Smith v Drew City Brief for Appellant

    Mmteii i>tatp£ (Em irt of A jip ra la
F or the F ifth Circuit

No. 22312

In the

J oe B. Smith,
Appellant,

City of Drew, Mississippi,
Appellee.

APPEAL FROM  TH E  U N ITED STATES DISTRICT COURT FOR TH E 

NORTH ERN  DISTRICT OF M ISSISSIPPI

BRIEF FOR APPELLANT

H enry M. A ronson 
R. Jess B rown 
C. A. F rerichs 
Carsie Hall

538% N. Farish Street 
Jackson, Mississippi 39201

J ack Greenberg 
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

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

Attorneys for Appellant



I N D E X

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

Specification of E rro r .......................................................  3

A rgument

I. Appellant’s Removal Petition Adequately States 
a Case for Removal Under 28 U. S. C. §1443 .....  4

II. Appellant’s Removal Petition Was Timely Filed 12

Conclusion .........................................................................  14

Statutory A ppendix ............................................................. la

Table of Cases

Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark. 
1963) .................................................................................  5

Braun v. Sauerwein, 77 U. S. (10 Wall.) 218 (1869) .... 5

Cleary v. Bolger, 371 U. S. 392 (1963) ..........................  13
Colorado v. Maxwell, 125 F. Supp. 18 (D. Colo. 1954), 

leave to file petition for prerogative writs denied 
sub nom. Colorado v. Knous, 348 U. S. 941 (1955) .... 5

Colorado v. Symes, 286 U. S. 510 (1932) ........................  5
Cox v. Louisiana, 379 U. S. 536 (1965) ..........................  5, 6

Dombrowski v. Pfister,------ U. S . ------- , 33 U. S. Law
Week 4321, April 26, 1965 .........................................10,12

Edwards v. South Carolina, 372 U. S. 229 (1963) .......  5
Ex parte Dierks, 55 F. 2d 371 (D. Colo. 1932), manda­

mus granted on other grounds sub nom. Colorado v. 
Symes, 286 U. S. 510 (1932)

PAGE

5



Fields v. South Carolina, 375 U. S. 44 (1963) ............... 5

Hague v. CIO, 307 U. S. 496 (1939) ..............................  5
Henry v. Rock Hill, 376 U. S. 776 (1964) ................... 5
Hodgson v. Millward, 3 Grant (Pa.) 412 (1863) ...........  5
Hodgson v. Millward, 12 Fed. Cas. 285 (No. 6568)

(E. D. Pa. 1863) .............................................................  5

In re Duane, 261 Fed. 242 (D. Mass. 1919) ................... 12

Knight v. State, 161 So. 2d 521 (1964), reversed sub
nom. Thomas v. Mississippi,------ U. S .------- , 33 U. S.
L. W. 3349 (April 26, 1965) .......................................... 9

Logeman v. Stock, 81 F. Supp. 337 (D. Neb. 1949) .... 5
Louisiana v. United States, 380 U. S. 145 (1965) .......  11

NAACP v. Button, 371 U. S. 415 (1963) ........................ 10
Nesmith v. Alford, 318 F. 2d 110 (5th Cir. 1963) ......  10
New York v. Galamison, ------  F. 2d ------ , 2d Cir.,

Nos. 29166-75, Jan. 26, 1965, cert. den. ------  U. S.
------ , April 26, 1965 ........................................................ 5

Potts v. Elliott, 61 F. Supp. 378 (E. D. Ky. 1945) .....  5
Pugach v. Dollinger, 365 U. S. 458 (1961) ................... 13

Rachel v. Georgia, 5th Cir., No. 21354, March 5, 1965.... 2, 4

Stefanelli v. Minard, 342 U. S. 117 (1951) ................... 13
Strauder v. West Virginia, 100 U. S. 303 (1880) .......... 7
Strauder v. West Virginia, 100 U. S. 303 (1880) ..........6,10
Stromberg v. California, 283 U. S. 359 (1931) ........... 10

11

PAGE



m

Tennessee v. Davis, 100 U. S. 257 (1880) ....................... 5

United States v. Clark, S. D. Ala. C. A., No. 3438-64,
decided April 16, 1965 .................................................. 6

