South Carolina v. Ham Brief for Appellant

    UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 72-1040

STATE OF SOUTH CAROLINA,

Appellee,
- vs -

GENE HAM,

Appellant.

Appeal From The United States District Court For The 
® t o f  South Carolina , at Florence

BRIEF FOR APPELLANT

JACK GREENBERG 
JONATHAN SHAPIRO

10 Columbus Circle 
New York, New York 10019

MORDECAI C. JOHNSON 
JOHN A. GAINES

P. 0. Box 743 
Florence, South Carolina

Attorneys for Appellant.



TABLE OF CONTENTS

Page

Issues Presented for Review .......................... 1

Statutes Involved ..................................... 2

Statement of the C a s e ................................  3

ARGUMENT

I. A State Criminal Prosecution For Conduct 
Protected By The Voting Rights Act of 
1965 Is Removable Under 28 U.S.C.
§1443(1)..................................  5

II. Petitioner's Attempt To Ward Off An
Assault By A Person Who Sought To Prevent 
Him From Acting As A Poll Watcher In A 
Federal Congressional Primary Election 
Was Conduct Protected By §11(b) of The 
Voting Rights Act of 1965 And A Criminal 
Prosecution For Such Conduct Is
Removable Under 28 U.S.C. §1443(1) . . . .  10

C O N C L U S I O N ...........................................  20

l



TABLE OF CASES

Page

Achtenberg v. Mississippi, 393 F.2d 468
(5th Cir. 1968) .................................. 12

Allen v. State Board of Elections, 393 U.S.
544 (1969).............................. 9

Cooper v. Alabama, 353 F.2d 729 (5th Cir. 1965) . . . . 18

George v. Rachel, 384 U.S. 780 (1966) ................. 5,6,8,9,11,12

Griffin v. Breckinridge, 403 U.S. 88 (1971) ........... 18

Hill v. Comm, of Pennsylvania, 439 F.2d 1016
(3rd Cir. 1971) .................................. 11

New York v. Horelick, 424 F.2d 697 (2d Cir. 1970) . . . 11

North Caroline v. Hawkins, 365 F.2d 559
(4th Cir. 1966) .................................. 7,8,9,10,13

Paynes v. Lee, 377 F.2d 61 (5th Cir. 1967)............. 18

Peacock v. City of Greenwood, 384 U.S. 808 (1966) . . . 5,6,8,9,17

South Carolina v. Moore, 447 F.2d 1067
(4th Cir. 1971) .................................. 4,5,12,14,17 3

Thompson v. Brown, 434 F.2d 1092 (5th Cir. 1970). . . . 6,7

United States v. McLeod, 385 F.2d 734 (5th Cir. 1967) . 9



(CONT’D)
Page

United States v. Wood, 295 F.2d 772 (5th Cir. 1961)
cert, denied 369 U.S. 850 (1961)..........  9

Walker v. Georgia, 405 F.2d 1191 (5th Cir. 1969) . . . 12,13,15,18,20

Walker v. Georgia, 417 F.2d 1 (5th Cir. 1970) . . . .  12

Whatley v. City of Vidalia, 399 F.2d 521
(5th Cir. 1968) ................................  6,7,9,13

Williams v. Tri-County Comm. Center, F.2d
____  40 L.W. 2361 (5th Cir. 12/377T)........... 11

Willingham v. Morgan, 395 U.S. 402 (1969) ........... 16

Wyche v. Louisiana, 394 F.2d 927 (5th Cir. 1967) . . . 12,18



STATUTES

Page

Civil Rights Act of 1964 ........................ 5,15
§ 2 0 1 ...................................  6
§203 ....................................... 7

Code of Laws of South Carolina 1962
(Cum.Supp. 1971)
§23-400.64 ................................  11
§23-400.51.1 ..............................  11
§23-400.112 ..............................  11

