Shuttlesworth v Birmingham AL Brief for Appellant

    Initeft States QJnurt ni Appeals
F or the F ifth Circuit 

No. 23840

In th e

F bed L. Shuttlesworth,
Appellant,

City of B irmingham,
Appellee.

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

BRIEF FOR APPELLANT

Peter A. Hall 
Orzell B illingsley

1630 Fourth Avenue North 
Birmingham, Alabama 35203

Jack Greenberg 
J ames M. Nabrit, III 
Norman C. A maker 
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

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

Attorneys for Appellant



I N D E X

PAGE

Statement of the C ase........................................................ 1

Specification of Error ........................................................ 4

A bgument :

Appellant’s Prosecution Is Removable to Fed­
eral Court Pursuant to 28 U. S. C. §1443(1) Be­
cause the Unconstitutional Nature of the Prosecu­
tion May Be Established Without an Evidentiary
Hearing ......................................................    4

Conclusion ...............................................................................  8

T able oe Cases

Bush v. Kentucky, 107 U. S. 110 (1883) ..........................  5
City of Greenwood v. Peacock, 384 U. S. 808 

(1966) ......................................................................... 4, 6, 7, 8

Dombrowski v. Pfister, 380 U. S. 479 (1965) ............... 6

Georgia v. Rachel, 384 U. S. 780 (1966) ..........................  7, 8

Kentucky v. Powers, 201 U. S. 1 (1906) ........................  7
Kentucky v. Powers, 139 Fed. 452 (E. D. Ky. 1905) .... 5

Shuttlesworth v. City of Birmingham, 368 U. S. 959
(1962) ............................................................................... 6

In re Shuttlesworth, 369 U. S. 35 (1962) ....................... 6



11

PAGE

Shuttlesworth v. City of Birmingham, 373 U. S. 262
(1963) ........    6

Shuttlesworth v. City of Birmingham, 376 U. S. 339
(1964) .....    6

Shuttlesworth v. City of Birmingham, 382 U. S. 87
(1965) ..............................................  2,5,8

Strauder v. West Virginia, 100 U. S. 303 (1879) ........... 7

Statutes and Ordinances Involved

28 U. S. C. §1443(1) (1964) ............................................. 1,4,7

28 U. S. C. §1446(c) (1964) ...........................................  5

42 U. S. C. §1981 (1964) .................................................... 4

Birmingham General City Code, §1142..................... 2

Birmingham General City Code, §1231 ..................... 2



In th e

ItttteJi States Qkwrt ni Appmh
F ob the F ifth Circuit

No. 23840

F eed L. Shuttlesworth,

-v.-
Appellant,

City of B irmingham,
Appellee.

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

BRIEF FOR APPELLANT

Statement of the Case

This is an appeal from an order of the United States 
District Court for the Northern District of Alabama re­
manding appellant’s criminal prosecution to the Alabama 
state court from which it was removed pursuant to 28 
U. S. C. §1443(l).* 1

Prosecution of appellant, a well-known civil rights leader 
(R.. 2-3), was initiated by the City of Birmingham on April

1 §1443. Civil Bights Cases.
Any of the following civil actions or criminal prosecutions, com­

menced 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 jurisdiction thereof . . .



2

4,1962. He was charged with violating §§11422 and 12313 of 
the Birmingham General City Code, brought to trial in the 
Circuit Court of Jefterson County, convicted and sentenced 
to 180 days at hard labor and an additional 61 days at hard 
labor in default of a $100.00 fine and costs. Appellant’s 
conviction was affirmed by the Alabama Court of Appeals, 
42 Ala. App. 296, 161 So. 2d 796, and the Supreme Court 
of Alabama declined review. 276 Ala. 707, 161 So. 2d 799. 
On November 15, 1965, the Supreme Court of the United 
States reversed appellant’s convictions, holding that his 
conviction under §1142 was based upon a possible uncon­
stitutional construction of that ordinance and that his con­
viction under §1231 was based upon no evidence of guilt. 
Shuttlesworth v. City of Birmingham, 382 U. S. 87 (1965). 
The Alabama Court of Appeals, on remand from the Su­
preme Court of the United States, remanded the case to 
the Circuit Court of Jefferson County (181 So. 2d 628). On 
May 17, 1966, the day before appellant was to be tried in 
the Circuit Court on the §1142 charge, appellant filed a 
petition for removal in the United States District Court 
for the Northern District of Alabama. In his removal peti­
tion, appellant alleged that his arrest and prosecution were 
being maintained “ for the sole purpose and effect of har­
assing [him] and of punishing him for, and deterring him 
and Negro citizens of the City of Birmingham from, exer­

2 The relevant paragraph provides: “ It shall be unlawful for 
any person or any number of persons to so stand, loiter or walk 
upon any street or sidewalk in the city as to obstruct free passage 
over, on or along said street or sidewalk. It shall also be unlawful 
for any person to stand or loiter upon any street or sidewalk of 
the city after having been requested by any police officer to move 
on.”

f  “ It shall be unlawful for any person to refuse or fail to comply 
with any lawful order, signal or direction of a police officer.”



