Full opinion text
COLEMAN, Circuit Judge: This is a case to which we must apply the provisions of Title I of the Civil Rights Act of 1968, 18 U.S.C. § 245, and the teachings of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). The appellants were charged in state courts with a variety of misdemeanors such as reckless driving, resisting arrest, interfering with an officer, and the like. The offenses allegedly occurred in Rankin County, the arrests were made in that county, and the charges were brought in that county. Previously, on the same day, the appellants had participated in Simpson County in a peaceable march in support of a “boycott” directed against alleged racial discrimination. They were neither arrested nor charged with an offense in that county. They sought to remove their cases to the United States District Court. After an extensive evidentiary hearing the District Court found as a fact that as to the pending state charges the parties had not been denied a right guaranteed by the Constitution of the United States and that there was nothing to indicate that they could not receive a fair and impartial trial in the state courts. These cases were accordingly remanded and this appeal followed. Considering the credibility choices which are left to the trier of the fact, the findings below are supported by the evidence. Therefore, the judgment remanding the cases for trial in the state courts is affirmed. Very few, if any, of the appellants were residents of either Simpson or Rankin County. Most of them were students at Tougaloo College, near Jackson. Menden-hall, the county seat of Simpson County, is about forty-five miles southeast of Jackson, on U. S. Highway 49. The Mendenhall boycott, with its accompanying marches or demonstrations, had been going on for about a month. The students had been commuting back and forth to lend their assistance. All of the appellants but three were arrested on U. S. Highway 49 while returning from Mendenhall to Jackson. The remaining three were arrested several hours later at the Rankin County Jail in Brandon after they had gone there of their own accord at night, after visiting hours, armed with a shotgun, two rifles, and a pistol. We consider first the case of those arrested on the highway. Douglas O. Baldwin, called by the appellants as an adverse witness, was the sole arresting officer. Baldwin is a Patrolman with the Mississippi State Highway Patrol. He testified that he was not in Mendenhall on the day of the later arrests. Prior to the arrests he knew nothing of the identity of the parties. Specifically, he stated as follows: “When I came from supper that night I got behind two vans. One was a Dodge van, and the front van was weaving in and out all over the road and I got in between them. The front van was making about 45 or 50 miles an hour, and a car was passing us, we were in a four lane, we were in the outside lane. And this car passed us on the inside lane and he liked (sic) to have hit the car and I stopped him [Huemmer] and got him out, and I didn’t know he wasn’t the only one in the truck.” The Trial Judge then asked Officer Baldwin how many persons were in the van and Baldwin replied: “Twenty. When I got him out and got him back in my car I saw two Negro boys in the back of it [the van] looking out the back window and I didn’t think nothing (sic) about it then, but one of them got out of the truck and started coming back toward my car and I got out of my car and told him to get back in because I was the only Patrolman there and I didn’t know what he might do. He went back toward the truck and I looked back again and there were eight or ten or twelve of them out there then, so I started calling for help [on the patrol car radio]. I didn’t know what they might try to do.” Baldwin further testified that he had eaten supper that evening and had then resumed his patrolling on Highway 49 North. When asked if he knew that the occupants of the vans were some of the marchers from Mendenhall he replied, “No, Sir, I didn’t have any idea. I didn’t know that there was but one person in that truck”. The Court then propounded the following question: “When you arrested these people did you know they were the Mendenhall marchers ? “Answer: No, Sir.” Baldwin further testified that his reason for stopping the van was because it was weaving as if the driver was drunk, that it crossed the center line several times, once almost hitting another automobile. This was a valid arrest for reckless driving, Barnes v. State, 249 Miss. 482, 162 So.2d 865 (1964); Section 8175 Mississippi Code of 1942. Baldwin further testified that he had received no radio message to stop the van. It was not until all the individuals had gotten out of the van that he recognized he had stopped people associated with the demonstrations in Mendenhall. When these individuals got out of the van they said “one was not going to be arrested unless all of them were”. After the radio call for help, several highway patrol ears came. Those arrested were transported to Brandon, the county seat of Rankin County. Douglas Bruce Huemmer, the driver of the van, testified that he had never had any encounter with Officer Baldwin prior to the arrest. There had been eight marches in Mendenhall, all of them peaceful. None had been arrested during the march which preceded the automobile journey which culminated in the arrests. The second van, accompanying the Huemmer van, was not halted. The foregoing testimony is without dispute in the record and supports the finding that these individuals were not arrested because of their exercise of First Amendment, or other, Constitutional rights. It would thus seem clear, beyond doubt, that these individuals were not entitled to remove their state misdemeanor prosecutions to the federal district court. This leaves for consideration the situation of the three voluntary nocturnal jailhouse visitors who were not arrested on Highway 49 but who got into a fight at the jail and evidently came off with the worst of the encounter. The occupants of the van which had not been stopped reported the stopping of the other vehicle to their associates. This resulted in the Reverend Brown, Reverend Perkins, and one Buckley going to the Rankin County jail, armed to the teeth. Huemmer testified that he, and these three men, were then beaten and kicked extensively by state and county officers, that his head and face were shaved, and that a white liquid that smelled like moonshine was poured over his head. He testified that he was verbally abused in jail by several officers who were drinking out of paper cups and who appeared to be drunk, but he was soon released on bail. A deputy sheriff was called as an adverse witness by appellants. He said that on the night in question he was called to the sheriff’s office. When he arrived there he observed the original ar-restees being booked. He was there when Perkins, Brown, and Buckley arrived. There had been no difficulty prior to their arrival but a scuffle developed, limited to the room they were occupying. The deputy was then ordered by the sheriff to cut Huemmer’s and Brown’s hair, which he did. He testified that he didn’t see any vermin in Huemmer’s hair but that it was dirty, greasy, and that its removal revealed a scab over his scalp. Another witness, Manorris, a student at Tougaloo College, one of the march directors in Mendenhall, was in jail when the Perkins trio came in. He was