Means v. Alabama Brief for Appellant

    'Mnxttb Butts (tart at Kppmls
F oe the F ifth Circuit 

No. 23,156

Norman Means,
Appellant,

—v.—

State of A labama,
Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANT

Norman C. A maker 
J ack Greenberg

10 Columbus Circle
New York, New York 10019

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

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

Attorneys for Appellant



I N D E X

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

Specification of Error ..................................... ..................  8

A rgument :

Appellant’s Removal Petition Adequately States 
a Case for Removal Under 28 U. S. C. §1443(1).....  9

Conclusion ......................................................................-....... 31

PAGE

Table of Cases

Arnold v. North Carolina, 376 U. S. 773 (1964) ..... .....  20

Blyew v. United States, 80 U. S. (13 Wall.) 581, 593
(1871) ................................................................................ 16

Bush v. Kentucky, 107 U. S. 110 (1883) ..... - ..... -........ 24, 26

Cox v. Louisiana, 348 F. 2d 750 (5th Cir. 1965) ...........  8

England v. Louisiana State Board of Medical Exam­
iners, 375 U. S. 411, 416-417 (1964) ........................... 17

Eubanks v. Florida, No. 22828 ..........................................  8
Eubanks v. Louisiana, 356 U. S. 584 (1958) — ...........  20

Gibson v. Mississippi, 162 U. S. 565 (1896) ...........23, 24, 25

Hamilton v. Alabama, 376 U. S. 650, 7 L. ed. 2d 979, 84
S. Ct. 982 .... ..................................... -.................... -.......  1

Hernandez v. Texas, 347 U. S. 475 (1954) ..................... 20

Kentucky v. Powers, 139 Fed. 452, 458-59, 487 
(C. C. E. D. Ky. 1905), rev’d 201 U. S. 1, 31 (1906)..28, 29

Kentucky v. Powers, 201 U. S. 1 (1906) ...........9,10,13,17,
26, 27, 29, 30



11

Metropolitan Cas. Ins. Co. v. Stevens, 312 IT. S. 563
(1941) ............ ...... .........................................'..................  22

Murray v. Louisiana, 163 U. S. 101 (1896) ................ . 24

Neal v. Delaware, 108 U. S. 370 (1881) .... .......21,24,26,30
Norris v. Alabama, 294 U. S. 587 (1935) ....................... 20

Peacock v. City of Greenwood, 347 F. 2d 679 (5th Cir.
1965) .... ....................... .................. ......... ............... ..... 6, 8, 30

Rachel v. Georgia, 342 F. 2d 336, reh. den. 343 F. 2d 909
(5th Cir. 1965) .................... ............ ......... .......... ...... 6,8,30

Reece v. Georgia, 350 U. S. 85 (1955) ........ ....... „ ........ . 20
T. Y. Rogers v. City of Tuscaloosa, C. A. No. 64-335

(N. D. Ala. June 25, 1964) .............. ............. ...............  3
T. Y. Rogers v. City of Tuscaloosa, 353 F. 2d 78 .......... . 3

Smith v. Mississippi, 162 U. S. 592 (1896) ................... 24
Strauder v. West Virginia, 100 U. S. 303 (1879) 

(1880) .........................     17,18,22,31

Townsend v. Sain, 372 U. S. 293, 312 (1963) ...................  17

Virginia v. Morris, No. 9587 (4th Cir. January 21,
1966) .........................      17

Virginia v. Rives, 100 U. S. 313, 319, 320, 321, 322
(1880) ................... .....................................9,10,13,17,18,19,

20, 21, 22, 26, 30

Williams v. Mississippi, 170 IT. S. 213, 214, 222 
(1898) ............      25,26

PAGE



Ill

F ederal Statutes

page

28 U. S. C. §1443(1) .............................. .......... 4, 5, 7, 9,10,11,
18, 21, 26, 29, 30

28 U. S. C. §1443(2) .... ........................... ...................... 4, 5, 7, 9

28 V. S. C. §74 (1940) .........      11

28 U. S. C. §1446(c) (1964) ..........     18,22

28 IT. S. C. §1447 .... ....................    22

42 U. S. C. §1981 (1958) ................. .......................... ....... 3,11

42 U. S. C. §1983 (1958) ........... ............................... ......... 3,11

Act of April 9, 1866, §§1, 2, 3, ch. 31, 14 Stat. 27....11,12,14,
15,18

Act of May 11, 1866, ch. 80, §3, 14 Stat. 4 6 .....................   18

Act of May 31,1870, §§16, 18,16 Stat. 144..........................  12

Act of April 20, 1871, §1, 17 Stat. 1 3 ............................... 12

Act of March 3, 1887, ch. 373, §2, 24 Stat. 553, as 
amended, Act of August 13, 1888, ch. 866, 25 Stat.
435 ...............................................    27

Amendatory Freedmen’s Bureau Act ............................  15

Civil Bights Act of 1964, §901, 78 Stat. 266 ................ 10, 29

Judicial Code of 1911, §31, 36 Stat. 1096 ...................... 11, 21

Rev. Stat. §641 (1875) ........................................ 11,18,21,31

Rev. Stat. §1977 .................................................................  12

Rev. Stat. §1979 ...........       12

Habeas Corpus Suspension Act of March 3, 1863, 
ch. 81, §5, 12 Stat. 755, 756, 757 ....................................  18



State Statute
page

Acts of Virginia, 1865-1866, at 91 (1866) (Act of Jan.
15, 1866) .......................................... -........ - .............. -....  14

Other A uthorities

110 Cong. Rec. 6551 (March 30, 1964) (Remarks of 
Sen. Humphrey) ...... ......................—-......  - ......... ......  10

110 Cong. Rec. 6564 (Remarks of Senator Kuchel).------ 10

110 Cong. Rec. 6955 (April 6, 1964) (Remarks of Sena­
tor Dodd) ..................... .............. ...................................10,17

Cong. Globe, 39th Cong., 1st Sess. 474 (Jan. 29, 1866) 
(Trumbull), 602 (Feb. 2, 1866) (Lane), 603 (W il­
son), 605 (Trumbull), 1759 (April 4, 1866) (Trum­
bull) ................................... ............. ................... - ........ -  12

Cong. Globe, 39th Cong. 1st Sess. 1118 (March 1, 1866) 
(Wilson), 1123-24 (Cook), 1151 (March 2, 1866) .......  12

Cong. Globe, 39th Cong. 1st Sess. (Thayer), 1160 
(Windorn), 1267 (March 8, 1866) (Raymond), 340 
(Jan. 22, 1866) (remarks of Senator Wilson) ........... 13

Cong. Globe, 39th Cong. 1st Sess. .603, 605, 1118, 1160; 
744.45 (Feb. 8, 1866) (remarks of Senator Sher­
man) ; 1124, 1125 (March 1, 1866) (remarks of Rep. 
Cook) .... .............................-........... -................................ 13

Cong. Globe, 39th Cong. 1st Sess. 503 (Jan. 30, 1866) 
(remarks of Senator Howard) -------------------- ---------  14

Cong. Globe, 39th Cong. 1st Sess. 1123-24 (March 1, 
1866) (remarks of Rep. Cook), 1151 (March 2, 1866) 
(remarks of Rep. Thayer) —.....------....;...... ..... ..........  14



