United States District Court, D. Arizona, Phoenix Division
For Russell Files, Defendant: Milagros Anais Cisneros, LEAD ATTORNEY, Federal Public Defenders Office, Phoenix, AZ.
For Arizona, State of, Plaintiff: Gregory Kenneth Cecilia, LEAD ATTORNEY, Maricopa County Attorneys Office, Phoenix, AZ.
MEMORANDUM OPINION AND ORDER RE: FEDERAL IMMUNITY DEFENSE
JACK ZOUHARY, U.S. DISTRICT JUDGE.
Defendant Russell Files (" Files" ), a former federal Wildlife Services (" WS" ) employee, urges this Court to apply a seldom-litigated principle of federal constitutional law -- federal Supremacy Clause immunity -- to bar the State of Arizona from prosecuting him for animal cruelty (Docs. 48 & 50). This Court held a two-day evidentiary hearing in March 2014, and heard oral argument on the issue in April 2014. At
this Court's invitation in May 2014 (Doc. 80), the parties executed jury-trial waivers in June and July, respectively, limited to factual issues material to resolving Defendant's Motion to Dismiss (Docs. 82-83). This Court now approves those jury-trial waivers. See Federal Criminal Rule 23(c).
This case is about a man and a dog named Zoey -- not his dog, but his neighbor's -- a neighborhood dispute that has, literally, become a federal case. Robert Frost in his poem Mending Wall recounted that not always do " good fences make good neighbors" -- as in this case. The story of this case takes place in November-December 2012 and ends with Zoey severely injured after being caught in a trap set by Files in his front yard. But before the underlying facts are shared, the legal niceties are addressed.
Files is a criminal defendant in a prosecution initiated by the State of Arizona and appears before this Court thanks to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). In March 2013, Files filed a notice of removal to this Court from the Superior Court of Arizona, Maricopa County (Doc. 1). The State of Arizona moved to remand the case to state court (Doc. 2). Following a September 2013 evidentiary hearing, Judge David Campbell denied the State's motion, finding Files had established (1) a nexus between his duties as a federal officer and the criminal charges at issue in this case and (2) colorable federal defenses (Doc. 17 at 2-4). Files' asserted federal defenses -- Supremacy Clause immunity and a public authority defense -- provide the basis for this Court's subject matter jurisdiction. See Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989) (" Section 1442(a) . . . is a pure jurisdictional statute . . . . [I]t is the raising of a federal question in the officer's removal petition that constitutes the federal law under which the action against the federal officer arises for Art. III purposes. The removal statute itself merely serves to overcome the 'well-pleaded complaint' rule which would otherwise preclude removal even if a federal defense were alleged." ).
In February 2014, Files moved to dismiss the Indictment on the basis of Supremacy Clause immunity (Doc. 48). In their briefs, the parties discussed the application of the immunity defense to this case ( see Docs. 48 & 50), but neither party broached an equally important question: who decides whether the defense applies -- judge or jury?
This Court discussed that question with the parties and all agreed this Court should follow the procedural framework endorsed by the plurality opinion in Idaho v. Horiuchi, 253 F.3d 359, 374-76 vacated as moot, 266 F.3d 979 (9th Cir. 2001). See Doc. 52; Docs. 72-73, TR 10; Doc. 81 at 4, 6. (" TR" refers to the March 2014 evidentiary hearing transcript at Docs. 72-73.)
