The modern framework for immunity of federal officers from state criminal prosecution traces back to an 1890 Supreme Court case, In re Neagle. At issue was California’s prosecution of a deputy U.S. Marshal who killed a man attempting to murder Supreme Court Justice Stephen Johnson Field. [Editor’s Note: Yes. It’s a story for another day.] The Court held that under the Constitution’s Supremacy Clause, an officer could not be charged by a state if he was simply doing his “duty.” As long as “he did no more than what was necessary and proper for him to do,” wrote Justice Samuel Miller, “he cannot be guilty of a crime under the law of the state.”
The Court has also handed down a series of decisions that make it more difficult for prosecutors to try federal agents in state courts. In 1989, the Court clarified in Mesa v. California that when a federal agent raises any “colorable federal immunity or other federal defense,” the case must be removed to federal court, whether that defense is ultimately successful or not. This means that any federal defendant raising Supremacy Clause immunity can argue that their state prosecution is preempted by federal law, and the state must remove the case to federal court.
In federal court, states can overcome a federal immunity defense if they can prove that the conduct at issue went beyond what was “necessary and proper” for an agent to conduct their official duties. For example, in 1906, the Court in Drury v. Lewis allowed a state to prosecute two soldiers who killed a 19-year-old civilian who had allegedly stolen copper piping from a federal armory after he had already been detained.
However, lower courts have interpreted “necessary and proper” capaciously, often treating even negligent or reckless conduct as protected so long as it occurred during the performance of an agent’s official duties, and the agent “honestly and reasonably believed” their actions were necessary and proper. This subjective standard can make it nearly impossible to prosecute plainly poor decisions that caused serious harm. For example, in Clifton v. Cox, a federal agent tripped as he approached a cabin during a raid, and a fellow agent, thinking his colleague had been shot, burst into the cabin unannounced and shot and killed the occupant. The Ninth Circuit affirmed the dismissal of the agent’s prosecution on Supremacy Clause immunity grounds.
In the Oregon case, “driving through a stop sign without checking for cross traffic and then killing a bystander” was not required to conduct the DEA agent’s duties. But because it happened in the course of his duties, now that the Ninth Circuit has dismissed the case, prosecutors are unwilling to pursue it any further.
