Geison v. Alabama Brief for Appellant

    S7

I n the

Mmtpd States (Emtrt nf Appeals
F oe the F ifth  Circuit 

No. 24205

Michael Geison,
Appellant,

v.

State of A labama,
Appellee.

appeal from the united states district court for the
S O U T H E R N  D IST R IC T  OF ALABAMA

BRIEF FOR APPELLANT

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

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

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

Norman C. A maker
Charles H. J ones, J r.
J ack Greenberg

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



TABLE OF CONTENTS

PAGE

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

Specification of Error ..................................................  2

A rgument—

28 U.S.C. §1443(1) Authtorizes Removal of a 
Contempt Prosecution Brought to Enforce Racial
Segregation in a State Courtroom .................... 3

Conclusion ............................................................................... 8

Statutory A ppendix ................    l a

T able op Cases

City of Greenwood v. Peacock, 384 U.S. 808 (1966)
2, 3,4, 5, 6,7

Georgia v. Rachel, 384 U.S. 780 (1966) ..........2, 3, 4, 5, 6, 8

Hamm v. The City of Rock Hill, 379 U.S. 306 ..........  6



I n the

BUUb (Burnt at Appeals
F oe the F ifth  Circuit 

No. 24205

Michael Geison,

v.
Appellant,

State of Alabama,
Appellee.

appeal fkom the united states district court fob the
S O U T H E R N  D IST R IC T  OF ALABAMA

BRIEF FOR APPELLANT

Statement of the Case

Appellant, Michael Geison, a white citizen of the State 
of Florida, was employed during 1965 as a staff worker 
for the Southern Christian Leadership Conference (S.C. 
L.C.) in Hale County, Alabama, and other black-belt coun­
ties in the state. His activities revolved around the de­
velopment of what was known as the Hale County Voter 
Registration Project. In Hale County, he addressed meet­
ings and assemblies of persons interested in registering to 
vote. He accompanied persons desirous of registering to 
vote to the appropriate registration places and partici­
pated in peaceful demonstrations to bring about equal op­
portunity to register to vote and to vote (R. 1, 2).

Appellant alleged in his removal petition that while en­
gaged in voter registration activities he was arrested and



2

incarcerated in Camp Selma a state prison located in 
Dallas County, Alabama (R. 3). While incarcerated, addi­
tional charges were placed against him and he was re­
leased, pending trial in the County Court of Dallas County, 
after posting a $500.00 bond on each charge (R. 3).

Appellant’s petition, filed in the United States District 
Court for the Southern District of Alabama, also asserted 
that “when [he] came for trial on these charges in the 
County Court, he was held in contempt of court for refus­
ing to remove himself from a so-called white side of the 
courtroom to the Negro side, although he was a white per­
son” (R. 3). He further alleged that the charge was re­
movable under 28 U.S.C. §1443 (R. 1) because federal 
statutory and constitutional equal rights were being denied 
and [the denial was] unenforceable in the courts of the 
State of Alabama (R. 5).

Since these allegations were uncontroverted they must 
be taken as true for the purpose of determining jurisdic­
tion as alleged.

District Judge Thomas, without conducting any hearing 
on appellant’s allegations, remanded the petition on his 
own motion, October 4, 1966, relying upon City of Green­
wood v. Peacock, 384 U.S. 808 (1966), and Georgia v. 
Rachel, 384 U.S. 780 (1966) (R. 8). Appellant sought a 
stay of the remand order pending appeal, asserting that 
the Rachel and Peacock cases supported his removal claim 
(R. 10), but the District Court denied the motion (R. 12, 
13). Appellant then filed a timely notice of appeal to this 
Court from the remand order of October 4, 1966 (R. 9).

Specification of Error

The District Court erred in remanding appellant’s re­
moval petition, which stated a valid claim for removal



under 28 U.S.C. §1443, and should have conducted a hear­
ing to determine the validity of the allegations contained 
therein.

A R G U M E N T

28 U.S.C. §1443(1) Authorizes Removal of a Con­
tempt Prosecution Brought to Enforce Racial Segre­
gation in a State Courtroom.

Does appellant Geison’s removal petition state a valid 
claim for removal under §1443(1) within the principles 
of Georgia v. Rachel, 384 U.S. 780 (1966), and City of 
Greenwood v. Peacock, 384 U.S. 808 (1966)? Appellant 
contends that his refusal to submit to a state judge’s 
order enforcing courtroom segregation is specifically pro­
tected by 42 U.S.C. §1981 (1964), which statute, in addi­
tion, immunizes his conduct against prosecution and makes 
the contempt charge removable under Georgia v. Rachel, 
supra.

