Bennie Jackson et al., Appellants, v. City of Vicksburg, Mississippi, Appellee, 361 F.2d 473 (5th Cir. 1966)

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US Court of Appeals for the Fifth Circuit - 361 F.2d 473 (5th Cir. 1966) May 16, 1966

Claudia H. Shropshire, L. H. Rosenthal, Jackson, Miss., Benjamin E. Smith, New Orleans, La., for appellants.

Nathaniel Wells Bullard, Vicksburg, Miss., for appellee.

Before JONES and BELL, Circuit Judges, and BREWSTER, District Judge.


Appellants, defendants in Mississippi State criminal prosecutions, removed their cases to the United States District Court under 28 U.S.C.A. § 1443 (1). The cases were remanded without evidentiary hearings. The removal petitions were sufficient under notice type pleadings to allege a basis for removal. Rachel v. State of Georgia, 5 Cir., 1965, 342 F.2d 336, cert. granted, 382 U.S. 808, 86 S. Ct. 39, 15 L. Ed. 2d 58. The alleged denials of equal civil rights in the arresting and charging process set out in these removal petitions are no less than the allegations found adequate in Rachel, and in Peacock v. City of Greenwood, 5 Cir., 1965, 347 F.2d 679; cert. granted, 382 U.S. 971, 86 S. Ct. 532, 15 L. Ed. 2d 464. It is incumbent upon the District Court, issue having been joined by answers denying the allegations, to ascertain the truth of the allegations through evidentiary hearings. Peacock, supra; McGee v. City of Meridian, 5 Cir., 1966, 359 F.2d 846; Smith v. City of Drew, 5 Cir., 1966, 360 F.2d 283.

Appellee's contention under 28 U.S. C.A. § 1446(c) that the removals were untimely is precluded by our opinion in Calhoun v. City of Meridian, 5 Cir., 1966, 355 F.2d 209.

The Rachel and Peacock cases are pending on certiorari in the Supreme Court, and the District Court is directed to stay its hand in these matters until decisions are rendered in those cases. This will afford the District Court such enlightenment as may be forthcoming from those decisions in the further handling of these matters.

Reversed and remanded with directions.