State of Alabama v. Pearson

Filing 4

OPINION AND ORDER directing that this case is remanded to the District Court of Dale County, Alabama; further ORDERED that all pending motions are left for resolution by the state court after remand; the Clerk of the Court is DIRECTED to take the steps necessary to effect remand to state court. Signed by Honorable Judge Myron H. Thompson on June 25, 2015. (Attachments: # 1 Civil Appeals Checklist)(scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

STATE OF ALABAMA,

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Plaintiff,
v.
LORENZO PEARSON,
Defendant.

CIVIL ACTION NO.
1:15cv434-MHT
(WO)

OPINION AND ORDER
This

action

is

before

the

court

on

defendant

Lorenzo Pearson’s removal of a criminal case currently
pending against him in a state court.
remove

the

action

pursuant

to

28

Pearson seeks to
U.S.C.

Pursuant to § 1443:
“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

§ 1443.

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.”
28 U.S.C. § 1443.

When a defendant seeks the removal

of a state-court prosecution, the district court is
required to “examine the notice promptly” to determine
whether removal is appropriate, and, if it “clearly
appears on the face of the notice and any exhibits
annexed thereto that removal should not be permitted,
the

court

shall

make

an

order

for

summary

remand.”

§ 1455(b)(4).
The Supreme Court addressed the scope of removal
under § 1443 in Georgia v. Rachel, 384 U.S. 780 (1966),
and

articulated

controls today.

the

two-pronged

test

that

still

First, a defendant must show “that the

right upon which [he] rel[ies] is a ‘right under any
law providing for ... equal civil rights.’” Id. at 788
(quoting § 1443(1)).

Second, the defendant must show

2

that he is “‘denied or cannot enforce’ that right” in
the state court in which the action currently sits. Id.
Pearson argues that the state court’s actions of
having

him

restrained

public

cleared

from

denial

of

rights

his

§ 2000a–21,

as

well

and

the

silenced

courtroom

under

as

42

under

the

and

having

resulted

U.S.C.
First,

the

in

the

§ 1981

and

Fifth,

and

Fourteenth Amendments.2

As to Pearson’s reliance upon

the

Fourteenth

First,

rights

do

because

Fifth,
not

they

and

fall

provide

within
rights

the
of

Amendments,

scope

of

“general

these

§ 1443(1),
application

available to all persons or citizens,” and § 1443(1)
encompasses
specific

only

civil

equality.’”

those

rights

that

rights

stated

in

“‘provid[e]
terms

of

for

racial

Alabama v. Conley, 245 F.3d 1292, 1295–96

(11th Cir. 2001) (quoting Rachel, 384 U.S. at 792).
Pearson’s allegation of the violation of his rights
1.
Pearson’s notice of removal cites “§ 203 of the
Act.” He appears to refer to § 203 of the Civil Rights
Act of 1964, codified as 42 U.S.C. § 2000a–2.
2. Pearson also repeatedly cites 28 U.S.C. § 1964.
This citation appears to be in error, as that statute
does not pertain to civil rights.
3

afforded under § 1981, however, would support a valid
claim for removal under § 1443(1).

Id. at 1296.

This

is because, as the Supreme Court explained in City of
Greenwood, Mississippi v. Peacock, 384 U.S. 808, 825
(1966), § 1981 is a statute “providing for ‘equal civil
rights’ within the meaning of § 1443(1).”
applies to his claim under § 2000a–2.

The same

See Wyche v.

State of La., 394 F.2d 927, 929 (5th Cir. 1967) (in
prosecution removed to federal court by defendant who
alleged violation of

§ 2000a–2, reversing motion to

remand based on Rachel).

3

Despite meeting prong one of the test provided in
Rachel

v.

Georgia,

Pearson’s

removal

petition

fails

because he is unable to meet Rachel’s second prong.
“Generally, the denial of the petitioner’s equal civil
rights

must

be

‘manifest

in

a

formal

expression

of

state law.’” Conley, 245 F.3d at 1296 (quoting Rachel,
384

U.S.

at

803).

As

the

Eleventh

Circuit

has

3. In Bonner v. City of Pritchard, 661 F.2d 1206,
1207 & 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent the decisions of
the Fifth Circuit rendered prior to October 1, 1981.
4

explained, “This requirement ensures that removal is
available only in cases where the denial of the right
can be clearly predicted and avoids involving federal
judges in ‘the unseemly process of prejudging their
brethren of the state courts.’” Id. (quoting Rachel,
384 U.S. at 803–04).

Under Rule 9.2 of the Alabama

Rules of Criminal Procedure, a facially neutral rule,
an Alabama state court may have a disruptive criminal
defendant

restrained

and

silenced

under

conditions.4
4. The rule provides in relevant part:
“(a)
Disruptive
Conduct.
If
a
defendant engages in disruptive or
disorderly conduct so that the trial
or other proceeding cannot be carried
on in an orderly manner, the court,
after having warned the defendant of
the consequences of such conduct, may,
if such conduct continues, order the
defendant to be bound and gagged, or
otherwise restrained or removed from
the
trial
or proceeding.
If the
defendant continues such disruptive or
disorderly conduct after warning, he
shall be deemed to have forfeited the
right to be present at that trial or
proceeding.”
Ala. R. Crim. P. 9.2.
5

certain

The Supreme Court has created a narrow exception to
allow

the

removal

of

an

action

grounded

upon

the

violation of a facially neutral law “if the very act of
bringing the state court proceedings will constitute a
denial

of

the

rights

federal statute. Id.

conferred”

by

the

applicable

To fall within this exception,

however, it is not enough to allege that one’s civil
rights have been “illegally and corruptly” denied prior
to trial, “that the charges are false, or that the
defendant

is

unable

to

particular state court.”
at 827.

obtain

a

fair

trial

in

a

City of Greenwood, 384 U.S.

As the Supreme Court has highlighted, it is

insufficient to rely solely upon allegations as to the
underlying motives of the charging officers or other
applicable

parties,

because

such

motives

do

not

necessitate that a defendant will be found guilty in
state court if he is innocent “or that in any other
manner the defendant will be ‘denied or cannot enforce
in the courts’ of the State any right under a federal
law providing for equal civil rights.”
§ 1443(1)).

Id. (quoting

Unlike Rachel, in which the defendants
6

were prosecuted in state court despite being immunized
from

suit

by

vindication

the
of

federal

right

Pearson’s

relied

federal

upon,

rights

the
are

appropriately left to the state courts because those
rights are not being denied by the mere act of bringing
him to trial.

See Rachel, 384 U.S. at 804; Conley, 245

F.3d at 1298 (“In Rachel, it was only because section
203(c)

of

immunized

the
the

Civil

Rights

defendants

Act

from

of

1964

prosecution

expressly
[for

the

applicable activity] ... that ‘the mere pendency of the
prosecution enable[d] the federal court to make the
clear prediction that the defendants w[ould] be ‘denied
or c[ould] enforce in the courts of (the) State’ the
right to be free of any ‘attempt to punish’ them for
[the] protected activity.”).

***
Based on the foregoing analysis, it is ORDERED that
this case is remanded to the District Court of Dale
County, Alabama.

7

It is further ORDERED that all pending motions are
left for resolution by the state court after remand.
The Clerk of the Court is DIRECTED to take the
steps necessary to effect remand to state court.
This case is closed in this court.
DONE, this the 25th day of June, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE