger that a hostile local court 
would disregard the new privileges granted the Negro.

At the outset, it seems clear these provisions are 
broad enough to encompass all our cases—as one would 
expect in light of what has already been said con- 
'cerning the problems of the time and the determina­
tion of the contemporary Congress to resolve them. 
This is not to say that there are not close questions of 
statutory construction involved. On the contrary, we 
freely concede that our reading of the text is, in some 
-instances, less than assured. Permissible alternatives 
are perhaps equally plausible. We must, however, 
emphasize our belief that no construction would be 
faithful to the intent of the Thirty-Ninth Congress— 
or to the needs of the present—that withheld removal 
relief in any of the circumstances we have thus far
sponsor in these words (Cong. Globe, 39th Cong., 1st Sess., 
p. 1367) :

I  will state that this amendment is intended to enable 
State officers, who shall refuse to enforce State laws dis­
criminating in reference to these rights on account of race 
or color, to remove their cases to the United States courts 
when prosecuted for refusing to enforce those laws. * * *



18

mentioned. With that important caveat, we return to' 
the text and outline our analysis.

1. We first examine the provision (now 28 IT.S.C. 
1443(1)) which permits a State court defendant to 
remove the case against him if he “ [is] denied or 
cannot enforce in the courts * * * of the State”" 
one of the “egalitarian rights” protected by the re­
moval statute (infra, pp. 21-36). In our view, the 
operative words govern two different problems: (1) 
the apprehension of the defendant that—because of 
his race and regardless of the context of the case - 
lie will not be able to “ enforce” his procedural rights 
at his forthcoming trial in the local court; (2) the 
situation of a State court defendant who has already 
been “denied” protected right by being subjected to 
trial on a discriminatory or unfounded prosecution. 
We have no occasion here to urge reconsideration,, 
for the first category of cases, of the restrictive 
rule of Virginia v. Rives, 100 U.S. 313, and the subse­
quent decisions of this Court that nothing short of a 
legislative directive will justify the delicate predic­
tion that a State judge will violate his constitutional 
oath to render equal justice to all. But when the 
claim is that the initiation of a court proceeding of 
itself constitutes a present) denial of protected r ights, 
we submit that the removal statute requires the fed­
eral court to take over the case and to dismiss it if, 
after full inquiry, it is satisfied that the prosecution 
is discriminatory or wholly unwarranted.

2. Turning next (infra, pp. 36-53) to the second 
provision of the “ civil rights” removal statute (now



19

'28 U.S.C. 1443(2)), we attempt to show that it is not 
confined to federal officers acting under color of their 
office, but extends also to private persons who assert 
that the State proceedings against them arise out of 
their exemse~of protected rights) In  our view, an in- 
dividualTriay be 'said to be" acting' “under color of au­
thority”. _of a “ law providing for equal rights” when 
he believes his conduct is privileged, and immunized 
against improper official interference, by overriding 
federal law. We suggest that the consequences of 
such a rule are not offensive to proper notions of 
federalism, emphasizing that removal in such cases 
does not abate the prosecution, but merely transfers 
the trial to another forum.

3. We consider, in a third section of our brief 
(infra, pp. 53-56), the scope of the rights protected 
by the removal statute. Although the original statute, 
so far as is relevant here, referred only to the rights 
declared by Section 1 of the Civil Rights Act of 1866 
(now 42 U.S.C. 1981-1982), we think it proper, in 
this particular, to focus on the language of the Re­
vised Statutes of 1874, carried forward in the present 
Judicial Code, which speaks of “ right[s] secured” 
by, or acts done “under color of authority” of, “ any 
law providing for equal rights.” And we follow the 
uniform judicial construction of this phrase as in­
tending an open-ended category. In our view, this 
leads to the conclusion that the rights protected by 
the removal statute includes those declared or secured 
by Sections 1971(a), 1981, 1982, 1985(3), 2000a and 
_2000e of Title 42 of the United States Code, at least

2 1 2 -2 6 0 — 66- 4



20

insofar as those provisions forbid inequality of treat­
ment based directly or indirectly on race, as well as 
the corollary privilege to advocate the exercise of 
those rights and protest their denial. While we do 
not foreclose a broader reading, we suggest that, for 
present purposes, it is unnecessary to decide the diffi­
cult question whether other rights guaranteed by the 
Equal Protection and Due Process Clauses of the 
Fourteenth Amendment are also included within the 
scope of the removal statute.

4. Finally (infra, pp. 57-58), we address ourselves to 
the proper disposition of the cases before the Court. 
Because the cases are here on preliminary rulings, 
before any development of the facts which control the 
question of removal, there is little occasion to do more 
than suggest the guiding principles. I f  our submis­
sion with respect to the appropriate boundaries of the 
removal statute is correct, however, it is clear the cases 
must be remanded to the district court. In  our view, 
an arguable basis for removal under both paragraphs 
of Section 1443 has been stated by each of the removal 
petitions. Accordingly, we suggest affirmance of the 
order below remanding the cases for a full hearing 
under Section 1443(1). But we submit that the 
ruling of the court of appeals denying removal under 
Section 1443(2) is erroneous, that it should be vacated, 
and that the district court, on remand, should be in­
structed to consider removal on this ground also, if 
petitioners fail to show that they are entitled to out­
right dismissal of the pending prosecutions.



21

A. THE “ DENIAL”  PROVISION OF THE REMOVAL STATUTE
(28 U.S.C. 1443(1) ) PERMITS PRE-TRIAL RELIEF AGAINST
DISCRIMINATORY AND REPRESSIVE PROSECUTIONS

The first relevant provision of the statute (now 28 
U.S.C. 1443(1)) turns removal on denial or inability 
to enforce one of the enumerated rights in the State 
courts. Without rejecting the forceful arguments to 
the contrary (see, e.g., Sobeloff, J., dissenting in 
Baines v. Danville, No. 9080, C.A. 4, decided Janu­
ary 21, 1966, petition for certiorari pending, No. 959, 
this Term), we rest our own submission on the assump- j 
tion that the words “denied” and “cannot enforce” both j 
refer to action or anticipated action “in the courts or ju- j 
dicial tribunals of the State.” That was the construe- 
tion given the provision in Virginia v. Rives, 100 U.S. 
313, 321, and, as a matter of textual analysis, it is diffi- 
cult to quarrel with that reading. We are content to J 
read the terms “denied” and “cannot enforce” as simply J 
referring to different stages of the proceeding—the 
present and the future.20 But that is, in itself, an 
important distinction. Indeed, it is obvious that very 
different considerations may govern according as the 
claim for removal rests on an accomplished fact—which 
can be closely examined—or, rather, on a mere predic-

20 I t  may well be that, originally, when removal could be 
effected at any time, before or after trial, the term “denied” 
applied to denials both before and during trial—whereas, since 
the revision of 1871 confined the remedy to pre-trial, the 
defendant can only claim a denial before the trial begins. But, 
then as now, the tense of the verlCjFis deniecT'Ualways indi­
cated a present denial, not a prediction. ‘W yW ntrast, “cannot 
enforce,” in all versions of the statute suggests a future denial.



22

tion of future denial, where some danger of erroneous 
speculation is unavoidable.

i .  “ cannot enforce”

We begin with the cases in which the allegation is 
that the defendant will not be able to enforce, at trial, 
a right within the protection of the removal statute.

| All the decisions in this Court—from Strauder v.
1 West Virginia and Virginia v. Rives, supra, through 
j Kentucky v. Powers, 201 U.S. 1—are of that charac- 
I ter, each involving a claim by the defendant that he 
| would not be able to vindicate his right to a non- 

discriminatory jury. Indeed, the main thrust of the 
“ cannot enforce” clause is to provide a remedy for 

; the States court’s anticipated refusal to recognize in 
the Negro the same procedural rights at his trial as 
are enjoyed by white citizens—a problem of more 
obvious acuteness in the day of the Black Codes. 
There are, however, other possible applications of 
the clause. To borrow an illustration from the con­
text of 1866, we may suppose a State statute which, 
in defiance of the Civil Rights Act of that year, for­
bade the sale of land to a Negro and a prosecution of 
the seller for disregarding that law. I f  we assume 
that the State judge will feel bound to follow the law 
of his State,21 this is plainly a case in which the de­
fendant “cannot enforce” his federal right in the lo­
cal tribunal and, hence, is entitled to removal. And 
the same reasoning, of course, applies to the perhaps

21 We assume the local statute neither predated the federal 
enactment (see Neal v. Delaware, 103 U.S. 370), nor had been 
invalidated as unconstitutional (see Bush v. Kentucky, 107 U.S. 
110).



