Hello friends. Last time we spoke I went through the amazing fact pattern giving rise to Neagle immunity. This week we are going to explore how Neagle immunity has been applied since its inception and now into modern times. The core of Neagle immunity is where “an agent of the United States Government [is] engaged in the performance of his lawful duties and was acting in a manner which he determined was necessary and proper in the discharge of his duties.” State of N.C. v. Cisneros, 947 F.2d 1135, 1138 (4th Cir. 1991) (quoting In re Neagle, 135 U.S. 1 (1890)). However, as I like to tell my associates, a rule statement by itself doesn’t help very much. We need to see how the rule statement is applied to facts in other cases to explain how the rule statement applies to the case at hand.
Margarine Wars
Nine years after the Court decided Neagle, it took up another case where the State of Ohio arrested J. B. Thomas for the horrendous crime of serving margarine to disabled veterans. State of Ohio v. Thomas, 173 U.S. 276 (1899). In 1895, the State of Ohio passed a law “to prevent fraud and deception in the manufacture and sale of oleomargarine and promote public health in the state of Ohio.” Id. The act required any eating house which “furnishes or disposes of or uses in cooking, any oleomargarine” to display a placard stating “Oleomargarine Sold and Used Here” and prohibits the location from providing margarine to customers if the customer asks for butter. Id. J.B. Thomas was a federal government official as governor of the Central Branch of the National Home for Disabled Volunteer Soldiers and was in charge of the eating house in Montgomery, Ohio. Id. The eating house served margarine and did not have the placard. Id. Thomas was tried and convicted under the I Can’t Believe it’s Not Butter statute, and was fined $50.00, to be incarcerated until the fine was paid. Id.
Thomas didn’t think he should be in jail for serving margarine, so he petitioned the federal court for a writ of habeas corpus. Id. The district court agreed, but the Food and Dairy Commissioner of the State of Ohio, Joseph Blackburn, did not agree so he took it to the Supreme Court. Id. Thomas argued that the disabled war veteran homes were a creation of statute which allowed the board to “make by-laws, rules, and regulations not inconsistent with law for carrying on the business and government of the home.” Id. at 281. The board of managers submitted detailed estimate of rations which included oleomargarine “as part of the rations furnished the inmates under the appropriations made by congress for the support of such inmates.” Id. at 282.
The Supreme Court agreed that “[t]he act of the governor in serving [oleomargarine] was authorized by congress, and it was therefore legal, any act of the state to the contrary notwithstanding.” Id. at 284. The Court further concluded that Thomas was entitled to relief through habeas corpus instead of seeking relief through Ohio state courts because a “federal officer proceeded against in the courts of the state may, upon conviction, be imprisoned, as a means of enforcing the sentence of a fine, and thus the operations of the federal government might in the meantime be obstructed. Id. at 284-85. As a result, the margarine heretics prevailed against the tyranny of big butter.1
Criminally Bad Driving
There are a lot of federal employees and a lot of them have to drive somewhere as part of their duties. It stands to reason that some of them are bad drivers, and a smaller subset of them are criminally bad drivers. Criminally bad driving does not receive Neagle immunity.
How we get to this conclusion starts with Johnson v. State of Maryland, 254 U.S. 51 (1920). Johnson is not about bad driving, but rather a postal working driving without a driver’s license. William Johnson was driving a mail truck in Washington State when he was arrested and convicted for driving without a driver’s license. Id. at 55. This sounds a little weird now, but remember that this was the 1920s, and South Dakota didn’t adopt as driver’s license requirement until 1954.2 The Supreme Court in a short opinion concluded that Johnson didn’t need no stinking license. The Court emphasized that the license required payment of a fee as opposed to being a general rule of conduct. Id. at 56. However, as part of the decision the Court provided dicta that was largely interpreted by lower courts as exempting bad driving from Neagle immunity:
Of course an employee of the United States does not secure a general immunity from state law while acting in the course of his employment. That was decided long ago by Mr. Justice Washington in United States v. Hart, Pet. C. C. 390, Fed. Cas. No. 15,316; 5 Op. Attys. Gen. 554. It very well may be that, when the United States has not spoken, the subjection to local law would extend to general rules that might affect incidentally the mode of carrying out the employment-as, for instance, a statute or ordinance regulating the mode of turning at the corners of streets.
Id. at 55. And with this simple sentence, bad driving was placed outside the scope of Neagle immunity.
