Cooper v. Alabama Brief for Appellants

    I n  t h e

llnxUb (Erutrt rtf Apprals
F ob the F ifth Circuit

No. 22424

A nnie L ee Cooper and Stanley Leroy W ise.

— v.-

Appellants,

State of A labama,
Appellee.

a p p e a l  f r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t

FOR THE SOUTHERN DISTRICT OF A L A B A M A

BRIEF FOR APPELLANTS

Peter A. H all
1630 Fourth Avenue, North 
Birmingham, Alabama

Jack Greenberg
Norman C. A maker
Charles H. J ones, J r.
Charles Stephen R alston
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

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

Attorneys for Appellants



I N D E X

PAGE

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

Specification of E rror ....................     4

A rgument :

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

A. The Removal Petition Is Sufficient Under 28
U. S. C. §1443(2) ...................................................  4

B. The Removal Petition Is Sufficient Under 28
U. S. C. §1443(1) ...................................................  6

Conclusion.................................     7

T able of Cases

Alabama v. Boynton, No. 3560-65, April 16, 1965 .......  3
Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark. 

1963)........................................................   6

Boynton v. Clark, No. 3559-65, entered January 23,
1965 ........................................................    2

Braun v. Sauerwein, 77 U. S. (10 Wall.) 218 (1869) .... 6

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

Cox v. Louisiana, 379 U. S. 536 (1965) ........ ........... . 6



PAGE

Dierks, Ex parte, 55 F. 2d 371 (D. Colo. 1932), man­
damus granted on other grounds sub nom. Colorado 
v. Symes, 286 IT. S. 510 (1932) ....................................... 5

Dornbrowski v. Pfister,------U. S . ------- , 33 IT. S. L. W.
4321 (April 26, 1965) ................. .....................................  7

Edwards v. South Carolina, 372 IT. S. 229 (1963) .......  5-6

Fields v. South Carolina, 375 U. S. 44 (1963) ..............  6

Hague v. CIO, 307 U. S. 496 (1939) .........    6
Henry v. Rock Hill, 376 U. S. 776 (1964) .......................  6
Hodgson v. Millward, 12 Fed. Cas. 285 (No. 6568)

(E. H. Pa. 1863) ................................................ .............  5
Hodgson v. Millward, 3 Grant (Pa.) 412 (1863) ..... .....  5

Logemann v. Stock, 81 F. Supp. 337 (D. Neb. 1949) ____ 5

New York v. Galamison, 2d Cir. Nos. 29166-75, decided
January 26, 1965, cert, den., ------  U. S. ------ , April
26, 1965 ................. ........ ................. ........... ............. . 6

Potts v. Elliott, 61 F. Supp. 378 (E. D. Ky. 1945) .......  5

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

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 (5th Cir. 1961), 
cert. den. 369 U. S. 850 (1962)

II

6



Ill

State and F ederal Statutes

PAGE

Code of Ala., Tit. 14, §120(1) ............................................  3

Code of Ala., Tit. 14, §412..................................................  3

28 U. S. C. §1443 ..................................................................  4, 5

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

28 U. S. C. §1443(2) ..........................................................4,5,6

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

42 U. S. C. §1983 ................................................................ 5, 6, 7



I n  t h e

'Mnittb States Court of A^pralo
F oe the F ifth Circuit 

No. 22424

A nnie Lee Cooper and Stanley L eroy W ise,
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 an order of United States Dis­
trict Judge Daniel H. Thomas, remanding to the Alabama 
court from which appellants had removed them, criminal 
prosecutions arising out of attempts by Negro citizens of 
Selma, Alabama to register to vote and to peacefully dem­
onstrate in support of their right to register without racial 
discrimination.

On January 22 and 28, 1965, a removal petition and an 
amendment thereto were filed, on the respective dates, in 
the United States District Court for the Southern District 
of Alabama (R. 1-25). No motion to remand was made by



2

appellee prior to entry of the remand order. Judge Thomas 
retained jurisdiction of all removed cases except those of 
appellants (E. 27-28).

