Presley v. City of Monticello Brief of Appellant

    Httttpit Btntta (Emtrt of Appeals
F or the  F ifth  Circuit 

No. 24871

In th e

G lyn n e ll  P resley,

-v.-
Appellant,

City  of M onticello,
Appellee.

appeal from th e  united  states district court for

THE NORTHERN DISTRICT OF FLORIDA

BRIEF FOR APPELLANT

Jack  Greenberg 
M elvyn  Z arr 
R euben  V. A nderson 

10 Columbus Circle 
New York, New York 10019

H orace E. H ill

248 N. Campbell Street 
Daytona Beach, Florida

Attorneys for Appellant



I N D E X

PAGE

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

Specifications of Error ...................................................  5

A rgument

Appellant’s Case Is Removable Pursuant to 28 
U. S. C. §1443(1) and Georgia v. Rachel, 384 U. S.
780 (1966)..................................................................... 6

Conclusion .......................................................................................... 9

T able of Cases

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

Georgia v. Rachel, 384 U. S. 780 (1966) ...................... 5, 6, 8

Hamm v. City of Rock Hill, 379 U. S. 306 ......................  7

Wyche v. State of Louisiana, This Court, No. 24165 .... 8

F ederal Statutes

28 U. S. C. §1443(1) ...........................................................  5,6

42 U. S. C. §2000a.............................................................  6, 7

42 U. S. C. §2000a-2(c) .....................................................  6



In th e

States Qlourt nf Appeals
F or th e  F ifth  Circuit

No. 24871

Glyn n e ll  P resley,

Appellant,
—v.—

City  of M onticello,

Appellee.

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

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 Florida, re­
manding to the Municipal Court of the City of Monticello, 
Florida a criminal prosecution punishing appellant’s at­
tempt to secure full and equal enjoyment of the services, 
facilities and privileges of a gasoline station in Monticello, 
Florida.

Appellant, Glynnell Presley, is a Negro citizen of the 
United States and of the State of Florida. He is employed 
as a football and basketball coach at Richardson High 
School in Lake City, Florida (R. 89). On September 24,



2

1966, while driving by car through the City of Monticello, 
Florida, appellant stopped at Ed Bailey’s Gulf Service 
Station to buy gas and to use the restroom facilities of 
the station (R. 88).

While his automobile was being serviced, appellant asked 
to use the restroom, and was directed to an unkempt facil­
ity. Realizing that this restroom was reserved for Negroes 
(R. 88, 107 )* appellant requested the attendant’s permis-

1 Although there was some testimony denying that the restrooms 
were segregated, the record viewed as a whole leaves little room for 
doubt.

The appellant testified concerning segregated facilities as follows 
(R. 93-94):

Q. Are the facilities in that service station segregated? A . 
Yes.

Q. In what manner, how can you tell? A . W ell, inasmuch as 
this fellow before me, I have forgotten the model, but he car­
ried 46-988 tag, was there in the station as I pulled in. He was 
a white fellow and had just left the restroom, and the same 
restroom I was denied permission to use was the restroom that 
he had just left. I assumed I could use it but I was unable to 
use it.

Q. He wouldn’t let you ? A . No, he said, “you can’t use it.” 
That means that he wouldn’t let me use it.

Q. Did he say why? A . No, he just said, you are not al­
lowed to use the restroom. And it is common knowledge in the 
City of Monticello that this thing goes on. As a matter of 
fact,—

Mr. B ird : I object Your Honor.
The Court: I will have to sustain the objection, counsel.

This is beyond the purview of this hearing.
Mr. Miles, a witness for the appellant, testified as follows (R. 

107) :
Q. Did Mr. Presley want to use the bathroom facilities they 

had there ? A . That’s right. They had one in the back which 
was kept pretty dirty and things.

Q. Isn’t it a fact that they have segregated bathroom facili­
ties there? A . Well, there is one, and the other one had 
“Manager” or “Private” on it. And the mens had the same 
thing on it too.

(footnote continued on next page)



3

sion to use the restrooms used by white patrons, which 
were marked “ Manager” and “ Private” (R. 88, 93, 107). 
The attendant denied appellant the use of the restroom 
reserved for white males. Thereupon appellant told the 
attendant that the gasoline would have to be removed from 
his automobile if he could not use the restroom facilities 
without racial discrimination (R. 88, 92). When the at­
tendant informed appellant that he could neither let him 
use the white restroom nor remove the gasoline, appellant 
asked to see the owner (R. 89). The attendant then went 
into the station and made a telephone call to the owner, 
Mr. Ed Bailey (R. 89). Mr. Bailey arrived in about five

Q. And Negroes don’t go in the “Manager” or “Private” 
one ? A . They go in the one on the back.

Q. But white people go in the “Manager’s” or the “Private” 
one? A . That’s right.

Officer Thurmon testified as follows on cross-examination (R. 80- 
8 1 ) :

Q. Is it not a fact, officer, that the bathroom facilities in that 
station are segregated, the bathroom facilities for white and 
colored ?