in another room, and could not observe what went on. He did say, nevertheless, that he saw Sheriff Edwards beating Perkins “until the sheriff’s shirt tail came out”. He also said he saw deputies strike one David Nall. He saw no one strike an officer. Nall, another Tougaloo student, testified he was struck in the van after he was ordered out of it at the jail. This was verified by none of the others present. He claimed that Sheriff Edwards used a blackjack on Perkins. Brown, one of the trio which visited the jail after the alarm had been spread, testified that he is a Minister of the Voice of Calvary Bible Institute in Men-denhall. He came to Mississippi from California at the request of Perkins, and has been a leader in the boycott at Men-denhall from the beginning. He stated that when he, Perkins and Buckley went to the Rankin County jail in a red Volkswagen van, the vehicle contained a shotgun and two .22 rifles behind and over the front seat in plain view. He claimed that the reason for carrying the weapons was because of threats which had been made on his life. He further claimed that he and his companions were beaten at the jail for no provocation whatever. He was kept in jail until the next day, charged with disturbing the peace, carrying a concealed weapon, inciting to riot, and resisting arrest. Perkins is a Minister in Mendenhall and was a leader of the boycott. He first learned of the arrest of Huemmer and the others from the driver of the second van. He then got in his Volkswagen and picked up Brown and Buckley. The three proceeded to the Brandon jail. Besides the weapons already mentioned Perkins admitted that he carried a pistol in the car, as the result, he said, of threats which had been made against him. Perkins contended that the three were arrested for no reason and were personally beaten without any preceding provocation. Jonathan R. Edwards, the Sheriff of Rankin County, testified that he had already left his office for the day when he received a call to return. Shortly after he returned, the Highway Patrol arrived at the jail with the twenty original ar-restees. He further testified that no violence started until after the arrival of Brown, Perkins, and Buckley, and until after Perkins aimed a blow at the sheriff, which missed. Then a general fracas broke out. There had been no drinking in the sheriff’s office. Three guns, a pistol, and several pieces of brick tile were taken from the prisoners. Weapons taken from Huemmer’s van included knives, two forks with the middle prongs turned down, and a pistol. Edwards admitted that he knew a boycott had been in progress in Menden-hall. He also testified that after Huem-mer’s hair was cut he poured moonshine whiskey over his head. No witness testified that Officer Baldwin followed the van from Mendenhall or that he knew when he stopped the van it contained individuals who had been participating in the boycott marches. His testimony that he made a routine traffic arrest is undisputed. Had there been a dispute, the Trial Judge had the responsibility of making the credibility choices, not this Court. The dissenting opinion attaches great weight to the testimony of several individuals who would depict the local officers as subhuman sadists, but this testimony was weighed and rejected by the trier of the fact — his function not ours. The same rule applies to the altercations at the jail. Perkins, Brown, and Buckley were not lawyers, nor had they been sent for by any of those arrested. They simply chose to visit the jail, after regular visiting hours, armed with a shotgun, two rifles, and a pistol. If Perkins took a swing at the sheriff, as the sheriff swore he did, the credibility of which was for the decision of the District Court, then Perkins should have anticipated that this would meet with more than submissive disapproval. We do not condone the use of excessive force in the arrest and detention of prisoners. Neither do we approve the visitation of indignities upon prisoners. By the same token we are under no duty to extend some kind of left handed judicial approval to the practice of carrying an arsenal of weapons on night time visits to jails or police stations, even if the possession of such weapons is otherwise lawful. In any event, that is not the issue in this case. The question is whether the activities at the jail ousted the jurisdiction of the state courts to try these three men on misdemeanor charges and, at the same time, conferred jurisdiction on the federal courts to do so. We think not. Participating in a peaceable march in one county grants no immunity from the enforcement of the law in another county. Neither does such activity authorize persons to approach a local prison in the dark hours of the night, heavily armed. Carrying brick, broken tile, forks, and like weapons is not ordinarily consistent with peaceable activities. It is important, in our view, that the disturbance at the jail was neither geographically nor periodically incidental to the marches in Mendenhall. In fact, so far as this record shows, no one in Simpson County knew what was going on in the adjoining county of Rankin. Hence, we hold that the jail visitors were not entitled to have their cases removed to the federal courts. We simply hold that the findings of fact by the District Court are not clearly erroneous and that upon these findings the court committed no error in remanding the appellants to the state courts. If there is in fact no basis for the charges, that deficiency will be exposed by the evidence adduced and a directed verdict of acquittal will necessarily follow as a matter of law. We, of course, decline to decide this case on the basis of acts committed by others, in other times, in other cases, under other circumstances. We are here required to apply the law to the facts as found by the District Court, governed by the clearly erroneous rule. We indulge in no attainders. There is evidence to support the finding that the original arrests were not prompted by the marches in Mendenhall. Most certainly, an armed visit to the jailhouse in the night time was not a part of the marches. It was purely a secondary episode. These appellants are due to stand trial in the state courts. Congress was careful to point this out in 18 U.S.C. § 245(a) (1): “Nothing in this section shall be construed as indicating an intent on the part of Congress to prevent any State, any possession or Commonwealth of the United States, or the District of Columbia, from exercising jurisdiction over any offense over which it would have jurisdiction in the absence of this section, nor shall anything in this section be construed as depriving State and local law enforcement authorities of responsibility for prosecuting acts that may be violations of this section and that are violations of State and local law * * 18 U.S.C. § 245 concluded: “Nothing in this section shall be construed so as to deter any law enforcement officer from lawfully carrying out the duties of his office; and no law enforcement officer shall be considered to be in violation of this section for lawfully carrying out the duties of his office or lawfully enforcing ordinances and laws of the United States, [etc.] ” We conclude with this observation: Under Greenwood, Miss. v. Peacock, supra, these cases are not removable to the federal courts. In this respect, Greenwood, Miss. v. Peacock was not affected by the enactment of 18 U.S.C. § 245. See People of State of New York v. Horelick, 2 Cir., 1970, 424 F.2d 697, cert. denied 398 U.S. 939, 90 S.Ct. 1839, 26 L.Ed.2d 273; Hill v. Commonwealth of Pennsylvania, 3 Cir., 1971, 439 F.2d 1016, cert. denied 404 U.S. 985, 92 S.Ct. 445, 30 L.Ed.2d 370. The judgment of the District Court is Affirmed.