3

cising their constitutionally protected rights to equal pro­
tection of the laws and their constitutionally protected 
rights of free expression to protest racial discrimination, 
which the City of Birmingham and the State of Alabama 
now maintain by statute, ordinance, custom and usage” (R. 
7-8, 242-43). On January 28, 1966, the district court en­
tered a remand order (R. 244), from which this appeal 
wTas timely taken (R. 248).

Appellant appended to his removal petition the record 
in the Supreme Court of the United States. Taken most 
favorably to the prosecution, the evidence in the record 
is as follows. On April 4, 1962, at about 10:30 a.m., patrol­
man Byars of the Birmingham Police Department observed 
appellant standing on the sidewalk with 10 or 12 com­
panions outside a department store at the intersection of 
Second Avenue and Nineteenth Street in the City of Bir­
mingham (R. 31). They were conversing among themselves 
and occupied no more than one half of the sidewalk (R, 33, 
40). After observing the group for a minute or so, notwith­
standing there was no disorder or deliberate obstruction of 
pedestrian traffic, Patrolman Byars walked up and told 
them that they would have to move on (R. 34). After the 
first command by the patrolman, the group commenced to 
move away (R. 34). Byars repeated his command and ap­
pellant asked, “ You mean to say wrn can’t stand here on the 
sidewalk?” (R. 34). By this time everyone in the group 
but appellant had begun to walk away, and patrolman 
Byars told him that he was under arrest (R. 34, 50). Ap­
pellant responded, “Well, I will go into the store” and 
walked into the adjacent department store (R. 35). The 
officer followed and arrested him (R. 35). The entire inci­
dent, from the arrival of appellant and his companions



4

at the corner to Ms arrest, took less than four and one 
half minutes (R. 56).

Specification of Error

The district court erred in remanding appellant’s prose­
cution to the state court upon a record that, without the 
necessity of an evidentiary hearing, revealed that appel­
lant’s prosecution was racially motivated.

A R G U M E N T

Appellant’ s Prosecution Is Removable to Federal 
Court Pursuant to 2 8  U. S. C. § 1 4 4 3 (1 ) Because the 
Unconstitutional Nature of the Prosecution May Be 
Established Without an Evidentiary Hearing.

In remanding appellant’s prosecution to the state court, 
the court below held that the case was “ probably” 4 con­
trolled by City of Greenwood v. Peacock, 384 U. S. 808
(1966). Appellant argues to the contrary.

In this case, the clear prediction that appellant’s state 
trial will deny his federal constitutional and statutory 
rights to equal protection of the laws (U. S. Const., Amend. 
X IV ; 42 U. S. C. §1981 (1964)), may be established with­
out a federal evidentiary hearing. Appellant has already

4 “Differing from the petition in Peacock, the removal petition 
here has attached to it and made a part thereof a copy of the 
record on certiorari to the United States Supreme Court. While 
this record shows a conflict in the evidence, that presented by the 
City is at variance from the conclusions of the removal petition 
above quoted. It is, therefore, probable that this difference would 
remove this case from the doctrine of Peacock as delineated in the 
opinion of the Circuit Court of Appeals” (E. 243).



5

been tried once in the state courts.5 A  full evidentiary rec­
ord made at that trial was appended to his petition for 
removal, and the removal petition alleged, and the record 
shows, that on these facts, “ there is here no possible basis 
for a conviction which would be valid under the Federal 
Constitution” (Mr. Justice Fortas, concurring, in Shuttles­
worth v. City of Birmingham, 382 U. S. 87, 100 (1965). 
This was the view of the record taken by the Chief Justice 
and by Justices Fortas and Douglas when the Supreme 
Court reversed appellant’s conviction on the present charge; 
a majority of the Supreme Court found it unnecessary to 
reach that ground but did not disavow it. It could hardly 
have disavowed it. The record is clear that: 1) at the time 
of appellant’s arrest, his companions had dispersed; 2) ap­
pellant was incapable of blocking the sidewalk by himself . 
Officer Byars testified (R. 50):

Q. Well, all had moved by the time you made the 
arrest? A. Except Shuttlesworth.

Q. Nobody was standing there but Shuttlesworth? 
A. Nobody was standing; everybody else was in motion 
except defendant Shuttlesworth, who had never moved 
(R. 50).

Officer Hallman testified (R. 99-100):

Q. What happened to the group then, if anything? 
A. All of them dispersed except Shuttlesworth.

5 Appellant’s removal petition was filed “before trial” within 
the meaning of 28 U. S. C. §1446 (c). The petition was filed on 
May 17, 1966 (R. 1), before appellant’s scheduled trial in the state 
court on May 18, 1966 (R. 6). Timeliness of removal petitions has 
never been held to turn on whether the removed proceeding is a 
trial or retrial (Bush v. Kentucky, 107 U. S. 110, 111-12 (1883) ;  
Kentucky v. Powers, 139 Fed. 452 (E. D. Ky. 1905)).