P.L. 89-110; 79 Stat. 437 .....................  7

United States Code
Title 18 §245 ............................ 9, 11

§245 (b) (1) ( A ) ...................  11, 15

Title 28 §1442 ...........................  16
§1443(1).......................... 3,4,5,6,7,10,20
§1443(2).......................... 16,17

Title 42 § 1 9 7 1 ............................ 6,7,8,9
§1973 ............................ 5,9
§ 197 3 i (b) .......................  14
§ 19731 (c) (1) ...................  11
§1985(3).......................... 9

U.S. Code Cong, and Adm. News, 89th Cong.
1st Sess.
Vol. 1 p. 480 ............................  7
Vol 2, pp. 2437 e_t seq....................  7

Voting Rights Act of 1965 .....................  3,4,6,7,11
§11 ( b ) ....................................  7,8,9.10,11

IV



UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 72-1040

STATE OF SOUTH CAROLINA

Appellee,

- v . -

GENE HAM,

Appe1lant,

Appeal From The United States District Court For The 
District of South Carolina, at Florence

BRIEF FOR APPELLANT

Issues Presented For Review

1. Whether a state criminal prosecution for conduct 

protected by the Voting Rights Act of 1965 is removable under 

28 U.S.C. § 1443(1)?

2. Whether petitioner's attempt to ward off an assault 

by a person who sought to prevent him from acting as a poll 

watcher in a federal Congressional primary election was con­

duct protected by § 11(b) of the Voting Rights Act of 1965, 

such that a criminal prosecution for that conduct is removable

to federal court?



STATUTES INVOLVED

1. 28 U.S.C. § 1443(1) provides:

§ 1443 Civil Rights Case

Any of the following civil actions or criminal 
prosecutions, 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 where 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. 42 U.S.C. § 1973i(b) (§ 11(b) of the Voting Rights Act of
1965) provides:

§ 1973i Prohibited Acts -- Intimidation. Threats or 
Coe rcion

(b) No person, whether acting under color of 
law or otherwise, shall intimidate, threaten, or 
coerce, or attempt to intimidate, threaten, or 
coerce any person for voting or attempting to vote, 
or intimidate, threaten, or coerce, or attempt to 
intimidate, threaten, or coerce any person for 
urging or aiding any person to vote or attempt to 
vote . . .

3. 18 U.S.C. § 245(b)(1)(A) provides:

§ 245 Federally Protected Activities

(b) Whoever, whether or not acting under 
color of law, by force or threat of force wil­
fully injures, intimidates, or interferes with, 
or attempts to injure, intimidate or interfere 
with —

(1) Any person because he is or has been, 
or in order to intimidate such person or any 
other person or any class of persons from —

2



(A) voting or qualifying to vote, qualify­
ing or campaigning as a candidate for elective 
office, or qualifying or acting as a poll 
watcher, or any legally authorized election 
official, in any primary, special, or general 
election;

Statement Of The Case

Appellant Gene Ham (hereinafter sometimes referred to 

as petitioner") is a black civil rights worker who has long 

been active in the civil rights movement in Florence County, 

South Carolina. In a petition filed in the court below on 

October 8, 1970, he sought to remove to federal court pursuant 

to 28 U.S.C. § 1443(1) a state criminal prosecution against

him for assault with a deadly weapon, unlawful possession of
• .  i ,  I/a pistol and pointing a firearm (A. 3a-8a). He alleged that

these charges arose entirely out of his attempt to protect 

himself against an assault which occurred while he was exer­

cising rights protected by the Voting Rights Act of 1965. 

According to the removal petition, on June 23, 1970 Ham was 

acting as an official poll watcher at the Claussen precinct 

in Florence County during the Democratic Party primary elec­

tion for the Sixth Congressional District (A. 3a-4a). While 

engaged in his duties and without provocation of any kind,

Ham was attacked by a white man who sought to prevent him from

1/ References are to the Appendix filed herein.

3



exercising his federal right to assist persons to vote and 

to participate in the election process (A.4a). Ham's assailant 

drew a pistol and in the course of a struggle Ham wrested it 

away from him and it accidentally discharged. No one was 

injured (A. 41a-42a).

