Cooper v. Alabama Brief and Argument of Appellee

    IN THE

LIMITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 22424

ANNIE LEE COOPER AND STANLEY LeROY WISE,

Appellants,

v.

STATE OF ALABAMA,

Appellee.

Appeal from the United States District Court for the 
Southern District of Alabama

BRIEF AND ARGUMENT OF APPELLEE

RICHMOND M. FLOWERS, As 
Attorney General of Alabama

GORDON MADISON, As
Assistant Attorney General of 
Alabama

Attorneys for Appellee



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 22424

ANNIE LEE COOPER AND STANLEY LeROY WISE,

Appellants,

v.

STATE OF ALABAMA,

Appellee.

BRIEF AND ARGUMENT OF APPELLEE

Title 28, U.S.C.A., Section 1447 (d ), as amended by the 1964 
Civil Rights Act, provides:

“ An order remanding a case to the State court from which 
it was removed is not reviewable on appeal or otherwise, 
except that an order remanding a case to the State court 
from which it was removed pursuant to section 1443 of 
this title shall be reviewable by appeal or otherwise.”

Title 28, U.S.C.A., Section 1443, provides as follows:

“Any of the following civil actions or criminal prosecu­
tions, commenced in a State court may be removed by the 
defendant to the district court of the United States for the 
district and division embracing the place wherein it is 
pending:



“ (1) Against any person who is denied or cannot enforce 
in the courts of such State a right under any law pro­
viding for the equal civil rights of citizens of the United 
States, or of all persons within the jurisdicton thereof;

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

In speaking of this removal statute, the court, citing ample 
authority, stated in City of Birmingham, Alabama v. Croskey, 
217 F.Supp. 947, the following:

“ The removal statute (Section 1443, Title 28 U.S.C.A.) 
under which the case was removed to this Court, is to be 
strictly construed. Shamrock Oil & Gas Corp. v. Sheets, 
313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214, (1941). Gen­
erally, it has been said that, before the denial of civil 
rights will justify a removal to Federal Court, the denial 
of such rights must be primarily, if not exclusively, a 
denial of such rights, or an inability to enforce them, 
resulting from the constitution or laws of the State. Vir­
ginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1879) ; Rand 
v. State of Arkansas, D. C., 191 F.Supp. 20 (1961). 
Alleged discriminations and illegal acts, not authorized 
by a State’s system of laws, do not make a case remov­
able to Federal Court; because the remedy for these 
wrongs is through the State courts, with the right 
ultimately to present the matter by writ of error to the 
Supreme Court of the United States. White v. Keown, 
(D.C., Mass., 1919), 261 F. 814. It is only where State 
legislation exists, interfering with the person’s right of 
defense, that such person can have the cause removed. 
State of New Jersey v. Weinberger, (D.C., N.J., 1930), 
38 F.2d 298. A case may not be transferred unless some 
substantive or procedural rule of State law, as distin­
guished from action of officials in disregard of State 
law, deprives a defendant of equal civil rights. In Re 
Hagewood’s Petition, (D.C., Mich., 1961), 200 F.Supp. 
140.”

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In addition there is the case of Rand v. State of Arkansas, 
191 F.Supp. 20, cited in City of Birmingham, Alabama, where 
the defendant was charged with second degree murder in the 
Circuit Court of Benton County, Arkansas. Upon her original 
trial she was found guilty and was sentenced to the peni­
tentiary. Subsequently the Supreme Court of Arkansas re­
versed and remanded for a new trial. Prior to the second trial 
defendant removed the case to the federal court on the basis 
of Section 1443. The case was held to be not removable, 
and it was remanded by the court on its own motion.

There is another Arkansas case, State of Arkansas v. 
Howard, 218 F.Supp. 626, where the defendant, a Negro, 
removed a criminal prosecution to the federal district court; 
one charge being assault with intent to kill. The case was 
remanded to the circuit court from which it was removed. In 
said case these pertinent observations were made by Chief 
Judge Henley:

“ . . . It is settled that the denial or inability to enforce 
civil rights in a State proceeding which will form the 
basis of a right to remove the proceedings under the first 
subdivision of the statute (§ 1443(1) ) must flow from 
State laws and procedures themselves. The mere mal­
administration of those laws by individual State officials 
does not warrant a removal, even though such action be 
racially discriminatory or otherwise contrary to federal 
constitutional guarantees. In such a case the remedy 
of the defendant is not removal to federal court, but, 
rather, the pursuit of State appellate remedies followed 
by a request for review by the Supreme Court of the 
United States, or in some circumstances by post con­
viction habeas corpus proceedings In the appropriate 
federal district court. . . .

