JOHNSON v. MISSISSIPPI

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Argument of Frank R. Parker

Chief Justice Warren E. Burger: We'll hear arguments next in Number 1531, Johnson against Mississippi.

Mr. Parker, you may proceed when you're ready.

Mr. Frank R. Parker: Mr. Chief Justice, and may it please the Court.

Petitioners removed these Mississippi criminal prosecutions from the state court to federal district court pursuant to the Civil Rights removal statute 28 U.S. Code, Section 1443 which dates back to 1866.

The state filed an answer and a motion to remand.

The District Court held an evidentiary hearing on the state's remand motion, granted the motion, and remanded these criminal prosecutions back to the state court.

On appeal by the petitioners, the Court of Appeals for the Fifth Circuit affirmed and a divided court by a vote of ten to five with a very strong dissent by Chief Judge John Brown, denied a re-hearing en banc.

The question to review is whether petitioners engaged in peaceful free speech activity designed to eliminate racial discrimination, may remove state criminal prosecutions against them, to Federal District Court pursuant to the civil rights removal statute to protect their peaceful exercise of rights secured by the Title I of the Civil Rights Act of 1968, which is contained in the federal code under the title federally protected activities, and as codified as 18 U.S. Code, Section 245 (b).

I think it's undisputed and the state doesn't dispute this in its brief that at the time of the arrests the petitioners were and had been engaged in free speech activity specifically protected against official interference by 18 U.S. Code, Section 245 (b).

The police officers knew this and this activity formed the basis for these arrests.

The petitioners all were arrested on identical arrest affidavits warranted by the chief of police, which charged with unlawfully and feloniously to bring about a boycott of merchants and businesses, in there promote, encourage and enforce acts injurious to trade or commerce, under Mississippi Code Section 97-1-1.

Now, although the testimony of the police chief, who was the only witness to testify for the state, does contain reports and complaints that he had received that there had been some interference with the merchants and the shoppers, there is evidence at all in the record that any of these petitioners themselves are guilty of any of this unlawful conduct, guilty of harassing or intimidating any shopper or merchant, and the state cites none in its brief.

The petitioners were arrested solely and exclusively because of their peaceful free speech activity designed to protest and eliminate racial discrimination.

As the petitioner John Ferguson testified and his testimony was not contradicted when he was booked, he heard, Police Chief Brown of Vicksburg comment, “anybody on the street with a picket sign would be arrested” and that's what happened.

Justice William H. Rehnquist: Well, don't -- don't you have to show under Peacock that they have an unqualified right to do what they were charged with doing and not just that they had an unqualified right to do what they in fact might have been found to be doing?

Mr. Frank R. Parker: Mr. Justice, we believe that the evidence in this case does meet the Peacock standard.

First of all, the statute invokes Section 245 (b).

It does establish a right for them to engage in this activity and secondly --

Justice William H. Rehnquist: What activity where they charged with in the Mississippi criminal prosecution?

Mr. Frank R. Parker: Well, the evidence -- the evidence reveals --

Justice William H. Rehnquist: I mean the charge, not the evidence?

Mr. Frank R. Parker: The charge was to unlawfully and feloniously bring about a boycott of merchants and businesses and to promote and encourage acts injurious to trade or commerce.

Now, this necessarily must involve free speech activity.

Justice William H. Rehnquist: Well, but now don't you have to show under Peacock that the federal statute you're relying on gave them an unqualified right to feloniously and injuriously do what they were doing?

Mr. Frank R. Parker: We think that's true in this case.

The federal statute does give them an unqualified right to engage in a free speech and peaceful assembly to oppose the denial of the opportunity to participate in the enumerated benefits and activities under the statute, including private employment without discrimination.

So, the defendants under this statute had an unqualified right to engage in free speech activity opposing racial discrimination and employment and that was the purpose of the boycott.

Justice William H. Rehnquist: But they were charged with doing something more than that, weren't they?

Mr. Frank R. Parker: No, we don't believe they were, Your Honor.

We believe that they were specifically charged with the protected activity under the statute.

And certainly, even are going behind the charges, the testimony of the police chief himself when he asked what were these petitioners doing prior to their arrest responded, they were stopping people and telling people not to stop in the shore -- in the stores that there was boycott on and the purpose of this boycott as the testimony reveals was to protest racial discrimination of employment.

Justice William H. Rehnquist: Well, that's the evidence, that's not the charge?

Mr. Frank R. Parker: That was the basis of the charge.

It was that --

Justice William H. Rehnquist: But it's not the charge --

Mr. Frank R. Parker: -- evidence that was the basis of the arrest.

Justice William H. Rehnquist: -- it's not the charged itself?

Mr. Frank R. Parker: Well, the charge of boycotting, and the charge of restraining trade necessarily contains elements which contradict the protected activity guaranteed by the statute because the boycott necessarily involves word of mouth publicity, free speech activity to persuades shoppers not stop in the stores and that's specifically protected by the statute.

