Boynton v. Alabama Brief for Appellants

    I n  t h e

(Eflurt of
F ob t h e  F if t h  C ircuit 

No. 22,269

A m elia  P. B oynton, et al.,

v .

Appellants,

S tate of A labama,
Appellee.

A P P E A L  FR O M  T H E  U N IT E D  STA T E S D IST R IC T  CO U RT FO R T H E  

S O U T H E R N  D IS T R IC T  O F ALABAMA

BRIEF FOR APPELLANTS

P eter A. H all

1630 Fourth Avenue North 
Birmingham, Alabama

J ack Greenberg 
N orman C. A maker 
C harles H . J ones, J r.
C harles S t e ph e n  R alston 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



I N D E X

PAGE

Statement of the Case ................... ..............................  1
(1) Appellants Boynton and Gildersleeve ..........  2
(2) Appellant McRay ........................   3
(3) Appellant Vivian ........... ................... .............  4

Specification of Error ..................................................  5

A rgum ent—

Appellants’ Removal Petition Adequately States 
a Case for Removal Under 28 U. S. C. §1443 ......  6
I. The Removal Petition Is Sufficient Under 28 

U. S. C. §1443(2) ..............................................  6
A. “Color of Authority” and “Quasi-Official”

Conduct ........................   8
B. Law Providing for Equal Rights ...............  13
C. The Acts for Which Appellants Are Pros­

ecuted ............................................................. 14
II. The Removal Petition Is Sufficient Under 28 

U. S. C. §1443(1) ............................................  16

Conclusion .............................      22



T able of Cases

PAGE

Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark. 
196S) -..............-..................... -................. -.............6,14,15

Board of Education of City of New York v. City-Wide 
Committee for Integration, 342 F. 2d 284 (2nd Cir.
1965) ....... .................................. ,.............................. .. io

Boynton v. Clark, 10 Race Rel. L. Rep. 215 (S. D. Ala.
1/23/65) ----- ---------------- -------- -------------- 3, 4,10,12

Braun v. Sauerwein, 77 U. S. (10 Wall.) 218 (1869) .....7,12
Bush v. Kentucky, 107 U. S. 110 (1883) ............. ........ 19

Carmichael v. City of Greenwood, 5th Cir., No. 22289
(slip. op. 9/30/65) ........................................... 6

Colorado v. Knous, 348 U. S. 941 (1955) ........... .........  15
Colorado v. Maxwell, 125 F. Supp. 18 (D. Colo. 1954), 

leave to file petition for prerogative writs denied
sub nom. ......... .............................................  15

Colorado v. Symes, 286 U. S. 510 (1932) ..................... 15
Annie Lee Cooper and Stanley Leroy Wise v. State of

Alabama, 5th Cir., No. 22424 .... .... ............. ..... .... ...... 2
Cox v. Louisiana, 348 F. 2d 750_______________ 6,16,20
Cunningham v. Neagle, 135 U. S. 1, 10 S. Ct. 658, 34 

L. Ed. 55 (1890) ____ ____ ________ __ _______ 12

Dilworth v. Riner, 343 F. 2d 226 (5th Cir. 1965) ___  18
Ex parte Dierks, 55 F. 2d 371 (D. Colo. 1932), man­

damus granted on other grounds sub nom________ 15

Forman v. City of Montgomery, 245 F. Supp. 17 (M. D.
Ala. 1965) ______ __________ ________ 21

Galloway, et al. v. City of Columbus, 5th Cir., No. 22935 
(slip. op. 11/24/65) ................. ........... ...... 6



Ill

PAGE

Gibson v. Mississippi, 162 U. S. 565 (1896) .......... ....... 19

Hodgson v. Millward, 3 Grant (Pa.) 412 (Strong, J.,
at nisi prius, 1863) ............... ....................... ............7,15

Hodgson v. Millward, 12 Fed. Cas. 285 (No. 6568)
(E. I). Pa. 1863) .................. ...... ................ ................7,15

Hughley, et al. v. City of Opelika, No. 2319-E (M. D.
Ala. 11/18/65) ............................................................. 21

Johnson v. City of Montgomery, 245 F. Supp. 25 (M. D.
Ala. 1965) ..................................................................  21

Kentucky v. Powers, 201 U. S. 1 .................................  19

Logemann v. Stock, 81 F. Supp. 337 (D. Neb. 1949) .... 15

John L. McMeans, et al. v. Mayor’s Court of Fort 
Deposit, Alabama, et al., No. 11,759-N (M. D. Ala. 
9/30/65) ......................................................................  21

McNair, et al. v. City of Drew, 5th Cir. No. 22288
(slip. op. 9/28/65) ...................................................... 6

Maryland v. Soper, 270 U. S. 9 .................................. . 15

Neal v. Delaware, 103 U. S. 370 (1881) .....................  19

Peacock v. City of Greenwood, 347 F. 2d 679 (5th Cir.
1965) ............................ ...........................6, 8, 9,10,15,16,

17,18,19, 20, 21
People of New York v. Galamison, 342 F. 2d 255 (2nd

Cir. 1965) ........................................................8,10,12,13,
14,15,17

Potts v. Elliott, 61 F. Supp. 378 (E. D. Ky. 1945) ....... 15



I V

PAGE

Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965) ....13,15,16,
18,19, 20

Robinson v. State of Florida, 345 F. 2d 133 (5th Cir.
1965) ......... ................................................................. 6,15

