Orange v. Alabama Brief for Appellants

    Intteft States (Enttrt of Kppmls
F ob the F ifth  Circuit 

No. 24281

In the

J ames Orange, et at.,

-v.~
Appellants,

State of A labama,
Appellee.

appeal from the united states district court

FOR THE SOUTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANTS

Oscar W. A dams, Jr .
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

D emetrius C. Newton 
408 North 17th Street 
Birmingham, Alabama 35203

N orman C. A maker 
J ack Greenberg 
Charles H. J ones, Jr.
Melvyn Z arr

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants



I N D E X

PAGE

Statement of the Case ......................................................  1

Specification of Error ................................ -..................... - 4

A rgument

Appellants’ Removal Petitions State Adequate 
Grounds for Removal Under 28 U. S. C. §1443(1) 4

Conclu sion ................................................................................... 6

T able of Cases

Adderley v. Florida, 385 U. S. 39 (1966) ....................... 5

Blow v. North Carolina, 379 U. S. 684 (1965) .......—. 6

Georgia v. Rachel, 384 U. S. 780 (1966) ---------- -------- 4,5
Greenwood v. Peacock, 384 U. S. 808 (1966) ..............  4

McKinnie v. Tennessee, 380 U. S. 449 (1965) ........... 6

Statutes I nvolved

28 U. S. C. §1443(1) .................................... .....................  4

42 U. S. C. §2000a....................................................... -   2,4

Code of Ala., Tit. 14, §412  .................................................  2

Code of Ala., Tit. 14, §426  ..............................................  2



In the

Itutefc Court of Appeals
F ob the F ifth  Circuit 

No. 24281

-------------- ------------------
J ames Orange, et al.,

Appellants,

State of A labama,
Appellee.

appeal from the united states district court 
FOR THE SOUTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from orders of the United States Dis­
trict Court for the Southern District of Alabama remand­
ing to the Alabama courts from which appellants had re­
moved them criminal prosecutions relating to appellants’ 
“ activities designed to test compliance by local restaurants 
with [the] Civil Rights Act of 1964” (R. 19).

Appellants’ campaign to secure full and equal enjoyment, 
without racial discrimination, of restaurant facilities in 
Marion, Alabama began on Monday, February 1, 1965. On 
that date appellants and others, mostly Negroes, launched 
what they referred to as “ Freedom Day” in Marion, spon­



2

sored jointly by the Southern Christian Leadership Con­
ference (SCLC) and the Student Non-Violent Coordinat­
ing Committee (SNCC) (R. 19).

On Tuesday, February 2nd, a group of 18 of the appel­
lants, all Negroes, went to the Korner Cafe Restaurant 
in Marion, seeking non-discriminatory service as required 
by Title II of the Civil Rights Act of 1964, 42 U. S. C. 
§§2000a et seq. (1964), 78 Stat. 241, 243 (R. 19). “ They 
were at all times orderly and well-behaved; they politely 
communicated to the proprietor their desire to be served 
without regard to race. After being refused service be­
cause of their race, they were arrested and charged with 
trespass after warning, in violation of Code of Ala., Tit. 
14, §426” (R. 19).1

The next day, Wednesday, February 3rd, a large number 
of appellants were part of a group of approximately 1,000 
persons who marched in the vicinity of the Perry County 
jail to protest the arrests of the previous day (R. 27-29). 
“ These persons were at all times orderly and well-behaved; 
they sought to exercise their federal constitutional right 
to protest against racial discrimination in local places of 
public accommodation and in the voter registration process” 
(R. 28). These appellants were arrested and charged with 
remaining present at the place of an unlawful assembly 
after having been warned to disperse by a public officer, in 
violation of Code of Ala., Tit. 14, §412.

The next day, Thursday, February 4th, a similar demon­
stration occurred (R. 31-34). “ Once again, the protestors

1 Since the district court afforded appellants no evidentiary hear­
ing, the allegations of the petitions for removal must he taken as 
true.



3

were orderly and well-behaved; once again they wrnre ar­
rested . . . and charged with remaining present at the 
place of an unlawful assembly” (R. 33).

On February 18, 1965, appellant James Orange, a field 
worker for SCLC who had been assisting in the “ sit-ins” 
conducted to test compliance by local places of public ac­
commodation with Title II of the Civil Rights Act of 1964, 
was arrested and charged with contributing to the de­
linquency of minors (R. 3).2

Also on February 18,1965, a march was planned by many 
Negro citizens of Marion from the Zion Methodist Church 
to the county courthouse—a distance of less than 100 yards 
(R. 24). As the Negroes walked two abreast out of the 
church, they were accosted by the Sheriff and Chief of 
Police, told they were unlawfully assembled and ordered 
to disperse (R. 24). “As they started to return to the 
church, they were descended upon by State Troopers and 
clubbed in a vicious and brutal manner and driven along 
the street toward the church and toward nearby Mack’s 
Cafe. Having driven about 75 persons into Mack’s Cafe, 
some 9 or 10 Troopers entered the cafe and began beat­
ing them. It was here that a protestor, Jimmie Lee Jackson, 
was clubbed, shot and killed by a Trooper” (R. 24-25). 
Appellant James Dohynes, while kneeling in prayer, was 
clubbed on the head by a Trooper, sustaining a lacerated 
scalp, and was arrested and charged with unlawful as­
sembly (R. 25). Appellants George Samuel Baker, Willie 
Bolden and Searcy Wright also took part in the march 
and were arrested; Baker and Bolden were charged with

2 No juvenile taking part in these “sit-in” activities had been 
adjudicated a delinquent.



4

unlawful assembly, Wright with assault with intent to kill 
(R. 25). Appellant Norma Rene Shaw, Manager of Mack’s 
Cafe, was charged with carrying a concealed weapon (R. 
25).