Justice Byron R. White: I take it then you would suggest with an indictment like this, it's fine, where the information is filed but if you would have been entitled to dismissal for the indictment, if you had moved to dismiss and cited that federal statute, that the federal statute is an absolute bar to the Constitution?

Mr. Frank R. Parker: That is the relief that we're requesting in Federal District Court.

Justice Byron R. White: I know, but that's what you say should have been granted -- it should have been granted if you had look for the state court?

Mr. Frank R. Parker: I think the posture in the state court would have been more of constitutional question whether the state statute under which the charges are broad -- are over broad and whether they conflict with the federal --

Justice Byron R. White: You're contesting on federal statute here is they contend (Inaudible)

Mr. Frank R. Parker: Yes.

Justice Byron R. White: -- a full complete defense to going forward with the charge at all?

Mr. Frank R. Parker: Yes, that's correct.

Justice Byron R. White: And I take it, you agree to that that is the test on which is the basis for Peacock?

Mr. Frank R. Parker: That is one of the tests that the Court laid down.

However, we don't believe that this is a necessarily test.

In other words, if the petitioners in Rachel had been charged with trespass, in Rachel they succeeded and the Court sustained the removal, if the petitioners in Rachel had not been charged with trespass, but had been charged with aggravated burglary for example, or murder, or rape, the result should have been no different because the facts of that case clearly showed and they are alleged properly in the removal petition that the charges were based upon their refusal to leave the restaurant after they were asked to do so because of their race and that's the purpose of the evidentiary hearing.

Rachel requires an evidentiary hearing in the District Court to establish the facts and permit petitioners to prove the allegations of the petition, and once they've done that and shown that the arrests are based unprotected activity then I have the right of removal under Rachel.

The testimony as I've mentioned -- the testimony of Police Chief Marion Brown himself indicates that the basis of these arrests were the free speech activity of the petitioners protesting racial discrimination, and that of course is protected specifically by the statute.

Now, these mass arrests as the testimony, uncontradicted testimony indicates, brought a complete halt to any picketing in Vicksburg designed to protest to eliminate racial discrimination and that complete halt at any racial protest picketing in Vicksburg continues down to the present day and I think from these facts the conclusions can be drawn are clear.

These arrests were made in bad faith.

It was solely for the purpose of harassing these petitioners in the peaceful exercise of their federally protected free-speech rights to protest racial discrimination.

And they were made under a state conspiracy statute which is extremely questionable, punishes any acts injurious to trade and commerce, punishes any acts injurious to public health, public morals, using vague terms and over broad terms which can be easily used to suppress free speech rights as was done in this case, and this was done to the great and immediate irreparable injury of the petitioners and persons similarly situated.

Now, the purpose Congress in enacting this removal statute, and it goes back 1866, it was reenacted in 1870, reenacted in 1871, and Congress in 1964 took another look at the removal statute and provided an appeal to strengthen its provisions.

Congress has over the past century intended to provide a federal forum in instances in which a conduct by state officials, violates equal civil rights of the petitioners and those rights are denied or cannot be enforced in the state court.

In enacting the civil rights removal statute, Congress carved-out a narrow but expresses an exception to the usual doctrine against the federal court interference with state criminal prosecutions.

Under 1443 removal of state criminal prosecutions of the Federal District Court, this is justified where petitioners can rely upon a right under law providing for the equal civil rights of citizens and Rachel construed this to mean and stated in specifically in terms of the racial equality.

So, we're not arguing that the Court include in this civil rights removal petition a broad spectrum of what we generally classify as civil rights or constitutional rights or civil liberties.

This is a very narrow statute, can be narrowly construed but covers this case because this statute undeniably and the Fifth Circuit held that Section 245 (b) clearly deals with equal civil rights.

This statute undeniably is a statute providing for equal civil rights stated in terms of racial equality and that's indicated by the legislative purpose of the statute.

In our opinion, the Fifth Circuit completely ignored the legislative history and the legislative purpose of the statute because the committee reports and the quotations which we include in our brief indicate that the Congress intended to protect persons engaged in free speech activity protesting racial discrimination.

Chief Justice Warren E. Burger: What if they have come down the street with combination of automobiles and a parade carrying signs expressing the sentiments you have referred to and then stopped for 20 minutes to block the traffic as part of their demonstration and call public attention to it, would you think they could be arrested for traffic violations?

Mr. Frank R. Parker: Of course that's another case, they weren't charge with that here.

It would depend on the facts of the case.

Again, the same -- I believe the same standards that apply to regulation of First Amendment conduct would apply.

Certainly, the state has an interest in regulating time and place.

Chief Justice Warren E. Burger: Well, is this is First Amendment, then?

Mr. Frank R. Parker: No, this not First Amendment.

This is a statutory, this is the right created by Congress of free speech right.

Chief Justice Warren E. Burger: No, I'm talking about the conduct?

Mr. Frank R. Parker: Yes.

Chief Justice Warren E. Burger: That I've just described.

Is that -- that's a protest?

Mr. Frank R. Parker: Yes.

Chief Justice Warren E. Burger: It's a demonstration.

Is it protected by the First Amendment?

