The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
By Notice of Removal*fn1 filed in this court, defendant Jude Tanella
seeks to remove, pursuant to 28 U.S.C. § 1442 (a)(1), a homicide
prosecution pending against him in New York state court. The State of New
York ("State") opposes removal on various grounds.*fn2 For the following
reasons. the petition for removal is GRANTED.
The following facts, which are generally undisputed, are taken from
defendant's submissions in support of removal.*fn3
Tanella ("Tanella") is a Special Agent Criminal Investigator with the
Drug Enforcement Administration ("DEA") of the Department of Justice.
(Notice, at 1). On May 1, 2002, Tanella was assigned to a DEA Division
Group, which was participating in a joint operation with the New York
City Police Department. (Supp. Notice, at 2; Opp. Memo, at 1). Part of
the operation entailed conducting surveillance of Egbert Dewgard
("Dewgard"), who was suspected of involvement in "commerce in illegal
drugs." (Supp. Notice, at 2). During the surveillance, Dewgard was
observed driving a car to an apartment building, from which another male
exited and handed Dewgard a black plastic bag, which was later found to
contain illegal narcotics. (Id.). The other male sat in the car with
Dewgard for a few minutes, then left, and Dewgard started to drive away.
Other DEA agents were instructed to stop the car and began to pursue
Dewgard's car. At one point, Dewgard used his vehicle to strike one of
the vehicles pursuing him in order to elude officers trying to stop him.
Tanella also joined the chase, and activated his police lights and
siren. At some point during the chase, Tanella's vehicle became the only
vehicle chasing Dewgard's vehicle. (Id. at 2-3). Dewgard's vehicle
eventually struck a pole and became wedged between the pole and a fence.
Tanella then observed Dewgard exit his vehicle and begin running away
from it with the black plastic bag. (Id. at 3). Tanella chased Dewgard
with his weapon drawn while shouting that he was the police and
instructing Dewgard to stop. Tanella caught up with Dewgard and jumped on
top of him. (Id.). "A close quarter physical struggle ensued," with
Dewgard allegedly striking Tanella and resisting Tanella's efforts to
subdue him. (Id.). During the struggle, Tanella alleges that Dewgard
"lock[ed] his eyes on [Tanella's] weapon . . . [and] lunged for [it]."
(Id. at 4). At that point, Tanella states that he "reasonably believed
that the actions of Mr. Dewgard posed an imminent threat of death or
seriously [sic] bodily injury to [himself] and he discharged one round
from his weapon into Mr. Dewgard in order to stop the threat."*fn4
The Kings County District Attorney presented the case to a grand jury.
which returned an indictment charging Tanella with Manslaughter in the
First Degree, a class B felony.*fn5 Tanella was arraigned on November
1, 2002, and entered a plea of not guilty. On November 13, 2002, Tanella
filed the instant Notice of Removal.
On December 5, 2002 the court held a status conference which was
adjourned for one week to allow Tanella to obtain new counsel. At the
December 12, 2002 conference/hearing, the court heard argument on the
issue of removal and accepted additional briefing.
There is no disagreement that Tanella, an agent with the DEA,
unquestionably a federal law enforcement agency, is a federal officer
within the meaning of the statute. Likewise, the State "do[es] not
dispute that [Tanella] is being prosecuted for an act that was performed
under color of office." (Opp. Memo, at 2). The State contends, however,
that Tanella has failed to raise a colorable federal defense that is also
unavailable under state law. This argument fails for two reasons. First,
a federal officer is not required to raise a colorable federal defense
that is exclusively federal in nature. Second, in this case, in addition
to the common law justification of self-defense, Tanella has also raised
federal immunity under the Supremacy Clause. For these reasons, removal
of this case is proper.
Following its initial review of the removal notice, the court is
directed to "order an evidentiary hearing to be held promptly" to
determine whether "removal shall be permitted." Here, both the State and
defendant agree that no evidentiary hearing is necessary because there is
no disagreement about the facts relevant to the court's determination of
the removal issue. (See Transcript of Dec. 12, 2002 Hearing, at 3, 6,
19-20). Although the State disputes defendant's legal basis for removal,
it has not taken issue with any of the material facts alleged in
defendant's Notice of Removal. As the Supreme Court has stated. "if the
plaintiff does not take issue with what is stated in the petition [for
removal], he must be taken as assenting to its truth, and the petitioning
defendant need not produce any proof to sustain it." Wilson v. Republic
Iron & Steel Co., 257 U.S. 92, 97-98 (1921); see also Kentucky v.
Long, 837 F.2d 727, 729-30 (6th Cir. 1988) (noting that the district
court granted removal without an evidentiary hearing where both parties
agreed to the relevant facts); cf. In re Donovan, 601 F. Supp. 574, 576
(S.D.N.Y. 1985) ...