finding, in dicta, that the state court’s decision to enter an injunction after the case had been removed was “clearly contrary to [§ 1446(d)], which provides that, once a defendant has filed a notice of removal with the state court, the state court may ‘proceed no further unless and until the case is remanded’” (quoting § 1446(d))
How later courts described this case
- finding, in dicta, that the state court’s decision to enter an injunction after the case had been removed was “clearly contrary to [§ 1446(d)], which provides that, once a defendant has filed a notice of removal with the state court, the state court may ‘proceed no further unless and until the case is remanded’” (quoting § 1446(d))
- “As a preliminary matter, we note that the Cook County Circuit Court’s decision to enter an injunction after the case had been removed to federal court is clearly contrary to 28 U.S.C. § 1446 (d), which provides that, once a defendant has filed a notice of removal with the state court, the state court may proceed no further unless and until the case is remanded.” (Internal citation, quotation marks, and emphasis omitted)
- no formal expression of state law; no federal law that confers an absolute right on defendants to engage in the conduct
- “More general sources of equality rights, like the Due Process Clause, or rights framed in nonracial terms do not suffice.”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐1067
ERNEST B. FENTON and
LAW OFFICE OF ERNEST B. FENTON, P.C.,
Plaintiffs‐Appellees,
v.
KELLI DUDLEY; LAW OFFICE OF
KELLI DUDLEY; ANDREW SIDEA; and
LAW OFFICE OF ANDREW SIDEA, P.C.,
Defendants‐Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13‐cv‐05019 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED MAY 28, 2014 — DECIDED AUGUST 1, 2014
____________________
Before FLAUM, MANION, and TINDER, Circuit Judges.
FLAUM, Circuit Judge. This appeal concerns the conditions
under which a defendant may remove a case to federal court
pursuant to the civil rights removal statute, 28 U.S.C. § 1443.
We conclude that § 1443 was not satisfied in this case, and
therefore affirm the district court’s remand order.
2 No. 14‐1067
I. Background
In 2010, Tonya Davis retained Ernest Fenton to represent
her in connection with a home foreclosure proceeding. Davis
later sued Fenton for malpractice. Davis claimed that, alt‐
hough she paid Fenton several thousand dollars for legal as‐
sistance, he did virtually nothing to help her keep her home.
She also claimed that he targeted her for inferior service
based on her race, in violation of the Fair Housing Act, 42
U.S.C. § 3601 et seq. That case, Davis v. Fenton, is currently
stayed in federal district court pending arbitration. No. 1:13‐
cv‐3224, 2014 WL 544974 (N.D. Ill. Feb. 7, 2014).
The complaint in the Davis case was filed in 2013. Shortly
thereafter, Fenton brought his own lawsuit in state court, not
against Davis but against Davis’s lawyers: Kelli Dudley and
Andrew Sidea. Fenton alleged that Dudley and Sidea had
intentionally spread false information about him to his cli‐
ents and business associates. Fenton also alleged that Sidea,
who had previously worked at Fenton’s law office, had im‐
properly obtained confidential information about Fenton’s
clients and shared it with Dudley. The complaint advanced
claims of conversion, tortious interference with a business
relationship, and defamation, and it sought damages and an
injunction.
After learning of Fenton’s state‐court complaint, Dudley
and Sidea filed a notice of removal in federal district court.
They asserted as bases for removal both the general removal
statute, 28 U.S.C. § 1441, and the more specialized civil rights
removal statute, 28 U.S.C. § 1443. Three days later, despite
acknowledging the ongoing removal proceedings, the Cook
County Circuit Court entered an ex parte preliminary in‐
junction against Dudley and Sidea. The injunction ordered
No. 14‐1067 3
them to stop defaming Fenton and to cease contact with any
of his current or former clients.
Back in federal court, Fenton filed a motion to remand
the Fenton v. Dudley case to state court. The district court
found that the case did not meet the removal requirements
under either 28 U.S.C. § 1441 or § 1443 and granted the mo‐
tion. Generally, remand orders are not appealable, but there
is an exception when a case is removed pursuant to § 1443.
See 28 U.S.C. § 1447(d). We must therefore decide whether
the district court was correct to return the case to state court
or whether the district court in fact had jurisdiction under
the civil rights removal statute.
