Hello my friends. I’ve been toying with idea for posts for the last week but I have been struggling for inspiration. I started a post on what the Equal Rights Amendment might do based on how the State versions of the amendment have been interpreted. I also started a post on frozen embryos and property rights, but that fizzled out as well. Let me know if those are topics you would be interested in.
Fortunately, the news cycle has delivered me the inspiration I was looking for, which is the news that Donald Trump will be trying to remove his New York State prosecution for falsifying business records to federal court. The suspected argument for removal is under 28 U.S.C. § 1442 which provides subject matter jurisdiction in:
(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following 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) 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, in an official or individual capacity, for or relating to 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.
(2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States.
(3) Any officer of the courts of the United States, for or relating to any act under color of office or in the performance of his duties;
(4) Any officer of either House of Congress, for or relating to any act in the discharge of his official duty under an order of such House.
If Donald Trump can successfully argue that his acts were under color of law or in the performance of his duties, then his case can proceed in federal court. And the reason Donald Trump might wish to be in federal court is the subject of my post today: Neagle Immunity.
I don’t plan on delving into the likelihood of success for Trump’s argument today. In fact, I don’t plan on even getting much past the case of Neagle itself in this post. The reason is that the back story behind the case is BANANAS CRAZY, so buckle up.
In 1889, David Neagle was a U.S. Marshal. Id. at 3. One of the functions of U.S. Marshals is to protect federal judges, and in this case Associate Justice of the Supreme Court Stephen Field was in California riding circuit.1 Id. at 4. Neagle had learned from his bosses that a man named David Terry was intending to harm Justice Field. Id. Neagle would end up killing Mr. Terry and getting arrested for murder. Id.
So who was David Terry and why would he want to hurt Justice Field? Well, before Justice Field was a Supreme Court Justice, Field was the 5th Chief Justice of the California Supreme Court. The 4th Chief Justice of the California Supreme Court was none other than David Terry. In 1859, the California Democratic Party voted to nominate Warner Cope to run for the California Supreme Court Justice position instead of re-electing Terry. This made Terry mad, and he blamed his friend and U.S. Senator David Broderick for this indignity. Terry denounced Broderick at the state convention, and as 1850s gentleman are want to do, Terry and Broderick agreed to a duel. Terry resigned from the court the day before the duel (Cope was appointed to fill the vacancy as he was the Justice-elect) and off to the San Francisco city limits they went. Broderick missed, Terry hit, Broderick died, and Terry was arrested for murder.
Now, this wasn’t the first time that Terry had engaged in attempted or completed political violence. While on the bench, a vigilante group overran San Francisco and lynched two inmates. The San Francisco Committee of Vigilance had an estimated 6,000 members and engaged in policing, investigations, and secret trials. The elected mayor of San Francisco at that time was… David Broderick. Justice Terry rode to friend’s aide to help negotiate between the vigilante group and the government. Terry was seized by some of the armed vigilantes, who Terry proceeded to gut with a Bowie knife. The vigilante committee tried Terry for the assault and found him guilty, but Terry was later released.
In the trial for the murder Broderick, Terry was acquitted. Soon after he left the State of California to fight for the Confederacy. Field, who had been an Associate Justice, was elevated to the Chief Justice position. Field served on the California Supreme Court until 1863 when he was appointed by Lincoln to the United States Supreme Court. Terry for his part returned back to California after the war and engaged in private practice, with a failed run for state attorney general thrown into the mix.
In private practice, Terry took a client by the name of Sarah Hill. Ms. Hill was the 30 year old mistress of a silver baron and former U.S. Senator William Sharon. When Sharon dumped Hill, she sued Sharon for divorce. Sharon counterclaimed against Hill and Terry individually alleging that the marriage contract was a forgery. Sharon v. Terry, 36 F. 337, 338 (C.C.N.D. Cal. 1888). Sharon died during the pendency of the divorce and Hill produced a purported will for Sharon leaving everything to her. Oh yeah, and then Terry and Hill married.
For reasons that would make zero sense today, this case was in federal court. The case was heard before two circuit judges and Justice Field riding circuit. While the case was pending, Hill and Terry were on a train with Judge Lorenzo Sawyer, one of the judges hearing the case. Neagle, 135 U.S. at 43. Hill and Terry sat behind Judge Sawyer on the train and hurled insults at him, and pulled the judge’s hair while she walked passed him. Id. at 44. 2 After retaking her seat, Hill said "I will give him a taste of what he will get by and by. Let him render this decision if he dares." Id.3
Field wrote the opinion that declaration of marriage was “adjudged by this court to be forged and fraudulent and fabricated, and that its execution and enforcement ought in equity to be restrained.” Sharon, 36 F. at 344. On September 3, 1888, Field delivered the final Circuit Court opinion. As Field was reading the opinion out loud in open court, Hill suddenly stood up, screamed obscenities at the judge, and fumbled in her handbag for her revolver. Neagle, 135 U.S. at 46. When the marshals tried to apprehend Hill, Terry reached for his Bowie knife and knocked out the teeth of one of the marshals. Id. at 45. Justice Field was not very happy about all of this and sentenced Terry and Hill to jail for contempt of court. Id. David Neagle was one of the marshals present that day. The United States Supreme Court affirmed the underlying decision in Terry v. Sharon, 131 U.S. 40 (1889).4
So now fast-forward about a year later. Terry and Field are on the same train headed to San Francisco. Terry and Hill have been repeatedly threatening to kill Judge Sawyer and Justice Field. Id. at 46. Marshal Franks, the marshal whose teeth Terry knocked out, tells Neagle to be ready for trouble. Neagle, 135 U.S. at 5. Terry sees Justice Field in the dining cart and takes a seat nearby. Id. at 52. Hill ran to their seating car and grabbed a revolver. Id. at 53. Terry gets up from his seat and smacks Justice Field across his face twice. Id. Neagle then believed Terry was reaching for his Bowie knife and proceeded to shoot him twice. Id. Neagle is arrested for murder. Id. at 4.
Neagle then filed a petition for writ of habeas corpus in federal court, seeking to be released from state custody. Id. at 3. The circuit court granted the writ5 and the sheriff appealed to the Supreme Court. Id. Aside from the titilating facts, the opinion is not that interesting. The court spends an inordinate amount of time discussing whether the court has jurisdiction and whether habeas corpus is an available remedy under the federal statutory scheme. Id. at 54-69. The Court concludes that under the Supremacy Clause, the State courts cannot prosecute Neagle for acts he undertook within the course of his official duties. Id. at 61.
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. We therefore affirm the judgment of the circuit court authorizing his discharge from the custody of the sheriff of San Joaquin county.
Id. at 75-76. Two Justices dissented, arguing that prior case law prevented the court from removing a person in custody from a different lawful jurisdiction and that there was no statutory authorization for U.S. Marshals to serve as boydguards for Justices. Id. at 77; 78-79 (J. Lamar, dissenting).
So there you have it, the wild wild story about how Neagle immunity was born. In my next post, I will explore the application of Neagle immunity in other contexts, hopefully bringing us much closer to 2023 and Donald Trump. In the meantime, you can subscribe to this immunity blog if you would like to do so.
Riding circuit is when a Supreme Court justice sits on a lower court. This used to happen often in the earlier days of the Court, but is now just something that Congress threatens to make Justices do when they are mad at the Supreme Court.
This is not a recommended course of action to ingratiate yourself with the court.
ALSO NOT RECOMMENED.
Justice Field did not take part in the Supreme Court decision.
Judge Sawyer was one of the judges who heard the petition for writ, id. at 40. He probably should have recused.