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City of Chester v. Anderson

May 10, 1965

CITY OF CHESTER
v.
WILLIAM ANDERSON ET AL., APPELLANTS. COMMONWEALTH OF PENNSYLVANIA, V. WILLIAM ANDERSON ET AL., APPELLANTS.



Before McLAUGHLIN, STALEY and SMITH, Circuit Judges.

Per Curiam.

These cases concern petitions for removal based on alleged violations of civil rights under 28 U.S.C. § 1443(1) and (2)*fn1 In this court appellants abandoned their theory that "by reason of public hostility, precipitous trial and other circumstances attending the state prosecutions, defendants could not obtain a fair trial in the state courts."

Appellants' claim under § 1443(2) is without foundation on its face. As stated in People of State of New York v. Galamison, 342 F.2d 255, 264 (2 Cir. 1965), cert. den., 380 U.S. 977, 85 S. Ct. 1342, 14 L. Ed. 2d 272, April 26, 1965.

"A private person claiming the benefit of § 1443(2) * * * must point to some law that directs or encourages him to act in a certain manner, not merely to a generalized constitutional provision that will give him a defense or to an equally general statute that may impose civil or criminal liability on persons interfering with him."

Admittedly appellants cannot come within § 1443(1) unless they have been denied or cannot enforce their alleged "federally protected equal civil rights in the state courts * * *." No showing has been made by appellants to that effect. Galamison, supra, pp. 266, 267; Rachel v. State of Georgia, 342 F.2d 336, 340 (5 Cir.1965).

The order of remand will be affirmed.

On Petition for Rehearing

Before BIGGS, Chief Judge, and McLAUGHLIN, KALODNER, STALEY, GANEY, SMITH and FREEDMAN, Circuit Judges.

Per Curiam.

Rachel v. State of Georgia, 342 F.2d 336 (5 Cir. 1965), petition for certiorari filed 33 U.S.L.W. 3376 (5/15/65), was cited in our opinion in this case because there a claim was stated which was properly removable under Section 1443(1). In Rachel the petitioners were allegedly engaged in activities specifically protected by the 1964 Civil Rights Act and so within a law providing for equal civil rights under the removal statute. People of State of New York v. Galamison, 2 Cir., 342 F.2d 255, 268, cert. den. 380 U.S. 977, 85 S. Ct. 1342, 14 L. Ed. 2d 272 (1965); see also Peacock v. City of Greenwood, Mississippi, 5 Cir. 1965, 347 F.2d 679.

In the appeals before us appellants assert that the First Amendment, protecting freedom of speech, is a law covering equal civil rights. They therefore contend that prosecutions resulting from their alleged exercise of that Constitutional guarantee are removable under Section 1443. Galamison does soundly hold removal in these circumstances is improper under Section 1443 (2). Galamison also plainly and rightly states that removal sought on the basis of freedom of speech is not within the "* * * laws providing for 'equal' civil rights to which § 1443 is confined. * * * Congress thus recognized the existence of a special body of laws providing for equal rights distinguishable from the universal protections of the Constitution. It was these equal rights laws, which had been referred to in the removal section as enacted in 1866 and were carried forward into the Revised Statutes, that furnished a basis for removal." Galamison, supra, 342 F.2d pp. 266-268. Nothing now presented on behalf of appellants validly controverts this. See also Peacock v. City of Greenwood, Mississippi, supra.

On the question involved Galamison stands strong and straight as before. The effect if any of Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965) on Douglas v. City of Jeannette, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324 (1943) is here irrelevant.

The petition for rehearing is without merit and ...


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