V

PAGE

Cong. Globe, 39th Cong., 1st Sess. 1160 (March 2, 1866) 
(remarks of Rep. W indom ); 1759 (March 4, 1866) 
(remarks of Sen. Trumbull) ........................................  14

Cong. Globe, 1st Sess., 603 (Feb. 2, 1866) (remarks of 
Sen. Wilson) ................................... — ..........................  14

Cong. Globe, 39th Cong., 1st Sess., 1758 (April 4, 
1866); 623 (Feb. 3, 1866) (remarks of Rep. Kelley) 15

Cong. Globe, 39th Cong., 1st Sess. 1759 (April 4, 
1866); 475 (January 29, 1866); 1758 (April 4, 1866) 16

Cong. Globe, 39th Cong., 1st Sess. 602-03 (Feb. 2,1866);
1265 (March 8, 1866) (remarks of Rep. Broomall) .... 16

2 Commager, Documents of American History 2-7 (6th 
ed. 1958) ......................................................... ........... ......  12

1 Fleming, Documentary History of Reconstruction, 
273-312 (photo reprint 1960) ......... ....... .......................  12

McPherson, Political History of the United States 
During the Period of Reconstruction, 29-44 (1871); 
note 4 at 41-42 ....................................................... ........ 12,14



In t h e

Mmteh States (Emtrt nf Appeals
F or the F ifth Circuit

No. 23,156

Norman Means,
Appellant,

State of A labama,
Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANT

Statement of the Case

This appeal presents the question, in the context of a state 
prosecution for murder, of what allegations are sufficient 
under 28 U. S. C. §1443(1) (the civil rights removal statute), 
to prevent remand without a federal court hearing to deter­
mine the jurisdictional facts, where the removal petitioner 
alleges that he cannot enforce his equal civil rights in the 
state courts. An additional question presented is the kind 
of hearing to be accorded. The appeal is taken from an 
order of the District Court for the Northern District of 
Alabama entered August 30, 1965 remanding appellant’s 
prosecution for trial in the Circuit Court of Tuscaloosa 
County, Alabama (R. 47).



2

On June 16, 1965 appellant, a Negro, filed Ms removal 
petition in the district court (R. 3). The petition alleged 
that appellant “ is a Negro man twenty-seven years of age, 
of below average intelligence” (R. 4) and “ is an epileptic 
and has frequent epileptic seizures” (R. 4-5); that appel­
lant was driving an automobile along the streets of Tus­
caloosa, Alabama on the morning of June 14, 1964 when 
he was stopped by a Deputy Sheriff of the City of Tus­
caloosa who asked appellant to get into his (the deputy’s) 
car where the deputy wrote appellant a ticket (R. 4 ); that 
appellant told the officer that he didn’t feel well and would 
like to get out of the car whereupon appellant and the officer- 
got out of the car and the officer unbuckled the flap of his 
holster containing his revolver (R. 5 ); that the appellant 
asked the officer if he was going to shoot him for nothing 
whereupon the officer cursed him and struck him across 
the face with his nightstick (R. 5 ); that a scuffle then en­
sued and appellant in the scuffle obtained the officer’s gun 
and shot him (R. 5). As the removal petition alleged, these 
events occurred a few minutes after midnight on the morn­
ing of Sunday, June 14, 1964 and prior to being stopped 
by the officer, appellant had not driven recklessly nor been 
speeding nor was drunk (R. 5).

The removal petition then alleged that these events were 
occasioned by “ a sustained and persistent” pattern of har­
assment and intimidation of Negroes in Tuscaloosa by 
police officials of the City and County of Tuscaloosa in 
enforcement of the State of Alabama’s policy of segregation 
and discrimination against Negroes (R. 7). This persistent 
pattern of police harassment and intimidation it was al­
leged “was to break the spirit of Negro people determined 
to exercise their constitutionally protectived (sic) rights of



3

freedom of speech and freedom of assembly as guaranteed 
by the First and Fourteenth Amendments to the United 
States Constitution and 42 U. S. C. Sections 1981, 1983 
(1958)” (K. 7). This pattern of harassment it was al­
leged had taken place over a period of weeks preceding 
June 14, 1964 during which there had been demonstrations 
by Negroes in Tuscaloosa seeking the removal of racial signs 
at the Tuscaloosa County Courthouse (E. 6) ;  these demon­
strations had been “brutally and cruelly” suppressed by the 
action of Tuscaloosa City and County police officials on 
June 9, 1964 when said officials beat, clubbed and shocked 
with electric cattle prods some of the demonstrators who 
had been forced into a Negro church by the police officials 
who then tear-gassed them in the church and flooded the 
church with water from the city fire hoses (E. 6). The 
removal petition asserted that a detailed statement of the 
“ facts and circumstances that occurred in Tuscaloosa, Ala­
bama a few days and weeks preceding the June 14th inci­
dent” which formed the “ context” in which that incident 
should be considered, were contained in a removal peti­
tion in the case of T. Y. Rogers v. City of Tuscaloosa, C. A. 
No. 64-335, annexed as an exhibit (E. 5). This removal 
petition is in the record at p. 13 and this court’s decision 
on appeal of the remand order in that case is reported at 
353 F. 2d 78.

Appellant’s petition further alleged that but for this 
pattern of intimidatory and harassing conduct on the part 
of Tuscaloosa police officials, he would not have been ac­
costed as he was by the Deputy Sheriff (E. 8) and that the 
facts of the conduct of harassment and of the shooting were 
“ so enmeshed” as to be inseparable (E. 9). Appellant 
alleged that the conduct of the Deputy Sheriff was in viola­



tion of his constitutional rights of freedom of speech and 
assembly and that consequently he was entitled to re­
moval under 28 U. S. C. Section 1443(2) (B. 8-9).

Appellant also claimed the right to remove under 28
U. S. C. Section 1443(1) on grounds: 1st, that he would 
be tried in a State Court in a County in which Negroes are 
systematically excluded from the jury rolls and jury box, 
alleging that he had raised this claim in the State Court by 
Motion to Quash the Indictment which had been granted 
by the State Judge on a showing that only 39 Negroes were 
on a total jury roll of 3,544 persons; that after this indict­
ment was quashed, the jury commission was given only two 
weeks in which to bring in a new jury roll which contained 
only 404 Negroes out of a total of 5,276 names or 7.6 
per cent of an eligible Negro population of 22.1 per cent 
(B. 10) and that moreover this second jury roll was in 
fact the product of the acting Solicitor of Tuscaloosa 
County rather than that of the Jury Commission (B. 11). 
Appellant attached his Motion to Quash the Second In­
dictment, which had been denied, to his removal petition 
as an exhibit (B. 31); 2nd, that statements by members of 
the judiciary in Tuscaloosa County indicated enforcement 
in the eourts of a State policy of racial segregation (B. 7 ); 
3rd, that the Governor of the State of Alabama, George 
Wallace, had manifested the State’s segregation policy in 
his inaugural address (B. 8) and 4th, that this policy was 
actually carried out in the Tuscaloosa courts as evidenced 
by the discriminatory addressing of Negro witnesses by 
their first names (B. 8).1

1 Contrary to Hamilton v. Alabama, 376 U. S. 650, 7 L. ed. 2d 
979, 84 S. Ct. 982.



5

Appellant’s removal petition then made the conelusory 
allegations that

The petitioner, Norman Means, in this case is charged 
with the crime of murder under the Laws of the State 
of Alabama. This action is a criminal action, which 
may be removed by the petitioner pursuant to the 
Provisions of Tit. 28, U. S. C., Sec. 1443(1) and (2), 
in that the petitioner is denied and cannot enforce, in 
the courts of the State of Alabama rights under the 
laws provided for the equal rights for citizens of the 
United States, or all persons within the jurisdiction 
thereof (R. 11).