23

more compelling modern case of the Negro who is 
charged under an unconstitutional local segregation 
ordinance for peaceably seeking service at a lunch 
counter covered by the Civil Rights Act of 1964.

The rule for these cases is a strict one under the 
old decisions of this Court. The doctrine of Virginia 
v. Fives—at least as construed in the later decisions— 
is that nothing short of a present (albeit unconstitu­
tional) legislative directive can support the predic­
tion that the State judge will refuse to accord the 
same procedural rights to the defendant as others 
enjoy or to recognize his substantive defense under a 
federal statute “providing for equal rights.” There 
are strong arguments for relaxing that rule, although 
we concede the force of considerations which suggest 
limiting the occasions in which a federal judge is 
called upon to speculate that his Brother of the State 
court will be unfaithful to his constitutional oath. 
However, since the cases before the Court do not nec­
essarily present the question, we abstain from any dis­
cussion of the proper scope of the “cannot enforce” 
clause.

Even if the rule of Virginia v. Rives were adhered 
to, however, it woul(^follow that the whole of what 
is now subsection (1) of Section 1443 is obsolete. 
There are other applications of that provision—un­
der the “denial” clause—which have special impor­
tance in the contemporary context.

2 . “IS DENIED”

The more substantial question—and the one in­
volved in the cases before the Court—is whether the



24

‘4denial” clause offers any relief when the State law 
on which a criminal charge is predicated is not void 
on its face, but is alleged to be unconstitutional as ap­
plied to the defendant in the circumstances. This 
Court has never had occasion to reach that issue. 
And it was in part in order to permit its authoritative 
resolution that Congress recently amended the civil 
rights removal statute by providing for appellate re­
view of remand orders. See § 901 of the Civil Rights 
Act of 1964 (78 Stat. 266), now the proviso to 28 
U.S.C. 1447(d), as amended. Senator Dodd, the 
floor manager with respect to the appeal provision, 
expressed the congressional attitude (110 Cong. Rec. 
6955) :

Needless to say, by far the most serious de­
nials of equal rights occur as a result not of 
statutes which deny equal rights upon their 
face, but as a result of unconstitutional and 
invidiously discriminatory administration of 
such statutes.

# # #  #  #

In particular, I  think cases to be tried in 
State courts in communities where there is a 
pervasive hostility to civil rights, and cases in­
volving efforts to use the court process as a 
means of intimidation, ought to be removable 
under this section.22

We agree. In our view, however, that result is 
not inconsistent with this Court’s early decisions, 
which we read as construing the statute only as it

22 See the similar speech by Congressman Kastenmeier, 110 
■Cong. Rec. 2770, and the remarks of then Senator Humphrey 
on this point, id. at 6551.



25

applies to claims alleging inability to enforce a right 
in the future, at trial. Our submission is that the 
circumstances described in the Senate debate involve 
a present violation of protected rights, removable 
under the “ denial” clause of what is now Section 
1443(1).

There are several variants of the situation, or, at 
least, the focus can be placed on differing aspects 
of the problem. Thus, one not unfamiliar case is 
that of the discriminatory prosecution, in which 
Negroes are charged under a State law or local 
ordinance which is valid on its face and permissibly 
applicable to the conduct in suit but which, in prac­
tice, is not applied in similar circumstances to white 
persons. See Cox v. Louisiana, 379 U.S. 536, 555- 
558; Brown v. Louisiana, No. 41, this Term, decided 
February 23, 1966 (concurring opinion of Mr. Justice 
White). On those facts—without noticing whether 
the defendant was at the time engaged in exercising 
a substantive right protected by the removal statute— 
it is clear that there has been a denial of the right 
to “be subjected” to “none other” but those “ punish­
ments, pains and penalties” imposed on “white citi­
zens.” 23 Another example is the prosecution under 
an otherwise valid local law (i . e a trespass statute) 
for conduct which is privileged under federal law 
{i.e., peaceably seeking service at an establishment 
covered by Title IT of the Civil Rights Act of 1964).

23 We need hardly elaborate the proposition that, in some 
circumstances at least, a discriminatory prosecution constitutes 
unequal “punishment” within the meaning of the Civil Eights 
Act of 1866. See Dilworth v. Riner, 343 F. 2d 226 (C.A. 5).



26

Cf. Georgia v. Rachel-, No. 147, this Term. Here,, 
again, there is a denial of a protected federal right— 
whatever motive inspired the institution of the pro­
ceeding. And, finally, there is the case—related to 
each of the others, but distinguishable—in which a 
wholly unwarranted charge is brought to intimidate 
Negroes out of asserting rights within the removal 
statute. Ignoring the denial of due process inherent 
in the seizure and detention of the accused without 
cause, such a prosecution obviously impinges on the 
protected substantive right involved by violating the 
correlative right to be exempt from official threats 
designed to deter its exercise. See, e.g., 42 TLS.C. 
1971(b), 2000a-2(b), (c), and § 11(b) of the Voting 

' Bights Act of 1965. Of. 18 TJ.S.C. 241.
In each of these situations, it is plain that a right 

protected by the removal statute has been “denied” 
in a very real sense. Beyond the immediate injury 
inherent in being subjected to unfounded charges, it 
is sufficiently obvious that, in a “ closed society” 
which sets the race apart, a discriminatory prosecu­
tion against Negroes, whatever its purpose, and, a 
fortiori, one that arises out of civil rights activity, 
will tend to have a repressive effect on the exercise 
of fundamental rights by the victim and others simi­
larly situated—regardless of the prospects of ultimate 
acquittal. Cf. Dombrowski v. Pfister, 380 U.S. 479, 
490, and cases there cited. The remaining question is 
whether a deprivation of covered rights which results 
from the institution of a formal prosecution is a 
“denial” within the intendment of the removal pro­
vision. We submit it is—although, as we elaborate in



27

a later section of our brief (pp. 36-52), we believe re­
moval of all but the clearest of such cases is more 
appropriately effected under the “color of authority” 
provision, now 28 TT.S.C. 1443(2).

At the outset, we stress, once again, that the claim j 
under the “ denial” clause is not that the defendant 
will be unable to enforce a right at his State trial, not 
yet commenced. The allegation here is, rather, that 
the institution of the prosecution, which requires him 
to stand trial, itself denies him a right protected by 
the removal statute. These cases involve no assess­
ment of probabilities, no predication as to what the f 
State judge will do. Accordingly, the rule of Vir- j 
ginia v. Rives and its progeny is inapplicable. Un- j 
like the jury discrimination there involved, which was 
harmless unless the court endorsed it by denying a 
challenge (100 U.S. at 321-322), the present denial of 
rights in our cases has already inflicted injury before 
the trial concludes, indeed, before it begins. So, also, | 
because the claim here is that the deprivation is an ac­
complished fact, the violation is susceptible of proof 
and does not depend on appraisal of the defendant’s, 
mere “ apprehension” with respect to the forthcoming; 
trial (id. at 320). And, finally, since the basis for 
removal in the circumstances we are discussing is not 
the anticipated unconstitutional action of the State 
court during the trial, we are not confronted—as the 
Court was in Rives—with the difficult and delicate 
problem of determining, in advance, whether the par­
ticular judge will respect his oath to uphold the 
Constitution.

