LDF Charges Bias in Licensing of School Supervisory Personnel

    I s  THE

United Bintm (Emtrt ni A p p a ls
Foe the F ifth Circuit 

No. 22104

L ieutenant A lbert A . McGee,
Appellant,

-----Y .— •

City of Meridian, M ississippi,
Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANT

R. Jess Brown

125% North Farish Street 
Jackson, Mississippi

H enry M. A ronson

538% North Farish Street 
Jackson, Mississippi

Jack Greenberg

Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

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

Attorneys for Appellant



I N D E X

PAGE

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

Specification of Error ..... ...... -................ ...... .............. . 3

Argument :

Appellant’s Removal Petition Adequately States 
a Case for Removal Under 28 U. S. C. §1443 ____ 3

Conclusion ........................ ......................... ...................... . 12

Statutory A ppendix ........................ ....... ...... ....... ...... ....  la

Table of Cases

Abernathy v. Alabama, 380 U. S. 447 (1965) ....... ......  4

Boynton v. Virginia, 364 U. S. 454 (1960) ........    4

Cox v. Louisiana, 379 U. S. 536 (1965) ______________  5

Dombrowski v. Pfister, 380 U. S. 479 (1965) _______ 9,11

Knight v. State, 161 So. 2d 521 (1964), reversed per 
curiam, sub nom. .......................... ..................... ...........  8

Lombard v. Louisiana, 373 U. S. 267 (1963) ......... ........  4
Louisiana v. United States, 380 U. S. 145 (1965) ...........  10

NAACP v. Button, 371 U. S. 415 (1963) .....   9
Nesmith v. Alford, 318 F. 2d 110 (5th Cir. 1963) .......  9

Peterson v. City of Greenville, 373 U. S. 244 (1963) .... 4



11

PAGE

Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965) ....2,3,12 
Robinson v. Florida, 378 U. 8. 153 (1964) ............ . 4

Strauder v. West Virginia, 100 U. S. 303 (1880) .......  5,9
Stromberg v. California, 283 U. S. 359 (1931)      9

Taylor v. Louisiana, 370 U. S. 154 (1962)  ................. 4
Thomas v. Mississippi,------ U. S .------- , 14 L. ed. 2d 265

(April 26,1965) ....................... — .......................... ...... -  4, 8

Statutes Involved

28 U. S. C. §1443 ....................................... ................ 2, 3, 4, 5

28 U. S. C. §1443(1) .........................     5,9,12

42 U. S. C. §§1981, 1985 ..................................................... 4

42 IT. S. C. §1983 ....... ...................................................... 4,11

49 U. S. C. §3(1) ..........     4,5

Civil Rights Act, 1964, §201(b)(4), 78 Stat. 241 ..... . 12

La. Const. Art. VIII § l(d ) ..............................................  10

La. Rev. Stat. §14:103.1 (Cum. Supp. 1962) ...........  6

Miss. Code Ann. 1942 §1762 (Supp. 1964) ...................  10

Miss. Code Ann. 1942 §1762-01 (Supp. 1964) ...............  10

Miss. Code Ann. 1942 §2089.5 (1964 Supp.) ........    2,5

Miss. Code Ann. Tit. 11 §§2351, 2351.5, 2351.7 ..........  4

Miss. Code Ann. Tit. 28 §§7784, 7785, 7786, 7787.5 .... 4

Miss. Constitution, §241-A  ....................................... —- 10

Miss. Constitution, §244 .............. ................................. . 10



In the

States (Emtrt of Apprals
F oe  t h e  F i f t h  C ir c u it

No. 22104

L ie u t e n a n t  A l b e r t  A .  McGee,
Appellant,

C i t y  o f  M e r id ia n , M is s is s ip p i ,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANT

Statement o f the Case

This is an appeal from an order of United States Dis­
trict Judge Sidney C. Mize, remanding to the Mississippi 
court from which appellant had removed it a criminal prose­
cution related to an attempt by a Negro officer of the United 
States Air Force to use the terminal facilities of an inter­
state railroad free from racial segregation.

