Frinks v. North Carolina Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    In The
SUPREME COURT OF THE UNITED STATES 

October Term, 1972
No. 7  Cl ~ S &

GOLDEN FRINKS,
Petitioner,

v.

STATE OF NORTH CAROLINA

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 
APPEALS FOR THE FOURTH CIRCUIT

JACK GREENBERG 
JONATHAN SHAPIRO

10 Columbus Circle 
New York, N. Y. 10019

JAMES KEENAN
811 West Main Street 
Durham, N. C.

Attorneys for Petitioner



V

I N D E X
Page

Opinion Below ........................................  1
Jurisdiction ........................................  1
Questions Presented ..................................  2
Statutes Involved ....................................  2
Statement of the C a s e ................................  5
Reasons for Granting the W r i t ........................  8

I. Certiorari Should Be Granted Because the 
Decision of the Court of Appeals Seriously 
Undermines the Protection Afforded the 
Exercise of Civil Rights by This Court's 
Decision in Georgia v. Rachel, 384 U.S.
780 (1966)...................................  8

II. Certiorari Should Be Granted to Resolve 
the Conflict Between the Decision of the 
Court Below and Decisions of the Court 
of Appeals for the Fifth Circuit..............  13

Conclusion..........  15
Appendix:

Opinion of the Court of A p p e a l s ................  la
Opinion of the District C o u r t ..................  20a

Table of Cases:
Achtenberg v. Mississippi, 393 F.2d 428 (5th Cir.

1967)   13,15
City of Baton Rouge v. Douglas, 446 F.2d 874 (5th

Cir. 1971)......................................  13
Duncan v. Perez, 445 F.2d 557 (5th Cir. 1967)   15
Georgia v. Rachel, 384 U.S. 780 (1966) . . . 2,8,9,10,11,12,

13,14
Greenwood v. Peacock, 384 U.S. 808 (1966)............  10
Hamm v. City of Rock Hill, 370 U.S. 306 (1965) . . . .  11
Kentucky v. Powers, 201 U.S. 1 (1906)................  11
United States v. McLeod, 385 F.2d 734 (5th Cir. 1967) . 15

►

1

i



Cases (continued) Page

Walker v. Georgia, 405 F.2d 1191 (5th Cir. 1969) . . .  13
Walker v. Georgia, 417 F.2d 1 (5th Cir. 1968) . . .  13,15
Wilson v. Republic Iron and Steel Co., 357 U.S. 92

(192.1) .......................................... 11
Wyche v. Hester, 431 F.2d 791 (5th Cir. 1970) . . . .  15
Wyche v. Louisiana, 394 F.2d 927 (5th Cir. 1967) . . .  13

Statutes:
28 U.S.C. § 1254(1)   1
28 U.S.C. § 1443(1) ............................  2,6,8,9
42 U.S.C. § 2000a (Civil Rights Act of 1964,

§ 2 0 1) ................................................  2 ,3 ,6 , 8

42 U.S.C. § 2000a-2 (Civil Rights Act of 1964,
§ 203)   5,6,8,10,11,13

1 1



In The

SUPREME COURT OF THE UNITED STATES 
October Term, 1972 

No.

GOLDEN FRINKS,
Petitioner,

v.

STATE OF NORTH CAROLINA.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 
APPEALS FOR THE FOURTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for the 
Fourth Circuit entered on October 4, 1972.

Opinions Below

The opinion of the Court of Appeals is not yet reported 
and is set forth in the Appendix (A. la). The opinion of the 
United States District Court for the Eastern District of North 
Carolina is reported at 333 F. Supp. 169 (E.D. N.C. 1971) and 
is set forth in the Appendix (A. 20a).

Jurisdiction

The judgment of the Court of Appeals for the Fourth Circuit



was entered on October 4, 1972. Petitioner's time within which 
to file a petition for writ of certiorari was extended until 
December 3, 1972, by order of the Chief Justice dated 
November 2, 1972. Jurisdiction of this Court is invoked pur­
suant to 28 U.S.C. § 1254(1).

Questions Presented

The Court of Appeals held that petitioner was not entitled 
to an evidentiary hearing to prove the allegations of his 
federal removal petition that state criminal prosecutions had 
been commenced against him solely for the purpose of punishing 
him for the exercise of rights secured by § 201 of the Civil 
Rights Act of 1964.

1. Is this decision in conflict with this Court's decision 
in Georgia v. Rachel, 384 U.S. 780 (1966)?

2. Should the conflict between the decision below and 
decisions of the Court of Appeals for the Fifth Circuit be 
resolved in favor of the Fifth Circuit rule which entitles a 
removal petitioner to such a hearing?

Statutes Involved

1. 28 U.S.C. § 1443(1) provides:
§ 1443. Civil rights cases

Any of the following civil actions or 
criminal prosecutions, commenced in a State 
Court may be removed by the defendant to 
the district court of the United States for 
the district and division embracing the 
place wherein it is pending:

(1) Against any person who is denied or 
cannot enforce in the courts of such State

2



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. 42 U.S.C. § 2000a (§ 201 of the Civil Rights Act of
1964) provides:

§ 2000a. Prohibition against discrimination or 
segregation in places of public accom­
modation—  Equal access

(a) All persons shall be entitled to the full 
and equal enjoyment of the goods, services, facil­
ities, privileges, advantages, and accommodations 
of any place of public accommodation, as defined 
in this section, without discrimination or segre­
gation on the ground of race, color, religion, or 
national origin.

(b) Each of the following establishments 
which serves the public is a place of public 
accommodation within the meaning of this sub­
chapter if its operations affect commerce, or 
if discrimination or segregation by it is sup­
ported by State action:

(1) any inn, hotel, motel, or other 
establishment which provides lodging to 
transient guests, other than an establish­
ment located within a building which con­
tains not more than five rooms for rent
or hire and which is actually occupied by 
the proprietor of such establishment as 
his residence;

(2) any restaurant, cafeteria, lunch­
room, lunch counter, soda fountain, or 
other facility principally engaged in 
selling food for consumption on the prem­
ises, including, but not limited to, any 
such facility located on the premises of 
any retail establishment; or any gasoline 
station;

(3) any motion picture house, theater, 
concert hall, sports arena, stadium or 
other place of exhibition or entertain­
ment; and

(4) any establishment (A) (i) which
is physically located within the premises 
of any establishment otherwise covered by

3



this subsection, or (ii) within the premises 
of which is physically located any such 
covered establishment, and (B) which holds 
itself out as serving patrons of such covered 
establishment.
(c) The operations of an establishment affect 

commerce within the meaning of this subchapter if
(1) it is one of the establishments described in 
paragraph (1) of subsection (b) of this section;
(2) in the case of an establishment described in 
paragraph (2) of subsection (b) of this section, 
it serves or offers to serve interstate travelers 
or a substantial portion of the food which it 
serves, or gasoline or other products which it 
sells, has moved in commerce; (3) in the case of 
an establishment described in paragraph (3) of 
subsection (b) of this section, it customarily 
prevents films, performances, athletic teams, 
exhibitions, or other sources of entertainment 
which move in commerce; and (4) in the case of 
an establishment described in paragraph (4) of 
subsection (b) of this section, it is physically 
located within the premises of, or there is 
physically located within its premises, an 
establishment the operations of which affect 
commerce within the meaning of this subsection. 
For purposes of this section, "commerce" means 
travel, trade, traffic, commerce, transporta­
tion, or communication among the several States, 
or between the District of Columbia and any 
State, or between any foreign country or any 
territory or possession and any State or the 
District of Columbia, or between points in the 
same State but through any other State or the 
District of Columbia or a foreign country.

(d) Discrimination or segregation by an 
establishment is supported by State action 
within the meaning of this subchapter if such 
discrimination or segregation (1) is carried 
on under color of any law, statute, ordinance, 
or regulation; or (2) is carried on under 
color of any custom or usage required or 
enforced by officials of the State or political 
subdivision thereof; or (3) is required by 
action of the State or political subdivision
thereof.

(e) The provisions of this subchapter 
shall not apply to a private club or other 
establishment not in fact open to the public, 
except to the extent that the facilities of 
such establishment are made available to the

4



customers or patrons of an establishment within 
the scope of subsection (b) of this section.
Pub.L. 88-352, Title II, § 201, July 2, 1964,
78 Stat. 243.

