Seitz, Van Dusen, Circuit Judges, and Masterson, District Judge.
These consolidated appeals challenge orders of the district court granting the State's motions to remand to the Court of Common Pleas of Allegheny County, Pennsylvania, state criminal prosecutions against petitioners which were previously removed to the district court pursuant to 28 U.S.C. § 1443(1). We are thus presented with the delicate problem of determining whether petitioners' allegations, if proved, bring them within the ambit of legal principles which entitle them to have the charges determined in the first instance in a federal rather than a state court.
In No. 19,244, petitioner was charged under Pennsylvania law with aggravated assault and battery, assault and battery, participation in an unlawful assembly, and inciting to riot. In the remaining cases, petitioners were charged only with inciting to riot. All of these charges arose out of petitioners' actions during public demonstrations on August 26, 1969 in support of an attempt by the Black Construction Coalition to secure equal employment opportunities in the construction industry in the City of Pittsburgh.
For purposes of this appeal, the allegations in the various petitions for removal may be considered as identical. Petitioners allege that they were lawfully and peaceably engaged in activities for the purpose of enforcing federally protected equal civil rights, that the sole purpose of their arrests was to deny them these rights, and that they have been denied or cannot enforce federally protected equal civil rights in the state courts of Pennsylvania.
Specifically, petitioners claim that pursuant to 28 U.S.C. § 1443(1) they must be afforded the protection of a federal forum in order to secure their rights guaranteed by 42 U.S.C. §§ 1981,*fn1 1983, 2000 d, 2000e-2(a), (c) & (d), and 18 U.S.C. § 245(b).*fn2 They assert that this protection is necessary since we should be able to clearly predict that these rights will be denied in the state courts of Pennsylvania. They reason that we should be able to make this prediction since the mere pendency of the prosecutions denies them a federal right under 18 U.S.C. § 245(b), which they claim immunizes them from prosecution for the activities they were engaged in, and further, they will be denied their rights under 42 U.S.C. § 1981 since, according to Pennsylvania law, they will be tried before a jury which will be selected pursuant to 17 P.S. § 1276 which they claim is an unconstitutional statute.*fn3
After a review of the relevant state records and argument upon the legal sufficiency of the petitions for removal, the district court held that petitioners were not entitled to removal under any state of facts which could be proved in support of their claims. The court reasoned that since the petitioners were charged with conduct which was not protected by federal law, and since the challenged jury selection statute did not, on its face, discriminate in terms of race, petitioners did not allege a proper basis for removal.
28 U.S.C. § 1443(1) permits removal to the federal district court of criminal prosecutions commenced in a state court:
"against any person who is denied or cannot enforce in the courts of such State a right under any law providing for equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof."
To justify removal under this section, petitioners must demonstrate that (1) they rely upon a specific civil right stated in terms of racial equality, and (2) a clear prediction can be made that the right relied upon will be denied or not be enforceable in the state court. Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966); City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966).
Petitioners meet the first requirement by their reliance on 42 U.S.C. § 1981 and 18 U.S.C. § 245(b), both of which specify civil rights stated in terms of racial equality.
In claimed fulfillment of the second requirement, petitioners assert that 18 U.S.C. § 245(b) in effect immunizes them from prosecution for their activities. Petitioners concede that there is no statute which specifically immunizes them from prosecution. They argue instead that since Congress made it a crime to interfere with those who attempt to assert their rights under Section 245(b) it follows that one who attempts to secure these rights is immune from prosecution for acts within the attempt. Petitioners assert that any other view of the statute would present an anomaly, for Congress would be deemed to have made it a crime to stop a criminal from acting. Petitioners argue that since they are immune from prosecution, any proceeding in the state court will necessarily deny them their rights protected by this immunity. They conclude that the second requirement for removal is met and they should therefore be permitted to remove the state criminal prosecutions to federal court where an evidentiary hearing should be conducted to determine whether they were acting lawfully and whether their arrests and prosecutions were means used to deny them their rights under Section 245(b). Our analysis commences with an examination of the Supreme Court precedents.
In Georgia v. Rachel, supra, petitioners sought to remove state trespass prosecutions arising out of their attempts to seek service at restaurants open to the public. The statute under which they were indicted made it a crime to refuse to leave premises of another when requested to do so. Petitioners alleged that they refused to leave public accommodations when, solely for racial reasons, they were ordered to do so; therefore, they would be brought to trial solely as a result of peaceful attempts to exercise their federal rights of equal access to service at places of public accommodation. The first requirement for removal was satisfied by 42 U.S.C. § 2000a(a), which granted petitioners the equal access they sought.
In finding the second requirement for removal satisfied, the Court held that it was not necessary to establish that a denial of equal civil rights would stem from a legislative enactment or constitutional provision of the state. It was deemed sufficient if an equivalent basis could be shown for an equally firm prediction that the petitioners would be denied equal civil rights in the state courts. The Court was able to make the required prediction since 42 U.S.C. § 2000a-2 prohibited attempts to punish any person for attempts to exercise rights of equal access to service at public accommodations granted by 42 U.S.C. § 2000a(a). Two years previously, in Hamm v. City of Rock Hill, 379 U.S. 306, 85 S. Ct. 384, 13 L. Ed. 2d 300 (1964), the Court had held that 42 U.S.C. § 2000a-2 prohibits prosecution of any person seeking service in a covered establishment because of his race or color. Hence, in Rachel, if the allegations in the removal petition were true, petitioners were immune from trespass prosecutions since they had a right not to be brought to trial because of their alleged activities. In the narrow circumstances of that case, any proceeding in the state court would deny the ...