Albert JOHNSON et al., Petitioners, v. State of MISSISSIPPI et al.

This case concerns the application of 28 U.S.C. § 1443(1), permitting defendants in state cases to remove the proceedings to the federal district courts under certain conditions, in the light of Title I of the Civil Rights Act of 1968, § 101(a), 82 Stat. 73, 18 U.S.C. § 245.

* During March 1972, petitioners, six Negro citizens of Vicksburg, Miss., along with other citizens of Vicksburg, made various demands upon certain mercnants and city officials generally relating to the number of Negroes employed or serving in various positions in both local government and business enterprises. In late March, petitioners began picketing some business establishments in Vicksburg and urging, by word of mouth and through leaflets, that the citizens of Vicksburg boycott those establishments until such time as petitioners' demands were realized.1 On May 2, 13, 14, and 21 of that year, petitioners, along with 43 other Negroes, were arrested2 on the basis of warrants charging, in general terms, their complicity in a conspiracy unlawfully to bring about a boycott of merchants and businesses.3 At least some of these arrests took place at a time when some of those arrested were engaged in picketing in protest of the racial discrimination allegedly practiced by certain merchants of Vicksburg. Following the arrests, which were made by Vicksburg police officers, those arrested were transported to the city jail where they each remained after processing until the posting of bail. There is no indication in the record in this case that the arrests and subsequent detentions of petitioners or the other 43 persons so arrested and detained involved the application of any force by the arresting officers beyond the verbal directions issued by those officers and the coercive custody normally incident to arrest, processing, and detention.

On May 25, 1972, those arrested filed a petition in the Federal District Court in compliance with the procedures established by 28 U.S.C. § 1446 seeking transfer of the trial of charges against them to the District Court pursuant to 28 U.S.C. § 1443, which reads, in pertinent part,4 as follows:

'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 . . ..'

In their removal petition, it was alleged, inter alia, that those arrested were being prosecuted under several state conspiracy statutes5 which were 'on their face and as applied repugnant to the Constitution . . .,' and that:

'The charges against petitioners, their arrest, and subsequent prosecution on those charges have no basis in fact and have been effectuated solely and exclusively for the purpose and effect of depriving petitioners of their Federally protected rights, including by force or threat of force, punishing, injuring, intimidating, and interferring (sic) or attempting to punish, injure, intimidate, . . . and interfere with petitioners, and the class of persons participating in the . . . boycott and demonstrations, for the exercise of their rights peacefully to protest discrimination and to conduct and publicize a boycott which seeks to remedy the denial of equal civil rights . . . which activities are protected by 18 U.S.C. (s) 245.'

On December 29, 1972, after an evidentiary hearing was held by the District Court in which testimony was presented both by petitioners and the Vicksburg chief of police, who was one of the named respondents to the removal petition, the District Court remanded the prosecutions to the state courts. The Court of Appeals affirmed,6 reasoning that § 245, as a criminal statute, 'confers no rights whatsoever . . .,' 488 F.2d 284, 287 (CA5 1974), and that, under this Court's decisions in Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), and City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), a federal statute must 'provide' for the equal rights of citizens before it can be invoked as a basis for removal of prosecutions under § 1443(1). Rehearing and rehearing en banc, Fed.Rule App.Proc. 35, were denied, five Circuit Judges dissenting in an opinion.7 491 F.2d 94 (CA5 1974). We granted certiorari, 419 U.S. 893, 95 S.Ct. 171, 42 L.Ed.2d 137 (1974), and, for reasons stated below, affirm the judgment of the Court of Appeals.

Our most recent cases construing § 1443(1) are the companion cases of Georgia v. Rachel, supra, and City of Greenwood v. Peacock, supra. Those cases established that a removal petition under 28 U.S.C. § 1443(1) must satisfy a two-pronged test. First, it must appear that the right allegedly denied the removal petitioner arises under a federal law 'providing for specific civil rights stated in terms of racial equality.' Georgia v. Rachel, supra, 384 U.S., at 792, 86 S.Ct., at 1790. Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination, will not suffice. That a removal petitioner will be denied due process of law because the criminal law under which he is being prosecuted is allegedly vague or that the prosecution is assertedly a sham, corrupt, or without evidentiary basis does not, standing alone, satisfy the requirements of § 1443(1). City of Greenwood v. Peacock, supra, 384 U.S., at 825, 86 S.Ct., at 1811.

