with whom WISDOM, GOLDBERG and AINSWORTH, Circuit Judges, join dissenting :
I
For the reasons set forth in my extended dissent to the panel’s opinion *1372Perkins v. Mississippi, 5 Cir., 1972, 455 F.2d 7, 11 to 61, I continue steadfastly in the belief that denial of a right of removal, 28 U.S.C.A. § 1443(1), cannot be justified.
II
I am of the view that this serious question — never free from doubt as one attempts to match Rachel against Peacock — deserves an articulated discussion of the controlling principles. The panel opinion never discusses the appropriate standard — probable cause versus initiation and maintenance of the prosecution for the purpose of harassing or subjecting persons to state criminal sanctions for exercising rights and benefits guaranteed by the constitution or federal laws and stated in terms of race.
The number of post-Peacock cases we have had,1 the difficulty at times of reconciling each of them, and the importance of the federal court being open to prevent, at the outset, the use of the State’s awesome machinery as a means of discouraging the assertion of federally guaranteed rights (in terms of race), calls on this Court to expound fully what standards are to guide District Courts.
The panel’s opinion, now embraced by the full Court, approaches it wholly as one of fact-findings under F.R.Civ.P. 52(a) without even so much as a mention of the standard to be applied.2
It is even worse that the only discussion of whether 18 U.S.C.A. § 245 confers a right or benefit a la Rachel-Peacock is virtually limited to the adoption of the results ordained by the Second and Third Circuits — in cases in no way related to the situation here where there is simply no basis for initiating or maintaining these Mississippi charges.3
Ill
Implicit in the District Court’s action, which is now affirmed by this Court, is the notion that 18 U.S.C.A. § 245 is not a statute which in the Rachel-Peacock sense confers benefits or rights in terms of race. The only possible reason ever asserted — but, curiously, not in the Court’s decision — is that this is a criminal statute which prohibits acts, not guarantees rights.
Obviously, Rachel-Peacock did not speak in these rigid terms of criminal or civil sanctions. No one can look at the atmosphere in which § 245 and its re*1373lated parts were enacted without sensing that the whole thrust was a strong, immediate, indignant congressional response to spectacularly violent outrages against Negroes.
I cannot believe that Congress had anything less in mind. That being so, removal was proper in the first instance on the positive allegations of the removal petition. It was therefore essential that the District Court then conduct an evidentiary hearing on the basis of proper legal standards to determine whether, as adequately alleged, any one or more or all of these prosecutions was initiated and maintained out of a purpose of reprisal for the efforts of Blacks and their supporters to challenge the racial discrimination in Mendenhall, Mississippi which, although a small rural community, was for the Constitution the whole of the United States of America.
. The Fifth Circuit has interpreted the scope of removal under § 1443 seventeen times in the wake of Peacock and Rachel. Eleven have allowed removal; Wyche v. Louisiana, 5 Cir., 1967, 394 F.2d 927; Orange v. Alabama, 5 Cir., 1967, 386 F.2d 829; Achtenberg v. Mississippi, 5 Cir., 1968, 393 F.2d 468; Griffin v. Louisiana, 5 Cir., 1968, 395 F.2d 991; Walker v. Georgia, 5 Cir., 1969, 405 F.2d 1191; Walker v. Georgia, 5 Cir., 1969, 417 F.2d 1; Walker & Forman v. Georgia, 5 Cir., 1969, 417 F.2d 5; City of Baton Rouge v. Douglas, 5 Cir., 1971, 446 F.2d 874; Whatley v. Vidalia, 5 Cir., 1968, 399 F.2d 521; Thompson v. Brown, 5 Cir., 1970, 434 F.2d 1092; and Davis v. Alabama, 5 Cir., 1968, 399 F.2d 527 (Removed as to one defendant; remanded as to the other). The other six have denied the removal right: Hartfield v. Mississippi, 5 Cir., 1966, 363 F.2d 869; Sunflower County Colored Baptist Association v. Trustees of Indianola Municipal Separate School District, 5 Cir., 1966, 369 F.2d 795; Bass v. Mississippi, 5 Cir., 1967, 381 F.2d 692; SNCC v. Smith, 5 Cir., 1967, 382 F.2d 9; Sinclair v. Louisiana, 5 Cir., 1967, 384 F.2d 310; Williams v. Tri-County Community Center, 5 Cir., 1971, 452 F.2d 221.
. Even as to the erroneous “probable cause” standard there is simply no basis for most of the charges — concealing a deadly brick, resisting arrest while surrounded with twelve officers in the safety of the bastille, shaving a subjugated subject’s head and the like. See Appendices A and B to dissent, 455 F.2d 7, 59-61.
. I recognize that some of the charges, e. g., the traffic charge against Huemmer, might pass muster, I speak here in terms of the manhandling of persons in a way that permits, if it does not compel, a finding that the actions of Mississippi authorities could be accounted for only as a. reprisal for participating in the Mendenhall demonstrations or supporting those who did.