Rogers v. City of Tuscaloosa, 5th Cir., No. 21,700 
(slip. op. 11/8/65) .............................................. .....20,21

Tennessee v. Davis, 100 U. S. 257 (1880) ...... ..............  15

United States v. Clark, 10 Race Rel. L. Rep. 236 ....14,17,18 
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961)

14,17,18
Virginia v. Rives, 100 U. S. 313 .................................. 19

Weathers v. City of Greenwood, 347 F. 2d 986 (5th
Cir. 1965) ................................................................... 6,16

In Re Wright, et al., No. 11,739-N (M. D. Ala. 8/3/65) .. 21

S tatutes I nvolved

Act of April 9, 1866, ch. 31, §3, 14 Stat. 27 ..............8,12
Civil Rights Act of 1960 ......... ..................................... 7
Civil Rights Act of 1964 ..............................................  18

Habeas Corpus Suspension Act ..................................12,15
28 U. S. C. §1443 ....... ............................................. 5,6,14
28 U. S. C. §1443(1)  ...... .......... ............ 5,6,8,9,10,13,

16,18,19,21
28 U. S. C. §1443(2) ................. ................... ..5, 6, 7, 8, 9,10,

12,13,14
42 U. S. C. §1971 .... ......................................5, 7,10,12,13,

14,16,17,18



V

PA G E

42 u. S. C. §1981............................................................. 5, 8
42 U. S. C. §1982 ............................................................. 5
42 U. S. C. §1983 ........ .......................................... .........  5
Code of Alabama, Title 14, §41 ...................................  3,4
Code of Alabama, Title 14, §412 ...................................  3
1954 City Code (Selma, Ala.), §745 ......................... 3



I n  t h e

Intfrfc States GImirt of Appeals
F ob t h e  F if t h  C ircuit  

No. 22,269

A melia  P. B oynton, et at.,

v.
Appellants,

S tate of A labama,
Appellee.

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from an order of United States Dis­
trict Judge Daniel H. Thomas, remanding, without hear­
ing, four criminal prosecutions to the Alabama courts from 
which appellants had removed them, arising out of at­
tempts by Negro citizens of Selma, Alabama, during the 
months of January and February, 1965, to register to vote 
and to peacefully demonstrate in support of their right to 
register without racial discrimination.

On January 22, 1965, a joint petition was filed in the 
United States District Court for the Southern District of 
Alabama seeking to remove approximately 220 criminal 
prosecutions, including those against appellants Amelia P. 
Boynton and James Gildersleeve, from the County and 
Juvenile Courts of Dallas County, Alabama (R. 4-17). This 
petition was amended on two occasions pertinent hereto:



2

January 28, 1965, and February 17, 1965, adding, respec­
tively, appellants Willie McRay and C. T. Vivian (R. 
18, 26).

Appellee, State of Alabama, filed motions on February 
3 and 19, 1965, to remand the original removal petition, 
and its amendments-(R. 19, 26). No motion was made by 
plaintiff City of Selma to remand appellant McRay’s claim 
prior to entry of the remand order. Judge Thomas retained 
jurisdiction and dismissed all removed cases except those 
of appellants here, Annie Lee Cooper and Stanley Leroy 
Wise (R. 35-38).J

Upon remanding each of these cases, District Judge 
Thomas noted that “ [t]he petition on its face shows that 
[the] offense is not a removable action” (id.). Because the 
remand motions tested only the jurisdictional sufficiency 
of the facts, the allegations of the removal petition, and 
its amendments, must be taken as true. Those allegations 
with respect to each prosecution are set forth below.

(1 )  Appellants Boynton and Gilder sleeve

On January 19, 1965, approximately 62 persons lined up, 
either inside or at the rear of the Dallas County court­
house to register to vote (R. 5, 7). They did this in the 
exercise of rights under the First, Fourteenth, and Fif­
teenth Amendments to the United States Constitution and 
implementing legislation. Appellants Boynton and Grilder- 
sleeve were then acting as voter qualification vouchers 
and their duties required them to enter and exit frequently 
from the court building. Both were intercepted by Dallas 
County Sheriff James G. Clark’s deputies: appellant

1 An appeal from the remand of Cooper and Wise, arising out of 
related incidents, is now pending before this court under style, Annie 
Lee Cooper and Stanley Leroy Wise v. State of Alabama, 5th Cir., No. 
22424.



3

Boynton upon departing from the coirrt building for re­
fusing to join a group of potential registrants assembled 
behind the building; appellant Gildersleeve while attempt­
ing to enter the building after a refusal by a sheriff’s 
deputy to permit his entry to assist in the registration 
(R. 5, 6).

Appellants Boynton and Gildersleeve were placed under 
arrest and charged with criminal provocation (Code of 
Ala., Tit. 14, §41). Both were incarcerated and subse­
quently released from custody upon personal recognizances 
(R. 6, 7).

Shortly after appellants’ arrests, persons assembled be­
hind the court building, some at the direction of sheriff’s 
deputies, 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 (R. 5, 7). As noted, their 
prosecutions were all subsequently dismissed.

