Academic journal article American Criminal Law Review

Supremacy Clause Immunity: Deriving a Willfulness Standard from Sovereign Immunity

Academic journal article American Criminal Law Review

Supremacy Clause Immunity: Deriving a Willfulness Standard from Sovereign Immunity

Article excerpt


The year is 2011. A person suspected of violating federal drug laws resists arrest, shooting at a federal agent of the Drug Enforcement Agency. The agent returns fire, inadvertently killing an innocent bystander. After an internal investigation deeming the agent's actions proper, federal prosecutors decide not to press criminal charges. Like many states, the state of Eudaimonia criminally penalizes negligent homicide. Prosecutors for the state of Eudaimonia file charges against the DEA agent for involuntary manslaughter of the bystander. What result?

To answer such a hypothetical, a careful analysis must be made of several interrelated doctrines in constitutional law and federal practice. While such common topics as removal of trials to federal court, qualified immunity of police, and civil liability of federal law enforcement officers all play a role in addressing the situation described above, the central issue requires a detailed discussion of the obscure doctrine of Supremacy Clause immunity.

In approaching the subject, this Note will explore the origins of Supremacy Clause immunity, describe the courts' inconsistent interpretation of Supremacy Clause immunity, and propose a solution for judicial application. This Note contends that courts should use a willfulness standard in determining whether a law enforcement officer has lost Supremacy Clause immunity.


The Supremacy Clause of the Constitution proclaims that federal law is "supreme" over contrary state law. (1) As a result, the clause prohibits a state criminal prosecution of a federal law enforcement officer acting pursuant to federal law, necessarily creating tension between the federal and state governments. (2) The application of this concept by the Supreme Court created difficulties from the outset.

A. The Foundation Case: Neagle

Supremacy Clause immunity finds its roots in Cunningham v. Neagle. (3) Neagle, a federal marshal protecting a Supreme Court justice, shot and killed a man who was assaulting the justice. (4) California sheriffs arrested the marshal, bringing a charge of murder. (5) The federal marshal petitioned for and won a writ of habeas corpus, (6) a petition challenged by the California sheriff in Neagle. (7) The sheriff questioned the propriety of the marshal's defense of the justice absent specific, authorizing statutory language, but the Court responded by assessing the officer's discretionary authority. (8) The Court explained that the judiciary requires protection, that the government may use force to enforce the laws, that the states may not interfere with the actions of the United States in enforcing the law, and that, consistent with the Supremacy Clause of the Constitution, Neagle acted within the rightful authority granted him. (9) The Court found for Neagle and affirmed the writ, relying primarily on the premise that "if [a] prisoner is held in the state court to answer for an act which he was authorized to do by the law of the United States, ... and if in doing that act he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime under the law of the State...." (10) The Court's opinion relies heavily on federal habeas corpus statutes (11) and a statute permitting federal marshals to act with the same authority granted local sheriffs. (12) More broadly, the majority adopted a view based on the Supremacy Clause of the Constitution, thus providing Neagle with immunity from state suit arising out of his discretionary authority to enforce federal law.

The Court's evocation of the "necessary and proper" language from the Implied Powers Clause of the Constitution adopted the marshal's argument that, like Congress, the Executive possesses self-executing prerogatives and implied powers. (13) Citing Tarble's Case, where a state attempted to retrieve an underage soldier from the U. …

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