United States District Court, D. Nevada
before the court is defendant Tyrice Russell's petition
for removal. (ECF No. 1).
December 26, 2017, the Clark County District Attorney's
office filed an amended criminal complaint in Justice Court,
Las Vegas Township (Case #17M26838X) consolidating all
previously field cases against defendant into one. (ECF No.
1) The amended criminal complaint alleges defendant's
conduct between October 25, 2017 and November 10, 2017
amounted to stalking, trespass, and obstruction. Id.
Defendant, a “police accountability activist, ”
video recorded police officers from outside the police
station on four occasions during this time period. On two of
the occasions, defendant was detained - once for matching the
description of a suspect and alleged obstruction and once for
alleged trespass. The state criminal proceeding is currently
alleges his actions are protected under the First, Second,
Fourth, and Fifth Amendments of the United States
Constitution. Id. Accordingly, defendant seeks to
remove his pending state criminal case to federal court, as
“it is very important that a Federal District Court
rule on these important federal, constitutional
extraordinary circumstances, federal courts may not interfere
with pending state criminal prosecutions, even when they
raise issues related to federal rights or interests.
Younger v. Harris, 401 U.S. 37, 44 (1971). Federal
courts must abstain from interfering with state prosecutions
under Younger if:
(1) a state initiated proceeding is ongoing; (2) the
proceeding implicates important state interests; (3) the
federal plaintiff is not barred from litigating federal
constitutional issues in the state proceeding; and (4) the
federal court action would enjoin the proceeding or have the
practical effect of doing so.
San Jose Silicon Valley Chamber of Commerce Political
Action Comm. v. City of San Jose, 546 F.3d 1087, 1092
(9th Cir. 2008) (“San Jose”).
U.S.C. § 1455 provides a procedure for removal of a
state criminal prosecution, but it does not authorize the
substantive right of removal. Instead, a state defendant may
remove only as provided in 28 U.S.C. § 1443, which
permits removal by a defendant:
(1) Against 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;
(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. § 1433.
respect to subsection (1), the Supreme Court has found that a
removal petition must satisfy a two-pronged test. Johnson
v. Mississippi, 421 U.S. 213 (1975). “First, it
must appear that the right allegedly denied the removal
petitioner arises under a federal law ‘providing for
specific civil rights stated in terms of racial
equality.'” Id. at 219 (quoting
Georgia v. Rachel, 384 U.S. 780, 792 (1996). Second,
a state defendant must show he cannot enforce the specified
federal right in state court. Id.
(2), has been held available only to state and federal
officers and to persons assisting such officers in the
performance of their official duties. ...