Mr. Frank R. Parker: Well, that the statute indicates of the conduct of the persons engaged in this free speech activity must be lawful, and so therefore, if the conduct of the petitioners in that case have violated the state statute then and the state established this by the evidence that they violated a constitutional ordinance or state statute, then we would take our position that removal would not allowed.

That the prosecution was based not on an effort to suppress free speech activity, but was based on enforcement of a constitutionally valid ordinance or state statute.

Chief Justice Warren E. Burger: But what does the state claim here in their -- what was the charged of the state in this case?

Mr. Frank R. Parker: Well, the state has changed its position a couple of times during the course of the litigation.

Chief Justice Warren E. Burger: What were they charged originally?

Mr. Frank R. Parker: The initial charge was under 97-1-1, that is a conspiracy to restrain trade or commerce.

That was the charge that was initially lodged and then later on appeal they change that, but it's clear to us that the notion of the restraining trade and commerce is sufficiently broad to cover the free speech activity which is protected by the federal statute because a civil rights boycott which we had in this case in which various merchants are accused of racial discrimination in their employment practices and persons are urged to not to shop in these stores, this can be considered by the state a restraint of trade or commerce, that is the costumers stay out of the store as part of the boycott.

But even though it might be restraining trade or commerce under the state statute, it's protected by the -- by Section 245 (b) because it is free speech activity protesting racial discrimination in private employment and that's specifically covered by the statute -- by Section 245 (b).

The other part of the removal section that we have to show, is that petitioners are denied or cannot enforce their rights -- their equal civil rights in state court.

Now, the statute invoked is -- is very specific on this.

It prohibits whoever whether or not acting under color of law and this specifically refers to law enforcement officers by force or threat of force and this refers to any threatening conduct willfully injures, intimidates or interferes with or attempts to injure, intimidate or interfere with, the exercise of protected rights.

Now, of course if these mass arrests, based on the free speech activity of the petitioners, are not intimidation or interference, I don't know what it is.

So from the very instigation of these arrests, the arrest affidavits were attested to by the city judge, these petitioners are denied and they cannot enforce in state courts their rights because the statute involved here, the federal equal civil rights statute provides a right as the statute did in Rachel, not even to prosecuted for the exercise of protected activity.

It prohibits any interference, any intimidation including arrests and prosecutions.

The removal, we contend, is based, grows out of the Court's decision in 1966 in Georgia and Rachel.

Georgia and Rachel involved Title II of the Civil Rights Act of 1964.

Title II is the statutory scheme which is very close and very closely resembles Section 245 (b) which we're invoking in this case.

As I indicated, the Court held that you have to rely on a statute of federal law providing for equal civil rights stated in terms of racial equality.

The Court in Rachel held that Title II qualified because it prohibited racial discrimination in places of public accommodation.

Similarly, the statute invoked here, Section 245 (b) clearly qualifies of such a law.

It clearly deals with the equal civil rights as the Fifth Circuit itself acknowledged.

It prohibits forcible interference because of race with the enumerated activities mentioned and it clearly provides a right on the part of the petitioners to be free of any interference from official sources with their free speech activity protesting racial discrimination.

Now the Fifth Circuit held that Section 245 (b) as a criminal statute is not a law which provides for equal civil rights, but this holding is completely contrary to the purpose and intent of Congress in enacting the statute.

The legislative history indicates to the contrary.

On August 15, 1967, Representative Madden at 113 Congressional Record 22670 said, referring to the statute, “the pending legislation will provide the means and weapons to effectively enforce the provisions set out guaranteeing all American citizens equal rights.”

Justice Byron R. White: Was 1983 then subject to this federal statute?

Mr. Frank R. Parker: No, I believe the Court in Peacock, Mr. Justice White rejected 1983 because --

Justice Byron R. White: Well, it gives the right to recover damages from state officers if you interfere say with free speech activities?

Mr. Frank R. Parker: Yes but we --

Justice Byron R. White: Let's assume in a removal case you allege and the state says well that maybe true that you're engaged in free speech and that you're bound to win, that you're bound to win the state criminal case by interposing a federal defense, that isn't enough, is it?

Mr. Frank R. Parker: No, it's not.

The statute invoked, has to be a federal equal right statute providing specifically stated in terms of racial equality and the Court in Peacock held that First Amendment Due Process Clause, 1983 did not qualify as federal laws providing for equal civil rights stated specifically in terms of racial equality and this statute passed in 1968 we believe fills this void.

And as much --

Justice Byron R. White: Well, isn't it any federal statute then have said, no one will interfere with free speech for -- where the reason for the interference is race?

Mr. Frank R. Parker: Yes.

Justice Byron R. White: Purely race.

Mr. Frank R. Parker: That would qualify.

Justice Byron R. White: That would qualify.

Mr. Frank R. Parker: That's correct.

That it's this -- the civil rights removal is much narrower than the 1983 rights.

It only covers activity, free speech activity involving racial discrimination, protesting racial discrimination.

Justice Byron R. White: But what right does the statute create or provide?

