City of Greenwood v. Peacock/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN and Mr. Justice FORTAS concur, dissenting.

These state court defendants who seek the protection of the federal court were civil rights workers in Mississippi. Some were affiliated with the Student Non-Violent Coordinating Committee engaged in getting Negroes registered as voters. They were charged in the state courts with obstructing the public streets. Other defendants were civil rights workers affiliated with the Council of Federated Organizations which aims to achieve full and complete integration of Negroes into the political and economic life of Mississippi. Some alleged that, while peacefully picketing, they were arrested and charged with assault and battery or interfering with an officer. Others were charged with illegal operation of motor vehicles, or for contributing to the delinquency of a minor or parading without a permit. Some were charged with disturbing the peace or inciting a riot.

All sought removal, some alleging in their motions that the state prosecution was part and parcel of Mississippi's policy of racial segregation. Others alleged that they were wholly innocent, the state prosecutions being for the sole purpose of harassing them and of punishing them for exercising their constitutional rights to protest the conditions of racial discrimination and segregation. In all these cases the District Court remanded to the state courts. The Court of Appeals reversed (347 F.2d 679; 347 F.2d 986) holding that the allegations were sufficient to make out a case for removal and that hearings on the truth of the allegations were required.

I agree with that result. As I will show, the federal regime was designed from the beginning to afford some protection against local passions and prejudices by the important pretrial federal remedy of removal; and the civil rights legislation with which we deal supports the mandates of the Court of Appeals.

The Federal District Courts were created by the First Congress (1 Stat. 73) which designated a few heads of jurisdiction for the District Courts (§ 9) and for the Circuit Courts (§ 11) some being concurrent with those of the state courts, others being exclusive. These categories of jurisdiction-later enlarged-were largely for the benefit of plaintiffs. There was concern that the rivalries, jealousies, and animosities among the States made necessary and appropriate the creation of a dual system of courts.

Lack of trust in some of the state courts for execution of federal laws was reflected in the First Congress that established the dual system. Thus Madison said:

' * *  * a review of the constitution of the courts in many      States will satisfy us that they cannot be trusted with the      execution of the Federal laws. In some of the States, it is     true, they might, and would be safe and proper organs of such      a jurisdiction; but in others they are so dependent on State      Legislatures, that to make the Federal laws dependent on      them, would throw us back into all the embarrassments which characterized our former situation. In     Connecticut the Judges are appointed annually by the      Legislature and the Legislature is itself the last resort in      civil cases.' 1 Ann.Cong. 813.

Though federal question jurisdiction was originally limited to a few classes of cases, the creation of diversity jurisdiction (§ 11, 1 Stat. 78) was a significant manifestation of this same feeling. As Chief Justice Marshall said in Bank of United States v. Deveaux, 5 Cranch 61, 87, 3 L.Ed. 38:

'The judicial department was introduced into the American     constitution under impressions, and with views, which are too      apparent not to be perceived by all. However true the fact     may be, that the tribunals of the states will administer      justice as impartially as those of the nation, to parties of      every description, it is not less true that the constitution      itself either entertains apprehensions on this subject, or      views with such indulgence the possible fears and      apprehensions of suitors, that it has established national      tribunals for the decision of controversies between aliens      and a citizen, or between citizens of different states.'

And see Martin v. Hunter's Lessee, 1 Wheat. 304, 347, 4 L.Ed. 97.

The alternative-the one India took-was to let the state courts be the arbiters of federal as well as state rights with ultimate review in the Federal Supreme Court. But the federal court system was the choice we made and those courts have functioned throughout our history. In the years since 1789, the jurisdiction of the federal courts where federal rights are in issue has been steadily expanded (see Hart & Wechsler, The Federal Courts and the Federal System 727-733 (1953)) particularly with the creation of a general 'federal question' jurisdiction in 1875. 18 Stat. 470.

While the federal courts were for the most part custodians of rights asserted by plaintiffs, from the very beginning they were also the haven of a restricted group of defendants as well. I refer to § 12 of the Judiciary Act of 1789, 1 Stat. 79, which permitted removal of cases from a state court to a federal court on the ground of diversity of citizenship. Thus from the very start we have had a removal jurisdiction for the protection of defendants on a partial parity with federal jurisdiction for protection of plaintiffs.