(2 )  Appellant McRay

On January 25, 1965, appellant McRay approached a 
voter registration line outside the Dallas County court­
house and attempted to talk with one or several persons 
standing in line (R. 18). He was arrested by policemen 
of the City of Selma and charged with refusing to obey 
a city officer (§745, 1954 City Code) (id.). Appellant 
McRay sought to lend encouragement to those seeking to 
register, clearly an exercise of 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, 
10 Race Rel. L. Rep. 215, entered January 23, 1965. That



4

order provided, inter alia, that “[T]hose 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 Registrars down the corridor of 
the courthouse in a line most direct to and through the 
entrance of the Lauderdale Street door . . .” (Emphasis 
added) (ibid. 216). The order also provided that “(p)eople 
who are interested in encouraging people legally qualified 
to register have a perfect right to lend such encourage­
ment; and as long as this is sought through peaceful as­
semblage, such assemblage is not to be illegally interfered 
with.” Appellant McRay was released from custody on a 
bond of $200.00 (R. 18).

(3 )  Appellant Vivian

During the afternoon of February 16, 1965, at about 
2 :00, appellant Vivian arrived at the Dallas County court­
house to speak to potential voter registrants, who were 
lined up in front of the building (R. 26, 27). He advised 
them that their line could be reformed inside the court­
house, since they could not be required to stand in the 
rain (R. 27). Their entry was barred by sheriff’s deputies, 
and after a heated exchange of words with Sheriff Clark, 
appellant and the others were forcibly driven from the 
courthouse stairway, and Vivian was struck in the mouth 
by one of the officers. Immediately preceding the forced 
removal, Clark read an order, issued by Alabama Circuit 
Judge Hare, ordering the assembly to disperse (R. 27, 28). 
Appellant, alone, was placed under arrest, charged with 
contempt of Judge Hare’s court and criminal provocation 
(Code of Ala., Tit. 14, §41).

Appellants arrests and prosecutions were and are be­
ing carried on with the purpose and effect of harassing 
them and punishing them for their attempt to register to



5

vote, and for exercising their right of free speech to pro­
test discrimination in the voter registration process (R. 
12-13). The conduct for which they are prosecuted is pro­
tected by the First, Fourteenth and Fifteenth Amendments 
to the Constitution of the United States and implementing 
federal legislation, so that the state statute and city 
ordinance under which they are charged are unconstitu­
tional in their application (R. 11, 12, 13-17). Appellants 
are also being prosecuted for acts done under color of au­
thority derived from the federal constitution and laws pro­
viding for equal rights, i.e., United States Constitution, 
Amendments I and XIV, and 42 U. S. C. §§1971, 1981, 1982 
and 1983 (R. 14-15).

The remand order of Judge Thomas, having been en­
tered April 16, 1965 (R. 35-38), timely notice of appeal 
was filed on April 26, 1965 (R. 38-39). The district court 
refused to grant appellants’ motion for stay of the remand 
order (R. 39-41). This court, to preserve the questions 
presented on appeal, granted appellants’ motion for stay 
pending appeal (R. 43-46, 50-51).

Specification o f Error

The court below erred in remanding appellants’ petition 
for removal, without hearing, on the ground that the peti­
tion, facially, did not state a removable claim under 28 
U. S. C. §1443.



6

ARGUMENT

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

The District Court’s order, here appealed from, was en­
tered before decision by the United States Court of Ap­
peals for the Fifth Circuit -in Peacock v. City of Green­
wood,, 347 F. 2d 679 and Cox v. Louisiana, 348 F. 2d 750, 
which severely restricted remand without hearing where 
facts are alleged as in the present cases.2 Peacock and 
Cox more precisely delimit the scope of removal jurisdic­
tion under Title 28 U. S. C. §1443 and abundantly support 
appellants’ removal claims.

I. The Removal Petition Is Sufficient Under
28 U. S. C. § 1 4 4 3 (2 ).

Subsection 2 of 28 U. S. C. §1443 allows removal by a 
defendant of any prosecution “ [f]or any act under color of 
authority derived from any law providing for equal rights.” 
This provision, until recently, has seldom been litigated 
and has never been construed in its application to circum­
stances like those in the present case.3

2 Indeed, this court has recently summarily reversed several cases where 
district courts failed to afford appellants a hearing on their §1443(1) 
claims. Carmichael v. City of Greenwood, 5th Cir., No. 22289 (slip. op. 
9/30/65; Galloway, et al. v. City of Columbus, 5th Cir., No. 22935 (slip, 
op. 11/24/65) ; McNair, et al. v. City of Brew, 5th Cir., No. 22288 (slip, 
op. 9/28/65); Weathers v. City of Greenwood, 347 F. 2d 986 (5th Cir. 
1965) ; Robinson v. State of Florida, 345 F, 2d 133 (5th Cir. 1965).

3 The construction of §1443(2) urged by appellants McRay and Vivian 
here is similar to that urged by Annie Lee Cooper and Stanley Leroy 
Wise in an appeal now pending before this court. See, fn. 1, supra.

In Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark. 1963), removal 
was sought of prosecutions for assault with intent to kill and for carry­
ing a knife, charges arising out of a fight between the defendant and a 
white student after rocks were thrown at the station wagon in which 
defendant was escorting home from school two Negro students (one,



7

Appellants McRay and Vivian here contend: (A) that a 
private person may invoke the “color of authority” pro­
tection of §1443(2) if his conduct is encouraged or induced 
by an equal civil rights law, because he thereby acts in a 
quasi-official capacity; (B) 42 IJ. S. C. §1971 and an en­
forcing judicial order are “law(s) providing for equal 
rights” which protect, inter alia, acts such as those alleged 
herein, which are an exercise of the freedom to encourage 
voter registration; (C) that appellants McRay and Vivian 
are being prosecuted for such authorized acts.

defendant’s niece) who had that day been enrolled under federal court 
order in a previously segregated school. Defendant invoked §1443 (2) on 
the theory that in escorting the children and in protecting himself and 
them from persons who sought to frustrate enrollment, he was acting 
under color of authority derived from the Civil Eights Act of 1960, under 
which the enrollment order was made. The District Court assumed 
arguendo that in some circumstances removal under §1443(2) was avail­
able to a private individual charged with an offense arising out of his 
act of escorting pupils to a school being desegregated under federal court 
order, but held that this defendant, in his knife fight with the white 
student, was not implementing the court’s integration order, since that 
order made no provision for transporting or escorting the children to 
school (in light of the previously peaceful history of the school con­
troversy, by virtue of which, prior to the day of enrollment, there was 
no reason to anticipate violence) ; hence there was no “proximate connec­
tion,” 218 F. Supp. at 634, between the court’s order and defendant’s 
fight.

In Hodson v. Millward, 12 Fed. Cas. 285 (E. D. Pa. 1863), approved 
in Braun v. Sauerwein, 10 Wall. 218, 224 (1869), Justice Clifford held 
that a sufficient showing of “color of authority” was made to justify 
removal under the 1863 predecessor of 28 U. S. C. §1443(2) where it 
appeared that the defendants in a civil trespass action, a United States 
marshal and his deputies, seized the plaintiff’s property under a warrant 
issued by the federal district attorney, purportedly under authority of a 
Presidential order, notwithstanding that the order might have been in­
valid. For the facts of the case, see Hodgson v. Millward, 3 Grant (Pa.) 
412 (Strong, J. at nisi prius, 1863). This case established the proposition 
that “color of authority” may be found where a federal officer acts under 
an order which is illegal.



8

A. “Color of A uthority” and “Quasi-Official” Conduct.

Peacock, supra, restricted the category of persons who 
could claim to be acting under “color of authority” by de­
ciding that §1443(2)’s coverage “is limited to federal of­
ficers and those assisting them or otherwise acting in an 
official or quasi-official capacity.” 347 F. 2d at p. 686.

The referent to “those . . . otherwise” is not circum­
scribed by the preceding “federal officers . . . and those 
assisting them,” and would ostensibly embrace private per­
sons not aiding or assisting federal officers,4 except for 
the Peacock analysis of subsection (2). Peacock’s restric­
tive reading of §1443(2), apparently excluding wholly un­
official persons, results, in part, from an interpretation of 
the present subsection “in the context of the Act (of 
1866)6 as a whole” and the conclusion that the subsection 
more readily encompasses federal officers or persons as­
sisting them, because “that Congress (of 1866) was pri­
marily concerned with protecting federal officers engaged 
in enforcement activities.” 347 F. 2d at p. 686. Peacock 
offered in support of this view the following summary of 
the Act:

“Section 1, now 42 U. S. C. A. §1981, declared Negroes 
to be citizens, conferred upon them various juridical 
rights of citizenship, such as the ability to make and 
enforce contracts, and guaranteed them the ‘full and 
equal benefit of all laws and proceedings for the secur­
ity of person and property, as is enjoyed by white 
citizens, and shall be subject to like punishment, pains, 
and penalties, and to no other . . . ’ Section 2 made it

4 The question whether wholly unofficial conduct is covered by §1443(2) 
is the precise question pretermitted by the Second Circuit in People of 
the State of New York v. Galamison, supra, see pp. 263, 264.

6 Act of April 9, 1866, eh. 31, §3, 14 Stat. 27.



9

a crime to deprive persons of rights secured by the act. 
Next followed the removal provision, now 28 U. S. C. A. 
§1443. Sections 4-10 of the Act were devoted to com­
pelling and facilitating the arrest and prosecution of 
violators of §2. These sections, inter alia, authorized 
federal commissioners to appoint ‘suitable persons’ 
to serve warrants, and allowed the persons so ap­
pointed to ‘summon or call to their aid the bystanders 
or posse comitatus of the proper county. . . . ” ’ (id.).

Thus, federal officers and persons claiming quasi-official 
status through appointments by them can plainly do so, 
but it must be presumed that the quasi-official concept was 
not to be read to exclude all private actors, for to do so 
would render the added words “those . . . otherwise act­
ing” wholly redundant.

Apart from the history of subsection 2, the Peacock 
construction reflects a concern that if §2 were not rationally 
restricted it “would bring within its sweep virtually all the 
eases covered by paragraph (1), thereby rendering that 
paragraph of no purpose or effect . . . ” (347 F. 2d at 
684).6

6 Though the concern of the Peacock court is understandable, it is 
equally important that subsection 2 not be so construed as to render it 
“of no purpose or effect” in those cases involving non-official actors to 
which it legitimately applies. I t  is not difficult to imagine situations in­
volving non-official conduct in which the removal jurisdiction should be 
sustained under §1443(2) when it apparently could not be sustained 
under §1443(1) as that section has now been interpreted by this court. 
For example, the court order on which appellants McRay and Vivian 
ground their §1443(2) claim also protected those vouching for persons 
seeking to register to vote. Assume that a native born white man of 
Dallas County, without any connection with a civil rights organization, 
undertook to act as voucher for a jsrospective Negro registrant and was 
arrested by law enforcement officials of the county and charged with 
breach of the peace, disorderly conduct, assault, etc. growing out of an 
altercation with another white person (who objected to a Dallas County 
native vouching for a Negro). And, assuming circumstances in which



10

“If paragraph (2) covers all who act under laws provid­
ing for equal rights, as appellants contend, this require­
ment could be avoided simply by invoking removal under 
the second paragraph . . . We find no warrant for giving 
paragraph (2) the strained and expansive construction 
here urged” (ibid. 686).