On July 27, 1965, appellant filed in the United States 
District Court for the Southern District of Mississippi his 
verified petition for removal (R. 2-6). The removed prose­
cution involved a charge of disturbance of the peace, in



2

violation of Miss. Code Ann. 1942 §2089.5 (1964 Supp.), 
set out, infra, la. On August 20, 1964, appellee’s motion 
to remand to the Municipal Court of the City of Meridian 
was filed (R. 9). The motion to remand challenged the 
sufficiency of the removal petition on its face (R. 9). Judge 
Mize held no evidentiary hearing, but considered appel­
lee’s motion to remand on the verified petition for removal, 
affidavits in support of the motion to remand and the argu­
ment of counsel (R. 15). On October 5, 1964, Judge Mize 
signed an order (filed October 12, 1964) remanding the 
case to the Municipal Court of the City of Meridian, on 
the ground that “ 28 U. S. C. Section 1443 has no application 
to the matters alleged and set forth in the Petition for 
Removal” (R. 15).

Since the prosecution was remanded without hearing on 
the jurisdictional facts, the factual allegations of the re­
moval petition must be taken as true for purposes of this 
appeal. Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965). 
Those allegations are as follows.

On July 12, 1964, Lieutenant McGee, a Negro officer of 
the United States Air Force, entered the railroad station 
in Meridian for the purpose of meeting his sister who was 
arriving from Columbus, Ohio (R. 2). Lieutenant McGee 
entered the waiting room customarily reserved for whites.1 
Unable to find his sister, ajjpellant went to a telephone in 
the waiting room; at that point three police officers ap­
proached appellant, ordered him out of the waiting room

1 There were two waiting rooms in the station (R. 2-3, 11) ; al­
though there were no signs designating which racial group ’was 
to use which waiting room, segregation was enforced through in­
timidation by local white citizens or through prosecution for dis­
turbing the peace.



3

and arrested him. Appellant was taken to the police sta­
tion, charged with disturbing the peace and subsequently 
released from custody upon $25 cash bond (R. 2-3).

Appellant’s arrest and prosecution were and presently 
are being carried out with the sole purpose and effect of 
harassing him and punishing him for his attempt to use 
the terminal facilities of the interstate railroad free from 
racial segregation (R. 3).

Timely notice of appeal of Judge Mize’s remand order 
was filed October 14,1964 (R. 16).

Specification of Error

The court below erred in holding that appellant’s peti­
tion for removal did not state a removable case under 28 
IT. S. C. §1443.

A R G U M E N T

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

“ If a petition for removal states sufficient in the way of 
allegations to support proof of adequate grounds for re­
moval, it is to be treated in the same manner as a com­
plaint in federal court.” Rachel v. Georgia, 342 F. 2d 336, 
340 (5th Cir. 1965). “ Unless there is patently no sub­
stance in (the) . . . allegation, a good claim for removal 
. . .  has been stated.” Id.

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

Appellant’s petition adequately alleges that he is prose­
cuted for an act done under color of authority of federal



4

laws providing for equal rights (R. 5). See appellant’s 
Appendix Brief, Parts 11A, C, filed herewith.2 The laws 
providing for equal rights whieh appellant invokes are 
(1) 49 U. S. C. §3(1), which protects the right of citizens 
to be free from racial segregation in terminal facilities of 
interstate railroads and forbids punishment for the exer­
cise of that right, Boynton v. Virginia, 364 U. S. 454 (1960); 
Taylor v. Louisiana, 370 U. S. 154 (1962); Abernathy v. 
Alabama, 380 U. S. 447 (1965); Thomas v. Mississippi, 
14 L. ed. 2d 265 (April 26, 1965); and (2) 42 IT. S. C. 
§§1981, 1983 and 1985, which protect the right of all per­
sons against State-ordained or State-enforced discrimina­
tion in access to places of public accommodation, Peterson 
v. City of Greenville, 373 IT. S. 244 (1963); Lombard v. 
Louisiana, 373 U. S. 267 (1963); Robinson v. Florida, 378 
IT. S. 153 (1964). Whether or not the arrest and prosecu­
tion of appellant on racial grounds were instigated by pri­
vate persons, the State of Mississippi is significantly in­
volved in the policy and custom of preserving segregation 
in railroad terminals, and thus appellant may not be pun­
ished consistently with the three cases last cited, supra. 
Racial segregation in transportation facilities is supported 
by a panoply of Mississippi statutes: Title 11, §2351 (sepa­
rate railroad cars for Negroes and whites); §2351.5 (rail­
roads and other carriers required to provide separate toilet 
facilities for intrastate passengers); §2351.7 (separate 
waiting rooms for intrastate passengers); Tit. 28, §7784 
(separate accommodations in railroad travel); §7785 (sepa­

2 Because counsel for appellant are counsel in numerous cases 
pending- in this Court which raise virtually identical issues of 
construction of 28 U. S. C. §1443, appellant has sought leave of 
the Court to include the arguments common to all eases in an 
Appendix Brief, to be filed in all.