The power of a defendant to remove cases from a state court to a federal court was not greatly enlarged until passage of the first Civil Rights Act, § 3 of which provided:

' * *  * the district courts of the United States, within their      respective districts, shall have, exclusively of the courts      of the several States, cognizance of all crimes and offences      committed against the provisions of this act, and also,      concurrently with the circuit courts of the United States, of      all causes, civil and criminal, affecting persons who are      denied or cannot enforce in the courts or judicial tribunals      of the State or locality where they may be any of the rights      secured to them by the first section of this act; and if any      suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against      any such person, for any cause whatsoever *  *  * such      defendant shall have the right to remove such cause for trial      to the proper district or circuit court in the manner      prescribed by the 'Act relating to habeas corpus and      regulating judicial proceedings in certain cases,' approved      March three, eighteen hundred and sixty-three, and all acts      amendatory thereof. * *  * ' (Emphasis added.)

With the coming of the Civil War it became plain that some state courts might be instruments for the destruction through harassment of guaranteed federal civil rights. We have seen this demonstrated in the flow of cases coming this way. But the minorities who are the subject of repression are not only those who espouse the cause of racial equality. Jehovah's Witnesses in many parts of the country have likewise felt the brunt of majoritarian control through state criminal administration. Before them were the labor union organizers. Before them were the Orientals. It is in this setting that the removal jurisdiction must be considered.

The removal laws passed from time to time have responded to two main concerns: First, a federal fact-finding forum is often indispensable to the effective enforcement of those guarantees against local action. The federal guarantee turns ordinarily upon contested issues of fact. Those rights, therefore, will be of only academic value in many areas of the country unless the facts are objectively found. Secondly, swift enforcement of the federal right is imperative if the guarantees are to survive and not be slowly strangled by long, drawn-out, costly, cumbersome proceedings which the Congress feared might result in some state courts. The delays of state criminal process, the perilous vicissitudes of litigation in the state courts, the onerous burdens on the poor and the indigent who usually espouse unpopular causes-these threaten to engulf the federal guarantees. It is in that light that 28 U.S.C. § 1443(1) should be read and construed.

The critical words, so far as the present cases are concerned, are 'denied or cannot enforce in the courts or judicial tribunals' of the State or locality where they may be those rights which, in the most recent version of the removal statute, are characterized as those secured by 'any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.'

It is difficult to discern whether the Court ascribes different meanings to the words 'is denied' and 'cannot enforce' as used in the statute. In my view, it is essential that these two aspects of § 1443(1) be distinguished. The words 'is denied' refer to a present deprivation of rights while the language 'cannot enforce' has reference to an anticipated state court frustration of equal civil rights. Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667, and subsequent decisions of this Court which the majority discusees, were concerned with claims of the 'cannot enforce' variety. The Court dealt, in those cases, with the issue of unequal administration of justice in the process of jury selection. The concern was that removal might be permitted on merely a speculation that the state court would not, in the future, discharge its obligation to follow the 'law of the land.' Whatever the correctness of those decisions as to the 'cannot enforce' clause, they have no application whatever to a claim of a present denial of equal civil rights.

A defendant 'is denied' his federal right when 'disorderly conduct' statutes, 'breach of the peace' ordinances. and the like are used as the instrument to suppress his promotion of civil rights. We know that such laws are sometimes used as a club against civil rights workers. Senator Dodd who was the floor manager for that part of the Civil Rights Act of 1964 which restored the right of appeal from an order remanding a removed case (§ 901, 78 Stat. 266, 28 U.S.C. § 1447(d) (1964 ed.)) stated:

'I think cases to be tried in State courts in communities     where there is a pervasive hostility to civil rights, and      cases involving efforts to use the court process as a means      of intimidation, ought to be removable under this section.'

The examples are numerous. First is the case of prosecution under a law which is valid on its face but applied discriminatorily. Second is a prosecution under, say, a trespass law for conduct which is privileged under federal law. Third is an unwarranted charge brought against a civil rights worker to intimidate him for asserting those rights, or to suppress or discourage their promotion. The present charges are initiated by prosecutors for the purpose, defendants allege, of deterring or punishing the exercise of equal civil rights. The Court of Appeals said: of equal civil rights through the unconstitutional     application of a statute in situations which are not a part      of the state judicial system but which, on the contrary,      arise in the administration of a statute in the arresting and      charging process.' 347 F.2d 679, 684. (Emphasis added.)