*  * *  # # #

A. W ell, I don’t know. I know they have different washrooms 
there but how they manage it I don’t know.

Q. One marked for white and one marked for colored? A . 
W ell, I don’t know if they are marked or not.

Q. W ell, one is used by colored and one is used by white, 
isn’t it? A . I don’t know. I never looked. That is their busi­
ness.

Q. W ell, that is the practice and custom and use of it, you 
know that to be a fact, don’t you ?

# # * * *
A . W ell, I don’t know if they worked like that all the time I 
have seen some go in different washrooms but whether it works 
like that all the time I don’t know.

Officer Malloy testified under cross-examination as follows (R. 
7 0 ) :

Q. A t that service station don’t they have segregated facili­
ties, bath facilities ? A . No.



4

minutes and went directly to the appellant and told him 
to pay for the gas (R. 90, 105). Appellant told Mr. Bailey 
in a normal tone of voice that if he could not use the rest­
room facilities at the station he wanted the gas removed 
from his automobile (R. 90). At this point Mr. Bailey 
grabbed the appellant by his collar and pushed him against 
his car (R. 90, 106). The appellant held Mr. Bailey until 
a man from across the street came and separated them 
(R. 90, 105, 106). Appellant acted in a restrained and rea­
sonable manner at all times (R. 108, 109).

Two city policemen of the City of Monticello and a 
Deputy Sheriff of Jefferson County, Florida were parked 
about 150 yards away from the service station when this 
incident occurred (R. 54, 78). Upon being informed of the 
trouble at the station, the two city policemen hurried to 
the scene and immediately arrested the appellant on a 
charge of disorderly conduct. Although the appellant did 
not start the altercation and none of the officers saw what 
happened, he was immediately arrested and taken to the 
police station, locked up and charged with disorderly con­
duct in violation of Section 1314, Code of Ordinance, City 
of Monticello (R. 6-7). Appellant was released on a bond 
of $50.00 and his trial was set for October 3, 1966 in the 
City Court of Monticello, Florida.

On September 30, 1966 appellant filed in the United 
States District Court in the Northern District of Florida 
his verified petition for removal (R. 1, 5). The removal 
petition alleged that his arrest and prosecution punished 
him for the exercise of rights secured him by the Civil 
Rights Act of 1964 to use without racial discrimination the 
restroom facilities of the gas station.



5

On October 24, 1966 appellee’s motion to remand to the 
Municipal Court of the City of Monticello, Florida was 
filed (R. 6, 15). The motion challenged the sufficiency of 
the allegations of the removal petition to establish grounds 
for removal (R. 10).

On February 21, 1967 United States District Judge 
G. Harrold Carswell held an evidentiary hearing (R. 42, 
43). The court limited the hearing to “ testimony with 
respect to the reasonableness of the arrest” of appellant 
(R. 95, 115).

On February 23, 1967 Judge Carswell entered an order 
remanding the case to the Municipal Court of the City of 
Monticello, Florida on the ground “ that there was prob­
able cause for the arrest of Presley at the time and place 
on the charge made against him” (R. 22).

Judge Carswell’s remand order was entered February 
23, 1967 (R. 21); timely application for extension of time 
to file a notice of appeal was made March 6th (by tele­
gram) and March 7th (by telephone). An extension was 
granted to March 31, 1967 (R. 25) and appellant’s notice 
of appeal was filed March 27, 1967 (R. 27).

Specifications of Error

(1) The Court below erred in remanding appellant’s 
prosecution to the Municipal Court of the City of Monti­
cello.

(2) The Court below erred in failing to apply to this 
case the standard for removal announced in Georgia v. 
Rachel, 384 U. S. 780 (1966), and in remanding the case 
without making the factual findings recpiired by Rachel.



6

A R G U M E N T

Appellant’s Case Is Removable Pursuant to 28 U. S. C. 
§ 1 4 4 3 (1 )  and Georgin v. Rachel, 384 U. S. 780 (1 9 6 6 ).

Appellant’s case is one that falls within that class of 
cases which the United States Supreme Court in Georgia 
v. Rachel, 384 U. S. 780 (1966), held properly removable 
to federal court pursuant to 28 U. S. C. §1443(1). Appel­
lant’s prosecution punishes him for attempting to secure 
full and equal enjoyment, without racial discrimination, 
of the services, facilities and privileges of Ed Bailey’s 
Gulf Service Station, a place of public acconunodation as 
defined by Section 201 of the Civil Rights Act of 1964, 
42 U. S. C. §2000a. Georgia v. Rachel, supra, established 
that a person prosecuted for attempting to exercise rights 
or privileges secured by Section 201 of the Civil Rights 
Act of 1964, 42 U. S. C. §2000a, was entitled to remove his 
prosecution to federal court pursuant to Section 203(c), 
42 U. S. C. §2000a-2(c)2 and 28 U. S. C. §1443(1).3 The 
Court in Rachel, made clear that “ [t]he burden of having 
to defend prosecutions is itself the denial of a right ex­
plicitly conferred by the Civil Rights Act of 1964 as con­

2 §2000a-2(c) provides, in relevant part: “No person shall . . . 
punish or attempt to punish any person for exercising or attempt­
ing to exercise any right or privilege secured by Section 2000a or 
2000a-l of this title.”