3. 42 U.S.C. § 2000a-2 (§ 203 of the Civil Rights Act
of 1964) provides:

§ 2000a-2. Prohibition against deprivation of, 
interference with, and punishment 
for exercising rights and privileges 
secured by section 2000a or 2000a-l 
of this title

No person shall (a) withhold, deny, or 
attempt to withhold or deny, or deprive or 
attempt to deprive, any person of any right 
or privilege secured by section 2000a or 
2000a-l of this title, or (b) intimidate, 
threaten, or coerce, or attempt to intimi­
date, threaten, or coerce any person with 
the purpose of interfering with any right 
or privilege secured by section 2000a or 
2000a-l of this title, or (c) punish or 
attempt to punish any person for exercising 
or attempting to exercise any right or privi­
lege secured by section 2000a or 2000a-l of 
this title.
Pub.L. 88-352, Title II, § 203, July 2, 1964,
78 Stat. 244.

Statement of the Case

Petitioner Golden Frinks is a black civil rights worker 
who has long been active in the "Wilmington Movement," an organ­
ization of black citizens of New Hanover County, North Carolina, 
which, through peaceful protest marches, demonstrations and 
boycotts, has sought to eliminate racial discrimination and to 
publicize the grievances of black citizens. On June 19, 1971, 
petitioner sought to remove to federal court from the General 
Court of Justice of New Hanover County two criminal prosecutions

5



charging him with the crimes of riot and inciting to riot. 
Petitioner was charged with having incited and engaged in 
riots in two different business establishments in Wilmington, 
North Carolina, on June 9, 1971 (A. 8a-9a). In his verified 
removal petition, petitioner alleged that both establishments 
were places of public accommodation within the meaning of 
§ 201 of the Civil Rights Act of 1964 (hereinafter referred to 
as the "Act") and that the charges arose entirely out of his 
peaceful attempts to exercise his right to nondiscriminatory 
service there (A. 10a). He further alleged that the prosecu­
tions themselves violated § 203 of the Act because they con­
stituted an attempt to punish him for the exercise of this 
right (A. 10a).

On motion of the State of North Carolina, the district 
court remanded the prosecutions to the General Court of Justice 
on October 29, 1971. Although the district court recognized 
that the petition sufficiently alleged that petitioner was 
being prosecuted because of his peaceful exercise of an equal 
civil rights within the meaning of 28 U.S.C. § 1443(1), it 
refused to hold an evidentiary hearing to resolve the disputed 
factual issues of whether petitioner was being prosecuted 
solely because of his peaceful attempt to obtain service or 
because he had engaged in riotous conduct (A. 28a). Instead, 
it assumed the truthfulness of the riot charges against peti­
tioner and remanded the prosecutions to the state court on the 
ground that petitioner had no federal right to engage in violent 
conduct (A. 27a).

6



A divided Court of Appeals affirmed on much the same 
reasoning. The majority concluded that for the purpose of 
removal jurisdiction state charges which allege some element 
of violence must be accepted as true and no evidentiary hear­
ing is justified (A. 7a). Since "there is no federally 
protected right to engage in a riot," the remand order was 
affirmed (A. 4a).

Judge Sobeloff would have reversed on the ground that
petitioner was entitled to an evidentiary hearing to prove the
allegations of his petition. He contended that:

Whenever the state prosecutes a person and he 
petitions for removal to the federal district 
court, alleging that he is being prosecuted 
solely for having peacefully exercised rights 
immunized by Section 203(c), the district 
court should hold a hearing to determine the 
validity of the petitioner's claim. State 
action cannot be shielded from scrutiny by a 
prosecutor’s decision to choose one rather 
than another appellation to denote an activity.
Only by requiring such an evidentiary hearing 
can we insure that protected activity will not 
be punished by criminal prosecution (A. 19a) 
(emphasis in original).

7



REASONS FOR GRANTING THE WRIT

I.
Certiorari Should Be Granted Because the Decision 
of the Court of Appeals Seriously Undermines the 
Protection Afforded the Exercise of Civil Rights 
by This Court's Decision in Georgia v. Rachel,
384 U.S. 780 (1966).

The decision of the Court of Appeals threatens the continued 
vitality of civil rights removal jurisdiction as delineated by 
this Court in Georgia v. Rachel, 384 U.S. 780 (1966). In 
Rachel, it was held that the requirements for removal under 
28 U.S.C. § 1443(1) were met when the removal petitioner was 
being criminally prosecuted in a state court solely because of 
his exercise of a right secured by § 201 of the Civil Rights 
Act of 1964. In the present case, as in Rachel. petitioner 
alleged that he peacefully sought to exercise his right to 
obtain service in a place of public accommodation covered by 
the Act and that the state criminal charges constituted an 
attempt to punish him for the exercise of this right in viola­
tion of § 203 of the Act.

Despite the fact that petitioner's claim is virtually 
identical to the claim in Rachel, the Court of Appeals held 
that petitioner was not entitled to removal because the conduct 
with which he was charged— riot and inciting to riot— was not 
protected by the Act. Although the court recognized that the 
allegations of the removal petition raised a substantial factual 
issue as to whether petitioner's federal rights were violated, 
it held that he was not entitled to an evidentiary hearing for

8



the purpose of proving his claim and assumed the truth of the 
criminal charges. According to the Court of Appeals, there­
fore, removal is available only where a court can determine 
that the petitioner is being prosecuted for conduct that is 
protected by a federal equal rights statute solely upon the 
basis of reading the criminal charges against him. Where, 
as in the present case, the state merely alleges that the peti­
tioner engaged in criminal conduct which is not so protected, 
the petitioner is given no opportunity to prove that the 
prosecution is merely a disguised attempt to punish him for 
federally protected conduct.

But such a test for removal under 28 U.S.C. 1443(1) flies 
directly in the face of Rache1 which explicitly recognized the 
right of the removal petitioner to an evidentiary hearing to 
establish the truth of the allegations of his petition. In 
Rachel the petitioners were prosecuted for trespass based upon 
their refusal to leave the restaurant at which they were seek­
ing service when requested to do so. They alleged in their 
removal petition that the prosecutions violated their rights 
under the Act to nondiscriminatory service because they had 
been refused service and asked to leave solely on account of 
their race. This Court held that the prosecutions were 
removable if the allegations that the denial of service was a 
result of racial discrimination were true and that the peti­
tioners were entitled to an evidentiary hearing at which they 
would have the "opportunity to establish that they were ordered 
to leave the restaurant facilities solely for racial reasons" 
(384 U.S. at 805).

9



The Court of Appeals sought to distinguish the present case
from Rachel on the ground that when a person is charged with 
trespass it is far more likely that he is actually being prose­
cuted for conduct protected by the Act than when he is charged 
with a crime of which violence is an essential element such as 
riot and inciting to riot. Because of the "far greater prob- 
bility" that the petitioner will be able to prove that he is 
being denied rights protected by the Act when he is charged 
with trespass,, an evidentiary hearing is justified (A. 6a) .
He is not entitled to such a hearing, however, where an essen­
tial element of the charge against him is violence because as 
an "exercise in probability prediction" it is much less likely
that he will be able to show that he is being prosecuted for

1/federally protected conduct (A. 6a).
Not only, as Judge Sobeloff points out, is the logic of 

this distinction elusive, but it finds no support whatsoever 
in Rachel. Rachel recognized that the removal of a state crim­
inal prosecution depended upon the federal court being able to 
make a "firm prediction that the defendant would 'be denied or 
cannot enforce' the specified federal rights in the state 
court" (384 U.S. at 804). Although past cases had required a 
showing of a facially discriminatory state statute as a basis 
for such a "firm prediction," Rachel held that an equally firm

1/ The Court of Appeals cites Greenwood v. Peacock, 384 U.S. 
808 (1966), in support of its denial of an evidentiary hearing 
to petitioner (A. 5a). But, as Judge Sobeloff notes in his 
dissenting opinion, Peacock stands only for the proposition 
that removal is not available where the petitioner does not 
invoke a federal equal civil rights statute containing a pro­
vision, like that of § 203 of the Act, which prohibits any 
prosecution for conduct protected by the statute (A. 13a).