On motion of the State of South Carolina, the district 

court remanded the case to the Court of General Sessions of 

Florence County on October 12, 1970 (A. 34a-40a). Although 

it accepted as true the allegations of the petition that Ham 

had acted entirely in self-defense and that his presence at 

the precinct as a poll watcher was protected by the Voting 

Rights Act of 1965, the court concluded that the conduct 

charged in the indictment was not protected by any federal 

law providing for equal civil rights and, therefore, the case 

was not removable under 28 U.S.C. § 1443(1) (A. 27a-28a, 38a).

As petitioner's trial in state court was imminent, he 

moved in this Court for a stay of remand pending appeal, which 

was granted on October 13, 1970 (A. 41a-42a). Judge Craven 

entered an order staying the remand until this Court decided 

the case of South Carolina v. Moore, 447 F .2d 1067 (4th Cir.

1971) which was then pending and which involved a similar
2/

issue (A. 42a) .

2 J By order dated December 30, 1971, this Court held that the 
filing of this order satisfied the jurisdictional requirements 
for taking an appeal of Rules 3 and 4 of the Federal Rules of 
Civil Procedure and ordered the appeal docketed upon payment 
of the filing fee and transmission of the record (A. 51a).

4



On September 8, 1971 the Moore case was decided and

on September 13th the stay of remand herein was vacated 

(A. 48a-49a). A further stay pending the disposition of 

this appeal was denied on October 5, 1971 (A. 50a).

Petitioner was brought to trial in the Florence County 

Court of General Sessions on December 9, 1971 and convicted 

of assault with a deadly weapon. He was sentenced to serve 

three years at hard labor, with one year of the sentence 
suspended.

ARGUMENT

I

A State Criminal Prosecution For Conduct Pro­
tected By The Voting Rights Act Of 1965 Is 
Removable Under 28 U.S.C. S 1443(1).

A threshold issue in this case is whether a state 

criminal prosecution for conduct protected by the Voting Rights 

Act of 1965, 42 U.S.C. § 1973 ej: seq. , is removable to federal 

court under 28 U.S.C. § 1443(1). While in Georgia v. Rache1, 

384 U.S. 780 (1966), the Supreme Court held that a prosecution 

for the exercise of; rights granted by the Civil Rights Act of 

1964 was removable, the denial of removal in Peacock v. city 

of Greenwood, 384 U.S. 808 (1966), has left the removability 

of prosecutions for conduct protected by other federal civil 

rights statutes uncertain. We urge this Court, however to

5



follow the Fifth Circuit in Whatley v. City of Vidalia. 399 

F.2d 521 (5th Cir. 1968), and to hold that the Voting Rights 

Act of 1965 grants rights which may be protected by the federal 

removal statute. See also Thompson v. Brown. 434 F.2d 1092 
(5th Cir. 1970).

The Rache1 case holds that a criminal prosecution is 

removable under § 1443(1) if (1) the conduct giving rise to 

a charge in the state court is protected by a federal statute 

that provides for equal civil rights, and (2) there is a federal 

statutory prohibition against prosecution by the state for 

such conduct. In Rachel the petitioners invoked the Civil 

Rights Act of 1964, which is clearly a law providing for 

equal civil rights, and the alleged trespass was conduct pro­
tected by § 201 of the Act, which grants all persons, regard­

less of race, the right to be served in places of public accom­

modation. And the provision of the Act that no person shall 

"punish or attempt to punish" anyone for the exercise of that 

right was held to oar the state from prosecuting a person for 
seeking service.