Mr. Frank R. Parker: The statute provides a right to be free of interference.

Justice Byron R. White: But the Constitution certainly provides the protection of the right -- if the right is -- if the origin of the right is constitutional, I take it, in such a statute?

Mr. Frank R. Parker: Well, yes the power of Congress to enact the legislation, I suppose, would be constitutional, yes, but the First Amendment is not -- does not qualify the Court held in Peacock as the statute providing for rights in terms of racial equality.

It has to be -- the statute has to be racial legislation from Congress designed to protect persons, protesting and engaged in a certain conduct, protesting racial discrimination and that the statute we contend clearly qualifies in this instance.

Justice Lewis F. Powell: Mr. Parker.

Mr. Frank R. Parker: Yes.

Justice Lewis F. Powell: Does your position depend upon the soundness of a prediction that the rights of your clients cannot be vindicated in the state courts?

Mr. Frank R. Parker: Mr. Justice Powell, in this case the prediction is a certainty because the statute invoked provides a right not even to be prosecuted in state courts, as the statute did in Rachel.

Unknown Speaker: That was (Inaudible) --

Mr. Frank R. Parker: In other words -- the equal civil rights which are provided by the statute are include an equal civil right to be free of any interference from official sources for engaging in protected activity and this would include prosecutions.

Justice Lewis F. Powell: But in the Rachel the statute as I recall of banned attempts to punish in the state courts violation of state trespass laws and you analogize the statute here involved to that language?

Mr. Frank R. Parker: Yes, the statute in Rachel which was Section 203 of the Civil Rights Act of 1964 had three sections there.

One, Section (b) was “no person shall intimidate, threaten or coerce any person for the purpose of interfering with protected rights or punish or attempt to punish any person for exercising or attempting to exercise these protected rights.”

Of course the “intimidate, threaten or coerce” language of Title II is identical to the language indicated in the statute.

That it's clear also that even in this statute, the purpose of Congress was to prevent the state from punishing persons for the exercise of protected rights and this is indicated by the quote from Representative Cellar at page 10 of the state's brief, the state's quotation of extensive legislative history is very helpful in this regard because Mr. -- Representative Cellar specifically said, referring to protection against punishment, he said for example, the jury would have to find that the defendant's purpose was to deter persons from voting or applying from employment, or applying for admission to a public school or to punish persons, who have done so.

So, this legislative history reveals that part of the purpose of Congress was to provide a right to be free of punishment for the exercise of protected rights.

Justice Lewis F. Powell: Does all of this ten in your opinion on a factual issue as to whether or not the picketing was peaceful and lawful?

Mr. Frank R. Parker: There is a factual issue created.

The plaintiffs do have to show that their activity was protected activity under the statute.

Justice Lewis F. Powell: The plaintiffs have the burden of proof on that factual issue?

Mr. Frank R. Parker: The petitioners do.

Yes, Your Honor.

Justice Lewis F. Powell: And that was the issue in the removal proceeding?

Mr. Frank R. Parker: Well, there were two issues in the removal proceeding.

The first was the factual issue whether the petitioner's activity was protected and the second one was that even if it was protected as a matter of law can Section 245 (b) provide a basis for removal.

Now, the Fifth Circuit only reached the legal issue.

The Fifth Circuit only held as a matter of law that removal cannot be provided under the statute.

We believe that that was an error of law and is contrary to the intent of Congress as revealed by the quotes that we've indicated in the brief.

Now, the factual issue has yet to be determined.

The two-judge court rule doesn't apply because the Fifth Circuit didn't review the facts.

We have two alternatives we're suggesting.

First alternative is that this Court can take independent, make an independent examination of the record and determine the facts as in Cox versus Louisiana, or can reverse the Fifth Circuit on the issue of law and send it back and let them resolve the facts.

Justice Lewis F. Powell: I thought the district judge in this case found as a fact that there was unlawful picketing?

Mr. Frank R. Parker: The district judge did so find, Your Honor.

We challenged that as clearly erroneous in the Fifth Circuit, and the Fifth Circuit did not reach that issue because of its resolution of the legal question.

I think that anyone reading the record would see that the finding is clearly erroneous and that the petitioner's activities were peaceful and protected at all times.

Justice Lewis F. Powell: You have this as an issue before us?

Mr. Frank R. Parker: Yes, I do.

It can be resolved either by this Court or by the Fifth Circuit on remand.

This Court does not have to resolve the factual issue if it rules for us on the legal issue and can simply remand the case back to the Fifth Circuit for resolution of the legal question -- of the factual question, I'm sorry.

Chief Justice Warren E. Burger: Do we ordinarily deal with factual issues not resolved in the Court of Appeals?

Mr. Frank R. Parker: The Court did in Cox versus Louisiana.

Of course this was an appeal from the State Supreme Court, but this is an unusual instance in which the Court of Appeals did not rule on our factual contentions.

It simply felt it was not unnecessary because of their view of the law.

I think that a fair reading of the record would indicate that the District Court's determinations in this regard were clearly erroneous.