10



prediction could be made by a showing that a pending prosecu­
tion in and of itself would violate the petitioner's equal 
civil rights. Since Hamm v. City of Rock Hill. 370 U.S. 306 
(1965), interpreted § 203 of the Act as an absolute prohibition 
of any prosecution of persons for the exercise of rights secured 
by the Act, the mere pendency of the prosecution of the peti­
tioners in Rachel violated their rights under § 203 and enabled 
the federal court to make the "clear prediction" necessary to 
support removal. Thus, the prediction that a federal court 
must make under Rachel is of whether the petitioner's equal 
civil rights will be denied in state court if the allegations 
of his petition are true, and not, as the Court of Appeals 
erroneously believed, a prediction of the likelihood that the 
petitioner will be able to prove his allegations.

The difference is crucial. Rachel mandates the exercise 
of civil rights removal jurisdiction whenever a person is 
criminally prosecuted for the exercise of rights protected by 
the Act, and directs a federal court to conduct a factual 
inquiry to determine if he is being so prosecuted. Not only 
does this procedure accord the respect that is due to the 
important federal rights which are alleged to have been violated, 
t*ut it is consistent with accepted federal practice in dealing 
with removal petitions, whether in civil rights cases or 
others. See Kentucky v. Powers, 201 U.S. 1, 33-35 (1906);
Wilson v. Republic Iron and Steel Co.. 357 U.S. 92, 97-98 (1921). 
On the other hand, the decision of the Court of Appeals places 
a staggering and unprecedented obstacle in the way of the 
removal petitioner. For it requires him to somehow establish

11



the "great probability" that he will be able to prove that his 
federal rights will be denied in the state court before he is 
even entitled to an evidentiary hearing at which to prove the 
allegations of his petition.

The practical effect, then, of the decision below is to 
limit removal jurisdiction to prosecutions for trespass, 
despite the removal petitioner's allegation that the prosecutor 
is using a bogus criminal charge as a means of punishing peti­
tioner's federally protected conduct. Such an interpretation 
undermines this Court's decision in Rachel because it conditions 
the important protection which removal affords to the exercise 
of rights conferred by the Act upon the characterization given 
by the prosecution to the conduct in question. Thus, the 
arresting officer or the complainant can easily defeat the 
removal of a prosecution designed to punish federally protected 
conduct by charging the defendant with a crime of violence. As 
Judge Sobeloff points out in his dissenting opinion:

If the State wishes to "punish" an individual 
for exercising protected rights, and it is known 
that a trespass prosecution will be removed to 
federal court while a charge of inciting to riot 
will not be removed, it seems more likely that 
the State will charge the person with inciting 
to riot rather than trespass" (A. 19a).

The decision of the Court of Appeals, therefore, eviscerates 
one of the most effective remedies for the misuse of state crim­
inal process to punish persons seeking to vindicate rights under 
federal statutes providing for equal civil rights in one of the 
two federal circuits where it is most needed. It severely 
dilutes the rights which Congress specially sought to immunize

12



in § 203 of the Civil Rights Act of 1964 and all but nullifies
this Court's decision in Georgia v. Rachel, supra.

II.
Certiorari Should Be Granted to Resolve 
the Conflict Between the Decision of the 
Court Below and Decisions of the Court 
of Appeals for the Fifth Circuit.

Attempts to nullify the protection of civil rights removal 
jurisdiction by charging persons peacefully seeking to exercise 
their rights under federal equal civil rights statutes with 
crimes other than trespass have resulted in a line of deci­
sions in the Fifth Circuit that is squarely in conflict with the 
decision below. See City of Baton Rouge v. Douglas, 446 F.2d 
874 (5th Cir. 1971); Walker v. Georgia, 417 F.2d 1, 5 (5th 
Cir. 1969); Walker v. Georgia, 405 F.2d 1191 (5th Cir. 1969); 
Wyche v. Louisiana. 394 F.2d 927 (5th Cir. 1967); Achtenberg 
v. Mississippi. 393 F.2d 428 (5th Cir. 1967).

In Walker v. Georgia, 417 F.2d 1 (5th Cir. 1969), for 
example, after the petitioner's conviction for trespass arising 
out of a peaceful attempt to obtain service at a racially segre­
gated place of public accommodation had been reversed by this 
Court on direct appeal, she was reindicted for riot, malicious 
mischief and other offenses against public order as well as for 
trespass. The petitioner sought to remove these prosecutions 
to federal court on the ground that they were based solely upon 
the same peaceful attempt to secure nondiscriminatory service 
for which she had previously been convicted of trespass.
Although the district court held that the petitioner was entitled

13



to remove the trespass prosecution on the authority of Rachel,
it remanded the other prosecutions to state court on the ground
that they did not charge conduct protected by the Act. The
Fifth Circuit reversed, holding that:

The petition for removal is to be determined not 
by the appellation or euphemism of the charge, 
but by what the movant was actually doing. As 
we held today in Forman v. Georgia, the right 
of removal of a state criminal prosecution has 
not been restricted by the Supreme Court to the 
small group of cases in which a state prosecu­
tion for trespass seeks to forbid the enjoyment 
of the right to equal accommodations guaranteed 
under Title II of the Civil Rights Act of 1964. 
[Citations omitted.] It is what the movant was 
actually doing with respect to the exercise of 
his statutory federally protected right, as 
determined in a hearing for removal, that con­
trols and not the characterization given to the 
conduct in question by a state prosecution.
[Citations omitted.] It is well settled that 
Section 1443(1) civil rights removal cases 
require a sufficient evidentiary hearing on the 
merits of the charges to determine whether the 
defendants are actually being prosecuted solely 
for peacefully attempting to gain equal access 
to places of public accommodations. (417 F.2d 
at 5.) (Emphasis in original.)

The conflict between the Fourth and Fifth Circuits in the 
scope of protection afforded by removal jurisdiction should be 
resolved in favor of the Fifth Circuit rule which entitles a 
removal petitioner to an evidentiary hearing. The decision below 
of the Fourth Circuit is based upon the demonstrably false 
premise that criminal complaints which on
their face charge conduct that is unprotected by federal law 
are likely to be true. The experience of the Fifth Circuit which 
has frequently found on the basis of a factual inquiry that per­
sons engaged in the peaceful exercise of federal rights have 
been prosecuted in state courts on trumped up charges discredits

14



such an assumption. See, e.g., Walker v. Georgia, 417 F.2d 1
5 (5th Cir. 1969); Achtenberg v. Mississippi, 393 F.2d 428 
(5th Cir. 1967); see also, Duncan v. Perez, 445 F.2d 557 (5th 
Cir. 1967); Wyche v. Hester, 431 F.2d 791 (5th Cir. 1970);
United States v. McLeod, 385 F.2d 734 (5th Cir. 1967). The 
Fifth Circuit rule, on the other hand, responds to the overriding 
interest in insuring that the protection afforded the exercise 
of important federal rights will not be circumvented by 
sophisticated prosecutors and policemen.

CONCLUSION

For the foregoing reasons, petitioner prays that his 
petition for writ of certiorari be granted.

Respectfully submitted.

JACK GREENBERG 
JONATHAN SHAPIRO

10 Columbus Circle 
New York, N. Y. 10019

JAMES KEENAN
811 West Main Street 
Durham, N. C.

Attorneys for Petitioner

15



X I d N 3 d d V



Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

No. 71-2125
Golden Frinks, Janice 
Murray, and Anthony R. 
Henry,

versus
Appellants,

State of North Carolina,
Appellee.

No. 72-1202
.) iI f f

George;Kirby,
) Appellant,

versus
State of North Carolina,

Appellee.

Appeals from the United States District Court for the 
Eastern District of North Carolina, at Wilmington. 
Algernon L. Butler, Chief Judge.

(Argued May 30, 1972 Decided October 4, 1972.)

Before SOBELOFF, Senior Circuit Judge, and WINTER and 
CRAVEN, Circuit Judges.

James E. Keenan (Paul and Keenan on Brief) for Appellants 
in No. 71-2125; Thomas F. Loflin, III (Loflin, Anderson 
and Loflin on Brief) for Appellant in No. 72-1202; James 
T. Stroud, Jr., District Solicitor, Fifth Judicial 
District, for Appellee in Nos. 71-2125 and 72-1202.



