Professional Documents
Culture Documents
2d 639
Golden Frinks and George Kirby appeal from orders of the United States
District Court for the Eastern District of North Carolina, 333 F.Supp. 169,
remanding to the North Carolina courts prosecutions against them which they
had removed to the federal court pursuant to 28 U.S.C.A. Sec. 1443(1). We
think the district court correctly found that their petitions did not allege facts
sufficient to sustain removal, or to require a hearing on removability, and
affirm.
Frinks and Kirby are charged by the State of North Carolina with engaging in a
Frinks is charged also with inciting to riot in violation of N.C.G.S. Sec. 14288.2(d):
6 Any person who wilfully incites or urges another to engage in a riot, so that as a
(d)
result of such inciting or urging a riot occurs or a clear and present danger of a riot is
created, is guilty of a misdemeanor . . . .
7
Except for references to the inciting-to-riot charges against Frinks, the petitions
for removal are identical and in pertinent part are set out in Appendix A.
11
By way of summary, the petitions allege that Mr. Frinks and Mr. Kirby have
been engaged in lawful civil rights marches, demonstrations and boycotts; that
such activities have been peaceful and nonviolent; that even so the State has
attempted to punish the petitioners for their having exercised, or attempting to
exercise, rights and privileges secured by Title 2 of the 1964 Civil Rights Act;
and that for the purpose of chilling the exercise of such rights the State has
falsely charged petitioners with rioting in two business establishments which
are places of public accommodation within the meaning of 42 U.S.C.A. Sec.
2000a(b).
12
Petitioners do not admit that they were present on the premises of the two
business establishments, but allege that "if petitioners have ever been so
present," their conduct has been peaceful and not in violation of the laws of
North Carolina. Petitioners neither admit nor deny the charge contained in the
warrants that some 20 persons entered the business establishments and threw
merchandise on the floor and overturned merchandise racks in violation of N.C.
G.S. Sec. 14-288.2. Thus the defenses to the criminal charges, as alleged in the
petitions for removal, are that (a) these petitioners were not present at the
places of disturbance, or (b) if present, these petitioners were nonviolent and
did not participate in any riot that may have occurred.
13
We wholeheartedly agree with petitioners that they have a federal right not to
be prosecuted because of their race for peacefully seeking to enjoy public
accommodations. 42 U.S.C.A. Secs. 2000a(a) & 2000a-2(c); Hamm v. Rock
Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964); Georgia v. Rachel,
384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966). But we also agree with
the State that there is no federally protected right to engage in a riot.
16
The problem is simply a factual one. Has the State undertaken to persecute and
oppress these petitioners because of State antagonism to the federally protected
right of all persons to enjoy public accommodations, or has the State,
recognizing the supremacy of federal law, undertaken the prosecutions only to
protect the property and safety of its citizens from the danger of riot?
17
On
18 motion to remand, the federal court would be required in every case to hold a
hearing, which would amount to at least a preliminary trial of the motivations of the
state officers who arrested and charged the defendant, of the quality of the state
court or judge before whom the charges were filed and of the defendant's innocence
or guilt. And the federal court might, of course, be located hundreds of miles away
from the place where the charge was brought. This hearing could be followed either
by a full trial in the federal court, or by a remand order. Every remand order would
be appealable as of right to a United States Court of Appeals and, if affirmed there,
would then be reviewable by petition for a writ of certiorari in this Court. If the
remand order were eventually affirmed, there might, if the witnesses were still
available, finally be a trial in the state court, months or years after the original
charge was brought. If the remand order were eventually reversed, there might
finally be a trial in the federal court, also months or years after the original charge
was brought.
19
20
This case is controlled by Peacock rather than Rachel. Peacock, supra, 384 U.S.
at 828, 86 S.Ct. at 1812, held:
21
Under
Sec. 1443(1), the vindication of the defendant's federal rights is left to the
state courts except in the rare situations where it can be clearly predicted by reason
of the operation of a pervasive and explicit state . . .law that those rights will
inevitably be denied by the very act of bringing the defendant to trial in the state
court. [Emphasis added.]
22
Rachel represented direct confrontation between the 1964 Civil Rights Act and
the trespass laws of the State of Georgia. Georgia law made it a criminal
trespass offense to refuse to leave facilities of public accommodation when
asked to do so by the owner or person in charge. The federal law invalidated the
Georgia trespass statute, at least where the request to leave was invidiously
motivated, and substituted "a right for a crime." Hamm, supra, 379 U.S. at 314,
85 S.Ct. 384, 13 L.Ed.2d 300. Because the Georgia trespass law was void in an
invidious context, the federal rights of those charged with its violation could
have been denied by the mere institution of charges. As Hamm made clear, the
Civil Rights Act of 1964 protects persons who refuse to obey an order to leave
public accommodations, not only from conviction in state courts, but from
prosecution in those courts.