Chief Justice Warren E. Burger: Can you suggest any case in which we have a reviewed of the factual issue that the Court of Appeals has not reviewed?

Mr. Frank R. Parker: There are two criminal cases that we cite -- that we cite in our brief.

We discussed this question at our brief in page 40 and we refer specifically to United States versus Brahms and Cole v. Ralph, at page 43 of our brief.

The Fifth Circuit seemed to take the view and we only suggest this to the Court, the Fifth Circuit seem to take the view that petitioner's activity was protected because it starts out its opinion by saying, no one questions the right of petitioners to engage in picketing and free speech activity.

So that implies to us that the Fifth Circuit believed that the petitioners' activity was protected and therefore was required to rule on the legal issue and we think that a fair reading of the record will support that contention.

The Court believes that if there's any conflict in this regard that can resolve the legal issue and send it back to the Fifth Circuit for factual determination.

This was certainly the procedure followed in Rachel.

Rachel, there was no evidentiary hearing, but the Court sustained the allegations of the removal petition in Rachel and sent the case back to the lower courts for an evidentiary hearing on petitioners' allegations.

I would like to reserve the remainder of my time for rebuttal, if the Court please.

Chief Justice Warren E. Burger: Very well, Mr. Parker.

Mr. Noble.

Argument of Ed Davis Noble Jr.

Mr. Ed Davis Noble Jr.: Mr. Chief Justice, and may it please the Court.

I would first like to address myself some of the facts brought out by counsel opposite.

While it's quite true that we admitted in our brief that that there was at one time or another activities which might border on free speech.

That was not why these individuals were charged.

They were charged for other activities not for free speech at one time or another.

Next, it was brought out that they were charged initially under 97-1-1 of the Mississippi Code of 1972.

That is true, but while on remand by the District Court, and before the appeal was perfected, the grand jury of Warren County, Mississippi met in session on March 12, 1973 and charged these individuals under 97-3-83 and 97-23-85 which specifically addressed themselves to secondary boycott activities and threats or force in the use of affecting normal and lawful business activities.

This is clearly a case of interpretation of Rachel and Peacock, may it please the Court and in that sense it is interesting to note that the individuals rely on 18 U.S.C. 245 (b).

In doing so, throughout their brief, they cannot cite a particular case either in the Circuit Courts of Appeal or in the District Court, which in and of themselves effect removal that is triggered under 1443 (1).

We think that is correct.

It cannot be analogized with 1443 (1) requirements because it is not a civil statute, it is a criminal statute.

It protects, it does not provide and in that protection it actually protects rights which have already been granted either by statutes of the United States or the Constitution of the United States.

This is clearly brought out, may it please the Court in the congressional history of this particular statute, first by the House of Representatives.

In the initial statement which we allude to in our brief by Congressman Cellar, he speaks of four objectives.

First, that it protects individuals in the sense of force or interference in civil rights that is force itself.

Secondly, that it spells out those particular activities which would be protected in this -- by this criminal statute.

Thirdly, it brings individuals who are participating in activities within the protection of the criminal nature of this statute.

And fifth and more importantly, twice in the statute, it spells out the penalties which are assessed, if it is found by a jury that an individual has been participating in these activities.

It's quite true as counsel opposite said that a jury must find, but we think that is in a criminal nature of itself and not in a civil nature.

The Senate in the Majority Report 791 specifically states that it is to protect individuals against acts of violence.

There's no indication that this particular statute is for the ongoing of criminal processes of a state.

And of course individuals should be acting lawfully, which these individuals were not.

The language of the statute itself is clear.

It is codified in the US Code as a criminal statute.

It begins in Section (a) by speaking that it does not in and of itself cut loose the state processes which might be charged under this particular statute, and that if no charges, no charges shall be brought under this statute by the Attorney General, by the Department of Justice without first the written permission of the Attorney General of the United States or its deputy and a conclusion that ,that particular charge is in the public interest.

18 U.S.C. 245 is criminal, therefore, it does not meet the prerequisites of either Rachel or Peacock.

Rachel has two prerequisites.

First, that the statute must provide for equal civil rights stated in terms of racial equality and secondly that it must proven and clearly predicted that that particular right will be denied or cannot be -- can be denied in the state court.

Like we said in the first instance, this is a criminal statute which provides protection.

It does not provide new rights.

245 (b) spells out specific instances, ten in fact which are protected by the statute.

Therefore, it does not come within the 1866 model as this Court projected in Rachel, in a decision by Mr. Justice Stewart.

For in the 1866 model, it granted and therefore guaranteed new rights to citizens of the United States.

There has been some argument about whether or not this particular statute grants or removal protects the rights of one who is engaged in First Amendment or Fourteenth Amendment rights such as picketing.

If this Court were to decide this, it would seem to be cutting back or reversing the dictates of Rachel and Peacock in particular.

For in those two cases when read together, this Court decided in 1966 that the broad panoply of First Amendment rights and Fourteenth Amendment rights are not protected by removal.

As I mentioned previously, this appeal is now constituted of six individuals who are now under indictment by the Warren County grand jury in Warren County, Mississippi.