In Rachel, the Supreme Court of the United States 
sustained removal under 28 U.S.C. §1443(1) of state 
trespass prosecutions brought against Negroes asserting 
rights to nondiscriminatory service in places of public 
accommodation. Rachel held that the two conditions gov­
erning removal under §1443(1) had been met:1 (1) be­
cause Title II of the Civil Rights Act of 1964 (78 Stat. 
243, 42 U.S.C. §2000a (1964), et seq.) (set forth in the 
statutory appendix, infra, p. la) is a specific federal 
equal civil rights statute conferring a right to service

1 The Court states at 384 U.S. p. 788: “Section 1443(1) entitled the 
defendants to remove these prosecutions to the federal court only if they 
meet both requirements of that subsection. They must show 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 Georgia.”



4

in a place of public accommodation without racial dis­
crimination, rights asserted under it are within the mean­
ing of the phrase “any law providing for . . . equal civil 
rights” to which Congress intended to extend §1443’s 
protection (384 U.S. at 792); (2) the “denied or cannot 
enforce” requirement is satisfied by 42 U.S.C. §2000a-2 
(1964) (Appendix, infra, pp. la, 2a), because it expressly 
forbids punishment of persons engaging in conduct cov­
ered by §2000a. Since persons seeking nondiscriminatory 
service in places of public accommodation have an ab­
solute right to insist upon service without being subjected 
to punishment, or state prosecution for such conduct, 
§2000a-2, in effect, substitutes “a right for a crime” (384 
U.S. at p. 805). Rachel concluded that the mere pendency 
of a state prosecution would enable a Federal court to 
predict that defendants engaging in conduct protected 
by the Act will be denied or unable to enforce in the 
courts of the state their absolute right to be free of any 
attempt to punish them for the protected activity.

In City of Greenwood v. Peacock, supra, on the other 
hand, the Supreme Court disallowed removal of prosecu­
tions brought against two groups of civil rights demon­
strators who engaged in drives to encourage Negro voter 
registration and who were protesting against racial segre­
gation in Mississippi. Distinguishing Rachel, the Court, 
in Peacock, was unable to find a specific federal law which 
either conferred an absolute right to engage in the activity 
alleged or provided immunity from prosecution com­
parable to §20Q0a-2(c)’s prohibition against punishment. 
Appellant contends that §1981, both by its historic pur­
pose and its design, supplies the ingredients for removal 
lacking in Peacock and present in Rachel by being a 
specific federal law authorizing conduct for which it pro­
vides an immunity from state prosecution.



5

On April 9, 1866, Congress enacted the first major civil 
rights act.2 Its third section, the progenitor of the present 
§1443, provided for removal of civil and criminal eases 
affecting persons denied “any of the rights secured to 
them by the first section of [the] Act; . . . Section 1 
of the 1866 Act,3 the progenitor of present §1981, granted 
citizens the specific rights, among others, to the “full and 
equal benefit of all laws and proceeding for the security 
of person and property” as was enjoyed by white citizens, 
and particularly the right “to sue, be parties, and give 
evidence” in the same manner enjoyed by white citizens. 
Section 1981, thus, was clearly a grant of that kind of 
specific civil rights “couched in terms of equality” em­
braced by Rachel (see p. 792) and was designed to pro­
tect the very right appellant Geison asserts-—the right to 
nondiscriminatory treatment in a state courtroom. It is 
therefore no accident that the Court in Peacock recog­
nized that §1981 is one of the sources of “law providing 
for . . . equal civil rights” whose violation in the state 
courts supports removal. City of Greenwood v. Peacock, 
304 U.S. 808, 825 (1966).

The sole remaining question, whether §1981 confers the 
same right not to be prosecuted for disobeying a state

2 Act of April 9, 1866, ch. 31, 14 Stat. 27.
3 Act of April 9, 1866, ch. 31, §1, 14 Stat. 27, provided: That all per­

sons born in the United States and not subject to any foreign power, 
excluding Indians not taxed, are hereby declared to be citizens of the 
United States; and such citizens, of every race and color, without regard 
to any previous condition of slavery or involuntary servitude, except as 
a punishment for crime whereof the party shall have been duly convicted, 
shall have the same right, in every State and Territory in the United 
States, to make and enforce contracts, to sue, be parties, and give evidence, 
to inherit, purchase, lease, sell, hold, and convey real and personal prop­
erty, and to full and equal benefit of all laws and proceedings for the 
security of person and property, as is enjoyed by white citizens, and'
shall be subject to like punishment, pains, and penalties, and to none
other, any law, statute, ordinance, regulation, or custom, to the contrary 
notwithstanding.



6

judge’s order preserving courtroom segregation as that 
recognized in Rachel, must be answered affirmatively. The 
basis in Rachel for finding that 42 U.S. §§2000(a) and 
20Q0a-2(c) (1964 ed.) protects sit-ins “not only from con­
victions in state courts, but from prosecutions in those 
courts” (384 U.S. at 804, emphasis in original), again, 
was that language of §203(c) of the 1964 Act prohibiting 
punishment for the attempt to exercise Title II rights. 
In both Hamm v. The City of RocJc Hill, 379 U.S. 306, and 
Rachel, the mere pendency of state prosecutions was 
read as constituting punishment for engaging in the pro­
tected acts. Analogously, §1981 also flatly states that 
citizens, regardless of race or color, “shall be subject 
to like punishment, pains, penalties, . . . and to no other” 
as white citizens are subject to. This language, as un­
equivocally as Title II, prohibits punishment on racial 
grounds. It forbids appellant Ueison being punished when 
other whites would not have been for sitting where other 
whites can sit and for refusing to sit in an area reserved 
for Negroes. Here, as in Rachel, it may be concluded 
that any prosecution brought to punish Greison “will con­
stitute a denial of the rights conferred by the Civil Rights 
Act” (Rachel, at 804), and that the “burden of having to 
defend the prosecution is itself the denial of a right 
expressly conferred by the Civil Rights Act,” 384 U.S. 
at 805.

