The Supreme Court is presently considering a petition that raises fundamental constitutional questions concerning federal power and police accountability for civilian deaths. The state of Texas is seeking to prosecute a police officer for the unlawful killing of an unarmed man. The officer claims, and the lower courts agree, that he is “immune” from such a prosecution by virtue of the Supremacy Clause of the Constitution--so the charges were thrown out prior to the commencement of the trial. Texas is now asking the High Court to revisit the scope of that immunity doctrine. The legal stakes in the outcome of Texas v. Kleinert are enormous.
The case began inside a small bank in Austin, Texas. Detective Charles Kleinert was there investigating another case when Larry Jackson approached the main entrance of the bank. A bank employee opened the door and they had a brief conversation. Another employee happened to be nearby and overheard that conversation and she told Kleinert that Jackson was falsely representing himself as another bank customer. Kleinert intervened and confronted Jackson, asking him questions about his identity and the nature of his business with the bank. Jackson evidently tried to talk his way out of the situation, but it wasn’t working and he suddenly ran away.
Kleinert gave chase and eventually caught up to him. Jackson ignored several commands to stop and surrender and as the two were scuffling, Kleinert shot Jackson in the neck and he died at the scene.
After reviewing the incident, Kleinert’s superiors concluded that his handling of the situation was not only unprofessional, but criminally reckless. Jackson was an unarmed, passive resister. That is, he was not attacking anyone, but was only trying to run away. Deadly force in such a situation would be illegal. (Former South Carolina officer Michael Slager was just sentenced to 20 years in prison for shooting Walter Scott as Scott ran away from him). Even though Kleinert may not have intentionally killed Jackson, his actions brought about his death. Texas prosecutors convened a grand jury and Kleinert was indicted for manslaughter.
Kleinert might prevail at a trial with the argument that he was just trying to make an arrest and there was an unfortunate accident, but no criminal act on his part. However, his attorneys have thus far been successful in arguing that Kleinert can’t be tried at all by Texas because he was working on a police task force organized by a federal agency, the FBI. The logic runs like this: since Kleinert was acting in a “federal capacity,” Texas cannot subject him to local law because of the Supremacy Clause of the Constitution, which says federal law must prevail over an inconsistent state law. As unbelievable as it may sound, many lawyers will argue that local homicide statutes just do not apply to federal employees, at least when they are acting within the “scope of their employment.” They say an FBI agent might be prosecuted for child abuse if he beats up his daughter during a drunken rage but only because such conduct would clearly fall outside bureau business. Killing an innocent person during a drug raid would be police business. In that scenario, there might be some “internal discipline,” but no local prosecution for a homicide involving federal agents.
Such legal claims have arisen in actual controversies. In 2003, for example, 14-year old Ashley Villarreal was shot and killed by DEA agents who had been looking for her father. The San Antonio community was outraged and demanded accountability. When the local prosecutor was asked about criminal charges, he told reporters, “The federal badge stops us in our tracks.”
It will be useful to pause here and briefly review some legal history. The leading case on Supremacy Clause immunity arose in an 1889 case involving Supreme Court Justice Stephen Field. Field was having breakfast in a hotel restaurant when he was confronted by an angry man by the name of David Terry, who was known to have a beef with Field. A U.S. marshal, David Neagle, was accompanying Field as a bodyguard and he shot and killed Terry.
The local sheriff thought Neagle overreacted and used excessive force in violation of California law. Neagle’s attorneys asked the federal courts to intervene, arguing that federal agents could not be “interfered with by state authority.”
The Supreme Court eventually heard the controversy and ruled that Neagle was acting to protect Justice Field and since his actions seemed reasonable and lawful, the charges against him had to be dismissed because of the immunity doctrine. Two justices on the Court dissented. The dissenters pointed out, correctly, that the federal government was only supreme within its proper constitutional sphere and that a homicide statute could not possibly impinge upon that sphere.
Since Neagle, the courts have generally immunized federal agents from state charges if the agent believed his actions were necessary under the circumstances. As a practical matter, the immunity doctrine does indeed “stop the local authorities in their tracks.”
