In May 1999, then-Deputy Attorney General Eric Holder testified before the Senate Judiciary Committee about the nobility and necessity of federal, state, and local officials who stand up for the civil rights of all of us. His testimony focused on federal criminal civil rights laws, those laws that criminalize law enforcement misconduct, trafficking, and offenses motivated by hate. Like so many other areas of criminal law, federal, and state governments each have independent jurisdiction to investigate and prosecute most criminal civil rights crimes, and each have independent but overlapping responsibilities. Under the dual sovereignty doctrine, both can even prosecute the same underlying conduct without violating the Constitution’s Double Jeopardy Clause.
Holder spoke about how, when values are shared, there are great benefits of concurrent state and federal criminal jurisdiction, the “most important” one being “the ability of state and federal law enforcement officials to work together as partners in the investigation and prosecution of serious crimes.” Working together reinforces for the public the principles of equal treatment under law and that those exercising government power and force – including deadly force – must be held accountable when they don’t meet minimum standards of decency and restraint. Working together also reinforces the idea that all of us, united and regardless of the past and historical divisions from where we come, support dignity and fair treatment for everyone. Holder recounted successful civil rights enforcement partnerships of state and federal law enforcement in South Carolina, Georgia, and Indiana. And he described a Memorandum of Understanding between the National District Attorneys Association and the Department of Justice that embodied the spirit of unity and why it’s so important. He said –
The MOU is intended to foster a more cooperative approach by local, state and federal authorities in the investigation and prosecution of color of law and hate crimes cases. It requires early communication among local, state and federal prosecutors to explore the most effective way to investigate these cases and to utilize the best investigative resources or combination of resources available. There are many benefits to such an approach: it encourages the use of coordinated or joint local, state and federal investigations in those instances where coordinated or joint investigation is in the best interest of justice; it decreases time delay between local, state and federal authorities about these important cases; and it increases public confidence in the criminal justice system. It is this type of cooperative effort, endorsed by the Department of Justice and the National District Attorneys Association, that maximizes all of our law enforcement capabilities in these important cases.
From Cooperation to Disunity
Unfortunately, division is a foundational part of our country’s history, and, accordingly cooperative law enforcement is not the norm, especially around civil rights. In fact, any fair reading of American history shows that working together in the enforcement of civil rights has been the rare exception.
In Arizona v. Manypenny, the federal courts upheld a state conviction of a border patrol agent for shooting a Mexican man. The Manypenny case is particularly instructive.
And now, over the last weeks and months, that division has been forcefully exploited and reasserted by the Trump Administration. There will be no cooperation, for example, between federal and Minnesota law enforcement in the investigation of the ICE agent who killed Renee Good. There will be no federal civil rights investigation at all. Given what we know already, this has led not just to outrage from many career prosecutors in the Justice Department’s Civil Rights Division and the U.S. Attorney’s Office in Minnesota, but to outright resignations.
From the time of its enactment in 1866, the Civil Rights Act, the basis for 18 U.S.C. § 242, the law under which federal authorities investigate and prosecute excessive force incidents by those acting “under color of law” has been controversial and has raised federalism and many other concerns. In years past, federal prosecution was seen by many who were dubious of civil rights laws in the first place as an encroachment on state sovereignty. A political and pragmatic compromise was forged over time, with the Justice Department adopting what it called a “backstop policy” for criminal civil rights investigations. Under the policy, when state or local authorities undertake a “good faith” investigation into an act of possible law enforcement misconduct of a hate crime, the Justice Department defers to such investigation and foregoes its own involvement. As Holder explained it to the Judiciary Committee –
. . . the Department works with state and local officials and would generally defer prosecution in the first instance to state and local law enforcement. Only in highly sensitive cases in which the federal interest in prompt federal investigation and prosecution outweighs the usual justifications of the backstop policy would the federal government take a more active role. Under this policy, we are available to aid local and state investigations as they pursue prosecutions . . . Under this policy, we are also in a position to ensure that, in the event a state cannot or will not vindicate the federal interest, we can pursue prosecutions independently.
For many, the backstop policy was at least partially a copout and a failure. Despite many heroic federal civil rights prosecutions (full disclosure: I prosecuted criminal civil rights cases in the Criminal Section of the Civil Rights Division for five and a half years), during the post-Reconstruction era, the era of Jim Crow, and even to today, many critics believe there has been insufficient federal assertion of its constitutional responsibility to oversee state and local law enforcement and ensure that the principles of the 14th Amendment – that no person should be denied life or liberty by those acting under color of law without due process of law – were upheld.