2 1 2 -2 6 0 — 66-------5



28

We conclude that the precedents in this Court do 
not stand in the way of our reading of the “ denial” 
clause. But, wholly apart from those decisions, there 
remain three possible objections to our submission on 
this point. The questions raised are: (a) whether 
a deprivation of protected rights by the institution of 
a prosecution is a denial “ in the courts or judicial 
tribunals of the State;” (b) whether removal is an 
appropriate remedy when the stated ground for the 
transfer is not apprehension as to the action of the 
State court but a present denial of protected rights 
through an unwarranted or discriminatory prosecu­
tion; and, finally, (c) whether a procedure which dis­
poses of the case on the merits in determining re­
movability is consistent with the general purpose of 
removal to permit the trial to proceed in an impartial 
forum. We consider each of these points in turn.

(a) I t  has been suggested with much force that 
the “ denial” clause of the removal statute is not 
necessarily tied to the qualifying words “ in the 
courts * * * of [the] State”—the point being illus­
trated by punctuating the relevant provision (which, 
in the successive re-enactments, has never been punc­
tuated to resolve the inherent ambiguity) to say that 
removal is available to “ persons who are denied [,] 
or cannot enforce in the courts or judicial tribunals 
of the State or locality where they may be [,] any 
right * * *.” See the opinion of Sobeloff, J., dissent­
ing, in Baines v. Danville, Ho. 9080, C.A. 4, decided 
January 21, 1966. As already noted, however, we pre­
fer to rest our argument on the assumption that the



29

denial, present or future, must occur “ in tlie 
courts * * * of the State or locality. ’ ’

We submit that the^in^titnthm-ixL a formal prose- 
cution meets that test. To be sure, it is normally 
the prosecutor who decides to make the charge—al­
though, on occasion, in the police courts and justice 
of the peace courts typically involved in the cases 
that concern us, the initial official action may be 
that of the local, judge issuing a summons or arrest 
warrant on the complaint of a peace officer or a 
private citizen. But, at some stage before the com­
mencement of the trial, a judicial officer or his dele­
gate must intervene, whether to issue a warrant or 
summons, to commit the prisoner, to receive and file 
the complaint, or information, or indictment. Thus, 
the judicial machinery is necessarily involved when 
a formal prosecution is initiated. Doubtless, in most 
cases, the judge himself will have played a role— 
however small. That is not critical, however. The 
statute does not require that the denial be effected 
“by the judge’7; it is enough if it occurs “ in the 
court.” While there may be violations of right in 
the arrest, or at other preliminary stages, the rele­
vant denial for purposes of the removal statute is 
the initiation of an unwarranted judicial proceeding. 
And that condition is necessarily satisfied before the 
removal petition is filed since nothing less than a 
formal “ suit or prosecution * * * commenced in a 
State court” is removable under the terms of the 
statute.



30

In sum, while the removal statute is always ulti­
mately guarding against the improper action—or in­
action—of the State judge, the immediate focus of the 
“denial” clause is on the locale, not on the actor. The 
deprivation of right here is the initiation of an un­
justified court proceeding and it does not matter who 
set the case in motion—the judge himself, his clerk, the 
prosecutor or another officer of the court. Once the 
illegal prosecution becomes a formal “case”, the denial 
is complete and the proceeding is removable.

(&) One may well ask what purpose is served by 
removal if rights have already been finally denied 
and no action of the State court can remedy the 
wrong. The answer is, of course, that removal is 
authorized in these situations because, although an 
irremediable injury has been inflicted, it may yet be 
aggravated by compelling the defendant to suffer an 
unwarranted trial, or simply by holding him under 
improper charges, perhaps incarcerated, for an ex­
tended period pending trial. The underlying fear is 
that the State judge will not promptly dismiss the 
prosecution as he should. That is a risk which the 
law determines, as a matter of general policy, to 
avoid, in light of the urgent need to arrest further 
injury to one already deprived of important federal 
rights. In this sense, the possibility of prejudice— 
or unconcern—on the part of the local judge is, once 
again, the ultimate rationale of the transfer to a fed­
eral court. But that is not the technical ground for 
removal with respect to a defendant who has already



31

suffered injury. He must show a present denial of 
protected rights in that he is a victim of the unequal 
enforcement of State law or of an otherwise unwar­
ranted prosecution interfering with his exercise of 
such rights. He need not also prove (or even allege) 
that the injury will he compounded by the action of 
the State court in failing to grant swift relief; the 
law itself supplies that ingredient in these circum­
stances.

(c) Successful invocation of the “ denial” clause 
of the removal statute, as we construe it, inevitably 
results in pre-trial dismissal of the case, rather than 
trial in a new forum; in these cases, the decision deny­
ing remand, which determines removability, at the 
same time finally disposes of the case, sometimes on 
the merits of the plea of privilege or justification. 
There is some basis for the charge that such a pro­
cedure resembles more injunctive relief against State 
court proceedings than removal of a cause to the 
federal forum. Indeed, the radical character of the 
relief suggests that it be used sparingly. But it isr 
nevertheless, a proper aspect of removal, fully war­
ranted by the statute and a very appropriate remedy 
in extreme circumstances.

There is, of course, no fixed rule that a removed 
case must proceed to trial on the merits. Obviously, 
if an absolute bar to the prosecution is claimed, it 
must be heard and determined before trial—in what­
ever court the proceeding is pending—and if the ob­
jection is sustained no trial will ensue. In  every 
removable case, the defendant may transfer the hear-



32

mg of that threshold question to the federal court,24 
where the proceeding will end if the plea is sustained. 
I t  is common experience to have the removed case 
concluded at this stage. See, e.g., O’Cctmpo v. Har- 
disty, 262 F. 2d 621 (C.A. 9) ; Be Busk v. Harvin, 212 
F. 2d 143 (C.A. 5). Thus, here, the removal, although 
it does not look to a trial in the federal court, serves

24 The present statute, applicable to all categories of removal, 
expressly provides that a criminal prosecution may be removed 
“at any time before final judgment.” 28 U.S.C. 1441(0). That 
has been the rule for civil rights cases at least since the Revised 
Statutes of 1874, which authorized removal “at any time before 
the trial or final hearing of the cause.” R. S. 641. Indeed, 
originally, removal of civil rights cases, if sought before judg­
ment, could be effected only at the very inception of the court 
proceeding, “at the time of [the defendant’s] entering his 
appearance in [the State] court.” § 5 of the Act of March 3, 
1863, 12 Stat. 755, 756, adopted by reference in § 3 of the Civil 
Rights Act of 1866 (supra, p. 15) . The harshness of this rule 
led to a provision in § 3 of the amendatory Act of May 11, 1866, 
14 Stat. 46, permitting removal “after the appearance of the 
defendant and the filing of his plea or other defence in [the 
State] court, or at any term of said court subsequent to the 
term when the appearance is entered, and before a jury is em- 
pannelled to try  the [case].”

Under present law, then, the defendant has an option. I f  the 
bar to the prosecution is not also the ground of removal, the 
defendant may choose to await the State court’s ruling on his 
preliminary plea and, after its denial, remove the case to the 
federal court “before trial.” I t  is not clear, however, whether 
submission of the threshold issues would prevent their relitiga­
tion, after removal, in the federal district court. In  civil cases, 
the State court rulings before removal have been treated as bind­
ing on the ground that the federal trial court is not a reviewing 
court. McDonnell v. Wasenmiller, 74 F. 2d 320 (C.A. 8); School 
v. New York Life Ins. Go., 79 F. Supp. 463 (D. Tenn.); cf. 
N.A.A.C.P. v. Button, 371 TJ.S. 415, 427-428; England v. Medi­
cal Examiners, 375 U.S. 411, 417-419. On the other hand, it is 
arguable that such rulings are merely tentative, subject to recon-



33

the important function of transferring to that forum 
the equally critical adjudication of the plea in bar 
to the prosecution, which is grounded on federal law.

