48 REMOVAL Removal is a procedure by which a State court criminal defendant may take his case into a Federal court, where it may continue as if originally brought there." All proceedings in the State court are stayed and the prisoner is transferred from State to Federal custody. In Federal court he has the advantages of liberal rules of criminal procedure, a jury drawn without racial discrimination and from a wider area of the State, and a court potentially less prejudiced against him and more responsive to constitutional rights. Consequently, the procedure can be of great importance to persons engaged in civil rights activities who face prosecutions in State courts. 49 Numerous examples have been given where local authorities have abused State criminal process for the purpose of punishing civil rights workers and Negroes by prosecuting them under statutes unconstitutional on their face or discriminatory in their application. Defendants in such cases carry a heavy burden of expensive and extended litigation to vindicate their rights.50 One notorious example is that of Reverend Fred L. Shuttlesworth, convicted of disturbing the peace for sitting in the white section of a Birmingham, Alabama, city bus. He made 19 appearances in court over a five-year span, including two in the United States Supreme Court, before he was freed on a writ of habeas corpus. 51 48 28 U.S.C. § 1446(e) (1964). The stay procedure is a statutory exception to 28 U.S.C. § 2283. See note 26, supra. To remove a case from State court a defendant must file a petition with the United States District Court any time before trial. 28 U.S.C. § 1446(c) (1964). This petition must state facts which entitle the defendant to removal. Copies of the petition are filed with the State court and a notice of removal is served upon the State prosecutor; whereupon, the State court loses jurisdiction of the case and any further proceedings in State court are null. 28 U.S.C. § 1446(e) (1964). The district court then determines the merits of the removal petition. If the petition fails to state facts which entitle the defendant to removal, the district judge denies the petition by remanding the case to State court. 28 U.S.C. § 1447 (1964). 49 See Chapter 2 supra (discriminatory and harassing prosecutions) and Chapter 4 supra (practices of authorities in using prosecutions to suppress demonstration movements). See Lusky, Racial Discrimination and the Federal Law: A Problem in Nullification, 63 Colum. L. Rev. 1163 (1963). 50 51 The Shuttlesworth litigation is discussed in detail at pp. 137-38, infra. The Jackson Freedom Rider cases involved a similar history of delay in the State courts.52 It was to protect against such discriminatory prosecutions that Congress in 1866 enacted a civil rights removal statute as part of a broad grant of jurisdiction to Federal courts in all criminal and civil cases "affecting persons who are denied or cannot enforce in the courts . . . of the states any of the rights secured to them by [the thirteenth amendment and the Civil Rights Act of 1866].... 53 The removal statute as amended and limited now reads: Any of the following civil actions or criminal prosecu- (1) Against any person who is denied or cannot en- 52 Thomas v. Mississippi, 380 U.S. 524 (1965) (per curiam); Lusky, op. cit., supra note 50. 53 Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27. The first case to reach the Supreme Court under this statute did not involve a suit first brought in State court. Rather, in Blyew v. United States, 80 U.S. (13 Wall.) 581 (1872), the United States attempted to use the statute as the jurisdictional basis for prosecuting two white men in Federal court for the murder of an aged Negro woman in Kentucky. There had been no State prosecution because the law of Kentucky prohibited Negroes from testifying against whites. The case was brought on the theory that the Act authorized a Federal prosecution for a State offense whenever a State by discriminatory laws rendered its tribunals ineffective to protect Negroes' rights. The defendants were convicted, but on appeal the Supreme Court reversed and held that there was no Federal jurisdiction since neither the dead woman nor the disqualified prospective witnesses were persons "affected" within the terms of the statute. This significant decision, which eliminated the possibility of direct Federal prosecutions when State law prevented prosecutions of whites for crimes against Negroes, was not modified by Congress when the 1866 civil rights legislation was codified as section 641 of the Revised Statutes of 1875. But the power of Congress to confer removal jurisdiction on Federal courts has never been doubted by the Supreme Court. See The Mayor v. Cooper, 73 U.S. (6 Wall.) 247 (1867). The constitutionality of the civil rights removal statute was upheld in 1880 in Strauder v. West Virginia, 100 U.S. 303 (1880) and in Virginia v. Rives, 100 U.S. 313 (1880). United States, or of all persons within the jurisdiction (2) For any act under color of authority derived from 54 Prior to 1964, the statute was rendered practically useless by restrictive interpretations by the Supreme Court. With respect to subsection (1), which grants removal to persons who cannot enforce equal rights in State courts, the Supreme Court early held that this subsection would not permit removal unless the defendant established that a State constitutional or statutory provision, on its face, deprived him of equal rights. These