United States v. Wood, 295 F. 2d 772 (5tk Cir. 1961), 
cert. den. 369 U. S. 850 (1962) ....................................  5

Statutes Involved

28 U. S. C. §74 (1940) .......................................................  12

28 U. S. C. §1443 ...............................................................  3, 4

28 U. S. C. §1443(1) ..........................................................6,10

28 U. S. C. §1443(2) .......................................................... 5

28 U. S. C. §1446(b) .......................................................... 13

28 U. S. C. §1446 (c) ....................................................... 12,13

42 U. S. C. §1971 .............................................................4, 5, 6

42 U. S. C. §1983 ........................................................... 4, 6,12

Habeas Corpus Suspension Act of 1863 ....................... 5

La. Const., Art. VIII, § l(d ) ............................................  11

Miss Code Ann., 1942, §2089.5 (Supp. 1964) .......1, 3, 6, 8,10

Miss. Code Ann., 1942, §1762 (Supp. 1964) ..................... 11

Miss. Code. Ann., 1942, §1762-01 (Supp. 1964) ................ 11
Miss. Code. Ann., 1942, §1202 ..........................................  12

Miss. Constitution, §241-A ..............................................  11

Miss. Constitution, §244 .................................................... 11

PAGE



In  the

llmtrii States GJmtrt of Appeals
F or the F ifth Circuit

No. 22312

J oe B. Smith,
Appellant,

—v.—

City of Drew, Mississippi,
Appellee.

APPEAL FROM TH E  UNITED STATES DISTRICT COURT FOR TH E 

NORTH ERN  DISTRICT OF M ISSISSIPPI

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from an order of United States District 
Judge Claude F. Clayton, remanding to the Mississippi 
court from which appellant had removed it a criminal pros­
ecution related to attempts by Negro citizens of the City 
of Drew, Mississippi to register to vote free of racial dis­
crimination.

On August 20, 1964, appellant filed in the United States 
District Court for the Northern District of Mississippi his 
verified petition for removal (R. 2-10). The removal pros­
ecution involved a charge of disturbance of the peace, in 
violation of Miss. Code Ann., 1942, §2089.5 (1964 Supp.), 
set out, infra, la. On September 8, 1964, appellee’s motion 
to remand to the Circuit Court of Sunflower County, Missis­



2

sippi, was filed (R. 12-14). The motion to remand chal­
lenged the sufficiency of the removal petition on its face 
(R. 13-14). Judge Clayton held no evidentiary hearing, 
but considered appellee’s motion to remand on briefs of 
the parties. On December 30, 1964, Judge Clayton entered 
an order remanding the case to the Circuit Court of Sun­
flower County on the grounds that “ [tjhere is no valid claim 
that any state statutory or constitutional provision will 
result in the denial of defendant’s equal civil rights on the 
trial of this case in the state court” (R. 21).

Since the prosecution was remanded without hearing on 
the jurisdictional facts, the factual allegations of the re­
moval petition must be taken as true for purposes of this 
appeal (Rachel v. Georgia, 5th Cir., No. 21354, decided 
March 5, 1965). Those allegations are as follows.

Appellant Joe B. Smith is a white citizen of the United 
States and of the State of New York. On August 13, 1964, 
at approximately 7 :00 p.m., appellant was engaged in con­
versation with Glenn Moore and Willie Saunders, Negro 
residents of the City of Drew, Mississippi in the Hunter 
High School playground in Drew (R. 2). Appellant was 
active in an attempt to encourage Negro citizens of the 
State of Mississippi to register to vote free of racial dis­
crimination and was and is a member of the Council of 
Federated Organizations, an unincorporated association of 
persons engaged in seeking by lawful means the equal rights 
of Negroes and all persons in the State of Mississippi and 
the United States (R. 2). Appellant had been engaged in 
conversation for about three minutes when he was ap­
proached by C. E. Floyd, Chief of Police of the City of 
Drew, and advised that he was under arrest for “ trespass­
ing on school property” (R. 3).