Second, it must appear, in accordance with the provisions of § 1443(1), that the removal petitioner is 'denied or cannot enforce' the specified federal rights 'in the courts of (the) State.' This provision normally requires that the 'denial be manifest in a formal expression of state law,' Georgia v. Rachel, supra, 384 U.S., at 803, 86 S.Ct., at 1796, such as a state legislative or constitutional provision, "rather than a denial first made manifest in the trial of the case." Id., at 799, 86 S.Ct., at 1794. Except in the unusual case where 'an equivalent basis could be shown for an equally firm prediction that the defendant would be 'denied or cannot enforce' the specified federal rights in the state court,' id., at 804, 86 S.Ct., at 1796, it was to be expected that the protection of federal constitutional or statutory rights could be effected in the pending state proceedings, civil or criminal. 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 or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court.' City of Greenwood v. Peacock, supra, 384 U.S., at 828, 86 S.Ct., at 1812.

In Rachel, the allegations of the petition for removal were held to satisfy both branches of the rule. The federal right claimed arose under §§ 201(a) and 203(c) of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a(a) and 2000a—2(c). Section 201(a) forbids refusals of sevice in, or exclusions from, public accommodations on account of race or color; and § 203(c) prohibits any 'attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 . . ..' The removal petition fairly alleged that the prosecutions sought to be removed from state court were brought and would be tried 'solely as the result of peaceful attempts to obtain service at places of public accommodation.' 384 U.S., at 793, 86 S.Ct., at 1790.8 We concluded that if the allegations in the removal petition were true, the defendants by being prosecuted under a state criminal trespass law would be denied or could not enforce their rights in the courts of Georgia, since the 'burden of having to defend the prosecutions is itself the denial of a right explicitly conferred by the Civil Rights Act of 1964.' Id., at 805, 86 S.Ct., at 1797.

In Peacock, on the contrary, the state-court defendants petitioning for removal were being prosecuted for obstructing public streets, assault and battery, and various other local crimes.9 The federal rights allegedly being denied were said to arise under the Constitution as well as under 42 U.S.C. §§ 1971 and 1981, the former section guaranteeing the right to vote without discrimination on the grounds of race or color and forbidding interference therewith, and the latter guaranteeing all persons equal access to specified rights enjoyed by white persons.10 The Court assumed that the claimed statutory rights were within those rights contemplated by § 1443(1), but went on to hold that there had been no showing that petitioners would be denied or could not enforce their rights in the state courts. The removal petitions alleged '(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.' 384 U.S., at 826, 86 S.Ct., at 1811. The Court held, however, that it was not enough to support removal to allege that 'federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial, that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court.' Id. at 827, 86 S.Ct., at 1812. Petitioners could point to no federal law conferring on them the right to engage in the specific conduct with which they were charged; and there was no 'federal statutory right that no State should even attempt to prosecute them for their conduct.' Id., at 826, 86 S.Ct., at 1811.

With our prior cases in mind, it is apparent, without further discussion that removal under § 1443(1) was not warranted here based solely on petitioners' allegations that the statutes underlying the charges against them were unconstitutional, that there was no basis in fact for those charges, or that their arrest and prosecution otherwise denied them their constitutional rights. We are also convinced for the following reasons that s 245,11 on which petitioners principally rely, does not furnish adequate basis for removal under § 1443(1) of these state prosecutions to the federal court.

Whether or not § 245, a federal criminal statute, provides for 'specific civil rights stated in terms of racial equality . . .,' Georgia v. Rachel, 384 U.S., at 792, 86 S.Ct., at 1790, it evinces no intention to interfere in any manner with state criminal prosecutions of those who seek to have their cases removed to the federal courts. On the contrary, § 245(a)(1) itself expressly provides:

'Nothing in this section shall be construed as indicating an intent on the part of Congress to prevent any State . . . from exercising jurisdiction over any offense over which it would have jurisdiction in the absence of this section . . ..'12

The Mississippi courts undoubtedly have jurisdiction over conspiracy and boycott cases brought under state law; and § 245(a)(1) appears to disavow any intent to interrupt such state prosecutions, a conclusion that is also implicit in the operative provisions of that section. Section 245(b) makes it a crime for any persons, by 'force or threat of force' to injure, intimidate, or interfere with any individual engaged in specified activities. The provision on its face focuses on the use of force, and its legislative history confirms that its central purpose was to prevent and punish violent interferences with the exercise of specified rights and that it was not aimed at interrupting or frustrating the otherwise orderly processes of state law.