To be sure, in other situations, the pretrial dismis­
sal in the federal court normally occurs after final 
removal of the cause, not as an incident of the deter­
mination of removability on a motion to remand. 
Here, too, the apparent incongruity might be avoided 
by turning removability on the mere allegations of the 
petition, or on a “prima facie” showing-—as is the 
rule with respect to removal of prosecutions against

sideration until final judgment, and that the federal court suc­
ceeds to the power of the State tribunal to reverse itself. 
Because we deal here with criminal cases, it may also be per­
missible to view the removal court as akin to a federal habeas 
corpus court which may re-examine the facts underlying the 
State court’s disposition of these legal issues. See England v. 
Medical Examiners, supra, at 417, n. 8.

But, in any event, the defendant whose “motion to quash” 
or “motion in bar” rests on the same ground as his petition for 
removal has nothing to gain by submitting his claim initially 
to the State court. Even if an adverse ruling there does not 
preclude him from presenting the same contention to the federal 
court (and thereby bar removal ah initio), he has not added to 
his claim of “denial” by showing that the State court has pre­
liminarily endorsed the violation of his protected rights. For, 
whether or not the federal court may vacate the ruling after 
removal, it is clear the State court might do so if the case 
remained there. Indeed, the early decisions of this Court reject 
a claim of denial of rights based on a refusal by the State trial 
court to set aside an indictment returned by a discriminatorily 
selected grand jury or to quash a similarly drawn petit jury 
panel—final rulings, as a practical matter—on the ground that 
an appellate court of the State might correct the error. See 
Bush v. Kentucky, 107 U.S. 110; Sm ith  v. Mississippi, 162 U.S. 
592; Murray v. Louisiana, 163 U.S. 101: Williams v. Mississippi, 
170 U.S. 213.



34

federal officers. See The Mayor v. Cooper, 6 Wall. 
247, 253-254; Tennessee v. Davis, 100 U.S. 257, 262; 
Maryland v. Soper (No. 1), 270 U.S. 9, 34-36; Mary­
land v. Soper (No. 2), 270 U.S. 36, 38-39. Indeed, 
that may have been the original design with respect to 
civil rights cases also, the first removal statutes in 
this area including no provision for remand. But 
there can hardly be objection because the modern rule 
is more cautious and imposes a heavier burden on the 
removal petitioner. I t  is of course a mere coincidence 
that the jurisdiction of the federal court is usually 
determined on a motion to remand. The judicial Code 
is explicit that remand is required if the impropriety 
of the removal “appears” “at any time before final 
judgment.” 28' U.S.C. 1448(c). Thus, the return of 
the case would be compelled if the removal court’s 
want of jurisdiction came to light in connection with 
any pretrial proceedings, whether or not a motion to 
remand had been submitted. In any event, there is 
no real anomaly in confusing the question of remov­
ability and the merits of the challenge to the prosecu­
tion. There are many instances in the law where a 
procedural or jurisdictional issue is so bound up in 
the merits that it cannot be decided separately. See, 
e.g., Sam Fox Publishing Co. v. United States, 366 
U.S. 683, 687-688, 694-695.

I t  would be an exaggeration, however, to say that 
removal and dismissal of the case exactly coincide un­
der the suggested reading of the “denial” clause. The 
case is removed by filing the petition in the federal



35

court and a copy with the clerk of the State court, 
and that action automatically stays further proceed­
ings in the local court, 28 U.S.C. 1446(e). That is 
a safeguard of some importance. Moreover, if the 
defendant is confined, the removal judge must, with­
out awaiting the remand hearing, issue a writ of 
habeas corpus to transfer the prisoner to federal cus­
tody, and may then enlarge him on bail. 28 U.S.C. 
1446(f). And, of course, the federal court acquires 
jurisdiction to consider the merits of the petitioner’s 
claim before the allegations are proved. Cf. Bell v. 
Hood, 327 U.S. 678. Thus, removal, for some pur­
poses, is effected quite independently of the ultimate 
decision in the case. I t  is only at the end that the 
jurisdictional question merges into the disposition of 
the case.

We conclude that there are no obstacles to a read­
ing of the “denial” clause of the removal statute 
which would permit a transfer of a criminal case on 
the ground that the underlying prosecution violates 
rights guaranteed by a federal law “providing for 
equal rights.” I t need hardly be added that our sub­
mission assumes the federal court will act with re­
straint. We take it for granted that the court cannot 
subsitute itself for a trial jury, deciding questions of 
fact not open on a pretrial motion to quash the prose­
cution: we claim no special powers for the court 
merely because it is determining “removability” in 
a proceeding labelled “hearing on motion to remand.” 
A proper regard for the principle of federalism re­
quires the caveat. But, once that is clear, there can be 
no rightful claim of undue impingement on State pre­



36

rogatives. Certainly, the State cannot complain be­
cause the issue of jurisdiction is always open and the 
final decision to exercise it awaits actual proof of the 
petitioner’s allegations, to the same degree as is re­
quired for dismissal of the case without trial.

B. THE “ COLOR OF AUTHORITY”  PROVISION OF THE RE­
MOVAL STATUTE (2 8  U.S.C. 1 4 4 3 ( 2 ) )  IS AVAILABLE TO
PRIVATE DEFENDANTS

The second removal provision of the Civil Rights 
Act of 1866 {supra, p. 14—15)—carried forward in para­
graph (2) of Section 1443—allowed “any officer, civil 
or military, or other person” to transfer to the fed­
eral court a suit or prosecution initiated against him 
on account of “any arrest, imprisonment, trespasses- 
or wrongs done or committed by virtue or under color 
of authority” of the 1866 Act or the legislation re­
lating to the Freedmen’s Bureau. This Court has 
had no occasion to consider the reach of this provision. 
Recently, however, the question whether paragraph 
(2) of Section 1443 extends any protection to private 
defendants not acting under compulsion of federal law 
has been answered in the negative by a divided panel 
of the court of appeals for the Second Circuit {New 
York v. Galamison, 342 F. 2d 255 (C.A. 2), certiorari 
denied, 380 U.S. 977), a panel of the Third Circuit 
{City of Chester v. Anderson, 347 F. 2d 823, petition 
for certiorari pending, No. 443, this Term),25 a ma­
jority of the Fourth Circuit {Baines v. Danville, No.

25 The question was not reached in the dissenting opinion of 
Chief Judge Biggs and Judges Kalodner and Freedman on the 
petition for rehearing in that case. See 347 F. 2d at 825.



37

9080, C.A. 4, decided January 21,1966, petition for cer­
tiorari pending, Ho. 959, this Term),26 and, in the deci­
sion below (R. 21, at 29-32), a panel of the Fifth Cir­
cuit.27 We submit these decisions are erroneous and 
that, the provision grants a right of removal to a pri­
vate person with respect to criminal charges arising out 
of his exercise of federal rights or privileges secured 
by “any law providing for equal rights.”

Certainly, the words of the statute permit this con­
struction. I t  is in terms provided that “any * * * 
person” may remove a “ prosecution” brought against 
him “ for any * * * trespasses or wrongs done or 
committed * * * under color of authority” of the 
Civil Rights Act of 1866, or, today, any other federal 
law “ providing for equal rights.” Historical con­
notations and judicial gloss aside, the phrase “under 
color of authority of law,” as a matter of plain 
English, includes conduct which the actor claims he 
is privileged to engage in by a provision of law— 
for instance, to enter and seek service at a covered 
restaurant immune from the local trespass law, as 
the recent federal public accommodations statute “au­
thorizes” him to do. And it is equally clear that any 
charge arising out of such an assertion of rights is 
embraced within the wrords “ trespasses, or wrongs”— 
assuming we are bound by the terms of the original 
statute, rather than the present text which permits

26 Judges Sobeloff and Bell, dissenting, did not decide the
question. But, see, -----  F. 2d at ——-, n. 54.

27 The F ifth  Circuit did not consider the scope of paragraph 
(2) in Rachel v. Georgia, 342 F. 2d 336, No. 147, this Term,, 
or Cox v. Louisiana^ J47E^lkHjTJr



38

removal of a prosecution “for any act under color of 
authority * *

We do not say no other conclusion is possible as a 
matter of language. But, in light of the general rule 
that removal statutes are to be liberally construed 
(Venable v. Richards, 105 U.S. 636, 638; Colorado v. 
Symes, 286 U.S. 510, 517) and the special reasons in 
the history of the times for anticipating the broadest 
remedies in the Civil Rights Act of 1866 (see Blyew v. 
United States, 13 Wall. 581, 593), it would seem to 
be enough that the text reasonably lends itself to a 
reading that extends the relief specified to the freed- 
man himself, the intended beneficiary of the legisla­
tion as a whole. Only the most compelling evidence 
would justify a contrary result. We find none.