3

On August 14, 1964, appellant was tried before W. O. 
Williford, Mayor and Justice of the Police Court of the 
City of Drew, and was convicted of disturbance of the peace 
in violation of Mississippi Code Ann., 1942, §2089.5 (1964 
Supp.), and sentenced to 90 days’ imprisonment and fined 
the sum of three hundred dollars (R. 3). Appellant ap­
pealed to the Circuit Court of Sunflower County for trial 
de novo by posting an appeal bond in the sum of five 
hundred dollars (R. 3).

Appellant’s arrest and subsequent prosecution were and 
presently are being carried out with the purpose and effect 
of harassing him and punishing him for his attempt to 
exercise—and to encourage others to exercise— constitu­
tionally protected rights, particularly the right to register 
to vote free of racial discrimination (R. 6).

Judge Clayton’s remand order and stay pending appeal 
were entered December 30, 1964 (R. 20-22); notice of ap­
peal was timely filed January 9,1965 (R. 23).

Specification of Error

The court below erred in holding that appellant’s petition 
for removal did not state a removable case under 28 
U. S. C. §1443.



4

A R G U M E N T

I.
Appellant’s Removal Petition Adequately States a 

Case for Removal Under 28  U. S. C. §1443.

“ I f a petition for removal states sufficient in the way of 
allegations to support proof of adequate grounds for re­
moval, it is to be treated in the same manner as a com­
plaint in federal court.” Rachel v. Georgia, 5th Cir., No. 
21354, decided March 5, 1965, slip opinion at p. 8. “ Unless 
there is patently no substance in [the] . . . allegation, a 
good claim for removal has been stated.” Id. at p. 9.

A. The Removal Petition Is Sufficient Under 28 U. S. C.
§14 43(2 ).

Appellant’s petition adequately alleges that he is prose­
cuted for acts under color of authority of federal laws pro­
viding for equal civil rights (R. 5-6, 8). See appellant’s 
Appendix Brief, Parts IIA, C, filed herewith.1 The laws 
providing for equal civil rights which appellant invokes are 
42 U. S. C. §1971 (protecting the right to vote free of racial 
discrimination and to peacefully encourage others to do 
so) and 42 U. S. C. §1983 (protecting the First-Fourteenth 
Amendment right of freedom of expression and the federal 
privilege and immunity of supporting the right of Negro 
citizens to register to vote in state and federal elections 
free of the racial discrimination proscribed by 42 U. S. C.

1 Because counsel for appellant are counsel in numerous cases 
pending in this Court which raise virtually identical issues of con­
struction of 28 U. S. C. §1443 (1958), appellant has sought leave 
of the Court to include the arguments common to all cases in an 
Appendix Brief, to be filed in all.



5

§1971), discussed in appellant’s Appendix Brief, Parts 
IIA, B (l) . On the facts alleged in the removal peti­
tion, there can be no doubt that the conduct for which ap­
pellant is prosecuted is colorably2 protected by the First- 
Fourteenth Amendments, Edwards v. South Carolina, 372 
U. S. 229 (1963); Fields v. South Carolina, 375 U. S. 44 
(1963); Henry v. Rock Hill, 376 U. S. 776 (1964); Cox v. 
Louisiana, 379 U. S. 536 (1965); and constitutes an exercise 
of the federal privilege and immunity of supporting the 
efforts of Negro citizens to register to vote free of racial 
discrimination, cf. Hague v. CIO, 307 U. S. 496 (1939). The 
acts of appellant to support others in attempting to register 
to vote are also protected by 42 U. S. C. §1971. See United 
States v. Wood, 295 F. 2d 772 (5th Cir. 1961), cert. den.

