(dissenting):
The State of North Carolina has charged Golden Frinks and George Kirby, two individuals who in the past had been active in peaceful civil rights demonstrations, with engaging in riots at Piece Goods Shop and J. M. Fields in Wilmington, North Carolina. Additionally, Frinks was charged with inciting the riots.
The two men filed removal petitions under 28 U.S.C. § 1443(1),1 alleging that the prosecutions were an attempt by the state to punish them for having exercised or attempted to exercise rights and privileges secured by Title II of the 1964 Civil Rights Act.2 They deny being present at the stores at the time alleged, and alternatively contend that if present, they were nonviolent and did not engage in any riot.
Two diametrically opposed claims are presented. On the one hand, the State of North Carolina maintained that the defendants are being prosecuted for entering the two stores and tipping over clothing racks. On the other hand, Kirby and Frinks deny these allegations of the state, and assert moreover that the charges were “trumped up” in order to punish them for having exercised federally protected rights.
The majority recognizes the petitioners’ federal right not to be prosecuted for seeking to enjoy “public accommodations.” 3 They point out additionally, however, that there is no federally protected right to engage in a riot. The difficulty in the instant case is that the real facts cannot be determined without an evidentiary hearing.
The question here becomes the important one under 28 U.S.C. § 1443(1) which this court expressly left open in South Carolina v. Moore, 447 F.2d 1067 (4 Cir. 1971), “whether or not a district court is properly required to resolve such a factual issue [as violence] when considering a removal petition, or whether it may confine its view to the allegations of the state charge if they unequivocally charge violent conduct * * supra, 447 F.2d at 1071, n. 9. Today, this question is answered, but in a manner which accords inadvisable and unnecessary deference to state prosecutions.
The majority would have a district court summarily dismiss a removal petition without an evidentiary hearing whenever the state has alleged a crime of which violence is an element. A petitioner is thereby denied the opportunity to vindicate his contention that, by means of a bogus prosecution, the state is attempting to mete out punishment for the exercise or attempted exercise of rights secured by the public accommodations section of the Civil Rights Act of 1964. The state prosecutor is permitted to attach a convenient tag to a defendant’s conduct, and this labeling, rather than what the individual was actually doing, becomes the test of removability. Such a result, according to the majority, is dictated by Greenwood v. Peacock, 384 *646U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).
Respectfully, I disagree. Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), and not Peacock is controlling here. The petitioners in Peacock and Rachel relied on entirely different rights. The' Supreme Court in Peacock recognized that the petitioners there were bottoming their arguments on rights supposedly guaranteed by the First and Fourteenth Amendments to the Constitution and the Voting Rights Acts of 1964 and 1965. Peacock, supra, 384 U.S. at 811, n. 3, 86 S. Ct. 1800, 16 L.Ed.2d 944. In the instant case, as in Rachel, the petitioners alleged violation of rights guaranteed by the public accommodations section of the Civil Rights Act of 1964. This latter legislation, unlike the voting rights acts, contains a . specific prohibition against state action that “punish [es] or attempt[s] to punish.” 4 This significant difference was noted by the Supreme Court in Peacock itself. The Court there declared that “Section 203(c) of the Civil Rights Act of 1964 * * * explicitly provides that no person shall ‘punish or attempt to punish any persons for exercising or attempting to exercise any right or privilege’ secured by the public accommodations section of the Act. None of the federal statutes invoked by the defendants in the present case contains any such provision. See note 3 and note 7 supra.” Peacack, supra, 384 U.S. at 827 n. 25, 86 S.Ct. at 1812 (emphasis added).
The majority apparently does not perceive it to be a fundamental feature of this case that it deals with civil rights legislation that bans punishing or attempts to punish rather than legislation prohibiting intimidating or attempts to intimidate. Although New York v. Davis, 411 F.2d 750 (2 Cir. 1969), is not cited, my brethren apparently adopt Chief Judge Friendly’s equation for the purposes of removal under § 1443(1) of the two types of statutes. Significantly, after a year “of further study of the Peacock opinion,” Judge Friendly indicated second thoughts and emphasized that the question of whether the two types of statutes can be equated for removal purposes was left open.5 *647The question left open by Judge Friendly is the central question imperatively demanding an answer in the instant case.
