David Hardy's Notes on State Jurisdiction to Prosecute a Federal actor.

This document by attorney David Hardy, author of "This Is Not An Assault": Penetrating the Web of Official Lies Regarding the Waco Incident, is currently circulating in Arizona legal and political circles. Reprinted, with permission:

Notes on State Jurisdiction to Prosecute a Federal actor

By David Hardy

Congress has recognized the possibility that a Federal agent or employee might be prosecuted by a State, and established a rule for such an occurrence. 28 U.S.C. §1442(a) provides that such a criminal prosecution, commenced in State court may be removed to Federal district court upon motion of the defendant, if the defendant is “The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office….”

There remains a Supremacy Clause issue. The Supreme Court first faced the issue in In re Neagle, 135 U.S. 1 (1890). Neagle was a deputy U.S. Marshal, who served as an informal bodyguard to Justice Field when he rode circuit. Field was assaulted by a fellow who had previously threatened his life, and Neagle killed the man, whereupon he was charged with murder. Neagle successfully sued for habeas corpus, and the Supreme Court affirmed:

The result at which we have arrived upon this examination is that, in the protection of the person and the life of Mr. Justice Field while in the discharge of his official duties, Neagle was authorized to resist the attack of Terry upon him; that Neagle was correct in the belief that, without prompt action on his part, the assault of Terry upon the judge would have ended in the death of the latter; that, such being his well founded belief, he was justified in taking the life of Terry as the only means of preventing the death of the man who was intended to be his victim; that, in taking the life of Terry, under the circumstances, he was acting under the authority of the law of the United States, and was justified in so doing; and that he is not liable to answer in the courts of California on account of his part in that transaction.

135 U.S. at 75-76. United States ex rel. Drury v. Lewis, 200 U.S. 1 (1906) presents a contrast. Two soldiers guarding an arsenal witnessed a theft, followed the thief, and ultimately shot and killed him. They insisted that they had shot a fleeing felon, but other witnesses contended that he had surrendered. The Court allowed the prosecution to proceed, stating that Neagle’s facts were “extraordinary” and that “there was a conflict of evidence as to whether Crowley had or had not surrendered; and it is conceded that if he had, it could not reasonably be claimed that the fatal shot was fired in the performance of a duty imposed by the Federal law, and the state court had jurisdiction.” 200 U.S. at 8.

The issue was extensively explored by the Ninth Circuit in Idaho v. Horiuchi, 253 F.3d 359 (9th Cir. 2001) (en banc) vacated as moot, 266 F.3d 979 (2001) where an FBI sniper was charged with killing Vickie Weaver. In allowing the State prosecution to proceed, the Ninth Circuit noted:

Drury squarely holds that a state may prosecute federal agents if they have acted unlawfully in carrying out their duties.  Cases since Drury have refined the standard applicable to the immunity inquiry.   To be immune from state prosecution, “a federal officer [must do] no more than is necessary and proper in the performance of his duty.”  Clifton v. Cox, 549 F.2d 722, 730 (9th Cir.1977).   For an agent's actions to be adjudged necessary and proper, he must show “ ‘that he had an honest and reasonable belief that what he did was necessary in the performance of his duty.’ ”  Id. at 729 (emphasis omitted) (quoting In re McShane, 235 F.Supp. 262, 274 (N.D.Miss.1964));  see also Whitehead v. Senkowski, 943 F.2d 230, 234 (2d Cir.1991) (Supremacy Clause immunity applies if the agent shows he “reasonably believed that his actions were necessary to perform that job and had no motive other than to do his job” (citation omitted));  Kentucky v. Long, 837 F.2d 727, 745 (6th Cir.1988) (“the agent must have an honest belief that his action was justified” and “his belief must be reasonable”).  Federal agents will be immune from state prosecution if they acted in an objectively reasonable manner in carrying out their duties.

In the context of “Fast and Furious,” the core issue would be whether the BATFE supervisors honestly and reasonably believed that allowing guns to go to the Mexican drug cartels was necessary to performing their Federal duties. Since they have so far been unable, when explaining their actions to Congress, to come up with any intelligible explanation of how running guns to the cartels served any legal purpose, this would be difficult.

The question might be posed more narrowly if manslaughter charges, over the killing of Agent Terry, were the issue. Would any reasonable Federal agent have believed that putting lives in danger through reckless conduct was within the scope of his duties?

Moreover, Fast and Furious poses an issue not present in the cases cited above. The BATFE supervisors’ conduct violated not only Arizona law, but also Federal law. It is hard to see how breaking Federal law can be within the scope of a Federal employee’s duty.

I'd say that deserves a big "Torpedo Los!" right there.