They are charged with criminal conspiracy in effecting a secondary boycott and they are charged with use of force and intimidation to affect that in.

Justice Byron R. White: It doesn't appear on page of the charge or the whatever pieces of paper instituted in these proceedings in the state courts.

Where do you -- I gather the District Court and the Court of Appeals hardly accepted your version?

Mr. Ed Davis Noble Jr.: They did.

Justice Byron R. White: Of the charge.

Mr. Ed Davis Noble Jr.: Yes, Mr. Justice White, they did.

Justice Byron R. White: But how did you get that across to the courts?

It doesn't appear at all in the --

Mr. Ed Davis Noble Jr.: It was explained in oral argument and that question put to us where the posture of the case stood at that particular time and it came out in oral argument to the Fifth Circuit.

Justice Byron R. White: So you were charging these people with the use of threats and coercion?

Mr. Ed Davis Noble Jr.: Yes, sir.

As a matter of fact, there only two of six actually, four are charged with the criminal conspiracy and secondary boycott and the two as my understanding by through that -- by conversations with the district attorney since we do not handle -- my office does not handle these charges.

Justice Byron R. White: So, you're representing the state here.

Mr. Ed Davis Noble Jr.: Yes, sir.

But two are charged under the Force and Effect statute that is 9723 (83) and four are charged with Secondary Boycott statute 9723 (85).

Justice Byron R. White: Let us suppose that on the removal hearing, I gather you think that a removal hearing in the District Court is a proper thing?

Mr. Ed Davis Noble Jr.: A removal hearing was had?

Justice Byron R. White: Yes.

Well suppose there that the people seeking to remove, claim and demonstrate at least according to them that you arrested for peacefully protesting certain conduct.

And suppose the charge says, force and violence, the use of force and violence, but the state then goes back and says, “Well, I guess we really are just charging them with peaceful picketing.”

Would that be removable -- the case then be removable?

Mr. Ed Davis Noble Jr.: No, sir it would not.

Justice Byron R. White: Why not?

Mr. Ed Davis Noble Jr.: Well, under Rachel and Peacock in its interpretation of 1443 (1), First Amendment rights in and of themselves are not removable.

You must look to the charges that are against these individuals.

Justice Byron R. White: Let's assume -- let's assume, let's assume it's alleged that the people were arrested solely because of their race, peacefully protesting activities and they were arrested solely because of their race?

Mr. Ed Davis Noble Jr.: I still do not think under Rachel and Peacock that this particular instance of picketing would in and of itself constitute removal, no, sir, for this reason.

It requires two things for removal, according to Rachel's precepts, that you prove a specific civil rights stated in terms of racial equality and secondly, that those particular rights would be denied in the state courts of Georgia and Mississippi.

In this particular instance, the state of Mississippi has no particular statute which denies one the right to picket nor does the City of Vicksburg as it's shown in the evidence of the case by testimony by Chief Brown, nor does the City of Vicksburg have any ordinance which denies one the right to peacefully picket.

Therefore, they would come under and satisfy this particular right through an appeal in state court.

Justice Byron R. White: You would say anytime -- anytime you charge somebody on the face of the complaints with some act that was obviously within the state's police power, it could never be removable, even though predictably, the defendant might win in the state court.

Mr. Ed Davis Noble Jr.: According to Rachel and Peacock, that's true sir.

Justice Potter Stewart: In Rachel the charge was trespass, wasn't it?

Mr. Ed Davis Noble Jr.: Mr. Justice Stewart, that is true.

However, you had a conflict with the state statute -- federal and state statute shortly before you decide in the Rachel.

Justice Potter Stewart: Hamm had been decided.

Mr. Ed Davis Noble Jr.: Hamm have been decided, there interpreting 19 -- 2000 (a).

Justice Potter Stewart: (c), I believe.

Mr. Ed Davis Noble Jr.: (c) which said that Public Accommodations Act granted a specific right, therefore, it's substituted a right for a crime.

Here, there is no substitution for even given 245, it substitutes no right to participate in the crimes charged by state of Mississippi against these individuals.

So, removal is not effective.

In conclusion, I'd like to say or I'd like to paraphrase if I might, Peacock, that this case differs from what is alleged in the petition in this ways.

There is no federal statute, in particular 245 (b), or any statute on the books which gives these individuals the right to participate in a secondary boycott or to intimidate one in its normal cost of business activities, nor is there any statute which has been cited to replace, to allude to the question by Mr. Justice Stewart.

Justice Thurgood Marshall: Well, what was the secondary boycott?

Mr. Ed Davis Noble Jr.: What was it?

Justice Thurgood Marshall: In this case?

Mr. Ed Davis Noble Jr.: Mr. Justice Marshall, it was brought out that these people were engaged in a conspiracy to stop individuals from participating in ongoing business activities with the certain individuals in the City of Vicksburg.

Justice Thurgood Marshall: And that's secondary boycott?

Mr. Ed Davis Noble Jr.: According to the state statute, it is.

