GOURLEY, District Judge.
This is a Petition seeking the removal of a criminal proceeding pending in the Criminal Division of the Court of Common Pleas of Allegheny County, Pennsylvania, pursuant to Section 1443 of Title 28 of the United States Code. In the State Court, a Grand Jury has indicted the five petitioners for the common law offense of inciting to riot, stemming from their activities on August 26, 1969, during public demonstrations in support of the Black Construction Coalition's attempt to secure equal employment opportunities in the construction industry.
Upon receipt and review of the Petition, the service and filing of which effectuates removal under the provisions of Section 1446(e) of Title 28 of the United States Code, the Court entered an Order on the 21st day of May, 1970, summoning the relevant State records and calling for argument upon the legal sufficiency of the Petition. Upon review of the Petition and State records and consideration of the oral arguments and briefs of counsel and the law applicable herein, the Court is of the opinion that the instant criminal proceedings must be remanded to State jurisdiction.
Paragraph five is the essential allegation of the Petition, and it reads as follows:
"5. Petitioners were arrested on Tuesday, August 26, 1969, at approximately 12:00 noon, by police officers of the City of Pittsburgh, while lawfully and peacably marching solely for the purpose of enforcing the affirmatively granted federal equal civil rights set forth above and secured, guaranteed and protected by the Constitution and laws of the United States, to wit the CIVIL RIGHTS ACT and in particular Title 42 United States Code, Sections 1981, 1983, 2000d, and 2000e-2(a)(c) & (d), and the 1st and 14th Amendments of the U.S. Constitution." (Emphasis supplied.)
It is the considered opinion of the Court that the facts as alleged are insufficient upon which to found a removal to this Court under 28 U.S.C. § 1443. The scope of removal under Section 1443 is circumscribed and the limits definitively stated in two companion cases decided by the Supreme Court of the United States, Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1965) and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1965). Of the two, the latter case governs here.
As interpreted by the Supreme Court in City of Greenwood, Miss. v. Peacock, supra, at 821, 86 S. Ct. 1800, subsection (2) of Section 1443 permits of removal only by federal officers and those acting under them. It is not alleged that petitioners herein were either federal officers or persons acting under federal officers and, accordingly, if petitioners were entitled to removal, it could only be pursuant to subsection (1) of Section 1443.
Subsection (1) affords a right of removal to any person who is denied or cannot enforce in the courts of a 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." However, it has been made plain in Georgia v. Rachel, supra, and City of Greenwood, Miss. v. Peacock, supra, that one subjected to State prosecution for conduct allegedly in exercise of rights afforded by the First and Fourteenth Amendments to the Constitution is not within the contemplation of the removal provision.
Interpreting the scope of § 1443, the Supreme Court stated in Georgia v. Rachel, supra, 384 at 792, 86 S. Ct. at 1790:
"On the basis of the historical material that is available, we conclude that the phrase 'any law providing for * * * equal civil rights' must be construed to mean any law providing for specific civil rights stated in terms of racial equality. Thus, the defendants' broad contentions under the First Amendment and the Due Process Clause of the Fourteenth Amendment cannot support a valid claim for removal under § 1443, because the guarantees of those clauses are phrased in terms of general application available to all persons or citizens, rather than in the specific language of racial equality that § 1443 demands. As the Court of Appeals for the Second Circuit has concluded, § 1443 'applies only to rights that are granted in terms of equality and not to the whole gamut of constitutional rights * * *.' 'When the removal statute speaks of "any law providing for equal rights," it refers to those laws that are couched in terms of equality, such as the historic and the recent equal rights statutes, as distinguished from laws, of which the due process clause and 42 U.S.C. § 1983 are sufficient examples, that confer equal rights in the sense, vital to our way of life, of bestowing them upon all.' New York v. Galamison, 342 F.2d 255, 269, 271. See also Gibson v. [State of] Mississippi, 162 U.S. 565, 585-586 [16 S. Ct. 904, 905, 906, 40 L. Ed. 1075]; [Com. of] Kentucky v. Powers, 201 U.S. 1, 39-40 [26 S. Ct. 387, 399, 400, 50 L. Ed. 633]; City of Greenwood v. Peacock, 384 U.S. 825 [86 S. Ct. (1800) 1811, 16 L. Ed. 2d 955]."