*  *  *  *

“ Assuming without deciding that there is racial preju­
dice in the Eleventh Judicial Circuit of Arkansas, of which 
circuit Jefferson County is a part, this Court cannot and

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will not presume at this stage that the prejudice is so 
great as to amount to mob domination of the State court 
or to render any trial of petitioner in that Court a mere 
sham or farce. Cf; Moore v. Dempsey, 261 U.S. 86, 43 
S.Ct. 265, 67 L.Ed. 543. Nor will the Court presume at 
this time that twelve fair minded men and women can­
not be found and lawfully selected as jurors in Jefferson 
County to try petitioner, or that a change of venue to 
another county in the Eleventh Circuit will not be granted 
petitioner if he applies for such a change, or that an 
impartial jury cannot be found in any of the counties 
of the circuit. More than this, if the case is remanded, 
petitioner will be tried before an able and experienced 
Circuit Judge who it is presumed will be diligent to 
protect the legitimate rights of petitioner.”

The above cases and the authorities cited therein are ample 
to show that these cases and the alleged charges against ap­
pellants were properly remanded to the court whence they 
came.

There is nothing in Hamm v. City of Rock Hill, 379 U.S. 
306, or Rachel v. State of Georgia, 342 F.2d 336; 343 F.2d 
909, which militates in the slightest degree against the proper 
action taken by the district judge in his order of January 29, 
1965 (R.p. 27, 28).

We now turn to the record in this case. There appears in 
no place copies of the warrant or other charges which may 
be pending in state court against appellants. The record 
does not disclose the “ Motion to Remand”  which we under­
stand was filed for appellee before this office was asked to 
appear in the case.

It appears from appellants’ petition that a large number of 
Negroes were charged with “ Remaining present at the place 
of an unlawful assembly, after having been warned to disperse 
by a public officer.” (R. p.4).

4



Others were arrested, we gather, for refusing to comply 
with orders of deputies (E. p.5). The actions have been 
designated by appellants as criminal prosecutions (R. p .l l ) .

The appellants were not named in the original petition 
for removal but brought in by amendment along with a 
number of other persons (R. p.17 through 25).

The appellant Wise was among those charged, according 
to the petition for removal, with remaining present at the 
place of an unlawful assembly, after having been warned 
to disperse by a public officer (Title 14, Section 412, Code 
of Alabama, as last amended) (R. p. 23).

The district court did not remand this case against Wise but 
has assumed jurisdiction along with all others named in the 
petition for removal, except the assault and battery charge 
against Cooper and the charge against Wise.

The charge against Wise is stated to be “ being upon the 
public road while under the influence of liquor” (R. p. 23).

This office does not find any denial in the record that Wise 
was under the influence of liquor, and it is admitted that 
Cooper did strike the sheriff (R. p.19).

If the federal courts feel that these type of cases may not 
be fairly tried in state courts, the federal system may as 
well take all of such cases.

There is nothing in this present record which shows juris­
diction in the federal district court, and the cases against 
appellants should properly be handled in the state court from 
which they were removed.

We think it also fair to state that the charges against 
Sheriff Clark appearing as to appellant Cooper on page 19

5



of the record are emphatically denied, such denial being sub­
stantiated by a deputy United States Marshall present at 
the time.

Out of all the Negroes present, what would cause an arrest 
of these particular two on charges not common to the others 
named in the petition to i

/  They are simply cases
diction of the federal court under Section 1443 and are there­
fore not removable.

The remand order was correct as to these appellants and 
should be affirmed if this court has any jurisdiction of this 
appeal under the facts in the record.

Respectfully submitted,

RICHMOND M. FLOWERS, As 
Attorney General of Alabama

GORDON m A^ISON, A s Assistant" 
Attorney General of Alabama 
Attorneys for Appellee

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing 
brief and argument of appellee has been served upon all of 
the attorneys of record for appellants, namely, Honorables 
Peter A. Hall, 1630 Fourth Avenue, North, Birmingham, Ala­
bama; Jack Greenberg, Norman C. Amaker, Charles H. Jones, 
Jr., Charles Stephen Ralston, Melvyn Zarr, 10 Columbus Cir­
cle, New York, New York; and Anthony G. Amsterdam, 
3400 Chestnut Street, Philadelphia, Pennsylvania, by mailing

6



to each with postage prepaid and properly addressed to above
addresses.

On this the iS L 7TT
_  day of June, 1965.

GORDON MADISON
Assistant Attorney General

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