The Volokh Conspiracy

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An Oregon Criminal Prosecution of Federal Officers Could Be Removed to Federal Court

State Prosecutors would then prosecute state criminal offenses in federal court.


The Oregon Attorney General has opened a criminal investigation into the conduct of various federal officers in Portland. If this investigation actually proceeds to some sort of criminal court proceeding, then the officers would be able to remove the case to federal court. 28 U.S.C. § 1442(a) provides:

(a)A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue….

(3)Any officer of the courts of the United States, for or relating to any act under color of office or in the performance of his duties;

The statute clarifies the circumstances when removal is proper under subsection (a)

(c) Solely for purposes of determining the propriety of removal under subsection (a), a law enforcement officer, who is the defendant in a criminal prosecution, shall be deemed to have been acting under the color of his office if the officer—

(1)protected an individual in the presence of the officer from a crime of violence;
(2)provided immediate assistance to an individual who suffered, or who was threatened with, bodily harm; or
(3)prevented the escape of any individual who the officer reasonably believed to have committed, or was about to commit, in the presence of the officer, a crime of violence that resulted in, or was likely to result in, death or serious bodily injury.

I do not know enough about the facts to conclude whether the officers in question would fit within subsection (a)(1). It is possible their actions are not authorized by federal law, in which case removal would not be appropriate. The acts in question occurred near federal courts. The standard for removal under (a)(3), which concerns officers of the courts, is much broader.

This statute was often invoked during Reconstruction. Southern state prosecutors would indict federal officers–often tax collectors.

One unique wrinkle of Section 1442: A remand order can be appealed. 28 U.S.C. 1447(d) provides:

(d)An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.

In the event a district court remands a prosecution to state court, the United States could then appeal to the Ninth Circuit. Supreme Court review would be present in any event.

Assuming a motion to remand is denied, state prosecutors would actually be prosecuting a federal officer in federal court, based on state law. This strange dynamic occurred on remand in Strauder v. West Virginia, which was a removal case.

Finally, for those keeping score at home, these crimes would not be "Offences against the United States," and would not be subject to a presidential pardon.