What this court considered might require a “strained 
and expansive construction” is obviated by the factual dis­
tinctions between the case at bar and Peacock. In Peacock, 
14 petitioners alleged that they were being prosecuted for 
acts under color of authority of the Equal Protection 
Clause and 42 U. S. C. §1971. Their contention was that 
subsection 2 authorizes removal by any person who was 
prosecuted for an act committed while exercising an equal 
civil right under the Constitution or laws of the United 
States. Cf. People of New York v. Galamison, 342 F. 2d 
255 (2nd Cir. 1965); Board of Education of City of New 
York v. City-Wide Committee for Integration, 342 F. 2d 
284 (2nd Cir. 1965). Appellants’ narrower claim is that 
their encouragement to Negroes seeking to register to vote 
was not merely protected, but encouraged and induced by 
a federal court order entered to enforce the provisions 
of §1971. This claim is abundantly supported by the clear 
language of the district court’s order, in Boynton v. Clark, 
10 Race Rel. L. Rep. 215 (S. D. Ala. 1/23/65 modified 
1/30/65), which read in part:

. . . People legally entitled to register should be 
permitted to do so in an orderly fashion calculated to

the law enforcement officials were not present at the scene of the alterca­
tion, and thus could not be said to have themselves been harassing the 
defendant, removal jurisdiction could probably not be sustained under 
§1443(1) as presently construed. But, quite clearly, it ought to be sus­
tained under §1443(2) because at the time of the incident, the defendant 
was “colorably” acting pursuant to the court order.



11

produce that result. And this court intends to see that 
opportunity is afforded.

People who are interested in encouraging people 
legally qualified to register have a perfect right to lend 
such encouragement; and as long as this is sought 
through peaceful assemblage, such assemblage is not 
to be illegally interfered with.

*  *  *  #  #

What has heretofore been said applies to applicants, 
both white and Negro. 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 Registrars down the corridor 
of the court house in a line most direct to and through 
the entrance of the Lauderdale Street door.

*  *  *  *  #

Those interested in encouraging others to register 
to vote have the right peaceably to assemble outside 
the court house, but shall not do so in such a way as 
to interfere with lawful business expected to be trans­
acted in the court house. Such persons also have a 
right to peaceably assemble without molestation, and 
will be permitted to do so; but violence, either by those 
so assembled or officers entitled to surveillance over 
such assemblages, or on the part of outsiders, will not 
be tolerated at such assemblage.

*  #  *  *  #

This order in nowise is intended to interfere with 
the legal enforcement of the laws of the State of 
Alabama, Dallas County, or the City of Selma. But 
under the guise of enforcement there shall he no in­
timidation, harassment or the like, of the citizens of 
Dallas County legitimately attempting to register to 
vote, nor of those legally attempting to aid others in



12

registering to vote or encouraging them to register to 
vote (10 Race Eel. L. Rep. at pp. 216, 217). (Emphasis 
added.)

Appellants submit that their conduct, encouraged by a 
federal court order, was under “color of authority” of that 
order and 42 U. S. C. §1971, within the meaning of 
Galamison, swpra, and that the ineluctable result of judi­
cial conferment of “color of authority” is to make their 
conduct “quasi-official,” hence removable within the Peacock 
construction of §1443(2).

Galamison, in analyzing the “color of authority” lan­
guage of §1443(2) decided that it would reach such private 
persons whose conduct, similar to officers or their assis­
tants, is directed by a specific statute or order:7

We gain a valuable insight into the meaning of 
‘color of authority’ if we reflect on the cases at which 
§1443(2) was primarily aimed and to which it indu­
bitably applies—acts of officers or quasi-officers. The 
officer granted removal under §3 of the Civil Rights 
Act of 1866 and its. predecessor, §5 of the Habeas 
Corpus Act of 1863, would not have been relying on 
a general constitutional guarantee but on a specific 
statute or order telling him to act. Cf. Hodgson v. 
Millward, 12 Fed. Cas. No. 6,568 (C. C. Pa. 1863), ap­
proved in Braun v. Sauerwein, 77 U. S. (10 Wall.) 218, 
224, 19 L. Ed. 895 (1869).9 A private person claiming

9 Cunningham v. Neagie, 135 U. S. 1, 10 S. Ct. 658, 34 L. Ed. 55 
(1890), cited in the dissent, did not arise under a statute using- the 
phrase “color of authority.” However, the specific direction of the 
Attorney General to Neagie, 135 U. S. at 10 S. Ct. at 663, is a good 
example of what would clearly constitute “color of authority.”

7 The Galamison court in part IV of its opinion discussed “color of 
authority” after assuming, arguendo, that §1443(2) was not available ex­
clusively to “officers or persons acting at their instance or on their be­
half.” 342 F. 2d at p. 264.



13

the benefit of §1443(2) can stand no better; he must 
point to some law that directs or encourages him to 
act in a certain manner, not merely to a generalized 
constitutional provision that will give him a defense or 
to an equally general statute that may impose civil 
or criminal liability on persons interfering with him. 
(342 F. 2d at 264.)