and other early restrictive interpretations became frozen into the law because a statutory rule of procedure prevented appeal from the remand of a removal case. 55 As a result, higher Federal courts had no opportunity to review these early cases.56 But in 1964, Congress, sensitive to repeated denials of Federal rights in State courts, amended the procedural statute to allow appeals of remand orders in civil rights removal cases.57 Since enactment of this amendment, judicial interpretations of the removal statute have extended its reach. Thus, in Rachel v. Georgia 58 the Fifth Circuit permitted removal on a finding that State prosecution under the Georgia anti-trespass statute denied petitioners equal rights secured to them by the public accommodations title of the Civil Rights Act of 1964. In Peacock v. City of Greenwood, the court extended this principle and held that a State prosecution based on a discriminatory application of an otherwise valid criminal statute could be removed on the ground 54 Virginia v. Rives, supra; Kentucky v. Powers, 201 U.S. 1 (1906). 55 Ch. 646, 62 Stat. 939 (1948), amended by ch. 139, § 84, 63 Stat. 102 (1949) (now 28 U.S.C. § 1447(d) (1964).) 57 Civil Rights Act of 1964, § 901, 78 Stat. 266, 28 U.S.C. § 1447(d)(1964). 58 50 342 F. 2d 336 (5th Cir. 1965), cert. granted, 34 U.S.L. Week 3014 (U.S. Oct. 5, 1965). 347 F. 2d 679 (5th Cir. 1965). that it denied petitioners' constitutional right to equal protection of the laws.60 In Cox v. Louisiana, the Court of Appeals held that removal could properly be granted when allegations in the petition show a "planned prosecutional abuse of a [state criminal] statute." The court stated that in the case before it, as in Rachel and Peacock: The defendants, as a result of their actions in advocating 62 ❞ 61 More recently, in McMeans v. City of Fort Deposit,63 a district court relied on the Cox principle to sustain the removal of prosecutions of demonstrators arrested for violating a local picketing ordinance in Lowndes County, Alabama. The court found that the arrests and prosecutions stemmed directly from the petitioners' efforts to protest discriminatory practices by several stores in the community. The court stated: The manner in which the petitioners were protesting the ... 60 Cf. Johnson v. City of Montgomery, Crim. No. 11,740-N, M.D. Ala., Aug. 3, 1965; Forman v. City of Montgomery, Crim. No. 11,727-N, M.D. Ala., Aug. 3, 1965, which held that demonstrators arrested for lying down in the streets or sitting on sidewalks after fair warning may not remove their cases under subsection (1) because the arrests under the circumstances fail to show an unfair application of the statute. It appears that future problems of removal may concern many of the same issues raised in Chapter 4 on the limits of lawful protest activities. Two of the petitioners were also arrested for reckless driving and leaving the scene of an accident. As to them, the court held that the charges were subterfuges and that the arrests stemmed directly from their protest activities. Consequently, the court held that the statutes, as applied, denied them equal protection of the laws. The McMeans decision is significant because it is the first to grant removal on the ground that arrests directly stemming from protest activities may constitute a denial of equal protection of the laws.65 Subsection (2), which permits, in part, removal of cases involving "any act under color of authority derived from any law providing for equal rights," has been held to apply only to Federal officers and those assisting them.66 In People of New York v. Galamison, however, the Court of Appeals avoided that issue and remanded the case after finding that petitioners' acts were not related to any law providing for equal rights.68 These decisions indicate that the Federal courts have begun the process of reconsidering the earlier restrictive interpretations of section 1443, a step forward that Congress anticipated in 1964.9 65 See Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev. 793 (1965). 636 Peacock v. City of Greenwood, 347 F. 2d 679, 686 (5th Cir. 1965) (removal under subsection (2) refused to persons claiming they were arrested for acts done under color of authority of laws providing for equal rights); City of Chester, Pennsylvania v. Anderson, 347 F. 2d 823 (3d Cir. 1965) (same); Johnson v. City of Montgomery, Ala., supra note 60 (same); Forman v. City of Montgomery, supra note 60 (same); City of Clarksdale, Mississippi v. Gertge, 237 F. Supp. 213 (N.D. Miss. 1964) (same). 67 342 F. 2d 255 (2d Cir. 1965). 68 See also People of State of Michigan v. Barnard, 239 F. Supp., 306 (E.D. Mich. 1965). But New York City election officials have successfully used the alternative clause of subsection (2), permitting removal of cases involving a refusal "to do any act on the ground that it would be inconsistent" with a law providing for equal rights, to remove a civil action brought to enjoin them from enforcing a provision of the Voting Rights Act of 1965. O'Keefe v. New York City Board of Elections, 34 U.S.L. Week 2172 (S.D.N.Y. Sept. 14, 1965). 69 See remarks of Senator Dodd, floor manager for Title IX, 110 Cong. Rec..at 6956 The Fifth Circuit had already begun the process of reconsidering the civil rights removal statute by staying remand orders in a number of cases. See CORE v. Town of Clinton, Louisiana, 346 F. 2d 911 (5th Cir. 1964), stay order entered Oct. 14, 1963, 346 F. 2d 912. |