So lots of bad federal drivers ended up subject to the laws of states. But a question still remained whether a defendant could remove their state prosecution to federal court even if there was no plausible claim of Neagle immunity. This was answered in 1989 by the decision Mesa v. California. In this case, postal workers Kathryn Mesa and Shabbir Ebrahim were each charged with criminal driving infractions while delivering mail. Mesa v. California, 489 U.S. 121, 123 (1989). Mesa struck and killed a bicyclist while Ebrahim failed to yield and hit a police car. Id. Mesa and Ebrahim removed their cases to federal court under 28 U.S.C. § 1442(a)(1), and the district court denied the State’s motion for remand. Id. at 124. The Ninth Circuit in a divided panel reversed, concluding that removal jurisdiction did not exist where the defendants did not have a colorable claim of federal immunity. Id. The Supreme Court granted review. Id.
The text of 28 U.S.C. § 1442 makes no mention of a defendant needing a colorable federal defense in order for the case to be removable. However, the Supreme Court construed the statute narrowly to avoid a Constitutional concern that a broad reading of jurisdiction would mean the case would not arise under the Constitution or the laws of the United States as required by Article III § 2. Id. at 136. Notably, the defendants in Mesa did not attempt to argue that killing a bicyclist or ramming into a cop car was part of their official duties. Id. at 133. As a result, the Court concluded that defendants needed a colorable federal defense in order to remove the case to federal court. Id. at 139.
I would usually stop there on this case, but I think that it is worth noting the concurrence of Justice Brennan because it might be an argument we end up seeing in the eventual Donald Trump removal.
While I concur in the judgment and opinion of the Court, I write separately to emphasize a point that might otherwise be overlooked. In most routine traffic-accident cases like those presented here, no significant federal interest is served by removal; it is, accordingly, difficult to believe that Congress would have intended the statute to reach so far. It is not at all inconceivable, however, that Congress' concern about local hostility to federal authority could come into play in some circumstances where the federal officer is unable to present any “federal defense.” The days of widespread resistance by state and local governmental authorities to Acts of Congress and to decisions of this Court in the areas of school desegregation and voting rights are not so distant that we should be oblivious to the possibility of harassment of federal agents by local law enforcement authorities. Such harassment could well take the form of unjustified prosecution for traffic or other offenses, to which the federal officer would have no immunity or other federal defense. The removal statute, it would seem to me, might well have been intended to apply in such unfortunate and exceptional circumstances.
Id. at 140 (J. Brennan, concurring).3
Ruby Ridge and Bad Shootings
Neagle was considered by the Supreme Court to be a reasonable shooting case. Not too long after Neagle in 1906, the Court addressed a bad shooting case. In U.S. ex rel. Drury v. Lewis, 2nd Lieutenant Ralph Drury was in charge of protecting a weapons arsenal in Pennsylvania. 200 U.S. 1, 2. On several recent occasions, thieves had broken into the property not to steal weapons, but copper fixtures. Id. Drury was tasked with patrolling the arsenal grounds with other soldiers to stop the thieves. Id. One night, Drury learned that the suspect thieves were on the arsenal grounds and chased after them. Id. Drury and another solider chased the thieves off of the property and continued their pursuit. Id. The thieves scattered and the other soldier shot one of the thieves in the thigh, which ended up being fatal. Id. At this point, the facts are in dispute. Drury claimed that he told the fleeing not to run and that if they did, another solider would fire. Id. Two witnesses to the event told a different story, stating that one of the thieves stopped and put his hands up saying “Don't shoot, I will come back,” or “I will give up” at which point Drury told the other solider to fire, killing the thief. Id. Drury was charged with murder. Id. at 6. The Supreme Court affirmed the denial of the writ of habeas corpus on the basis of the disputed facts, concluding that the federal court was:
[N]ot called on to determine the guilt or innocence of the accused. That was for the state court if it had jurisdiction, and this the state court had, even though it was petitioner's duty to pursue and arrest Crowley (assuming that he had stolen pieces of copper), if the question of Crowley being a fleeing felon was open to dispute on the evidence; that is, if that were the gist of the case, it was for the state court to pass upon it, and its doing so could not be collaterally attacked.
Id. at 8. Note the procedural posture here and further note that case long predates the enactment of 28 U.S.C. § 1442. As the matter before the Court was a petition for writ of habeas corpus, the Court was limited to deciding whether Drury was unlawfully in custody. Today, this case would likely have been removed to federal court under 28 U.S.C. § 1442(a)(1) with Drury presenting a colorable federal defense, but not necessarily receiving Neagle immunity.
Our next case involves an FBI sniper at Ruby Ridge. Special Agent Lon Horiuchi was a member of the FBI hostage team. On August 21, 1996, six plain-clothes U.S. Marshals were tasked with a recognizance mission in preparation of serving a warrant of arrest on Randy Weaver, the leader of a white separatist compound in Idaho. Weaver had previously been charged with illegal possession of sawed-off shotguns and a bench warrant was issued for his arrest after he failed to appear in court. The marshals ran into Weaver and other compound members, and a firefight ensued. Idaho v. Horiuchi, 253 F.3d 359, 362 (9th Cir.), vacated as moot, 266 F.3d 979 (9th Cir. 2001). Weaver’s son Samuel and one of the marshals was killed, with Weaver and the others retreating to the compound. Id. at 362.