There is no question that the Voting Rights Act of 1965 

meets the first requirement of Rachel, i.e., that it is a 

statute providing for equal civil rights. In Peacock v. city 

of Greenwood, supra, 384 U.S. at 825, the Supreme Court held 

that this requirement was satisfied by the voting rights pro­

visions of 42 u.s.c. § 1971. it is unnecessary to belabor

6



the point that the Voting Rights Act of 1965, which was 

designed to enforce the Fifteenth Amendment to the Constitu­

tion and to broaden the protection afforded by § 1971,

qualifies as a law "providing for equal civil rights." See 

P.L. 89-110; 79 Stat. 437, U.S. Code Cong, and Adm. News. 89th 

Cong. 1st Sess., Vol. 1, p. 480, Vol. 2 pp. 2437 et seq.; 

Whatley v. City of Vidalia. supra; Thompson v. Brown, supra.

The only question, then, of the removability of a 

prosecution for conduct protected by the Voting Rights Act 

becomes whether the Act contains any provision which, like 

§ 203 of the 1964 Civil Rights Act, prohibits the state from

prosecuting persons for activities covered by the Act. We

think that the prohibitory language of § 11(b) is so close 

to that of § 203 that it cannot be rationally distinguished 

insofar as removal under § 1443(1) is concerned. The parallel 

that Judge Sobeloff drew between 42 U.S.C. § 1971(b) and § 203 

in his concurring opinion in North Carolina v. Hawkins, 365 

F.2d 559 (4th Cir. 1966), is equally true of § 11(b) of the 

1965 Act and § 203:

"Section 203(c) of the public accommodations 
portion of the Civil Rights Act of 1964 —  
the basis for permitting removal in Rachel 
-- provides that 'No person shall *** (c) 
punish or attempt to punish any person for 
exercising or attempting to exercise any 
right or privilege secured by section 2000a 
or 2000-1 [equal access to public accommoda­
tions]' (Emphasis added). Section 1971(b) 
of the voting rights provision employs a more 
general prohibition against any attempted 
intimidation, threats or coercion by persons

7



'acting under color of law or otherwise.'
Literal comparison of the two provisions 
suggests that § 1971(b) is a more, not less, 
sweeping prohibition of official acts of 
harassment against equal civil rights than 
the limited proscription of § 203(c), since 
'attempts to punish' are only one means of 
coercing, threatening, or intimidating"
(365 F. 2d at 562) .

It would appear, therefore, that a state criminal 

prosecution for conduct which is protected by the Voting 

Rights Act is as much an "attempt to intimidate, threaten and 

coerce" for the exercise of voting rights as the trespass 

prosecution in Rachel was an "attempt to punish" for the 

exercise of the right to equal public accommodations. Nor 

can a contrary conclusion be drawn from the decisions of the 

Supreme Court in Peacock v. City of Greenwood, supra, or this 

Court in North Carolina v. Hawkins, supra. Since both of 

these cases were filed prior to the enactment of § 11(b) of 

the 1965 Voting Rights Act, the petitioners were only able 

to invoke the prohibitions of § 1971(b) against intimidation, 

threats and coercion for the purpose of interfering with the

right____ to vote as the basis for removal. The petitioners

did not, however, allege that they were being prosecuted 

because of their attempts to exercise their right to vote. 

Rather, they alleged that they were being prosecuted because 

they were assisting others to register and vote. Thus, the 

provision invoked to support removal in these cases did not 

cover the factual situation alleged in the removal

8



petitions. In addition, the petitioners in Peacock did 

not consider or argue the question of whether the language 

of § 1971(b) precluded criminal prosecutions for the conduct 

involved, as this theory of removal was first announced in 

the Rachel and Peacock cases.