6

Q. What happened after that? A. Officer Byars 
told him he was under arrest for blocking the sidewalk 
and placed him under arrest.

Appellant was and is no stranger to the police6 and 
courts7 of Birmingham. On this record, the conclusion is 
inescapable that his prosecution was and is being pursued 
by the City of Birmingham without any legitimate or real 
prospect of success, but merely for the purpose of subject­
ing appellant to the continuing harassment of this long- 
protracted criminal litigation. Such harassment violates 
appellant’s federal constitutional and statutory guaran­
tees of equal protection of the laws,8 and—as it can be 
established under “pervasive and explicit” federal princi­
ples of law without evidentiary hearing, see Peacock, 384 
U. S. at 832—it amply supports appellant’s claim to re­
moval.

Appellant’s case is not controlled by Peacock. In that case 
the Supreme Court did “ not necessarily approve or adopt 
all the language and all the reasoning of every one of this 
Court’s opinions construing this removal statute, from 
Strauder v. West Virginia, 100 U. S. 303, to Kentucky v. 
Powers, 201 U. S. 1.” 384 U. S. at 831. In other words, 
civil rights removal is not limited by Peacock to eases in

6 Officer Byars had heard of appellant, had seen his picture on 
television, had read that he had frequently been arrested and that 
he had been in a Birmingham jail (B. 41-42). Shuttlesworth’s 
arrest came during a recess in a well publicized federal civil rights 
court proceeding in which he was involved.

7 See, Shuttlesworth v. City of Birmingham, 368 U. S. 959 
(1962) ; In re Shuttlesworth, 369 U. S. 35 (1962) ; Shuttlesworth 
v. City of Birmingham, 373 U. S. 262 (1963) ■ Shuttlesworth v. 
City of Birmingham, 376 U. S. 339 (1964).

8 Dombrowski v. Pfister, 380 D. S. 479, 490 (1965).



7

which it had been allowed under the Strauder-Powers opin­
ions—that is, cases in which a facially unconstitutional state 
statute was implicated in the litigation. Rachel v. Georgia, 
384 U. S. 780 (1966), indeed, permits removal in the absence 
of such a statute.

The test of removal stated in Peacock is whether “ it 
can be clearly predicted by reason of the operation of a per­
vasive and explicit state or federal law that [federal civil 
rights] . . . will inevitably be denied by the very act of 
bringing the defendant to trial in the state court.” 384 
U. S. at 828. The reason for the adoption of this strict 
standard is clearly stated: the undesirability of a con­
struction of §1443 under which “ every criminal case in 
every court of every State . . . would be removable to a 
federal court upon a petition alleging (1) that the defen­
dant was being prosecuted because of his race and that 
he was completely innocent of the charge brought against 
him, or (2) that he would be unable to obtain a fair trial 
in the state court. On motion to remand, the federal court 
would be required in every case to hold a hearing which 
would amount to at least a preliminary trial of the motiva­
tions of the state officers who arrested and charged the 
defendant, of the quality of the state court or judge before 
whom the charges were filed, and of the defendant’s in­
nocence or guilt.” Id. at 832. This reasoning does not 
lead to the conclusion, and the Court does not hold, that 
removal under §1443 is disallowed in cases where it can 
be “ clearly predicted” without the kind of evidentiary hear­
ing that Peacock feared would swamp and embarrass the 
federal judiciary, that “by reason of the operation of a 
pervasive and explicit state or federal law,” a state criminal 
defendant’s federal civil rights would be destroyed “by the 
very act of bringing the defendant to trial in the state



8

courts.” It is plain, as we have shown above, that this 
“ clear prediction” need not be based on the facial assail- 
ability of a state statute, and nothing in Peacock suggests 
that the specific factual situation of Rachel is the only ex­
ception to that basis.

On this record, “ there is nothing in the facts which jus­
tified an arrest and conviction” (opinion of Mr. .Justice 
Fortas, 382 U. S. at 101). Since that is ample basis for a 
clear prediction that appellant’s civil rights are being ir­
remediably denied by the continuation of his prosecution, 
the exercise of federal removal jurisdiction is plainly 
necessary and proper.

CONCLUSION

For the foregoing reasons, the order of the District Court 
remanding appellant’s case should be reversed.

Respectfully submitted,

P eter A. Hall 
Orzell B illingsley

1630 Fourth Avenue North 
Birmingham, Alabama 35203

Jack Greenberg 
James M. Nabrit, III 
Norman C. A maker 
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

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

Attorneys for Appellant



9

CERTIFICATE OF SERVICE

I hereby certify that on January 13, 1967,1 served copies 
of the foregoing Brief for Appellant upon the following 
attorneys for appellee, by United States air mail, postage 
prepaid:

H on. E arl McBee 
H on. W illiam C. W alker 

Assistant City Attorneys 
City Hall
Birmingham, Alabama

Attorney for Appellant



asms* 38