This agreed-upon approach to disposing of this Motion raises another procedural question. There are strong indications that the Sixth Amendment's jury-trial guarantee does not extend to factual disputes material to a Supremacy Clause immunity defense. See, e.g., In re Neagle, 135 U.S. 1, 75, 10 S.Ct. 658, 34 L.Ed. 55 (1890) (" The circuit court of the United States was as competent to ascertain these facts [material to the immunity defense] as any other tribunal, and it was not at all necessary that a jury should be impaneled to render a verdict on them. It is the exercise of a power common under all systems of criminal jurisprudence. There must always be a preliminary examination by a committing magistrate, or some similar authority, as to whether there is an offense to be submitted to a jury." ). Supremacy Clause immunity does not simply provide, as in the case of a defense of justification or excuse, " a mere shield against liability" but rather " immunity from suit." New York v. Tanella, 374 F.3d 141, 147 (2d Cir. 2004). See also Clifton v. Cox, 549 F.2d 722, 730 (9th Cir. 1977) (observing that when the defense applies " the prosecution has no factual basis upon which to prosecute [the defendant] and the entire proceeding is a nullity" ). Once a Supremacy Clause immunity defense is established, it is not left to a federal or state jury to acquit the defendant of state-law criminal charges, or to a federal or state judge to direct a verdict in the defendant's favor; the federal or state court is instead stripped of any jurisdiction over the defendant. Ohio v. Thomas, 173 U.S. 276, 283, 19 S.Ct. 453, 455, 43 L.Ed. 699 (1899).
Finally, one further point of explanation by way of procedural background, not of this case but of the broader controversy that gave rise to this case. The U.S. Department of Agriculture (" USDA" ) -- the cabinet-level agency in which WS is housed -- conducted a personnel misconduct investigation, assessing the actions of WS employees involved in the December 2012 trapping of Zoey. That investigation, probing a broader range of issues than are implicated by the present Motion, produced the sworn statements of Files' two supervisors, both dated March 2013 (Exs. 113-14). Except for those two statements, this Court does not consider any aspect of the USDA investigation.
Federal Supremacy Clause Immunity
Supremacy Clause immunity is an outgrowth of the Supremacy Clause's hierarchical principle. This defense applies where a federal officer is held " to answer for an act which he was authorized to do by the law of the United States, which it was his duty to [do as a federal officer], 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" any state. In re Neagle, 135 U.S. at 75. The defense provides a mechanism for carrying into execution a relatively straightforward principle that exists in our federal system of government where the central government is deemed supreme within its legislative jurisdiction: " An act cannot simultaneously be necessary to the execution of a duty under the laws of the United States and a [criminal] offense to the laws of a state." Denson v. United States, 574 F.3d 1318, 1347 (11th Cir. 2009).
In the roughly 125 years since the defense's foundation, case law identifies two components necessary for the defense to apply. First, the action which forms the basis of the state prosecution must have been within the scope of the federal officer's authority. In this Circuit, " [w]hat is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if [the
officer] had been using his power for any of the purposes on whose account it was vested in him." Clifton, 549 F.2d at 726 (quoting Barr v. Matteo, 360 U.S. 564, 572, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959)). Conduct may be within the scope of a federal officer's authority even if of " questionable legality" or taken without specific direction of a superior. Id. at 727 & 728 n.12. See also Wyoming v. Livingston, 443 F.3d 1211, 1219 (10th Cir. 2006) (noting that relevant Supreme Court authority gives " grants of federal authority a generous sway" ); Baucom v. Martin, 677 F.2d 1346, 1350 (11th Cir. 1982) (" [T]he necessary authority [to support invocation of the defense] could be derived from the general scope of the officer's duties." ); Connecticut v. Marra, 528 F.Supp. 381, 385-86 (D. Conn. 1981) (collecting cases finding sufficient authorization for an action in " general statutes authorizing an agency to function," in agency regulations, and in congressional appropriations).
While the case law does not endorse an " anything goes" approach to fixing the authority of federal officers, see Colorado v. Symes, 286 U.S. 510, 518, 52 S.Ct. 635, 76 L.Ed. 1253 (1932); In re McShane, 235 F.Supp. 262, 273 (N. D. Miss. 1964), it does not limit the defense to actions specifically directed by statute or by rule. See Livingston, 443 F.3d at 1227-28 (noting, though the relevant regulations did not provide " an explicit grant" for U.S. Fish & Wildlife Service staff to " trespass" on private land in the course of their duties, federal law nonetheless authorized the " capture and collar operation that led to [the officers'] indictments" ). Instead, most (if not all) Supremacy Clause immunity defenses have turned on the defense's second element: whether the federal officer's actions, now the basis ...