For these reasons, we think that in Whatley v. City of 

Vidalia, supra, the Fifth Circuit rightly concluded that 

§ 11(b) of the 1965 Act satisfies the second requirement for 

removal under Rachel, i.e. it bars criminal prosecutions by 

the state for the conduct covered by the Act. Such a con­

clusion is consistent with that court's persuasive holding 

that criminal prosecutions for the purpose of interfering 

with voter registration violate § 1971(b) and authorize 

injunctive relief, United States v. McLeod, 385 F .2d 734 

(5th Cir. 1967); United States v. Wood, 295 F.2d 772 (5th 

Cir. 1961), cert, denied, 369 U.S. 850 (1961); and it is in 

accordance with the comprehensive scheme for the protection 

of voting rights that has been enacted by Congress and 

guaranteed by the Supreme Court. See 42 U.S.C. §§ 1971, 1973 

et seq., 1985(3); 18 U.S.C. § 245; Allen v. State Board of

3 /

3/ Although in his concurring opinion in Hawkins Judge 
Sobeloff indicated that he thought that the prohibitions of 
§ 1971(b) were broad enough to cover a racially motivated 
prosecution of a person assisting in a Negro voter registra­
tion drive because it constituted an "attempt to intimidate, 
threaten or coerce" Negroes in the exercise of their right 
to vote, he felt bound by Peacock to concur in the denial of 
removal (365 F.2d at 561, 563).

9



Elections, 393 U.S. 544 (1969). In view of the fundamental 

role that the right to vote plays in remedying the effects of 

centuries of racial discrimination it is, as Judge Sobeloff 

has pointed out, "difficult to conceive that Congress intended 

to place voting rights guarantees on a lower plane of protec­

tion than the right to equal public accommodations." North 

Carolina v. Hawkins, supra. 365 F.2d at 562, note 7.

This Court should hold, therefore, that § 11(b) of the 

Voting Rights Act of 1965 prohibits state court criminal pros­

ecutions for conduct which is protected by the Act. Since, as 

we argue below, petitioner Gene Ham is being prosecuted solely 

for conduct protected by the Act, the criminal case is remov­
able pursuant to 28 U.S.C. § 1443(1).

II

Petitioner's Attempt To Ward Off An Assault 
By A Person Who Sought To Prevent Him From 
Acting As A Poll Watcher In A Federal Con­
gressional Primary Election Was Conduct 
Protected By S 11(b) Of The Voting Rights 
Act Of 1965 And A Criminal Prosecution For 
Such Conduct Is Removable Under 28 U.S.C.
I 1443(1) ~  ~

There can be no doubt that petitioner had a federal 

right to act as a poll watcher for the black candidate in a 

federal Congressional primary election. His presence at the 

P°l-l-i-n9 place was, as alleged in his petition, for the purpose

10



of urging or aiding other persons to vote, a right guaranteed 

by § 11(b) of the Voting Rights Act (A. 4a). Petitioner was, 

furthermore, legally authorized to be present at the polling 

place to ensure that votes cast for the black candidate would 

be properly cast and counted. See Code of Laws of South 

Carolina, 1962, §§ 23-400.64, 23-400.51.1, 23-400.112 (Cum. 

Supp. 1971). Indeed, his official function under South 

Carolina law was to aid persons to vote within the meaning 

of § 11(b), which is defined by 42 U.S.C. § 1973 1(c)(1) as 

"casting a ballot, and having such ballot counted properly 

and included in the appropriate totals of votes case with 

respect to candidates for a public or party office." In 

addition, 18 U.S.C. § 245(b)(1)(A), specifically accords 

federal protection to a person who, like petitioner, "is 

qualifying or acting as a poll watcher, or any legally 

authorized election official, in any primary, special, or
4/

general election."

If, as we argue in Point I, a criminal prosecution 

for conduct protected by the Voting Rights Act of 1965 is 

removable, it is clear that petitioner would have the right 

to remove any prosecution, whether it be for trespass,

4/ 18 U.S.C. § 245(b) has been held to be a statute providing 
for equal civil rights within the meaning of § 1443(1) as 
interpreted in Georgia v. Rachel, supra. Hill v. Comm, of 
Pa., 439 F.2d 1016, 1019 (3rd Cir. 1971); see also Williams
v. Tri-County Comm. Center, ___ F.2d ___, 40 L.W. 2361 (5th
Cir"! 12/3/71) ; New York v. Horelick, 424 F.2d 697, 702 (2d 
Cir. 1970).

11



inciting to not or breach of the peace, which was based 

soley upon his peaceful activities as a poll watcher. South 

Carolina v. Moore, supra. 447 F.2d at 1169; Walker v. Georgia. 