The Supreme Court should accept Texas v. Kleinert for review for several reasons. First, in 1889, there were probably only a few dozen federal police agents. Today the federal government employs about 130,000 agents that carry firearms and make arrests. And President Trump has said that he plans to hire 15,000 more Border Patrol and ICE agents. Military personnel assigned to police work and homeland security also carry firearms and interact with citizens. On top of those spiraling numbers, thousands and thousands of local police officers, such as Kleinert, have been “deputized” as federal agents and so will be shielded by the immunity doctrine. The Supreme Court must appreciate that while the chances of a homicide always existed in the early days of the republic, it would have been a fairly rare event. For good or ill, federal policing is a vastly greater enterprise in the 21st century and the danger of criminal wrongdoing, including homicide, has grown exponentially.
Second, and related, until recent times, homicide was always regarded as a state crime. Chief Justice John Marshall did not stir any controversy when he noted in 1821 that Congress had “no general right to punish murder committed within any of the States.” Except for certain federal enclaves, such as a military base or the District of Columbia, murder was not a federal offense. It is thus difficult to fathom that the men who fought the Revolutionary War would accept the idea that federal agents would be immune from the only homicide laws that then existed. Recall that even the British soldiers involved in the Boston massacre stood trial for murder (They were ultimately acquitted with the help of John Adams). When England later tried to grant its soldiers special legal protections, the early Americans complained bitterly and included that grievance in our Declaration of Independence.
Third, federal officials want everyone to believe that they maintain the highest standards and so there is no need for any outside agency to review the conduct of its agents. A quick look at the record casts serious doubt on that claim. During the 1990s, the FBI was rocked by the Ruby Ridge scandal. Vicki Weaver was shot in the head while holding a baby in her arms while standing on her front porch. What’s worth noting here is that that episode wasn’t a case of some rogue, trigger-happy agent. High-ranking officials at FBI headquarters approved illegal shoot-to-kill orders for its supposedly “elite” Hostage Rescue Team. After the incident, the FBI director (a man who was both a lawyer and a former federal judge) promised a personal and intense review, but that was later shown to be a pretense. It is quite disturbing that the bureau’s top brass did not know the law regarding the taking of a human life and then tried to cover up the mess.
In 2004, the Inspector General of the Department of Justice found that different federal police agencies had procedures and standards for reviewing shooting incidents that could result in different conclusions regarding the legality of deadly force. The IG was also rightly troubled that some agencies delegated the shooting review to the very field office where the agent involved was assigned, raising the specter of partiality.
Fourth, the federal bureaucracy has been remarkably successful in obstructing and quashing local prosecutions before they can get traction. Sometimes federal officials will take a soft approach. They admit to the gravity surrounding an incident but then assure local police that the matter will be handled “internally.” Months go by and only token action is taken in the way of accountability. In other cases, federal supervisors will play hardball from the outset—expressing outrage that locals are accusing an upstanding agent of criminal conduct. The agents involved refuse to submit to questioning or provide a formal statement. Sometimes agents are even moved outside the local jurisdiction altogether to obstruct investigators. The point here is that since local officials can be thwarted by such tactics, it could be many years before another immunity case can work its way back up to the High Court for review.
The good news is that there may finally be enough justices on the Court that would be willing to take a fresh look at the immunity doctrine. Conservatives like Clarence Thomas, Anthony Kennedy, and Neil Gorsuch seem inclined to enforce limits on federal power. Sonia Sotomayor has been skeptical of broad claims of police and prosecutorial power. Stephen Breyer and Ruth Bader Ginsburg recently dissented in a case where a Mexican teenager was killed by a Border Patrol agent and a lawsuit was tossed out prior to trial because the teen was standing on Mexican soil when the bullet struck him. Yet another very troubling instance of deadly force by a federal agent.
Interestingly, we know the Court has already taken an interest in this case. The Court receives thousands of petitions every year but only accepts a few dozen for review. Because the odds favor rejection, it is not uncommon for the opposing party in the case to waive its chance to file a written brief with the Court in order to defend the lower court decision and offer reasons as to why the Court should decline review. Kleinert’s attorneys chose that option—initially. But then, quite unexpectedly, the Court formally asked Kleinert’s attorneys to file a response, which they then submitted a few weeks later.
The Kleinert brief says a ruling for Texas would “undo more than a century of settled constitutional law.” But that’s precisely why it is imperative for the High Court to hear Texas’s petition. This mistaken immunity doctrine has gone uncorrected for far too long. Everyone agrees that federal agents accused of crimes ought to be able to argue self-defense or good-faith mistake to impartial juries. But sweeping immunity from local homicide prosecutions is a far-fetched idea that the Supreme Court should discard.