II. Discussion
As a preliminary matter, we note that the Cook County
Circuit Court’s decision to enter an injunction after the case
had been removed to federal court is clearly contrary to 28
U.S.C. § 1446(d), which provides that, once a defendant has
filed a notice of removal with the state court, the state court
may “proceed no further unless and until the case is remand‐
ed” (emphasis added). See also Ackerman v. ExxonMobil Corp.,
734 F.3d 237, 249 (4th Cir. 2013) (“[A]ny post‐removal actions
taken by the state court in the removed case action are void
ab initio.”). Dudley and Sidea have not asked us to take any
action with respect to the state‐court injunction, although we
understand that they hope to move the district court to dis‐
solve the injunction following our decision on removal. Nev‐
ertheless, like the district court, we are troubled that a state
court would disregard § 1446’s clear command, especially
4 No. 14‐1067
because the face of the injunction order reveals that the state
court recognized that the defendants had initiated removal.1
A.
The civil rights removal statute provides for the removal
from state court of any civil action or criminal prosecution
“[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.” 28 U.S.C.
§ 1443(1). A second subsection provides for removal under
other special circumstances, but it is not relevant to this case.
Dudley and Sidea argue that Fenton’s lawsuit is calculat‐
ed to deny them their rights under section 818 of the Fair
Housing Act. That section makes it “unlawful to coerce, in‐
timidate, threaten, or interfere with any person … on ac‐
count of his having aided or encouraged any other person in
the exercise or enjoyment of[ ] any right granted or protected
by” the Act. 42 U.S.C. § 3617. Fenton’s complaint alleges in
part that the defendants have “conspired to advance Mrs.
Dudley’s law practice by filing suits in federal court without
regard of the substantive value of the same”—proof, in their
view, that Fenton is retaliating against them for helping To‐
nya Davis bring her Fair Housing Act claim.
Dudley and Sidea further argue that they have been de‐
nied or cannot enforce their federal aid‐or‐encourage right in
Illinois state courts. In particular, they argue that the state
1 The handwritten order states: “This motion before the court on plain‐
tiff’s Motion For Preliminary Injunction; plaintiffs’ counsel being present;
defendants not present; the court being advised in the premises includ‐
ing the Notice of Removal filed by defendants; it is hereby ordered
that … .”
No. 14‐1067 5
court’s injunction—which prohibits them from contacting
“any former or current client and/or employee of the Law
Offices of Ernest B. Fenton”—makes it impossible for them
to exercise their (or their client’s) Fair Housing Act rights.
Read literally, the injunction would prevent Dudley and
Sidea from speaking to their client, since Davis is Fenton’s
former client; to any other of Fenton’s clients, in order to
substantiate Davis’s claim; and even to each other, since
Sidea was briefly Fenton’s employee. The result, they say, is a
complete inability to prosecute Davis’s case.
B.
To evaluate these arguments, we first turn to a pair of
Supreme Court decisions issued on the same day in 1966:
Georgia v. Rachel, 384 U.S. 780, and City of Greenwood v. Pea‐
cock, 384 U.S. 808. The defendants in both cases sought to
remove state criminal prosecutions to federal court under
§ 1443(1). The defendants in Rachel were arrested and
charged with criminal trespass after staging sit‐ins at restau‐
rants in Atlanta; the defendants in Peacock were arrested and
charged with obstructing the public streets after registering
African‐American voters in Mississippi. Both sets of defend‐
ants claimed that their activity—the sit‐ins in Rachel and the
voter registration in Peacock—was federally protected and
that their arrests and prosecutions were racially motivated.
And both claimed that they could not enforce their federal
rights in the Georgia and Mississippi courts, respectively.
A defendant who seeks to remove a case under § 1443(1)
must first show that her claim involves “a right under any
law providing for … equal civil rights.” 28 U.S.C. § 1443(1).
Rachel clarified that “laws providing for equal civil rights”
are limited to those “rights specifically defined in terms of
6 No. 14‐1067
racial equality.” 384 U.S. at 791. More general sources of
equality rights, like the Due Process Clause, or rights framed
in nonracial terms do not suffice. Id. at 791–92. That re‐
quirement is met here. The Fair Housing Act, which Dudley
and Sidea rely on, is framed in racial equality terms. E.g., 42
U.S.C. § 3604 (prohibiting various types of discrimination in
housing because of race).