417 F .2d 1 (5th Cir. 1970); Achtenberg v. Mississippi. 393 

F .2d 468 (5th Cir. 1968). Petitioner should also, we submit, 

have the right to remove a prosecution charging him with 

violent conduct upon a showing that he had in fact engaged 

only in the peaceful exercise of a federally protected right. 

See Walker v. Georgia, 405 F.2d 1191 (5th Cir. 1969); Wyche 

v. Louisiana, 394 F.2d 927 (5th Cir. 1967). Although in South 

Carolina v. Moore, supra. 447 F.2d at 1071 n.9, this Court 

left open the question of the removability of a prosecution 

where the charge unequivocably alleges violent conduct, we 

think that Rache1 makes it clear that the district court 

must hold a hearing to resolve any conflict between a removal 

petition alleging that the conduct being prosecuted by the 

state was no more than the peaceful exercise of a federal 

right and a criminal charge alleging illegal conduct not
5/

protected by federal law. As the court in Whatley v. city

5 / In Rachel, the Supreme Court noted that “the defendants 
as yet have had no opportunity to establish that they were 
ordered to leave the restaurant facilities solely for racial 
reasons. If the Federal District Court finds that allegation 
true, the defendants' right to removal under § 1443(1) will 
be clear." (384 U.S. at 805) And in his concurring opinion 
Justice Douglas pointed out that "[i]f service was denied for 
other reasons no case for removal has been made out" (384 
U.S. at 807) .

12



of Vidalia, supra, said:

The federal equal accmmodation section 
of the Civil Rights Act did not create 
a right for anyone to engage in a 'tres­
pass' upon the premises of every hotel 
or restaurant in Georgia . . . .  Thus, 
in a removal petition like Rachel, the 
district court would have to test the 
correctness of the removal petition's 
allegations that the denial of accom­
modation was on 'racial grounds.'"
(399 F .2d at 526)

[I]t is not the state charge which controls, rather what 

appellant was actually doing with respect to the exercise 

of his federally protected rights." Walker v. Georgia, 405 

F.2d 1191, 1192 (5th Cir. L969). Thus, regardless of 

whether petitioner was charged with trespass or assault 

as a result of peaceful activities as a poll watcher, he 

would be entitled to a hearing in a federal forum to deter­

mine whether or not the prosecution was "merely a handy name 

given by the State prosecutor for the federal preemptive right

to engage in assisting others to vote." Whatley v. City of
6/  '

Vidalia, supra. 399 F.2d at 526.

The fact that petitioner is charged with the violent 
crime of assault with a deadly weapon, therefore, should 

not be dispositive as to removability. Rather, it is 

necessary to determine whether the particular conduct for 

which he alleges he is being prosecuted is protected by 

federal law. We come then to the critical question in the

6/ See also the concurring opinion of Judge Sobeloff in North 
Carolina v. Hawkins, 365 F.2d 559, 563 (4th Cir. 1966): -----

"The test of removability is the content of 
the petition, not the characterization given 
the conduct in question by the prosecution."

13



present case. When a person who is peacefully exercising a 

right conferred by a federal equal civil rights statute is 

assaulted because of his exercise of that right, do his 

efforts to ward off the attack and to escape injury enjoy 
any measure of federal protection?

In South Carolina v. Moore, 447 F.2d 1067 (4th Cir. 

1971), this Court held that a black man who, while seeking 

to exercise his right to equal public accommodations, killed 

in self-defense a white man who attacked him could not remove 

the state murder prosecution against him. The Court noted 

that Moore's acknowledgment in his petition of "his commission 

of homocide distinguishes this case from every other criminal 

prosecution successfully removed from a state to a federal 

court" (447 F.2d at 1070). It concluded that violent con­

duct, whether justifiable or not under state law, is beyond 

the protection of the Civil Rights Acts and that a prosecution 

is removable only if the defendant is being prosecuted solely 

for peaceful, protected conduct (447 F .2d at 1071).

