City of Norfolk, Virginia v. McFarland

• Decision Date: 29 August 1956
• Docket Number: Crim. No. 11-263.
• Citation: 143 F. Supp. 587
• Parties: CITY OF NORFOLK, VIRGINIA, v. William T. McFARLAND.
• Court: U.S. District Court — Eastern District of Virginia

143 F. Supp. 587

CITY OF NORFOLK, VIRGINIA, v. William T. McFARLAND.

Crim. No. 11-263.

United States District Court E. D. Virginia, Norfolk Division.

August 29, 1956.

Leonard H. Davis, City Atty., Virgil S. Gore, Jr., Asst. City Atty., Norfolk, Va., for plaintiff.

L. S. Parsons, Jr., U. S. Atty., William F. Davis, Asst. U. S. Atty., Norfolk, Va., for defendant.

HOFFMAN, District Judge.

The defendant herein, William T. McFarland, an investigator for the Alcohol and Tobacco Tax Division of the Treasury Department, was given a summons charging defendant with speeding while allegedly operating his motor vehicle over the streets of the City of Norfolk Virginia, at a speed of 55 miles per hour in a 25 mile per hour speed zone. Said summons directed the defendant to appear for trial before the Police Justice, Police Court Part II, at a stated time. Defendant filed a petition for removal in this Court under the provisions of 28 U.S.C.A. §§ 1442, 1446, the pertinent portion of § 1442 reading as follows:

"(a) A * * * criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

"(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue."¹

The City of Norfolk has filed a motion to remand said proceeding, the contention being that defendant was not acting under color of his office or in the apprehension or punishment of any criminal.

Counsel concede that there is no discretionary right of the Court in accepting or declining jurisdiction. The Police Court, Part II, is a state court within the meaning of § 87 of the Constitution of Virginia. Supplementing the petition for removal counsel agreed that, for the purpose of the hearing on the motion to remand, certain additional facts could be considered.

Defendant was at the home of a relative on Sunday afternoon, July 1, 1956, when at 3:45 P.M. he received a telephone call from an informant to the effect that an illegal distillery was then in operation at a point approximately ten miles distant therefrom, and that the operators of the distillery were "finishing a run" and would soon depart. Defendant thereupon telephoned two other officers to enlist their aid in raiding the distillery and, if possible, apprehending the operators. A Government truck was in the possession of one officer and defendant arranged to go to this officer's home where defendant was to leave his personal automobile. The two officers were then to proceed in the Government truck to the illegal distillery after first picking up the third officer en route.

Having made these telephone calls, defendant changed his wearing apparel, strapped on his revolver, and departed in his personal automobile en route to the first officer's home, which required a deviation of approximately five miles from the most direct route to the illegal distillery. After traversing a distance of approximately eight blocks he was stopped at 4:05 P.M. by an officer of the Norfolk Police Department who issued the summons in question. Having been detained by the officer for a period of approximately ten minutes, defendant abandoned his plan to accompany the other officers and proceeded directly to the distillery where he ascertained that a fire was still burning in the boiler, but the operators had departed.²

Counsel for the City of Norfolk rely upon State of Florida v. Huston, D.C., 283 F. 687, in support of its motion for remand. In that case a federal prohibition agent was arrested for careless and reckless driving while returning from an official investigation. The nature of such "investigation" is not disclosed by the...