In addition to identifying a civil‐equality right, a defend‐
ant seeking to remove under § 1443(1) must make a second
showing: that she has been “denied or cannot enforce” that
right in state court. Initially, this required the defendant to
point to some state law or constitutional provision that was
discriminatory on its face. Compare Strauder v. West Virginia,
100 U.S. 303 (1879) (removal was proper where the state
statute formally excluded African‐Americans from jury ser‐
vice), with Virginia v. Rives, 100 U.S. 313 (1879) (removal was
not proper where, although African‐Americans were alleg‐
edly excluded from jury service as a matter of course, the
state statute was formally neutral). Suffice it to say that Dud‐
ley and Sidea have pointed to no blatantly discriminatory
provision of Illinois law that would meet this standard.
But Rachel recognized an exception to this rule: “even in
the absence of a discriminatory state enactment,” the Court
held, removal could be proper if “an equivalent basis could be
shown for an equally firm prediction that the defendant
would be ‘denied or cannot enforce’ the specified federal
rights in the state court.” 384 U.S. at 804 (emphasis added).
The Court reasoned that this limited exception was con‐
sistent with the purposes behind the “formal expression”
requirement—allowing removal only where it was clear be‐
fore trial that the defendant would be denied his federal
No. 14‐1067 7
equality rights, and avoiding the “unseemly” task of federal
judges assessing the “likely disposition of particular federal
claims” by the state judiciary. Id. at 803.
The Court proceeded to explain why the Rachel defend‐
ants met this new equivalent‐basis exception. Section 203(a)
of the Civil Rights Act of 1964 gave the defendants the right
to equal enjoyment of any place of public accommodation
without discrimination because of race. Id. at 793. Moreover,
just the previous term, the Supreme Court had construed
section 203(c) of the Act to prohibit not only the conviction,
but also the “prosecution of any person for seeking service
in a covered establishment, because of his race or color.” Id.
(quoting Hamm v. City of Rock Hill, 379 U.S. 306, 311 (1964)).
If the defendants’ allegations proved true, then the “mere
pendency of the [criminal trespass] prosecutions” deprived
them of their federal right “to be free of any attempt to pun‐
ish them for protected activity.” Id. at 805 (internal quotation
marks omitted). The basis for the clear prediction that the
defendants could not enforce their federal‐equality rights in
state court was thus plain: “The burden of having to defend
the prosecutions is itself the denial of a right explicitly con‐
ferred by the Civil Rights Act of 1964.” Id.
The equivalent‐basis exception announced in Rachel is
quite narrow, however, as City of Greenwood v. Peacock made
clear. The defendants in Peacock had been charged with dis‐
turbing the peace and obstructing the streets while register‐
ing black voters. They brought suit under a variety of provi‐
sions, including 42 U.S.C. § 1971. The Court assumed that
§ 1971 was a law providing for equal civil rights, and so sat‐
isfied the first step of the removal test. 384 U.S. at 825. But it
rejected the defendants’ contention that they were “denied
8 No. 14‐1067
or could not enforce” their federal rights in state court. “The
present case differs from Rachel in two significant respects,”
the Court wrote. “First, no federal law confers an absolute
right on private citizens … to obstruct a public street.” Id. at
826. In Rachel, by contrast, the Civil Rights Act gave the de‐
fendants a right to be present in the restaurants despite be‐
ing ordered to leave. “Second, no federal law confers im‐
munity from state prosecution on such charges.” Id. at 827.
Again by contrast, in Rachel the defendants had a right not
even to be prosecuted for exercising their rights under the
Civil Rights Act.
To qualify for removal under § 1443(1), the Court under‐
scored, “[i]t is not enough … to allege or show that the de‐
fendant’s federal equal civil rights have been illegally and
corruptly denied by state administrative 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 particu‐
lar state court.” Id. at 827. Thus unable to make a “clear pre‐
diction” that the defendants’ rights would be denied or
could not be enforced in state court, the Supreme Court or‐
dered the case remanded. It emphasized that it was “not for
one moment … suggest[ing] that the individual petitioners
in this case have not alleged a denial of rights guaranteed to
them under federal law.” Id. at 828. Nevertheless, the remedy
for that denial did not include removal to federal court. Id.
C.
