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Senator Javits. Would the Chair yield for a question of the witness? Senator Ervin. Surely.
Senator JAVITs. Judge Rivers, section 1443 now provides for removal in any case where a person is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States or of all persons within the jurisdiction thereof.
In your opinion as a lawyer, is there anything in the law now, even if we do not pass what you are recommending, to prevent any prisoner or anyone else in the State court from filing the petition under this section which would, at least for the moment, remove his case to a Federal court subject to remand?
Judge RIVERS. Nothing at all.
Senator Javits. In other words, would not the same people be able to do exactly that which Senator Ervin is discussing now even if we did not pass this bill?
Judge RIVERS. No doubt about it.
Senator Javits. And is it not a fact that what you are now proposing makes for greater specificity in dealing with things of this nature?
Judge RIVERS. Certainly.
Senator ERVIN. Under the present statute, he has to be denied his rights or not able to enforce those rights in the State to get removal.
Judge RIVERS. That is right.
Senator ERVIN. The bill now under consideration would only require that he allege he was exercising his constitutional right. He does not have to be denied it in the State courts at all. That is quite a difference.
Senator Javits. Will the Chair yield?
What I am trying to point out is that a removal petition may be filed today subject to remand with the greatest ease under section 1443. You are not changing anything, whether or not you adopt the bill recommended by the bar association. Now, whether it will be remanded or not may be a question of substantive law which is involved. But certainly there is no question about whether a removal petition can be filed. It can be filed today.
Senator ERVIN. Yes, but it is alleged that he cannot get a fair trial in the State court, in effect?
Judge RIVERS. He can do that.
Senator Ervin. The difference between these two things is a pretty marked difference, is it not?
Judge RIVERS. Senator, I am sure a lawyer would be able to file a petition whatever statutes are written. You cannot work out sentences which will prevent a lawyer
Senator Ervin. If that is so, we do not need this new statute.
Judge RIVERS. Then that means there is no protection by way of removal. That is the fundamental question, whether or not a man who is exercising a right granted to him by the Federal Government can be put in jail, prosecuted because of doing that act and have to take it up to the highest court of the State before he can have Federal attention paid to his claim. I just think that is the essence of this, Senator.
Senator ERVIN. Of course, I see just a little of what Alexander Hamilton said in The Federalist, though this has been abrogated by deci
sions of the Supreme Court. He said the reason he gave the Supreme Court of the United States jurisdiction in cases involving States was because he felt the State should not be tried in a court of lesser stature. This legislation could carry him into the lowest Federal court without any evidence of discrimination in virtually every case arising under the equal protection clause or is alleged to arise on racially motivated grounds.
Pardon me for interrupting you so much, but we probably have covered the provisions of the bill better than if you had just reiterated your statement.
Senator Javits. Judge, do you want to put some pages in the record which discuss specific cases bearing on your contention?
Senator ERVIN. Yes, if you specify what pages, what civil rights publication it is, we can supply it and see that it is inserted in the record.
Senator Javits. I ask unanimous consent.
Senator Ervin. Yes. If you will specify the pages, you can keep your copy and we will get a copy ourselves.
Judge RIVERS. I think the reporter got the pages—62 to 83.
(U.S. Commission on Civil Rights, pp. 62–83 (1965))
ARRESTS OF DEMONSTRATORS
In the six communities studied, Commission investigation disclosed that persons who demonstrated or attempted to use public accommodations or facilities were immediately ordered to disperse and were arrested if they refused to do so. The action of local officials indicated they did not consider whether the activity of those arrested was statutorily or constitutionally protected or whether, in fact, the persons arrested were engaged in harmful activity.
Participants in mass marches rarely had an opportunity to proceed more than a few blocks before they were arrested-usually under an ordinance requiring a permit to parade. Officials often made arrests before the marchers could proceed past the Negro section of town. Since Negroes were unable to give public expression to their grievances through the use of public assembly, they submitted to arrest in order to publicize their protest.
Gadsden, Alabama.-Sit-in demonstrations in Gadsden began in June 1963 with groups of 75 to 100 demonstrators protesting segregated restaurants and lunch counters.
A few days after the first sit-in, city officials obtained a State court injunction that prohibited demonstrators from blocking sidewalks, entrances to stores, and traffic, but expressly permitted certain types of peaceful demonstrations. The next afternoon, when 300 Negroes gathered in front of the county courthouse, 235 persons were arrested for violating the injunction. That evening a large group of Negroes assembled on the courthouse lawn to protest the arrests; they were driven from the lawn by Alabama State troopers using cattle prods and nightsticks.