To deny an evidentiary hearing to petitioners such as Kirby and Frinks on their removal petitions solely because the state charges them with a crime encompassing an element of violence dilutes and severely limits the rights and privileges which Congress sought to specially immunize by Section 203(c). If the allegations of the petitioners in this case should prove correct, then the state is guilty of an attempt to punish persons for the exercise of rights secured by the public accommodations section — a result which Congress specifically sought to forbid when it enacted Section 203(c). District courts must decide the truthfulness of removal petitions if Section 203(c) is to retain vitality and successfully immunize from state interference this type of statutorily protected conduct.
The Supreme Court in Rachel established a two-pronged test for removal under Section 1443(1), requiring that petitioners demonstrate “both that the right upon which they rely is a ‘right under any law providing for * * * equal civil rights,’ and that they are ‘denied or cannot enforce’ that right in the courts of [the state].” 384 U.S. at 788, 86 S.Ct. at 1788. The first prong of this test is satisfied since the public accommodations section of the Civil Rights Act of 1964 creates rights “under any law providing for * * * equal civil rights.” Section 203(c) enjoins “any attempt to punish” persons for exercising these rights. Hamm v. City of Rock Hill, 379 U.S. 306, 311, 85 S.Ct. 384, 389, 13 L.Ed.2d 300 (1964), has interpreted this section to include within its prohibition prosecution in a state court. Hence, if the petitioners’ allegations in this case are found to be true and the state is indeed attempting to punish them for exercising rights guaranteed by the public accommodations section, then there is a “denial of equal civil rights,” the two prongs of the Rachel test are satisfied, and removal is in order.
The existence of a conflict between allegations in a removal petition and those in the criminal indictment is a rational ground for holding a hearing to resolve the conflict; it is certainly no reason for dismissing the petition out of hand. Only an evidentiary hearing can insure that the state is not unduly interfering with specially protected civil rights. For “the mere pendency of prosecutions [where such rights are involved] 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. It is no answer in these circumstances that the defendants might eventually prevail in the state court. The burden of having to defend the prosecution is itself the denial of a right explicitly conferred by the Civil Rights Act of 1964 as construed in Hamm v. City of Rock Hill.” Rachel, supra, 384 U.S. at 805, 86 S.Ct. at 1797. Nor can it be said that the interposition of a hearing would erode the state’s prosecution. If the state can establish a just basis for its prosecution, the removal petition will be denied and the case will be remanded for trial in the state court.
“The petition for removal [must] be determined not by the appellation or euphemism of the charge but by what the movant [petitioner] was actually doing.” Walker v. Georgia, 417 F.2d 1, 5 (5 Cir. 1969). Whether the alleged offense be trespass as in Rachel, or a crime encompassing an element of violence such as aggravated battery, State of Louisiana v. Perkins, 335 F.Supp. 366 (E.D.La.1971), the Fifth Circuit holds a hearing to determine whether or not the charge is spurious, intended only to punish the defendants for exercising protected rights. Walker, supra; Whatley v. City of Vidalia, 399 F.2d 521 (5 Cir. 1965), Wyche v. State of Louisiana, 394 F.2d 927 (5 Cir. 1967). I think that Section 203(c) interdicts “attempts to punish” and mandates an evidentiary *648hearing to defendants claiming that they are being prosecuted for the exercise of rights under the public accommodations section. Any other reading of the statute would emasculate the immunization clause of Section 203(c). Unless there is an evidentiary hearing, the defendant charged with violent conduct will always be forced to submit to state prosecution to vindicate his Title II rights.' Such a practice permits the characterization given by the prosecution to the conduct in question to become the touchstone for removal or non-removal.
