Williams v. City of New Orleans Brief for Plaintiffs-Appellees

    s .

I n th e

luttefc (Enurt ni AjipTais
F or th e  F ourth  Circuit 

No. 10,062

S tate of N orth  Carolina,
Appellee,

R eginald A. H a w k in s ,
Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION

SUPPLEMENTAL BRIEF FOR APPELLANT

T homas W yche
2500 Beatties Ford Road 
Charlotte, North Carolina

Charles V . B ell
112 South Irwin Avenue 
Charlotte, North Carolina

J. L eV onne C hambers
405% East Trade Street 
Charlotte, North Carolina

J ack  G reenberg
M elvyn  Z arr

10 Columbus Circle 
New York, New York

Attorneys for Appellant



I n  th e

Itmfrfc States (to rt rtf Appeals
F ob th e  F ourth  C ircuit  

No. 10,062

S tate of N orth Carolina,
Appellee,

R eginald  A. H a w k in s ,
Appellant.

appeal from  th e  united  states district court
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

charlotte division

SUPPLEMENTAL BRIEF FOR APPELLANT

Subsequent to the briefing of this appeal, the Court 
decided three cases construing the civil rights removal 
statute, 28 U. S. C. §1443. Baines v. City of Danville, 
No. 9080; Commonwealth of Virginia v. Wallace, No. 9462; 
and Commonwealth of Virginia v. Morris, No. 9587, all 
decided January 21, 1966. In these cases the Court dis­
allowed removal under §1443. This supplemental brief 
addresses itself to the impact of these decisions upon the 
instant appeal. Appellant submits that these decisions, 
properly analyzed, do not defeat §1443(1) removal here; 
rather, they uphold it. 1

1. In Baines v. City of Danville, the Court held that 
the First and Fourteenth Amendments to the Constitution



2

of the United States are not laws “ providing for . . . equal 
civil rights” within the meaning of §1443(1). But the Court 
also implicitly held that 42 U. S. C. §1971 is a “ law pro­
viding for . . . equal civil rights” , since that statute is 
“ couched in egalitarian terms” .1 Appellant invokes rights 
under that statute.

2. In Baines, the Court expressed agreement with the 
Fifth Circuit’s decision in Rachel v. Georgia, 342 F. 2d 
336 (5th Cir. 1965) (footnote 34 and accompanying text). 
Appellant bases his claim for removal squarely upon 
Rachel; he maintains that he is “ denied” a federal civil 
right in exactly the same manner that Rachel was “ denied” 
a federal civil right. Removability here can be demon­
strated with the selfsame clarity as in Rachel. There, 
removal petitioners were prosecuted for trespass for “ sit­
ting-in” at a place of public accommodation. The Fifth Cir­
cuit held that if petitioners could prove that their prose­
cutions enforced racial segregation, they would be entitled 
to removal, saying (342 F. 2d at 343):

Upon remand, therefore, the trial court should give 
appellants an opportunity to prove the allegations in 
the removal petition as to the purpose for the arrests 
and prosecutions, and in the event it is established that 
the removal of the appellants from the various places 
of public accommodation was done for racial reasons, 
then under authority of the Hamm case it would be­
come the duty of the district court to order a dis­
missal of the prosecutions without further proceedings. 1

1 See Baines, footnote 23, and accompanying text. The Court 
relied upon the test advanced in New York v. Galamison, 342 F. 2d 
255 (2nd Cir. 1965).



3

In this case, appellant merely seeks the kind of eviden­
tiary hearing that was afforded Rachel, namely, an oppor­
tunity to prove that his conduct is protected from state- 
prosecution by a federal law providing for equal civil 
rights. Appellant agrees with Baines that a claim under 
the “ cannot enforce in the courts of such State” provision 
of §1443(1) would be immeasurably more difficult to prove, 
since that claim would necessarily challenge a state pro­
ceeding “before trial” (28 U. S. C. §1446(c)) and would re­
quire a federal judge to speculate on future state judicial 
conduct. But appellant’s claim, unlike the claims raised in 
the Rives-Powers line of cases, does not challenge any state 
proceeding in futuro. Rather, appellant’s claim focuses on 
a present denial of his federal civil rights by his arrest 
and charge, implicating facts which can be proved now— 
prior to trial in the state court—if only he is given the 
opportunity.

Respectfully submitted,

T homas W yche
2500 Beatties Ford Road 
Charlotte, North Carolina

Charles V. B ell
112 South Irwin Avenue 
Charlotte, North Carolina

J. L eV onne C hambers
405% East Trade Street 
Charlotte, North Carolina

J ack  Greenberg
M elvyn  Z arr

10 Columbus Circle 
New York, New York

Attorneys for Appellant



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