Professor Michael Mannheimer (Northern Kentucky University) is the author of an important new article on "Unpacking Supremacy Clause Immunity." The issue of federal officer immunity from state prosecution is of obvious importance, given recent events. Thus, I am pleased to present this guest post by Prof. Mannheimer. What follows is written by him, not me (Ilya Somin):
The recent killing of Minneapolis resident Renee Good by an agent of federal Immigration and Customs Enforcement (ICE) has raised some questions, and some massive confusion, about the extent of immunity from state-law prosecution for federal agents. At one extreme, Vice President J.D. Vance, a Yale Law School graduate, proclaimed that federal agents enjoy "absolute immunity" from such a prosecution, a notion I described to a CNN reporter as "absolutely ridiculous" (yes, it is that kind of clever wordplay on my part that keeps CNN coming back for more). Even standing on its own, without guidance from the federal courts, such a claim makes no sense. First, the U.S. Supreme Court just decided recently that the President himself enjoys absolute immunity but only when exercising his "core constitutional powers," leaving for another day whether the same is true for the President's other official actions, And that was a close question, generating much disagreement over the Court's decision. It is preposterous to suggest that the President's mere underlings enjoy absolute immunity where that might not even be true of the President himself. True, the Court held that the President was immune from all prosecution for some types of official acts, while the question here is whether an ICE agent is immune only from state prosecution. But that brings me to my second point: for all intents and purposes, absolute immunity from state prosecution would ordinarily be the same as absolute immunity, full stop. Federal law does not cover most crimes potentially committed by federal agents. For example, I am unaware of any federal crime an ICE agent commits "merely" by murdering someone. A prosecution could be brought for a violation of civil rights under 18 U.S.C. § 242, but such a prosecution requires a showing beyond a reasonable doubt that the agent violated Good's rights willfully, meaning that he killed her with the specific purpose of violating her civil rights. That's a tall order. And, more to the point, a law criminalizing a deprivation of civil rights simply does not protect the same interest as a law criminalizing murder. Finally, in a regime of absolute immunity, the Federal Officer Removal Statute makes no sense either. What would be the point of Congress authorizing removal to federal court of state prosecutions of federal officers if the invariable result would be dismissal on the ground of absolute immunity? Why not just grant absolute immunity directly?
Fortunately, we do have at least some guidance from the federal courts, going back 120 years in fact. In United States ex. rel. Drury v. Lewis, two U.S. soldiers were prosecuted by Pennsylvania for murder after shooting a man suspected of stealing copper from their Army base. They sought federal habeas corpus relief, claiming immunity from state prosecution. The Supreme Court unanimously held that denial of relief was proper because of a factual dispute over whether the soldiers had shot the victim as he was fleeing, which would make the shooting justified under state law, or, instead, had shot him after he gave himself up, which would obviously be murder. Such factual disputes, the Court said, are for state court juries, not federal court judges.
