States must protect their residents from criminals — even ones wearing federal uniforms

Can federal officers be prosecuted under state law?

That question has been raised by Philadelphia District Attorney Larry Krasner, who threatened to bring charges against federal officers if they come to his city and use tactics like those recently seen in Portland. That raises an important constitutional question about federal-state relations. Federal law is supreme over state law. The Constitution says so. But it turns out that Krasner is right. If federal troops continue to behave as they have, they could and should end up in state prison. 

Federal officials normally cannot be blocked by state law from carrying out their duties. But there are exceptions. If an Internal Revenue Service agent, walking down the sidewalk, sees someone he hates and empties a gun into him, his status as a federal employee doesn’t immunize him from prosecution. 

The interesting question today is whether that hypothetical case can be distinguished from some of the actions of federal troops in Portland. 

The Supreme Court addressed this issue in the 1890 case In re Neagle, in which a federal marshal, Neagle, killed a California man in defense of Justice Field, who was a member of the U.S. Supreme Court. The man, who had previously threatened the judge, reached into his breast pocket. The marshal, fearing that the man had a weapon, shot him. The man turned out to be unarmed, and Neagle was prosecuted under state law. The court released Neagle, holding that a federal officer is immune from state prosecution if he is performing an act that federal law authorized him to perform, and his actions were necessary and proper to fulfilling his federal duties. The reading of the second prong most generous to federal immunity holds that the officer is immune if he reasonably believed his actions were necessary, even if he was mistaken. 

Even on that most generous reading, some of the actions of federal officers in recent days are outside the scope of Neagle’s protection.

Consider the firing of a munition round into the head of Donavan La Bella, recorded on video. La Bella is standing alone, holding a speaker as he stands across the street from the courthouse, between two parked cars. Federal officers, standing in front of the courthouse, throw a canister that lands at his feet. He tosses it away from him into the middle of the street, nowhere near the officers. A few seconds pass. There is a firing sound, La Bella’s head jerks, and he collapses onto the ground. He was hospitalized with multiple skull and facial fractures. Doctors had to place a tube in his skull to drain the blood.

La Bella presented no danger to the officers or their building. 

Similarly, when Christopher David walked up to federal officers and asked them questions, they responded by beating him, breaking his hand and spraying his face with chemical irritant.

In neither of these cases did there seem to be any reasonable basis for the officers to believe that these actions were necessary under federal law.

The border patrol troops, whom Trump has primarily relied upon, already have a culture of lawlessness and impunity. Trump responded to these incidents by saying, “You people are handling it very nicely.” When the city’s mayor was tear gassed – again, after breaking no law and presenting no threat to federal property – Trump boasted on Fox News, “they knocked the hell out of him, so that was the end of him.”

In any prosecution, the officers would have a right to have their trials removed to federal court, with a federal judge presiding and deciding their immunity claim. But that won’t help them if the immunity claim is worthless on the merits. 

Trump has said that cities need to be protected from violent criminals. He is right. But he’s the one who has sent the violent criminals in. States have a right and responsibility to protect their residents from criminals — even ones who wear federal uniforms.

Andrew Koppelman is a professor of law at Northwestern University and author of the recently published “Gay Rights vs. Religious Liberty? The Unnecessary Conflict.” Follow him on Twitter at @AndrewKoppelman