JOHN R. BROWN, Chief Judge (dissenting) : Viewed from any realistic perspective this case marks a critical stage in the evolutionary development of Federal civil rights removal jurisdiction. Rev. Perkins is Mordecai at the Gate. His allegations and proof demand that we let him in. The complexities we face are not factual ones. We need not resolve credibility choices or conflicting inferences to determine what happened to these petitioners. No matter whose version is accepted the record is replete with uncontested evidence of patently frivolous arrests for nonexistent offenses, threatened and actual physical violence, and almost unbelievably humiliating and degrading treatment — including the indignity of shaving the prisoners’ heads and pouring moonshine whiskey on one of them — that far surpasses the official brutality we have only recently condemned as cruel and unusual punishment violating the Eighth Amendment. Anderson v. Nosser, 5 Cir., 1971, 438 F.2d 183, pending rehearing en banc. Prologue: The Rachel-Peacock Enigma Actually our real problem here is to chart the unexplored outer limits of the removal remedy established by two closely related but factually dissimilar Supreme Court decisions, Georgia v. Rachel, 1966, 384 U.S. 780, 86 S.Ct. 1783,16 L.Ed. 2d 925 and City of Greenwood, Miss. v. Peacock, 1966, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944. Simply stated, the question is whether removal relief is available when the petitioners have alleged and proven that their arrests and pending State criminal prosecutions, while temporally and geographically unrelated to antecedent protest activities protected by a specific Federal statute providing for equal civil rights in terms of race, were nevertheless initiated exclusively for the purpose of discouraging those activities and intimidating the exercise of those rights. New of our prior cases have dealt with precisely this situation. Both Rachel and Peacock suggest possible alternative approaches, although neither provides an unequivocal solution under the circumstances now before us. However, from the tenor of its opinion I assume the Court would agree with my position that these petitioners must prevail if, in addition to showing a causal connection between their Federally protected activities and their subsequent arrests and prosecutions, they have also established on this record that the State criminal proceedings have as their sole purpose the harassment and intimidation of conduct insulated by Federal law against illegitimate official interference. On this assumption our disagreement arises entirely over the degree of deference, if any, that must be accorded the District Court’s finding on the issue of why these individuals are being prosecuted. There is literally no evidence to support any of the charges against the 23 defendants. Yet in determining whether the prosecutions constitute no more than racially motivated efforts to deprive them of equal civil rights the District Court limited itself exclusively to a determination that the defendants would receive a fair trial in the State courts and that the initial arrests were support-ted by probable cause, while at the same time explicitly refusing to consider as relevant to the issue of prosecutorial purpose the undeniable fact that the charges are all groundless. The Court here has by implication sanctioned that procedurally defective approach. I dissent because the findings of fact regarding the motivation for the prosecutions were hopelessly infected by the District Court’s utilization of an erroneous legal standard (“fair trial” and “probable cause”) in its assessment of the evidence. Since we are not compelled to adopt such findings (see note 93, infra), we should not hesitate to conclude on the basis of thoroughly developed and undisputed facts that the State criminal proceedings here are merely ill-disguised attempts to punish conduct protected under Federal law. As such they are classic targets for the civil rights removal remedy under the terms prescribed by Rachel and Peacock. The Geographical Locale All of the Federally protected activities involved in this case took place in Mendenhall, Mississippi, a small town in Simpson County about 45 miles southeast of Jackson. On the other hand, all of the petitioners were arrested and charged several hours later in adjoining Rankin County, either on Highway 49 (the main highway between Mendenhall and Jackson) or at the jail in Brandon, the county seat. Thus the arrests and the exercise of the rights that allegedly provoked them were, in a strictly temporal or geographical sense, unrelated, and the charges on their face do not pertain to conduct protected under Federal law. The Mendenhall Demonstrations In late 1969, two days before Christmas, the black residents of Mendenhall initiated a campaign designed to protest and ultimately to eradicate racial discrimination in the community. In addition to organizing an economic boycott of local white merchants they published a list of demands enumerating the grievances of the town’s black population and calling among other things for the immediate and total integration of all public employment, the public schools, municipal recreational facilities and other places of public accommodation. To dramatize their protest they conducted a series of mass demonstrations and marches in Mendenhall beginning in late December 1969 and continuing into the first two months of 1970. On each occasion the demonstrators were under the close surveillance of numerous uniformed and plainclothes officers of the Mississippi Highway Patrol, who followed each march and took pictures of the participants with motion picture and still cameras. On February 7, 1970 two of the demonstration’s organizers, Douglas B. Huemmer and Rev. John M. Perkins, drove to Tougaloo College near Jackson to pick up a group of black college students who sympathized with the objectives of the Mendenhall residents and who desired to participate in the marches scheduled for that day. Upon returning to Mendenhall they held a mass meeting at the local black cooperative store to discuss the boycott and to plan the route and timing of the march. When approximately 100 to 150 demonstrators subsequently paraded through the center of town carrying signs publicizing their demands, they encountered some minor hostility from bystanders, but there was no violence and no one was arrested. The marchers demonstrated for approximately 45 minutes, and as usual their activities were monitored by a substantial number of police officers, who set up a roadblock and drivers license check on Highway 13, the main road leading into the black section of town. Among the official observers was Jonathan Edwards III, the son of the sheriff of neighboring Rankin County, and . Inspector Lloyd Jones of the Mississippi Highway Patrol. The Highway 49 Arrests Following the march through town another meeting was held late in the afternoon at Rev. Perkins’ church, after which 19 Tougaloo students boarded Huemmer’s Dodge van for the trip back to the college. The route from Menden-hall to Jackson was U.S. Highway 49, a modern four-lane divided road with a maximum posted speed limit of 65 miles per hour. Huemmer, who was driving, testified that he proceeded north at a moderate rate of speed because he was being followed by the rest of the students in a Volkswagen and that he remained in the right-hand lane at all times except when passing two other vehicles. A passenger in the van testified that the group was followed from Simpson County (Mendenhall) by a Mississippi Highway Patrol car. At approximately 6:30 p. m., immediately after crossing into Rankin County near the town of Plain, the van and its occupants were stopped by Highway Patrolman Douglas O. Baldwin, who had previously been assigned to cover one or two the Mendenhall marches and who was familiar with the civil rights activities going on there. Baldwin testified that he had just come on duty following supper at his home in the nearby community of Florence and that he had followed the van for four or five miles before stopping it, allegedly because after weaving into the inside lane several times it had almost hit a passing car (whose color, make and description he could not recall). After ordering Huemmer out of the van, Baldwin asked for his driver’s license and directed him to sit in the patrol car. There, according to Huemmer, after discovering that the group had participated in the Mendenhall demonstration earlier that day, Baldwin made numerous threats that incorporated references to the protests in Simpson County and then radioed a request for assist. During the conversation between Baldwin and Huemmer two students got out of the van to stretch their legs but were ordered by the officer to get back into the vehicle. They did. A few minutes later, in response to the radio request, between four and six Mississippi Highway Patrol cars arrived at the scene. With pistols drawn the patrolmen ordered all of the students to get out of the van, at which point they were all searched, arrested, handcuffed, and transported to the Rankin County jail at Brandon. Huemmer, one of two white persons among the arrestees, testified that he was taken in a separate car and beaten en route and after arrival at the jail by Officer Frank Thames of the Highway Patrol. Huemmer also stated that Thames had previously threatened his life because of his participation in civil rights activities in Simpson County. The Volkswagen following the van was not stopped, and its occupants returned to Mendenhall and reported what had happened. In its opinion the Court quotes testimony of Patrolman Baldwin to the effect that at the time he arrested the demonstrators he did not know they had participated in the Mendenhall marches. However, he immediately qualified that statement, as the transcript reveals: “BY THE COURT: When you arrested these people did you know they were the Mendenhall marchers? BY THE WITNESS: No sir. BY THE COURT: You didn’t know at the time? BY THE WITNESS: Well after I got them out of the truck I assumed they were, yes sir, but I didn’t know it at that time.” (Tr. 126-27.) (Emphasis added.) “Q. Now, when did you decide Officer Baldwin that you had stopped people associated with the boycott and marches and demonstrations in Men-denhall ? A: When all of them got out of the truck.” (Tr. 141.) But no one was actually arrested — certainly not for resisting arrest — until after the students got out of the van. Thus there is no dispute, by Baldwin’s own admission, that before the defendants were arrested and taken into custody— that is, at a time when Baldwin could have ticketed Huemmer and let him go on his way — the officer knew who his subjects were and what they had been doing in Mendenhall a few hours earlier. The Rankin County Jail Arrests After learning of the Highway 49 arrests the two black leaders of the Mendenhall civil rights movement, Rev. Perkins and Rev. Curry Brown, accompanied by a third man, Joe Paul Buckley, drove to the Rankin County jail with the intern tion of posting bond for those who had been arrested. Because of previous threats to his life Rev. Perkins carried with him in his car two rifles, one shotgun and a pistol, all of which were in plain view in the back seat and all of which were legally in his possession under Mississippi law. Arriving at the courthouse and jail in Brandon, the men were directed to a parking place by a highway partolman, after which they got out of the car and stood beside it talking for a few minutes. The weapons remained inside the car at all times. The three were then surrounded by approximately 12 law enforcement officers, searched and arrested. Rev. Brown testified that he was kicked and beaten by Officer Thames while being taken into the jail. Of all the violent events that unfolded inside the jail that night, only one — the purported swing at the sheriff — is really sharply disputed. No one denies that there was a disturbance. While the petitioners all contend that they were attacked and beaten without provocation, the State’s version is that Rev. Perkins’ alleged attempt to strike the sheriff set off a spontaneous free-for-all that resulted in the use of what the District Court characterized as “rather violent force” against several of the prisoners. Despite the conflict on this point some relevant undisputed facts emerge from the record. The only witness for the State was the Rankin County Sheriff, Jonathan Edwards, whose son appeared at the jail that night after participating in the surveillance activities at Mendenhall earlier in the day. Sheriff Edwards stated that he knew the prisoners were civil rights workers after they were brought in (Tr. 345), that he knew there was a boycott in progress in Mendenhall (Tr. 349), and that prior to the disturbance in the jail no one had caused any trouble or resisted arrest (Tr. 341). By his count there were at least five deputy sheriffs and between seven and twelve highway patrolmen in the jail at the time the fight broke out. The sheriff testified that Rev. Perkins swung at him for no apparent reason and that he responded by hitting him two or three times with his fist. For some unexplained reason neither Rev. Perkins nor any of the other prisoners were charged with assaulting the sheriff or any other officer. Rev. Perkins’ account of the affair is somewhat different. He testified that after he was brought into the jail several officers, including the sheriff, proceeded without provocation to beat him into insensibility. His version was confirmed by Rev. Brown, who stated that the sheriff made several references to the prisoners’ civil rights activities in Mendenhall before and during the assault. The same story was repeated by Douglas Huemmer and by Manorris Odom, one of the students, who testified that the sheriff “beat [Rev. Perkins] so viciously his shirt came out.” (Tr. 243). Sheriff Edwards testified that afterward he ordered Rev. Perkins to mop up the blood on the floor (Tr. 357). The sheriff also admitted that follow-jng the disturbance his deputies proceeded to shave the heads 0f Rev. Brown and Huemmer and that he personally poured moonshine whiskey on Huem-mer’s head (Tr. 359). There was no evidence to establish where the whiskey came from nor what it was doing in the jail at that time of night, although the sheriff did strenuously deny that any of his men had been drinking or were drunk during the hours in question. The prisoners, however, testified that several deputies were drinking a clear liquid in paper