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PENNSYLVANIA v. LEONARD

July 16, 1970

COMMONWEALTH OF PENNSYLVANIA
v.
Paul LEONARD, Lawrence Y. Lingard, Jerry B. Williams, Frederick T. Wims, Francis Rolls, Thomas E. Bell, Defendants


Gourley, Senior District Judge.


The opinion of the court was delivered by: GOURLEY

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 § 1443 of Title 28 of the United States Code. In the State Court, a Grand Jury has indicted each of the petitioners upon a charge of inciting to riot, stemming from his 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. This is the third of a series of similar petitions seeking the removal of criminal prosecutions against individuals arising out of these public demonstrations, the other such petitions having been filed at Civil Actions 70-556, 313 F. Supp. 1159 and 70-557.

 Upon receipt and review of the Petition, the service and filing of which effectuates removal under the provisions of § 1446(e) of Title 28 of the United States Code, the Court entered an order on June 4, 1970, directing that a responsive pleading be filed, summoning the relevant state records and calling for briefs and argument upon the legal sufficiency of the Petition. The District Attorney of Allegheny County filed a motion to dismiss on June 9, 1970, which will be treated as a motion to remand this proceeding to the State Court. A hearing has been conducted by the Court, and, 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.

 The federal statute authorizing the removal to a federal district court of state civil or criminal prosecutions is 28 U.S.C. § 1443, which provides as follows:

 
"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;
 
(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."

 Reviewing the history of this removal provision in the two companion cases of Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1965) and City of Greenwood v. Peacock, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1965), the Supreme Court of the United States has clearly indicated that the scope of removal under the provision is highly circumscribed and permits of removal only in specific and well-defined circumstances.

 As construed by the Supreme Court in Greenwood v. Peacock, supra, at 821, 86 S. Ct. 1800, sub-section (2) of § 1443 permits of removal only by federal officers and those acting under them. It is not alleged that petitioners herein were or are either federal officers or persons acting under federal officers and, accordingly, if petitioners are entitled to removal, it could only be pursuant to sub-section (1) of § 1443.

 Sub-section (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." Construing this language in the case of Georgia v. Rachel, supra, the Supreme Court stated at 384 U.S. at p. 792, 86 S. Ct. at 1790:

 
"On the basis of the historical material that is available we conclude that the phrase 'any law providing * * * 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.' People of State of New York v. Galamison, 2 Cir., 342 F.2d 255, 269, 271. See also Gibson v. 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. 808 at 825, 86 S. Ct. 1800 at 1811, 16 L. Ed. 2d 955."

 Thus, to prevail here, petitioners must demonstrate that they are denied or cannot enforce in their criminal proceedings in the Court of Common Pleas of Allegheny County a right afforded by federal law, the terms of which grant specific civil rights stated in terms of racial equality.

 Counsel for petitioners argues that they have been arrested and indicted for engaging in activity which is protected by §§ 601 and 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and 42 U.S.C. § 2000e-2(a)(c) & (d). Section 601 prohibits exclusion from participation in, denial of benefits of, or discrimination under federally assisted programs on the ground of race, color or national origin. Section 703 protects the equal rights of all individuals, regardless of race, color, religion, sex or national origin, to employment and the participation in training or apprenticeship programs. However, the instant Petition does not allege ...


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