The prosecution of appellant Annie Lee Cooper involved 
a charge of assault and battery (E. 19); the prosecution of 
appellant Stanley Leroy Wise involved a charge of public 
drunkenness, in violation of Code of Ala., Tit. 14, §120(1) 
(E. 23).

Since the prosecutions were remanded without hearing 
on the jurisdictional facts, the allegations of the removal 
petitions 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.

On January 25, 1965, several persons lined up in front 
of the Dallas County Courthouse in Selma, Alabama for 
the purpose of registering to vote. They did this in the 
exercise of their rights under the First, Fourteenth, and 
Fifteenth Amendments to the Constitution of the United 
States and implementing legislation and pursuant to the 
order of the United States District Court for the Southern 
District of Alabama in Boynton v. Clark, No. 3559-65, en­
tered January 23, 1965. That order provided, inter alia, 
that “ those seeking to register and those seeking to act as 
vouchers will form an orderly line not more than two 
abreast from the entrance of the office of the Board of Eeg- 
istrars down the corridor of the courthouse in a line most 
direct to and through the entrance of the Lauderdale Street 
door. . . . ” During the morning, of January 25, appellant 
Cooper, a member of the class of those legally entitled to 
register to vote, took a position on the voter registration 
line at a point near the Lauderdale Street entrance to the



3

Dallas County Courthouse. As she was standing there, 
Sheriff James Gf. Clark ordered her in a raucous manner 
to move from the street into an alley adjoining the court­
house. Appellant refused, whereupon Sheriff Clark ap­
proached her and struck her; appellant Cooper, exercising 
her right of self-defense, returned the blow. Thereafter, 
appellant was brutally beaten by Sheriff Clark and his as­
sistants. Appellant was charged with assault and battery 
and released on a total bond of $2,000.00 (R. 19).

On Tuesday, January 26, 1965, at approximately 2:00 
p.m., appellant Wise was present in a voter registration 
line at the Dallas County Courthouse. He and a number 
of others were arrested by Sheriff Clark 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. (These prosecu­
tions were eventually dismissed by Judge Thomas, Alabama 
v. Boynton, No. 3560-65, April 16, 1965.) Additionally, 
appellant Wise was charged with public drunkenness, in 
violation of Code of Ala., Tit. 14, §120(1).

Appellants’ arrests and subsequent prosecutions were 
and are being carried out with the purpose and effect of 
harassing them and punishing them for their attempt to 
register to vote and to exercise their right of free speech 
to protest discrimination in the voter registration process 
(R. 9-10). The conduct for which they are prosecuted is 
protected by the First, Fourteenth, and Fifteenth Amend­
ments to the Constitution of the United States and imple­
menting federal legislation, so that the state statutes under 
which they are charged are unconstitutional on their face 
or in their application (R. 8-9).



4

The remand order of Judge Thomas having been entered 
January 29, 1965 (R. 27-28), timely notice of appeal was 
filed on February 3, 1965 (R. 28-29); Judge Thomas there­
upon stayed his remand order pending disposition of the 
appeal (R. 30-31).

Specification of Error

1. The court below erred in holding that appellants’ peti­
tion for removal did not adequately allege a removable case 
under 28 U. S. C. §1443.

A R G U M E N T

Appellants’ Removal Petition Adequately States a 
Case for Removal Under 28 U. S. C. §1443.

“ If 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. §1443(2).

Appellants’ petition adequately alleges that they are 
prosecuted for acts under color of authority of federal 
laws providing for equal civil rights (R. 8, 11-12). See 
appellants’ Appendix Brief, Parts IIA, C, filed herewith.1

1 Because counsel for appellants are counsel in numerous cases 
pending in this Court which raise virtually identical issues of con-



5

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 
and 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 fed­
eral elections free of the racial discrimination proscribed by 
42 U. S. C. §1971), discussed in appellants’ Appendix Brief, 
Parts IIA, B (l) .  On the facts alleged in the removal peti­
tion, there can be no doubt that the conduct2 for which 
appellants are prosecuted is colorably3 protected by the 
First and Fourteenth Amendments, Edwards v. South Caro­

strnction of 28 U. S. C. §1443 (1958), appellants have sought leave 
of the Court to include the arguments common to all cases in an 
Appendix Brief, to be filed in all.