We submit that in the present case petitioner is not 

chargeable with violence within the meaning of Moore and 

that his acts which were immediately necessary to avoid serious 

physical injury or even death from an assault come within the 

protection of the federal rights he was seeking to exercise. 

Thus, the right to be free from intimidation, threats or 

coercion while assisting people to vote, 42 U.S.C. § 1973i(b),

14



and the right to be free from injury, intimidation or inter­

ference by force or threat of force while acting as a poll 

watcher, 18 U.S.C. § 245(b)(1)(A), imply a derivative right 

to protect oneself from the most direct consequences of 

their violation, i.e. physical injury. If petitioner had a 

federal right to be present in the polling place, so too he 

should have a federal right to attempt to escape injury from 

an unprovoked assault while he is there.

A similiar conclusion was reached by the Fifth Cir­

cuit in Walker v. Georgia, 405 F .2d 1191 (5th Cir. 1969).

In that case the petitioner sought to remove a prosecution 

for assault which he was charged with committing while seek­

ing service at a place of public accommodation covered by 

the 1964 Act. In reversing the district court's refusal 

to permit removal, the Court of Appeals held that the peti­

tioner's right to removal depended upon whether he had been 

the aggressor or whether he had merely acted in self-defense. 

Accordingly, the district court was directed to:

"resolve . . . the facts surrounding
the altercation with respect to as­
sault vel non. Without reciting all 
of the facts, we do observe that there 
appear to be two definite sides to the 
question. The undisputed facts indicate, 
among other things, that a shot was fired 
at appellant and his friends by one of 
the alleged assaultees following their 
attempt to gain service. The other as- 
saultee attempted to strike appellant 
with a blackjack. Appellant's alleged 
criminal conduct seems to have ensued, 
if at all, from attempting to escape

15



these white assaultees who just happened 
to be armed with a pistol and blackjack.
. . . I t  appears that the issue for the 
District Court is whether appellant engaged 
in non-peaceable conduct, i.e., simple 
assault, when or after he was refused ser­
vice . . . The cases will be remanded or 
stand removed, depending on the facts of 
the altercation." (506 F.2d at 1192-1193)

The present case is almost identical. As in Walker, 
Pe^itioner alleges that he was attacked by a white man who 

sought to interfere with the exercise of his federal rights. 

And it is clear that petitioner's "alleged criminal conduct 

seems to have ensued, if at all, from attempting to escape 

[this] white assault[ee] who just happened to be armed with a 
pistol . . . "

The fundamental purpose of the removal statutes would 

be undermined if persons could be prosecuted in state courts 

for conduct as closely related to the exercise of their 

federally secured rights as that out of which the charge 

against petitioner arises. These statutes, enacted in the 

context of the Reconstruction era, were designed to guarantee 

that the exercise and enforcement of newly created civil 

rights would not be defeated by state court prosecutions.

Thus, the federal officer removal statutes, 28 U.S.C. §§ 1442, 

1443(2), were passed because "Congress has decided that 
Federal officers, and indeed the Federal Government itself, 

require the protection of a Federal Forum." Willingham v. 

Morgan, 395 U.S. 402, 407 (1969). The same policy underlies 

the right of removal of individuals who are prosecuted for

16



the exercise of federal rights, particularly where, as in 

the present case, the petitioner was acting to ensure the 

integrity of the federal election process rather than for his 

own personal benefit. Cf. South Carolina v. Moore, supra.

In such a case, the federal interest in granting the individual 

the protection of a federal forum would be as great as the 

broad protection accorded to federal officers under §§ 1442 
and 1443 (2 )

But the exercise of federal rights will be just as effec­

tively chilled by the prospect of state court prosecutions 

for defending against assaults as it would by the prospect of 

defending trespass or breach of the peace prosecutions. While 

we agree with this Court that "(l]aw abiding persons simply do 

not enter . . . establishments with a purpose of committing 

assaults," South Carolina v. Moore, supra. 447 F.2d at 1072, we 

do think it evident that blacks would be deterred from peacefully 

exercising their rights if they were in jeopardy of being prosecuted 

in state court as a result of the violent conduct of others who

7/ Indeed, but for the limiting construction given to § 1443(2) 
by the Supreme Court in Peacock v. City of Greenwood, supra.
384 U.S. at 824, we think that the prosecution of petitioner 
would fall squarely within the provisions of that section 
which permit removal of a prosecution:

(2) For any act under color of authority 
derived from any law providing for equal 
rights. . ."