But whether federal enforcement was sufficient or not in practice, there is no denying that federalism and the basic post-Civil War constitutional structure – a system of divided and shared power between the federal and state governments – can serve as a force, albeit perhaps inadequate, pushing back against abuses of power by one part of our government or too much power accumulating in one level of it. When power is abused in federal, state, or local government, federalism provides paths for other levels of government to address the underlying problems such as civil rights deprivations, sometimes through criminal investigation and prosecution and sometimes through other means.
Many times, those paths and the pushback of one governmental entity against another lead to unsatisfying results, such us in recent years when fatal police shootings that seem to many to be excessive do not lead to convictions. But serving as a backstop and investigating allegations of misconduct, even when ultimately not fully satisfying, serves as a check. It provides, at a minimum, some affirmation of the values of justice and fairness, and as resistance to the abuse of power. It is a critical feature of our constitutional order, even when only partially successful.
State and Local Law Enforcement Authorities As the New Backstop, albeit with many challenges
Federal and state roles in the protection of civil rights have, in many ways, now reversed. Federal law enforcement is carelessly and recklessly violating rights. It is projecting both the President’s quest for power and his desire to punish those who disagree with him. At the same time, federal civil rights enforcement is being methodically eliminated. When all this happens, there is an imperative for state and local officials to serve as a new backstop; to respond and investigate allegations of federal and local misconduct.
As is true when the federal government acts as a civil rights backstop, state and local action here will be difficult and may not be wholly satisfying either, especially when reviewing federal law enforcement action. State and local prosecutors face serious constitutional and practical obstacles to bringing criminal cases against federal officials who violate state law. An important one is American federalism itself, which defines the delicate balance of federal and state authority. Fundamental to the boundaries of authority is the Supremacy Clause of Article VI. It establishes that that federal laws are the “supreme Law of the Land” and take precedence over conflicting state laws. It ensures that the national government’s legitimate powers can be exercised without interference from state governments. And it has meant that legitimate acts of federal officials cannot be prosecuted under state law. That architecture has served important values. It is why federal marshals could not be prosecuted for trespassing or other state crimes under Mississippi law for escorting James Meredith to register as the first African-American to attend the University of Mississippi. The same principal applies equally when federal officials use force, including deadly force. In 1890, in In re Neagle, 135 U.S. 1 (1890), the Supreme Court held that a federal marshal was immune from state prosecution for actions necessary to protect a Supreme Court justice’s life. The marshal shot and killed a man who attacked the justice. The Court ruled that because the shooting was within the marshal’s federal duties, he was immune from state prosecution.
But the Court also made clear that when a federal official’s actions are not “necessary and proper” to fulfilling official responsibilities, the possibility of state prosecution remains. Drawing the line between legitimate federal law enforcement use of force – necessary and proper to fulfill law enforcement responsibilities – and illegitimate and excessive use of force can be difficult. Sometimes it requires frame-by-frame analysis. It is part of finding the right balance of federalism and the rule of law, one that maintains the legitimacy and public trust in our constitutional order. It’s what makes this kind of backstop work difficult and often unsatisfying. And if recent Court decisions are any guide, we can be fairly certain that this Supreme Court will guard the constitutional boundaries surrounding the President and presidential power very carefully.
The same federal courts that have recognized that federal officials are insulated from state prosecution for the legitimate and reasonable exercise of federal law, though, have also clearly recognized that state criminal law provides an important check against the abuse of power by federal officials acting outside the scope of their authority. There is a long history of state action against federal officials who act outside their legitimate authority and violate the civil rights of those in this country. The Supreme Court has also made clear that “[a]n employee of the United States does not secure a general immunity from state law while acting in the course of his employment.”
In the 1879 case of Tennessee v. Davis, a federal revenue collector was charged with state murder, in an incident that occurred while enforcing federal revenue laws and seizing equipment used in illicit distilleries. The revenue collector claimed he was assaulted and fired upon by a number of armed men, and that he returned fire only in self-defense. The Supreme Court allowed the case to proceed – though, in terms of venue, for the trial to be removed to federal court under a removal statute that still exists in form today. More than a hundred years later in Mesa v. California, in 1989, the Supreme Court allowed a postal worker to be prosecuted in California state court for manslaughter after the mail truck she was driving collided with and killed a bicyclist. Also in the 1980s, in Arizona v. Manypenny, the federal courts upheld a state conviction of a border patrol agent for shooting a Mexican man.