Section 245, which was Title I of the Civil Rights Act of 1968, was the antidote prescribed by Congress to deter and punish those who would forcibly suppress the free exercise of civil rights enumerated in that statute. The bill which eventually became Title I, H.R. 2516, was substantially identical to H.R. 14765, passed by the House as Title V of the Civil Rights Act of 1966.13 Title I was enacted against a background of racial violence described in the Report of the bill that was adopted by the House:

'The brutal crimes committed in recent years against Negroes exercising Federal rights and against white persons who have encouraged or aided Negroes seeking equality need no recital. Violence and threats of violence have been resorted to in order to punish or discourage Negroes from voting, from using places of public accommodation and public facilities, from attending desegregated schools, and from engaging in other activities protected by Federal law. Frequently the victim of the crime has recently engaged or is then engaging in the exercise of a Federal right. In other cases, the victim is a civil rights worker—white or Negro—who has encouraged others to assert these rights or engaged in peaceful assembly opposing the denial. In still other cases Negroes, not known to have had anything to do with civil rights activities, have been killed or assaulted to discourage other Negroes from asserting their rights.' H.R.Rep.No.473, 90th Cong., 1st Sess., 3—4 (1967).14

The Senate Report likewise explained Title I as a measure 'to meet the problem of violent interference, for racial or other discriminatory reasons, with a person's free exercise of civil rights.' S.Rep.No.721, 90th Cong., 1st Sess., 3, U.S.Code Cong. & Admin.News, 1968, pp. 1837, 1838 (1967). This concern with racially motivated acts of violence pervaded the report, see id., at 4, 5, 6, 7 8, and 9. In the debate on the floor of the Senate, frequent references to the bill's being directed at crimes of racial violence were made,15 the following being particularly relevant here:

'This new law would provide that when a law enforcement officer totally abandons his duty in order to violently intimidate individuals seeking lawfully to exercise certain enumerated Federal rights, he will be punished like any other citizen.

'. . . So long as it appears that an officer reasonably believed he was doing his duty, that is, that the arrest took place because of a perceived violation of a then-valid law, no case of knowing interference with civil rights could be made against him.' 114 Cong.Rec. 2268 (1968).

Viewed in this context, it seems quite evident that a state prosecution, proceeding as it does in a court of law, cannot be characterized as an application of 'force or threat of force' within the meaning of § 245. That section furnishes federal protection against violence in certain circumstances. But whatever 'rights' it may confer, none of them is denied by a state criminal prosecution for conspiracy or boycott. Here, as in Peacock, there is no 'federal statutory right that no State should even attempt to prosecute them for their conduct.' 384 U.S., at 826, 86 S.Ct., at 1181.16

We think further observations are in order. We stated in City of Greenwood v. Peacock:

'(I)f changes are to be made in the long-settled interpretation of the provisions of this century-old removal statute, it is for Congress and not for this Court to make them. Fully aware of the established meaning the removal statute had been given by a consistent series of decisions in this Court, Congress in 1964 declined to act on proposals to amend the law. All that Congress did was to make remand orders appealable, and thus invite a contemporary judicial consideration of the meaning of the unchanged provisions of 28 U.S.C. § 1443.' Id., at 834—835, 86 S.Ct., at 1816.

When we decided that case, there had been introduced in the Congress no fewer than 12 bills which, if enacted, would have enlarged in one way or another the right of removal in civil rights cases. Id., at 833 n. 33, 86 S.Ct., at 1815. None of those bills was reported from the cognizant committee of Congress; none has been reported in the intervening years; and the parties have informed us of no comparable bill under active consideration in the present Congress. The absence of any evidence or legislative history indicating that Congress intended to accomplish in § 245 what it has failed or refused to do directly through amendment to § 1443 necessitates our considered rejection of the right of removal in this case. Also, as we noted in Peacock, there are varied avenues of relief open to these defendants for vindication of any of their federal rights that may have been or will be violated, 384 U.S., at 828—830, 86 S.Ct., at 1812—1813; and, indeed, it appears from the record in this case that at least one such avenue was pursued early on by them and continues to be pursued.17

Affirmed.

