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CITY GREENWOOD v. PEACOCK ET AL.

decided*fn*: June 20, 1966.

CITY OF GREENWOOD
v.
PEACOCK ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Fortas

Author: Stewart

[ 384 U.S. Page 810]

 MR. JUSTICE STEWART delivered the opinion of the Court.

These consolidated cases, sequels to Georgia v. Rachel, ante, p. 780, involve prosecutions on various state criminal charges against 29 people who were allegedly engaged in the spring and summer of 1964 in civil rights activity in Leflore County, Mississippi. In the first case, 14 individuals were charged with obstructing the public streets of the City of Greenwood in violation of Mississippi law.*fn1 They filed petitions to remove their cases to the United States District Court for the Northern District of Mississippi under 28 U. S. C. § 1443 (1964 ed.).*fn2 Alleging

[ 384 U.S. Page 811]

     that they were members of a civil rights group engaged in a drive to encourage Negro voter registration in Leflore County, their petitions stated that they were denied or could not enforce in the courts of the State rights under laws providing for the equal civil rights of citizens of the United States, and that they were being prosecuted for acts done under color of authority of the Constitution of the United States and 42 U. S. C. § 1971 et seq. (1964 ed.).*fn3 Additionally, their removal petitions alleged that the statute under which they were charged was unconstitutionally vague on its face, that it was unconstitutionally

[ 384 U.S. Page 812]

     applied to their conduct, and that its application was a part of a policy of racial discrimination fostered by the State of Mississippi and the City of Greenwood. The District Court sustained the motion of the City of Greenwood to remand the cases to the city police court for trial. The Court of Appeals for the Fifth Circuit reversed, holding that "a good claim for removal under § 1443 (1) is stated by allegations that a state statute has been applied prior to trial so as to deprive an accused of his equal civil rights in that the arrest and charge under the statute were effected for reasons of racial discrimination." Peacock v. City of Greenwood, 347 F.2d 679, 684. Accordingly, the cases were remanded to the District Court for a hearing on the truth of the defendants' allegations. At the same time, the Court of Appeals rejected the defendants' contentions under 28 U. S. C. § 1443 (2), holding that removal under that subsection is available only to those who have acted in an official or quasi-official capacity under a federal law and who can therefore be said to have acted under "color of authority" of the law within the meaning of that provision.*fn4

In the second case, 15 people allegedly affiliated with a civil rights group were arrested at different times in July

[ 384 U.S. Page 813]

     and August of 1964 and charged with various offenses against the laws of Mississippi or ordinances of the City of Greenwood.*fn5 These defendants filed essentially identical petitions for removal in the District Court, denying that they had engaged in any conduct prohibited by valid laws and stating that their arrests and prosecutions were for the "sole purpose and effect of harassing Petitioners and of punishing them for and deterring them from the exercise of their constitutionally protected right to protest the conditions of racial discrimination and segregation" in Mississippi. As grounds for removal, the defendants specifically invoked 28 U. S. C. §§ 1443 (1)*fn6 and 1443 (2).*fn7 The District Court held that the cases

[ 384 U.S. Page 814]

     had been improperly removed and remanded them to the police court of the City of Greenwood. In a per curiam opinion finding the issues "identical with" those determined in the Peacock case, the Court of Appeals for the Fifth Circuit reversed and remanded the cases to the District Court for a hearing on the truth of the defendants' allegations under § 1443 (1). Weathers v. City of Greenwood, 347 F.2d 986.

We granted certiorari to consider the important questions raised by the parties concerning the scope of the civil rights removal statute. 382 U.S. 971.*fn8 As in Georgia v. Rachel, ante, p. 780, we deal here not with questions of congressional power, but with issues of statutory construction.

I.

The individual petitioners contend that, quite apart from 28 U. S. C. § 1443 (1), they are entitled to remove their cases to the District Court under 28 U. S. C. § 1443 (2), which authorizes the removal of a civil action or criminal prosecution for "any act under color of authority derived from any law providing for equal rights . . . ." The core of their contention is that the various federal constitutional and statutory provisions invoked in their removal petitions conferred "color of authority" upon them to perform the acts for which they

[ 384 U.S. Page 815]

     are being prosecuted by the State. We reject this argument, because we have concluded that the history of § 1443 (2) demonstrates convincingly that this subsection of the removal statute is available only to federal officers and to persons assisting such officers in the performance of their official duties.*fn9

The progenitor of § 1443 (2) was § 3 of the Civil Rights Act of 1866, 14 Stat. 27. Insofar as it is relevant here, that section granted removal of all criminal prosecutions "commenced in any State court . . . against any officer, civil or military, or other person, for any arrest or imprisonment, trespasses, or wrongs done or committed by virtue or under color of authority derived from this act or the act establishing a Bureau for the relief of Freedmen and Refugees, and all acts amendatory thereof . . . ." (Emphasis added.)

