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March 31, 1970

Donald D. POWERS

Higginbotham, District Judge.

The opinion of the court was delivered by: HIGGINBOTHAM

The petitioner, a defendant in a state criminal prosecution, has petitioned this court to remove the criminal proceedings now pending against him in the courts of the Commonwealth of Pennsylvania to the federal district court and to permanently enjoin those proceedings. He alleges that officers of the Commonwealth have violated his constitutional rights under the Civil Rights Act, 42 U.S.C. § 1981 et seq.

 After being allegedly battered by the two officers, petitioner was taken into custody but released without formal charges purportedly because of the lack of any evidence of petitioner's participation in the racial disturbance. The following day the petitioner went to police headquarters to file a complaint against the two officers who had allegedly beaten him. More than four days later, when petitioner telephoned to inquire what disposition had been taken on his complaint against the two officers, he was informed by an officer that a warrant was being issued for his arrest.

 Petitioner was released on nominal bail of one dollar and ordered to appear at a preliminary hearing after he had voluntarily appeared at the police station. Although petitioner and his counsel appeared at the appointed time the state's witnesses, including the officers allegedly assaulted were not present. The presiding magistrate denied petitioner's motion to dismiss the charges and granted a continuance to the government, over petitioner's strong objection. Furthermore, petitioner contends that his rights were denied when his counsel was not allowed to record electronically the proceedings.

 Upon oral argument before this Court, petitioner's counsel conceded that the allegations of the complaint failed to meet the requirements for removal to federal court under 28 U.S.C. § 1443. That section allows for removal of a pending state criminal prosecution brought:

"(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;
(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law."

 But nonetheless, counsel for the petitioner maintained that this Court should enjoin the state prosecution on these same allegations. In fact Counsel's memorandum of law argues that the primary relief sought is an injunction. *fn1"

 My examination of the cases cited by petitioner convincingly demonstrates that there is no case law supporting the proposed theory. The posture of this case is such, however, that a somewhat lengthier than usual explanation of the proposed theory is appropriate because the proposed basis for equitable relief goes to the essence of the administration of criminal justice in our federal system. It would indeed be surprising in this case if the petitioner were deemed entitled to an injunction after his concession that he is not entitled to removal to federal court on the same allegations. From a functional point of view, removal from state to federal court would mean that the underlying factual issues would be resolved by a federal court. In order to decide whether to issue a permanent injunction on the theory proposed by counsel for the petitioner, I would be required to hold a full hearing and resolve these same underlying facts of the petitioner's innocence or guilt. These very same issues are pending before the state courts. The results of the legal analysis of the cases cited by counsel prevents the petitioner from achieving by indirection through a permanent injunction what he admits he is not entitled to achieve through removal. Such a fundamental disruption in the relationship of federal and state courts in the administration of criminal justice should not be achieved through the niceties of labelling when the same fundamental facts are alleged and the same relief is sought.

 The principal case relied on by the petitioner to support his theory is Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). That case held that a federal court may enjoin a state criminal prosecution where the statute under which the prosecution is threatened is unconstitutional on its face on the ground that the statute violates the First Amendment. Of course, the instant complaint contains no allegations of deprivation of any First Amendment freedoms by the chilling effect of an overly broad and vague state statute. Rather the petitioner relies more specifically on the following language extrapolated from the Dombrowski opinion:

"First, appellants have attacked the good faith of the appellees in enforcing the statutes, claiming that they have been invoked, and threaten to continue to invoke, the criminal process without any hope of ultimate success, but only to discourage appellants' civil rights activities. If these allegations state a claim under the Civil Rights Act, 42 U.S.C. 1983, as we believe they do, see Beauregard v. Wingard, 230 F. Supp. 167 (D.C.S.D. Calif. 1964); Bargainer v. Michal, 233 F. Supp. 270 (D.C.N.D. Ohio, 1964), the interpretation ultimately put on the statutes by the state courts is irrelevant * * * *fn3" It would not alter the impropriety of appellees' invoking the statute in bad faith * * *." 380 U.S. 479 at 490, 85 S. Ct. 1116 at 1123, 14 L. Ed. 2d 22.

 It is indisputable that the plaintiffs in Dombrowski stated a cause of action against the defendants in that case under 42 U.S.C. § 1983. *fn4" The defendants in Dombrowski were state officials charged with prosecuting the state criminal laws under attack by the plaintiffs. These officers were the state governor, police and law enforcement agents, and the chairman of the state legislative investigative committee. Under the Supreme Court's interpretation of Section 1983, the individual police officers and other ...

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