23
A hearing was justified in Rachel by the great probability that a federal right
would be denied if the prosecution were not removed. Such probability does
not exist here. The 1964 Civil Rights Act does not in any sense void the anti-
riot laws of North Carolina. If these petitioners' federal rights are in fact being
denied, the denial is not "manifest in a formal expression of state law." Rachel,
supra, 384 U.S. at 803, 86 S.Ct. at 1796.
24
25
26
Affirmed.
APPENDIX A
REMOVAL PETITION JURISDICTION
27
PARTIES
28
2. Petitioners . . . are Negro citizens of the United States and the State of North
Carolina.
29
31
32
6. On or about the 10th or 11th day of June, 1971, each of the petitioners was
arrested and charged under the North Carolina Anti-Riot Statute, see North
Carolina General Statute Sec. 14-288.2, with participation in a riot, and in the
case of petitioner Frinks, with the additional charge of inciting to riot.
33
34 Engaging in a riot on or about the 9th day of June, 1971 at the Piece Good Shops,
(a)
Azalea Shopping Center in Wilmington, North Carolina wherein it is alleged that
some twenty (20) persons did enter said business and throw merchandise on the
floor and overturn merchandise racks, all in violation of North Carolina General
Statute Sec. 14-288.2(b) (see Complaints and Warrants for Arrest attached as
Exhibits 1, 2 and 3 to Petition);
35 Engaging in a riot on or about the 9th day of June, 1971 at J. M. Fields, 3709
(b)
Oleander Drive, Wilmington, North Carolina wherein it is alleged that some twenty
(20) persons did enter said business and throw merchandise on the floor and
overturn merchandise racks, all in violation of North Carolina General Statute Sec.
14-288.2(b) (See Complaints and Warrants for Arrest attached as Exhibits 4, 5 and 6
to Petition);
36
(a) Urging some twenty persons to engage in a riot, to wit: a public disturbance
37
37
involving an assemblage of three or more persons at said Piece Goods Shop, it being
alleged that petitioner Frinks led said group of persons into said business and urged
the throwing of merchandise on the floor and the turning over of merchandise racks,
all in violation of North Carolina General Statute Sec. 14-288.2(d); (see Complaint
and Warrant for Arrest attached as Exhibit # 7 to Petition);
38 Urging some twenty persons to engage in a riot, to wit: a public disturbance
(b)
involving an assemblage of three or more persons at said J. M. Fields, it being
alleged that petitioner Frinks led said group of persons into said business and urged
the throwing of merchandise on the floor and the turning over of merchandise racks,
all in violation of North Carolina General Statute Sec. 14-288.2(d) (See Complaint
and Warrant for Arrest attached as Exhibit # 8 to Petition).
39
9. Petitioners have advocated and personally enjoyed the equal civil rights
granted to them by Section 2000a(a) of Title 42, United States Code, which
guarantees that "all persons shall be entitled to the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, and accommodations of
any place of public accommodation . . . without discrimination or segregation
on the ground of race . . . ."
40
10. The said Piece Goods Shop and J. M. Fields are public accommodations
within the meaning of Section 2000a(b) of Title 42, United States Code.
41
11. The presence of petitioners on the premises of the Piece Goods Shop or J.
M. Fields, if petitioners have ever been so present, has been peaceful and
without acts or actions in violation of the laws of the State of North Carolina
and accordingly is protected by Section 2000a(a) of Title 42, United States
Code.
42
43
enforce in the Courts of the State of North Carolina a right under a law
providing for the equal civil rights of citizens of the United States, and
accordingly are entitled to have their cases removed to the Courts of the United
States.
SOBELOFF, Senior Circuit Judge (dissenting):
44
The State of North Carolina has charged Golden Frinks and George Kirby, two
individuals who in the past had been active in peaceful civil rights
demonstrations, with engaging in riots at Piece Goods Shop and J. M. Fields in
Wilmington, North Carolina. Additionally, Frinks was charged with inciting the
riots.
45
The two men filed removal petitions under 28 U.S.C. Sec. 1443(1),1 alleging
that the prosecutions were an attempt by the state to punish them for having
exercised or attempted to exercise rights and privileges secured by Title II of
the 1964 Civil Rights Act.2 They deny being present at the stores at the time
alleged, and alternatively contend that if present, they were nonviolent and did
not engage in any riot.