cups, that it smelled like alcohol and that they appeared to be intoxicated. While there is no evidence whatever suggesting that any of the officers suffered even minor injuries as a result of the incident, the photographic evidence introduced by the petitioners graphically illustrates the treatment that was accorded them. The testimony regarding the purpose behind the brutality was clear and uncontradicted Five days after the arrests all 23 defendants sought to remove their pending State criminal prosecutions to the District Court pursuant to the civil rights removal statute, alleging in their verified removal petition deprivations of rights guaranteed under Federal law by 18 U.S.C.A. § 245(b) specifically the rights provided in § 245(b) (5) to “lawfully [aid] or [encourage] other persons to participate, without discrimination on account of race [or] color * * * in any of the benefits or activities described” in that section and to participate “lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate.” (Emphasis added.) Following the requisite eviden-tiary hearing the District Court entered an order remanding the prosecutions to the State courts of Mississippi after holding that there was probable cause for all the arrests, that the petitioners would receive a fair trial, and that there was therefore no “federal right which is being violated by a prosecution of these charges against [petitioners] in the state court, whether groundless or not.” (Emphasis added.) This Court stayed the remand order pending appeal. The Law Unlike several of the cases in which we have rejected attempts to remove pending State criminal prosecutions to Federal courts, the present effort to invoke § 1443(1) jurisdiction cannot realistically be characterized as frivolous. Quite obviously its aim is to vindicate the specific Federal statutory civil right to protest racial segregation following an attempt by State law enforcement officers to discourage or suppress the exercise of that right through the initiation of groundless criminal prosecutions based upon wholly fictitious offenses. Its novelty lies in the assertion, seldom squarely considered before in this Circuit, that the civil rights removal remedy may be invoked against racially discriminatory State criminal prosecutions regardless of where or when the arrests (or the allegedly criminal conduct ostensibly motivating them) take place — that is, regardless of whether the defendants are actually exercising or attempting to exercise their equal civil rights at the moment of their arrests. On this theory mere temporal or geographical remoteness is irrelevant (except in an eviden-tiary sense). The critical factor is whether the sole purpose of the State criminal proceedings is to discourage or punish activity protected by a law providing for equal civil rights in racial terms. Novelty is no barrier under the present circumstances, however. The thrust of Rachel, Peacock and our own prior decisions clearly establishes that the petitioners’ allegations meet the requirements for removal relief. The undisputed evidence in the record shows that beyond doubt they are entitled to it. Within the present context both Rachel and Peacock stand for no more than the now acknowledged proposition that Federal civil rights removal jurisdiction cannot be predicated on a bare assertion that the State prosecutions are illegal, or that the charges are racially motivated or unsupported by the evidence, or that the proceedings infringe on the exercise or enjoyment of asserted constitutional rights. See Sinclair v. State of Louisiana, 5 Cir., 1967, 384 F.2d 310; Bass v. Mississippi, 5 Cir., 1967, 381 F. 2d 692, 697; Student Non-Violent Coordinating Committee v. Smith, 5 Cir., 1967, 382 F.2d 9, 11, and cases cited in note 27, supra. Something more is required — specifically, allegations and proof that the arrest and prosecutions have been initiated not for the legitimate purpose of enforcing an otherwise valid State law but solely in order to deny to the defendant the benefits of a law “providing for specific civil rights stated in terms of racial equality.” Georgia v. Rachel, 384 U.S. at 792, 86 S.Ct. at 1790, 16 L.Ed.2d at 933. The RachelrPeacock Distinction Regardless of the superficial ease with which the two cases may be distinguished in the abstract, however, the problems involved in correctly applying the principles announced in Rachel and Peacock to the present facts are considerable. The difficulty arises primarily from two radically divergent interpretations that may reasonably be given some of the language in both decisions, with diametrically opposite results. Before analyzing the accretion of case law that encrusts them, we might best begin with a determination of what they do— and do not — decide. Because orders remanding cases removed to the District Courts were not subject to appellate review between 1887 and 1964, Rachel and Peacock were the first civil rights removal cases to reach the Supreme Court in sixty years. In each of them the broad question presented for decision involved the scope and application of the language in § 1443(1) providing for removal to the District Courts of State criminal prosecutions in which the defendant “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.” At least two possible alternative interpretations of this provision were available. The first, drawing support from suggestions to that effect in a series of nine cases beginning with Strauder v. West Virginia, 1880, 100 U.S. 303, 25 L.Ed. 664 and Virginia v. Rives, 1880, 100 U.S. 313, 25 L.Ed. 667 and ending with Kentucky v. Powers, 1906, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633, would have limited its application exclusively to situations in which the defendant is denied equal civil rights because of an unconstitutional State statute. The second, relying primarily upon the contemporary expansion of the constitutional principle of equal protection of the law, would have permitted removal of any prosecution in which the defendant could establish that his trial in a State court would deprive him of an “equal” right under any law— including, of course, the Fourteenth Amendment. Disclaiming either of these extremes the Supreme Court, like Aristotle, adopted a middle course. Rachel In Rachel the Court held that the allegations of the removal petition, if established, were sufficient to invoke the exercise of Federal civil rights removal jurisdiction. There the defendants in 20 pending criminal trespass prosecutions sought to remove the proceedings from the State courts of Georgia after they were arrested in 1963 while peacefully seeking service in privately owned restaurants. Many of such establishments were eventually subject to the public accommodations provisions of the Civil Rights Act of 1964. In their removal petition they alleged that they were arrested exclusively because of their attempts to obtain nondiscriminatory service and that as a result of their prosecutions they were denied or could not enforce the State courts rights under laws providing for equal civil rights of citizens of the United States. The opinion of the Court deals with two sharply distinguishable issues. The first is the meaning in § 1443(1) of the phrase “any law providing for the equal civil rights.” Rejecting an expansive interpretation of that language on the basis of available historical data, the Court concluded that it “must be construed to mean any law providing for specific civil rights stated in terms of racial equality,” rather than broad constitutional guarantees “phrased in terms of general application available to all persons or citizens.” 