The American Prospect - States can prosecute anyone for violations of state law, regardless of their rank or authority. Murder is a felony in the state of Minnesota, as it is in every other state. Within the last several years, we saw Minnesota successfully prosecute a murder, committed by a law enforcement officer, that was documented on tape and broadcast to the world.
The Supremacy Clause does give federal officials some protections from state laws, but they “only appl[y] when federal officials are reasonably acting within the bounds of their lawful federal duties,” according to a position paper issued by the University of Wisconsin Law School. Shooting an unarmed person who is in the process of fleeing a scene would be unlawful, and while DHS would certainly contest that in court, that’s a wholly proper venue for the debate.
The history of state prosecutions of federal officials goes back to the War of 1812, when some New England states used state statutes to prosecute federal customs officers who seized goods that were under a trade embargo. Often, they are used to resist a federal law that states don’t like, such as the Fugitive Slave Act.
But numerous states have indicted, charged, and arrested federal law enforcement officers for conduct that exceeded their official duties. In 1898, Virginia charged a federal tax collector posse with shooting and killing horses and cattle during a shootout. The federal posse claimed they were ambushed while attempting to collect taxes.
More to the point, in Findley v. Satterfield (1877), Castle v. Lewis (1918), Oregon v. Wood (1920), Smith v. Gilliam (1922), Maryland v. Soper (1926), and many more, states alleged that federal officers committed murder or attempted murder while engaged in law enforcement activity. Almost always, the federal response was that they were performing federal duties, that they acted in self-defense, or both. Often, these cases were removed to federal court, but the state prosecutors maintained the case. (Federal officers have the right to move cases to federal court, but not the unlimited right; they have to assert some plausible federal defense to the charges.)
Sometimes the courts accepted the federal officers’ arguments and had state charges dropped. Sometimes they invoked the Supremacy Clause and determined that these officers could not be prosecuted. But in Castle v. Lewis and Ex parte Huston, both of which involved federal officials shooting into a car believed to be transporting liquor during Prohibition, the judge allowed the cases to go forward, citing unreasonable use of force and a lack of connection to the discharge of federal duties.
More recently, states have prosecuted officers, often successfully, for a variety of misconduct, up to and including murder. One of the more notorious ones came from Idaho in 1992, where state prosecutors charged an FBI sniper with killing the unarmed wife of anti-government activist Randall Weaver at his Ruby Ridge cabin. A federal appeals court did allow the case to go forward, but a newly elected county prosecutor dropped the charges.
Prosecutors in Santa Clara County, California, successfully prosecuted a postal worker (a federal officer) who killed a bicyclist in 1989. Virginia prosecuted a U.S. Park Police officer who shot a man to death in 2017, but again after an election, charges were dropped. Oregon prosecuted a Drug Enforcement Administration officer who killed a biker with his car while catching up with his colleagues; the Ninth Circuit just affirmed a lower-court dismissal of the case last month.
Supreme Court: “Federal officers and employees are not, merely because they are such, granted immunity from prosecution in state courts for crimes against state law.”
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