What kind of immunity? Federal officers, state criminal law, and the Supremacy Clause.

• Author: Waxman, Seth P.

CONTENTS INTRODUCTION I. CASE STUDY: IDAHO V. HORIUCHI II. BACKGROUND PRINCIPLES A. Officer Liability and Immunity Under Federal Law 1. Sources of Civil and Criminal Liability 2. Qualified Immunity 3. The Fair Warning Requirement B. Preemption 1. General Principles 2. Direct State Regulation of the Federal Government III. STATE CONSTRAINTS ON FEDERAL LAW ENFORCEMENT A. Venue INTRODUCTION

When, if ever, may a State prosecute a federal officer for allegedly criminal conduct undertaken in discharge of his federal duties? The question goes to the heart of the division of sovereignty embodied in "Our Federalism." Federalism has played a central role in an array of constitutional law developments over the last decade, but there is little case law (1) and virtually no scholarly commentary (2) addressing the question posed here. This segment of the long border between national power and state authority is poorly demarcated and irregularly patrolled.

Should that matter? We think the answer is yes, on two counts. First, as a jurisprudential matter the issue is compelling. Unlike most federalism questions arising under constitutional provisions like the Commerce Clause, the Spending Clause, the Eleventh Amendment, or the Fourteenth Amendment, the question of when state criminal processes may be applied against federal law enforcement officers presents an unmediated juxtaposition of the two opposing headlands of the federalism dialectic: the Supremacy Clause and the Tenth Amendment.

Second, the question is far from hypothetical. Indeed, it was recently the focus of controversial, convoluted, and ultimately unresolved litigation that arose out of the August 1992 standoff between the FBI and white separatists at Ruby Ridge, Idaho. (3) In the course of that standoff, FBI sniper Lon Horiuchi fired at an armed separatist and accidentally killed an unarmed accomplice as she held her infant in her arms. Agent Horiuchi was prosecuted for the shooting, not by the national government that had deployed him, but by a locally elected district attorney. The decision to pursue state criminal charges against a federal agent for actions taken in the course of discharging his official duties raises difficult questions of public policy and law going to the core of our constitutional system. Those questions deserve much more careful and rigorous treatment than they have thus far been given. This Article provides a start.

To appreciate the resonance of the issue, we must first locate it within the broader context of federalism as a central component of American government. "Federalism" refers, of course, to the principle that governmental authority and prerogative should not vest in a single sovereign but rather should be dispersed across all levels of government. (4) The instantiation of this principle in the Constitution--"split[ting] the atom of sovereignty," as Justice Kennedy put it (5)--is perhaps the most innovative contribution our Founding Fathers made to the principles of democratic governance. And although the Supreme Court has located principles of federalism in many parts of the Constitution, (6) the provisions that most directly express the principle are the Supremacy Clause (7) and the Tenth Amendment. (8) Together, these provisions describe a straightforward, generally applicable rule: Where Congress and the President act within the powers expressly afforded them by the Constitution, their laws and acts prevail; in all other respects, power and authority reside with the States, or with the people themselves. (9)

In practice, of course, things rarely divide cleanly into hermetic categories, and these provisions by themselves tell us relatively little about how to balance federal and state power in any particular case. The Tenth Amendment, the Court has explained, "is essentially a tautology.... [It] confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States." (10) But the Amendment itself does not identify those instances; rather, it simply "directs us to determine ... whether an incident of state sovereignty is protected by a limitation on an Article I power." (11) Similarly, although the Supremacy Clause makes federal law supreme within its proper compass, the Clause by itself gives no instructions for calibrating that compass. (12) Somewhat ironically, then, while the Supremacy Clause and Tenth Amendment together describe the general terms of the federalist balance more directly than any other constitutional provisions, they nonetheless give little specific guidance on how to strike that balance in particular cases. (13) Many federalism issues thus defy easy textual resolution and must instead be approached more creatively, with sensitivity to the underlying constitutional values at stake.