384 U.S. at 792, 86 S.Ct. at 1790, 16 L.Ed.2d at 933-934. The Court therefore disclaimed a removal theory grounded on an asserted denial of First and Fourteenth Amendment rights. In the second portion of its opinion, however, the Court likewise declined to adopt the entrenched Strauder-Rives-Powers doctrine insofar as it suggested that the removal remedy was available only if the defendant could establish that his prosecution deprived him of equal civil rights by virtue of the operation of an unconstitutional State law. Instead, after analyzing the legislative history of § 1443 and the purposes it was designed to effect, the Court determined that “removal might be justified, even in the absence of a discriminatory state enactment, if an equivalent basis [can] be shown for an equally firm prediction that the defendant [will] be ‘denied or cannot enforce’ the specified federal rights in the state court.” 384 U.S. at 804, 86 S.Ct. at 1796, 16 L.Ed.2d at 940. The “firm basis” for the “clear prediction” was provided by the allegations of the removal petition in Rachel because of the previous decision in Hamm v. City of Rock Hill, 1964, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300. There the Supreme Court held that the 1964 Civil Rights Act’s interdiction in § 203(c) of “attempts to punish” peaceful efforts to obtain nondiscriminatory service in places of public accommodation meant, by implication, attempts to prosecute them as well. Thus, if the petitioners in Rachel had been asked only because of their race to leave the restaurants, and as a result of their refusal had been arrested and prosecuted exclusively for conduct immunized against prosecution by Federal law, “then the mere pendency of the prosecutions enables the federal court to make the clear prediction that the defendants will be ‘denied or cannot enforce in the courts of [the]. State’ the right to be free of any ‘attempt to punish’ them for protected activity.” 384 U.S. at 805, 86 S.Ct. at 1797, 16 L.Ed. 2d at 941. The Court then went on to make crystal clear that if the allegations in the removal petition were proven the mere possibility, the substantial probability, or even the absolute certainty that the defendants would ultimately be acquitted in their State trials was of no relevance whatever. Peacock In Peacock the Supreme Court considered two removal petitions and found both of them insufficient. The reasons for their inadequacy have, for more than five years, remained “the enigma wrapped in a mystery [and] enshrouded in fog.” The first petition involved the case of 14 people charged with obstructing the public streets of Greenwood, Mississippi. It alleged that the petitioners were members of a group engaged in voter registration activities in Leflore County, that the statute under which they were charged was unconstitutionally vague on its face, and that its application to them was part of a policy designed to perpetuate racial segregation in the city and State. It also alleged that as a result of their prosecutions the defendants were denied or could not enforce their equal constitutional and statutory civil rights in State courts. The second petition arose from the arrest of 15 people charged with a variety of criminal offenses, including inciting to riot, parading without a permit and assault and battery by biting a policeman. “These defendants filed essentially identical petitions for removal in the District Court, denying that they had engaged in any conduct prohibited by valid laws and stating that their arrests and prosecutions were for the ‘sole purpose and effect of harassing Petitioners and of punishing them for and deterring them from the exercise of their constitutionally protected right to protest the conditions of racial discrimination and segregation’ in Mississippi.” 384 U.S. at 813, 86 S.Ct. at 1804-1805, 16 L.Ed.2d at 948. The Supreme Court held that “to sustain removal of these prosecutions to a federal court upon the allegations of the petitions in this case would therefore mark a complete departure from the terms of the removal statute * * 384 U.S. at 827, 86 S.Ct. at 1812, 16 L. Ed.2d at 956 (emphasis added). This sentence is the key that unlocks the door. Unlike the Rachel petition, the Peacock petitions contain no allegation, or statements from which such an allegation might be inferred, that the defendants were arrested and charged exclusively because of their participation in an activity immunized by Federal law against State criminal prosecution. In other words, while both Peacock petitions (broadly construed) assert that the defendants’ “federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial,” 384 U.S. at 827, 86 S.Ct. at 1812, 16 L.Ed.2d at 956-957, neither of them (unlike the Rachel petition) by implicit or explicit allegations refutes the inference that the arrests and prosecutions were also initiated for the conced-edly legitimate purpose of enforcing otherwise valid criminal laws that neither the defendants nor anyone else had a Federal right to violate. Absent such allegations a removal petition is not sufficient to invoke the jurisdiction of the District Court under the terms prescribed by Rachel. This interpretation of the opinion is reinforced by the Supreme Court’s own characterization of the petitions in Peacock. “The fundamental claim in this case, then, is that a case for removal is made under § 1443(1) upon a petition alleging: (1) that the defendants were arrested by state officers and charged with various offenses under state law because they were Negroes or because they were engaged in helping Negroes assert their rights under federal equal civil rights laws, and that they are completely innocent of the charges against them, or (2) that the defendants will be unable to obtain a fair trial in the state court. The basic difference between this case and Rachel is thus immediately apparent.” 384 U.S. at 826, 86 S.Ct. at 1811, 16 L.Ed.2d at 955-956 (emphasis added). The “basic difference,” as the Court then goes on to point out, is that (i) the petitioners did not allege, either by invoking an explicit Federal statute or by asserting facts to that effect, that they were being prosecuted exclusively because of their previous exercise of Federal equal civil rights, and (ii) they did not allege that the conduct for which they were being prosecuted was immunized against prosecution by the terms of a specific statute providing for equal civil rights in terms of race. Of course, the petitioners in Rachel did. Rachel and Peacock Distinguished Peacock does not by implication overrule Rachel. It does not limit the application of the reasoning in Rachel to racially discriminatory denials of restaurant service in violation of the 1964 Civil Rights Act. What Peacock does hold, like Rachel, is that before a Federal Judge is asked to undertake the extraordinarily serious step of halting pending State criminal prosecutions he must be presented with the basis for a “clear prediction” that the defendant’s Federally protected rights will be denied by the very act of bringing him to trial in a State court. Initially the only possible basis for that forecast are the allegations in the removal petition. In Rachel those allegations