There is nothing relevant to our question in the 
legislative history of the Act of 1866,28 except as al­
ready noted, unequivocal indications of the strong 
distrust of the State courts entertained by the Thirty- 
Mnth Congress29 and its obvious determination to 
shield the Negro from their hostility. The argu­
ments for a narrow construction of the “ color of au­
thority” clause look elsewhere. In sum, three conten­
tions are put forward: (1) That the language of the 
provision, read in the light of the 1866 Act as a whole, 
indicates an exclusive concern here with federal offi­
cers and persons acting under them; (2) that any 
reading of what is now the second paragraph of Sec­
tion 1443 to include private individuals would make

28 See Amsterdam, op. cit. supra, at 811.
29 See supra, pp. 9-10, and note 7, supra, p. 10.



39

it overlap the first provision (now §1443(1)) and 
leave that text without function; and, finally (and 
somewhat inconsistently), (3) that the suggested con­
struction would permit such a wholesale removal of 
cases as to destroy the Federal-State balance.

1. Of course, if need be, the reference to “ other 
persons” as entitled to remove their cases could be 
explained away as intending “persons acting under 
direction of” the first mentioned “officer[s], civil or 
military.” This is permissible in light of the provi­
sions of the Civil Rights Act of 1866 and of the 
Freedman’s Bureau legislation authorizing the sum­
moning of “ bystanders” and the formation of a 
“ posse commitatus” for various purposes.30 31 Unless 
there are independent reasons for doing so, however, 
we submit a straightforward reading of “ any * * * 
other person” as meaning just that is more natural. 
The same Congress, in the same year, showed that it 
knew how to qualify “ other person” when it wished 
to by providing, with respect to revenue officers, for 
removal of civil and criminal actions against those of­
ficers “or against any person acting under or by au-

c thority.oUanyThnrlmffite An oTAj'uiy" 13, 1806
§ 67, 14 Stat. 98, 171.31 To be sure, if the clause we 
are discussing meant to reach all persons it might 
have omitted special mention of “ officer[s], civil or 
military”—who are presumably included in the gene­
ric term “any person”—or it might have used the

30 See, e.g., §§ 4-10 of the Civil Eights Act of 1866, 14 Stat. 
27, 28-29.

31 This was the provision sustained in Tennessee v. Davis, 100- 
U.S. 257, as then codified in the Kevised Statutes, § 643.



40

still shorter solution of the 1948 Revisers of the Judi­
cial Code who eliminated all reference to the removal 
petitioner in the modern version of the provision. 
See 28 U.S.C. 1443(2). But economy of phrasing was 
not always a part of the style of the times. See, e.g., 
the Enforcement Act of May 31, 1870, 16 Stat. 140, 
and the amendatory Act of February 28, 1871, 16 
Stat. 433. Nor would it have been altogether safe to 
make no explicit mention of officers: four members of 
this Court once read a Reconstruction statute as not 
reaching official acts partly because officers were not 
named. United States v. Williams, 341 TLS. 70 
(Opinion of Frankfurter, J.). But, see, id. at 87 
(Opinion of Mr. Justice Douglas) and United States 
v. Price, Nos. 59, 60, this Term, decided March 28,1966.

An alternative textual argument for the narrow 
reading lays stress on the words “ color of authority,” 
insisting that this is “ a phrase of art in the law” 
which connotes “ authority derived from an election 
or appointment.” See the opinion of the district 
court in City of Clarksdale v. Gertge (N.D. Miss.), 
reprinted here (R. 72, at 84), which is the basis for 
the decision of the instant cases in that court (see 
R. 30, 70, 90, 93, 95). That construction, we submit, 
is far from obvious. There might be merit in the 
contention if the clause ended abruptly after describ­
ing the acts supporting removal as those “ done under 
color of authority,” leaving us free to assume that 
the “ authority” mentioned derived from the status, 
position or office of the actor. But that is not our



41

provision. The text before us very plainly tells us 
the source of the “ authority” : it is not the office of 
the defendant, but the law under which he acts— 
today, “under color of authority derived from any law 
providing for equal rights.” That the Thirty-Ninth 
Congress knew the difference is again shown by looking 
to the Act of July 13, 1866, which permits removal of 
a case against a revenue officer “ on account of any 
act done under color of his office.” Id., § 67, 14 Stat. 
171.

We are not aware of any legal tradition that for­
bids reading “ under color of authority [of] law” to 
include the case of a private person who acts under 
the claim that the law grants him a privilege to en­
gage in the conduct in question and immunizes him 
from prosecution for so doing (so long as he does not 
overstep the bounds of his legal privilege). There is 
nothing to the contrary in the decisions of this Court 
construing the expression “ under color of * * * 
law” when used in Reconstruction legislation in ref­
erence to action taken under pretense of State law— 
even assuming the provisions there involved, enacted 
with a wholly different objective, are relevant to the 
present inquiry. The principal thrust of those cases 
is that acts done “ under color of office” which violate 
State law are nevertheless committed “under color of 
law.” See United States v. Classic, 313 U.S. 299, 
325-329; Screws v. United States, 325 U.S. 91, 107- 
112; Williams v. United States, 341 U.S. 97, 99-100; 
Monroe v. Pape, 365 U.S. 167, 172-187. But it does 
not follow, because “ under color of law” includes



42

illegal acts of officials, that those words do not also 
encompass the conduct of private individuals invok­
ing the authority of local law to violate federal 
rights. See Civil Rights Cases, 109 U.S. 3, 16. Such 
cases are rare today. But, cf. Terry v. Adams, 345 
U.S. 461; Gayle v. Browder, 352 U.S. 903; Burton v. 
Wilmington Pkg. Auth., 365 U.S. 715; Petersen v. 
Greenville, 373 U.S. 244. More often, private con­
spiracies against federal rights are wholly outside the 
law, and, hence, beyond the reach of the “ under 
color” statutes. Cf. United States v. Guest, No. 65, 
this Term, decided March 28, 1966. I t  is doubtless for 
this reason that provisions like Section 242 of the Crim­
inal Code and its civil counterpart, 42 U.S.C. 1983, are 
commonly viewed as shields against violations by State 
officers.32 Yet, as their draftsmen made clear at the 
beginning, these statutes were directed also at “ the 
meanest man in the streets [who] covers himself 
under the protection or color of a law or regulation, 
or constitution of a State,” one of the objects being 
to “ prevent any private person from shielding him­
self under a State regulation.” Cong. Globe, 41st 
Cong., 2d Sess., p. 3663.33 Certainly, the “ color of

32 When those provisions are invoked against a violation of 
Fourteenth Amendment, they may have a narrower reach, 
wholly apart from the limits of “under color of law,” because 
the right sought to be vindicated is guaranteed only as against 
“State action.” No comparable inhibition operates with respect 
to the removal statute.

83 This statement by Senator Sherman was made with refer­
ence to the bill that became the Enforcement Act of May 31,1870 
(16 Stat. 140) which, in §§ 17 and 18, re-enacted and extended 
Section 2 of the Civil Eights Act of 1866 (14 Stat. 27), the



43

authority of law” clause of the removal statute can­
not have been intended to have a more restrictive 
scope.

