CIVIL RIGHTS REMOVAL

Since the civil rights act of 1866, federal civil rights laws have allowed removalofcases from state to federal courts. The 1866 and 1870 acts provided for removal to federal court of state criminal or civil cases affecting persons who were denied or could not enforce in state court rights guaranteed by the acts. In the revised statutes of 1874, Congress restated the removal power to encompass violations of "any law providing for … equal civil rights." Early removal cases, typified by strauder v. west virginia (1880), allowed removal when state courts denied rights by enforcing state statutes but refused removal when state courts denied rights by following uncodified practices. With the vanishing of the black codes, removal became an insignificant remedy.

In the 1960s, civil rights protesters often were arrested under state trespass, traffic, and other minor laws and were subjected to unfair state court proceedings. After a pause of eighty years, the Court again considered civil rights removal. In Georgia v. Rachel (1966) civil rights sitin demonstrators being prosecuted for trespass in state court sought removal. The Court held removal authorized only for violations of "any law providing for specific civil rights stated in terms of racial equality." But, bending the Strauder-Rives line, the Court did not require that a state statute be the basis for the alleged deprivation of federal rights. The Court allowed removal on the grounds that the state prosecution violated the civil rights act of 1964, which outlaws even attempts to punish persons exercising rights of equal access to public accommodations.

On the same day, however, the Court decided in City of Greenwood v. Peacock (1966) that workers engaged in a voter registration drive could not rely on various voting statutes that prohibit racial discrimination to remove their state prosecutions for obstructing the public streets. The mere likelihood of prejudice was not enough to justify removal under the statute. The majority evidently shrank from the prospect of wholesale removal of criminal prosecutions of black defendants from southern state courts to federal courts. Peacock effectively precludes widespread modern use of civil rights removal.

Theodore Eisenberg
(1986)

Bibliography

Amsterdam, Anthony G. 1965 Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial. University of Pennsylvania Law Review 113:793–912.