Mr. Justice DOUGLAS took no part in the consideration or decision of this case.

Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.

I believe the dissenters in City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966), correctly construed the civil rights removal statute, 28 U.S.C. § 1443. See New York v. Galamison, 342 F.2d 255, 275 (CA2) (Marshall, J., dissenting), cert. denied, 380 U.S. 977, 85 S.Ct. 1342, 14 L.Ed.2d 272 (1965). On that broader view of the statute, removal would plainly be proper here, and if the Federal District Court determined that the state proceedings were being used to deny federally protected rights, it would be required to dismiss the prosecution. See City of Greenwood v. Peacock, supra, 384 U.S., at 840—848, 86 S.Ct., at 1818—1823 (Douglas, J., dissenting). Even under Peacock and its companion case, Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), however, I think that removal should have been available on the particular facts of this case.

As the Court today observes, Rachel and Peacock imposed sharp limitations on the scope of the removal statute. The statute was held to permit removal only in the rare case in which (1) the federal right at issue stemmed from a law providing expressly for equal civil rights; (2) the conduct with which the removal petitioners were charged was arguably protected by the federal law in question; and (3) the federal law granted the further right not only to engage in the conduct in question, but to be free from arrest and prosecution by state officials for that conduct. Focusing on the third requirement, the Court today holds that Title I of the 1968 Civil Rights Act, 18 U.S.C. § 245, does not provide a right to be free from arrest and prosecution for engaging in specific federally protected conduct. In my view, the three requirements from Peacock were satisfied to the extent necessary to call for a full hearing on the removal petition, and I would therefore vacate the judgment of the Court of Appeals and remand for further proceedings.1

* The Court of Appeals based its ruling on the first of the three requirements, holding that § 245 was not a 'law providing for . . . equal civil rights.' The court reasoned that the statute failed to meet this requirement because it did not 'provide' any substantive rights but merely supplied a criminal sanction for the violation of rights that had been elsewhere created. This misses the point.2

Even if § 245 is regarded solely as creating criminal penalties for interference with previously established civil rights, it certainly 'provid(es) for' those rights by facilitating their exercise. Congress plainly intended § 245 in part to render certain rights meaningful, even though the rights themselves had in some instances been created in prior legislation. See S.Rep.No.721, 90th Cong., 1st Sess., 4—6, U.S.Code Cong. & Admin.News, 1968, p. 1837 (1967); H.R.Rep.No.473, 90th Cong., 1st Sess., 5—7 (1967). If Congress had provided private legal or equitable remedies for the vindication of pre-existing rights, such a statute would certainly be deemed one 'providing for' equal civil rights. The fact that Congress has invoked the criminal sanction to protect and enforce those rights rather than relying on private remedies should make no difference.

In any event, § 245 does more than enforce pre-existing rights: in several respects it creates rights that had no previous statutory recognition. First, the statute protects not only those participating in the exercise of equal civil rights, but also those 'encouraging other persons to participate' and those 'participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate,' § 245 (b)(5). See S.Rep. No. 721, supra, at 4. Second, because it is based on § 5 of the Fourteenth Amendment rather than the Commerce Clause, § 245 goes beyond the specific protections of prior civil rights laws in various particulars. As the House Report noted:

'(T)he scope of the activities described in section (245(b)) is not limited to the scope of the 'rights' created by other Federal laws outlawing discrimination with respect to those activities. Accordingly, in appropriate cases, . . . the bill would reach forcible interference with employment, regardless of the size and regardless of the public or private character of the employer; with service in all of the described types of places of public accommodation, whether or not they happen to fall within the scope of the 1964 Civil Rights Act; and with common carrier transportation whether interstate or intrastate.' H.R.Rep. No. 473, supra, at 5.

