Albert Johnson et al., Petitioners-appellants, v. State of Mississippi et al., Respondents-appellees, 488 F.2d 284 (5th Cir. 1974)

This is an appeal from the district court's order remanding state criminal prosecutions which appellants had removed to federal court pursuant to 28 U.S.C.A. Sec. 1443(1) and 18 U.S.C.A. Sec. 245(b). Because Sec. 245 is not a law providing for the equal civil rights of citizens within the meaning of the removal statute, we affirm.

Appellants are black citizens of Vicksburg, Mississippi who organized a boycott of local businesses for the purpose of gaining equal employment opportunities in the privately owned stores and in city government and its agencies, and to publicize other civil rights grievances. Picketing and leafleting began in late March of 1972 and continued until early May of the same year when the forty-nine appellants were arrested and charged with criminal restraint of trade and criminal conspiracy in restraint of trade. In an attempt to utilize the removal statute, 28 U.S.C.A. Sec. 1443(1),¹  appellants assert that the Civil Rights Act of 1968, 18 U.S.C.A. Sec. 245,²  is a pre-emptive statute which granted the right to be free from harassment, such as subjection to spurious criminal charges, for having engaged in constitutionally protected activity. Therefore, they assert that they are entitled to have their prosecutions removed from the state court.³ 

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* * *At the outset, we note that there is no question of appellants' right to engage in peaceful picketing. Machesky v. Bizzell, 5 Cir. 1969, 414 F.2d 283; Smith v. Grady, 5 Cir. 1969, 411 F.2d 181; Kelly v. Page, 5 Cir. 1964, 335 F.2d 114. Although the state contends that the arrests were predicated not on peaceful protest, but on acts of intimidation and coercion, the question in this appeal is not whether appellants had a constitutional right to engage in the activity for which they are now being prosecuted, but whether they are entitled to invoke the extraordinary protection of the removal statute. The key to removal under Sec. 1443(1) is whether there exists a law "providing for . . . the equal civil rights of citizens." Unlike all previous cases which have interpreted the phrase and which have focused on whether a particular statute meets the "equal civil rights" test, the essential inquiry here is whether Sec. 245, which clearly deals with equal civil rights, meets the requirement that the law be one providing such rights.

Our consideration of whether Sec. 245 is within the contemplation of Sec. 1443(1) begins with Georgia v. Rachel, 1966, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925, in which the Supreme Court gave careful consideration to the legislative history of the removal statute. The Court's conclusion that Sec. 1443(1) encompasses "any law providing for specific civil rights stated in terms of racial equality" must be read in conjunction with the Court's reference to the Civil Rights Act of 1866 as the "model" of a law within the meaning of Sec. 1443(1). The 1866 Act, the substantive provisions of which are now codified as 42 U.S.C.A. Sec. 1981 and Sec. 1982,⁴  bestowed certain basic rights regardless of race. The Rachel Court concluded that the Civil Rights Act of 1964,⁵  which granted the right to racially nondiscriminatory service in places of public accommodation, was also within the compass of the removal statute. In explicating the rationale for its determination that the 1964 Act, like the model of 1866, was within Sec. 1443(1), the Court said:

That Act [the Civil Rights Act of 1964] is clearly a law conferring a specific right of racial equality, for . . . it guarantees to all the "full and equal enjoyment" of the facilities of any place of public accommodation without discrimination on the ground of race.

Id. at 792-793, 86 S. Ct. at 1790 (emphasis supplied)

Unlike the defendants in Rachel, the defendants in City of Greenwood v. Peacock, 1966, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944, were unsuccessful in their effort to remove their state prosecutions. The Court in Peacock gave two reasons for reaching a result opposite that of Rachel:

First, no federal law confers an absolute right on private citizens-on civil rights advocates, on Negroes, or on anybody else-to obstruct a public street, to contribute to the delinquency of a minor, to drive an automobile without a license, or to bite a policeman. Second, no federal law confers immunity from state prosecution on such charges.

Id. at 826-827, 86 S. Ct. at 1812.

Focusing on the first point, that is, the absence of a federal law which granted a right to engage in acts which would otherwise be in violation of state law, this Court in Whatley v. City of Vidalia, 5 Cir. 1968, 399 F.2d 521, concluded that the Voting Rights Act of 1965 granted the specific civil right found lacking in Peacock. Section 11(b) of the 1965 Act, now 42 U.S.C.A. Sec. 1973i(b) specifically forbade any "attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote." Although phrased in prohibitory language, the law created a new legal right, and was, therefore, held to be one which provides for equal civil rights.

Appellants contend that the proscriptions of Sec. 245 must lead to the same legal conclusion as that reached in Whatley. In other words, since Sec. 245, like Sec. 1973i(b), forbids certain forms of harassment such as the bringing of spurious criminal charges, the appellants in the case sub judice have a right of removal equivalent to that accorded the appellants in Whatley. This argument, however, misses an essential distinction between the two statutes. Unlike Sec. 1973i(b), Sec. 245 is exclusively a criminal statute. While a variety of acts which interfere with the exercise of civil rights are made criminal by Sec. 245, that statute confers no rights whatsoever. When compared to the "model" of 1866 cited by the Supreme Court in Rachel, and to the laws since held to be within Sec. 1443(1), Sec. 245 cannot be characterized as a law which provides for the equal civil rights of citizens.

Because of our determination that appellants cannot rely on Sec. 245 as a basis for seeking removal, the order of the district court remanding these cases to the state court must be

Affirmed.