2 It should be remembered that the conduct of appellants must 
be taken to be that stated in the uncontroverted removal petition— 
not that stated in the charging papers.

3 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 federal- 
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 Dierks, 55 F. 2d 371, 374 (D. Colo. 
1932), mandamus granted on other grounds sub nom. Colorado v. 
Symes, 286 U. S. 510 (1932) ; Colorado v. Maxwell, 125 F. Supp. 
18, 23 (D. Colo. 1954), leave to file petition for prerogative 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. Gas. 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



6

lina, 372 U. S. 229 (1963); Fields v. South Carolina, 375 TJ. S. 
44 (1963); Henry v. Rock Hill, 376 U. S. 776 (1964); Cox 
v. Louisiana, 379 U. S. 536 (1965); and constitutes an exer­
cise 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 appellants to attempt to register to vote and 
to support others in attempting to register to vote are also 
protected by 42 U. 8. C. §1971. See United States v. Wood, 
295 F. 2d 772 (5th Cir. 1961), cert. den. 369 IT. S. 850 
(1962); United States v. Clark, S. D. Ala. C. A. No. 3438- 
64, decided April 16, 1965 (three-judge District Court). 
For these reasons, prosecution for those acts is removable.

B. The Removal Petition Is Sufficient Under 
28 U. S. C. §1 4 4 3 (1 ) .

Appellants’ petition adequately alleges that they are de­
nied and cannot enforce in the Alabama state courts rights 
under federal laws providing for equal civil rights (R. 11- 
13). See appellants’ Appendix Brief, Parts IIA, B. The 
rights claimed are those enumerated in the preceding para­
graph under the First, Fourteenth and Fifteenth Amend­
ments, and 42 U. S. C. §§1971, 1983, discussed in appellants’ 
Appendix Brief, Parts IIB (l) .

Appellants’ removal petition contains the allegation, 
which Judge Thomas necessarily assumed to be true for

Grier’s decision is approved in Braun v. Sauerwein, 77 IT. 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.



7

purposes of Ms decision, that the arrest and prosecution of 
appellants “ have been and are being carried on with the 
sole purpose and effect of intimidating and harassing 
[appellants] and of punishing them for, and deterring them 
from, exercising constitutionally protected rights . . . ” 
(B. 9). Such an allegation has been held to state a valid
claim under 42 U. S. C. §1983. Dombrowski v. Pfister,------
IT. S . ------ , 33 IT. 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 continuing harassment in order to discourage [civil 
rights] activities.” Thus, the Supreme Court has recognized 
a “ right” of citizens to be free of bad faith or harassment 
prosecutions; such a right is eo ipso “ denied” by prosecu­
tion.

CONCLUSION

For the foregoing reasons, the order of the District 
Court remanding appellants’ cases should be reversed.

Eespectfully submitted,

P eter A. Hall
1630 Fourth Avenue, North 
Birmingham, Alabama

J ack Greenberg
Norman C. A maker
Charles H. J ones, J r.
Charles Stephen B alston
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

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

Attorneys for Appellants



8

CERTIFICATE OF SERVICE

This is to certify that on May , 1965, I served a copy 
of the foregoing Brief For Appellants and Appendix Brief 
For Appellants on the attorneys for appellee listed below, 
by mailing copies thereof to them by United States mail, 
postage prepaid:

Honorable Blanchard McLeod,
Circuit Solicitor,

Dallas County Court House,
Selma, Alabama.

Honorable A. T. Beeves, Jr.,
City Prosecutor,

Dallas County Court House,
Selma, Alabama.

Honorable Henry Beese,
County Solicitor,

Dallas County Court House,
Selma, Alabama.

McLean Pitts, Esq.,
City Attorney,

Selma, Alabama.

Attorney for Appellants