The opinion of the court was delivered by: KNOX
The defendant has removed this state indictment for aggravated assault and battery found against him in the Court of Common Pleas of Clarion County, Pennsylvania, to this court pursuant to 28 U.S.C. § 1443(1).
As the removal statutes now stand, this means that the case has automatically been removed to this court and remains here for trial unless the court remands it.
While the District Attorney of Clarion, although notified of the removal, filed no petition to remand, this court was not satisfied of its jurisdiction over the subject matter. An order was therefore issued sua sponte to determine jurisdiction. The parties were directed to file briefs by May 25, 1973. Defense counsel filed a voluminous brief. No brief was filed by the Commonwealth, the district attorney indicating he was willing to abide by the order of the court.
In this situation, it would ordinarily be appropriate to refuse the remand. Since, however, the jurisdiction of the court over the subject matter is involved and since the case is fraught with grave precedent making potentialities, we have determined to dispose of it on the facts as alleged and the law. We have considered inter alia the effect on the work load of this court if every member of a minority group in Western Pennsylvania were able to remove a state criminal prosecution against him from state to federal court by claiming violation of his civil rights as the result of alleged inability to receive a fair trial in state court because of racial prejudice. The results could be devastating not only to the calendars of this court but also to the delicate balance between the powers of the state and federal courts in this area.
We have concluded that such removal should not be allowed except in strict accordance with the requirements of the Act of Congress, the decisions of the United States Supreme Court and those of our own Court of Appeals respecting such removals. Even absent a petition to remand, we have concluded that this case is not removable and must be remanded to the court from whence it came.
Turning to the petition for removal in this case, we note that it asserts that petitioner is black, that he is a student at Clarion State College at Clarion, Pennsylvania, that he was arrested while exercising his rights as a student to frequent the recreation areas of the college, particularly the pool hall, that the security police of the college attacked him and others without justification and that while lawfully resisting eviction or arrest, he was beaten by these police. A civil rights action for damages or injunctive relief is pending against the college and the individuals in this court at Civil Action No. 73-75.
The criminal complaint, however, charges defendant with aggravated assault and battery upon the security police causing injuries to their heads and puncture wounds of the hands. This is the criminal prosecution we are asked to try in this federal court in Pittsburgh, approximately one hundred miles from Clarion.
Petitioner alleges deprivation of his rights under 42 U.S.C. §§ 1981, 1983, 1985, 1986 (general civil rights), § 2000a(c), (d) (public accommodations) and 18 U.S.C. § 245(b).
The leading cases with which we are concerned are Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966); and Hill v. Comm. of Pa., 439 F.2d 1016 (3d Cir. 1971).
Rachel, supra, teaches us that the words "any law providing for . . . equal civil rights" in 28 U.S.C. § 1443(1) must be construed to mean a law providing for specific civil rights "stated in terms of racial equality". It was held that the First and Fourteenth Amendments to the United States Constitution did not specifically confer racial equality rights in such context, but the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq, did.
It was further held (a) that the right upon which petitioner (for removal of a criminal prosecution) relies must be a right under a law providing for equal civil rights and (b) that such rights are denied or cannot be enforced in state courts.
Greenwood, supra, deals with the situation where there is denial of or inability to enforce civil rights in state courts. As to this, the court said:
"Under Sec. 1443(1), the vindication of the defendants federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied ...