2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-20-2015

State of New Jersey v. Bruce Aristeo

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Recommended Citation

"State of New Jersey v. Bruce Aristeo" (2015). 2015 Decisions. Paper 759.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/759
BLD-272

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1096

___________

STATE OF NEW JERSEY

v.

BRUCE ARISTEO,

Appellant

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.N.J. Civ. No. 1-14-cv-07911)

District Judge: Honorable Renée M. Bumb

____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect or

Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6

July 16, 2015

Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

(Opinion filed: July 20, 2015)

_________

OPINION*

_________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
2

Bruce Aristeo, proceeding pro se, appeals from an order of the District Court 

remanding his case to a New Jersey state court. We will summarily affirm.

Aristeo filed a notice in the District Court seeking to remove, pursuant to 28 

U.S.C. §§ 1331 and 1443, a criminal action pending against him in the Superior Court of 

New Jersey, Camden County. He also sought other relief, including a stay of the criminal 

proceedings and dismissal of the indictment. The District Court remanded the matter to 

state court, concluding that Aristeo had made no allegations that would permit removal 

under the statutes pertaining to removal of criminal prosecutions, i.e., 28 U.S.C. §§ 1442, 

1442a, and 1443. This appeal followed.

Cases removed pursuant to § 1442 or § 1443 are excepted from the general rule 

that “[a]n order remanding a case to the State court from which it was removed is not 

reviewable on appeal.” 28 U.S.C. § 1447(d). We thus have jurisdiction to determine 

whether remand was proper to the extent removal was sought under § 1443, which is the 

only issue presented by this appeal.

1

 See Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 

1997). We exercise plenary review over the underlying basis for remand to the extent it 

involves a legal question. See Lazorko v. Pa. Hosp., 237 F.3d 242, 247 (3d Cir. 2000).

At issue is the first subsection of § 1443, which authorizes removal of a state law 

 

1 Aristeo did not purport to remove this action under § 1442, and he has not 

challenged the District Court’s conclusion that § 1442 is not applicable in his case (as it 

plainly is not). Insofar as he argues that 28 U.S.C. § 2283 supports removal, we note that 

the District Court did not address that issue in its remand order, most likely because 

§ 2283 does not concern removal, but rather stays of state court proceedings.
3

action “[a]gainst any person who 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, or 

of all persons within the jurisdiction thereof.” 28 U.S.C. § 1443(1).2 For this provision 

to apply, “a state court defendant must demonstrate both (1) that he is being deprived of 

rights guaranteed by a federal law ‘providing for . . . equal civil rights’; and (2) that he is 

‘denied or cannot enforce that right in the courts’ of the state.” Davis, 107 F.3d at 1047 

(quoting Georgia v. Rachel, 384 U.S. 780, 788 (1966)). Under the first prong of the test, 

the civil rights at issue must involve matters of racial equality. Id. Under the second 

prong, removal is proper only where a defendant’s federal civil rights “‘will inevitably be 

denied by the very act of bringing the defendant to trial in the state court.’” Id. at 1049 

(quoting Greenwood, 384 U.S. at 828).

As the District Court properly determined, Aristeo has shown no basis for removal 

under § 1443. He did not allege that his civil rights were being denied on the basis of 

race, but rather that his prosecution for stalking via website postings violated his First 

Amendment right to freedom of speech. Aristeo’s ancillary allegations that the state 

statute is void for vagueness and that his property was seized without a warrant similarly 

do not implicate a deprivation of civil rights based on race. On appeal, Aristeo concedes 

“the lack of racial discrimination facts in this case.” Instead, he argues that the plain 

 

2 Aristeo has not alleged in the District Court, or argued on appeal, anything that 

might permit removal under the second subsection of § 1443, which generally concerns 

the execution of certain duties by federal officers. See 28 U.S.C. § 1443(2); Greenwood 
4

language of § 1443 makes it applicable regardless of race and that the United States 

Supreme Court incorrectly interpreted the statute to require a race-based deprivation of 

civil rights in Georgia v. Rachel. This argument, which asks us to ignore almost 50-yearold Supreme Court precedent, is simply frivolous.

Accordingly, we will summarily affirm the District Court’s order. See 3d Cir. 

L.A.R. 27.4; I.O.P. 10.6. In light of this disposition, we deny Aristeo’s request for an “en 

banc determination.”

 

v. Peacock, 384 U.S. 808, 824 (1966).