The Manypenny case is particularly instructive.
The agent, William Manypenny, was on duty near the Arizona/Mexico border, patrolling federal land in Pima County, Ariz. Manypenny and his partner, in plain clothes, confronted three Mexican men who were traveling north. The partner ordered the men to stop. One of the men turned and ran back south toward the border. Manypenny shouted for the man to stop. When he didn’t, Manypenny fired his shotgun three times in the man’s direction, hitting him in the upper spine, severing the spinal cord and leaving him a quadriplegic. Manypenny was later indicted, under Arizona law, for assault with a deadly weapon for shooting the man. A jury convicted him, but the trial judge set aside the conviction. The State of Arizona appealed, and after the Supreme Court approved of the appellate procedure, the court of appeals held that the judge’s entry of judgment of acquittal was error and reversed it.
Throughout American history, cooperative state-federal enforcement of civil rights has been the exception rather than the rule. More often, the Justice Department faced resistance to robust civil rights enforcement by the states, and through the Civil Rights Division had to step in as the backstop to ensure a proper response to the abuse of power by law enforcement. Now, the states face resistance from the Justice Department to legitimate and robust civil rights enforcement. Occasionally in the past, state and local authorities have stepped in when federal officials, under color of their authority, committed acts beyond that authority. Such investigations and prosecutions are rare in part because state authorities must show that they are not prosecuting federal officials who are carrying out their duties in good faith but rather are prosecuting because those officials engaged in unlawful conduct under the guise of federal law enforcement.
The capacity and willingness of state and local prosecutors to act, not in contravention of legitimate federal interests, but in defense of their citizenry when federal actors exceed their legal bounds, is not only consistent with the structure of American government but vital to it. Such efforts serve to ensure that the law applies equally to all, regardless of office, and are a fundamental safeguard of public confidence in the administration of justice. It is a feature of federalism.
The Role of Civil Society
With the dramatic expansion of ICE and the limited vetting and training of new agents being deployed around the country, oversight is critical. The actions of the Trump administration mean that such oversight is now left largely to state and local government action. But our circumstances also demand something of the rest of us. We need to support those state and local officials who are taking up this new responsibility. The Trump administration has already resisted any cooperation with state and local officials examining federal enforcement in the case of Jonathan Ross; it has refused to share information and evidence about the shooting of Good with Minnesota officials. It will also undoubtedly retaliate against those local officials who examine federal enforcement in ways that are themselves abuses of power. We cannot ask state officials to put themselves in the line of the administration’s fire if we are not prepared to back them up.
In that vein, I recently worked with members of the American Bar Association’s Criminal Justice Section to develop a resolution that “recognizes both the necessity of protecting legitimate federal functions and the equally compelling obligation to ensure that federal authority is not abused.” It publicly supports state and local officials who initiate the kind of difficult investigations of federal law enforcement accused of abuse. As the ABA report accompanying the resolution states, “[u]pholding the rule of law and public rights sometimes requires principled action by state and local authorities, free from political or institutional pressure, to hold all officials – federal or otherwise – accountable before the law.”
This resolution encourages appropriate action by state and local prosecutors to fill any accountability gaps when federal officers act outside the limits of their lawful authority and commit crimes under state law. In so doing, it affirms a commitment to a government of laws, where checks and balances are preserved, and where no person is above accountability. It is a small gesture of support to the men and women in the offices of Attorneys General and District Attorneys across the country who will courageously step in to protect all of our rights. We need to find other ways to support them.
AGs, DAs, and other state officials also must extend their oversight and pushback to excessive force beyond just criminal investigations and prosecutions. As Samantha Trepel indicated in an earlier essay in these pages, because of the challenges of criminal prosecutions of federal officials, states should – and are – pursuing creative methods to, at the very least, document perceived abuses. Governor JB Pritzker of Illinois created the Illinois Accountability Commission, “which aims to gather evidence of potentially unlawful conduct by federal agents, to support referrals to investigative agencies,” and make recommendations for changes to existing laws to better protect state residents. Other states and cities have created online portals that residents can use to report misconduct by federal agents (e.g., Minnesota). And more can be done. It’s all part of a necessary response to an excessively aggressive federal law enforcement deployment across the country, one that threatens the civil rights of so many, and one that federalism demands the hard work of our AGs, DAs, and all of us.
