What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause

By Waxman, Seth P.; Morrison, Trevor W. | The Yale Law Journal, June 2003 | Go to article overview

What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause


Waxman, Seth P., Morrison, Trevor W., The Yale Law Journal


CONTENTS

INTRODUCTION

I. CASE STUDY: IDAHO V. HORIUCHI

II. BACKGROUND PRINCIPLES
    A. Officer Liability and Immunity Under Federal Law
       1. Sources of Civil and Criminal Liability
    2. Qualified Immunity
       3. The Fair Warning Requirement
    B. Preemption
       1. General Principles
       2. Direct State Regulation of the Federal Government

III. STATE CONSTRAINTS ON FEDERAL LAW ENFORCEMENT
    A. Venue

INTRODUCTION

When, if ever, may a State prosecute a federal officer for allegedly criminal conduct undertaken in discharge of his federal duties? The question goes to the heart of the division of sovereignty embodied in "Our Federalism." Federalism has played a central role in an array of constitutional law developments over the last decade, but there is little case law (1) and virtually no scholarly commentary (2) addressing the question posed here. This segment of the long border between national power and state authority is poorly demarcated and irregularly patrolled.

Should that matter? We think the answer is yes, on two counts. First, as a jurisprudential matter the issue is compelling. Unlike most federalism questions arising under constitutional provisions like the Commerce Clause, the Spending Clause, the Eleventh Amendment, or the Fourteenth Amendment, the question of when state criminal processes may be applied against federal law enforcement officers presents an unmediated juxtaposition of the two opposing headlands of the federalism dialectic: the Supremacy Clause and the Tenth Amendment.

Second, the question is far from hypothetical. Indeed, it was recently the focus of controversial, convoluted, and ultimately unresolved litigation that arose out of the August 1992 standoff between the FBI and white separatists at Ruby Ridge, Idaho. (3) In the course of that standoff, FBI sniper Lon Horiuchi fired at an armed separatist and accidentally killed an unarmed accomplice as she held her infant in her arms. Agent Horiuchi was prosecuted for the shooting, not by the national government that had deployed him, but by a locally elected district attorney. The decision to pursue state criminal charges against a federal agent for actions taken in the course of discharging his official duties raises difficult questions of public policy and law going to the core of our constitutional system. Those questions deserve much more careful and rigorous treatment than they have thus far been given. This Article provides a start.

To appreciate the resonance of the issue, we must first locate it within the broader context of federalism as a central component of American government. "Federalism" refers, of course, to the principle that governmental authority and prerogative should not vest in a single sovereign but rather should be dispersed across all levels of government. (4) The instantiation of this principle in the Constitution--"split[ting] the atom of sovereignty," as Justice Kennedy put it (5)--is perhaps the most innovative contribution our Founding Fathers made to the principles of democratic governance. And although the Supreme Court has located principles of federalism in many parts of the Constitution, (6) the provisions that most directly express the principle are the Supremacy Clause (7) and the Tenth Amendment. (8) Together, these provisions describe a straightforward, generally applicable rule: Where Congress and the President act within the powers expressly afforded them by the Constitution, their laws and acts prevail; in all other respects, power and authority reside with the States, or with the people themselves. (9)

In practice, of course, things rarely divide cleanly into hermetic categories, and these provisions by themselves tell us relatively little about how to balance federal and state power in any particular case. The Tenth Amendment, the Court has explained, "is essentially a tautology.... [It] confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. …

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