Returning to the case before us, the defendants briefly
suggest that the state court’s preliminary injunction is itself a
“formal expression of state law” justifying removal. The in‐
junction is indeed troubling, as we have indicated. But the
Supreme Court has made clear that a “formal expression” of
No. 14‐1067 9
state law means “a law of general application,” Rachel, 384
U.S. at 800—something like “a state legislative or constitu‐
tional provision, rather than a denial first made manifest in
the trial of the case,” Johnson v. Mississippi, 421 U.S. 213, 219
(1975) (internal quotation marks omitted). Whatever we may
think of the injunction’s merits, it purportedly applies only
to the parties before the court; it is not a law of general ap‐
plication. So if Dudley and Sidea are to remain in federal
court, they must show that their case fits into Rachel’s excep‐
tion—that is, that federal law both (1) “confers an absolute
right” on them to engage in the conduct Fenton accuses
them of, and (2) “confers immunity” from being hauled into
court on such grounds. Peacock, 384 U.S. 826–27.
We conclude that their argument founders at the first
step. While the Civil Rights Act gave the defendants in Ra‐
chel an absolute right to remain in a place of public accom‐
modation when asked to leave on the basis of race, the Fair
Housing Act gives Dudley and Sidea no comparable right to
commit defamation or interfere with a business relationship,
even in service of their Fair Housing Act claim. Indeed, at
oral argument counsel for the defendants admitted that the
Act does not immunize the conduct at issue. In Rachel’s
terms, section 818 of the Fair Housing Act does not “substi‐
tute[] a right for a crime.” 384 U.S. at 805; see also Hill v. Penn‐
sylvania, 439 F.2d 1016, 1021 (3d Cir. 1971). Of course, it may
very well be that Dudley and Sidea did none of the things
Fenton alleges; at this stage we are merely reading Fenton’s
complaint. But § 1443(1) does not alter the presumption that
state courts as well as federal courts are competent to sort
out the truth of these allegations. See Peacock, 384 U.S. at 828.
10 No. 14‐1067
Because we conclude that federal law does not give Dud‐
ley and Sidea a right to engage in the conduct Fenton alleg‐
es—defamation, tortious interference with a business rela‐
tionship, and conversion—there is no need to decide wheth‐
er the Fair Housing Act gives them immunity even from be‐
ing brought to trial on these claims as well. Nevertheless, be‐
cause the district court indicated that it thought the defend‐
ants had not satisfied the second step, as well, we believe it
worthwhile to devote a few words to the question.
D.
The Civil Rights Act has an anti‐retaliation provision, sec‐
tion 203(b), that closely corresponds to section 818 of the Fair
Housing Act, which Dudley and Sidea invoke. Compare 42
U.S.C. § 2000a‐2(b) (“No person shall … intimidate, threaten,
or coerce … any person with the purpose of interfering with
any right or privilege secured by [the Civil Rights Act].”),
with id. § 3617 (“It shall be unlawful to coerce, intimidate,
threaten, or interfere with any person in the exercise or en‐
joyment of … any right granted or protected by [the Fair
Housing Act].”). In Rachel, however, the Supreme Court did
not focus on section 203(b) of the Civil Rights Act. Instead, it
rested its analysis on section 203(c), which provides that
“[n]o person shall … punish or attempt to punish any person
for exercising or attempting to exercise any right or privilege
secured” under the Act. Id. § 2000a‐2(c) (emphasis added).
The Fair Housing Act has no analogous “punish or attempt
to punish” prohibition.
In light of Rachel’s focus on section 203(c) of the Civil
Rights Act, some courts—most prominently, the Second Cir‐
cuit in Emigrant Savings Bank v. Elan Management Corp., 668
F.2d 671 (1982)—have concluded that only cases involving a
No. 14‐1067 11
statute with explicit anti‐prosecution language are remova‐
ble under § 1443(1). But other courts—like the Fifth Circuit
in Whatley v. City of Vidalia, 399 F.2d 521 (1968)—have held
that language of that sort is not necessary. For these courts,
more generic “intimidate, threaten, or coerce” language in a
statute may permit removal to federal court.
Describing the parameters of this dispute requires a cir‐
cuitous tour through two cryptic footnotes in Peacock. As we
said, the defendants in Peacock specifically cited 42 U.S.C.