The statutory phrase "officer . . . or other person" characterizing the removal defendants in § 3 of the 1866 Act was carried forward without change through successive revisions of the removal statute until 1948, when the revisers, disavowing any substantive change, eliminated the phrase entirely.*fn10 The definition of the persons entitled

[ 384 U.S. Page 816]

     to removal under the present form of the statute is therefore appropriately to be read in the light of the more expansive language of the statute's ancestor. See Madruga v. Superior Court, 346 U.S. 556, 560, n. 12; Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227-228.

In the context of its original enactment as part of § 3 of the Civil Rights Act of 1866, the statutory language "officer . . . or other person" points squarely to the conclusion that the phrase "or other person" meant persons acting in association with the civil or military officers mentioned in the immediately preceding words of the statute. That interpretation stems from the obvious contrast between the "officer . . . or other person" phrase and the next preceding portion of the statute, the predecessor of the present § 1443 (1), which granted removal to "any . . . person" who was denied or could not enforce in the courts of the State his rights under § 1 of the 1866 Act. The dichotomy between "officer . . . or other person" and "any . . . person" in these correlative removal provisions persisted through successive statutory revisions until 1948, even though, were we to accept the individual petitioners' contentions, the two phrases would in fact have been almost entirely co-extensive.

It is clear that the "other person" in the "officer . . . or other person" formula of § 3 of the Civil Rights Act of 1866 was intended as an obvious reference to certain categories of persons described in the enforcement provisions, §§ 4-7, of the Act. 14 Stat. 28-29. Section 4 of the Act specifically charged both the officers

[ 384 U.S. Page 817]

     and the agents of the Freedmen's Bureau,*fn11 among others, with the duty of enforcing the Civil Rights Act. As such, those officers and agents were required to arrest and institute proceedings against persons charged with violations

[ 384 U.S. Page 818]

     of the Act.*fn12 By the "color of authority" removal provision of § 3 of the Civil Rights Act, "agents" who derived their authority from the Freedmen's Bureau legislation would be entitled as "other persons," if not as "officers," to removal of state prosecutions against them based upon their enforcement activities under both the Freedmen's Bureau legislation and the Civil Rights Act.*fn13 Section 5 of the Civil Rights Act, now 42 U. S. C. § 1989 (1964 ed.), specifically authorized United States commissioners to appoint "one or more suitable persons" to execute warrants and other process issued by the commissioners.*fn14 These "suitable persons " were, in turn, specifically

[ 384 U.S. Page 819]

     authorized "to summon and call to their aid the bystanders or posse comitatus of the proper county."*fn15 Section 6 of the Act provided criminal penalties for any individual who obstructed "any officer, or other person charged with the execution of any warrant or process issued under the provisions of this act, or any person or persons lawfully assisting him or them," or who rescued

[ 384 U.S. Page 820]

     or attempted to rescue prisoners "from the custody of the officer, other person or persons, or those lawfully assisting."*fn16 Finally, § 7 of the Act, now 42 U. S. C. § 1991 (1964 ed.), awarded a fee of five dollars for each individual arrested by the "person or persons authorized to execute the process" -- i. e., the "one or more suitable persons" of § 5. Thus, the enforcement provisions of the 1866 Act were replete with references to "other persons" in contexts obviously relating to positive enforcement activity under the Act.*fn17

[ 384 U.S. Page 821]

     The derivation of the statutory phrase "For any act" in § 1443 (2) confirms the interpretation that removal under this subsection is limited to federal officers and those acting under them. The phrase "For any act" was substituted in 1948 for the phrase "for any arrest or imprisonment or other trespasses or wrongs." Like the "officer . . . or other person" provision, the language specifying the acts on which removal could be grounded had, with minor changes, persisted until 1948 in the civil rights removal statute since its original introduction in the 1866 Act. The language of the original Civil Rights Act -- "arrest or imprisonment, trespasses, or wrongs" -- is pre-eminently the language of enforcement. The

[ 384 U.S. Page 822]

     words themselves denote the very sorts of activity for which federal officers, seeking to enforce the broad guarantees of the 1866 Act, were likely to be prosecuted in the state courts. As the Court of Appeals for the Second Circuit has put it, "'Arrest or imprisonment, trespasses, or wrongs,' were precisely the probable charges against enforcement officers and those assisting them; and a statute speaking of such acts 'done or committed by virtue of or under color of authority derived from' specified laws reads far more readily on persons engaged in some sort of enforcement than on those whose rights were being enforced . . . ." New York v. Galamison, 342 F.2d 255, 262.