2. The claim of overlapping between the two pro­
visions of the removal statute—if the second (now 
§ 1443(2)) is read to include private individuals—is 
difficult to appreciate. I t is said that the construction 
we urge for the “color of authority” clause “would 
bring within its sweep virtually all the cases covered 
by [what is now] paragraph (1) [of §1443], thereby 
rendering that paragraph of no purpose or effect,” 
and the suggestion is made that allowing private per­
sons to remove prosecutions under the second pro­
vision would allow them to “avoid” the requirement 
of the other provision that the petitioner show a 
“ denial” of protected rights or an “inability to en­
force” them in the State court. R. 32. See, also, 
New York v. Galamison, 342 F. 2d 255, 264 (C.A. 2). 
We submit both propositions proceed on a false as­
sumption.

The fact is that the coverage of the two provisions 
is essentially different and, as a matter of history at

progenitor of 18 U.S.C. 242. He reiterated the thought that 
“persons” as well as “officers” could discriminate “under color of 
existing State laws, under color of existing State constitutions” in 
the same colloquy. Cong. Globe, 41st Cong., 2d Sess., p. 3663. 
See, also, Senator Trumbull’s statement with respect to the 
meaning of “color of law” in the 1866 Act. Cong. Globe, 39th 
Cong., 1st Sess., p. 1758. Section 1 of the Ku Klux Act of 
April 29, 1871 (17 Stat. 13), which became 42 U.S.C. 1983, 
was represented by its sponsor to have the same reach, so far as 
is relevant here, as § 2 of the 1866 Act (now 18 U.S.C. 242). 
Cong. Globe, 42d Cong., 1st Sess., App. 68. See Monroe v. 
Pape, supra, at 185.



44

least, the cases within the reach of each were far from 
the same. The “cannot enforce” clause of what is now 
the first paragraph of Section 1443 was, and is (as we 
have seen), essentially a guarantee against the failure 
of the State courts to respect specific procedural 
rights—a matter wholly outside the scope of the 
“color of authority” provision, however construed. 
I f  such cases are rare today—at least those which 
satisfy the Hives-Powers rule—they were a real con­
cern to the Congress of 1866. We must remember 
that removal on this ground does not in the least 
depend on the nature of the acts underlying the suit 
of prosecution and that it was provided primarily 
for the benefit of the freedman who suffered legal 
disabilities in the State court on account of his race 
or former conditions, whether or not the ease arose 
out of this attempt to assert his new substantive 
rights. On the other hand, those who have reason 
to fear discriminatory treatment in the local court 
only because the case against them grows out of 
their exercise of federal rights cannot claim re­
moval under the “ inability to enforce” clause unless 
State law directs the court to disregard the federal 
defense. Thus, as between the “ cannot enforce” 
clause and the “ color of authority” provision there 
is no necessary overlap. This alone rebuts the sug­
gestion that extending what is now paragraph (2) 
of Section 1443 to private persons would render the 
first paragraph “of no purpose or effect.”

But what of the “ denial” clause, now part of the 
first paragraph of Section 1443 % Of course, if it.



45

were to be read as adding nothing to the words “ can­
not enforce/’ no different situation is presented. In 
that event, however, the historic purposes of the re­
moval. statute as a whole would rather plainly forbid 
restricting the benefits of the “ color of authority” 
clause to officers and their helpers. Although the 
reasons are less compelling, we submit that result 
would offend the original scheme even under our 
broader construction of the “ denial” clause.

Of the three situations we have suggested as jus­
tifying removal under the “ denial” clause {supra, 
pp. 25-26), one is clearly not within present Section 
1443(2) : the case of the discriminatory prosecution 
with respect to conduct that is not protected by a 
“ law providing for equal rights.” That category 
includes all instances in which there is unequal en­
forcement of an otherwise valid law against the 
Negro merely on account of his race. And, depend­
ing on how one defines the exercise of “ equal rights” 
{infra, pp. 53-56), it encompasses a more or less sub­
stantial group of cases in which the prosecution is 
discriminatorily aimed at suppressing conduct which 
is not within the protection of the second paragraph 
of Section 1443. Here no possible overlap results 
because we extend the “ color of authority” provision 
to private persons. Nor is there any real duplica­
tion of remedies for most of the cases within our 
reading of this last provision.

Indeed, the “ color of authority” clause, as we 
understand it, is intended for the case in which the 
defendant is engaged in asserting equal rights and is



46

charged, perhaps as any one else might be for com­
parable conduct, under circumstances which make a 
jury issue whether he overreached his federal privil­
ege. Assuming, as we do, that only the clearest 
instance of an unfounded prosecution should be dis­
posed of by the judge alone on the ground that the 
unwarranted charge is itself a “ denial” of right, 
there will remain many closer cases where trial is 
indicated, but local prejudice against the defendant’s 
cause make it essential to have the merits of the 
federal defense decided on appropriate instructions 
in the federal court. That is the situation for which 
the “ color of authority” provision was written and 
it should be permitted to serve that important func­
tion today—reserving for the more radical procedure 
of the “ denial” clause only the most egregious cases.

Thus, as we read them, the provisions of the two 
paragraphs of Section 1443 deal with basically differ­
ent situations. To be sure, a given case may combine 
several grounds of removal and make it possible for 
the defendant to invoke both provisions, or either. 
But the existence of alternative remedies in this area 
is no ground for denying one of them. See In  re 
Neagle, 135 U.S. 1, 60-61. Nor is some overlapping 
unusual in Reconstruction legislation. See United 
States v. Mosley, 238 U.S. 383, 387. See also, Brief 
for the United States in United States v. Price, Nos. 
59, 60, this Term. Moreover, if overlapping is a real 
concern, a more serious instance of it would result 
today if paragraph (2) of Section 1443 were confined 
to officers and persons acting under them, for it would



47

then stand as wholly superfluous in light of the gen­
eral officer removal provision of the Judicial Code 
which immediately precedes it. See 28 U.S.C. 
1442(a)(1). We agree with the 1948 Revisers that 
the “ color of authority” clause of the civil rights re­
moval statute is something more than a redundant 
statement of a special instance of officer removal.34

3. I t  would be shocking to suggest that considera­
tions of federalism forbid transfer to federal courts of 
cases in which federal rights will otherwise be trampled 
and justice denied. That would amount to conceding 
that State prerogatives may override the Constitu­
tion, reversing the principle constitutional supremacy. 
Of course, in most cases, this Court stands in the way 
of a permanent abridgment of federal rights, em­
powered as it has been since its creation to review the 
judgments of State courts insofar as they adjudicate 
federal questions. See Martin v. Hunter’s Lessee, 1 
Wheat, 304; Cohens v. Virginia, 6 Wheat 264. But 
as Madison observed during the constitutional debates, 
if that were the only recourse, “ appeals would be 
multiplied in a most oppressive degree” and effec­
tive vindication of federal rights might fail because 
it would be difficult to revise, and often pointless to 
remand for a new trial, judgments founded on “im­
proper Verdicts in State tribunals obtained under the 
biassed directions of a dependent Judge, or the local 
prejudices of an undirected jury.” 1 Farrand,

34 I t  is also instructive that the compilers of the Revised S tat­
utes of 1874 preserved the “color of authority” clause as a 
part of the civil rights removal provision, R.S. § 641, rather than 
incorporating it into the officer removal section, R.S. § 643.



48

Records of the Federal Convention of 1787 (1911), 
p. 124. That is why the Constitution authorized 
Congress to “ordain and establish” “inferior Courts” 
(Art. I'll, § 1) which might be directed to exercise 
“ the judicial Power of the United States” in cases 
“ arising under [the] Constitution [and] the Laws 
of the United States” (Art. I l l ,  § 2, cl. 1).