were sufficient to invoke Federal civil rights removal jurisdiction. In Peacock they were not. On this theory the Supreme Court’s cryptic footnote reference in Peacock to the Voting Rights Act of 1965 (see note 41, supra) still leaves the case easily distinguishable from Rachel. Even if prior to their arrests the petitioners had been engaged in protected voter registration activities they would nevertheless not automatically invoke the Act — as Rachel had invoked the Civil Rights Act of 1964 —simply by asserting that they had been arrested because of those activities and that the charges were false. The reason is obvious: the conduct charged as a criminal offense in Peacock was not the conduct protected by the Voting Rights Act. By failing to allege, in substance, that they were being prosecuted exclusively for their voter registration activities, the petitioners in Peacock left open the possibility that they were also being prosecuted for criminal misconduct unrelated to the exercise of a Federally protected right. The defendant who is arrested and charged because he has bitten a policeman cannot escape criminal responsibility for the act simply by contending that at the time he was encouraging voter registration, or that the arrest and prosecution are motivated, not simply by the bite, but also by the previous exercise of an equal civil right. Even a conceded collateral infringement of a Federal right does not prevent the State from enforcing its criminal laws against specific types of conduct not immunized against prosecution by a “pervasive and explicit” Federal law. Likewise, the fact that the charges are false may be of considerable evidentiary significance in the ultimate determination of the purpose underlying the arrest and prosecution, as would be the defendant’s race, his previous exercise of “equal civil rights,” the nearness or remoteness of the arrest in relation to the exercise of the right, and any number of other factors. But the absence of evidence has nothing to do with the question of whether the petition has invoked the jurisdiction of the District Court by providing in its allegations the basis for the “clear prediction” required by Rachel. The State may blunder in good faith. It may initiate criminal prosecutions, even if through error the charges are false, for the purpose of enforcing its criminal law. What it may not do is to arrest and charge a defendant solely because he has previously exercised a right to engage in conduct protected by Federal law against State criminal prosecution. Of course, since the crucial issue is the motivation underlying the prosecution, nothing in either Rachel or Peacock rules out the possibility of removal relief even when the defendant is guilty of having committed a criminal offense not itself immunized against prosecution. The Federal civil rights laws do not by their terms grant immunity from prosecution for all violations of State law simply because those violations occurred in conjunction with the exercise of a Federal right. But they do grant broad immunity against any prosecution motivated exclusively by a purpose to intimidate the defendant, whether guilty or not, because —and only because — he has exercised a Federally protected right. The removal statute, like the Federal injunction, provides the means for invoking that immunity. Finally, since both Rachel and Peacock hinge on the prosecutorial motive alleged —or, in Peacock, not alleged — to support the claim for removal relief, there is no inherent necessity for the allegedly criminal misconduct underlying the prosecution to be either temporally or geographically concurrent with the exercise of the equal civil right. The issue under Rachel is why the defendant was arrested, not when or where he was arrested, or what he is charged with having done. The individual who seeks nondiscriminatory admission to a place of public accommodation and then is arrested several miles or hours later on spurious charges arising solely from his prior exercise of a Federal right is being “punished” in precisely the sense prohibited by the 1964 Civil Rights Act. The removal remedy may legitimately be invoked under such circumstances. Peacock-Rachel Considered— and Reconsidered At least one fact should now be clear: that “the right of removal of a state criminal prosecution has not been restricted by the Supreme Court to the small group of cases in which a state prosecution for trespass seeks to forbid the enjoyment of the right to equal accommodations guaranteed under Title II of the Civil Rights Act of 1964.” What-ley v. City of Vidalia, 5 Cir., 1968, 399 F. 2d 521. Yet the two divergent judicial interpretations of Rachel and Peacock that emerged during the succeeding five years parted company on almost precisely that point — whether Peacock did restrict Rachel to its facts, rather than to the legal principles it prescribed. The first approach to interpreting Peacock, exemplified by decisions of the Second, Third and Fourth Circuits and in a dissenting opinion by one of our own Judges, may be characterized as the “scope of conduct” theory. Essentially the reasoning is as follows: one of the major considerations underlying the Supreme Court’s rejection of an expansive interpretation of the removal statute in Peacock was the necessity for avoiding a protracted evidentiary hearing inquiring into the prosecution’s merit or lack of merit — -in effect a trial of the defendant on State charges in a Federal court. City of Greenwood, Miss. v. Peacock, 384 U.S. at 832-834, 86 S.Ct. at 1814-1816, 16 L.Ed.2d at 959-961. Consequently, any interpretation of Peacock that suggests such an approach, such as the theory that the petitioner in a removal action may succeed if he alleges and proves a causal connection between his Federally protected activity and his prosecution, is probably incorrect. Instead, according to this reasoning, the defendant must allege and prove that the conduct charged to be a violation of State law is immunized against prosecution under the requisite “equal civil rights” law. This conclusion is supposedly compelled by the language in Peacock to the effect that the falsity of the charges or the “corrupt denial” of the defendant’s equal civil rights prior to trial is not enough, by itself, to support removal (see note 30, supra), and by the fact that the petitioners in Peacock, unlike those in Rachel, were charged and prosecuted for conduct not itself immunized against prosecution by Federal law. On the other hand, the Fifth Circuit has adopted what might best be described as a “causal relation” theory of Peacock, which entails a determination of whether the defendant’s arrest and prosecution, even though ostensibly resulting from conduct entirely unrelated to the previous exercise of a Federally protected right, were nevertheless motivated exclusively by conduct protected against State criminal prosecution by Federal law. The occasion for this choice between competing interpretations was Achtenberg v. Mississippi, supra, note 54. In Achtenberg the Court was confronted with allegations in a removal petition that “the prosecution’s charges of vagrancy were based exclusively on attempts by the appellants to exercise rights guaranteed them under the 1964 Civil Rights Act.” 393 F.2d at 469 (emphasis added). Four of the defendants had actually been arrested and charged while seeking racially nondiscriminatory service at the public library in Hattiesburg, Mississippi. The fifth defendant, a white teacher named Sandra Adickes, was arrested several days earlier. She and several of her Negro friends had sought and were refused service at the library, after which they went to the local Kress store to eat lunch, where Miss Adickes was again refused service because she was accompanied by Negroes. Leaving the store, Miss Adickes was immediately arrested for vagrancy on the sidewalk in front of it. The Court found the affidavits of the petitioners were by themselves sufficient to support the allegation “that the conduct which caused the arrest of these five persons under the vagrancy statutes * * " was conduct which was clearly protected under the provisions of * * the Civil Rights Act of 1964.” 