The State of Alabama through the Circuit Solicitor Pro 
Tern, for the Sixth Judicial Circuit, moved to remand 
(R. 37) and the district court entered an order setting a 
hearing on the motion to remand for August 6, 1965 in 
Tuscaloosa, Alabama (R. 40).

The August 6 hearing commenced at 10:10 a.m. (R. 51). 
The State called two witnesses who testified to the events 
of June 14, 1964 (R. 52, 69). After these witnesses testified, 
the hearing recessed and counsel and the Court held a con­
ference in the Court’s chambers (R. 96). At the conclusion 
of the conference, the proceedings were recessed for lunch 
(R. 96) and on resumption of the proceedings in the after­
noon, counsel for appellant stated in open court that the 
incident out of which the prosecution against appellant 
arose was grounded thoroughly in the racially discrim­
inatory pattern existing in the State of Alabama and the 
City and County of Tuscaloosa prior to this event and which 
was currently in existence; that appellant’s attorneys had 
subpoenaed some 20 witnesses and had intended to take



6

the testimony of perhaps a half-dozen more designed to 
show in essence that the background, traditions and cus­
toms of the community including the administration of the 
judicial system were such that it would be impossible for 
appellant to receive a fair trial in the State Courts of Tus­
caloosa County (R. 96-97). Appellant’s counsel further 
stated his understanding that Rachel v. Georgia, 342 F. 2d 
336, reh. den. 343 F. 2d 909 and Peacock v. City of Green­
wood, 347 F. 2d 679 required that he be given an oppor­
tunity to prove the allegations of the removal petition in 
an evidentiary hearing and that oral argument to the Court 
was not sufficient compliance with the hearing requirement 
of those cases (R. 99). District Judge Allgood who in 
Chambers had indicated that he was not disposed to hear 
appellant’s evidence and did not feel that he could be con­
vinced of appellant’s right to remove (R. 98, 102, 106) 
stated that counsel for appellant had only until 4 o’clock 
in the afternoon to put on their case (R. 104, 105, 107) ;2 
that if he were to permit the 20 some odd witnesses con­
templated by appellant’s counsel to testify, he would be 
required in fairness to give the State an opportunity to 
rebut and that would likely take three or four days (R. 100). 
Appellant’s attorney expressed his feeling that the Court’s 
attitude deprived appellant of the opportunity to show that 
the allegations of the removal petition were true and to 
make the evidentiary demonstration that he deemed es­
sential to his case (R. 103, 104, 105).

Finally, appellant’s attorneys declined to put on any 
evidence in the short time allotted them by the district

2 “You have got until 4 o’clock. Get me back to Birmingham. 
I have got a hearing in Birmingham and I have got to get back 
there by 5 :30 anyhow” (R. 105).



7

judge on the ground that the difficulties attendant upon 
making an evidentiary demonstration in support of the 
allegations of the removal petition rendered it impos­
sible to make that demonstration in the time allotted:

“We certainly don’t feel—we feel it is a necessary 
demonstration, because of the difficulty involved, but 
we can’t make it piecemeal and couldn’t possibly make 
it between one-twenty and four o ’clock this afternoon. 
I think that under those circumstances, we have no 
choice other than to—we prefer not to even go into it, 
I f we went into it, we would have to go into it as 
fully as we conceive it to be. I think we would have 
to accept the limitation totally, if we are going to be 
limited” (R. 113-14).

The hearing was recessed after the district judge stated 
from the bench his intention to remand the case to the State 
Courts (R. 116).

When the district court tiled its remand order (R. 47), 
it also filed an opinion (R. 41). In its opinion, the court 
rejected appellant’s contentions under both 28 U. S. C. 
§§1443(1) and (2) holding the allegations of the removal 
petition “ insufficient to justify the removal of defendant’s 
case to this court” (R. 46). The opinion stated: “ At the 
hearing on the defendant’s petition for removal, this court 
did not allow the defendant to put on any witnesses in sup­
port of the allegations contained in his petition because 
of the reasons hereinbelow set forth” (R. 44). The reasons 
assigned were 1) that the removal petition did not allege 
that appellant’s rights were denied because of the Constitu­
tion or statutes of Alabama (R. 46); 2) there was no al­
legation of unequal application on racial grounds of the



a

homicide statute (ibid.); 3) this case is distinguishable 
from Cox v. Louisiana, 348 F. 2d 750 (5th Cir. 1965), 
in that appellant is not being prosecuted for protected con­
duct (ibid.). Cited in support of the court’s action was the 
opinion of the District Court for the Middle District of 
Florida in Eubanks v. Florida, a case similarly involving 
removal of a murder prosecution which is also on appeal to 
this court (No. 22828).

After filing of the notice of appeal (R. 48), and docket­
ing and printing of the record, appellant moved to stay 
further proceedings in this case on the ground that the 
Supreme Court had granted certiorari to review this court’s 
decisions in Rachel, supra, and Peacock, supra, and its 
decisions in those cases would be controlling on the issues 
raised in this case. This motion was denied by this court 
on February 25, 1966.

Specification of Error

The District Court erred in remanding without a hear­
ing the charge against appellant for trial by the Circuit 
Court of Tuscaloosa County, Alabama.



9

A R G U M E N T

Appellant’s Removal Petition Adequately States a Case 
for Removal Under 28 U. S. C. §1 4 4 3 (1 ).

The court below refused appellant an evidentiary hear­
ing (E. 44), notwithstanding the court recognized that 
appellant’s verified petition for removal alleged “ that he 
is denied and cannot enforce, in the courts of the State of 
Alabama, his rights under the Constitution and laws of 
the United States providing for the equal civil rights of 
citizens thereof, because Negroes are systematically ex­
cluded from the jury rolls and the jury box of Tuscaloosa 
County, Alabama, and law enforcement officers, including 
members of the judiciary, of the City of Tuscaloosa and 
of the County of Tuscaloosa have demonstrated a sustained 
and persistent effort to enforce a state policy of segregation 
and discrimination against Negro citizens” (R. 41-42).

The court below held that these allegations did not state 
a removable case under 28 U. S. C. §1443(1) because “ [t]he 
petition is completely devoid of any allegation that the al­
leged denial of defendant’s federally protected rights, or 
his inability to enforce, in the courts of the State of Ala­
bama, such rights, is because of the Constitution or statutes 
of the State of Alabama” (R. 46).

Although not cited in the opinion below, the court obvi­
ously grounded its decision upon the line of United States 
Supreme Court decisions from Virginia v. Rives, 100 U. S. 
313 (1880), to Kentucky v. Powers, 201 U. S. 1 (1906), 
analyzed infra, part B. The essential question presented by 
this appeal is whether these cases possess continuing 
vitality.



The Congress which passed §901 of the Civil Eights Act 
of 1964, 78 Stat. 266, allowing appeals from §1443 remand 
orders, apparently did not think so.3 Appellant does not 
think so either.

A.

Appellant submits that the limitation of §1443(1) re­
moval by Bives-Powers to cases of statutory denials of fed­
eral civil rights is wrong and assigns three reasons there­
for :

(1) The Bives-Powers doctrine is unfaithful to the statu­
tory text.

(2) The Bives-Powers doctrine is unfaithful to the ap­
plicable legislative history.

(3) The Bives-Powers doctrine is insensitive to the 
rationale of federal civil rights removal jurisdiction.

3 See, e.g., 110 Cong. R ec . 6551 (March 30, 1964) (remarks of 
Senator Humphrey), 6564 (remarks of Senator Ivuchel). And see 
particularly id. at 6955 (April 6, 1964) (remarks of Senator 
D odd ):

An examination of the legislative history of the act of 1866, 
which first authorized such removals, of the language of that 
act and its successors, and of the apparent congressional pur­
pose clearly suggests that these old interpretations are erro­
neous . . .
Accordingly the removal statute, intended by Congress to 
be . . . one of the great bulwarks of equality, is of little or 
no value today . . .  I f an appeal is allowed from orders 
to remand, the appellate courts will be able to consider what 
the removal statute means and what Congress intended when 
it enacted the statute.

In recent months and years a number of cases have arisen 
which could properly have been removed from State to Fed­
eral court if the original intention of Congress had been 
permitted to govern.



11

(1) Nothing in the language of §1443(1) as it is now 
or ever was written supports the limitation of its opera­
tion to instances of state legislation offensive to federal 
rights. Indeed, the wording of the ancestor of present 
§1443(1), section 3 of the first major civil rights act, Act 
of April 9,1866, ch. 31,14 Stat. 27, strongly suggests that no 
such limitation was intended. Section 3 provided, in relevant 
part:

Sec. 3. And be it further enacted, That the district 
courts of the United States, within their respective 
districts, shall have, exclusively of the courts of the 
several States, cognizance of all crimes and offenses 
committed against the provisions of this act, and also, 
concurrently with the circuit courts of the United 
States, of all causes, civil and criminal, affecting per­
sons who are denied or cannot enforce in the courts 
or judicial tribunals of the State or locality where they 
may be any of the rights secured to them by the first 
section of this act . . . (Emphasis added.)

The above reference to locality strongly suggests that 
something less than statutory obstruction to the enforce­
ment of federal rights in the State courts was thought suffi­
cient to support removal.4 The rights enumerated in sec­
tion 1, present 42 U. S. C. §1981, included “ full and equal

4 The “ locality” provision was rephrased in R ev . Stat . §641 
(1875), which turned removal on the inability to enforce federal 
rights “ in the judicial tribunals of the State, or in the part of the 
State where such suit or prosecution is pending . . . ” This wording 
was carried forward in §31 of the Judicial Code of 1911, and 
appears in 28 U. S. C. §74 (1940). In the 1948 revision it was 
“ omitted as unnecessary,” Reviser’s Note, presumably on the theory 
that one who may remove from “a State Court” may thereby re­
move from the court of any locality of a State. The omission tokens 
no substantive change in the statute.



benefit of all laws and proceedings for the security of per­
son and property, as is enjoyed by white citizens . . . , any 
law, statute, ordinance, regulation, or custom to the con­
trary notwithstanding.” (Emphasis added.)5 “ Proceed­
ings” was certainly intended to add something to “ laws,” 
and the inclusion of reference to “ custom” was not inad­
vertent.

(2) Congress did not intend that removal be allowed 
only where state statutory law denied a criminal defendant’s 
federally protected rights or rendered him unable to enforce 
them. Certainly it is true that Southern resistance to the 
Thirteenth Amendment first took the form of Black Codes— 
statutory regulations directed expressly against the freed- 
man.6 It is also true that a major purpose of the act of 
1866 was to counteract the Black Codes,7 and, although the

5 Section 1 of the 1866 act was re-enacted, with its “notwith­
standing” clause, by §§16 and 18 of the Enforcement Act of 1870 
Act of May 31, 1870, 16 Stat. 144. It appears in R ev. Stat. §1977 
(now 42 U. S. C. §1981 (1964)), without the “notwithstanding” 
clause. A similar clause was omitted by the revisers in carrying 
forward §1 of the Act of April 20, 1871, 17 Stat. 13, as R ev . Stat . 
§1979 (now 42 TJ. S. C. §1983 (1964)). In neither case does any 
intention appear to effect a substantive change. The “notwithstand­
ing” clauses, although indicative of legislative purpose in respect 
of some applications of the statute— as here^-never were effective 
provisions, since the supremacy clause of the Constitution made 
them unnecessary.

6 For typical Black Code provisions, see 2 Commager, D ocu­
ments of A merican H istory 2-7 (6th ed. 1958); 1 F leming, 
D ocumentary H istory of R econstruction 273-312 (photo reprint 
I960); M cP herson, P olitical H istory1 of the United S tates 
D uring the P eriod of R econstruction 29-44 (1871).

7 The Codes were often referred to in debate. In the Senate: 
Cong. Globe, 39th Cong., 1st Sess. 474 (Jan. 29, 1866) (Trum­
bull) ; 602 (Feb. 2, 1866) (Lane), 603 (Wilson), 605 (Trumbull), 
1759 (April 4, 1866) (Trumbull); in the House: id. 1118 (March 
1, 1866) (Wilson), 1123-24 (Cook), 1151 (March 2, 1866)



13

Bives-Powers doctrine was never put on this ground by the 
Court, Congressional concern over the Codes might be 
thought to support the doctrine. It does not, for several 
reasons.

First, the Black Codes were viewed by the 1866 Congress 
as overwhelming evidence that the Southern States, unless 
restrained by the federal government, would discriminate 
against the Negro and deprive him of his rights; in this light 
they were discussed as proof of the need for federal ac­
tion, but not as its exclusive target.8 Plainly, Congress 
anticipated massive Southern resistance to the Thirteenth 
Amendment, resistance not alone by legislation but by 
every means at southern state command.

It was easy to foresee, and of course we foresaw, 
that in ease this scheme of emancipation was carried 
out in the rebel States it would encounter the most 
vehement resistance on the part of the old slaveholders.

(Thayer), 1160 (Windom), 1267 (March 8, 1866) (Raymond). 
See also, id. at 340 (Jan. 22, 1866) (remarks of Senator Wilson on 
the amendatory freedmen’s bureau bill).

8 See the portions of the debates cited in note 7, supra, espe­
cially Cong. Globe, 39th Cong., 1st Sess. 603, 605, 1118, 1160. 
See also id. at 744-45 (Feb. 8, 1866) (remarks of Senator Sherman 
on the amendatory freedmen’s bureau bill). And see id. at 1124, 
1125 (March 1, 1866) (remarks of Representative Cook) :

Can any member here say that there is any probability, or 
any possibility, that these States will secure him in those 
rights ? They have already spoken through their Legislatures; 
we know what they will do; these acts, which have been set 
aside by the military commanders, are the expressions of 
their will.

# # # #

. . . Every act of legislation, every expression of opinion 
on their part proves that these people would be again enslaved 
if they were not protected by the military arm of the Federal 
Government; without that they would be slaves today.



14

It was easy to look far enough into the future to per­
ceive that it would be a very unwelcome measure to 
them, and that they would resort to every means in 
their power to prevent what they called the loss of 
their property under this amendment. We could fore­
see easily enough that they would use, if they should 
be permitted to do so by the General Government, all 
the powers of the State governments in restraining and 
circumscribing the rights and privileges which are 
plainly given by it to the emancipated negro.9

Second, the Black Codes which concerned Congress were 
not all discriminatory and hence unconstitutional10 on their 
face. Much mention was made in the debates of the South­
ern vagrancy laws11 and particularly of the vagrancy law 
of Virginia,12 for example, which was a color-blind statute13 
whose evil lay in its systematically discriminatory applica­
tion to the Negroes.14

9 Id. at 503 (Jan. 30, 1866) (remarks of Senator Howard).
10 The legislators who enacted the 1866 act regarded discrimina­

tory legislation as unconstitutional by force of the thirteenth 
amendment.

11 See, e.g., Cong. Globe, 39th Cong., 1st Sess. 1123-24 (March 1, 
1866) (remarks of Representative Cook), 1151 (March 2, 1866) 
(remarks of Representative Thayer).

12 Id., at 1160 (March 2, 1866) (remarks of Representative Win- 
dom), 1759 (March 4, 1866) (remarks of Senator Trumbull).

13 See Acts of Virginia, 1865-1866, at 91 (1866) (Act of Jan. 15, 
1866).

14 Senator Wilson told the Senate that General Terry, as com­
mander in Virginia, “seeing that the vagrant laws of that State 
were used to make slaves of men -whom we have made free,” 
had prohibited the enforcement of the law against Negroes. Cong. 
Globe, 1st Sess., 603 (Feb. 2, 1866). Terry’s order is found in 
McPherson, op. cit. supra, note 6 at 41-42.



15

Third, there is affirmative evidence that Congress was 
aware of and intended to redress nonstatutory denials of 
federal constitutional rights. Senator Trumbull told the 
Senate in his principal speech urging passage of the bill 
over President Johnson’s veto:

In some communities in the South a custom prevails 
by which different punishment is inflicted upon the 
blacks from that meted out to whites for the same 
offense. Does [section 2 of the 1866 act] . . . propose 
to punish the community where the custom prevails f

Or is it to punish the person who, under color of the 
custom, deprives the party of his right? It is a mani­
fest perversion of the meaning of the section to assert 
anything else.15

Congress knew, as we have heretofore seen, that the Union 
military commanders, recognizing the susceptibility to un­
fair and discriminatory application of Southern laws ap­
parently fair on their faces, had taken steps to protect the 
freedmen against such maladministration by the provision 
of military tribunals to supersede the civil courts in freed- 
men’s cases. Congress adopted this policy itself in the 
Amendatory Freedmen’s Bureau Act (companion legisla­
tion to the Civil Bights Act of 1866), and it is implausible 
to suppose that the permanent civil rights legislation was 
intended to give the freedmen less substantial protection.

Senator Trumbull several times told the Senate that it 
was intended to allow removal “ in all cases where a custom 
prevails in a State, or where there is a statute-law of the

15 Cong. Globe, 39th Cong., 1st Sess. 1758 (April 4, 1866). See 
also id. at 623 (Feb. 3, 1866) (remarks of Representative Kelley 
on the amendatory freedmen’s bureau bill).



16

State discriminating against [the freedmen] . . . . ” 16 The 
Senator expressly said that it was not the -existence of a 
statute, any more than of a custom discriminating against 
the freedman, that constituted such a failure of state proc­
ess as would authorize removal; but in each case, custom 
or statute, it was the probability that the state court would 
fail adequately to enforce federal guarantees.17 18 Senator 
Lane of Indiana similarly said that the evil to be remedied 
was not unconstitutional state legislation, but the probabil­
ity that the state courts would not enforce the constitu­
tional rights of the freedmen.38

(3) The obvious rationale for Congressional creation 
of a federal trial jurisdiction on removal is not that facially 
unconstitutional state statutes may be so declared. Such 
statutes, bearing their defect in the written word, have been 
and can always be readily disarmed on direct review of the 
final judgments of the state courts. Removal is needed and 
justified to ward against impingements on federal rights 
which are less obvious, more immune against appellate cor­
rection, as where hostility of state judicial organs, e.g., 
prosecutor, judge and jury evidenced by their past conduct 
in the treatments of Negroes charged with crime, warps 
the process by which the facts underlying the claim are 
found. This is the case where local prejudice and local

16 Cong. Globe, 39th Cong., 1st Sess. 1759 (April 4, 1866); id. 
at 475 (Jan. 29, 1866) ; cf. id. at 1758 (April 4, 1866). See also 
Blyew v. United States, 80 U. S. (13 Wall.) 581, 593 (1871).

17 See note 16, supra.

18 Cong. Globe, 39 Cong., 1st Sess. 602-03 (Feb. 2, 1866). See 
also id. at 1265 (March 8, 1866) (remarks of Representative 
Broomall).



17

resistance pitch the risk of error, always incident in fact 
finding,19 strongly against federal guarantees of equality of 
treatment at the state trial; it was to meet such situations 
that Congress had utilized removal prior to 1866 and 
utilized it in civil rights cases in and after that year.

Moreover, experience has not suggested that statutory 
denials of federal civil rights are more numerous or more 
grievous than non-statutory denials; to the contrary, as 
Senator Dodd recently put it, “by far the most serious 
denials of equal rights occur as a result not of statutes 
which deny equal rights upon their face, but as a result of 
unconstitutional and invidiously discriminatory adminis­
tration of such statutes” (110 Cong. Bee. 6955 (April 6, 
1964)).

B.

Against the text, history and rationale of federal civil 
rights removal jurisdiction, canvassed in Part A, the con­
struction put upon the removal statute by the Rives-Powers 
line of cases appears unwarranted. As the following 
analysis is intended to indicate, “ the doctrine of these cases 
is the fruit of a misunderstanding of the basic requirement 
for removability as expounded in Strauder v. West Vir­
ginia. . . . ” (Sobeloff, J., dissenting in Virginia v. Morris, 
4th Cir. No. 9587, decided Jan. 21, 1966).

19 See Townsend v. Sain, 372 U. S. 293, 312 (1963) ; England 
v. Louisiana State Board of Medical Examiners, 375 U. S 411 
416-417 (1964).



18

The predecessor of §1443( l ) 20 was first construed by the 
Supreme Court in 1880, in Strcmder v. West Virginia, 100 
U. S. 303 (1880). There, the Court sustained removal on 
the petition of a Negro indicted for murder in a West Vir­
ginia court which alleged that by reason of an 1873 West 
Virginia statute restricting eligibility for jury service to 
white males, Negroes were excluded from grand and petit 
juries in the courts of that State. Strauder was adjudged a 
person who is “ denied” or who “ cannot enforce” his federal 
equal civil rights. Since his removal petition was filed (as 
it had to be) before state trial21 and was sufficient, if ever, 
at that time, the Court clearly held that the potential ap­
plicability of an unconstitutional state statute to his case 
gave Strauder grounds for removal without inquiry into 
possibility that the state courts might sustain his constitu­

20 The provision was then Rev. Stat. §641 (1875). In the con­
cept presently material—the concept of a person “ denied or [who] 
cannot enforce” rights in the state courts—the statute has remained 
unchanged from 1866 to the present.

21 Rev. Stat. §641 (1875) required that a petition for removal 
be filed “at any time before the trial or final hearing of the cause.” 
Present 28 U. S. C. §1446 (c) (1964) requires filing “at any time 
before trial.”  This pretrial character of the removal procedure, 
which played a significant part in the construction given the civil 
rights removal statute in and following Virginia v. Rives, 100 U. S. 
313 (1880), appears not to have been an incident of the procedure 
authorized by the original 1866 act. That act contained no inde­
pendent procedural provisions, but adopted by reference the 
removal procedures of the Habeas Corpus Suspension Act of March 
3, 1863, ch. 81, §5, 12 Stat. 755, 756. The 1863 act had authorized 
removal either before trial, 12 Stat. 756, or after judgment, 12 
Stat. 757; from the 1866 language, Tooth these forms of removal 
were meant to be carried over to civil rights cases. See Senator 
Trumbull’s speech, note 16 supra. The Act of May 11, 1866, ch. 
80, §3, 14 Stat. 46 amended the 1863 procedures to authorize pre­
trial removal at any time before empaneling of a jury in the state 
court. Although this act explicitly provided that it did not affect 
post-judgment removal, Rev. Stat. §641 failed to carry that form 
of removal forward in civil rights cases.



19

tional claim and void the unconstitutional state legislation, 
as the supremacy clause obliged them to do. The state 
statute directed the state judges to an unconstitutional 
conclusion, and the Supreme Court found the conditions of 
removability satisfied.

But, in Virginia v. Rives, 100 U. S. 313 (1880), decided 
the same day, removal was denied. In Rives a federal trial 
court assumed removal jurisdiction on a petition alleging 
that petitioners were Negroes charged with murder of a 
white man; that there was strong race prejudice against 
them in the community; that the grand jury which indicted 
them and the jurors summoned to try them were all white; 
that the prosecutor and judge had refused petitioners’ re­
quest that one-third of the trial jury be composed of 
Negroes; that, notwithstanding the state laws required 
jury service of males without discrimination of race, 
Negroes had never been allowed to serve as jurors in the 
county in any case in which their race was interested.

The State of Virginia sought a writ of mandamus in the 
Supreme Court to compel the lower federal court to remand 
the case, and the Supreme Court issued the writ. Its opin­
ion, read narrowly, found that petitioners’ allegations “ fall 
short of showing that any civil right was denied, or that 
there had been any discrimination against the defendants 
because of their color or race. The facts may have been 
as stated, and yet the jury which indicted them, and the 
panel summoned to try them, may have been impartially 
selected.” 22 There was wanting, as a matter of pleading 
(in those early days before the Court’s experience in the 
trial of jury discrimination claims bred the “prima facie”

22 100 U. S. at 322.



20

showing doctrine),23 an allegation of purposeful or inten­
tional discrimination, and the Court said that this might 
have been supplied by averment that a statute of the State 
barred Negroes from jury service. “When a statute of the 
State denies his right, or interposes a bar to his enforcing 
it, in the judicial tribunals, the presumption is fair that 
they will be controlled by it in their decisions; and in such 
a case a defendant may affirm on oath what is necessary 
for a removal.” 24 Thus, by reason of the requirement of 
a factual showing under the removal statute that a defen­
dant could not enforce his federal rights in the state court,25 
the Court said that the inability to enforce federal rights of 
which the removal statute speaks “ is primarily, if not exclu­
sively, a denial of such rights, or an inability to enforce 
them, resulting from the Constitution or laws of the State, 
rather than a denial first made manifest at the trial of the 
case.” 26

23 See, e.g., Norris v. Alabama, 294 U. S. 587 (1935) ; Hernandez 
v. Texas, 347 U. S. 475 (1954) ; Reece v. Georgia, 350 U. S. 85 
(1955); Eubanks v. Louisiana, 356 U. S. 584 (1958) ; Arnold v. 
North Carolina, 376 TJ. S. 773 (1964).

24 100 U. S. at 321.
25 But in the absence of constitutional or legislative impedi­

ments he cannot swear before his case comes to trial that his 
enjoyment of all his civil rights is denied to him. "When he 
has only an apprehension that such rights will be withheld 
from him when his case comes to trial he cannot affirm that 
they are actually denied, or that he cannot enforce them. Yet 
such an affirmation is essential to his right to remove his case.

Id. at 320. Elsewhere the Court treated the problem as one of 
showing that a defendant’s rights are denied “ in the judicial 
tribunals of the State,”  id. at 321 (emphasis in original), within 
the meaning of the statute, merely another manner of stating the 
same concern.

26 Id. at 319.



21

So construed, Rives held no more than that the removal 
petitioners’ allegations were insufficient to state a claim of 
unconstitutional jury discrimination under the standards 
then prevailing, and its comments on the existence or non­
existence of discriminatory legislation were merely specu­
lation on sorts of allegations which would be sufficient. But 
the case could also be read rather loosely as saving that 
unless a state constitution or statute on its face denied a 
defendant’s federal constitutional rights, his case was not 
removable under present subsection 1443(1).27

Without adequate consideration of the point, the Court 
in Neal v. Delaware28 took this latter view of Rives. Like 
Rives, the Neal case involved a Negro defendant indicted 
for a capital offense. His removal petition alleged that 
Negroes were systematically excluded from grand and petit 
juries in the state courts, and that this exclusion was by 
reason of an 1831 constitutional provision of the State of 
Delaware, disqualifying Negroes as electors, hence as 
jurors. The Delaware court in which, pursuant to the re­
moval practice then in force, Neal filed his removal peti­
tion29 took the view that the 1831 provision had been ren­

27 The Court also said: “ In other words, the statute has refer­
ence to a legislative denial or an inability resulting from it.” Id. 
at 319-320.

28 103 U. S. 370 (1881).
29 p rjor to 1948, removal procedure differed under the various 

federal removal statutes. In a civil rights case, the petition for 
removal was filed in the state court in which the case originated. 
See Rev. Stat. §641 (1875), continued by Judicial Code of 1911, 
§31, 36 Stat. 1096. If the state court declined to allow the removal, 
exception to that ruling could be preserved for examination by 
the Supreme Court of the United States on review of the final state 
court judgment, as in Neal. Alternatively, petition could be made 
to the federal trial court to which removal had been sought and 
disallowed by the state court, and that court might effect the



22

dered void by the supervention of the Fourteenth and 
Fifteenth Amendments, so that, if there was any jury dis­
crimination in Delaware—which, in any event, the Dela­
ware court found that Neal had failed to prove— such dis­
crimination was unauthorized by state constitution or 
statute. On writ of error to the Delaware court, the Su­
preme Court disagreed that Neal had failed to show sys­
tematic exclusion of Negroes from the grand jury, and it 
reversed Neal’s conviction for error in overruling his mo­
tion to quash the indictment and jury panels. But the Su­
preme Court agreed with the court below that this discrimi­
nation was unauthorized by statute and, in extended dictum, 
sustained denial of the removal petition. As the Court read 
Strauder and Rives, those cases held

that the constitutional amendment was broader than 
the provisions of sect. 641 [present subsection 1443(1)]
. . . ; that since that section only authorized a re­
moval before trial, it did not embrace a case in which 
a right is denied by judicial action during the trial, or 
in the sentence, or in the mode of executing the sen­
tence; that for denials, arising from judicial action, 
after the trial commenced, the remedy lay in the re­
visory power of the higher courts of the State, and, 
ultimately, in the power of review which this court may

removal by issuance of process which terminated the state pro­
ceeding, as in Rives. See the description of similar procedures in 
Metropolitan Cas. Ins. Co. v. Stevens, 312 U. S. 563 (1941).

The 1948 Code revision made removal practice uniform; under 
the uniform procedure, the petition for removal is filed in the 
first instance in the federal district court to which removal is 
sought, and this filing (with appropriate service on the state court 
and opposing party) effects removal, ousting the state court of 
jurisdiction unless and until the federal court remands. 28 U. S. C. 
§§1446-47 (1964).



23

exercise over their judgments, whenever rights, privi­
leges, or immunities, secured by the Constitution or 
laws of the United States, are withheld or violated; 
and that the denial or inability to enforce in the judicial 
tribunals of the States, rights secured by any law pro­
viding for the equal civil rights of citizens of the United 
States, to which sect. 641 refers, is, primarily, if not 
exclusively, a denial of such rights, or an inability to 
enforce them, resulting from the Constitution or laws 
of the State, rather than a denial first made manifest 
at the trial of the case. We held that Congress had not 
authorized a removal where jury commissioners or 
other subordinate officers had, without authority de­
rived from the Constitution and law’s of the State, 
excluded colored citizens from juries because of their 
race. (103 U. S. at 386-87.)

“ The essential question, therefore,” said the Court, was 
whether Negroes were excluded from Delaware juries “by 
reason of the Constitution and laws of Delaware” ;30 and, 
finding that “ the alleged discrimination in the State of 
Delaware, against citizens of the African race, in the mat­
ter of service on juries, does not result from her Constitu­
tion and laws,” 31 the Court ruled removal unauthorized.

This ruling was repeated in a series of substantially iden­
tical cases at the end of the nineteenth century. In each 
case the defendant was a Negro charged with murder in a 
state court who based his removal petition upon allegations 
of systematic exclusion of Negroes from the grand and 
petit juries. In Gibson v. Mississippi, 162 U. S. 565 (1896);

30 Id. at 387.
31 Id. at 389.



24

Smith v. Mississippi, 162 U. S. 592 (1896); and Murray v. 
Louisiana, 163 U. S. 101 (1896), it was alleged that this 
exclusion was practiced by local officials without authority 
of statute or state constitution. Smith and Murray moved 
to quash the indictment, petitioned the state court for re­
moval, and challenged the venire or panel of trial jurors, 
all on the same equal protection grounds. Gibson did not 
move to quash the indictment but did petition for removal 
and challenged the petit jury. In all three cases, the Su­
preme Court affirmed the convictions, sustaining the denial 
of the removal petitions on the ground that no state statute 
or constitution denied the defendants their equal civil rights, 
and sustaining denial of the respective motions to quash or 
challenges to the petit jury on the ground that no sufficient 
case of discrimination was established. The Gibson and 
Murray opinions repeated substantially the passage from 
Neal quoted above, and Smith relied on Gibson.

In Bush v. Kentucky, 107 U. S. 110 (1883), the exclusion 
of Negro jurors was allegedly practiced under an 1873 Ken­
tucky statute making only whites competent to serve as 
grand and petit jurors. Motions to quash the indictment, 
petitions for removal, and a challenge to the panel of petit 
jurors (the last being formally inadequate to raise a federal 
claim) were made and overruled. On review, the Court 
found that prior to Bush’s indictment and trial the Ken­
tucky Court of Appeals had declared the 1873 statute un­
constitutional and void; the ruling put Bush in a posture 
identical to Neal’s in Delaware, and the Court sustained 
denial of the removal petition on authority of Neal. As in 
Neal, the Court found the claim of grand jury discrimina­
tion supported on the record and reversed the conviction 
for error in denying the motion to quash.



25

In Williams v. Mississippi, 170 IJ. S. 213 (1898), defen­
dant claimed not merely that administrative officials had 
systematically excluded Negroes from juries, but also that 
the provisions of the Mississippi constitution and statute 
prescribing the procedures for qualifying electors and 
jurors (only electors being competent jurors) were

but a scheme on the part of the framers of that con­
stitution to abridge the suffrage of the colored elec­
tors in the State of Mississippi on account of the previ­
ous condition of servitude by granting a discretion 
to the said officers as mentioned in the several sections 
of the constitution of the State and the statute of the 
State adopted under the said constitution, the use of 
said [sic: which] discretion can be and has been used 
in the said . . . County to the end complained of. {Id. 
at 214.)

It was alleged that the constitution was drawn by a con­
stitutional convention of 133 white and one Negro members, 
which refused to submit the new constitution to popular 
vote for adoption, because of the heavy preponderance of 
Negro voters qualified under prior law; and that the legis­
lature acted immediately under the new constitution, with 
a purpose to discriminate against Negroes in the franchise, 
by passing a statute which gave local election managers 
wide discretion in judging the qualifications of persons reg­
istering to vote. Motions to quash the indictment and for 
removal were made and denied. Williams was convicted; 
the Mississippi Supreme Court and the Supreme Court of 
the United States affirmed. Sustaining denial of the motion 
for removal, the Court began by quoting from Gibson the 
standard paragraph from Neal. It noted that no claim was 
made that the Mississippi constitution or statute was dis­



26

criminatory on its face; and it concluded that the well- 
pleaded factual averments of the defendant’s motions failed 
to present “ sufficient allegation of an evil and discrimi­
nating administration” of the State’s laws. 170 U. S. at 
222. On these grounds, the motion to quash, as well as 
that for removal, was held correctly denied.

Obviously, as a technical matter, none of the cases after 
Rives held or could hold anything on the question of con­
struction of the removal statute. Each case came to the 
Court on review of state court judgments of conviction (see 
note 29 supra) ; in each, the same jury-exclusion claim 
which was the basis for a removal petition was, on an 
identical record, the basis for a motion to quash or other 
attack on the grand or petit jury; where (as in all eases 
save Bush and Neal) the Court affirmed, it necessarily 
rejected the jury-exclusion claim on substantive grounds 
and therefore made it unnecessary to decide whether a valid 
claim of this sort would sustain removal; and where (as 
in Bush and Neal) the Court reversed on grounds that the 
substantive claim supported a motion to quash, rejection 
of the removal claim was equally unnecessary to decision. 
Rives itself—the only responsible holding on the issue of 
removal—was, of course, ambiguous. Notwithstanding this, 
by 1898 the Court clearly supposed it had long since settled 
that removal under present §1443(1) was allowable only 
on a claim of facial unconstitutionality of a state statute 
or constitutional provision.