The test of removal stated in Peacock, whether federal 
laws confer upon the defendant the right to do that which 
the state charges as an offense, and whether federal laws 
confer “immunity” from prosecution from the charge, is 
here fully met. Sections 1981 “confers an absolute right 
on private citizens” (384 U.S. at 826) not to be racially 
segregated in a state courtroom. And the prohibition on 
unequal punishment contained in that section “confers im­



7

munity from state prosecution on such charges,” id. at 
827.

Any other result would be preposterous. It would re­
quire the attribution to Congress of greater solicitude 
against racial discrimination in a beanery than in a court­
room. It would invoke §1443’s protection for rights con­
ferred one hundred years after the removal statute was 
enacted, and deny similar protection for the very rights 
that enactment of that statute was originally meant to as­
sure. It would assume that federal intervention is neces­
sary to protect persons from a state court when they have 
been discriminated against by a restaurateur, but not when 
they have been discriminated against by the state court it­
self. Yet, clearly, if there is ever a basis for “firm predic­
tion that the defendant would be ‘denied or cannot en­
force’ . . . specified federal rights in the state court” (384 
U.S. at 804), that basis exists when the charge against 
him is bottomed on his violation of a court-issued segrega­
tion order.

Indeed, the state court segregation order constitutes a 
separately sufficient ground for removal under §1443(1). 
This is a case in which the defendant has already been 
“denied . . .  in the courts of such State a right under 
[§1981].” The court’s segregation order, which Geison is 
charged with violating, denied him such rights. Peacock 
held that “It is not enough to support removal under 
§1443(1) to allege or show that the defendant’s federal 
equal civil rights have been illegally and corruptly denied 
by state administrative officials in advance of trial. . . . 
[T]hat does not show that . . . the defendant will be ‘denied 
or cannot enforce in the courts’ of the State any right under 
a federal law providing for equal civil rights.” 384 U.S. 
at 827-828. But here the illegality has already occurred in 
the courts of the State, and it is the state courts which



8

have already “denied . . .  a right” not to be racially segre­
gated, given by §1981.

Since the Federal District Court remanded the present 
case without a hearing, appellant was even denied an oppor­
tunity to establish that he was being prosecuted for con­
tempt solely for racial reasons. Under Rachel (384 U.S. 
at 805) it would be appropriate for the District Court to 
determine whether the petition’s allegations are true and 
thus clearly establish appellant’s right to removal under 
§1443(1).

CONCLUSION

For the foregoing reasons the order of the District 
Court remanding appellant’s case should be reversed.

Respectfully submitted,

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

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

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

Norman C. Amaker
Charles H. J ones, Jr.
J ack Greenberg

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



9

Certificate of Service

I hereby certify that I have served copies of the Brief 
for Appellant by mailing copies of same to Henry F. 
Reese, Jr., Esq., County Solicitor, Dallas County Court­
house, Selma, Alabama, and Blanchard McLeod, Esq., 
Circuit Solicitor, Camden, Alabama, by United States 
mail, postage prepaid, this 21st day of April, 1967.

Attorney for Appellant



A P P E N D I X



STATUTORY APPENDIX

1. 28 U.S.C. §1443(1) (1964) :
§1443. Civil rights cases

Any of the following civil actions or criminal prosecu­
tions, 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 en­
force 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. §1981 (1964) (R.S. §1977) (1870):
§1981. Equal rights under the law

All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal benefit 
of all laws and proceedings for the security of persons 
and property as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.

3. 42 U.S.C. §2000a (a) (1964) (See, 201(a) of the Civil 
Rights Act of 1964, 78 Stat. 243):
§2000a. Prohibition against discrimination or segre­

gation in places of public accommodation— 
Equal access



2a

(a) 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 dis­
crimination or segregation on the ground of race, color, 
religion, or national origin.

4. 42 TJ.S.C. §2000a-2 (1964) (Sec. 203 of the Civil Rights 
Act of 1964, 78 Stat. 244):
§2000a-2. Prohibition against deprivation of, interfer­

ence 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 with­
hold or deny, or deprive or attempt to deprive, any per­
son of any right or privilege secured by section 2000a 
or 2000a-l of this title, or (b) intimidate, threaten, or 
coerce, or attempt to intimidate, threaten, or coerce any 
person with the purpose of interfering with any right 
or privelege 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.



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