Fifth Circuit Tosses State Prosecution of Federal Officer

Steven D. Schwinn, John Marshall Law School

The Fifth Circuit today threw out a criminal case brought by Texas against a federal FBI deputy, citing Supremacy Clause immunity. The ruling means that the state's case against the officer ends, although the court noted that federal authorities could still bring a federal case.

The case arose when Charles Kleinert, specially deputized by the FBI to investigate bank robberies, accidentally shot a person during an investigation. The victim showed up to a bank that was closed after an actual robbery. When Kleinert, who was in the bank, came out, the victim gave Kleinert a false name and allegedly exhibited other suspicious behavior. When Kleinert called him on the false name, the victim fled. Kleinert followed and eventually nabbed the victim. In the course of a struggled, Kleinert's weapon discharged and struck and killed the victim.

A Travis County grand jury indicted Kleinert for manslaughter. Kleinert removed the case to federal court (under the "federal officer removal" statute) and moved to dismiss, arguing that he was immune from state prosecution under Supremacy Clause immunity. The district court agreed and dismissed the case; the Fifth Circuit affirmed.

Supremacy Clause immunity prohibits a state from punishing (1) a federal officer (2) authorized by federal law to perform an act (3) who, in performing the act, did no more than what the officer subjectively believed was necessary and proper and (4) that belief was objectively reasonable under the circumstances.

The Fifth Circuit held that Kleinert was authorized by federal law to pursue and arrest the victim, because, under the circumstances, he had probable cause that criminal activity was afoot. The court held that he had a subjective belief that his action was necessary and proper, because, under the circumstances, he acted consistently with his training, without any animus toward the victim. And the court said that Kleinert's belief was objectively reasonable, because his acts were consistent with what others would have done. (The state conceded that Kleinert was a federal officer.)

The ruling ends the state prosecution. But the court specifically noted that Kleinert might still be subject to federal prosecution.