17



sought to prevent the exercise of their rights. Unhappily, 

the peaceful exercise of civil rights continues, particularly 

in the South, to provoke violent reactions by some whites.

Some e.g., Griffin v. Breckinridge. 403 U.S. 88 (1971); Paynes 

v. Lee, 377 F.2d 61 (5th Cir. 1967). And it is all too often 

that the victims of the assault are the ones who are charged 

with the crime. See Walker v. Georgia. 405 F.2d 1191 (5th 

Cir. 1969); Wyche v. Louisiana. 394 F.2d 927 (5th Cir. 1967) 

Cooper v. Alabama, 353 F.2d 729 (5th Cir. 1965). Indeed, to 

preclude removal in cases of this nature would have the 

anomalous result of making the extent of federal protection 

accorded to those who are seeking to peacefully exercise 

their federal rights depend upon the action of those who 

seek to interfere with those rights. So long as the civil 

rights opponents rely upon prosecutions such as for trespass 

or breach of the peace the effectiveness of their opposition 

can be blunted by removal to federal court. If, instead, 

they resorted to violent self-help they could defeat removal 

merely by claiming that the victim was the aggressor. To 

permit removal, therefore, in cases where the petitioner alleges 

that he acted solely to avoid injury will not encourage 

violence by those seeking to enjoy their federal rights. On 

the contrary, it will discourage its use by those who seek 
to frustrate such enjoyment.

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We do not suggest that removal be available merely 

because there is some relationship between a self-defense 

claim and the exercise of federally secured rights. Thus, 

as in the Moore case, removal might be appropriately denied 

where it appears that the petitioner resorted to violent 

self-help or that violence could have been avoided and other 

avenues utilized to redress the violation of civil rights.

South Carolina v. Moore, supra, 447 F .2d at 1071. Nor do 

we contend that the removability of prosecutions arising 

out of alleged acts of self-defense is coextensive with what 

state law would recognize as self-defense. Rather, we think 

that at the minimum removal should be available upon a showing 

that the acts for which the petitioner is being prosecuted 

in state court were inextricably intertwined with his ex­

ercise of federal rights, and were necessary to prevent the 

immediate infliction upon him of serious physical injury.

It is only in this way that the purpose of the federal civil 

rights removal statute to insulate the exercise of federally 

protected rights from prosecutions in state courts can be 
fully served.

Under such a standard, the prosecution against petitioner 

for assault with a deadly weapon is clearly removable. He was 

not seeking to enforce his right to be present in the polling 

place by force or violence. Nor could he have avoided violence 

by retreating. When faced with an assailant armed with a

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pistol his only recourse to avoid injury was to seek to dis­

arm him. The accidental discharge of the weapon in the course 

of the struggle was, therefore, no more of an assault than 

was the conduct of the petitioners in Walker v. Georgia, 
supra, 405 F.2d at 1192.

CONCLUSION

For the foregoing reasons, the petition for removal 

in this case alleged facts which, if true, made the case 

removable under 28 U.S.C. §1443(1). The judgment of the 

district court remanding the case to the state court with­

out conducting an evidentiary hearing on such allegations 

should be reversed and the case remanded to the district 

court with directions to conduct such a hearing.

Respectfully submitted,

JACK GREENBERG 
JONATHAN SHAPIRO

10 Columbus Circle
New York, New York 10019

MORDECAI JOHNSON 
JOHN A. GAINES 

P. 0. Box 743 
Florence, South Carolina

Attorneys for Appellant

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