360 F2d 282 Kaslo v. City of Meridian Mississippi

360 F.2d 282

Greg KASLO et al., Appellants,

No. 22818.

United States Court of Appeals Fifth Circuit.

May 12, 1966.

Claudia H. Shropshire, Detroit, Mich., L. H. Rosenthal, Jackson, Miss., for appellants.

Thomas Y. Minniece, Meridian, Miss., for appellee.

Before RIVES and THORNBERRY, Circuit Judges, and GARZA, District judge.


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These cases arise out of the arrest of the fifteen appellants for obstructing a public sidewalk while picketing the Lamar Hotel on February 16, 1965. They were charged with violating Ordinance No. 20-18 of the City of Meridian, and Appellant Kaslo was, in addition, charged in the Lauderdale County Court with violating Section 2296.5 of the Mississippi Code, which also prohibits the willful obstruction of 'the free, convenient and normal use of any public sidewalk * * *.'


The cases were removed to the court below pursuant to 28 U.S.C. 1443, and these appeals arise out of the action of the District Court in remanding all of the cases on Appellees' motions to remand, without holding an evidentiary hearing.


All of the cases were remanded on March 29, 1965, which was shortly after our decision in Rachel v. State of Georgia, 342 F.2d 336, 5 Cir. 1965, but before the case of Peacock v. City of Greenwood, 347 F.2d 679, 5 Cir. 1965, was decided.


As we have stated before, a motion to remand, or an answer denying material facts, is not sufficient to overcome a well-pleaded and verified removal petition, and a full evidentiary hearing must be provided. Smith et al. v. City of Jackson, 5 Cir., 358 F.2d 705. On Petition for Reconsideration April 20, 1966; Cooper v. State of Alabama, 353 F.2d 729, 5 Cir. 1965; Cox v. Louisiana, 348 F.2d 750, 5 Cir. 1965; Peacock v. City of Greenwood, supra; Rachel v. State of Georgia, supra; State of Tennessee v. Keenan, 13 F.Supp. 784, W.D.Tenn.1936.


Although we believe that the petitions for removal filed in the instant cases are legally sufficient and required the District Court to provide an opportunity for a full hearing thereon, we make the same disposition of this case as was made on petition for reconsideration in Smith, et al. v. City of Jackson, supra, so that the District Court may determine this case in the light of the forthcoming opinions of the Supreme Court in Rachel and Reacock.


This case is remanded with instructions that it be held pending the Supreme Court's disposition of Rachel and Peacock.


The judgment of the District Court is, therefore, reversed and remanded.