Case 1:23-cv-03621-SCJ Document 25 Filed 08/23/23 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
THE STATE OF GEORGIA,
CIVIL ACTION FILE
v.
No. 1:23-CV-03621-SCJ
MARK R. MEADOWS,
RE: NOTICE OF REMOVAL OF
FULTON COUNTY SUPERIOR
Defendant. COURT INDICTMENT NO.
23SC188947
ORDER
This matter appears before the Court on Defendant Mark Meadows’s
Emergency Motion for Immediate Removal or to Prohibit his Arrest. 1 Doc. No.
[17]. Having reviewed the Motion and the Fulton County District Attorney’s
Office’s response in opposition (Doc. No. [23]), the Court DENIES Meadows’s
Motion.
1 All citations are to the electronic docket unless otherwise noted, and all page numbers
are those imprinted by the Court’s docketing software.
Case 1:23-cv-03621-SCJ Document 25 Filed 08/23/23 Page 2 of 6
Meadows seeks to stay his upcoming arrest on Friday, August 25, 2023. 2
Doc. No. [17], 1. Meadows argues that his federal officer status and federal
immunity defense protect him from being arrested and being brought to trial in
state court. Id. at 2–3. He further specifies that issuing a stay of the Fulton County
proceedings, including his upcoming arrest, is consistent with and facilitates the
purposes of these federal officer protections. Id. Meadows urges the Court to
bypass the evidentiary hearing on his removal and assume federal jurisdiction
over the case (with the understanding that the Court then can reconsider such
decision after the hearing previously scheduled occurs). Id. at 5–6. Alternatively,
Meadows requests the Court to enter an injunction against District Attorney Fani
Willis enjoining her from executing Meadows’s arrest until after the August 28
hearing. Id. at 9–13.
As the Court indicated in its summary remand order, “the filing of a notice
of removal of a criminal prosecution under Section 1455 ‘shall not prevent the
State court in which such prosecution is pending from proceeding further[.]’”
2 The Court incorporates its previous discussion of the factual and procedural
background from its order denying summary remand and requiring the Parties to
appear at an evidentiary hearing on August 28, 2023. See Doc. No. [6].
2
Case 1:23-cv-03621-SCJ Document 25 Filed 08/23/23 Page 3 of 6
Doc. No. [6], 6 (quoting 28 U.S.C. § 1455(b)(3)). Meadows cites two cases in
support of his argument that the Court can bypass the evidentiary hearing
anticipated in Section 1455(b)(5). Doc. No. [17], 5 (citing New York v. Tanella,
239 F. Supp. 2d 291, 295 (E.D.N.Y. 2003) and City of Jackson v. Jackson,
235 F. Supp. 2d 532, 534 & n.2 (S.D. Miss. 2002)). The Court finds neither citation
to be persuasive. 3
In Tanella, the parties consented to the facts alleged in the removal and
agreed an evidentiary hearing was not necessary. 239 F. Supp. 2d at 295 (“[B]oth
the State and defendant agree that no evidentiary hearing is necessary because
there is no disagreement about the facts relevant to the court’s determination of
the removal issue.”). In this case, however, there is no similar agreement and
neither Party has indicated that an evidentiary hearing is unneeded. Doc. No.
[23].
3 While the District Attorney’s Office correctly indicates that these cases occurred prior
to the enactment of 28 U.S.C. § 1455 (Doc. No. [23], 4), the Court understands that the
removal provisions for criminal proceedings were previously found in 28 U.S.C. § 1446.
The removal statutes were amended in 2011 to create separate statutory provisions for
criminal and civil removal actions, but the relevant substance of the criminal removal
provision was not altered in this amendment process. See 28 U.S.C. § 1446(c)(1) (2011)
(specifying the same procedures for removal of criminal prosecutions as Section
1455(b)).
3
Case 1:23-cv-03621-SCJ Document 25 Filed 08/23/23 Page 4 of 6
Likewise, Jackson does not convince the Court of Meadows’s argument
because in that case, the district court did not mention the criminal removal
procedures, let alone an evidentiary hearing. Such omission was appropriate
however because federal removal had already been ordered and the court was
merely determining if the federal immunity defense would result in a dismissal
of the criminal case. See 235 F. Supp. 2d at 534. Here, conversely, the Court has
not yet made its determination on removal and thus Jackson’s persuasiveness is
limited.
Section 1455’s statutory language makes clear that an evidentiary hearing
is to be conducted once a summary remand order has been entered. 28 U.S.C.
§ 1455(b)(5). As Meadows’s arguments and cases cited to the contrary are not
persuasive, the Court denies Meadows’s request for the Court to decide its
jurisdiction over his criminal case before holding an evidentiary hearing.
Meadows alternatively requests that the Court enjoin District Attorney
Fani Willis from enforcing the arrest warrant against him until after the
August 28 evidentiary hearing. Doc. No. [17], 9–16. The Court denies this request.
While Meadows’s imminent arrest may present an actual injury, there are strong
countervailing reasons to not enjoin the state criminal proceedings (e.g.,
4
Case 1:23-cv-03621-SCJ Document 25 Filed 08/23/23 Page 5 of 6
abstention doctrines and principles of federalism). Section 1455 reinforces this
conclusion by clearly requiring state criminal proceedings continue until the
federal court has assumed jurisdiction and notified the state court. 28 U.S.C.
§ 1455(b)(3), (5). Indeed, in another case involving the removal of a criminal
prosecution, a criminal defendant proceeded to trial even after a notice of
removal had been filed pursuant to Section 1455. 4 Simmons v. City of Warren,
No. CV 19-11531, 2020 WL 520956, at *1 n.2 (E.D. Mich. Jan. 6, 2020), report and
recommendation adopted, No. 19-11531, 2020 WL 515866 (E.D. Mich. Jan. 31,
2020). Thus, the Court determines that, the clear statutory language for removing
a criminal prosecution, does not support an injunction or temporary stay
prohibiting District Attorney Willis’s enforcement or execution of the arrest
warrant against Meadows.
4 While the Court understands Meadows’s argument that the federal immunity defense
includes an immunity against arrest, the statutory language of Section 1455(b)(3) is clear
that the state court proceedings continue until the Court has assumed jurisdiction over
the case—a determination that, in fact, requires assessing whether Meadows asserts a
colorable federal defense. The Court has made no determinations at this time about the
viability of Meadows’s defense, and leaves such findings for after the evidentiary
hearing.
5
Case 1:23-cv-03621-SCJ Document 25 Filed 08/23/23 Page 6 of 6