Clearly, the concepts “quasi-official” and “color of au­
thority,” as analyzed in Galamison, are interrelated and on 
the present facts coincide. That is, where a private unof­
ficial person “point[s] to some law that directs or en­
courages him to act in a certain manner,” he acts under 
“color of authority” of that law, but his acts are also 
“quasi-official.” The impetus to appellants was the order 
of a federal judge, and its directives were tantamount to 
official appointment. To reject this view would create the 
anomaly that the private person’s conduct, induced by a 
federal judicial officer, must be considered less quasi- 
official than conduct of the private person authorized by 
an officer such as a federal marshal. Indeed, the conclusion 
reached in Galamison that some unofficial actors can act 
under color of authority would also be defeated.

B. Law Providing for Equal Rights.

It is clear that “any law providing for equal rights” in 
28 U. S. C. §1443(2) means the same thing as the language 
of §1443(1) : “any law providing for the equal civil rights 
of citizens of the United States, or of all persons within 
the jurisdiction thereof.” 42 U. S. C. §1971 is clearly such 
a law, Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965), 
for, even under the most restrictive possible construction 
of the removal statute as referring only to laws “couched 
in terms of equality, such as the historic and the recent



14

equal rights statutes,” People of New York v. Galamison, 
supra, at p. 271, 42 U. S. C. §1971 plainly qualifies.

The right appellants assert under 42 U. S. C. §1971, and 
the implementing court order,8 is freedom from prosecu­
tion for encouraging voter registration of Negroes free of 
racial discrimination recognized in U. 8. v. Wood, 295 F. 2d 
772 (5th Cir. 1961); and U. 8. v. Clark, 10 Race Eel. L. 
Rep. 236.

C. The Acts for W hich Appellants Are Prosecuted.

Under the construction of 28 U. S. C. §1443(2) advanced 
in the preceding paragraphs, appellants McRay and Vivian, 
prosecuted for acts in the exercise of §1971 rights, en­
couraged by federal court order, may remove their prosecu­
tions to federal court. That appellants’ petition brings 
them within the statute so construed is evident. The peti­
tion alleges facts, which appellees do not controvert, that 
they are being prosecuted (1) for conducting and partici­
pating in a voter registration campaign in Selma, Alabama 
to secure registration of qualified Negroes, and (2) for en­
couraging massive participation, despite the harassment 
and intimidation of local law enforcement officials. After 
U. 8. v. Woods, supra, and U. 8. v. Clark, supra, it can not 
be doubted that such conduct is within the scope of consti­
tutionally protected freedom of speech. Moreover, further 
encouragement by a federal district court to engage in such 
conduct, amply supports their claim to removal under the 
authority clause of §1443.

8 That “law” within the meaning of §1443 is not restricted to consti­
tutional provisions or statutes, is made clear at footnote 3, pp. 277-278 
of Judge Marshall’s dissenting opinion in Galamison, supra, in which he 
suggests that an Executive Order (thus, ipso facto a judicial order), 
would plainly qualify (eases cited). Arkansas v. Howard, supra, ap­
parently assumed, without discussion of this point, that an implementing 
judicial order would qualify as such a law.



15

Of course, to establish the jurisdiction of a federal dis­
trict court on removal, a defendant need not make out his 
federal defense on the merits, and need not conclusively 
show that his conduct was protected by the law on which 
he relies. That defense is the very matter to be tried in the 
federal court after removal is effected.9 To support fed­
eral jurisdiction, it is sufficient that the acts charged 
against the defendant be acts “under color of authority 
derived from” a federal civil rights law. (Emphasis added.)

Absent a hearing, the issue central to §1443(2) removal, 
whether appellants’ acts have a “proximate connection” to 
the court order, see Arkansas v. Howard, supra, at p. 634; 
cf. Maryland v. Soper, 270 U. S. 9, 33 (federal officer re­
moval), cannot be determined. At the very least, appel­
lants should be afforded an opportunity to demonstrate the 
nexus between the state arrests and prosecutions and pos­
sible conflicts with the district court’s order, hence, remov­
ability. Rachel v. Georgia, supra; Peacock v. City of 
Greenwood, supra; Robinson v. the State of Florida, 345

9 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); E x parte 
Dierks, 55 F. 2d 371 (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. Knows, 348 U. S. 941 (1955), and it 
was so held under the Habeas Corpus Suspension Act of 1863 removal 
provisions, on which the Civil Rights Act of 1866 removal section 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. Sauerwein, 77 U. S. (10 Wall.) 218, 224 
(1869). Galamison takes this view, in dictum, under present §1443(2), 
342 F. 2d at 261, 262. Cf. Arkansas v. Howard, 218 F. Supp. 626 (E. D. 
Ark. 1963), where defendant was unable to make a colorable showing.



16

F. 2d 133 (5th Cir. 1965); Weathers v. City of Greenwood, 
347 F. 2d 986 (5th Cir. 1965).

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

Appellants alleged, and the district court must have 
taken as true (Rachel v. Georgia, supra; Cox v. Louisiana, 
supra), that their arrests (R. 12) :10

. . . have been and are being carried on with the sole 
purpose and effect of intimidating and harassing them 
and of punishing them for, and deterring them from, 
exercising constitutionally protected rights of free 
speech and of assembly. . . .

