Golden FRINKS et al., Appellants, v. STATE OF NORTH CAROLINA, Appellee; George KIRBY, Appellant, v. STATE OF NORTH CAROLINA, Appellee, 468 F.2d 639

CRAVEN, Circuit Judge: 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. § 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 riot in violation of N.C.G.S. § 14-288.2(a) & (b): § 14-288.2. Riot; inciting to riot; punishments, (

a) A riot is a public disturbance involving an assemblage of three or more persons which by disorderly and violent conduct, or the imminent threat of disorderly and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property. (

b) Any person who wilfully engages in a riot is guilty of a misdemeanor .... Frinks is charged also with inciting to riot in violation of N.C.G.S. § 14-288.-2(d): (

d) Any person who wilfully incites or urges another to engage in a riot, so that as a 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 .... The removal petitions rest on 28 U.S.C. A. § 1443(1), which provides as follows: § 1443. Civil rights cases Any of the following civil actions or criminal prosecutions, commenced in a State Court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof ... 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. 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. § 2000a(b).

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. § 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. 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. §§ 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. [N]o federal law confers an absolute right on private citizens — on civil rights advocates, on Negroes, or on anybody else — to obstruct a public street, to contribute to the delinquency of a minor, to drive an automobile without a license, or to bite a policeman. . . . [N]o federal law confers immunity from state prosecution on such charges. Greenwood v. Peacock, 384 U.S. 808, 826-827, 86 S.Ct. 1800, 1812, 16 L.Ed.2d 944 (1966). 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? Unfortunately, the facts are not ascertainable without a hearing — either in a federal or state court.

We agree with Judge Godbold that “In Peacock the Supreme Court has directed the federal courts away from making factual inquiries approaching that of trial,of the merits as an incident of determining removability.” Achtenberg v. Mississippi, 393 F.2d 468, 477 (5th Cir. 1968) (concurring in part and dissenting in part). The practical reasons for such direction are compelling. Mr.

Justice Stewart, writing for the Court in Peacock, envisioned what might result: On 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. Peacock, supra, 384 U.S. at 832-833, 86 S.Ct. at 1815. This case is controlled by Peacock rather than Rachel.

Peacock, supra, 384 U.S. at 828, 86 S.Ct. at 1812, held: Under § 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.] 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. 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. A white storekeeper may lawfully order Negro persons in his store to discontinue destruction of his property whether or not he is racially prejudiced. He may not, however, for racial reasons lawfully order nonviolent persons to leave.

As an exercise in probability prediction, we may confidently assert that there is a far greater probability that a trespass warrant will be flawed by a policy of invidious discrimination than that a riot warrant will be similarly invalidated. This is so because the riot warrant will be valid if violence (the essential element) occurred, whereas the trespass warrant may be void even though presence over the-protest of the owner (the essential element) is admitted. This is so, in turn, because peaceful presence is protected and violence is not.

Race, color, or creed may well be a sufficient defense to a charge of trespass, but are wholly irrelevant to a charge of rioting. If these petitioners “are being prosecuted on baseless charges solely because of their race, then there has been an outrageous denial of their federal rights, and the federal courts are far from powerless to redress the wrongs done to them.” Peacock, supra, 384 U.S. at 828, 86 S.Ct. at 1813.

But removal is not the remedy, see Peacock, supra at 828-830, 86 S.Ct. 1800, 16 L.Ed.2d 944, unless we can clearly predict from the operation of an explicit state law that federal rights will inevitably be denied them, and that we cannot do. Affirmed. APPENDIX A REMOVAL PETITION JURISDICTION 1. Jurisdiction is conferred on the United States District Court pursuant to the provisions of § 1443(1) of Title 28, United States Code, this being an áction in which petitioners allege that they are being denied a right under a law providing for equal rights, particularly § 2000a (

a) of Title 42, United States Code, and that they are denied or cannot enforce said equal rights in the Courts of the State of North Carolina. PARTIES 2. Petitioners . . . are Negro citizens of the United States and the State of North Carolina. 3. Respondent is the State of North Carolina. BASIS FOR REMOVAL 4.

Petitioners are members and participants in a coalition grouping of black citizens in the New Hanover County area of North Carolina known as the “Wilmington Movement.” The purpose of said movement was to seek the full enforcement and enjoyment of equal rights granted to black citizens of the United States by the Civil Rights Act, and in particular Titles II, IV and VII of the Civil Rights Act of 1964. 5. As a means of publicizing their grievances, the “Wilmington Movement”, and in particular each of the petitioners, has engaged in protest marches, demonstrations and boycotts.

All such activities have been peaceful and have specifically rejected violence to person or property as a protest tactic. All such protests have been within the ambit of protected free speech guaranteed to petitioners by the First Amendment to the Constitution of the United States. 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 § 14-288.2, with participation in a riot, and in the case of petitioner Frinks, with the additional charge of inciting to riot. 7.

Specifically, petitioners are charged with: (

a) Engaging in a riot on or about the 9th day of June, 1971 at the Piece Good Shops, 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 § 14-288.2(b) (see Complaints and Warrants for Arrest attached as Exhibits 1, 2 and 3 to Petition); (

b) Engaging in a riot on or about the 9th day of June, 1971 at J. M. Fields, 3709 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 § 14-288.2(b) (See Complaints and Warrants for Arrest attached as Exhibits 4, 5 and 6 to Petition); 8. In addition, petitioner Frinks is charged with: (

a) Urging some twenty persons to engage in a riot, to wit: a.public disturbance 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 § 14-288.2'(d); (see Complaint and Warrant for Arrest attached as Exhibit # 7 to Petition) ; (

b) Urging some twenty persons to engage in a riot, to wit: a public disturbance 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 § 14-288.2(d) (See Complaint and Warrant for Arrest attached as Exhibit # 8 to Petition). 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 . . . .” 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. 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. 12. The warrants for arrest and attempted prosecutions of petitioners as heretofore alleged by respondent State of North Carolina is an attempt to punish petitioners for the exercise or attempt to exercise a right and privilege secured by

Section 201 of Title II of the 1964 Civil Rights Act, 42 United States Code

Section 2000a(a), and accordingly is specifically prohibited by

Section 203 of Title II of the 1964 Civil Rights Act, 42 U.S.C. § 2000a-2(c). 13. Respondent has and is using unconstitutional statutes or otherwise constitutional statutes in an unconstitutional manner to deprive black citizens of the United States of rights specifically granted to them by the Civil Rights Act of the Congress of the United States.

Prosecutions under said statutes are forbidden and accordingly said black citizens, including petitioners, cannot 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.