It is true, as has been suggested, that the defendant may ultimately prevail in the state courts, or that he has other federal remedies including direct review by the Supreme Court or habeas corpus. But the burden of having to defend a prosecution is in itself a denial of a right immunized by Section 203(c). Rachel, supra, 384 U.S. at 780, 86 S.Ct. 1783, 16 L.Ed.2d 925.
The majority asserts a distinction between this case and Rachel in terms of probability. “A hearing,” my colleagues concede, “was justified in Rachel by the great probability that a federal right would be denied if the prosecution were not removed.” [Majority Opinion at p. 642.] But they argue in the following paragraph that such probability does not exist in the instant case:
As an exercise in probability prediction, we may confidently assert that there is a far greater probability that a trespass warrant will be flawed by a policy of invidious discrimination than that a riot warrant will be similarly invalidated. This is so because the riot warrant will be valid if violence (the essential element) occurred, whereas the trespass warrant may be void even though presence over the protest of the owner (the essential element) is admitted. This is so, in turn, because peaceful presence is protected and violence is not. (Majority Opinion at p. 643.)
The logic of the distinction adumbrated by the majority eludes me. If the state wishes to “punish” an individual for exercising protected rights, and it is known that a trespass prosecution will be removed to federal court while a charge of inciting to riot will not be removed, it seems more likely that the state will charge the person with inciting to riot rather than trespass. Should we choose to analyze the instant ease in terms of probability of discriminatory state motive, then it follows that if the allegations of the petitioner in their removal petitions are true, just as in Rachel “the mere pendency of [these] 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.” Veracity of the removal petition can be determined only in a preliminary evidentiary hearing.
Whenever the state prosecutes a person and he petitions for removal to the federal district court, alleging that he is being prosecuted solely for having peacefully exercised rights immunized by Section 203(c), the district court should hold a hearing to determine the validity of the petitioner’s claim. State action cannot be shielded from scrutiny by a prosecutor’s decision to choose, one rather than another appellation to denote an activity. Only by requiring such an evidentiary hearing can we insure that protected activity will not be punished by criminal prosecution.
Therefore I dissent.
. 28 U.S.C. § 1443(1) provides:
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.
. 42 U.S.C. §§ 2000a to 2000a-6.
. 42 U.S.C. § 2000a provides that:
All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities * * * of any place of public accommodation * * * without discrimination or segregation on the ground of race, color, religion, or national origin.
Title II of the 1964 Civil Rights Act is commonly called the public accommodations section.
. Section 203 (e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-2(e) declares that “No person shall punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 2000a or 2000a-l of this title.”
. Judge Friendly noted that:
As a result of further study of the Peacock opinion, we are not so sure as a year ago, New York v. Davis, supra, 411 F.2d at 754, n. 3, that civil rights statutes that ban intimidating, threatening or coercing are to be equated, for purposes of removal under § 1443(1), with a statute that prohibits punishing or attempting to punish, language that reads directly on the state. As already noted, one of the two significant points of distinction taken in Peacock was that “no federal law confers immunity from state prosecution on such charges,” 384 U.S. at 827, 86 S.Ct. at 1812. Justice Stewart annotated this with a reference to the provision in § 203(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-2 (c), that no person shall “punish or attempt to punish any person” for exercising rights to public accommodations, a statement that “none of the federal statutes invoked by the defendants in the present case contains any such provision,” and a cross-reference to notes 3 and 7. Note 3 referred to the provisions of the Voting Rights Acts of 1957 and 1965 described in the text, with a “See also” citation to the latter. Commentators apparently believe, although with regret, that the Court meant to confine the Rachel basis for removal to “unique” statutes, see 384 U.S. at 826, 86 S.Ct. 1800, which in terms prohibit prosecution. [Citations omitted.] On the other hand, it is arguable that citation in a footnote would be a rather elliptical way to decide such an important question, and that the limitation of removal to statutes using the words “punish or attempt to punish” is confined to cases like Peacock where the conduct was not within the protection of a federal civil rights act when it occurred. We leave the question open.
New York v. Horelick, 424 F.2d 697, 702-703 n. 4 (2 Cir. 1970).