The next morning Horiuchi and other members of the hostage team arrived on site. Id. Horiuchi was briefed on the rules of engagement, which authorized agents to shoot any armed male on sight, but not to shoot into the cabin where Weaver’s children were present. Id. at 363. The sniper team climbed the ridge to take position. Id. Horiuchi saw Kevin Harris, Randy Weaver, and Weaver’s sixteen-year old daughter leave the cabin and walk towards an outbuilding. Id. Weaver was holding a long gun. Id. Horiuchi heard a helicopter sound and saw Weaver “look up to the sky as if he might fire at the helicopter.” Horiuchi shot Weaver, injuring him, and the three took cover. Id. After 10-20 seconds, the three of them made a break for the cabin. Id. Weaver and his daughter entered the cabin first. Id. Harris was last in the door, now carrying Weaver’s rifle, and Horiuchi shot him through the cabin window as he was entering the cabin. Id. Unfortunately, Vicki Weaver was standing by the cabin door and was shot through the head, killing her instantly. Id. The State of Idaho charged Horiuchi with involuntary manslaughter. After having the charge dismissed under Neagle immunity at the district court and affirmed by a panel of the Ninth Circuit, the case was taken by the court en banc. Id. at 364.
The case was analyzed under the reasonably scared cop rule announced in Tennesse v. Garner, 471 U.S. 1 (1985).
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
Garner, 471 U.S. at 11. The majority opinion pointed to several issues and incosistencies between Horiuchi’s declarations submitted in support of his motion and his testimony at Weaver’s trial. First, there was the question of where the helicopter was. Horiuchi testifed that he never saw the helicopter, and at one point testifed that the helicopter was behind Horiuchi above the ridge. Horiuchi, 253 F.3d at 369. However, Horiuchi shot Weaver in the back, which would mean that helicopter was behind Weaver. Id. The court also questioned whether Horiuchi was following the “rules of engagement” instead of the Garner rule, which would be problematic because shooting armed males on sight would not necessarily be justified under Garner. Id. at 370-71. The court futher questioned whether Horiuchi was reasonable (if incorrect) in his belief that he was taking a second shot at Weaver, and even if he was reasonable in the identity of his target, whether Weaver posed a threat of harm in his escape. Id. at 373; 374. Finally, the court questioned whether Horiuchi was unaware of the liklihood that somone else was behind the door, based on his trial testimony that "it looked like Harris “was trying to hold the door open or moving somebody out of the way.” Id. at 373. As a result, the court concluded that Horiuchi had raised a colorable defense but that the decision to grant immunity was inappropiate. Id. at 377.
Five judges dissented from this decision, noting (accurately) that federal courts almost always grant Neagle immunity in federal officer shootings, and that Horiuchi should be given the benefit of the doubt. After the decision, the State of Idaho dropped the prosecution on the belief that the nine years between the shooting and the case actually proceeding would make the case too difficult to prosecute. As a result, the court vacated the decision as moot. Idaho v. Horiuchi, 266 F.3d 979 (9th Cir. 2001).
Summary of Cases and Where we are Going.
So hopefully from these cases, you can distill the basic framework for seeking removal under 28 U.S.C. § 1442 and making a claim for Neagle immunity:
You need to be a federal officer or agent who was acting under color of law.
To stay in federal court, you have to have a colorable defense to criminal liability under federal law.4
Federal officer + colorable federal defense + no dispute of facts = grant of immunity. Federal officer + colorable federal defense + dispute of facts = your criminal case proceeds in federal court.
We now have the Notice of Removal filed by Donald Trump in the criminal prosecution. And so next time we will look at the notice and try to find the cases that look the most like Donald Trump’s argument and see how they fare. I will give the spoiler alert that Trump does not appear to be directly making a claim of Neagle immunity, but is rather relying on himself being a federal officer + preemption as the colorable federal defense.5
Big Butter was a protectionist force during this time. As you can read in Mike Chase’s How to Become a Federal Criminal (among other places), it used to be a federal crime to sell margarine that wasn’t dyed pink.
Interestingly, this link from the Department of Transportation says Washington didn’t adopt a driver’s license requirement until 1921, even though Johnson was decided in 1920. ¯\_(ツ)_/¯
This does indeed come up now that we have the notice of removal. Trump’s removal notice specifically cites to Justice Brennan’s concurrence.
Note that having a colorable federal defense is not enough to get into federal court if you weren’t acting under color of law. Caterpillar Inc. v. Williams, 482 U.S. 386 (1987).
I enjoyed researching and writing this even if it didn’t end up being the basis for Donald Trump’s colorable federal defense. Hopefully you enjoyed reading it too.