Not in the sense of telling someone to do it, but they were using activities to stop, said to have engaged in a secondary boycott, that's right.

Justice Thurgood Marshall: They just say people don't patronize the store?

Mr. Ed Davis Noble Jr.: No, sir.

I don't think that was a charge.

Justice Thurgood Marshall: Because we don't know what they charged with, do we, do you?

Mr. Ed Davis Noble Jr.: Well, according -- without all due respect --

Justice Thurgood Marshall: Do you know what they're charged with?

Mr. Ed Davis Noble Jr.: With all due respect to you, Mr. Justice Marshall, I can only represent to you what the indictment says.

They are charged with secondary boycott and intimidation of the individuals and patrons going into these particular stores.

Those are the two charges against these individuals.

Justice Thurgood Marshall: That's all we have?

Mr. Ed Davis Noble Jr.: That's right sir.

Justice Byron R. White: You're necessarily saying then that the federal statute would be no defense to those charges?

Mr. Ed Davis Noble Jr.: Absolutely, Mr. Justice White.

Justice Byron R. White: And that if they were convicted, the people convicted them couldn't be indicted under the federal statute for having interfered with these activities?

Mr. Ed Davis Noble Jr.: The statute speaks, the federal statute and which they allude to, 245 (b), specifically refers to force or threats of force in the following activities and if they do so, and if you go to the bottom statute then they maybe find or if there's imprisonment involved.

If --

Justice William H. Rehnquist: How about the policeman's threat to take the man to jail.

I mean, couldn't that qualify as a threat of force under the federal statute?

Justice Byron R. White: Put to jail rather than (Inaudible)

Mr. Ed Davis Noble Jr.: I wouldn't think that -- I would say that would be, Mr. Justice Rehnquist.

It would be a threat but not -- there was no force involved here.

The only thing that was affected here in the City of Vicksburg were the ongoing criminal processes.

Justice Potter Stewart: Even if they could be convicted, and maybe they could, depending of course on what the actual facts might be, that's not enough to justify removal as was pointed out in Peacock?

Mr. Ed Davis Noble Jr.: No, sir.

As a matter of --

Justice Potter Stewart: They pointed out that there was one of the remedies with the criminal -- with the federal criminal laws, as well as the federal civil law?

Mr. Ed Davis Noble Jr.: That was correct, Mr. Justice Stewart.

They have several remedies which they may take advantage of which you spoke too in your opinion, that is injunctive process, habeas perhaps damages.

Justice Potter Stewart: The criminal prosecution?

Mr. Ed Davis Noble Jr.: Right, perhaps, criminal prosecution and of course appeal throughout the state system and to this Court itself.

Chief Justice Warren E. Burger: Thank you, Mr. Noble.

Do you have anything further, Mr. Parker?

Rebuttal of Frank R. Parker

Mr. Frank R. Parker: Yes, Mr. Chief Justice, may it please the Court.

First of all, the indictment is contained on 142 and 143.

There is the boiler plate language with force and arms but that's not part of the factual recitation in the indictment.

The indictment simply charges them with promoting and encouraging an unlawful boycott, so as to prevent by black persons from trading or doing business.

But the testimony of Police Chief Marion R. Brown indicates that his notion of preventing black people from doing business is telling them that there's a boycott on.

For example, page 126 of the appendix, why was John Ferguson arrested?

He was actually participating in the boycott and in fact the beginning, he was very actively participating in it, that's the chief of police.

“The only thing I've seen him, I've actually seen him carry a picket sign.

I've seen him stopping people on the street and talking to them,” that's protected under the statute.

That according to the police chief was the basis for the arrests in this case, the same with the other petitioners as the evidence is in the appendix.

Now, the state maintains that a criminal statute, a federal criminal statute providing for equal civil rights cannot be a statute providing for equal civil rights under 1443 because it's a criminal statute.

It doesn't compare with the 1866 model.

The 1866 model, the original removal petition statute was a criminal statute.

In Section 2, it provided criminal penalties.

It was reenacted in 1870 as a removal statute and providing criminal penalties.

The model 1866 was a criminal statute.

A criminal statute can provide for equal civil rights.

Now, it is contended that the Fifth Circuit did not accept the petitioners' version of the facts, this is not true.

The Fifth Circuit did not resolve the factual conflict.

The Fifth Circuit did not accept respondents' version of the facts.

The Fifth Circuit did not reach the factual question at all.

Justice Byron R. White: Let's assume that the indictment or the charge is that someone killed somebody or broke in to some store or something -- broke into a store in the course of a demonstration, assume that's the charge.

Now, there's no conflict on its face between that charge and the federal statute?

Mr. Frank R. Parker: That's correct.

Justice Byron R. White: And -- but you would say it's nevertheless removable?

Mr. Frank R. Parker: If the fact show that the charge is spurious.

Justice Byron R. White: So, you would say that anytime at a hearing you can show that this is a completely fraudulent prosecution that it should be removed?

Mr. Frank R. Parker: That's right, if the prosecution is fraudulent.

Justice Byron R. White: You don't think that's contrary to Peacock?

