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People of the State of New York v. Jonathan K. Smith

June 17, 2011


The opinion of the court was delivered by: Hurley, Senior District Judge:


On May 27, 2009, defendant Jonathan K. Smith ("Defendant") removed this action from the Criminal Court of the City of New York, Bronx County to this Court pursuant to 28 U.S.C. § 1443(1). Presently pending before the Court is a motion by plaintiff, the People of the State of New York, ("Plaintiff") seeking to remand this action to its original forum. For the reasons set forth below, Plaintiff's motion is granted.


Defendant is a member of the Shinnecock Indian Nation and resides on the Shinnecock Indian Nation Reservation in Southampton, New York. (Notice of Removal ¶ 1 & Ex. A.) On January 14, 2009, at the request of the New York State Department of Environmental Quality,*fn1 Defendant attended an "off reservation" meeting at that agency's offices located in Setaukat, New York. During the meeting, Defendant was served with two New York State citations: (1) Civil Infraction Ticket No. BA8767264 (the "Civil Infraction Ticket"), and (2) Criminal Summons No. 431162287-9 (the "Criminal Summons"). (Id. ¶ 3.)

The Civil Infraction Ticket alleged that on December 23, 2008, Defendant operated an "unpermitted acquaculture facility" in Shinnecock Bay in violation of the New York Environmental Conservation Law ("ECL") § 13-0316(2), and was returnable to Southampton Town Court. (Id. ¶ 4.) On January 11, 2009, that action was removed from the Southampton Town Court to this Court under Civil Docket No. 09-571 before Judge Leonard D. Wexler. (Id.) The case was subsequently dismissed based upon the State's failure to prosecute the action, and judgment was entered in favor of Defendant. (Id.)*fn2

The Criminal Summons, the subject of this case, alleges that on December 24, 2008, the Defendant used "improper shellfish tags" in violation of ECL § 13-0319. (Id., Ex. C.) Defendant removed the action from the Bronx County Criminal Court to this Court on May 27, 2009. The removal was based upon allegations that Defendant has been denied his civil rights, and that such denial could not be litigated in State Court because New York State regulates the Indian Nation illegally. (Id. ¶ 2.) Defendant further alleged that the Department of Environmental Quality willfully interfered, by force or threat of force, with Defendant "in order to intimidate" him and to prevent him "from participating in and enjoying a privilege and/or activity provided or administered by the United States" in violation of 18 U.S.C. § 245(b)(1)(B).*fn3

(Id. ¶ 7.) Specifically, Defendant alleges that Plaintiff violated his "federally protected" fishing rights under the following: (1) the doctrine of sovereign immunity, (2) the Fort Albany Treaty of 1664, (3) Wyandanch's Deed, (4) the Contract Clause, (5) the Indian Commerce Clause, (6) Congressional Indian Policy, (7) Federal Trust, (8) United Nations' International Convention on the Elimination of All Forms of Racial Discrimination ("CERD"), and (9) the United Nations Declaration on the Rights of Indigenous Peoples. (Id.)

Plaintiff argues that the case should be remanded because Defendant "has not shown that this criminal action is removable under 28 U.S.C. § 1443(1)." (Pl.'s Mem. at 2.) For the reasons set forth below, the Court agrees.


I. Legal Standard

"An effective petition for the removal of a state action to federal court must allege a proper basis for the removal under sections 1441 through 1445 of Title 28." Negron v. People of New York, 2002 WL 1268001, at *1 (E.D.N.Y. Apr. 1, 2002). Section 1443(1) provides for removal of civil actions or criminal prosecutions commenced in a State court if the defendant "is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States." 28 U.S.C. § 1443(1). "If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand." 28 U.S.C. § 1446(c)(4).

A removal petition under Section 1443(1) "must satisfy a two-pronged test." Johnson v. Mississippi, 421 U.S. 213, 219 (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. (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.

Second, it must appear on the face of the notice "that the removal petitioner is 'denied or cannot enforce' the specified federal rights 'in the courts of (the) State.' This provision normally requires that the 'denial be manifest in a formal expression of state law,' such as a state legislative or constitutional provision, 'rather than a denial ...

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