CRAVEN, Circuit Judge:

Golden Frinks and George Kirby appeal from orders of the 
United States District Court for the Eastern District of 
North Carolina remanding to the North Carolina courts prose­
cutions against them which they had removed to the federal 
court pursuant to 28 U.S.C.A. § 1443(1). We think the district 
court correctly found that their petitions did not allege 
facts sufficient to sustain removal, or to require a hearing 
on removability, and affirm.

Frinks and Kirby are charged by the State of North 
Carolina with engaging in a riot in violation of N.C.G.S.
§ 14-288.2 (a) & (b) :

§ 14-288.2. Riot; inciting to riot; 
punishments.--(a) A riot is a public dis­
turbance involving an assemblage of three or 
more persons which by disorderly and violent 
conduct, or the imminent threat of disorderly 
and violent conduct, results in injury or 
damage to persons or property or creates a 
clear and present danger of injury or damage 
to persons or property.

(b) Any person who wilfully enages in 
a riot is guilty of a misdemeanor . . . .

Frinks is charged also with inciting to riot in violation of
N.C.G.S. § 14-288.2(d):

(d) Any person who wilfully incites or 
urges another to engage in a riot, so that as 
a result of such inciting or urging a riot 
occurs or a clear and present danger of a 
riot is created, is guilty of a misdemeanor

The removal petitions rest on 28 U.S.C.A. § 1443(1), which
provides as follows:

§ 1443. Civil rights cases
Any of the following civil actions or 

criminal prosecutions, commenced in a State

2a



court may be removed by the defendant to the 
district court of the United States for the 
district and division embracing the place 
wherein it is pending:

(1) Against any person who is denied 
or cannot enforce in the courts of such State 
a right under any law providing for the equal 
civil rights of citizens of the United States, 
or of all persons within the jurisdiction 
thereof . . . .

Except for references to the inciting-to-riot charges against 
Frinks, the petitions for removal are identical and in perti­
nent part are set out in Appendix A.

By way of summary, the petitions allege that Mr. Frinks 
and Mr. Kirby have been engaged in lawful civil rights 
marches, demonstrations and boycotts; that such activities 
have been peaceful and nonviolent; that even so the State has 
attempted to punish the petitioners for their having exercised,

i !or attempting to exercised, rights and privileges secured by 
Title 2 of the 1964 Civil Rights Act; and that for the purpose

A
of chilling the exercise of such rights the State has falsely 
charged petitioners with rioting in two business establishments 
which are places of public accommodation within the meaning of 
42 U.S.C.A. § 2000a(b).

Petitioners do not admit that they were present on the 
premises of the two business establishments, but allege that 
"if petitioners have ever been so present," their conduct has 
been peaceful and not in violation of the laws of North 
Carolina. Petitioners neither admit nor deny the charge 
contained in the warrants that some 20 persons entered the 
business establishments and threw merchandise on the floor and 
overturned merchandise racks in violation of N.C G.S. § 14-288.2.

3a



Thus the defenses to the criminal charges, as alleged in the 
petitions for removal, are that (a) these petitioners were 
not present at the places of disturbance, or (b) if present, 
these petitioners were nonviolent and did not participate 
and did not participate in any riot that may have occurred.

We wholeheartedly agree with petitioners that they have 
a federal right not to be prosecuted because of their race 
for peacefully seeking to enjoy public accommodations. 42 
U.S.C.A. §§ 2000a (a) & 2000a-2 (c); Hamm v. Rock Hill, 379 U.S. 
306 (1964); Georgia v. Rachel, 384 U.S. 780 (1966). But we 
also agree with the State that there is no federally protected 
right to engage in a riot.

[N]o federal law confers an absolute right on 
private citizens— on civil rights advocates, 
on Negroes, or on anybody else--to obstruct a 
public street, to contribute to the delinquency 
of a minor, to drive an automobile without a 
license, or to bite a policeman. . . . [N]o 
federal law confers immunity from state prose­
cution on such charges.

Greenwood v. Peacock, 384 U.S. 808, 826-27 (1966).
The problem is simply a factual one. Has the State 

undertaken to persecute and oppress these petitioners because 
of State antagonism to the federally protected right of all 
persons to enjoy public accommodations, or has the State, 
recognizing the supremacy of federal law, undertaken the prose­
cutions only to protect the property and safety of its citizens 
from the danger of riot?

Unfortunately, the facts are not ascertainable without 
a hearing--either in a federal or state court. We agree with 
Judge Godbold that "In Peacock the Supreme Court has directed

4a



the federal courts away from making factual inquiries approach­
ing that of trial of the merits as an incident of determining 
removability." Achtenberg v. Mississippi, 393 F.2d 468, 477 
(5th Cir. 1968) (concurring in part and dissenting in part).
The practical reasons for such direction are compelling.
Mr. Justice Stewart, writing for the Court in Peacock, envi­
sioned what might result:

On motion to remand, the federal court would be 
required in every case to hold a hearing, which 
would amount to at least a preliminary trial of 
the motivationsof the state officers who 
arrested and charged the defendant, of the 
quality of the state court or judge before whom 

' the charges were filed, and of the defendant's 
innocence or guilt. And the federal court might, 
of course, be located hundreds of miles away from 
the place where the charge was brought. This 
(hearing could be followed either by a full trial 

■r:‘ in the federal court, or by a remand order.
Every remand order would be appealable as of 
right to a United States Court of Appeals and, 
if affirmed there, would then be reviewable by 
petition for a writ of certiorari in this Court, 

i If the remand order were eventually affirmed,
: iV̂ bere might, if the witnesses were still avail-
, ‘‘‘Sable, finally be a trial in the state court, 

months or years after the original charge was 
brought. If the remand order were eventually 
reversed, there might finally be a trial in the 
federal court, also months or years after the 
original charge was brought.

Peacock, supra at 832-33.
This case is controlled by Peacock rather than Rachel.

Peacock, supra at 828, held:
Under § 1443(1), the vindication of the defend­
ant's federal rights is left to the state courts 
except in the rare situations where it can be 
clearly predicted by reason of the operation of 
a pervasive and explicit state . . . law that
those rights will inevitably be denied by the 
very act of bringing the defendant to trial in 
the state court. [emphasis added]

5a



Rachel represented direct confrontation between the 1964 Civil
Rights Act and the trespass laws of the State of Georgia.
Georgia law made it a criminal trespass offense to refuse to 
leave facilities of public accommodation when asked to do so 
by the owner or person in charge. The federal law invalidated 
the Georgia trespass statute, at least where the request to 
leave was invidiously motivated, and substituted "a right for 
a crime." Hamm, supra at 314. Because the Georgia trespass 
law was void in an invidious context, the federal rights of 
those charged with its violation could have been denied by the 
mere institution of charges. As Hamm made clear, the Civil 
Rights Act of 1964 protects persons who refuse to obey an 
order to leave public accommodations, not only from conviction 
in state courts, but from prosecution in those courts.

A hearing was justified in Rachel by the great probability 
that a federal right would be denied if the prosecution were 
not removed. Such probability does not exist here. The 1964 
Civil Rights Act does not in any sense void the anti-riot laws 
of North Carolina. If these petitioners' federal rights are 
in fact being denied, the denial is not "manifest in a formal 
expression of state law." Rachel, supra at 803.

A white storekeeper may lawfully order Negro persons in 
his store to discontinue destruction of his property whether or 
not he is racially prejudiced. He may not, however, for racial 
reasons lawfully order nonviolent persons to leave. As an 
exercise in probability prediction, we may confidently assert 
that there is a far greater probability that a trespass warrant 
will be flawed by a policy of invidious discrimination than that

6a



a riot warrant will be similarly invalidated. This is so 
because the riot warrant will be valid if violence (the essen­
tial element) occurred, whereas the trespass warrant may be 
void even though presence over the protest of the owner (the 
essential element) is admitted. This is so, in turn, because 
peaceful presence is protected and violence is not. Race, 
color, or creed may well be a sufficient defense to a charge 
of trespass, but are wholly irrelevant to a charge of rioting.