I agree with that conclusion.

There are two ways which § 1443(1) may be read, either of which leads to the conclusion that these cases are covered by the 'is denied' clause. As Judge Sobeloff said dissenting in Baines v. City of Danville, 4 Cir., 357 F.2d 756, 778, the clause in question may be paraphrased in either of the following ways:

'Removal is permissible by:

'(i) any person who is denied or cannot enforce in the     courts of such State a right under any law *  *  *. 'or

'(ii) any person who is denied or cannot enforce in the     courts of such State a right under any law *  *  * .'

If the latter construction is taken, a right 'is denied' by state action at any time-before, as well as during, a trial. I agree with Judge Sobeloff that this reading of the provisions is more in keeping with the spirit of 1866, for the remedies given were broad and sweeping:

'If a Negro's rights were denied by the actions of such state     officer, the aggrieved party was permitted to have      vindication in the federal court; either by filing an      original claim or, if a prosecution had already been      commenced against him, by removing the case to the federal      forum.' Id., at 781.

Yet even if the 'is denied' clause is read more restrictively, the present cases constitute denials of federal civil rights 'in the courts' of the offending State within the meaning of § 1443(1), for the local judicial machinery is implicated even prior to actual trial by issuance of a warrant or summons, by commitment of the prisoner, or by accepting and filing the information or indictment. Initiation of an unwarranted judicial proceeding to suppress or punish the assertion of federal civil rights makes out a case of civil rights 'denied' within the meaning of § 1443(1). Prosecution for a federally protected act is punishment for that act. The cost of proceeding court by court until the federal right is vindicated is great. Restraint of liberty may be present; the need to post bonds may be present; the hire of a lawyer may be considerable; the gantlet of state court proceedings may entail destruction of a federal right through unsympathetic and adverse fact-findings that are in effect unreviewable. The presence of an unresolved criminal charge may hang over the head of a defendant for years.

In early 1964, for example, the Supreme Court of Mississippi affirmed convictions in harassment prosecutions arising out of the May 1961 Freedom Rides. See Thomas v. State, 252 Miss. 527, 160 So.2d 657; Farmer v. State, Miss., 161 So.2d 159; Knight v. State, 248 Miss. 850, 161 So.2d 521. More than another year was to pass before this Court reached and reversed those convictions. Thomas v. Mississippi, 380 U.S. 524, 85 S.Ct. 1327, 14 L.Ed.2d 265 (1965).

Continuance of an illegal local prosecution, like the initiation of a new one, can have a chilling effect on a federal guarantee of civil rights. We said in NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, respecting some of these federal rights, that '(t)he threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.' In a First Amendment context, we said: 'By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.' Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22. The latter case was a suit to enjoin a state prosecution. The present cases are close kin. For removal, if allowed, is equivalent to a plea in bar granted by a federal court to protect a federal right.

The threshold question-whether initiation of the state prosecution has 'denied' a federal right-is resolvable by the federal court on a hearing on the motion to remove. As noted, it is in substance a plea in bar to the prosecution, a plea grounded on federal law. If the motion is granted, the removed case is concluded at that stage, as a case of misuse of a state prosecution has been made out. Cf. O'Campo v. Hardisty, 9 Cir., 262 F.2d 621; De Busk v. Harvin, 5 Cir., 212 F.2d 143. In other words, the result of removal is not the transfer of the trial from the state to the federal courts in this type of case. If after hearing it does not appear that the state prosecution is being used to deny federal rights, the case is remanded for trial in the state courts. 28 U.S.C. § 1447(c) (1964 ed.). But the removal statute meanwhile serves a protective function. Filing of the petition removes the case and automatically stays further proceedings in the state court. 28 U.S.C. § 1446(e) (1964 ed.) Moreover, if the defendant is confined, the removal judge must, without awaiting a hearing, issue a writ to transfer the prisoner to federal custody, 28 U.S.C. § 1446(f) (1964 ed.), and he may then enlarge him on bail.