This Court, in Rachel, supra, said that “ [u]nless there 
is patently no substance in this allegation [that appellants 
suffered a denial of equal civil rights by virtue of the un­
constitutional application of the statute under which they 
were being prosecuted], a good claim for removal under 
§1443(1) has been stated.” 342 F. 2d at p. 340.

Appellants’ claim is substantial: that they are denied and 
cannot enforce in the state courts a right under federal laws 
providing for equal rights (viz., 42 U. S. C. §1971); the 
equal protection clause, particularly, the right to be free 
of official interference, through arrest, and prosecution, 
for peacefully attempting to register and for encouraging 
other Negroes to register to vote free of racial discrimina­
tion.

10 In Peacock v. City of Greenwood, 347 F. 2d 679 (5th Cir. 1965), this 
Court followed Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965) in up­
holding the applicability of the rules of federal notice type pleading to 
removal petitions. Thus, the “bare bone” allegation that appellants are 
denied or cannot enforce in the courts of Alabama [R. 14] their rights 
under the equal protection clause is sufficient. Peacock, supra, at p. 682.



17

The equal protection clause is clearly a “law providing 
for equal rights.” Peacock v. City of Greenwood, 347 F. 2d 
679 (5th Cir. 1965); People of New York v. Galamison, 342 
F. 2d 255 (2nd Cir. 1965), cert. den. 380 IT. S. 977 (1965). 
42 IT. S. C. §1971 is equally clearly such a law (see discus­
sion at pp. 13, 14, supra).

The right appellants assert under 42 IT. S. C. §1971 is 
identical to that recognized in United States v. Wood, 
supra, and United States v. Clark, supra, to freedom from 
prosecution for peacefully attempting to encourage voter 
registration of Negroes.

In Wood, the United States Court of Appeals for the 
Fifth Circuit held that John Hardy, a Negro voter regis­
tration worker in Mississippi, had the right to be free from 
state prosecution for peacefully attempting to encourage 
Negro citizens to attempt to register to vote. Hardy was 
arrested, without cause, for breach of the peace. The 
Court asked, “The question then arises how the arrest and 
prosecution of Hardy can irreparably injure these other 
citizens [potential Negro voter in the county], if we must 
assume that, Hardy will receive a fair trial and that his 
acquittal is a possible result.” The Court answered, “that 
the prosecution of Hardy, regardless of outcome [favor­
able to Hardy] will effectively intimidate Negroes [gen­
erally] in the exercise of their right to vote in violation of 
42 U. S. C. §1971.” The Court pointed out that the “legisla­
tive history of section 1971 would indicate that Congress 
contemplated just such activity as is here alleged—where 
the state criminal processes are used as instruments for the 
deprivation of constitutional rights.” 295 F. 2d at 781. In 
Clark, a three-judge Federal District Court enjoined law 
enforcement officials from interfering in any way—through 
arrest, prosecution or otherwise—with the right to advocate



18

the exercise of the right to vote. Wood and Clark are sol­
idly supported by a compai’ison of 42 U. S. C. §1971(b) with 
§203(c) of the Civil Rights Act of 1964, 42 U. S. C. A. 
§2000a-2(c) and 42 IT. S. C. §1971(c) with §204(a), 42 U. S. 
C. A. §2000a-3(a); as interpreted in Dilworth v. R,iner, 343 
F. 2d 226 (5th Cir. 1965), the 1964 Act’s provisions accord 
a right against prosecution for peacefully claiming the 
right to equal public accommodations. Similarly, the 1957 
Act’s provisions, as amended and codified as 42 IT. S. C. 
§1971, accord a right against prosecution for peacefully en­
couraging and assisting Negroes in attempting to register 
to vote free of racial discrimination.

Appellants’ right to removal under 42 IT. S. C. §1971 and 
§1443(1) is solidly supported by Rachel v. Georgia, supra. 
In Rachel, sit-in demonstrators were prosecuted under a 
Georgia anti-trespass statute which was nondiscriminatory 
on its face; they removed their prosecutions to federal 
court, alleging that the statute was being applied to them 
in violation of Title II of the Civil Rights Act of 1964. The 
United States Court of Appeals for the Fifth Circuit up­
held this claim, holding that §1443(1) allowed removal 
based on the application of a state statute contrary to an 
Act of Congress. The logic of this holding controls this 
case, for the assault and battery and public drunkenness 
statutes are being misapplied to conduct protected by 42 
U. S. C. §1971.

Appellants also rely on the equal protection clause of the 
Fourteenth Amendment, for their prosecutions are de­
signed to thwart appellants’ efforts to assist Negroes to 
register to vote. In Peacock v. City of Greenwood, supra, 
the United States Court of Appeals for the Fifth Circuit 
applied Rachel to denials of equal protection, saying (347 
F. 2d at p. 683):



19

Thus, Rachael allowed removal based on the alleged 
application of a state statute contrary to an Act of 
Congress, while the instant case involves the alleged 
application of a state statute contrary to the equal 
protection clause. The rationale of Rachel is inescap­
ably applicable here, since both cases involve the denial 
of equal rights through statutory application, rather 
than through some infirmity appearing on the face of 
the state statute.