If these petitioners "are being prosecuted on baseless 
charges solely because of their race, then there has been an 
outrageous denial of their federal rights, and the federal 
courts are far from powerless to redress the wrongs done to 
them." Peacock, supra at 828. But removal is not the remedy, 
see Peacock, supra at 828-30, unless we can clearly predict 
from the operation of an explicit state law that federal rights 
will inevitably be denied them, and that we cannot do.

AFFIRMED.



APPENDIX A

REMOVAL PETITION 
JURISDICTION

1. Jurisdiction is conferred on the United States 
District Court pursuant to the provisions of § 1443(1) of 
Title 28, United States Code, this being an action in which 
petitioners allege that they are being denied a right under 
a law providing for equal rights, particularly § 2000a (a) of 
Title 42, United States Code, and that they are denied or 
cannot enforce said equal rights in the Courts of the State 
of North Carolina.

PARTIES
2. Petitioners ... are Negro citizens of the United 

States and the State of North Carolina.
3. Respondent is the State of North Carolina.

BASIS FOR REMOVAL
4. Petitioners are members and participants in a 

coalition grouping of black citizens in the New Hanover 
County area of North Carolina known as the "Wilmington 
Movement." The purpose of said movement was to seek the 
full enforcement and enjoyment of equal rights granted to 
black citizens of the United States by the Civil Rights Act, 
and in particular Titles II, IV and VII of the Civil Rights 
Act of 1964.

5. As a means of publicizing their grievances, the 
"Wilmington Movement," and in particular each of the peti­
tioners, has engaged in protest marches, demonstrations 
and boycotts. All such activities have been peaceful and 
have specifically rejected violence to person or property 
as a protest tactic. All such protests have been within 
the ambit of protected free speech guaranteed to petitioners 
by the First Amendment to the Constitution of the United 
States.

6. On or about the 10th or 11th day of June, 1971, 
each of the petitioners was arrested and charged under the 
North Carolina Anti-Riot Statute, see North Carolina General 
Statute §14-288.2, with participation in a riot, and in the 
case of petitioner Frinks, with the additional charge of 
inciting to riot.

7. Specifically, petitioners . . . are charged with:
(a) Engaging in a riot on or about the 

9th day of June, 1971, at the Piece Good Shops, 
Azalea Shopping Center in Wilmington, North

8a



Carolina wherein it is alleged that some 
twenty (20) persons did enter said business 
and throw merchandise on the floor and over­
turn merchandise racks, all in violation of 
North Carolina General Statute §14-288.2(b)
(see Complaints and Warrants for Arrest at­
tached as Exhibits 1, 2 and 3 to Petition);

(b) Engaging in a riot on or about the 
9th day of June, 1971 at J. M. Fields, 3709 
Oleander Drive, Wilmington, North Carolina 
wherein it is alleged that some twenty (20) 
persons did enter said business and throw 
merchandise on the floor and overturn mer­
chandise racks, all in violation of North 
Carolina General Statute §14-288.2 (b) (See 
Complaints and Warrants for Arrest attached 
as Exhibits 4, 5 and 6 to Petition);

8. In addition, petitioner Frinks is charged with:
(a) Urging some twenty persons to engage

in a riot, to wit: a public disturbance
involving an assemblage of three or more per­
sons at said Piece Goods Shop, it being alleged

r that petitioner Frinks led said group of per­
sons into said business and urged the throwing 
of merchandise on the floor and the turning 
over of merchandise racks, all in violation of 
North Carolina General Statute §14-288.2(d);
(see Complaint and Warrant for Arrest attached 
as Exhibit # 7 to Petition);

(b) Urging some twenty persons to engage
in a riot, to wit: a public disturbance
involving an assemblage of three or more per­
sons at said J. M. Fields, it being alleged 
that petitioner Frinks led said group of per­
sons into said business and urged the throwing 
of merchandise on the floor and the turning 
over of merchandise racks, all in violation of 
North Carolina General Statute §14-288.2(d)
(See Complaint and Warrant for Arrest attached 
as Exhibit # 8 to Petition).

9. Petitioners have advocated and personally enjoyed the
equal civil rights granted to them by Section 2000a (a) of 
Title 42, United States Code, which guarantees that "all per­
sons shall be entitled to the full and equal enjoyment of the 
goods, services, facilities, privileges, advantages and accom­
modations of any place of public accommodation . . . without
discrimination or segregation on the ground of race . . . ."

10. The said Piece Goods Shop and J. M. Fields are public 
accommodations within the meaning of Section 2000a (b) of Title 
42, United States Code.

9a



11. The presence of petitioners on the premises of the 
Piece Goods Shop or J. M. Fields, if petitioners have ever 
been so present, has been peaceful and without acts or 
actions in violation of the laws of the State of North Carolina 
and accordingly is protected by Section 2000a(a) of Title 42, 
United States Code.

12. The warrants for arrest and attempted prosecutions 
of petitioners as heretofore alleged by respondent State of 
North Carolina is an attempt to punish petitioners for the 
exercise or attempt to exercise a right and privilege secured 
by Section 201 of Title II of the 1964 Civil Rights Act, 42 
United States Code Section 2000a(a), and accordingly is spe­
cifically prohibited by Section 203 of Title II of the 1964 
Civil Rights Act, 42 U.S.C. §2000a-2(c).

13. Respondent has and is using unconstitutional statutes 
or otherwise constitutional statutes in an unconstitutional 
manner to deprive black citizens of the United States of rights 
specifically granted to them by the Civil Rights Act of the 
Congress of the United States. Prosecutions under said 
statutes are forbidden and accordingly said black citizens, 
including petitioners, cannot enforce in the Courts of the 
State of North Carolina a right under a law providing for the 
equal civil rights of citizens of the United States, and 
accordingly are entitled to have their cases removed to the 
Courts of the United States.

10a



SOBELOFF, Senior Circuit Judge, dissenting:

The State of North Carolina has charged Golden Frinks and 
George Kirby, two individuals who in the past had been active 
in peaceful civil rights demonstrations, with engaging in 
riots at Piece Goods Shop and J. M. Fields in Wilmington,
North Carolina. Additionally, Frinks was charged with inciting 
the riots.

The two men filed removal petitions under 28 U.S.C.
§ 1443 d),1 2 alleging that the prosecutions were an attempt by 
the state to punish them for having exercised or attempted to 
exercise rights and privileges secured by Title II of the 1964

, 2Civil Rights Act. They deny being present at the stores at 
the time alleged, and alternatively contend that if present, 
they were nonviolent and did not engage in any riot.

Two diametrically opposed claims are presented. On the 
one hand, the State of North Carolina maintained that the 
defendants are being prosecuted for entering the two stores and 
tipping over clothing racks. On the other hand, Kirby and 
Frinks deny these allegations of the state, and assert moreover

1. 28 U.S.C. § 1443(1) provides:
Any of the following civil actions or criminal 
prosecutions, commenced in a State court may be 
removed by the defendant to the district court 
of the United States for the district and divi­
sion 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. 42 U.S.C. §§ 2000a - 2000a-6.

11a



that the charges were "trumped up" in order to punish them 
for having exercised federally protected rights.

The majority recognizes the petitioners' federal right 
not to be prosecuted for seeking to enjoy "public accommoda­
tions."^ They point out additionally, however, that there is 
no federally protected right to engage in a riot. The diffi­
culty in the instant case is that the real facts cannot be 
determined without an evidentiary hearing.

The question here becomes the important one under 28 
U.S.C. § 1443(1) which this court expressly left open in South 
Carolina v. Moore, 447 F.2d 1067 (4 Cir. 1971), "whether or not 
a district court is properly required to resolve such a factual 
issue [as violence] when considering a removal petition or 
whether it may confine its view to the allegations of the state 
charge if they unequivocally charge violent conduct * * *" 
supra, 447 F.2d at 1071, n. 9. Today, this question is answered 
but in a manner which accords inadvisable and unnecessary 
deference to state prosecutions.

The majority would have a district court summarily dismiss 
a removal petition without an evidentiary hearing whenever the 
state has alleged a crime of which violence is an element. A 3

3. 42 U.S.C. § 2000a provides that:
All persons shall be entitled to the full and equal 
enjoyment of the goods, services, facilities * * * 
of any place of public accommodations * * * with­
out discrimination or segregation on the ground of 
race, religion, or national origin.