Mr. Frank R. Parker: No, it's not contrary to Peacock at all.

This is discussed extensively by Chief Judge Tuttle of the Fifth Circuit in the Walker cases which are cited in the brief.

The statute in Rachel was not unconstitutional on its face and the charges were not unconstitutional on its face.

The charge was trespass and trespass under Georgia law is refusal to live the premises upon requested to do so by the manager.

There's no indication of racial motivation in the charges.

And it was only when the petitioners could prove that they were asked to leave for racial reasons that there was this racial motivation behind the charge that they could succeed.

The same thing here.

The evidence shows that there was racial motivation behind these charges.

That the sole and exclusive purpose of these charges was to suppress the boycott, suppress free speech activity protesting racial discrimination.

Now, the statute here does substitute a federal right for a state crime.

If a boycott, as the state maintains, is criminal under state law, and if it's criminal to urge people not to shop at these stores because of their racially discriminatory hiring policies and that directly conflicts with the federal right under the statute because the right protects any free speech activity protesting racial discrimination, the boycott was free speech activity protesting racial discrimination is covered by the statute and the statute therefore clearly and directly substitutes a federal right for a state crime.

Justice Potter Stewart: Is it true about the -- it's equally true, isn't it, about the civil statutes, the civil right statutes going back to the reconstruction days?

Mr. Frank R. Parker: What is the --

Justice Potter Stewart: Which were involved?

What you said about this criminal statute is equally true about the federal civil statutes?

Mr. Frank R. Parker: Yes.

Justice Potter Stewart: And yet we held -- the Court held, did it not, in the City of Greenwood case that that wasn't enough.

If there wasn't enough to protect the right, the statute had to confer the right?

Mr. Frank R. Parker: Well, the Court in Peacock, I believe the ruling, the holding of the Court was that those statutes invoked were not specifically statutes which were stated in terms of racial equality.

That those were statutes --

Justice Potter Stewart: Well, that's part of the holding but some of the statutes were?

Mr. Frank R. Parker: Yes, but those statutes, 1981 and 1971, were not statutes specifically protected the conduct and activity of the petitioners.

The petitioners where engaged in voter registration activity and that was not specifically protected by either 1981 or 1971.

It wasn't until Congress passed this statute, Section 245 (b), that this free speech activity protesting racial discrimination was specifically covered by a federal law providing for equal civil rights.

Justice Lewis F. Powell: Mr. Parker.

Chief Justice Warren E. Burger: Pursing --

Justice Lewis F. Powell: After you, Mr. Chief Justice.

Chief Justice Warren E. Burger: Pursuing Mr. Justice White's question to you, is it possible that in the removal hearing might turn into a miniature trial of the criminal charges to determine in the murder case or the break in -- a house break in, in order to determine the issues?

Mr. Frank R. Parker: Well, an evidentiary hearing as required by Rachel and the Court indicated that the plaintiffs or the petitioners did have an opportunity to prove that they were asked to leave the restaurant for racial reasons.

Now, the state probably would not have to prove that they were guilty beyond a reasonable doubt, but certainly I think that in the Fifth Circuit decisions sustain this that the state would have to establish the elements of the crime.

In other words, the state would, once the petitioners have shown and proven that they were engaged in the protected activity that the state --

Chief Justice Warren E. Burger: But the state would have to prove a prima facie case at the removal hearing?

Mr. Frank R. Parker: That's correct.

But they would have to establish the elements of defense that the petitioners were not arrested for unprotected -- for protected activity but they were arrested for unprotected activity and our contention is that the state hasn't met burden in this case.

Mr. Justice Powell.

Justice Lewis F. Powell: Mr. Parker, in responding to Mr. Justice White, you stated as I understood you, that if a defendant could show that the charged were fraudulent or brought in bad faith that he would be entitled to a removal.

If those showings could be made, he also would be entitled to an injunction, Younger would not preclude it, would it?

Mr. Frank R. Parker: That's correct, Mr. Justice.

Under certain circumstances, he would.

The civil rights removal statute is a narrower statute, applies only in cases of federal equal rights statutes providing for specific rights in terms of racial equality.

The injunctive relief would be a coordinate remedy.

But it's our contention that this coordinate remedy should not preempt the removal jurisdiction, that the removal jurisdiction should be allowed where it applies.

These remedies were passed approximately at the same time.

Justice Lewis F. Powell: You say you'd have alternative remedies?

Mr. Frank R. Parker: Well, the Court certainly in Peacock held that there were alternative remedies where the First Amendment rights, for example, were alleged to be violated.

But our contention here is that if removal applies, if Rachel applies in this particular circumstance, that removal should be allowed because Section 245 (b) is a federal statute providing of equal civil rights and does provide a right to the petitioners, not even to be prosecuted in the state court.

It provides a right to be free of any kind of interference from official sources with the exercise of protected rights.

Now, of course we did file a 1983 action, also in this case, but we're unable to get a temporary injunction which would have held the prosecutions in status quo.

So, the 1983 remedy was unavailing in this case, unavailing.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.