City of Greenwood, MS v. Peacock Brief Amicus Curiae
Public Court Documents
March 1, 1966

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Brief Collection, LDF Court Filings. City of Greenwood, MS v. Peacock Brief Amicus Curiae, 1966. 3b23e2a6-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/15db4017-a643-4633-bba9-8c79adc06168/city-of-greenwood-ms-v-peacock-brief-amicus-curiae. Accessed July 09, 2025.
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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