Title II of the 1964 Civil Rights Act is commonly called 
the public accommodations section.



petitioner is thereby denied the opportunity to vindicate his 
contention that, by means of a bogus prosecution, the state 
is attempting to mete out punishment for the exercise or 
attempted exercise of rights secured by the public accommoda­
tions section of the Civil Rights Act of 1964. The state 
prosecutor is permitted to attach a convenient tag to a 
defendant's conduct, and this labeling, rather than what the 
individual was actually doing, becomes the test of removability 
Such a result, according to the majority, is dictated by 
Greenwood v. Peacock, 384 U.S. 808 (1966).

Respectfully, I disagree. Georgia v. Rachel, 384 U.S. 780 
(1966), and not Peacock is controlling here. The petitioners 
in Peacock and Rachel relied on entirely different rights. The 
Supreme Court in Peacock recognized that the petitioners there 
were bottoming their arguments on rights supposedly guaranteed 
by the First and Fourteenth Amendments to the Constitution and 
the Voting Rights Acts of 1964 and 1965. Peacock, supra, 384 
U.S. at 811, n. 3. In the instant case, as in Rachel, the peti 
tioners alleged violation of rights guaranteed by the public 
accommodations section of the Civil Rights Act of 1964. This 
latter legislation, unlike the voting rights acts, contains a 
specific prohibition against state action that "punish[es] or 
attempts to punish."4 This significant difference was noted by 
the Supreme Court in Peacock itself. The Court there declared

4. Section 203(c) of the Civil Rights Act of 1964, 42 
U.S.C. § 2000a-2(c) declares that "No person shall punish or 
attempt to punish any person for exercising or attempting to 
exercise any right or privilege secured by section 2000a or 
2000a-l of this title."

13a



that "Section 203(c) of the Civil Rights Act of 1964 * * * 
explicitly provides that no person shall 'punish or attempt 
to punish any persons for exercising or attempting to exercise 
any right or privilege' secured by the public accommodations 
section of the Act. None of the federal statutes invoked in 
the present case contains any such provision. See note 3 and 
note 7 supra." Peacock, supra, 384 U.S. at 827 n. 25 (emphasis 
added).

The majority apparently does not perceive it to be a 
fundamental feature of this case that it deals with civil 
rights legislation that bans "punishing" or "attempts to punish" 
rather than legislation prohibiting "intimidating" or "attempts 
to intimidate." Although New York v. Davis, 411 F.2d 750 
(2 Cir. 1969), is not cited, my brethren apparently adopt 
Chief Judge Friendly's equation for the purposes of removal 
under § 1443(1) of the two types of statutes. Significantly, 
after a year "of further study of the Peacock opinion," Judge 
Friendly indicated second thoughts and emphasized that the ques­
tion of whether the two types of statutes can be equated for 
removal purposes was left open. The question left open by

5. Judge Friendly noted that:
[a]s a result of further study of the Peacock 

opinion, we are not so sure as a year ago. New 
York v. Davis, supra, 411 F.2d at 754, n. 3, that 
civil rights statutes that ban intimidating, 
threatening or coercing are to be equated, for 
purposes of removal under § 1443(1), with a statute 
that prohibits punishing or attempting to punish, 
language that reads directly on the state. As 
already noted, one of the two significant points 
of distinction taken in Peacock was that "no 
federal law confers immunity from state prosecution

14a



Judge Friendly is the central question imperatively demanding 
an answer in the instant case.

To deny an evidentiary hearing to petitioners such as 
Kirby and Frinks on their removal petitions solely because 
the state charges them with a crime encompassing an element 
of violence dilutes and severely limits the rights and privi­
leges which Congress sought to specially immunize by 
Section 203(c). If the allegations of the petitioners in 
this case should prove correct, then the state is guilty of an 
attempt to punish persons for the exercise of rights secured 
by the public accommodations section— a result which Congress 
specifically sought to forbid when it enacted Section 203(c).

5. (Continued)
on such charges," 384 U.S. at 827, 86 S.Ct. at 
1812. Justice Stewart annotated this with a ref­
erence to the provision in § 203(c) of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000a-2(c), that 
no person shall "punish or attempt to punish any 
person" for exercising rights to public accommoda­
tions, a statement that "none of the federal 
statutes invoked by the defendants in the present 
case contains any such provision," and a cross- 
reference to notes 3 and 7. Note 3 referred to the 
provisions of the Voting Rights Acts of 1957 and 
1965 described in the text, with a "See also" cita­
tion to the latter. Commentators apparently believe, 
although with regret, that the Court meant to con­
fine the Rachel basis for removal to "unique" statutes, 
see 384 U.S. at 826, 86 S.Ct. 1800, which in terms 
prohibit prosecution. [Citations omitted.] On 
the other hand, it is arguable that citation in a 
footnote would be a rather elliptical way to decide 
such an important question, and that the limitation 
of removal to statutes using the words "punish or 
attempt to punish" is confined to cases like Peacock 
where the conduct was not within the protection of a 
federal civil rights act when it occurred. We leave 
the question open.

New York v. Horelick, 424 F.2d 697, 702-703, n. 4 (2 Cir. 1970).

15a



• » *  " W ?

District courts must decide the truthfulness of removal peti 
tions if Section 203(c) is to retain vitality and successfully 
immunize from state interference this type of statutorily pro­
tected conduct.

The Supreme Court in Rachel established a two-proned test 
for removal under Section 1443(1), requiring that petitioners 
demonstrate "both that the right upon which they rely is a 
'right under any law providing for * * * equal civil rights' 
and that they are 'denied or cannot enforce' that right in the 
courts of [the state]." 384 U.S. at 788. The first prong of 
this test is satisfied since the public accommodations section 
of the Civil Rights Act of 1964 creates rights "under any law 
providing for * * * equal civil rights." Section 203 (c) enjoins 
"any attempt to punish" persons for exercising these rights.
Hamm v. City of Rock Hill, 379 U.S. 306, 311 (1964) has inter­
preted this section to include within its prohibition prosecu­
tion in a state court. Hence, if the petitioners' allegations 
in this case are found to be true and the state is indeed 
attempting to punish them for exercising rights guaranteed by 
the public accommodations section, then there is a "denial of 
equal civil rights," the two prongs of the Rachel test are 
satisfied, and removal is in order.

The existence of a conflict between allegations in a removal 
petition and those in the criminal indictment is a rational 
ground for holding a hearing to resolve the conflict; it is cer­
tainly no reason for dismissing the petition out of hand. Only 
an evidentiary hearing can insure that the state is not unduly

16a



interfering with specially protected civil rights. For "the 
mere pendency of prosecutions [where such rights are involved] 
enables the federal courts to make the clear prediction that 
the defendants will be denied or cannot enforce in the courts 
of [the] state, the right to be free of any 'attempt to punish' 
them for protected activity. It is no answer in these circum­
stances that the defendant might eventually prevail in the 
state court. The burden of having to defend the prosecution is 
itself the denial of a right explicitly conferred by the Civil 
Rights Act of 1964 as construed in Hamm v. City of Rock Hill." 
Rachel, supra, 384 U.S. at 805. Nor can it be said that the 
interposition of a hearing would erode the state's prosecution.
If the state can establish a just basis for its prosecution, the 
removal petition will be denied and the case will be remanded for 
trial in the state court.

"The petition for removal [must] be determined not by the 
appellation or euphemism of the charge but by what the movant 
[petitioner] was actually doing." Walker v. Georgia, 417 F.2d 1, 
5 (5 Cir. 1969). Whether the alleged offense be trespass as in 
Rachel, or a crime encompassing an element of violence such as 
aggravated battery. State of Louisiana v. Perkins, 335 F. Supp. 
366 (E.D. La. 1971), the Fifth Circuit holds a hearing to deter­
mine whether or not the charge is spurious, intended only to 
punish the defendants for exercising protected rights. Walker, 
supra; Whatley v. City of Vidalia, 399 F.2d 521 (5 Cir. 1965), 
Wyche v. State of Louisiana, 394 F.2d 927 (5 Cir. 1967). I 
think that Section 203(c) interdicts "attempts to punish" and 
mandates an evidentiary hearing to defendants claiming that 
they are being prosecuted for the exercise of rights under the

17a



public accommodations section. Any other reading of the 
statute would emasculate the immunization clause of Section 
203(c). Unless there is an evidentiary hearing, the defendant 
charged with violent conduct will always be forced to submit 
to state prosecution to vindicate his Title II rights. Such a 
practice permits the characterization given by the prosecution 
to the conduct in question to become the touchstone for removal 
or non-removal.