More arrests under this injunction followed throughout the summer. Protest activities ended with the arrest of 233 demonstrators during a march in August. * Laurel, Mississippi.—The Commission's investigation in Laurel centered on attempts by Negroes to eat at previously segregated lunch counters following the passage of the Civil Rights Act of 1964. Notwithstanding the clear legislative mandate establishing the Federal right to equal use of public accommodations, in December 1964 Laurel officials arrested integrated groups of persons who sought to obtain service at a local coffee shop. Laurel Police Chief L. C. Nix made these arrests pursuant to warrants alleging that those arrested "willfully and unlawfully, with intent to provoke a breach of the peace, refused to leave the Pinehurst Coffee Shop." 40 Each of the arrested defendants was charged with breach of the peace and required to post $101 bond. Chief Nix justified his action principally on the ground that as a local police officer he had no duty to determine the rights of the defendants under Federal law." When asked whether he had any obligation to enforce Federal law in Mississippi, Chief Nix replied, "My obligations are to enforce State laws, local ordinances, and to preserve the peace." 4 He was then questioned as follows:
34 Interview with Q. B. Adams, Rev. W. A. Baskerville, Leon Ballou, and Bishop G. W. Garrison, Negro leaders, June 30, 1964 (hereinafter cited as Gadsden Leaders Interviewo); interview with Tony Reynolds, chief sheriff's deputy, and Felton Yates, deputy sherif, July 1, 1964 (hereinafter cited as Reynolds Interview ] ; interview with managers of W. T. Grant, Woolworth's, Murphy's, and Sears Roebuck stores, July 2, 1964.
35 Record, Ex parte Robinson, Case No. 9584, Cir. Ct., Etowah County, June 25, 1963. 30 Ibid.: Gadsden Leaders Interview ; Etowah County Jail Book.
31 Gadsden Leaders Interview; interview with Leslie L. Gilliland, mayor. and Joseph Hubbard, police commissioner, July 1, 1964; Reynolds Interview. The FBI investigated 22 complaints by victims alleging injuries from excessive force by State troopers. Memorandum in Commission files.
38 Etowah County Jail Book : Gadsden Leaders Interview.
"Commissioner GRISWOLD. Have you heard of the public accommodations provisions of the Civil Rights Act? "Mr. Nix. Yes, sir. "Commissioner GRISWOLD. Do you regard them as law in Mississippi? "Mr. Nix. Yes, sir. "Commissioner GRISWOLD. Do you regard it as your responsibility to enforce them in Mississippi?
"Mr. Nix. I don't believe I can enforce the segregation or the desegregation of a place,
"Commissioner GRISWOLD. Have you not taken an oath to support and defend the Constitution of the United States ? "Mr. Nix. Yes. "Commissioner GRISWOLD. Do you not regard that oath as binding? "Mr. Nix. Yes, sir." 43 Jackson, Mississippi.--Police in Jackson adopted the policy of immediate arrest in dealing with protests. Arrests were made without any apparent effort to determine whether those arrested were engaged in constitutionally protected activity.
When nine college students staged a "sit-in" at the Jackson Public Library in March 1961, they were arrested for breach of the peace.* When hundreds of Freedom Riders came to Jackson in 1961 challenging segregated transportation facilities, most of them were immediately arrested." When local Negroes demonstrated in 1963 for improved job opportunities, desegregation of public accommodations and facilities (including schools), and the establishment of a biracial committee, they were arrested. When demonstrations were held in 1965 protesting the convening of a special session of the State legislature to rewrite Mississippi voting laws, Jackson officials again reacted by arresting hundreds of demonstrators."
In every march, the participants were asked to disperse and, upon failure to do so, were arrested and charged with violating the city's parade ordinance," an ordinance which does not specify any standards for granting or denying a permit." Negroes and civil rights workers were also arrested on various charges
Jones County Report. T. 470. The public accommodations section of the Civil Rights Act of 1964 had been declared constitutional by the United States Supreme Court prior to the arrests. Heart of Atlanta Motel v. United States, 379 U.S. 261 (1964); see also Katzenbach v. McClung, 379 U.S. 294 (1964). #Arrest records produced in response to Commission's subpena.
T. 181-82. #T. 181.
Ibid. * See Jackson (Miss.) Daily News, March 29, 1961, p. 1.
See, e.g., Lusky, Racial Discrimination and Federal Law: A Problem in Nullification, 63 Colum. L. Rev. 1163 (1963).
4. These demonstrations are documented in testimony presented in a suit brought by the NAACP against city officials. Record. NAACP v. Thompson, 321 F.2d 199 (5th Cir. 1963) (hereinafter cited as Record, NAACP v. Thompson).
47 Jackson Daily News, June 15, 1965, p. 1. Most of those arrested were charged with parading without a permit. Guyot v. Pierce, Civ. No. 22,676, 5th Cir. June 15, 1965 (enjoining enforcement of city parade ordinance pending appeal).
Record, NAACP v. Thompson 222; Jackson Daily News. June 15, 1965, p. 1. The one exception to this was the march permitted for the funeral of Medgar Evers.
& The Jackson City Code provides : Section 594 That it shall be unlawful for any person, firm, or corporation to have any parade along, over, or upon any street or avenue of the City of Jackson, or to use by driving over or across or upon any of the streets or avenues of the City of Jackson, Mississippi, without first obtaining a permit from the mayor for such parade, and providing further that any person, firm, corporation, or association shall not use any other streets or avenues than those designated.
during attempts to use segregated city parks, 60 during "pray-ins" at white churches, and while picketing business establishments in downtown Jackson."
Greenwood, Mississippi.-Demonstrators in Greenwood also were ordered to disperse immediately and, in some cases, were arrested during their numerous marches in 1963 and 1964 to the county courthouse to encourage voter registration. Although city officials told Commission investigators that demonstrations were peaceful and orderly, every attempt to demonstrate during 1963 was repressed by police.
In 1964 the pattern varied somewhat. Police permitted picketing at the courthouse, but removed white civil rights workers from the picket line, took them to the police station where they were photographed and fingerprinted, and later returned them to the courthouse.” On one occasion, pickets were arrested when they refused to comply with an order restrictiug picketing to one side of the courthouse. On another occasion, persons were arrested when they refused to obey an order to limit pickets to 10 voting age residents of Leflore County.se
Americus, Georgia.-On several occasions in 1963, Negro teenagers in Americus attempted to purchase tickets at the white entrance to the town's movie theater. When they were refused, they protested by standing silently against the wall of the building. When they failed to obey the police order to disperse, they were arrested. Marches protesting these arrests brought further arrests under a statue prohibiting parading without a permit.58
On August 8, violence erupted when police attempted to stop a march, which was started by a small group of Negroes and grew to nearly 200 as it moved through the Negro district. The police seized one of the leaders and jabbed him with a cattle prod when he refused to move. Stones were thrown at the police and attempts were made to free the arrested leader. The police dispersed the other demonstrators by firing shots over their heads. In the melee, several officers and at least five demonstrators were injured. Three civil rights leaders were arrested and charged with attempt to incite insurrection, assault with intent to kill, riot, unlawful assembly, attempt to escape, and aiding an attempt to escape. The rest of the summer's demonstrations ended in arrests. On one occasion nearly all those arrested alleged that they were prodded and struck with night sticks by the police during the arrest.
St. Augustine, Florida.-Demonstrations began in St. Augustine in June 1963 after the breakdown of negotiations between civil rights groups and local officials. The civil rights groups were seeking the formation of a biracial committee, integration of public facilities and accommodations, and employment of Negroes in responsible city jobs. From June to October, sit-ins were staged at a number of lunch counters. Although many of the demonstrators were arrested and charged with breach of the peace and conspiracy, the police did not interfere with peaceful picketing.
In 1964 an intensive effort was begun to integrate public accommodations in St. Augustine. During Easter Week hundreds of persons were arrested at sev
50 Memorandum in Commission files.
58 Ibid. On October 16, 1964, the Department of Justice agreed with city officials to dismiss a Government suit against city officials alleging voter intimidation in exchange for their assurances that the city would not interfere with registration activity. See Hearings on s. 1564 Before the Senate Committee on the Judiciary, 89th Cong., 1st Sess. 1302-03 (1965).
57 Americus Recorder's Court Docket, July-August 1963; Record, p. 147, Aelony v. Pace, Civil Nos. 530, 531 M.D. Ga., 1963 (hereinafter cited as Aelony Record). Following the theater's first refusal to sell tickets, Negro teenagers began to picket the movie theater, as well as various downtown stores which refused to hire Negroes. The pickets attempted to comply with the town's extremely restrictive picketing ordinance.
58 Record, Americus v. Turner, Nos. 848–65, Recorder's Ct., Sept. 3, 1963; Recorder's Court Docket, July 19, 1963. Sept. 3, 1963.