Finally, the statute goes beyond protecting against racially motivated misconduct by state officials and those acting in concert with them. It reaches racially motivated conduct by private individuals as well, thus extending both a right against, and a remedy for, certain private misconduct. The inclusion of private individuals within the reach of § 245 was a topic of intense dispute during the congressional debates over the statute. Both the advocates and opponents of the statute recognized that § 245 would criminalize a whole new sphere of conduct and thus significantly expand the scope of federal statutory protection for civil rights. See S.Rep. No. 721, supra, at 7—8, 21—26; 113 Cong.Rec. 22763—22764 (1967); 114 Cong.Rec. 319, 389—391, 539—544 (1968). In view of the statute's broad remedial purposes and effects, only on the most grudging reading can it be said not to 'provid(e) for equal civil rights.'

Although neither the Court of Appeals nor this Court has discussed the second requirement for § 1443 removal, I believe that under Rachel and Peacock a sufficient showing has been made to require further proceedings below. The Court in Peacock established that where the state criminal charge includes allegations of conduct clearly unprotected by federal law, removal is not available. In that case, the state charges included obstruction of the streets, assault, and interference with a police officer—all forms of conduct not even arguably protected under federal law. 384 U.S., at 826—827, 86 S.Ct., at 1811—1812.3

In Rachel, by contrast, the Court observed that the defendants had been charged only with violating the state criminal trespass statute, which required that a person leave a place of business when requested to do so by the owner. The defenants alleged in their removal petitions that they had remained on the premises of the privately owned restaurants where they were arrested in the course of seeking service to which they were entitled by the 1964 Civil Rights Act. Thus none of the conduct that the defendants were allegedly engaged in fell plainly outside the protection of federal law, as was the case in Peacock. Accordingly, the District Court was instructed to hold a hearing to determine whether the defendants were ordered to leave the restaurant facilities solely for racial reasons, and whether the conduct was in fact within the protection of federal law—in that case by determining whether the restaurants in question were within the coverage of the Civil Rights Act. 384 U.S., at 805 and n. 31, 86 S.Ct., at 1797.

On this point, the instant case is controlled by Rachel rather than Peacock. The arrest affidavits charged merely that the petitioners had conspired to promote a boycott of merchants and businessmen and that they had engaged in and promoted acts 'injurious to trade or commerce among the public.' App. 3—17. In their removal papers, the petitioners alleged that the conduct underlying their arrests on these charges was wholly within the protection of federal law.4 There is nothing in the arrest affidavits or the statute under which the petitioners were charged that rebuts this claim. The line between Rachel and Peacock is that between 'prosecutions in which the conduct necessary to constitute the state offense is specifically protected by a federal equal rights statute under the circumstances alleged by the petitioner, and prosecutions where the only grounds for removal are that the charge is false and motivated by a desire to discourage the petitioner from exercising or to penalize him for having exercised a federal right.' New York v. Davis, 411 F.2d 750, 754 (CA2), cert. denied, 396 U.S. 856, 90 S.Ct. 119, 24 L.Ed.2d 105 (1969). Like Rachel, this case falls into the former category. Accordingly, the courts below should determine whether the petitioners' conduct was in fact protected. If it was, the prosecutions should be dismissed.5

Finally, the Rachel-Peacock test requires that the federal law invoked by the petitioners must do more than merely provide a defense to conviction: it must immunize them from arrest and prosecution for the conduct in question. In Rachel, the Court held that this test was met, since § 203 of the 1964 Civil Rights Act provided: 'No person shall . . . (c) punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 or 202.' 42 U.S.C.A. § 2000a 2(c). The rights protected by § 201 included the right to 'full and equal enjoyment of the . . . facilities . . . of any place of public accommodation . . . without discrimination . . . on the ground of race.' 42 U.S.C. § 2000a(a). Viewing this language in light of a subsequent construction in Hamm v. City of Rock Hill, 379 U.S. 306, 311, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964), the Court in Rachel concluded that if the facts in the removal petition were found to be true, the defendants would not only be immune from conviction under the Georgia trespass statute, but they would also have a right under the Civil Rights Act of 1964 'not even to be brought to trial on these charges in the Georgia courts.' 384 U.S., at 794, 86 S.Ct., at 1791.

