Case: 20-11392 Date Filed: 07/15/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11392 Non-Argument Calendar ________________________
D.C. Docket No. 0:20-cv-60540-RAR
ANNETTE CAVE,
Plaintiff - Appellant,
versus
STATE OF FLORIDA,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 15, 2020)
Before MARTIN, ROSENBAUM and MARCUS, Circuit Judges.
PER CURIAM:
Annette Cave, proceeding pro se, appeals the district court’s order remanding
her state criminal prosecution to state court. On appeal, Cave argues that the district Case: 20-11392 Date Filed: 07/15/2020 Page: 2 of 6
court erred in its determination that there was no removal jurisdiction pursuant to 28
U.S.C. § 1443. After thorough review, we affirm.
We review de novo whether the district court had subject matter jurisdiction
after removal. Castleberry v. Goldome Credit Corp., 408 F.3d 773, 780-81 (11th
Cir. 2005). Ordinarily, we lack jurisdiction to review an order remanding a case to
state court for lack of subject matter jurisdiction. See 28 U.S.C. §§ 1447(c), (d);
Alvarez v. Uniroyal Tire Co., 508 F.3d 639, 641 (11th Cir. 2007). However, when
a state action was removed pursuant to 28 U.S.C. § 1443, we have narrow
jurisdiction to review the district court’s decision that removal based on § 1443 was
improper. Alabama v. Conley, 245 F.3d 1292, 1293 n.1 (11th Cir. 2001). Pro se
pleadings are liberally construed and are held to a less stringent standard than
pleadings drafted by attorneys. Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
Under 28 U.S.C. § 1443, a defendant may remove a criminal prosecution
initiated in state court if the defendant “is denied or cannot enforce . . . a right under
any law providing for the equal civil rights of citizens of the United States” in state
court. 28 U.S.C. § 1443(1). In order to qualify for removal under § 1443(1), a
defendant must satisfy a two-pronged test: “First, the petitioner must show that the
right upon which the petitioner relies arises under a federal law ‘providing for
specific civil rights stated in terms of racial equality.’ Second, the petitioner must
2 Case: 20-11392 Date Filed: 07/15/2020 Page: 3 of 6
show that he has been denied or cannot enforce that right in the state courts.”
Conley, 245 F.3d at 1295 (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)).
A defendant cannot satisfy the first prong of this test through reliance on
generally applicable rights that are available to all persons or citizens because § 1443
is narrowly focused, applying “only to rights that are granted in terms of equality
and not to the whole gamut of constitutional rights.” Rachel, 384 U.S. at 792
(quotations omitted); Conley, 245 F.3d at 1295-96. Therefore, a defendant cannot
rely on broad contentions under constitutional provisions such as the First
Amendment and the Due Process Clause of the Fourteenth Amendment to support a
valid claim of removal under § 1443, because those guarantees are phrased in terms
of general application available to all citizens, rather than in the specific language of
racial equality required by § 1443. See Rachel, 384 U.S. at 792; see also Conley,
245 F.3d at 1295-96 (stating that the “right to a fair trial and equal protection of the
laws” do not support a valid claim for removal under § 1443(1)).
To satisfy the second prong of this test, the defendant must demonstrate that
there is a basis from which the district court can make a “firm prediction” that the
defendant will be denied or cannot enforce his civil rights in state court. Rachel, 384
U.S. at 804. Generally, to justify removal, the denial of one’s equal civil rights must
manifest in a formal expression of state law. Conley, 245 F.3d at 1296. In the
absence of an explicit state mandate to the contrary, it is expected that federal rights
3 Case: 20-11392 Date Filed: 07/15/2020 Page: 4 of 6
can be “effected” in pending civil or criminal state proceedings. Johnson v.
Mississippi, 421 U.S. 213, 219-20 (1975). A narrow exception exists for actions
based on facially neutral state laws, where the defendant is immunized from
prosecution and trial by federal civil rights law, and, thus, the very prosecution itself
is a deprivation of federally afforded civil rights, regardless of the outcome of the
trial. See Rachel, 384 U.S. at 804-05; Conley, 245 F.3d at 1296. For example, in
Rachel, the state court defendants, who were civil rights demonstrators, were
prosecuted for criminal trespass after they refused to leave a privately-owned
restaurant open to the general public that segregated its customers based on race.