5

rate accommodations in street cars and buses); §7786 (pas­
sengers on street cars, buses, etc., required to occupy com­
partments assigned); §7787.5 (separate waiting rooms in 
bus and train terminals to have “ bold letters” designating 
“white waiting room, intrastate passengers,” “ colored wait­
ing room, intrastate passengers.”

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

Appellant’s petition adequately alleges that he is denied 
and cannot enforce in the Mississippi state courts a right 
under a federal law providing for equal civil rights (E. 
3-5). See appellant’s Appendix Brief, Parts IIA, B. The 
right claimed is that stated in the preceding paragraph 
under 49 U. S. C. §3(1), viz., the right to be free from pun­
ishment for using an interstate railroad terminal facility 
customarily reserved for members of another race. See 
appellant’s Appendix Brief, Part IIB(2).

Appellant also relies upon Strauder v. West Virginia, 
100 U. S. 303 (1880) (see appellant’s Appendix Brief, Part 
IIB (2 )), since the state statute under which appellant is 
prosecuted is offensive to the Constitution of the United 
States.

Miss. Code Ann., 1942 §2089.5 (1964 Supp.), under which 
appellant is prosecuted is unconstitutionally vague. Cox 
v. Louisiana, 379 U. S. 536, 551-52 (1965). In Cox, the Su­
preme Court of the United States struck down for over­
breadth a Louisiana statute which provided, in relevant 
part:

Whoever with intent to provoke a breach of the 
X̂ eace, or under circumstances such that a breach of 
the x̂ eace may be occasioned thereby . . . crowds or



6

; congregates with others . . .  in or upon . . .  a public 
street or public highway, or upon a public sidewalk, 
or any other public place or building . . . and who 
fails or refuses to disperse and move on . . . when 
ordered so to do by any law enforcement officer of 
any municipality, or parish, in which such act or acts 
are committed, or by any law enforcement officer of the 
state of Louisiana, or any other authorized person . . . 
shall be guilty of disturbing the peace. La. Rev. Stat. 
§14:103.1 (Cum. Supp. 1962).

The Court held that impermissible vagueness inhered in the 
phraseology “with intent to provoke a breach of the peace, 
or under circumstances such that a breach of the peace may 
be occasioned”, saying (379 U. S. at 551-52):

The Louisiana Supreme Court in this case defined the 
term “breach of the peace” as “ to agitate, to arouse 
from a state of repose, to molest, to interrupt, to 
hinder, to disquiet.” 244 La., at 1105, 156 So. 2d, at 
455. (This) definition would allow persons to be pun­
ished merely for peacefully expressing unpopular 
views. Yet, a “ function of free speech under our sys­
tem of government is to invite dispute. It may indeed 
best serve its high purpose when it induces a condi­
tion of unrest, creates dissatisfaction with conditions 
as they are, or even stirs people to anger. Speech is 
often provocative and challenging. It may strike at 
prejudices and preconceptions and have profound un­
settling effects as it presses for acceptance of an idea. 
That is why freedom of speech . . . is . . . protected 
against censorship or punishment . . . There is no room 
under our Constitution for a more restrictive view.



7

For the alternative would lead to standardization of 
ideas either by legislatures, courts, or dominant politi­
cal or community groups.” Terminiello v. Chicago, 337 
II. S. 1, 4-5. In Terminiello convictions were not al­
lowed to stand because the trial judge charged that 

. speech of the defendants could be punished as a breach 
of the peace “ ‘if it stirs the public to anger, invites 
dispute, brings about a condition of unrest, or creates 
a disturbance, or if it molests the inhabitants in the 
enjoyment of peace and quiet by arousing alarm.’ ” 
Id., 337 U. S. at 3. The Louisiana statute, as interpreted 
by the Louisiana court, is at least as likely to allow con­
viction for innocent speech as was the charge of the 
trial judge in Terminiello. Therefore, as in Terminiello 
and Edwards (v. South Carolina, 372 U. S. 229 (1963)) 
the conviction under this statute must be reversed as 
the statute is unconstitutional in that it sweeps within 
its broad scope activities that are constitutionally pro­
tected free speech and assembly. Maintenance of the 
opportunity for free political discussion is a basic tenet 
of our constitutional democracy. As Chief Justice 
Hughes stated in Stromberg v. California, 283 U. S. 
359, 369: “ A statute which upon its face, and as au­
thoritatively construed, is so vague and indefinite as to 
permit the punishment of the fair use of this oppor­
tunity is repugnant to the guaranty of liberty contained 
in the Fourteenth Amendment.”