The language of the "color of authority" removal provision of § 3 of the Civil Rights Act of 1866 was taken directly from the Habeas Corpus Suspension Act of 1863, 12 Stat. 755, which authorized the President to suspend the writ of habeas corpus and precluded civil and criminal liability of any person making a search, seizure, arrest, or imprisonment under any order of the President during the rebellion.*fn18 Section 5 of the 1863 Act provided for the removal of all suits or prosecutions "against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any Act of Congress." 12 Stat. 756. See The Mayor v. Cooper, 6 Wall. 247; Phillips v. Gaines, 131 U. S. App. clxix. Since the 1863 Act granted no rights to private individuals, its removal provision was concerned solely with the protection of federal officers and persons acting

[ 384 U.S. Page 823]

     under them in the performance of their official duties.*fn19 Thus, at the same time that Congress expanded the availability of removal by enacting the "denied or cannot enforce" clause in § 3 of the Civil Rights Act of 1866, it repeated almost verbatim in the "color of authority" clause the language of the 1863 Act*fn20 -- language that was clearly limited to enforcement activity by federal officers and those acting under them.*fn21

[ 384 U.S. Page 824]

     For these reasons, we hold that the second subsection of § 1443 confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights.*fn22 Accordingly, the individual petitioners in the case before us had no right of removal to the federal court under 28 U. S. C. § 1443 (2).

II.

We come, then, to the issues which this case raises as to the scope of 28 U. S. C. § 1443 (1). In Georgia v. Rachel, decided today, we have held that removal of a state court trespass prosecution can be had under § 1443 (1) upon a petition alleging that the prosecution stems exclusively from the petitioners' peaceful exercise of their right to equal accommodation in establishments covered by the Civil Rights Act of 1964, § 201, 78 Stat. 243, 42 U. S. C. § 2000a (1964 ed.). Since that Act

[ 384 U.S. Page 825]

     itself, as construed by this Court in Hamm v. City of Rock Hill, 379 U.S. 306, 310, specifically and uniquely guarantees that the conduct alleged in the removal petition in Rachel may "not be the subject of trespass prosecutions," the defendants inevitably are "denied or cannot enforce in the courts of [the] State a right under any law providing for . . . equal civil rights," by merely being brought before a state court to defend such a prosecution. The present case, however, is far different.

In the first place, the federal rights invoked by the individual petitioners include some that clearly cannot qualify under the statutory definition as rights under laws providing for "equal civil rights." The First Amendment rights of free expression, for example, so heavily relied upon in the removal petitions, are not rights arising under a law providing for "equal civil rights" within the meaning of § 1443 (1). The First Amendment is a great charter of American freedom, and the precious rights of personal liberty it protects are undoubtedly comprehended in the concept of "civil rights." Cf. Hague v. C. I. O., 307 U.S. 496, 531-532 (separate opinion of Stone, J.). But the reference in § 1443 (1) is to " equal civil rights." That phrase, as our review in Rachel of its legislative history makes clear, does not include the broad constitutional guarantees of the First Amendment.*fn23 A precise definition of the limitations of the phrase "any law providing for . . . equal civil rights" in § 1443 (1) is not a matter we need pursue to a conclusion, however, because we may proceed here on the premise that at least the two federal statutes specifically referred to in the removal petitions, 42 U. S. C. § 1971 and 42 U. S. C. § 1981, do qualify under the statutory definition.*fn24

[ 384 U.S. Page 826]

     The fundamental claim in this case, then, is that a case for removal is made under § 1443 (1) upon a petition alleging: (1) that the defendants were arrested by state officers and charged with various offenses under state law because they were Negroes or because they were engaged in helping Negroes assert their rights under federal equal civil rights laws, and that they are completely innocent of the charges against them, or (2) that the defendants will be unable to obtain a fair trial in the state court. The basic difference between this case and Rachel is thus immediately apparent. In Rachel the defendants relied on the specific provisions of a preemptive federal civil rights law -- §§ 201 (a) and 203 (c) of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000a (a) and 2000a-2 (c) (1964 ed.), as construed in Hamm v. City of Rock Hill, supra -- that, under the conditions alleged, gave them: (1) the federal statutory right to remain on the property of a restaurant proprietor after being ordered to leave, despite a state law making it a criminal offense not to leave, and (2) the further federal statutory right that no State should even attempt to prosecute them for their conduct. The Civil Rights Act of 1964 as construed in Hamm thus specifically and uniquely conferred upon the defendants an absolute right to "violate" the explicit terms of the state criminal trespass law with impunity under the conditions alleged in the Rachel removal petition, and any attempt by the State to make them answer in a court for this conceded "violation" would directly deny their federal right "in the courts of [the] State." The present case differs from Rachel in two significant respects. 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

[ 384 U.S. Page 827]

     policeman. Second, no federal law confers immunity from state ...


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