Can a federal law enforcement officer be prosecuted by the local DA?

A story from Bloomberg.com was forwarded to us with a question: “Can a federal law enforcement officer be prosecuted by the local DA?” So who wins: federal law enforcement or the local DA?

 

 

The question

It seems like a really straight forward question. But when you sit back and think of it, there are a lot of spin off interesting subquestions.

• Can federal officers, engaged in lawful federal law enforcement activities within their jurisdiction, be subject to arrest by local police?
• What about prosecution by the local DA, is that even possible?
• Can the President grant them a full, complete and unconditional pardon if they are arrested? Must they then be freed.
• How does the 9th and 10th Amendment impact this, if at all. 

Our fact pattern

So let’s assume the following facts are true so we can discuss the outcome. The accused is:

1. a duly sworn and fully lawful law enforcement agent, such as a member of the Department of Homeland Security, the US Marshall’s Office or the US Secret Service;
2. on duty;
3. at an administrative approved place pursuant to orders from lawful superiors;
4. arrested by the police police for violation of a Pennsylvania state law; and
5. criminal court proceedings are filed and a prosecution commented in Pennsylvania State court.

Can the local DA successfully prosecute this person?

The answer:

Generally, no. But, its a long-winded answer.

The United States Code (our federal laws) controls this situation entirely. It is in 28 US Code Section § 1442.

Who falls under this part of the federal law?

This law uses the definition of “law enforcement officer” to answer that. It specifically reads:

“law enforcement officer” means any employee described in subparagraph (A), (B), or (C) of section 8401(17) of title 5 and any special agent in the Diplomatic Security Service of the Department of State.

So that law covers our hypothetical person. The law is very specific.

What happens to the federal law enforcement officer in state criminal court?

This Section 1442 says that if one of four situations are met, the prosecution can be “removed” from state court and forced to be litigated in the local federal court. Here are the four conditions:

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.

In our scenario, our hypothetical federal LEO meets one if not two of the four conditions. Therefore, his case can be “removed” from local state-based prosecution to federal prosecution. 

The likely outcome

Now this is where it gets interesting. If removed to federal court, the criminal prosecution can only happen by and through the US Department of Justice and the local US Attorney’s Office. In which case, if that happens, the chances are absent some really egregious situation, the local US Attorney who serves at the pleasure of the POTUS will likely decline prosecution. If the local US Attorney declines to prosecute, and because they removed the original case to federal court, the local DA is flat out of luck. Our federal LEO is free.

Federal LEO get a presumption

Under that same law, federal law enforcement officers get a presumption in certain circumstances. If they act “within the color of [their] office, ” the law says that for criminal prosecution that the “normal” defense of that they were acting officially applies. Here are the three cases. If the officer was:

1. Protecting a nearby individual from another violent crime;
2. Providing assistance to an injured person; or
3. Preventing the escape of someone who has or is likely to cause a crime resulting in death

What this law doesn’t mean…

That does not mean that federal officers are beyond reproach. The government can prosecute federal officers for any crime they commit, such as murder or assault. But ultimately, it will likely occur in federal court. The US Attorney’s Office could leave a federal LEO in state court by not removing the case. It has happened before. Very unlikely under this POTUS.

Can protestors sue federal agents in civil court?

Yes, but….

Further, there are other methods of recourse against officers (federal and otherwise) who commit wrongs against citizens. Tort law is the law of civil (non-criminal) wrongs. This means that the federal LEO harm a private citizen, the citizen can sue for compensation. Suing versus winning the lawsuit are two different things. But, the citizen can sue for battery, (physical beating) assault, (threat of physical beating) or even false imprisonment. (detaining someone for no legal reason) And while the federal government has immunity on many actions private citizens would otherwise be liable for, they are not immune to suit for intentional torts such as those above. (§ 2608(h))

Can the President grant them a full, complete and unconditional pardon if arrested? Must the local police free them?

If federal police are prosecuted or convicted for crimes they commit, the U.S. President may pardon them in full or in part, as per the U.S. Constitution. (Art II) He can only do this for “offenses against the United States,” which courts have read as federal crimes. Therefore, pardons for any state crimes will be left to the Governor of the state where they occurred.

What about the Tenth Amendments?

The US President’s recent decision to send police into several states to suppress protests and riots could be in violation of the tenth amendment. This is the famous “state’s rights” amendment that gives states any lawful powers not given to the federal government in the Constitution. This includes, according to several federal courts, how states deal with the enforcement of their own criminal laws. But contrast that with the prior precedent during the 1950s and 1960s about federal law enforcement action in desegregating the schools. Further, as a routine practice, several federal agencies with their federal agents operate within a state every single minute of the day. This includes DHS, FBI, DEA and many more. So by prior acquiescence if nothing else, the Tenth Amendment argument is a tough road for the local government to keep the federal government out of town.

What about the Ninth Amendment?

The ninth amendment is a little more complex, as it allows citizens any “natural” rights not specifically enumerated under the other parts of the Constitution. This is very vague, and thus difficult to apply to many situations. The one that comes to mind in this scenario is civil rights, which is probably a non-starter. Federal Courts have previously ruled the ninth amendment does not contain any specific civil rights that can create a court action. Violations of the first, fourth, or even fourteenth amendments could be brought depending on the misconduct of these police.

Conclusion

In conclusion, the law is very solid in this area. In the battle of federal law enforcement versus the local DA, the local DA loses. Even if the local police charge a federal LEO who meets the facts above, it is highly unlikely that a prosecution in local state court will happen.  This article about DA Krasner is just a lot of hype. There’s no substance to his threats here.

Additional recommended reading:

• About The McShane Firm

Hat tip to Trevor Dennehy for doing the initial research for this blog post.