Homicide Isn't Prosecutable When You're a Federal Agent

An old joke about committing murders is that "the first is expensive, the rest are free." They can only execute you once, after all. But if they can't even prosecute you, let alone execute you … Well, then, killings are all pretty much on the house, aren't they? And that seems to be the case with Cole Dotson, who won't be prosecuted for killing three women and injuring two children, because he was on the job at the time as an agent with Immigrations and Customs Enforcement when he decided to play bumper cars at an intersection in Imperial County.

According to the The San Diego Union-Tribune:

U.S. District Judge Anthony Battaglia said long-standing federal law gives immunity from state prosecution to federal law enforcement officers accused of crimes committed in the course of their duties.

That means Cole Dotson, a special agent with Immigrations and Customs Enforcement, will no longer face three counts of gross vehicular manslaughter brought by the Imperial County district attorney.

On December 29, 2009, Dotson was apparently a laggard member of a surveillance team following a suspected meth smuggler. While trying to catch up with his buddies, he drove "his government car at speeds of more than 100 mph, according to the California Highway Patrol. When he went through the stop sign, his speed was estimated at 80 mph. Though the car had lights and sirens, they were not on."

Stop signs are there to modulate the flow of traffic, and people expect that drivers coming from other directions might actually pause, however briefly. When you blow through them doing 80, you tend to do things like piling into vans containing women and children. Killed in the crash were Sandra Garcia, who was driving, along with Maria Nieto and Patricia Reyes. Two children were injured.

The federal government forked over $11 million to the families of the victims in February — an indication that Dotson's actions were not universally considered praiseworthy. Another such indication was the attempted prosecution by Imperial County officials, who said federal agents get immunity only if their actions are "necessary and proper" to their duties, and that Dotson's didn't qualify.

Battaglia disagreed. While he said that Dotson's actions were negligent, he said making the agent face criminal charges would have a "chilling effect" on all federal law enforcement officers who are in emergency situations.

The most famous such assertion of federal immunity in recent memory is that of Lon Horiuchi, the FBI shooter who ultimately skated away from an attempt by Idaho officials to hold him to account for his lethal conduct at Ruby Ridge only after the case bounced back and forth between courts before being dropped by a newly elected prosecutor.

Spurred by the Horiuchi case, the Yale Law Journal looked for the limits of federal immunity in 2003. Authors Seth P. Waxman and Trevor W. Morrison concluded that there was surprisingly little clear guidance to go on, but that:

[O]nce we are confident that the federal government is competent to act in a certain area, federalism properly imposes few judicially enforceable barriers to that action. Rather, we generally defer to Congress's judgment about how best to reconcile overlapping federal and state power in areas where both are legitimately exercised. … [T]he role of federalism in this area properly becomes quite modest. Rather, the governing constitutional rule is simply that of the Supremacy Clause itself, under which federal law is supreme and the only real question is how the federal government has chosen to express that supremacy.

How the federal government has chosen to express that supremacy? Well, Horiuchi was never prosecuted at the federal level, and Dotson still works for ICE, in an administrative capacity, with no hint of a federal prosecution in the wind.

With the federal government involving itself in ever-more aspects of American life, it might be a good time to look around really carefully at stop signs. Or anywhere else. (HT jasno)