Such was the balance struck at the beginning. 
Prom the first, Congress might have reserved to the 
courts of the United States exclusive jurisdiction of 
all cases in which a non-frivolous federal claim was 
made, whether by the plaintiff or the defendant. See 
The Mayor v. Cooper, 6 Wall. 247, 251-252. Thus, 
it was no invasion of States’ rights when, at length, 
Congress transferred to the federal courts a small 
part of their potential jurisdiction by permitting 
removal of one category of disputes in which a fed­
eral defense is asserted. As was said in another con­
nection, “it is only because the Congress of the United 
States, through long habit and long years of for­
bearance, has, in deference and respect to the States, 
refrained from the exercise of these powers, that 
they are now doubted” (Ex parte Yarbrough, 110 U.S. 
651, 662). I t is appropriate to repeat here the broad 
language of the Court in Tennessee v. Davis, 100 U.S. 
257, 266-267, in sustaining the constitutionality of 
another removal provision:

The argument so much pressed upon us, that 
it is an invasion of the sovereignty of a State 
to withdraw from its courts into the courts of 
the general government the trial of prosecu­
tions for alleged offences against the criminal



49

laws of a State, even though the defence pre­
sents a case arising out of an act of Congress, 
ignores entirely the dual character of our gov­
ernment. I t assumes that the States are com­
pletely and in all respects sovereign. But 
when the national government was formed, 
some of the attributes of State sovereignty 
were partially, and others wholly, surrendered 
and vested in the United States. Over tire sub­
jects thus surrendered the sovereignty of the 
States ceased to extend. Before the adoption 
of the Constitution, each State had complete 
and exclusive authority to administer by its 
courts all the law, civil and criminal, which 
existed within its borders. Its judicial power 
extended over every legal question that could 
arise. But when the Constitution was adopted, 
a portion of that judicial power became vested 
in the new government created, and so far as 
thus vested it was withdrawn from the sover­
eignty of the State. How the execution and 
enforcement of the laws of the United States, 
and the judicial determination of questions 
arising under them, are confided to another 
sovereign, and to that extent the sovereignty 
of the State is restricted. The removal of 
cases arising under those laws, from State into 
Federal courts, is, therefore, no invasion of 
State domain. On the contrary, a denial of the 
right of the general government to remove 
them, to take charge of and try any case aris­
ing under the Constitution or laws of the 
United States, is a denial of the conceded 
sovereignty of that government over a sub­
ject expressly committed to it.



50

Against these considerations, it cannot matter what 
the volume of removed litigation may be if the ‘ ‘ color 
of authority” clause affords the remedy to private 
individuals defending on the ground of federal privi­
lege conferred by a “ law providing for equal rights.” 
Without attempting to predict the practical scope of 
the provision, however, it is proper to notice several 
factors which may reduce the apprehended number of 
such transfers.

First, it must be remembered that removal is an 
optional privilege. Since, under the “ color of author­
ity” clause, a trial is anticipated whatever court en­
tertains the cause, the defendant will only assert his 
right of transfer if he has cause to fear unfair treat­
ment at the hands of the State court. Removal to 
the federal court may present delays and inconven­
iences which the defendant will prefer to avoid if he 
is confident of a fair trial in the local forum. The 
volume of cases actually removed will depend, in large 
measure, on the willingness of the State courts to re­
spect, where they fail to do so now, the supremacy of 
federal substantive rights and the principle of equal 
justice for all.

Second, we emphasize that our reading of the clause 
does not permit removal of every case arising out of 
an assertion of any federal right. In response to the 
conditions prevailing at the time of its enactment 
(and still too familiar), the statute focuses only on 
rights of equality. That may include a more or less 
broad category of cases. But, as we discuss hereafter 
(infra, pp. 53-56), we do not think it encompasses all



51

instances in which the defense is predicated on the 
guarantees of the First Amendment or other rights 
protected against State abridgment by the Due Proc­
ess Clause of the Fourteenth Amendment. That 
necessary limitation sufficiently reduces the propor­
tions of the question.

Finally, we do not suggest that the federal court 
should retain a case against challenge merely be­
cause the removal petition on its face alleges in eon- 
elusory terms that the charge arises out of the exer­
cise of rights under a “law providing for equal 
rights.” Of course, the allegation must be plausible. 
But more than that, the conclusion, if disputed, must 
be supported by a statement of particularized facts, as 
is required under the officer removal provisions. See 
Maryland v. Soper (No. 1), 270 TJ.S. 9; Colorado v. 
Sym.es, 286 U.S. 510. Under modern rules of plead­
ing, it does not matter whether those details are bared 
in the original petition, or are furnished by amend­
ment or in some other way. This is not to say that 
under the “color of authority” provision the peti­
tioner must prove the validity and sufficiency of his 
defense to defeat a motion to remand the case. In  
this respect, the test is not comparable to that im­
posed by the “ denial” clause, under which success­
ful removal results in pretrial dismissal. But the 
federal court must be sufficiently informed to be able 
to discern the presence of a non-frivolous claim of 
privilege premised on a law providing for equal rights 
which, if proved, will entitle the defendant to ac­
quittal.



52

We advert, in conclusion, to a possible concern 
based on the procedural difficulties apprehended if 
a number of State criminal prosecutions are trans­
ferred to the federal courts. The short answer is 
that those questions are premature. Again, we invoke 
the opinion of the Court in Tennessee v. Davis, supra, 
100 TT.S. at 271-272:

* * * The imaginary difficulties and incon­
gruities supposed to be in the way of trying in 
the Circuit Court an indictment for an alleged 
offence against the peace and dignity of a State, 
if they were real, would be for the consideration 
of Congress. But they are unreal. While it is 
true there is neither in sect. 643, nor in the act 
of which it is a re-enactment, any mode of pro­
cedure in the trial of a removed case prescribed, 
except that it is ordered the cause when re­
moved shall proceed as a cause originally com­
menced in that court, yet the mode of trial is 
sufficiently obvious. The circuit courts of the 
United States have all the appliances which 
are needed for the trial of any criminal case. 
They adopt and apply the laws of the State in 
civil cases, and there is no more difficulty in 
administering the State’s criminal law. They 
are not foreign courts. The Constitution has 
made them courts within the States to admin­
ister the laws of the States in certain cases; 
and, so long as they keep within the jurisdiction 
assigned to them, their general powers are ade­
quate to the trial of any case. The supposed 
anomaly of prosecuting offenders against the 
peace and dignity of a State, in tribunals of the 
general government, grows entirely out of the



53

division of powers between that government and 
the government of a State; that is, a division 
of sovereignty over certain matters. When this 
is understood (and it is time it should be), it 
will not appear strange that, even in cases of 
criminal prosecutions for alleged offences 
against a State, in which arises a defence under 
United States law, the general government 
should take^ cognizance of the case and try it 
in its own courts, according to its own forms 
of proceeding.

C. THE REMOVAL STATUTE PROTECTS ALL RIGHTS TO
EQUALITY FREE OF RACIAL DISCRIMINATION, AND THE
ASSOCIATED RIGHTS OF ADVOCACY AND PROTEST

In its original version, as Section 3 of the Civil 
Rights Act of 1866, the removal statute referred only 
to rights protected by Section 1 of the same law 33 * 35— 
carried forward today as 42 U.S.C. 1981-1982.36 As 
we have already noticed, the provision alluded to 
guaranteed the Negro equality in basic legal relations, 
including the “same right * * * to sue, be [a] 
part[y], and give evidence * * * as is enjoyed by 
white citizens,” a right to the “ full and equal benefit

33 The reference in the “color of authority” clause to “the act
establishing a Bureau for the relief of Freedmen and Refugees, 
and all acts amendatory thereof” {supra, p. 15) is irrelevant to 
our discussion because those enactments added nothing to the
substantive or procedural rights of the freedmen. See Act of 
March 3, 1865, 13 Stat. 507; Act of July 16, 1866, 14 Stat. 173.