The Court today distinguishes the language of 18 U.S.C. § 245 from that of § 203(c) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a—2(c), holding that the former does not grant the same immunity from prosecution that was implied in the latter. To me, the language of the two statutes is not sufficiently different to support such a distinction. While the statute in Rachel provided that no person should 'punish or attempt to punish' a person engaged in conduct protected under the Act, the statute at issue here provides sanctions against anyone who, 'whether or not acting under color of alw, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with' any person who is engaged in protected civil rights activity or is 'lawfully aiding or encouraging other persons to participate' in various protected activities. The use of force or the threat of force to intimidate or interfere with persons engaged in protected activity fairly describes an 'attempt to punish' the same persons, and it would seem plainly to include pretextual arrests such as are alleged to have occurred in this case.6

Besides the difference in language between § 203(c) and § 245, the Court points to two other factors that it contends provide a further basis for denying removal here. I do not find either to be dispositive.

First, the Court relies on § 245(a)(1), in which Congress emphasized that § 245 was not intended to prevent 'any State . . . from exercising jurisdiction over any offense over which it would have jurisdiction in the absence of this section . . ..' The Court argues that this 'nonpreemption' provision indicates that § 245 'appears to disavow any intent to interrupt . . . state prosecutions (for offenses such as boycotting and conspiracy).' Ante, at 224. I cannot agree that § 245(a)(1) means to do that much. The legislative history of this subsection indicates that it was intended to avoid the risk that § 245 would be read to bar or interfere with state prosecutions of those who violated § 245 as well as parallel state laws. The fear was that § 245, because of its potential breadth, might appear to give pre-emptive authority to federal law officers in prosecuting a broad spectrum of offenses that were traditionally subject to local criminal jurisdiction.7 There is no indication in the legislative history that § 245(a)(1) was intended to defeat removal of state prosecutions by those protected under the Act, nor is there any suggestion that it was meant to reduce the protection for the beneficiaries of § 245 in any other way.

Second, the Court relies heavily on the main purpose of § 245: to penalize violent interference with the exercise of specific rights. Certainly, violent interference with the exercise of civil rights was a primary target of the statute. But curbing private violence was not the drafters' sole aim. The Act was intended to reach law enforcement officers as well as private citizens, and the process of arrest and prosecution in state courts is precisely the means by which state officials, acting under color of state law, can most plausibly exert force or the threat of force to interfere with federally protected rights. See Perkins v. Mississippi, 455 F.2d 7, 11, 39—41 (CA5 1972) (Brown, C.J., dissenting).

The Court is correct, of course, in noting that Congress did not expressly indicate that § 245 should be available as a means of removing prosecutions to federal courts. But the Court in Rachel did not require any showing that Congress had specifically intended the statute in issue to be used as a vehicle for removal. All that was necessary was that the statute protect against the institution of criminal actions against those engaged in protected federal rights, and in my view that standard is met here.8

If the facts of this case are as alleged in the removal petition, then the protest effort of the petitioners and their group, although well within the protection of federal law, has been muffled, if not altogether stilled, by discriminatory and cynical misuse of the state criminal process. The Court makes reference to the possibility of federal injunctive relief, which would be available in this case if the petitioners can show that the arrests and prosecutions were instituted in bad faith or for the purpose of harassment. See Dombrowski v. Pfister, 380 U.S. 479, 482, 490, 85 S.Ct. 1116, 1118, 1122, 14 L.Ed.2d 22 (1965); Younger v. Harris, 401 U.S. 37, 47—50, 91 S.Ct. 746, 752—753, 27 L.Ed.2d 669 (1971). I only hope that the recent instances in which this Court has emphasized the values of comity and federalism in restricting the issuance of federal injunctions against state criminal and quasi-criminal proceedings will not mislead the district courts into forgetting that at times these values must give way to the need to protect federal rights from being irremediably trampled. The possibility that the petitioners might be vindicated in state-court criminal actions or through subsequent habeas corpus relief will do little to restore what has been lost: the right to engage in legitimate, if unpopular, protest without being subjected to the inconvenience, the expense, and the ignominy of arrest and prosecution. If the federal courts abandon persons like the petitioners in this case without a fair hearing on the merits of their claims, then in my view comity will have been bought at too great a cost.

I respectfully dissent.