46
Two diametrically opposed claims are presented. On the one hand, the State of
North Carolina maintained that the defendants are being prosecuted for entering
the two stores and tipping over clothing racks. On the other hand, Kirby and
Frinks deny these allegations of the state, and assert moreover that the charges
were "trumped up" in order to punish them for having exercised federally
protected rights.
47
The majority recognizes the petitioners' federal right not to be prosecuted for
seeking to enjoy "public accommodations."3 They point out additionally,
however, that there is no federally protected right to engage in a riot. The
difficulty in the instant case is that the real facts cannot be determined without
an evidentiary hearing.
48
The question here becomes the important one under 28 U.S.C. Sec. 1443(1)
which this court expressly left open in South Carolina v. Moore, 447 F.2d 1067
(4 Cir. 1971), "whether or not a district court is properly required to resolve
such a factual issue [as violence] when considering a removal petition, or
whether it may confine its view to the allegations of the state charge if they
unequivocally charge violent conduct * * *," supra, 447 F.2d at 1071, n. 9.
Today, this question is answered, but in a manner which accords inadvisable
and unnecessary deference to state prosecutions.
49
The majority would have a district court summarily dismiss a removal petition
without an evidentiary hearing whenever the state has alleged a crime of which
violence is an element. A petitioner is thereby denied the opportunity to
vindicate his contention that, by means of a bogus prosecution, the state is
attempting to mete out punishment for the exercise or attempted exercise of
rights secured by the public accommodations section of the Civil Rights Act of
1964. The state prosecutor is permitted to attach a convenient tag to a
defendant's conduct, and this labeling, rather than what the individual was
actually doing, becomes the test of removability. Such a result, according to the
majority, is dictated by Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16
L.Ed.2d 944 (1966).
50
51
52
53
The Supreme Court in Rachel established a two-pronged test for removal under
Section 1443(1), requiring that petitioners demonstrate "both that the right upon
which they rely is a 'right under any law providing for * * * equal civil rights,'
and that they are 'denied or cannot enforce' that right in the courts of [the
state]." 384 U.S. at 788, 86 S.Ct. at 1788. The first prong of this test is satisfied
since the public accommodations section of the Civil Rights Act of 1964
creates rights "under any law providing for * * * equal civil rights." Section
203(c) enjoins "any attempt to punish" persons for exercising these rights.
Hamm v. City of Rock Hill, 379 U.S. 306, 311, 85 S.Ct. 384, 389, 13 L.Ed.2d
300 (1964), has interpreted this section to include within its prohibition
prosecution in a state court. Hence, if the petitioners' allegations in this case are
found to be true and the state is indeed attempting to punish them for exercising
rights guaranteed by the public accommodations section, then there is a "denial
of equal civil rights," the two prongs of the Rachel test are satisfied, and
removal is in order.
54
basis for its prosecution, the removal petition will be denied and the case will
be remanded for trial in the state court.
55
56
It is true, as has been suggested, that the defendant may ultimately prevail in
the state courts, or that he has other federal remedies including direct review by
the Supreme Court or habeas corpus. But the burden of having to defend a
prosecution is in itself a denial of a right immunized by Section 203(c). Rachel,
supra, 384 U.S. at 780, 86 S.Ct. 1783, 16 L.Ed.2d 925.
57
The majority asserts a distinction between this case and Rachel in terms of
probability. "A hearing," my colleagues concede, "was justified in Rachel by the
great probability that a federal right would be denied if the prosecution were
not removed." [Majority Opinion at p. 642.] But they argue in the following
paragraph that such probability does not exist in the instant case:
59
The logic of the distinction adumbrated by the majority eludes me. If the state
59
60
Whenever the state prosecutes a person and he petitions for removal to the
federal district court, alleging that he is being prosecuted solely for having
peacefully exercised rights immunized by Section 203(c), the district court
should hold a hearing to determine the validity of the petitioner's claim. State
action cannot be shielded from scrutiny by a prosecutor's decision to choose
one rather than another appellation to denote an activity. Only by requiring
such an evidentiary hearing can we insure that protected activity will not be
punished by criminal prosecution.
61
Therefore I dissent.
Title II of the 1964 Civil Rights Act is commonly called the public
accommodations section.
4
Section 203(c) of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000a-2(c)
declares that "No person shall punish or attempt to punish any person for
exercising or attempting to exercise any right or privilege secured by section
2000a or 2000a-1 of this title."