United States District Court, D. Massachusetts
MEMORANDUM AND ORDER FOR REMAND
3, 2016, Richard B. Martin, Jr., a criminal defendant in a
state proceeding, filed a self-prepared "Notice of
Removal" with supporting exhibits, allegedly pursuant to
28 U.S.C. § 1443. He claims that the Salem District
Court, the Essex District Attorney's Office, the Salem
Police Department, and others are violating his
constitutional rights because of his race, and seeks to
remove his criminal case, which is pending in the Salem
District Court, to this Court. See Commowealth v.
Martin, 1536CR002474 (Salem Dist. Ct.).
criminal case against Martin stems from an incident at the
Red Line Café in Salem, Massachusetts, on August 19,
2015. Martin alleges that he was intending to buy a cup of
coffee at the café; however, he did not like to drink
hot liquids from plastic cups, so he asked a server about the
process of preparing iced coffee. He alleges the server was
rude to him and he demanded that she not be rude. He then
attempted to leave the café. He alleges that as he was
leaving, an unknown male charged from behind the counter and
acted as if he might strike him. Martin then sat down at a
table to show that he could not be bullied. Thereafter, he
proceeded to leave the café, but the unknown male
stated he should wait for the police.
10 to 15 minutes later, as Martin was walking in an area near
Federal Street, he heard someone yelling at him. He turned
and saw a police vehicle. He alleges that a Salem police
officer shouted from the car window; however, Martin did not
want to talk with him so he continued walking. The police
officer got out of the car and approached him. Martin alleges
that he was standing very close to him, making him
uncomfortable. He requested that a supervisor come to the
scene and one was called. Another police officer then arrived
on the scene. Martin alleges that this officer also invaded
his personal space by standing too close to him, making him
uncomfortable, and shouting and jabbing at his bare chest. A
third police officer then arrived on the scene. Martin was
placed in handcuffs and taken to the police station. He was
told he was arrested for assaulting someone from the Red Line
alleges that during the booking process, he was threatened
with physical harm by a female doing computer entry. Further,
presumably in connection with a strip search, Martin alleges
that one of the officers grabbed his penis and brushed
against his right buttocks before he was permitted to put his
shirt back on.
further alleges that one of the guards at the Salem District
Court started to harass him and pushed him while he had his
arms and legs shackled. As a result, his head hit the
concrete floor and he sustained a concussion. Martin alleges
that this clearly was an attempted homicide. He also alleges
that the security guards and court staff harassed him and
violated his due process rights. Specifically, he states he
was harassed at the security checkpoint and at one of the
hearings, at which time a guard ended the hearing over his
objection. Martin also alleges that he has heard from court
staff and the Essex District Attorney's Office that he is
known around the Salem District Court to be a racist.
respect to the criminal proceedings, Martin alleges that the
Salem District Court has not issued any explanation for
denying his motions, nor has the District Attorney's
Office filed any written opposition to his motions. He
further alleges fraud by the Salem Police Department in
connection with the incident report surrounding the arrest.
He takes issue with, among other things, statements in the
report indicating that, at the time of arrest, he acted
strangely, smelled of alcohol, yelled at an officer, clenched
his fist causing the policeman to fear for his safety, and
alarmed several members of the public. He alleges that he
filed internal complaints against ten members of the Salem
Police Department but the matter has not been investigated
alleges removal is proper because it has been more than 30
days since his arraignment and his rights have been violated
because of his race. He also alleges that he suffers from
post-traumatic stress syndrome, causing him to be confused,
but he now understands the situation.
Court's removal jurisdiction for criminal cases is very
limited, and the prosecution of Martin does not fall within
any of the few categories of state criminal actions that may
be removed to a federal district court. See 28
U.S.C. § 1442-1443.
§ 1442, removal of a criminal prosecution is permissible
where it is against an officer of the United States or a
member of the armed forces and the prosecution is for acts
committed within the scope of those positions. See
28 U.S.C. §§ 1442, 1442a. Those statutes clearly do
not apply to the prosecution against Martin.
§ 1443(1), a criminal prosecution may be removed if the
defendant "is denied or cannot enforce" in state
court "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." 28 U.S.C.
§ 1443(1). Although Martin alleges that he is being
denied due process because of his race, the Supreme Court has
held that § 1443(1) only applies where "the right
allegedly denied the removal petitioner arises under a
federal law ‘providing for specific civil rights stated
in terms of racial equality.'" Johnson v.
Mississippi, 421 U.S. 213, 219 (1975) (quoting
Georgia v. Rachel, 384 U.S. 780, 792 (1966)).
"Claims that prosecution and conviction will violate
rights under constitutional or statutory provisions of
general applicability or under statutes not protecting
against racial discrimination, will not suffice."
Id. Here, Martin does not suggest the prosecution
against him violates a federal law concerning racial
equality. Indeed, Martin makes only two references to race.
First, he alleges that he is subject to constitutional
violations by the police and court staff because of his race.
He does not state what his race is, nor does he provide any
facts to show how race played a role in the arrest and
prosecution based on the incident at the Red Line
Café. Second, he alleges that he has heard from court
staff and the Essex District Attorney's Office that he is
known around the Salem District Court to be a racist. Without
more, these allegations are insufficient to meet the
requirements of § 1443(1).
has also provided for removal jurisdiction in criminal
prosecutions for "any act under color of authority
derived from any law providing for equal rights." 28
U.S.C. § 1443(2). Despite the somewhat broad language of
the statute, the Supreme Court has held that it "confers
a privilege of removal only upon federal officers or agents
and those authorized to act with or for them in affirmatively
executing duties under any federal law providing for equal
civil rights." City of Greenwood v. Peacock,
384 U.S. 808, 824 (1966). Under the circumstances here,
§ 1443(2) is clearly inapplicable.
because the state prosecution of Martin does not fall within
the scope of criminal prosecutions that may be removed to