2 A  state defendant petitioning for removal under §1443(2) is 
not required to show that he is protected by federal law : that ques­
tion is the issue on the merits after removal jurisdiction has been 
sustained. On the preliminary question of jurisdiction, it should 
be sufficient to show colorable protection. This is the rule in fed­
eral-officer removal cases, e.g., Tennessee v. Davis, 100 U. S. 257, 
261-62 (1880); Potts v. Elliott, 61 F. Supp. 378, 379 (E. D. Ky. 
1945) (civil case); Logemann v. Stock, 81 F. Supp. 337, 339 
(D. Neb. 1949) (civil case); Ex parte Dicrks, 55 F. 2d 371, 374 
(D. Colo. 1932), mandamus granted on other grounds sub nom. 
Colorado v. Siymes, 286 U. S. 510 (1932) ; Colorado v. Maxwell, 
125 F. Supp. 18, 23 (D. Colo. 1954), leave to file petition for pre­
rogative writs denied sub nom. Colorado v. Knous, 348 U. S. 941 
(1955), and it was so held under the Habeas Corpus Suspension 
Act of 1863 removal provisions, on which the removal section of 
the Civil Eights Act of 1866, now 28 U. S. C. §1443(2) (1958), was 
based. See Hodgson v. Millward, 12 Fed. Cas. 285 (No. 6568) 
(E. D. Pa. 1863) (civil case). The facts of the case appear in 
Hodgson v. Millward, 3 Grant (Pa.) 412 (Strong, J at nisi prius, 
1863), and Justice Grier’s decision is approved in Braun v. Sauer- 
wein, 77 U. S. (10 Wall.) 218, 224 (1869). New York v. Galamison,
2d Cir., Nos. 29166-75, decided January 26, 1965, cert, den., ------
U. S .------ , April 26, 1965, takes this view, in dictum, under present
§1443(2). Slip opinion at p. 976. Compare Arkansas v. Howard, 
218 F. Supp. 626 (E. D. Ark. 1963), where defendant was unable 
to make a colorable showing.



6

369 U. S. 850 (1962); United States v. Clark, S. D. Ala. 
C. A., Xo. 3438-64, decided April 16, 1965 (three-judge Dis­
trict Court). For these reasons, prosecution for those acts 
is removable.

B. The Removal Petition Is Sufficient Under 28 U. S. C. 
§14 43(1 ).

Appellant’s petition adequately alleges that he is denied 
and cannot enforce in the Mississippi state courts rights 
under federal laws providing for equal civil rights (E. 6-10). 
See appellant’s Appendix Brief, Parts IIA, B. The rights 
claimed are those enumerated in the preceding paragraph 
under the First, Fourteenth and Fifteenth Amendments, 
and 42 U. S. C. §§1971, 1983, discussed in appellant’s Ap­
pendix Brief, Parts IIB (l).

Appellant relies upon Strauder v. West Virginia, 100 
U. S. 303 (1880) (see appellant’s Appendix Brief, Part 
H B (2 )), since the state statute under which appellant is 
prosecuted is offensive to the Constitution of the United 
States.

Miss. Code Ann., 1942, §2089.5 (1964 Supp.), under which 
appellant is prosecuted, is unconstitutionally vague. Cox 
v. Louisiana., 379 U. S. 536, 551-52 (1965). In Cox, the 
Supreme Court of the United States struck down for over- 
breadth a Louisiana statute which provided, in relevant 
part:

Whoever with intent to provoke a breach of the 
peace, or under circumstances such that a breach of 
the peace may be occasioned thereby . . . crowds or 
congregates with others . . .  in or upon . . .  a public 
street or public highway, or upon a public sidewalk, or



7

any other public place or building . . . and who fails 
or refuses to disperse and move on . . . when ordered 
so to do by any law enforcement officer of any munici­
pality, or parish, in which such act or acts are com­
mitted, or by any law enforcement officer of the state 
of Louisiana, or any other authorized person . . . shall 
be guilty of disturbing the peace. La. Rev. Stat. 
§14:103.1 (Cum. Supp. 1962).

The Court held that impermissible vagueness inhered in the 
phraseology “with intent to provoke a breach of the peace, 
or under circumstances such that a breach of the peace 
may be occasioned”, saying (379 U. S. at 551-52):

The Louisiana Supreme Court in this case defined the 
term “breach of the peace” as “ to agitate, to arouse 
from a state of repose, to molest, to interrupt, to hin­
der, to disquiet.” 244 La., at 1105, 156 So. 2d, at 455. 
[This] definition would allow persons to be punished 
merely for peacefully expressing unpopular views. 
Yet, a “ function of free speech under our system of 
government is to invite dispute. It may indeed best 
serve its high purpose when it induces a condition of 
unrest, creates dissatisfaction with conditions as they 
are, or even stirs people to anger. Speech is often 
provocative and challenging. It may strike at preju­
dices and preconceptions and have profound unsettling 
effects as it presses for acceptance of an idea. That is 
why freedom of speech . . . is . . . protected against 
censorship or punishment . . . There is no room under 
our Constitution for a more restrictive view. For the 
alternative would lead to standardization of ideas either 
by legislatures, courts, or dominant political or com­