The same degree of impermissible vagueness inheres in 
§2089.5, since it punishes “ (a)ny person who disturbs the 
. . . peace of others . . .  by conduct either calculated to 
provoke a breach of the peace, or by conduct which may 
lead to a breach of the peace, or by any other act. . . . ”



8

As construed by the Supreme Court of Mississippi, the 
term “breach of the peace” reaches federally protected ac­
tivities that create unrest in others, such as the effort of 
a racially mixed group to enter and remain in a white 
waiting room in a bus terminal. Knight v. State, 161 So. 2d 
521 (1964), reversed per curiam, sub nom. Thomas v. Mis­
sissippi, ------ IT. S . ------- , 14 L. ed. 2d 265 (April 26, 1965).
In Knight, the Supreme Court of Mississippi found a 
“ breach of the peace” in the. following circumstances (161 
So. 2d at 522):

When the (Negro) defendant and her (racially 
mixed) group of seven others, after disembarking from 
the bus, entered the west (white) waiting room of the 
Terminal, the mood of the fifty people, including some 
newspapermen, on the inside, immediately changed. 
It became “ugly and nasty” . The people began to move 
in and toward the group. The officers saw expressions 
on the faces of the people and heard their talk about 
this crowd and their accusations that the group were 
a bunch of agitators and trouble makers. The defen­
dant used no vulgar or indecent language and made no 
unusual gestures ; but she appeared to be afraid. At no 
time did she advise the officers that she had business in 
the waiting room nor did she assert any claim that 
she was exercising her right of free speech or any other 
right.

Captain Ray, seeing the change in the attitude of 
the people, and deeming that the defendant and her 
group were the root of the trouble, and believing that, 
under the circumstances then existing, a breach of the 
peace was about to occur, twice ordered the defendant,



9

and the other members “ to move on” . When they re­
fused, he arrested all of them.

The Supreme Court of the United States has consistently 
warned that, where freedom of expression is involved, 
vague penal laws cannot be tolerated. Stromberg v. Cali­
fornia, 283 U. S. 359, 369 (1931); NAACP v. Button, 371 
U. S. 415, 433 (1963); Dombrowski v. Pfister, 380 U. S. 
479, 85 S. Ct. 1116 (April 26, 1965). One important rea­
son for this ban is that statutes such as §2089.5 provide 
law enforcement officers with a blank check; in effect, 
§2089.5 gives a policeman discretion, as here, to arrest any 
person in a public place whom he finds objectionable. 
Thus, a person may be forced not only to relinquish his 
federally protected rights, but may also be forced to answer 
criminally for their exercise. As this Court recognized in 
Nesmith v. Alford, 318 F. 2d 110, 121 (5th Cir. 1963):

(L)iberty is at an end if a police officer may without 
warrant arrest, not the persons threatening violence, 
but those who are its likely victims, merely because the 
person arrested is engaging in conduct which, though 
peaceful and legally and constitutionally protected, is 
deemed offensive and provocative to settled social cus­
toms and practices. When that day comes . . .  the 
exercise of (First Amendment rights) must then con­
form to what the conscientious policeman regards the 
community’s threshold of intolerance to be.

In addition, appellant’s case is removable under 28 
U. S. C. §1443(1) as construed in Strauder v. West Vir­
ginia, 100 U. S. 303 (1880), because appellant is denied and 
cannot enforce in the state courts his right to trial by a 
jury from which Negroes are not discriminatorily excluded.



10

By force of the holding3 in Louisiana v. United States, 380 
U. 8. 1.45 (1965), certain of Mississippi’s constitutional pro­
visions governing the qualifications of electors4 are void on 
their face, and hence Miss. Code Ann., 1942, §1762 (Supp. 
1964), which, in effect, qualifies only electors as jurors,5 
is equally facially unconstitutional.

Finally, appellant’s removal petition contained the al­
legation, which Judge Mize necessarily assumed to be true

3 The Supreme Court struck down Louisiana’s voter registration 
laws because they vested in the registrar discretion to determine 
the qualifications of applicants for registration circumscribed by 
no definite or objective standards for the registration process. 
The Louisiana laws provided, inter alia, that an applicant “be able 
to understand and give a reasonable interpretation of any section 
of (the United States or Louisiana) Constitution when read to 
him by the registrar.” La. Const. Art. VIII § l (d) .