§ 1971 in support of their removal petition. But that provi‐
sion, originally enacted in the Civil Rights Act of 1957, was
not entirely on point. The first subsection, § 1971(a), guaran‐
tees the right to vote free from racial discrimination; the sec‐
ond, § 1971(b), makes it unlawful to “intimidate, threaten, or
coerce any other person for the purpose of interfering with
the right of such other person to vote.” (The Peacock defend‐
ants, remember, were arrested while registering others to
vote, not while voting or attempt to vote themselves.) By
contrast, a later statute, the Voting Rights Act of 1965, did
speak directly to the defendants’ alleged conduct. Section
11(b) of that Act, codified at 42 U.S.C. § 1973i(b), makes it
unlawful to “intimidate, threaten, or coerce … any person
for urging or aiding any person to vote.” Yet the Peacock de‐
fendants did not cite section 11(b) in their removal petition—
understandably, because the Voting Rights Act had not yet
been enacted when they removed their case from Mississippi
court.
In a footnote describing the basis of the defendants’ claim
for removal, the Peacock Court quoted the text of § 1971(a)
and (b) (the provisions that did not strictly apply to the de‐
fendants’ claim). But the Court appended a “see also” cita‐
12 No. 14‐1067
tion to section 11(b) of the Voting Rights Act, as well. Peacock,
384 U.S. at 811 n.3. Later, after observing that “no federal law
confers immunity from state prosecution” on the defend‐
ants, id. at 827, the Supreme Court noted:
Section 203(c) of the Civil Rights Act of 1964, the pro‐
vision involved in … Georgia v. Rachel, explicitly pro‐
vides that no person shall ‘punish or attempt to pun‐
ish any person for exercising or attempting to exercise
any right or privilege’ secured by the public accom‐
modations section of the Act. None of the federal stat‐
utes invoked by the defendants in the present case contains
any such provision. See note 3 and note 7, supra.”
Id. at 827 n.25 (emphasis added and citations omitted).2
It is unclear what inference lower courts should draw
from Peacock’s footnote 25 and its cross‐reference to footnote
3. On the one hand, the Peacock defendants did not “invoke”
section 11(b) of the Voting Rights Act in their removal peti‐
tion; if they had, perhaps the Court would have found its
“intimidate, threaten, or coerce” language broad enough to
warrant removal. On the other hand, the Court singled out
the “punish or attempt to punish” language in section 203(c)
of the Civil Rights Act. And the Court was undoubtedly
aware that section 11(b) at least arguably applied, for it cited
that section along with 42 U.S.C. § 1971(b).
In Whatley, the Fifth Circuit adopted the former interpre‐
tation. Whatley, like Peacock, involved a state prosecution of
defendants registering African‐Americans to vote. This time,
2 Footnote 7 in Peacock discussed the defendants’ separate claim for re‐
moval under § 1443(2), the subsection that is not relevant here.
No. 14‐1067 13
however, the defendants specifically invoked section 11(b) of
the Voting Rights Act in their removal petition. The Fifth
Circuit concluded that Peacock did not bar removal under
§ 1443(1). Even though section 11(b) lacked “punish or at‐
tempt to punish” language, the court reasoned that the pro‐
vision was “a more, not less, sweeping prohibition of official
acts of harassment against equal civil rights than the limited
proscription of § 203(c) [in Rachel], since ‘attempts to punish’
are only one means of coercing, threatening, or intimidat‐
ing.” Whatley, 399 F.2d at 525 (quoting North Carolina v. Haw‐
kins, 365 F.2d 559, 562 (4th Cir. 1966) (Sobeloff, J., concur‐
ring)). The Fifth Circuit surmised that Peacock had disal‐
lowed removal in similar circumstances simply because the
defendants there had not invoked section 11(b). Id. at 525–26.
About a decade later, in a case (like ours) involving sec‐
tion 818 of the Fair Housing Act, the Second Circuit rejected
Whatley’s reading of Peacock. Emigrant Savings, 668 F.2d at 675
n.4. In the Second Circuit’s view, the Peacock footnotes and
the fact that Rachel relied only on the “punish or attempt to
punish” language in section 203(c) of the Civil Rights Act—
and not the more generic anti‐retaliation language in section
203(b)—showed that “the permissible range of removal …
was limited to statutes containing explicit anti‐prosecution
language.” Id. at 675. As a result, removal was not appropri‐
ate where the defendant merely alleged that the plaintiff
brought an action to intimidate or coerce the defendant for
exercising his federal rights. Id. at 676.
