Potter Stewart

“ Stauder and Rives thus teach that removal is not warranted by an assertion that a denial of rights of equality may take place and go uncorrected at trial. Removal is warranted only if it can be predicted by reference to a law of general application that the defendant will be denied or cannot enforce the specified federal rights in the state courts. ”

“ Many such cases of denial might have been apprehended, and some existed. Colored men might have been, as they had been, denied a trial by jury. They might have been excluded by law from any jury summoned to try persons of their race, or the law might have denied to them the testimony of colored men in their favor, or process for summoning witnesses. * * * In all such cases a defendant can affirm, on oath, before trial, that he is denied the equal protection of the laws or equality of civil rights. ”

“ The statutory phrase 'any law providing for * * * equal civil rights' did not appear in the original removal provision in the Civil Rights Act of 1866. That provision allowed removal only in cases involving the express statutory rights of racial equality guaranteed in the Act itself. The first section of the 1866 Act secured for all citizens the 'same' rights as were 'enjoyed by white citizens' in a variety of fundamental areas. ”

“ Rives, however, the defendants could point to no such state statute as the basis for removal. Their petition alleged that strong community racial prejudice existed against them, that the grand and petit jurors summoned to try them were all white, that Negroes had never been allowed to serve on county juries in cases in which a Negro was involved in any way, and that the judge, the prosecutor, and the assistant prosecutor had all rejected their request that Negroes be included in the petit jury. Hence, the defendants maintained, they could not obtain a fair trial in the state court. ”

“ In Strauder, the removal petition of a Negro indicted for murder pointed to a West Virginia statute that permitted only white male persons to serve on a grand or petit jury. Since Negroes were excluded from jury service pursuant to that statute, the defendant claimed that the 'probabilities' were great that he would suffer a denial of his right to the 'full and equal benefit of all laws and proceedings in the State of West Virginia. ”

“ The removal petition may fairly be read to allege that the defendants will be brought to trial solely as the result of peaceful attempts to obtain service at places of public accommodation. [21] The Civil Rights Act of 1964 endows the defendants with a right not to be prosecuted for such conduct. As noted, § 201 (a) guarantees to the defendants the equal access they sought. Section 203 then provides that, '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.' (Emphasis supplied.) ”

“ But the only relevant Virginia statute to which the petition referred imposed jury duty on all males within a certain age range. Thus, the law of Virginia did not, on its face, sanction the discrimination of which the defendants complained. This Court held that the petition stated no ground for removal. Critical to its holding was the Court's observation that § 641 of the Revised Statutes authorized only pre-trial removal. ”

“ Members of the so-called white or Caucasian race are similarly treated and discriminated against when accompanied by members of the Negro race.'
Each defendant, according to the petition, was then indicted under the Georgia statute making it a misdemeanor to refuse to leave the premises of another when requested to do so by the owner or the person in charge. [1] On these allegations, the defendants maintained that removal was authorized under both subsections of 28 U.S.C. § 1443. ”

“ When he has only an apprehension that such rights will be withheld from him when his case shall come to trial, he cannot affirm that they are actually denied, or that he cannot enforce them. Yet such an affirmation is essential to his right to remove his case. By the express requirement of the statute his petition must set forth the facts upon which he bases his claim to have his case removed, and not merely his belief that he cannot enforce his rights at a subsequent stage of the proceedings. ”

“ We granted certiorari to consider the applicability of the removal statute to the circumstances of this case. 382 U.S. 808, 86 S.Ct. 39, 15 L.Ed.2d 58. No issues touching the constitutional power of Congress are involved. We deal only with questions of statutory construction. [4]
The present statute is a direct descendant of a provision enacted as part of the Civil Rights Act of 1866. 14 Stat. 27. The subsection that is now § 1443 (1) was before this Court in a series of decisions beginning with Strauder v. ”