393 F.2d at 474 (emphasis added). Characterizing the vagrancy law as a “convenient tag” attached to activities immunized by Federal law against criminal prosecution, the Court remanded with instructions to dismiss all of the charges. Judge Godbold concurred in this disposition as to the charges against the four petitioners actually arrested inside the library, agreeing that “the use of the label ‘vagrancy’ in the charges against them instead of the label ‘trespass’ does not require a result different from Rachel.” 393 F.2d at 476. However, he dissented as to the case against Miss Adickes. Conceding that the vagrancy charge was “baseless and an unsophisticated subterfuge,” his reasoning was that Peacock had nevertheless specifically held that allegations of groundless charges, corrupt motives to deny Federal equal civil rights or an alleged prospective denial of a fair trial in State courts were insufficient to invoke removal jurisdiction. He concluded that “an outrageous denial of federal rights is not coterminous with a right to remove under § 1443(1). * * * Closeness or even concurrence is not the test — • scope and quality of conduct charged to be a violation of law, measured against the four corners of conduct the exercise of which is guaranteed by the 1964 Act, is the test.” Id. Thus, “charges are removable if quantitatively and qualitatively they involve conduct coterminous with activity protected under the Civil Rights Act.” 393 F.2d at 477. This interpretation of Peacock is virtually identical to that adopted by the Second, Third and Fourth Circuits (see note 55, supra). Inadequacy of the “Scope of Conduct” Theory At this point I actually need do no more than point out that the “causal connection” test prescribed by Achtenberg is still the law in this Circuit and that we are bound to follow it in the present case. However, in view of the fact that our adopted interpretation of Peacock is contrary to the conclusions reached by at least three other circuits, I feel compelled to state my reasons for believing that the “causal connection” approach is the correct one. In the first place the most obvious difficulty with the “scope of conduct” test is that it completely nullifies the reasoning in Rachel. There the Supreme Court held that State criminal prosecutions are subject to removal if the defendant alleges and proves that the exclusive purpose of the proceedings is to “punish” him for conduct immunized by Federal law against “attempted punishment.” Under such circumstances the very pen-dency of the prosecutions enables a Federal court to make the “clear prediction” that the defendant’s equal civil rights will be denied by the very act of bringing him to trial. The punitive consequences of such prosecutions are not alleviated simply because the defendant is maliciously charged with allegedly unrelated criminal misconduct rather than the acts protected by Federal law. The result in either case is the same: impermissible State interference with the exercise of rights Congress has immunized against intimidation. In the second place the “scope of conduct” approach permits effective vindication of Federal rights through the removal remedy to be effortlessly circumnavigated by the simple expedient of holding the spurious arrest in abeyance until after the right has been exercised and the innocent defendant has begun to engage in “unprotected activity.” Under such a standard it would not be at all difficult to imagine the spectacle of a Thomas Rachel or a Sandra Adickes, cowering inside the sheltered sanctity of the restaurant or public library in the exercise of Federally protected rights, yet afraid to step outside into the arms of police officers waiting around the corner with trumped-up charges of vagrancy, bigamy or second-degree murder. An interpretation of Peacock entailing such consequences carries its own refutation. In the third place the argument that the distinction between Rachel and Peacock lies in the scope of the evidentiary hearing necessary to determine whether Federal rights have been violated by State criminal prosecutions overlooks entirely the fact that in either case the ultimate issue is the same — the motivation for the proceedings. Arrests and prosecutions arising from peaceful attempts to gain service in places of public accommodation (as in Rachel) do not automatically entitle a defendant to remove his case to a Federal court. The petitioner must still allege and prove that he was arrested and prosecuted only because of that attempt and that his efforts were thwarted only because he was a Negro. Resolving such issues requires a factual inquiry no less extensive than that needed to determine whether prosecutions for “unprotected” conduct are merely smokescreens for an officially sanctioned deprivation of Federal rights. In the fourth place any argument in support of the “scope of conduct” interpretation that suggests Peacock intended to limit Rachel to its facts as part of a compromise between the competing demands of Federalism and the vindication of individual civil rights completely disregards the fact that equivalent limitations have not been imposed on an even broader Federal remedy — the granting of injunctive relief against pending State criminal prosecutions brought in bad faith solely for purposes of harassing the defendant’s exercise of a Federal constitutional or statutory right. It is hardly plausible to contend that Peacock prescribes a policy of non-interference by way of removal under circumstances that would entitle the defendant to an injunction. Finally the “scope of conduct” test implies, as a practical matter, that the Federal civil rights removal remedy is no remedy at all, except under precisely the circumstances that existed in Rachel. No matter how plain the fact on the undisputed evidence that the defendant is “denied or cannot enforce” in State courts a right under a specific Federal statute providing for equal civil rights in terms of race — the standard for removal prescribed by Rachel — he still will be unable to vindicate that right under § 1443(1) unless he was, in effect, charged for exercising it. I think that result is clearly inconsistent with the terms of the removal statute itself. The Significance of Younger v. Harris Probably the most compelling reason for rejecting the “scope of conduct” interpretation of Peacock, however, is provided by an analysis of the parallel remedy of Federal injunctive relief against pending State criminal prosecutions. In a series of opinions clarifying its earlier decision in Dombrowski (see note 59, supra) the Supreme Court has reaffirmed the long-established principle that as a prerequisite