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State v. Russell

United States District Court, D. Nevada

January 8, 2018

STATE OF NEVADA, Plaintiff(s),
v.
TYRICE RUSSELL, Defendant(s).

          ORDER

         Presently before the court is defendant Tyrice Russell's petition for removal. (ECF No. 1).

         1. Facts

         On 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 pending.

         Defendant 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 issues.” Id.

         2. Legal Standard

         Absent 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”).

         28 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.

         With 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.

         Subsection (2), has been held available only to state and federal officers and to persons assisting such officers in the performance of their official duties. ...


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