It is true, as has been suggested, that the defendant may 
ultimately prevail in the state courts, or that he has other 
federal remedies including direct review by the Supreme Court 
or habeas corpus. But the burden of having to defend a prose­
cution is in itself a denial of a right immunized by Section 
203(c). Rachel, supra, 384 U.S. at 780.

The majority asserts a distinction between this case and 
Rachel in terms of probability. "A hearing," my colleagues con­
cede, "was justified in Rachel by the great probability that a 
federal right would be denied if the prosecution were not 
removed." [Majority Opinion at p. 8.] But they argue in the 
following paragraph that such probability does not exist in the 
instant case:

As an exercise in probability prediction, we 
may confidently assert that there is a far greater 
probability that a trespass warrant will be flawed 
by a policy of invidious discrimination than that 
a riot warrant will be similarly invalidated. This 
is so because the riot warrant will be valid if 
violence (the essential element) occurred, whereas 
the trespass warrant may be void even though presence 
over the protest of the owner (the essential element) 
is admitted. This is so, in turn, because peaceful 
presence is protected and violence is not. (Majority 
Opinion at p. 8.)

18a



The logic of the distinction adumbrated by the majority eludes 
me. If the state wishes to "punish" an individual for exer­
cising protected rights, and it is known that a trespass 
prosecution will be removed to federal court while a charge 
of inciting to riot will not be removed, it seems more likely 
that the state will charge the person with inciting to riot 
rather than trespass. Should we choose to analyze the instant 
case in terms of probability of discriminatory state motive, 
then it follows that if the allegations of the petitioner in 
their removal petitions are true, just as in Rachel "the mere 
pendency of [these] prosecutions enables the federal court to
make the clear prediction that defendant[s] will be 'denied
f ,■ U

or cannot enforce in the courts of [the] state the right to 
be'free of any ’attempt to punish’ them for protected activity." 
Veracity of the removal petition can be determined only in a 
preliminary evidentiary hearing.

Whenever the state prosecutes a person and he petitions 
for removal to the federal district court, alleging that he 
is being prosecuted solely for having peacefully exercised 
rights immunized by Section 203 (c), the district court should 
hold a hearing to determine the validity of the petitioner's 
claim. State action cannot be shielded from scrutiny by a 
prosecutor's decision to choose one rather than another appella­
tion to denote an activity. Only by requiring such an evidentiary 
hearing can we insure that protected activity will not be punished 
by criminal prosecution.

Therefore I dissent.

19a



OPINION OF THE DISTRICT COURT

GOLDEN FRINKS, et al., Petitioners,
v .

STATE OF NORTH CAROLINA, Respondent. 
No. 7188-CR.

United States District Court, 
E. D. North Carolina, 
Wilmington Division.

Oct. 29, 1971.

ORDER

BUTLER, Chief Judge.
Each of the petitioners was arrested on or about June 10, 

1971, and charged in the General Court of Justice of New 
Hanover County with violations of the North Carolina anti­
riot statute. Prior to trial in the state court they filed a 
petition for removal under 28 U.S.C. § 1443(1) in the United 
States District Court for the Eastern District of North 
Carolina.

The North Carolina General Statute § 14-288.2 reads in 
pertinent part: "(a) A riot is a public disturbance involving
an assemblage of three or more persons which by disorderly and 
violent conduct, or the imment threat of disorderly and 
violent conduct, results in injury or damage to persons or 
property * * *. (d) Any person who wilfully incites or urges
another to engage in a riot, so that as a result of such incit­
ing or urging a riot occurs or a clear and present danger of a

20a



riot is created, is guilty of a misdemeanor * * Petitioners
Frinks, Murray and Henry were charged in separate warrants with 
engaging in a riot at Piece Goods Shop, Azalea Shopping Center, 
Wilmington, North Carolina, and at J. M. Fields, 3709 Oleander 
Drive, Wilmington, North Carolina, which "involved some twenty 
persons entering said business and throwing merchandise on the 
floor, and turning over merchandise racks." Petitioner Frinks 
is charged in separate warrants with inciting a riot at Piece 
Goods Shop, Azalea Shopping Center, and J. M. Fields, 3709 
Oleander Drive, which "involved the said persons led by the 
said defendant, entering the said business and throwing mer­
chandise on the floor and turning over merchandise racks. As 
the result of the urging and planning of the defendant, the 
riot occurred."

The petitioners allege in their petition for removal that 
"(t)he presence of petitioners on the premises of the Piece 
Goods Shop or J. M. Fields, if petitioners have ever been so 
present, has been peaceful and without acts in violation of the 
laws of the State of North Carolina * * *." Petitioners allege 
that they were exercising or attempting to exercise their rights 
under Section 201 of Title II of the Civil Rights Act of 1964,
42 U.S.C. § 2000a(a) which reads: "All persons shall be
entitled to the full and equal enjoyment of the goods, services, 
facilities, privileges, advantages, and accommodations of any 
place of public accommodation, as defined in this section, 
without discrimination or segregation on the ground of race, 
color, religion, or national origin." Further, petitioners 
allege that the "arrest(s) and attempted prosecutions * * *

21a



xs (sic) an attempt to punish petitioners for the exercise or 
attempt to exercise a right and privilege secured by Section 
201 of Title II of the 1964 Civil Rights Act, 42 United States 
Code, Section 2000a (a), and accordingly is specifically pro­
hibited by Section 203 of Title II of the 1964 Civil Rights 
Act, 42 U.S.C. § 2000a-2(c)." That subsection reads: "No
person shall * * * (c) punish or attempt to punish any person 
for exercising or attempting to exercise any right or privilege 
secured by section 2000a or 2000a-l of this title."

The State of North Carolina has moved to remand the cases 
to the state courts.

A person is entitled to removal of a state prosecution 
to the United States courts if a right phrased in terms of 
racial equality will be denied him or rendered unenforceable 
in the state court. The denial of equal rights must take place 
in the state court and the denial must be manifest in a formal 
expression of state law. It must also be clearly predictable 
that equal rights will be denied or rendered unenforceable in 
order for removal to be available. State of Georgia v. Rachel, 
384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); City of 
Greenwood, Mississippi v. Peacock, 384 U.S. 808, 86 S.Ct. 1800,
16 L.Ed.2d 944 (1966). The denial must result from the opera­
tion of a pervasive and explicit state or federal law. That 
the law might be selectively enforced against the petitioner by 
certain officers is not a sufficient allegation under § 1443(1). 
Virginia v. Jones, 367 F.2d 154 (4th Cir. 1966).

Title 42 U.S.C. § 2000a provides for equal rights in terms 
of racial equality. Thus the right which the section guarantees

22a



enables citizens to assert the right with immunity from state 
prosecution. It is clear, however, that only non-violent 
attempts to gain admittance to places of public accommodations 
defined by § 2000a are immunized. Hamm v. City of Rock Hill,
379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964). "It has 
been the uniform holding or assumption of all of the cases in 
the lower courts that the Civil Rights Acts extend their pro­
tections only to peaceful conduct." South Carolina v. Moore,
447 F .2d 1067, p. 1071 (4th Cir. 1971).

The precise question for determination by the court is 
whether defendants, charged with inciting and/or engaging in a 
riot, who allege in their petition that they were peaceably 
exercising their rights to public accommodations are entitled 
to have their cases removed under 28 U.S.C. § 1443(1). The 
Fourth Circuit has recently reiterated that removal "is limited 
to cases in which the charged conduct clearly enjoys federal 
protection." South Carolina v. Moore, supra, 447 F.2d p. 1070.

The facts in the Rachel case, in which removal was allowed, 
were markedly dissimilar to the case at bar. There, the peti­
tioners entered a private restaurant and sought service. Service 
was refused them and the petitioners were requested to leave.
They refused to do so. They were arrested and charged with the 
crime of "Refusal to leave premises of another when ordered to 
do so by owner or person in charge." Ga. Code Ann. § 26-3005 
(1965 Cum. Supp.). The Supreme Court, citing Hamm v. City of 
Rock Hill, supra, held that the Civil Rights Act had immunized 
the very conduct with which the petitioners had been charged.

23a



Congress had substituted a right for a crime. Hamm v. City of 
Rock Hill, supra. In the case now before the court, peti­
tioners are charged with committing acts which are clearly 
not protected by any Federal Civil Rights Act. Peacock assumes 
that federal rights will be enforced in the state courts "except 
in the rare situations where it can be clearly predicted by 
reason of the operation of a pervasive and explicit state or 
federal law that those rights will inevitably be denied by the 
very act of bringing the defendant to trial in the state court." 
384 U.S. at 828, 86 S.Ct. at 1812. Here, petitioners risk pun­
ishment only if it be found beyond a reasonable doubt that they 
did the acts charged in the warrants.

Judge Godbold, concurring in part, dissenting in part, in 
Achtenberg v. Mississippi, 393 F.2d 468, 477 (5th Cir. 1968) 
states:

Criminal charges are not removable on the 
ground they are baseless and made to punish and 
deter exercise of protected rights. Charges 
are removable if quantitatively and qualita­
tively they involve conduct coterminous with 
activity protected under the Civil Rights Act, 
i.e., "substitution of right for crime."

In Peacock the Supreme Court has directed 
the Federal courts away from making factual 
inquiries approaching that of trial of the 
merits as an incident of determining removability.

In North Carolina v. Hawkins, 365 F.2d 559 (4 Cir. 1966), 
cert. den. 385 U.S. 949, 87 S.Ct. 322, 17 L.Ed.2d 227, Chief 
Judge Haynsworth, speaking for the Fourth Circuit Court of 
Appeals, upheld an order of remand by the district court, noting 
that the allegations in the petition were in contradiction of 
the specific charges of the indictment. Judge Sobeloff concurred.

24a



but "not on the ground * * * that the allegations of the peti­
tioner are 'in contradiction of the specific charges of the 
indictment.' The test of removability is the content of the 
petition, not the characterization given the conduct in ques­
tion by the prosecutor." If the concurring opinion represented 
a minority view on that point, then it is reasonable to con­
clude that the Fourth Circuit Court of Appeals considers such 
a contradiction between the petition and indictment of some 
significance. A warrant is not merely a "characterization" of 
conduct by the prosecutor. It is more than that: it frames
the issues of the case and specifies the conduct which the 
state seeks to punish. By so doing it effectively determines 
what rights of the petitioner might be affected.

New York v. Davis, 411 F.2d 750 (2d Cir. 1969) points out 
plainly that the line is drawn "between prosecutions in which 
the conduct necessary to constitute the state offense is spe­
cifically protected by a federal equal rights statute under the 
circumstances alleged by the petitioner, and prosecutions where 
the only grounds for removal are that the charge is false and 
motivated by a desire to discourage the petitioner from exer­
cising or to penalize him for having exercised a federal right.
* * * To apply this distinction requires the court to scrutinize 
the state criminal statute and the charge thereunder as well as 
the factual allegations in the removal petition * * *."

The Ninth Circuit, in California v. Sandoval, 434 F.2d 635 
(1970), has stated that in order for removal to be available, 
the petitioner must assert as a defense to the prosecution rights 
given them by the federal statute protecting racial civil rights.

25a



The petitioner must also allege that the state courts will not 
enforce the right and the allegation must be supported by ref­
erence to a state statute or constitutional provision that 
purports to command the state courts to ignore the federal 
right. It cannot be seriously contended that the right to 
seek service in a public accommodation is a defense to a charge 
of violent and riotous conduct.

Petitioners allege that the State is using unconstitutional 
statutes or constitutional statutes in an unconstitutional man­
ner to deprive them, and other Negroes, of their civil rights. 
Petitioners, admitting that they are being prosecuted for incit­
ing and engaging in a riot, allege that such prosecutions are 
forbidden. But there is no federal law restraining prosecu­
tions for riot. See Wansley v. Virginia, 368 F.2d 71 (4th Cir. 
1966). Presented with similar allegations referring to an anti­
picket injunction in Baines v. City of Danville, 357 F.2d 756 
(4th Cir. 1966), aff'd 384 U.S. 890, 86 S.Ct. 1915, 16 L.Ed.2d 
996, the court said: "Neither does the contention that the
injunction is unconstitutional facially or as applied warrant 
removal. The injunction is not obviously facially unconstitu­
tional as applied to actual rioters. The constitutional question 
if it arises, would come out of its application. Of course, it 
would be unconstitutional if it became the basis of a convic­
tion of a peaceful man whose conduct was within the protection 
of the first amendment. This cannot be known until the cases 
are tried." The court then concludes that such factual inquiries 
should not be held since removability turns upon an obvious and 
predictable denial by the state court.

26a



The court is satisfied that the cases at bar should be
remanded to the state court. While the petitioners arguably 
had a right to be where they were, they had no right to commit 
violent acts there, nor did petitioner Frinks have the right to 
wilfully incite others to disorderly and violent conduct result 
ing in damage to property. The elements of the charges in this 
case are a public disturbance involving an assemblage of three 
or more persons which by disorderly and violent conduct, or the 
imminent threat thereof, results in injury or damage; and the 
wilful incitation to such acts. The prosecution is directed 
not at their presence in the store, but at their conduct in 
the store. The Civil Rights Act is no defense to the charges, 
and if petitioners are found not guilty it will be because they 
did not commit the acts alleged, not because their acts were 
protected.

The Fifth Circuit has held that an evidentiary hearing is 
required when the petition alleges peaceable exercise of pro­
tected conduct, regardless of the charges. This well-pleaded- 
petition approach precludes consideration by the court of the 
warrant or indictment or the statute. This approach to removal 
has been rejected by the Ninth Circuit and the Second Circuit. 
The Fourth Circuit has specifically reserved decision on the 
point, but this court is of the opinion that the approach 
adopted by the Fifth Circuit is not required by the Supreme 
Court decisions. Indeed it would seem that the cases abjure 
such a ready intrusion into the state judicial system. Where 
the issue of removability is determined solely by whether or

27a



not an acknowledged right was violently exercised, this court 
is not persuaded that it is more competent to determine that 
issue of fact than a state court. If petitioners are to pre­
vail, whether in the state court or in this court, it will be 
because there is reasonable doubt that they did the acts charged, 
i.e., engaged in rioting or inciting to riot. "Who among the 
petitioners, if any of them, were rioters cannot be known until 
there has been a factual hearing in every case. This is not 
the sort of inquiry which ought to be required as an incident 
of determining removability. If removability does not readily 
appear without a factual inquiry tantamount to a trial on the 
merits, removal should not be allowed." Baines v. City of 
Danville, Virginia, 357 F.2d 756, 765 (4th Cir. 1966). Affirmed 
on the authority of Peacock, 384 U.S. 890, 86 S.Ct. 1915, 16 
L.Ed.2d 996.

Removal is not required simply by reason of an artfully 
drafted petition. Nor is an evidentiary hearing required because 
the petition alleges a peaceful exercise of civil rights. While 
recognizing that there is support for the latter view in the 
Fifth Circuit cases, the court is of the opinion that such an 
approach to removal is not necessitated by the statute and indeed 
is not fully accepted in that circuit. See Achtenberg v. Mississippi, 
393 F.2d 468, 475 (5th Cir. 1968) (Godbold, J., concurring in 
part and dissenting in part) and Wyche v. Hester, 431 F.2d 791,
798 (5th Cir. 1970) (Coleman, J., dissenting). The holding of 
an evidentiary hearing every time a well-pleaded petition for 
removal is filed would consume the time of the federal courts.

28a



and cause delay in the^?cpeditious rendering of state crim,.. 
justice.

It is the opinion of le court that a hearing upon the 
petition to remove would not be in the interests of justice 
and would unnecessarily add another federal procedure, viola­
tive of comity, to an already overloaded system. Now, 
therefore.

It is ordered that the instant cases be, and the same are
hereby. remanded to the state courts for proper disposition.