The Court holds in Rachel that a hearing must be held as to whether, in the particular case, the trespass prosecution constitutes a denial of equal civil rights. Inexplicably, no such hearing is to be held in the present cases. For reasons not clear, a baseless prosecution, designed to punish and deter the exercise of such federally protected rights as voting, is not seen by the majority to constitute a denial of equal civil rights. This seems to me to overlook two very important federal statutes. The first, 42 U.S.C. § 1981 (1964 ed.) (the present version of § 1 of the Civil Rights Act of 1866 to which the original removal statute referred), provides:

'All persons within the jurisdiction of the United States     shall have the same right in every State *  *  * to the full      and equal benefit of all laws and proceedings for the      security of persons and property as is enjoyed by white      citizens, and shall be subject to like punishment, pains,      penalties, taxes, licenses, and exactions of every kind, and      to no other.'

The other, § 11(b) of the Voting Rights Act of 1965, 79 Stat. 443, 42 U.S.C. § 1973i(b) (1964 ed., Supp. I), provides:

'No person, whether acting under color of law or otherwise,     shall intimidate, threaten, or coerce, or attempt to      intimidate, threaten, or coerce any person for voting or      attempting to vote, or *  *  * urging or aiding any person to      vote or attempt to vote *  *  * .' Those sections make clear beyond debate that, if the defendants' allegations are true, these state prosecutions themselves constitute a denial of 'a right under any law providing for the equal civil rights of citizens.'

Defendants also allege that they 'cannot enforce' in the courts of Greenwood, the locality in which their cases are to be tried, their equal civil rights. This, unlike a claim of present denial of rights, rests on prediction of the future performance of the state courts; as such, it admittedly falls within the Rives-Powers doctrine. I agree with the majority that, in providing for appeal of remand orders in civil rights removal cases, Congress meant for us to reconsider that line of cases. Unlike the majority, however, I believe that those cases, to the extent that they limit removal to instances where the inability to enforce equal civil rights springs from a state statute or constitutional provision compelling the forbidden discrimination, should not be followed. That construction of § 1443(1) resulted, I think, from a misreading of the removal provisions of the Act of 1866.

I think that the words 'cannot enforce' should be construed in the spirit of 1866. Senator Lane speaking for the first Civil Rights Act said:

'The State courts already have jurisdiction of every single     question that we propose to give to the courts of the United      States. Why then the necessity of passing the law? Simply     because we fear the execution of these laws if left to the      State courts. That is the necessity for this provision.'

Senator Trumbull, who was the Chairman of the Judiciary Committee and who managed the bill on the floor, many times reflected the same view. He stated that the person discriminated against 'should have authority to go into the Federal courts in all cases where a custom prevails in a State, or where there is a statute-law of the State discriminating against him.' Cong.Globe, 39th Cong., 1st Sess., 1759.

It was not the existence of a statute, he said, any more than the existence of a custom discriminating against the person that would authorize removal, but whether, in either case, it was probable that the state court would fail adequately to enforce the federal guarantees. Ibid.

The Black Codes were not the only target of this law. Vagrancy laws were another-laws fair on their face which were enforced so as to reduce free men to slaves 'in punishment of crimes of the slightest magnitude' (Id., at 1123), laws which declare men 'vagrants because they have no homes and because they have no employment' in order 'to retain them still in a state of real servitude.' Id., at 1151.

In my view, § 1443(1) requires the federal court to decide whether the defendant's allegation (that the state court will not fairly enforce his equal rights) is true. If the defendant is unable to demonstrate this inability to enforce his rights, the case is remanded to the state court. But if the federal court is persuaded that the state court indeed will not make a good-faith effort to apply the paramount federal law pertaining to 'equal civil rights,' then the federal court must accept the removal and try the case on the merits.

Such removal under the 'cannot enforce' clause would occur only in the unusual case. The courts of the States generally try conscientiously to apply the law of the land. To be sure, state court judges have on occasion taken a different view of the law than that which this Court ultimately announced. But these honest differences of opinion are not the sort of recalcitrance which the 'cannot enforce' clause contemplates. What Congress feared was the exceptional situation. It realized that considerable damage could be done by even a single court which harbored such hostility toward federally protected civil rights as to render it unable to meet its responsibilities. The 'cannot enforce' clause is directed to that rare case.