8

munity groups.” Terminiello v. Chicago, 337 U. S. 1, 
4-5. In Terminiello convictions were not allowed to 
stand because the trial judge charged that speech of 
the defendants could be punished as a breach of the 
peace “ ‘if it stirs the public to anger, invites dispute, 
brings about a condition of unrest, or creates a dis­
turbance, or if it molests the inhabitants in the enjoy­
ment of peace and quiet by arousing alarm.’ ” Id., at 3. 
The Louisiana statute, as interpreted by the Louisiana 
court, is at least as likely to allow conviction for inno­
cent speech as was the charge of the trial judge in 
Terminiello. Therefore, as in Terminiello and Edwards 
[v. South Carolina, 372 U. S. 229 (1963)] the convic­
tion under this statute must be reversed as the statute 
is unconstitutional in that it sweeps within its broad 
scope activities that are constitutionally protected free 
speech and assembly. Maintenance of the opportunity 
for free political discussion is a basic tenet of our con­
stitutional democracy. As Chief Justice Hughes stated 
in Stromberg v. California, 283 U. S. 359, 369: “ A 
statute which upon its face, and as authoritatively con­
strued, is so vague and indefinite as to permit the pun­
ishment of the fair use of this opportunity is repug­
nant to the guaranty of liberty contained in the 
Fourteenth Amendment.”

The same degree of impermissible vagueness inheres in 
§2089.5, since it punishes “ [a]ny person who disturbs the 
. . . peace of others . . .  by conduct either calculated to pro­
voke a breach of the peace, or by conduct which may lead 
to a breach of the peace, or by any other act. . . . ”



9

As construed by the Supreme Court of Mississippi, the 
term “ breach of the peace” reaches federally protected 
activities that create unrest in others, such as the effort of 
a racially mixed group to enter and remain in a white 
waiting room in a bus terminal. Kniglit v. State, 161 So. 2d 
521 (1964), reversed per curiam, sub nom. Thomas v. Mis­
sissippi, ------  U. S. ------ , 33 U. S. L. W. 3349 (April 26,
1965). In Knight, the Supreme Court of Mississippi found 
a “breach of the peace” in the following circumstances (161 
So. 2d at 522):

When the [Negro] defendant and her [racially 
mixed] group of seven others, after disembarking 
from the bus, entered the west (white) waiting room 
of the Terminal, the mood of the fifty people, including 
some newspapermen, on the inside, immediately 
changed. It became “ ugly and nasty” . The people be­
gan to move in and toward the group. The officers saw 
expressions on the faces of the people and heard their 
talk about this crowd and their accusations that the 
group were a bunch of agitators and trouble makers. 
The defendant used no vulgar or indecent language 
and made no unusual gestures; but she appeared to 
be afraid. At no time did she advise the officers that 
she had business in the waiting room nor did she 
assert any claim that she was exercising her right of 
free speech or any other right.

Captain Ray, seeing the change in the attitude of 
the people, and deeming that the defendant and her 
group were the root of the trouble, and believing that, 
under the circumstances then existing, a breach of the 
peace was about to occur, twice ordered the defendant



10

and the other members “ to move on” . When they re­
fused, he arrested all of them.

The Supreme Court of the United States has consistently 
warned that, where freedom of expression is involved, vague 
penal laws cannot be tolerated. Stromberg v. California, 
283 U. S. 359, 369 (1931); NAACP v. Button, 371 U. S.
415, 433 (1963); Dombrowski v. Pfister, ------  U. S. ------ ,
33 U. S. L. W. 4321 (April 26, 1965). One important rea­
son for this ban is that statutes such as §2089.5 provide 
law enforcement officers with a blank check; in effect, 
§2089.5 gives a policeman discretion to arrest any person 
in a public place whom he finds objectionable. Thus, a 
person may be forced not only to relinquish his constitu­
tional rights, but may also be forced to answer criminally 
for their exercise. As this Court recognized in Nesmith 
v. Alford, 318 F. 2d 110, 121 (5th Cir. 1963):

[LJiberty is at an end if a police officer may without 
warrant arrest, not the persons threatening violence, 
but those who are its likely victims, merely because the 
person arrested is engaging in conduct which, though 
peaceful and legally and constitutionally protected, is 
deemed offensive and provocative to settled social cus­
toms and practices. When that day comes . . . the 
exercise of [First Amendment rights] must then con­
form to what the conscientious policeman regards the 
community’s threshold of intolerance to be.

In addition, appellant’s case is removable under 28 
U. S. C. §1443(1) as construed in Strauder v. West Vir­
ginia, 100 U. S. 303 (1880), because appellant is denied 
and cannot enforce in the state courts his right to trial by 
a jury from which Negroes are not discriminatorily ex­



11

eluded. By force of the holding3 in Louisiana v. United 
States, 380 U. S. 145 (1965), certain of Mississippi’s con­
stitutional provisions governing the qualifications of elec­
tors4 are void on their face, and hence Miss. Code Ann., 1942, 
§1762 (Supp. 1964), which, in effect, qualifies only electors 
as jurors,5 is equally facially unconstitutional.

Finally, appellant’s removal petition contained the alle­
gation, which Judge Clayton assumed to be true for pur­
poses of his decision, that the arrest and prosecution of 
appellant “have been and are being carried on with the 
sole purpose and effect of harassing [appellant] and of 
punishing him for, and deterring him from, exercising his 
constitutionally protected rights . . . ”  (R. 6). Such an

3 The Supreme Court struck down Louisiana’s voter registration 
laws because they vested in the registrars discretion to determine 
the qualifications of applicants for registration circumscribed by 
no definite or objective standards for the registration process. The 
Louisiana laws provided, inter alia, that an applicant “be able to 
understand and give a reasonable interpretation of any section of 
[the United States or Louisiana] Constitution when read to him by 
the registrar.”  La. Const. Art. VIII, § l (d ) .

4 Mississippi Constitution §244, in relevant part:
Every elector shall, in addition to the foregoing qualifica­
tions be able to read and write any section of the Constitu­
tion of this State and give a reasonable interpretation 
thereof to the county registrar. He shall demonstrate to 
the county registrar a reasonable understanding of the duties 
and obligations of citizenship under a constitutional form 
of government . . . .

Mississippi Constitution, §241-A:
In addition to all other qualifications required of a person 
to be entitled to register for the purpose of becoming a quali­
fied elector, such person shall be of good moral character.

5 Miss. Code Ann., 1942, §1762 (Supp. 1964):
Every male citizen not under the age of twenty-one (21) 
years, who is either a qualified elector or a resident free­
holder of the county for more than one year . . .  is a com­
petent juror . . . .

Resident freeholders may be qualified as jurors only pursuant to 
special judicial proceedings in the circuit courts. Miss. Code Ann 
1942, §1762-01 (Supp. 1964).



12

allegation has been held to state a valid claim under 42
U. S. C. §1983. Dombrowski v. Pfister,------U. S . ------- , 33
U. S. L. W. 4321, 4324 (April 26, 1965). In Dombrowski, 
the United States Supreme Court held that federal courts 
should enjoin state prosecutions brought “ to impose con­
tinuing harassment in order to discourage [civil rights] 
activities.” Thus, the Supreme Court recognized a “ right” 
of citizens to be free of bad faith or harassment prosecu­
tions; such a right is eo ipso “denied” by prosecution.

II.

Appellant’s Removal Petition Was Timely Filed.

Appellant’s removal petition was filed “ before trial” 
within the meaning of 28 U. S. C. §1446(c), since it was 
filed before appellant’s trial de novo in the circuit court.6 
This is demonstrated by the legislative history of 28 U. S. C. 
§1446(c). Prior to 1948, the civil rights removal provisions 
pertaining to criminal prosecutions allowed the filing of a 
removal petition “ at any time before the trial or final
hearing-----” 7 Under these provisions, removal was timely
if effected subsequent to a summary trial but prior to a 
trial de novo.8 The 1948 revisers apparently intended no 
change, since the purposes of the removal acts in criminal

6 Mississippi law permits a trial de novo in a court of record 
after summary trial in a court of no record. Miss. Code Ann. 1942, 
§1202.

7 Rev. Stat. §641; Judicial Code §31 (1911); 28 U. S. C. §74 
(1940). The original provision, Act of April 9, 1866, §3, 14 Stat. 
27, had adopted the procedure of the Act of March 3, 1863, §5, 
12 Stat. 755, 756, which, as amended by the Act of May 11, 1866, 
§3, 14 Stat. 46, allowed removal “ before a jury is empanelled.”

8 In re Duane, 261 Fed. 242 (D. Mass. 1919).



13

cases might be thwarted if a defendant could be “ rushed 
into trial in State courts before [a] petition for removal 
could be filed” 9 (Historical and Revision Notes to 28 
U. S. C. §1446(c)). The revisers said: “ Words ‘or final 
bearing’ following the words ‘before trial’, were omitted 
for purposes of clarity and simplification of procedure.” 10

The allowance of removal prior to trial de novo is sup­
ported by policy as well as legislative history. If a state 
trial has actually begun, interests of comity, efficiency of 
judicial administration and avoidance of piecemeal litiga­
tion dictate against federal intervention.11 But when a 
defendant is accorded a trial de novo and removes his 
case prior to the commencement of trial, no such interests 
bar the way to retention of federal jurisdiction.

9 This is exactly what happened in this case: appellant was 
rushed into state court trial the day after his arrest (R. 2-3, 15-16).

10 This revision note may be contrasted with the note to §1446(b ), 
governing civil cases, where a change of law was clearly intended.

11 See Stefanelli v. Minard, 342 U. S. 117, 120, 123-24 (1951); 
Pugach v. Bollinger, 365 U. S. 458 (1961); Cleary v. Bolger, 371 
U. S. 392,401 (1963).



14

CONCLUSION

For the foregoing reasons, the order of the district 
court remanding appellant’s case should be reversed.

Respectfully submitted,

Henry M. A ronson 
R. Jess Brown 
C. A. F rerichs 
Carsie Hall

538% N. Farish Street 
Jackson, Mississippi 39201

Jack Greenberg 
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

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

Attorneys for Appellant



Certificate o f Service

T his is to certify that on May ....... , 1965, I served a
copy of the foregoing Brief for Appellant and Appendix 
Brief for Appellant upon P. J. Townsend, Jr., Esq., 
attorney for appellee, by mailing a copy thereof to him, 
c/o  Townsend and Welch, 111 South Main Street, Drew, 
Mississippi, by United States mail, postage prepaid.

Attorney for Appellant



A P P E N D I X



la

STATUTORY APPENDIX

28 U. S. C. §1443 (1958):

§1443. Civil rights cases

Any of the following civil actions or criminal prose­
cutions, 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 a right under any 
law providing for the equal civil rights of citizens of 
the United States, or of all persons within the juris­
diction thereof;

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

Miss. Code Ann., 1942, §2089.5:

§2089.5. Disturbance of the public peace, or the peace 
of others.

1. Any person who disturbs the public peace, or the 
peace of others, by violent, or loud, or insulting, or 
profane, or indecent, or offensive, or boisterous con­
duct or language, or by intimidation, or seeking to in­
timidate any other person or persons, or by conduct 
either calculated to provoke a breach of the peace, or 
by conduct which may lead to a breach of the peace, 
or by any other act, shall be guilty of a misdemeanor,



2a

and upon conviction thereof, shall be punished by a fine 
of not more than five hundred dollars ($500.00), or by 
imprisonment in the county jail not more than six (6) 
months, or both.

2. The provisions of this act are supplementary to 
the provisions of any other statute of this state.

3. I f any paragraph, sentence or clause of this act 
shall be held to be unconstitutional or invalid, the 
same shall not affect any other part, portion or pro­
vision thereof, but such other part shall remain in full 
force and effect.

Sources : Laws, 1960, ch. 254, §§1-3.



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