Our system of government is replete with zones of overlapping state and federal authority, and questions often arise in those areas about how best to reconcile the competing sovereignties. Among the most difficult is the question posed at the opening of this Article: whether, and to what extent, state criminal law can constrain federal officers in the discharge of their federal duties. The States wield the general police power, (14) but in some areas their criminal jurisdiction is concurrent with that of the federal government. And in areas legitimately subject to federal criminal jurisdiction, the Supremacy Clause provides that federal law tromps state law with which it conflicts. But what happens when a federal officer exceeds the boundaries of his federal authority and treads upon an area of state concern? In what circumstances may States assign criminal consequences to such transgressions? And assuming a State may not impose criminal penalties on a federal officer for conduct that is concededly within his federal authority, who determines whether the officer has exceeded the bounds of that authority in any particular case?

Early proponents of the Constitution suggested that federalism is a means for the state and federal governments to "control each other," (15) and from such statements one might conclude that subjecting federal officers to the constraints of state criminal law is simply an instance of federalism at work. But does that follow? Clearly, federal officers have no warrant to discharge their duties in a manner that violates the federal Constitution. But is the application of state criminal law an appropriate--indeed, a permissible--method of enforcing the Constitution's requirements? To what extent may States craft remedies against the overreaching of federal officers that exceed or otherwise conflict with remedies available under federal law?

We propose to address these questions by using the Ruby Ridge case, Idaho v. Horiuchi, (16) as a point of reference. The case turned on Agent Horiuchi's assertion of "Supremacy Clause immunity" from Idaho's attempt to prosecute him for conduct undertaken in discharge of his federal duties. (17) The theoretical existence of such immunity has been clear for over a century, (18) but its precise scope, doctrinal basis, and relation to other forms of officer immunity remain somewhat obscure.

Especially given the paucity of case law and scholarly commentary on Supremacy Clause immunity, it is difficult to say how these issues would be resolved if subjected to definitive judicial treatment today. We offer no predictions. Our substantive view, however, is that although the constitutional principles of federalism and state sovereignty enshrined in the Tenth Amendment certainly inform the proper analysis, they do not ensure any particular role for the States in policing the conduct of federal officers. To the extent States have any role in this area, it is the product not of constitutional guarantee but rather the lack of congressional prohibition or intolerable conflict between state and federal interests. And in areas in which Congress has not explicitly addressed the extent to which federal officers may be subject to the constraints of state law, two guideposts direct the analysis: the federal government's interest in ensuring that States do not interfere with federal policy and prerogatives by criminalizing the execution of federal law, and federal officers' due process right to fair warning before they are subjected to criminal sanction for conduct they reasonably believed to be within their authority.

This Article proceeds in six Parts. In Part I, we briefly describe the facts and proceedings in Idaho v. Horiuchi, our paradigmatic case. Horiuchi pitted a State's plenary police power directly against the federal interest in ensuring the effective implementation of federal policy. It thus provides a useful context for considering the issues raised in this Article. Part II discusses two different sets of background principles bearing on Supremacy Clause immunity. We first survey mechanisms for holding law enforcement officers civilly and criminally liable under federal law, as well as the immunities available to officers sued or prosecuted under those laws. We focus in particular on the doctrine of qualified immunity in the civil context, and on the due process requirement of fair warning in the criminal context. Because Supremacy Clause immunity is so little developed, our discussion of officer immunity in these other contexts provides a useful set of analogies. This analogical inquiry also highlights an important distinction between federally recognized officer immunity from federally imposed civil or criminal liability, and federally recognized immunity from state-imposed liability. The latter, of course, raises federalism issues not germane to the former.

To provide a context for thinking about those issues, we also discuss in Part II the Supreme Court's preemption jurisprudence. Preemption principles govern the circumstances in which federal law may displace otherwise applicable state law. Those...