69 Record, State v. Harris, Super. Ct., Sumter County, Aug. 20, 1963, passim; Aelony Record, passim.
80 Aelony Record 326–27 ; Record, Americus v. Bowen, Recorder's Ct., Sept. 19, 1963 ; Recorder's Court Docket.
61 Record, Americus v. Fuller, Nos. 867 et seq., Recorder's Ct., Sept. 19, 1963; Aelony Record, passim.
62 Interview with Dr. Robert B. Hayling, Jan. 14, 1964 (hereinafter cited as First Hayling Interview).
eral restaurants and lunch counters ; " and a large number of students were arrested when they refused to comply with a police order requiring them to halt a march.“
In April 1964 Dr. Martin Luther King went to St. Augustine at the request of local Negro leaders to lead protests against segregated public accommodations. During a 10-week period, 378 persons were arrested in 58 separate incidents. Demonstrators were held under a variety of charges, such as breach of the peace, trespass with malicious intent, violation of the undesirable guest statute, and conspiracy to commit these offenses.
In the United States a person accused of a crime is presumed innocent until proven guilty by judicial process. Thus, the accused must be brought before the proper officials for arraignment and in non-capital cases is permitted his freedom prior to being convicted.
"This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction ..."
In order to insure the defendant's presence at trial, he may be required to deposit money or other collateral with the court as bail for his appearance at trial. Thereafter, he must appear or forfeit his deposit. He may post as bail a surety bond from an authorized bondsman, a bond secured by real or other property, or cash. In some cases, he may be released on his own recognizance without posting bail.
The eighth amendment to the Constitution provides that excessive bail may not be required, and this provision probably applies to the States. Most State constitutions also provide for the right to bail. When a State "has provided a right to bail it may not ... engage in such administration as arbitrarily or discriminatorily to effect denial or deprivation of the right to a particular accused." 11 Thus, neither may excessively high bail, be required nor may the nature of the collateral or the conditions imposed be unreasonable."2 Moreover, pretrial bail generally may not be denied in order to protect society from possible new crimes by an accused." In the areas studied, however, the requirement of excessively high bail bonds or the arbitrary refusal to accept usually acceptable collateral were devices commonly utilized to discourage protest demonstrations." A clear pattern of abuse in the administration of bail was evident in Jackson, Americus, and St. Augustine.75
& Interviews with participants, August 1964 ; interview with Earl Johnson, Jacksonville attorney who defended many of the demonstrators, Aug. 1964 (hereinafter cited as Johnson Interview ] ; CCR Complaint Files, Nos. 4506, 4677 ; Police Records.
* Police Records, Second Hayling Interview; Johnson Interview. Interviews with participants, Aug. 1964.
Police Records ; interviews with participants, Aug. 1964. * Stack v. Boyle, 342 U.S. 1, 4 (1951).
Stack v. Boyle, supra. * The Supreme Court has not in recent years ruled on this question. In Pilkington v. Circuit Court of Howell County, 324 F.2d 45, 46 (8th Cir. 1963), the court stated: “We take it for granted that contrary to earlier cases the prohibition in the Eighth Amendment against requiring excessive bail must now. be regarded as applying to the States, under the Fourteenth Amendment." The eighth amendment prohibition on cruel and unusual punishment has been declared applicable to the States. Robinson v. California, 370 U.S. 660 (1962).
TO Paulsen & Kadish, Criminal Law and Its Processes 923 (1962). See e.g., Miss. Const. art. 3, § 29.
a Mastrian y. Hedman, 326 F. 2d 708, 711 (8th Cir. 1964), cert. denied, 376 U.S. 965 (1964).
* For example, requiring unencumbered real property and refusing to accept cash bond may effectively deny bail. See T. 326–28. Of. Rehman v. California, 13 L. Ed. 20 17 (1964) (Douglas in chambers) ; Cain v. United States, 148 F. 2d 182 (9th Cir. 1945).
m Williamson v. United States, 184 F. 2d 280 (2d Cir. 1950); Freed & Wald. Bail in the United States: 1964, A Report to the National Conference on Bail and Criminal Justice, Washington, D.C., May 27-29, 1964, p. 5. Bail pending appeal ordinarily should be granted. Leigh v. United States, 8 L. Ed. 2d 269 (Warren, Circuit Justice, 1962).
* Freed & Wald, supra. In this study, prepared for the National Conference on Ball and Criminal Justice, bail abuses were found in civil rights cases: "Because the defend ants in civil rights cases often welcome litigation, and their offenses carry comparatively small penalties, the danger of Alight is small. A recent study of forfeitures bears this oui. As a result, high bail in these cases can be explained only as punishment or to deter continued demonstrations." Id. at 53.
3 The practices uncovered in these cities were not atypical. In interviews with civil rights attorneys who defended demonstrators in numerous southern cities, the Commis