Execution of the legislative mandate calls for particular sensitivity on the part of federal district judges; but the delicacy of the task surely does not warrant refusal to attempt it. I am confident that the federal district judges would exercise care and good judgment in passing on 'cannot enforce' claims. A district judge could not lightly assume that the state court would shirk its responsibilities, and should remand the case to the state court unless it appeared by clear and convincing evidence that the allegations of an inability to enforce equal civil rights were true. Cf. 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, 854-863, 911-912 (1965). A requirement that defendants seeking removal demonstrate a basis for 'firm prediction' of inability to enforce equal civil rights in the state court is the only necessary consequence of the revision of 1874 which silently deleted the provision for post-trial removal from the statute. In this way, the legitimate interests of federalism which Rives sought to protect would be respected without emasculating this statute.

The Court takes considerable comfort from the availability to defendants of numerous other federal remedies, such as direct review in this Court, federal habeas corpus, civil actions under 42 U.S.C. § 1983 (1964 ed.), and even federal criminal prosecutions. But it is relevant to note when these alternative remedies were conferred. The extension of the habeas corpus remedy to state prisoners was enacted in 1867 by the Thirty-ninth Congress, the same body which enacted the removal statute we here consider. 14 Stat. 385. The criminal statutes involved in our recent decisions in United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267, and United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239, were first enacted in 1866 and 1870. 14 Stat. 27; 16 Stat. 141, 144. The civil remedy provided by 42 U.S.C. § 1983 was enacted in 1871. 17 Stat. 13. If any inference is to be drawn from the existence of these coordinate remedies, it is that Congress was concerned, at the time this removal statute was passed, to protect from state court denial the equal civil rights of United States citizens. Rather than take comfort from the broad array of possible remedies, we should take instruction from it.

Moreover, the Court's many rhetorical questions respecting implementation of removal, if it were allowed, are answered in State of Tennessee v. Davis, 100 U.S. 257, 271-272, 25 L.Ed. 648, a case decided the same day as Rives:

'The imaginary difficulties and incongruities supposed to be     in the way of trying in the Circuit Court an indictment for      an alleged offence against the peace and dignity of a State,      if they were real, would be for the consideration of      Congress. But they are unreal. While it is true there is     neither in sect. 643, nor in the act of which it is a     re-enactment, any mode of procedure in the trial of a removed      case prescribed, except that it is ordered (that) the cause      when removed shall proceed as a cause originally commenced in      that court, yet the mode of trial is sufficiently obvious. The circuit courts of the United States have all the     appliances which are needed for the trial of any criminal      case. They adopt and apply the laws of the State in civil     cases, and there is no more difficulty in administering the      State's criminal law. They are not foreign courts. The     Constitution has made them courts within the States to      administer the laws of the States in certain cases; and, so      long as they keep within the jurisdiction assigned to them,      their general powers are adequate to the trial of any case. The supposed anomaly of prosecuting offenders against the     peace and dignity of a State, in tribunals of the general      government, grows entirely out of the division of powers      between that government and the government of a State; that is, a division of sovereignty over      certain matters. When this is understood (and it is time it     should be), it will not appear strange that, even in cases of      criminal prosecutions for alleged offences against a State,      in which arises a defence under United States law, the      general government should take cognizance of the case and try      it in its own courts, according to its own forms of      proceeding.' (Emphasis added.)

The federal court in a removal case plainly must act with restraint. But to deny relief in the cases now before us is, in view of the allegations made, to aggravate a wrong by compelling these defendants to suffer the risk of an unwarranted trial and by allowing them to be held under improper charges and in prison, if the State desires, for an extended period pending trial. The risk that the state courts will not promptly dismiss the prosecutions was the congressional fear. The Court Defeats that purpose by giving a narrow, cramped meaning to § 1443(1). These defendants' federal civil rights may, of course, ultimately be vindicated if they persevere, live long enough, and have the patience and the funds to carry their cases for some years through the state courts to this Court. But it was precisely that burden that Congress undertook to take off the backs of this persecuted minority and all who espouse the cause of their equality.