Although we do not decide, it may well be that the Sec‐
ond Circuit has the better interpretation. In particular, we
note that the Rachel defendants’ removal petition did not in‐
voke the provision on which the Supreme Court ultimately
14 No. 14‐1067
relied, either. See Rachel, 384 U.S. at 793 n.21 (“Since the peti‐
tion predated the enactment of the Public Accommodations
Title of the Civil Rights Act of 1964, it could not have explic‐
itly alleged coverage under that Act. It recites facts, however,
that invoke application of that Act on appeal.”). This makes
the Fifth Circuit’s basis for distinguishing Whatley from Pea‐
cock—that the Peacock defendants did not specifically ad‐
vance a section 11(b) theory before the Court—less convinc‐
ing. Surely the Peacock defendants also recited facts that “in‐
voked the application of” the Voting Rights Act on appeal.
Indeed, the dissent in Peacock relied on section 11(b) to argue
that the “state prosecutions themselves constitute a denial of
‘a right under any law providing for the equal civil rights of
citizens.’” 384 U.S. at 848 (Douglas, J., dissenting).
That said, the question is a close one, and plumbing the
depths of the Court’s infrequent pronouncements on this is‐
sue is unlikely to produce a totally satisfying answer.3 As
3 The Court last spoke to § 1443(1) in 1975, in Johnson v. Mississippi, 421
U.S. 213, but it did little to dispel the confusion surrounding this element
of the Rachel test. In Johnson, the Court rejected removal based on a fed‐
eral provision that made it unlawful “by force or threat of force” to “wil‐
fully injure[], intimidate[], or interfere[] with” any person “applying for
or enjoying employment, or any perquisite thereof, by any private em‐
ployer.” Id. at 223 n.11 (quoting 18 U.S.C. § 245(b)). The Court focused
primarily on legislative history to determine that § 245(b) was directed
towards racially motivated acts of violence, not prosecutions in state
court. Id. at 225–27. In yet another footnote, the Johnson majority also not‐
ed “the similarity between the language of § 1971(b) [the provision actu‐
ally, albeit unsuccessfully, invoked in Peacock] … and the comparable
language of § 245(b),” but it did not elaborate further. Id. at 222 n.10. The
majority did not mention section 11(b) of the Voting Rights Act.
The dissent rejected the majority’s distinction for removal purposes
between statutes that prohibit “punishment” versus merely “injury, in‐
No. 14‐1067 15
even Judge Friendly, the author of Emigrant Savings, admit‐
ted, “it is arguable that citation in a footnote would be a ra‐
ther elliptical way to decide such an important question.”
New York v. Horelick, 424 F.2d 697, 702–03 n.4 (2d Cir. 1970).
At least in the courts of appeals, the debate has cooled af‐
ter Whatley and Emigrant Savings. Cf. Davis v. Glanton, 107
F.3d 1044, 1050–51 (3d Cir. 1997) (noting that 42 U.S.
§ 1985(3) lacks any “punish or attempt to punish” language,
but also noting that the statute’s “intimidation” provision
did not apply to the conduct at issue). Absent clarification
from the Supreme Court, we will need to do our best to read
between the lines in Rachel and Peacock if the anti‐
retaliation/anti‐prosecution issue is squarely presented in a
future appeal. For now, it is enough to say that we doubt
that the Fair Housing Act gives Dudley and Sidea federal
immunity even from having to defend this case in court.
III. Conclusion
In Johnson v. Mississippi, Justice Marshall stated that “[t]he
line between Rachel and Peacock is that between prosecutions
in which the conduct necessary to constitute the state offense
is specifically protected by a federal equal rights statute un‐
der the circumstances alleged by the petitioner, and prosecu‐
tions where the only grounds for removal are that the charge
is false and motivated by a desire to discourage the petition‐
timidation, or interference.” Id. at 235–36 (Marshall, J., dissenting). It ap‐
parently agreed with Whatley that that Peacock’s holding did not involve
section 11(b). Id. at 236 n.6. Nevertheless, the dissent also indicated—
analogously to what we hold today in Part II.C—that even if that provi‐
sion had applied, removal still would have been inappropriate in Peacock
because the defendants’ alleged conduct was not federally protected. Id.
16 No. 14‐1067
er from exercising … a federal right.” 421 U.S. at 234 (Mar‐
shall, J., dissenting) (internal quotation marks omitted). Even
if Dudley and Sidea are correct that Fenton has a retaliatory
motivation, this case falls into the latter category and is not
removable under § 1443(1). See Glanton, 107 F.3d at 1051.
If the defendants’ Fair Housing Act rights have indeed
been violated in this case, we believe that the violation can,
and must, be heard and remedied in the Illinois courts. The
district court’s order remanding the case is accordingly
AFFIRMED.