Peacock involved the arrest of 14 civil rights workers in 
Greenwood, Mississippi, whose prosecutions for obstruc­
tion of public streets were removed to federal district court 
under §1443(1). The district court remanded on the ground 
that corrupt and illegal acts of state officials did not create 
a denial of federally protected rights cognizable by §1443 
(1). The Court of Appeals reversed holding that appel­
lants’ allegation that the “[Mississippi] statute is being in­
voked diseriminatorily to harass and impede [petitioners] 
in their efforts to assist Negroes in registering to vote,” 
was “sufficient to meet [the] test [of removal under §1443 
(1)]” (347 F. 2d at p. 682). Peacock, in distinguishing Vir­
ginia v. Rives, 100 U. S. 313, and Kentucky v. Powers, 201 
U. S. 1, reasoned that while those cases11 limited removal 
where the federal claim lay at “the very heart of the state 
judicial process,” they could not be read as limiting §1443 
(1) where the claim for removal is based on allegations 
“that a state statute has been applied prior to trial so as to 
deprive an accused of his equal civil rights in that the arrest 
and charge under the statute were effected for reasons of 
racial discrimination” (347 F. 2d at p. 684).

11 Including also, Neal v. Delaware, 103 U. S. 370 (1881); Bush V. 
Kentucky, 107 U. S. 110 (1883); and Gibson v. Mississippi, 162 U. S. 
565 (1896).



20

In Cox v. Louisiana, supra, the principle of these cases 
was generalized as follows :

There is a common denominator in Rachel, Peacock 
and Cox: The defendants, as a result of their actions 
in advocating civil rights, are being prosecuted under 
statutes, valid on their face, for conduct protected by 
federal constitutional guarantees or by federal stat­
utes or both constitutional and statutory guarantees.10
In essence, these guarantees rest on national citizen­
ship, as opposed to state citizenship, not expressly rec­
ognized until the three Civil War amendments.
In Rachel, Peacock, and Cox, and in similar eases, 
there is no federal invasion of states’ rights. Instead, 
there is rightful federal interposition under the Su­
premacy Clause of the Constitution to protect the indi­
vidual citizen against state invasion of federal rights.

10 See Amsterdam, Criminal Prosecutions Affecting Federally 
Guaranteed Civil Rights: Federal Removal and Habeas Corpus Ju ­
risdiction to Abort State Court Trial, 113 U. of Pa. L. Rev. 793 
(1965). (348 F. 2d at pp. 754, 755.)

Clearly, appellants’ allegations bring them within the 
principles of Rachel, Peacock, and Cox, for they allege that 
state statutes are being applied purposefully to thwart con­
duct protected by federal constitutional or statutory guar­
antees. Peacock, supra, and Rogers v. City of Tuscaloosa, 
5th Cir., No. 21,700 (slip. op. 11/8/65), upon such allega­
tions, mandate a hearing.12

Upon remand, appellants should be required to show no 
more than that their prosecutions “are in reality prosecu­
tions . . . for acts done in exercise of their federally pro­
tected constitutional rights.” Rogers v. City of Tuscaloosa,

12 See also, cases cited at fn. 2, supra.



21

supra (slip. op. at p. 3). This would accord with several 
recent decisions dismissing removed cases, after hearing on 
jurisdiction, by the United States District Court for the 
Middle District of Alabama. In Re Wright, et al., No. 
11,739-N (M. D. Ala. 8/3/65); John L. McMeans, et al. v. 
Mayor’s Court of Fort Deposit, Alabama, et al., No. 
11,759-N (M. D. Ala. 9/30/65); Hughley, et al. v. City of 
Opelika, No. 2319-E (M. D. Ala. 11/18/65). See also, 
Forman v. City of Montgomery, 245 F. Supp. 17 (M. D. 
Ala. 1965); Johnson v. City of Montgomery, 245 F. Supp. 
25 (M. D. Ala. 1965). In Johnson, supra (remanded where 
conduct found to be disorderly), District Judge Johnson 
reasoned that no “peaceable, orderly and lawful demon­
strations . . . (exemplified by In Re Wright) for purposes 
of dramatizing grievances or protesting discrimination can 
ever justify arrests and prosecutions . . .” (245 F. Supp. 
at 25). Thus, where municipal ordinances are applied in 
such a manner as to make constitutionally protected con­
duct punishable, the arrests and prosecutions are invalid. 
In Re Wright, supra; MeMeans, supra; Hughley; supra. 
Upon such factual presentation, such prosecutions are not 
only removable under §1443(1), hut under Peacock and 
Rogers, dismissable.



22

CONCLUSION

For the foregoing* reasons, the order of the district court 
remanding appellants’ cases should be reversed, or, at 
the least, reversed and remanded for a hearing upon both 
§1443 claims.

Respectfully submitted,

P eter  A . H aul

1630 Fourth Avenue North 
Birmingham, Alabama

J ack Greenberg  
N orman C. A maker 
Charles H . J ones, J r.
Charles S t e p h e n  R alston 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



23

CERTIFICATE OF SERVICE

This is to certify that on December 8, 1965, I served a 
copy of the foregoing Brief for Appellants on the attorneys 
for appellee listed below, by mailing copies thereof to them 
by United States mail, postage prepaid:

P itts  & P itts 
Attorneys at Law 

Selma, Alabama
Gordon- M adison 

Assistant Attorney General 
State of Alabama

Montgomery, Alabama
B lanchard M cL eod

Circuit Solicitor, Fourth Judicial Circuit 
Camden, Alabama

H enry  F. R eese , J r.
County Solicitor

Dallas County Courthouse 
Selma, Alabama

C harles H. J ones, J r. 
Attorney for Appellants



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