Re v. Francis E. Mahaney, Petitioner-appellant, v. State of Louisiana and City of New Orleans, Respondents-appellees, 427 F.2d 850 (5th Cir. 1970)

Rev. Francis E. Mahaney appeals from an order remanding to the State Courts of Louisiana, without an evidentiary hearing, certain criminal prosecutions alleged in his petition for removal to have violated federal law.¹  On March 19, 1970, in the face of imminent State prosecution of such remanded charges, this panel stayed the district court's remand order pending the receipt of the response of the State of Louisiana and City of New Orleans. On the due date thereof, Rev. Mahaney filed his brief on the merits of this appeal seeking reversal of the district court's remand order, together with a remand of this cause of action to the district court for an evidentiary hearing on the question of whether Rev. Mahaney's prosecutions are forbidden by federal law. Subsequent to the filing of this brief the City of New Orleans has responded, taking the position that Rev. Mahaney was arrested solely because he disrupted the orderly processes of a public meeting by disturbing the peace and resisting arrest and that such arrest and his subsequent prosecutions are not in violation of any federal right, but at the same time stating that the City offered no opposition to the holding by the district court of an evidentiary hearing on this question.

We therefore reverse the order remanding this cause to the State Courts of Louisiana with directions to the district court to hold an evidentiary hearing on the allegations of the petition for removal. We do not in even the slightest way intimate any position upon the merits of this cause or the outcome of such hearing.

Reversed and remanded with directions.