On October 4, 1966, the court below, on its own motion, 
remanded appellants’ cases to the appropriate state courts, 
citing Georgia v. Rachel, 384 U. S. 780 (1966); and Green­
wood v. Peacock, 384 U. S. 808 (1966) (R. 11). Timely ap­
peals were taken (R. 12, 21, 26, 30, 35).

Specification of Error

The court below erred in holding that appellants’ peti­
tions for removal did not state adequate grounds for re­
moval under 28 U. S. C. §1443(1).

A R G U M E N T

Appellallts, Removal Petitions State Adequate Grounds 
for Removal Under 28  U. S. C. § 1 4 4 3 (1 ) .

All of appellants’ activities were in some measure related 
to the exercise of their right to non-discrimination in places 
of public accommodation granted by Title II of the Civil 
Rights Act of 1964, 42 U. S. C. §2000a, el seq., 78 Stat. 241, 
243. The question presented by this appeal is the extent of 
protection of Georgia v. Rachel, 384 U. S. 780 (1966). 
Clearly, it extends to those appellants (R. 18-20) who sought 
non-discriminatory restaurant service in the Korner Cafe 
Restaurant. Clearly, as to them, the court below erred in 
not affording them an “ opportunity to establish that they 
were ordered to leave the restaurant facilities solely for 
racial reasons”, Georgia v. Rachel, supra, 384 U. S. at 805.



5

By the same token, it would appear that appellant Orange 
(R. 1-7) is due the protection of Rachel for assisting in 
these protected activities; he also deserves a hearing.

The cases of those appellants arrested for protesting 
the arrests of their fellow appellants for directly exercis­
ing their rights to equal public accommodations are more 
difficult. These appellants (R. 27-29; 31-34) were, it is true, 
not themselves seeking service in establishments covered 
by the Act at the time of their arrests. On the other hand, 
appellants alleged, and their allegations must be taken 
as true, that their demonstrations were orderly and non­
obstructive. The cases of these appellants, therefore, fall 
somewhere between Rachel and Adderley v. Florida, 385 
U. S. 39 (1966), where the Supreme Court held that an 
alleged trespass on jail grounds “ can be prosecuted regard­
less of the fact that it is the means of protesting segrega­
tion of establishments covered by the Act” (385 U. S. at 43). 
Where in the Rachel-Adderley spectrum these cases lie can 
only be established after evidentiary hearing. Appellants, 
given an evidentiary hearing, would, we must assume, 
show that they were not guilty of trespass or any other 
offense. This being so, appellants’ activities are proxi- 
mately enough related to the exercise of Title II rights as 
to merit the protection of civil rights removal jurisdiction. 
Reason and experience support this conclusion. Civil rights 
demonstrations have been influential in altering the unwill­
ingness of some restaurant proprietors to obey the Civil 
Rights Act of 1964. These demonstrations have, far more 
often than court suits, resulted in the elimination of racial 
discrimination in places of public accommodation. As such, 
these demonstrations are a valuable alternative method



6

of seeking non-discrimination in restaurant facilities 
covered by the Act.3

The cases of appellants Baker, Bolden, Dobynes, Shaw 
and Wright (R. 22-25) are another matter. The relation­
ship between these removed cases and Title II rights is, it 
must be conceded, inadequately pleaded. For that reason, 
these cases were properly remanded.

CONCLUSION

For the foregoing reasons, the orders of the district 
court, except as to Cause No. 14 ,797 below (R. 22 -2 6 ), 
should be reversed and the cases remanded for eviden­
tiary hearing.

Respectfully submitted,

Oscar W . A dams, J r .
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

D emetrius 0. Newton 
408 North 17th Street 
Birmingham, Alabama 35203

N orman C. A maker 
J ack Greenberg 
Charles H. J ones, J r .
M elvyn Z arr

10 Columbus Circle
New York, New York 10019

Attorneys for Appellants

3 That the Supreme Court has given activities broadly vindicatory 
of Title II rights wide protection is illustrated by Blow v. North 
Carolina, 379 U. S. 684 (1965); and McKinnie v. Tennessee, 380 
U. S. 449 (1965).



7

CERTIFICATE OF SERVICE

I hereby certify that on April , 1967, I served copies 
of the foregoing Brief for Appellants on the following at­
torneys for appellee by United States Airmail, postage 
prepaid:

Hon. Blanchard McLeod 
Circuit Solicitor 
Perry Connty Courthouse 
Marion, Alabama

Hon. W. B. Arbuthnot 
County Solicitor 
Perry County Courthouse 
Marion, Alabama

Attorney for Appellants