36 For present purposes, we may ignore the broadening of 
what is now 42 U.S.C. 1981 to include “all persons”, rather than 
“citizens” only, and the additional immunity from unequal 
“taxes, licenses, and exactions.” These changes derive from 
§ 16 of the Enforcement Act of May 31, 1870, 16 Stat. 140, 144.



54

of all laws and proceedings for the security of person 
and property,” and an immunity from any “punish­
ment, pains, and penalties” (except those to which 
whites were subject. That plainly states a guarantee 
against denial of any procedural right on account of 
race. So much has been clear from the beginning. 
See Strauder v. West Virginia, 100 U.S. 303, 311-312. 
Thus, there can be no doubt that racially discrimina­
tory deprivation of courtroom rights (under the “ can­
not enforce” clause) and unequal enforcement of the 
law on grounds of race (under the “ denial” clause) 
have always been within the protection of the removal 
statute. The more important question is what sub­
stantive rights are included within the “ color of au­
thority” clause (and, also, in some circumstances 
within the “ denial” clause).

For that determination, we turn to the text of the 
civil rights removal statute as it appeared in the 
Revised Statutes of 1874—which, in this respect, is 
essentially the same today. No one questions the 
propriety of abandoning the 1866 provision for this 
purpose. Nor is there any basis for objection. That 
the original text referred alone to the Act of 1866 
was quite natural, since, at the time, it was the only 
law conferring rights of equality. The removal pro­
visions of the Civil Rights Act of 1866, however, were 
adopted by reference in subsequent civil rights legis­
lation37 and it was appropriate for the Revisers of

37 See § 18 of the Enforcement Act of May 31, 1870, 16 Stat. 
140, 144; §§ 1 and 2 of the Ku Klux Act of April 20, 1871, 
17 Stat. 13-14.



55

1874 to define the rights protected by employing 
generic language. Besides, the provision of 1874 
has stood unchallenged for almost a century and (to 
paraphrase the words of Mr. Justice Holmes in a 
comparable case) “ we cannot allow the past so far 
to affect the present as to deprive citizens of the 
United States of the general protection which on its 
face [Section 1443] most reasonably affords.” 
United States v. Mosley, 238 U.S. 383, 388. That 
statute (R.S. § 641) speaks of “right[s] secured” by, 
or acts done “under color of authority” of, “any 
law providing for equal [civil] rights.” The question 
is what “ laws” are included.

We think it unnecessary to now decide the full 
sweep of those words. I t  is sufficiently clear that 1 
they describe, generically, an open-ended category, 
including at least all laws which are couched in terms 
of equality. Among these are the following provi­
sions of Title 42 of the United States Code: Section 
1971 (barring voting discrimination on account of 
thie) ; Section 1981 (granting equal procedural rights 
and equal rights to make and enforce contracts and 
guaranteeing equal protection of the laws) ; Section 
1982 (granting equal rights with respect to real and 
personal property); Section 1985(3) (prohibiting
conspiracies to deprive persons “of the equal protec­
tion of the laws, or of equal privileges and immuni­
ties under the laws” ) ; Section 200a (granting a 
right to equal enjoyment of the benefits of places of 
public accommodation); and Section 2000e (guar­
anteeing equal employment opportunities). These



56

laws carry out the guarantees of the Equal Protec­
tion Clause of the Fourteenth Amendment and of the 
Fifteenth Amendment against discrimination on ac­
count of race. For present purposes, we need look 
no further. We have no occasion here to resolve the 
difficult question whether the removal statute also pro­
tects the broader category of rights secured by the 
Equal Protection and Due Process Clauses and other 
provisions of the Constitution, which are vindicated 
under Section 242 of the Criminal Code and its civil 
analogue, 42 U.S.C. 1983.

In resting our submission on laws providing for 
equal rights as against discrimination on account of 
race, we intend, however, to include all corollary 
rights. Without purporting to define here the limits 
of that “penumbra,” it seems clear that the right to 
be free from racial discrimination in legal relations 
encompasses some privilege peaceably to advocate 
equality and to protest its denial by official action (or 
inaction). To be sure, the First and Fourteenth 
Amendments guarantee a right of expression inde­
pendently of the context. But it may also be viewed 
as an aspect of the right to equality before the law 
when the advocacy or protest is proximately related 
to the exercise (or denial) of the underlying equali- 
tarian guarantee—and the conduct does not overstep 
proper bounds. See N.A.A.C.P. v. Button, 371 IT.S. 
415, 428—431; N.A.A.C.P. v. Alabama, 377 U.S. 288, 
360-307. In those circumstances, we submit, the re­
moval statute is applicable.



57

D. THE REMOVAL PETITIONERS ARE ENTITLED TO AN
OPPORTUNITY TO SHOW A RIGHT OF REMOVAL UNDER
BOTH PARAGRAPHS OF SECTION 1443

We have discussed the questions presented ab­
stractly because of the posture of the cases in this 
Court. Remand was ordered in the district court on 
the face of the pleadings, without any development 
of the facts which control the issue of removal. See 
R. 9, 70, 89-90, 92-93, 94- 95. The ruling, in each 
instance, was predicated on a construction of Section 
1443 which would authorize removal only if the peti­
tioners could point to a State statute which was dis­
criminatory and void on its face—no matter what 
other allegations or proofs were offered. See R. 
13-17, 75-87. In short, the district court has never 
considered the question of removability under the 
correct standards, and it would be premature, at this 
stage, to attempt to finally resolve the matter with 
respect to each petitioner before the relevant facts 
are more clearly stated.

On the other hand, the petitions for removal do 
suggest an arguable basis for removal under both 
paragraphs of Section 1443 (assuming our construc­
tion of the provision). As the court of appeals con­
cluded (R. 24), they may fairly be read to allege 
racially discriminatory prosecutions instituted for the 
purpose of harassment. See R. 4, 38-39. This allega­
tion, if sustained on an adversary hearing, would 
justify removal under paragraph (1) of Section 1443 
(the “ denial” clause) and require dismissal of the 
charges. Accordingly, we agree with the court below



58

that the cases must be remanded to the district court 
for a hearing of this claim. To that extent, we sub­
mit the judgment should be affirmed.

We disagree with the court of appeals, however, 
insofar as it finally denied removal under paragraph 
(2) of Section 1443. Because of its view that this 
provision in no event extends to private persons who 
are not acting at the direction of federal officers, the 
court had no occasion to test the sufficiency of the 
removal petitions under the second paragraph. 
While the allegations are largely conelusory, it ap­
pears that each of the petitioners has attempted to 
bring himself under the “ color authority” clause. 
See R. 4, 37, 38, 41-42, 47-63. More precise particu­
larization of the conduct in which they were engaged 
at the time of their arrests and of its relation to the 
exercise of rights protected by the removal statute 
will show whether removal under Section 1443(2) is 
appropriate. In our view, the petitioners are en­
titled to an opportunity to make that showing. 
Doubtless, the facts will sufficiently appear on the 
hearing ordered under paragraph (1) of the statute. 
But the question is not the same; should they fail to 
show grounds for an outright dismissal of the 
charges, petitioners may yet be entitled to a removal 
of the cases for trial in the district court. Accord­
ingly, we submit that, to this extent, the judgment 
below should be vacated to permit the district court 
to also consider, on remand, whether removal is 
proper under Section 1443(2).



59

CONCLUSION

The judgment below should be affirmed insofar as 
it directs a hearing on removability, but vacated in­
sofar as it denies removal on an alternative ground, 
and the cause should be remanded to the district court 
for further proceedings as indicated in the preceding 
paragraph.

Respectfully submitted.
T h u r g o o d  M a r s h a l l ,

Solicitor General. 
J o h n  D oar ,

Assistant Attorney General. 
Louis F .  C l a ib o r n e , 

Assistant to the Solicitor General. 
D avid  L . N o r m a n ,
L o u is  M . K a l d e r ,

Attorneys.
M a r c h  1966.

U .S .  GOVERNMENT PRINTING O F F I C E : 1 9 6 6