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 Defendant Jude 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 Dewagard "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 (Id.).
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.
This case presents the rare question of what circumstances entitle a federal officer indicted on a state homicide charge to remove that criminal prosecution to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1).*fn6 The statute itself is broadly worded and clear in its directive. By its terms, a defendant may remove a civil or criminal case if that defendant is (1) a federal officer, and (2) was sued for conduct arising under color of office. See 28 U.S.C. § 1442(a)(1). In addition to these textual requirements, the Supreme Court has also required defendants to allege a "colorable federal defense." Mesa v. California, 489 U.S. 121, 129 (1989).
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.
Removal of criminal cases from state court is governed by 28 U.S.C. § 1446(c). Unlike civil actions, removal of a criminal prosecution does not automatically divest the state court of jurisdiction, "except that a judgment of conviction shall not be entered [by the state court] unless the prosecution is first remanded."*fn7 28 U.S.C. § 1446(c)(3). When presented with a timely notice of removal,*fn8 the federal court "shall examine the notice promptly," and summarily remand the case if it "clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted." 28 U.S.C. § 1446(c)(4). The court reviewed Tanella's Notice and the Supplementary Notice and determined that summary remand was not warranted.
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) ...