In Kentucky v. Powers, 201 U. S. 1 (1906), the Court 
handed down its last decision discussing the removal sec­
tion.32 Following three trials for murder in a Kentucky

32 Between 1887 and 1964 it vras generally supposed that orders 
of a lower federal court remanding to a state court proceedings



27

court, each resulting in conviction reversed on appeal by 
the Kentucky Court of Appeals, Powers, prior to his fourth 
trial, filed his petition alleging (1) that the killing with 
which he was charged had occurred during the course of a 
factional dispute, accompanied by widespread political ex­
citement and animosity, involving contested elections for 
all of the major state offices; (2) that Powers had been the 
Kepublican candidate for secretary of state; one Taylor 
the Kepublican candidate for governor; and Goebel, the 
man with whose murder Powers was charged, the Demo­
cratic candidate for governor; (3) that Goebel’s killing 
aroused intense hostility toward Powers on the part of 
Goebel Democrats and inflamed them against him; and 
that this hostility continued throughout his three trials and 
still existed; (4) that in each of Powers’ three trials the 
sheriff and deputies charged with jury selection, all being 
Goebel Democrats, connived with the trial judge to violate 
the regular state procedures for selecting juries, and instead 
systematically excluded Republicans and Independents from 
the jury panels and selected Goebel Democrats for the pur­
pose of assuring Powers’ conviction; (5) that the judge at 
each trial denied Powers’ requests that the jury be selected 
equally from both political parties (approximating the 
roughly equal popular vote each had polled at the last elec­
tion), or that the jury be selected without reference to

sought to be removed from it were not reviewable by the federal 
appellate courts. See Act of March 3, 1887, ch. 373, §2, 24 Stat. 
553, as amended, Act of Aug. 13, 1888, ch. 866, 25 Stat. 435. 
Preservation of a removal point through state appeals following 
adverse final judgment, was generally bootless, for the reason that 
it added nothing to other federal claims so preserved. When the 
lower courts began to deny civil rights removal generally on the 
authority of Powers and its immediate predecessors, there was 
therefore no occasion for Supreme Court consideration of the issues 
decided below.



28

party, and overruled Powers’ objections to jurors selected 
by systematic exclusion of Republicans and Independents; 
(6) that on each appeal, by force of a Kentucky statute 
which made certain trial court rulings unreviewable, the 
Kentucky Court of Appeals had held it had no power to 
upset the trial judge’s rulings on the jurors—which deci­
sions were the law of the case and as binding on the Ken­
tucky courts as statutes; (7) that at each trial, Powers had 
pleaded in bar a pardon issued to him by Governor Tay­
lor, who at the time of its issuance was the duly elected 
and acting governor of the State; that the trial judge had 
refused to admit the pardon as a defense (this being the 
first time in Kentucky jurisprudence that a Kentucky court 
refused to give effect to an executive pardon); and on each 
appeal the court of appeals had sustained this ruling— 
which decisions also were the law of the case and binding 
on the Kentucky courts; (8) that Powers was confined in 
jail without bail awaiting a fourth trial and for all the fore­
going reasons was unable to obtain a fair trial in the Ken­
tucky courts.33 The lower federal court assumed jurisdic­
tion on removal, concluding

that the prior action of the Scott Circuit Court deny­
ing the defendant the equal protection of the laws is 
a real hindrance and obstacle to his asserting his right 
thereto in a future trial therein—just as real as an un­
constitutional statute would be—and that the defendant

33 Although this fact is not mentioned in the Supreme Court’s 
opinion, it appears that each of the previous reversals of Powers’ 
convictions by the Court of Appeals of Kentucky had been by 4-3 
vote of that court; that, following the third reversal one judge 
who had on each occasion voted to reverse retired from the bench, 
and was succeeded by the judge who had presided at each of 
Powers’ first two trials. See Kentucky v. Powers, 139 Fed. 452, 
458-59 (C. C. E. D. Ky. 1905), rev’d 201 U. S. 1 (1906).



29

is denied the equal protection of the laws in said court, 
within the meaning of said section, and entitled to a 
removal on account thereof.34

On the State’s appeal and petition for mandamus, the 
Court held that such a ruling was error, that removal was 
improper, and it ordered the case remanded to the state 
court. The Court noted that, notwithstanding the state 
court of appeals would not entertain Powers’ claims of 
denial of his federal rights, review of those claims could 
be had by writ of error issued from the Court to the 
state trial court after conviction. And as the Court read 
its earlier cases, those cases

expressly held that there was no right of removal un­
der section 641, where the alleged discrimination against 
the accused, in respect of his equal rights, was due 
to the illegal or corrupt acts of administrative officers, 
unauthorized by the constitution or laws of the State, 
as interpreted by its highest court. For wrongs of 
that character the remedy, it was held, is in the state 
court, and ultimately in the power of this court, upon 
writ of error, to protect any right secured or granted 
to an accused by the Constitution or laws of the United 
States, and which has been denied to him in the highest 
court of the State in which the decision, in respect of 
that right, could be had.35

For almost sixty years after Powers, the lower federal 
courts consistently held that unless a state constitutional
or statutory provision unconstitutional on its face was 
alleged to deprive a defendant of his federal rights, re­
moval under present section 1443(1) was unauthorized.

34 1 39 Fed. at 487.
35 201 U. S. at 31.



30

In 1965, in the exercise of the appellate jurisdiction given 
by §901 of the Civil Rights Act of 1964, this Court upheld 
removal under §1443(1), distinguishing, rather than re­
jecting, Rives-Powers. Rachel v. Georgia, 342 F. 2d 336 
(5th Cir. 1965); Peacock v. City of Greenwood, 347 F. 2d 
679 (5th Cir. 1965). This case now calls for outright rejec­
tion of the doctrine of those cases.

C.

To summarize, the construction put on the removal stat­
ute by the Rives-Powers line of cases has no very evident 
credentials of history or reason. Nor are its credentials of 
authority much better. Beginning as an ambiguous ob­
servation in Rives, translated into rigid doctrine by a series 
of opinions which neither needed to discuss the question 
nor undertook to cast much illumination on it, and finally 
treated in Poivers as long settled, the doctrine lacks the sup­
port of any single, decisive exposition by the Supreme 
Court. The Court’s only attempts to explain it, in Rives and 
Neal v. Delaware, have consisted of the reasoning that
(a) Congress, in authorizing removal before trial on a 
showing of denial or inability to enforce federal civil rights, 
must have meant by those terms some sort of denial or 
inability which could ordinarily be shown before trial; that
(b) prior to state trial, a removal petitioner cannot ordi­
narily show that he will be denied or unable to enforce 
his federal civil rights in the state courts, unless those 
rights are explicitly repudiated by state legislation; there­
fore that (c) the denial or inability intended was a denial 
or inability occasioned by facially unconstitutional state 
legislation. Both premises of the syllogism are manifestly 
defective. The first ignores the circumstance that the statu­
tory language “ are denied or cannot enforce” derives from 
the 1866 act, which permitted removal both before and 
after state trial. Omission of the post-trial removal pro­



31

vision in the 1875 Revised Statutes may have made the 
necessary showing of denial or inability more difficult by 
precipitating the time when denial or inability had to be 
shown, but it hardly provides a basis for inference as to 
what constitutes denial or inability. The second premise 
—that, absent legislation, it cannot be known what a state 
court will do— simply confounds the common law tradition 
and daily legal experience. Strauder had authorized re­
moval on less than absolute certitude that federal civil 
rights would be denied—that is, notwithstanding the possi­
bility that the West Virginia judges, obedient to the su­
premacy clause, would void unconstitutional state legisla­
tion. Surely the same degree of certitude is attainable in 
situations where no unconstitutional state legislation is 
involved.

CONCLUSION

For the foregoing reasons, the judgment below should 
be reversed.

Respectfully submitted,

Norman C. A maker
J ack Greenberg

10 Columbus Circle
New York, New York 10019

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

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

Attorneys for Appellant



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