384 U.S at 783-85. While Georgia’s criminal trespass statute was facially neutral,
the act of prosecuting the defendants for criminal trespass directly conflicted with
the Civil Rights Act of 1964, which precludes state prosecutions for “peaceful
attempts to be served upon an equal basis in establishments covered under the Act,”
and the federal court was, therefore, able to clearly predict that the defendant would
be denied equal civil rights under federal statute. Id. at 785, 804-05.
The standard for removal under § 1443(1) is exceptionally high. City of
Greenwood v. Peacock, 384 U.S. 808, 828-29 (1966) (“[T]he vindication of the
defendant’s federal rights is left to the state courts except in . . . rare situations.”). A
person may not obtain removal under § 1443(1) by merely alleging that “federal
equal civil rights have been illegally and corruptly denied by state administrative
4 Case: 20-11392 Date Filed: 07/15/2020 Page: 5 of 6
officials in advance of trial, that the charges against the defendant are false, or that
the defendant is unable to obtain a fair trial in a particular state court.” Id. at 827;
see also Conley, 245 F.3d at 1298-99 (holding that allegations of bias and improper
motives of an individual state judge do not support removal under § 1443(1)).
Under 28 U.S.C. § 1443(2), a defendant may remove a state criminal
prosecution 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.” Section 1443(2) provides this privilege of removal only for state
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Case: 20-11392 Date Filed: 07/15/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11392 Non-Argument Calendar ________________________
D.C. Docket No. 0:20-cv-60540-RAR
ANNETTE CAVE,
Plaintiff - Appellant,
versus
STATE OF FLORIDA,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 15, 2020)
Before MARTIN, ROSENBAUM and MARCUS, Circuit Judges.
PER CURIAM:
Annette Cave, proceeding pro se, appeals the district court’s order remanding
her state criminal prosecution to state court. On appeal, Cave argues that the district Case: 20-11392 Date Filed: 07/15/2020 Page: 2 of 6
court erred in its determination that there was no removal jurisdiction pursuant to 28
U.S.C. § 1443. After thorough review, we affirm.
We review de novo whether the district court had subject matter jurisdiction
after removal. Castleberry v. Goldome Credit Corp., 408 F.3d 773, 780-81 (11th
Cir. 2005). Ordinarily, we lack jurisdiction to review an order remanding a case to
state court for lack of subject matter jurisdiction. See 28 U.S.C. §§ 1447(c), (d);
Alvarez v. Uniroyal Tire Co., 508 F.3d 639, 641 (11th Cir. 2007). However, when
a state action was removed pursuant to 28 U.S.C. § 1443, we have narrow
jurisdiction to review the district court’s decision that removal based on § 1443 was
improper. Alabama v. Conley, 245 F.3d 1292, 1293 n.1 (11th Cir. 2001). Pro se
pleadings are liberally construed and are held to a less stringent standard than
pleadings drafted by attorneys. Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
Under 28 U.S.C. § 1443, a defendant may remove a criminal prosecution
initiated in state court if the defendant “is denied or cannot enforce . . . a right under
any law providing for the equal civil rights of citizens of the United States” in state
court. 28 U.S.C. § 1443(1). In order to qualify for removal under § 1443(1), a
defendant must satisfy a two-pronged test: “First, the petitioner must show that the
right upon which the petitioner relies arises under a federal law ‘providing for
specific civil rights stated in terms of racial equality.’ Second, the petitioner must
2 Case: 20-11392 Date Filed: 07/15/2020 Page: 3 of 6
show that he has been denied or cannot enforce that right in the state courts.”
Conley, 245 F.3d at 1295 (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)).
A defendant cannot satisfy the first prong of this test through reliance on
generally applicable rights that are available to all persons or citizens because § 1443
is narrowly focused, applying “only to rights that are granted in terms of equality
and not to the whole gamut of constitutional rights.” Rachel, 384 U.S. at 792
(quotations omitted); Conley, 245 F.3d at 1295-96. Therefore, a defendant cannot
rely on broad contentions under constitutional provisions such as the First
Amendment and the Due Process Clause of the Fourteenth Amendment to support a
valid claim of removal under § 1443, because those guarantees are phrased in terms
of general application available to all citizens, rather than in the specific language of
racial equality required by § 1443. See Rachel, 384 U.S. at 792; see also Conley,
245 F.3d at 1295-96 (stating that the “right to a fair trial and equal protection of the
laws” do not support a valid claim for removal under § 1443(1)).
To satisfy the second prong of this test, the defendant must demonstrate that
there is a basis from which the district court can make a “firm prediction” that the
defendant will be denied or cannot enforce his civil rights in state court. Rachel, 384
U.S. at 804. Generally, to justify removal, the denial of one’s equal civil rights must
manifest in a formal expression of state law. Conley, 245 F.3d at 1296. In the
absence of an explicit state mandate to the contrary, it is expected that federal rights
3 Case: 20-11392 Date Filed: 07/15/2020 Page: 4 of 6
can be “effected” in pending civil or criminal state proceedings. Johnson v.
Mississippi, 421 U.S. 213, 219-20 (1975). A narrow exception exists for actions
based on facially neutral state laws, where the defendant is immunized from
prosecution and trial by federal civil rights law, and, thus, the very prosecution itself
is a deprivation of federally afforded civil rights, regardless of the outcome of the
trial. See Rachel, 384 U.S. at 804-05; Conley, 245 F.3d at 1296. For example, in
Rachel, the state court defendants, who were civil rights demonstrators, were
prosecuted for criminal trespass after they refused to leave a privately-owned
restaurant open to the general public that segregated its customers based on race.
384 U.S at 783-85. While Georgia’s criminal trespass statute was facially neutral,
the act of prosecuting the defendants for criminal trespass directly conflicted with
the Civil Rights Act of 1964, which precludes state prosecutions for “peaceful
attempts to be served upon an equal basis in establishments covered under the Act,”
and the federal court was, therefore, able to clearly predict that the defendant would
be denied equal civil rights under federal statute. Id. at 785, 804-05.
The standard for removal under § 1443(1) is exceptionally high. City of
Greenwood v. Peacock, 384 U.S. 808, 828-29 (1966) (“[T]he vindication of the
defendant’s federal rights is left to the state courts except in . . . rare situations.”). A
person may not obtain removal under § 1443(1) by merely alleging that “federal
equal civil rights have been illegally and corruptly denied by state administrative
4 Case: 20-11392 Date Filed: 07/15/2020 Page: 5 of 6
officials in advance of trial, that the charges against the defendant are false, or that
the defendant is unable to obtain a fair trial in a particular state court.” Id. at 827;
see also Conley, 245 F.3d at 1298-99 (holding that allegations of bias and improper
motives of an individual state judge do not support removal under § 1443(1)).
Under 28 U.S.C. § 1443(2), a defendant may remove a state criminal
prosecution 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.” Section 1443(2) provides this privilege of removal only for state
and federal officers, and their agents. City of Greenwood, 384 U.S. at 824 & n.22.
Here, the district court properly remanded the state criminal prosecution to
state court because Cave did not establish removal jurisdiction under § 1443. For
the purposes of § 1443(1), remand was proper because Cave failed to satisfy the two-
prong test under Rachel. See 384 U.S. at 792-94. As for the first prong, Cave did
not properly assert reliance on any specific civil right under federal law “stated in
terms of racial equality” -- indeed, neither her Notice of Removal nor appeal mention
her race or make any assertions of race-based discrimination, and neither the state
courthouse nor the location where she was arrested were public accommodations for
purposes of any reliance on the Civil Rights Act of 1964. See Conley, 245 F.3d at
1295. She also failed under the second prong because she did not allege any state
law or policy which prohibited the enforcement of any equality-based civil rights in
5 Case: 20-11392 Date Filed: 07/15/2020 Page: 6 of 6
state court. Nor is there any federal statute immunizing Cave from the precise type
of proceeding being brought in state court. Additionally, there was no removal
jurisdiction under § 1443(2) because Cave was not a state or federal officer, nor an
agent of either. See City of Greenwood, 384 U.S. at 824 & n.22. Accordingly, we
affirm the district court’s order remanding this action to state court.
AFFIRMED.