4Mississippi Constitution §244, in relevant part:
Every elector shall, in addition to the foregoing qualifications 
be able to read and write any section of the Constitution of 
this State and give a reasonable interpretation thereof to the 
County registrar. He shall demonstrate to the county registrar 
a reasonable understanding of the duties and obligations of 
citizenship under a constitutional form of government . . .

Mississippi Constitution, §241-A:
In addition to all other qualifications required of a person to 
be entitled to register for the purpose of becoming a qualified 
elector, such person shall be of good moral character.

5 Miss. Code Ann.., 1942 §1762 (Supp. 1964) :
Every male citizen not under the age of twenty-one (21) 
years, who is either a qualified elector or a resident freeholder 
of the county for more than one year . . .  is a competent 
juror . . .

Resident freeholders may be qualified as jurors only pursuant to 
special judicial proceedings in the circuit courts. Miss. Code Ann. 
1942, §1762-01 (Supp. 1964).



11

for purposes of his decision, that the arrest and prosecution 
of appellant “ has been and is being carried on with the sole 
purpose and effect of harassing [appellant] and of punish­
ing him . . . [for] the exercise of his constitutionally pro­
tected right . . . ” (R. 3). Such an allegation has been held 
to state a valid claim under 42 II. S. C. §1983. Dombrowski
v. Pfister, 380 U. S. 479,------85 S. Ct. 1116, 1123 (April 26,
1965). In Dombrowski, the United States Supreme Court 
held that federal courts should enjoin state prosecutions 
brought “ to impose continuing harassment in order to dis­
courage [civil rights] activities.” Thus the Supreme Court 
recognized a “ right” of citizens to be free of bad faith or 
harassment prosecutions; such a right is eo ipso “ denied” 
by prosecution.



12

CONCLUSION

For the foregoing reasons, the order of the district 
court remanding appellant’s case should be reversed. In 
addition, it now appears that the present case may be re­
movable under 28 U. S. C. §1443(1) as construed in Rachel 
v. Georgia, 342 F. 2d 336 (5th Cir. 1965), because appel­
lant is denied and cannot enforce in the state, courts his 
right to be free from prosecution for peacefully seeking to 
enjoy the facilities of a place of public accommodation as 
defined in Section 201(b)(4) of the Civil Rights Act of 
1964, 78 Stat. 241, 243. For this reason, appellant asks that 
this Court’s order on removal permit amendment of the 
removal petition to expressly present this ground for re­
moval.

Respectfully submitted,

R. Jess Brown

125% North Farish Street 
Jackson, Mississippi

H enry M. A ronson

538y2 North Farish Street 
Jackson, Mississippi

Jack Greenberg

Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

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

Attorneys for Appellant



13

CERTIFICATE OF SERVICE

This is to certify that on June , 1965, I served a 
copy of the foregoing Brief for Appellant and Appendix 
Brief for Appellant upon Thomas K. Holyfield, Esq., at­
torney for appellee, by mailing a copy thereof to him, c /o  
Lamar Building, Meridian, Mississippi, by United States 
mail, postage prepaid.

Attorney for Appellant



A P P E N D I X



la

STATUTORY APPENDIX

28 U. S. C. §1443 (1958):

§1443. Civil rights eases.

Any of the following civil actions or criminal prose­
cutions, 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 providing for the equal civil rights of citizens of 
the United States, or of all persons within the juris­
diction thereof;

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

Miss. Code Ann., 1942, §2089.5:

§2089.5. Disturbance of the public peace, or the peace 
of others.

1. Any person who disturbs the public peace, or the 
peace of others, by violent, or loud, or insulting, or 
profane, or indecent, or offensive, or boisterous con­
duct or language, or by intimidation, or seeking to in­
timidate any other person or persons, or by conduct 
either calculated to provoke a breach of the peace, or 
by conduct which may lead to a breach of the peace, 
or by any other act, shall be guilty of a misdemeanor,



2a

and upon conviction thereof, shall be punished by a fine 
of not more than five hundred dollars ($500.00), or by 
imprisonment in the county jail not more than six (6) 
months, or both.

2, The provisions of this act are supplementary to 
the provisions of any other statute of this state.

3. If any paragraph, sentence or clause of this act 
shall be held to be unconstitutional or invalid, the 
same shall not affect any other part, portion or pro­
vision thereof, but such other part shall remain in full 
force and effect.

Sources: Laws, 1960, eh. 254, §§1-3.



38