3 Section 1443(1) provides: “Any of the following civil actions 
or criminal prosecutions, commenced in a State court may he re­
moved by the defendant to the district court of the United States 
for the district and division embracing the place wherein it is pend­
ing : (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.”



7

strued in Hamm v. City of Rock Hill, 379 U. S. 306” (384 
U. S. at 805).

From the facts adduced at the hearing, there can be no 
doubt that the conduct for which appellant is prosecuted 
is protected by 42 U . S. C . §2000a(b)(2) and §2000a(c) (2).4 
Appellant testified that his purpose for stopping at the 
station was to buy gas and use the restroom facilities (R. 
88). When appellant was denied the nondiscriminatory 
use of the restroom facilities, he asked that the gas be 
removed from his automobile (R. 88). This request was, 
under the circumstances, a reasonable and orderly alterna­
tive to supporting racial discrimination; he simply refused 
to patronize an establishment which subjected him to seg­
regated restroom facilities (R. 90, 105, 106). Appellant’s 
protest was neither loud nor obnoxious (R. 92, 10S). The 
altercation which resulted—not started by appellant (R. 
90, 106)—was simply whether he could refuse to complete 
a sale of gas premised upon his assumption that he would 
not be subjected to racial discrimination.

The fact that appellant is charged with disorderly con­
duct and not trespass does not defeat his right to removal. 
The availability of removal does not depend upon the 
State’s choice of charges; otherwise the state could defeat

4 §2000a(b) (2) provides that the following establishments are 
covered by the A ct: “any restaurant, cafeteria, lunchroom, lunch 
counter, soda fountain, or other facility principally engaged in sell­
ing food for consumption on the premises, including, but not limited 
to, any such facility located on the premises of any retail establish­
ment ; or any gasoline station.”

§2000a(c) (2) provides that the operation of an establishment af­
fects commerce within the meaning of this title if “ it serves or 
otfers to serve interstate travelers or a substantial portion of the 
food which it serves, or gasoline or other products which it sells, has 
moved in commerce.”

It is beyond dispute that the gasoline in question moved in com­
merce.



8

removal merely by charging the defendant with a crime 
other than trespass.5

The Court below made no findings of fact as to the ex­
istence of the segregated restroom facilities at the service 
station, nor did it decide whether appellant’s arrest and 
prosecution punished him for his attempted use of the 
facilities -without racial discrimination. In failing to do so, 
the Court below clearly failed to follow Rachel.6 Reversal 
would be justified on this ground alone. However, since 
the record makes clear that appellant’s prosecution pun­
ishes him for attempting to use the restroom facilities 
without racial discrimination, the district court should be 
directed to dismiss the charge against appellant.

5 This was made clear in W yche v. State of Louisiana, this Court, 
No. 24165, decided October 26, 1967 in which the Court held: “ It 
is what the movant was actually doing with respect to the exercise 
of his federally protected rights, as determined in a hearing for 
remand, not the appellation which is attributed to his attempted 
exercise of the rights by a state prosecutor that controls.”

6 The Court below merely stated that “there was probable cause 
for the arrest” (R. 22) and based its remand order on City of 
Greenwood v. Peacock, 384 U. S. 808 (1966). Peacock is clearly 
inapposite. In Peacock the United States Supreme Court dis­
allowed federal civil rights removal jurisdiction because the defen­
dants in that action had not alleged that their conduct was pro­
tected by Title II  of the Civil Rights Act of 1964.



9

CONCLUSION

For the foregoing reasons the order of the district 
court remanding appellant’s case should he reversed, 
with directions to the district court to dismiss appel­
lant’s prosecution.

Respectfully submitted,

J ack Greenberg

M elvyn  Z arr

R euben  V . A nderson 
10 Columbus Circle 
New York, New York 10019

H orace E. H ill

248 N. Campbell Street 
Daytona Beach, Florida

Attorneys for Appellant

CERTIFICATE OF SERVICE

This is to certify that on th e.......day of November 1967,
I served a copy of the foregoing Brief for Appellant upon 
T. Buckingham Bird, Esq., P. 0. Box 279, Monticello, 
Florida, attorney for appellees, by United States air mail, 
postage prepaid.

Attorney for Appellant



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