The Supreme Court of the United States
Case № 18–17.
MEMORANDUM OPINION
I.
This opinion is issued by a single Justice acting under Criminal Procedure Rule 2.
Three issues are before this Court. First is Dixie’s request to extradite CaribCannibal. Second is CaribCannibal’s request for injunctive relief against the federal government’s detention. Third is CaribCannibal’s invocation of official immunity from state prosecution. This opinion addresses all three issues.
II.
The facts are relatively short. Days ago, Dixie brought legal proceedings against CaribCannibal — the subject of Dixie’s Extradition Request. At its core, the criminal case centers on whether or not CaribCannibal misrepresented his status as a federal official. CaribCannibal was not in Dixie, however, but in the Western State. The Southern State Supreme Court approved of the charges. But CaribCannibal did not respond to the court’s subpoena. And so, both Western and federal officials took steps to apprehend CaribCannibal. Ultimately, federal officials arrested him.
In the meantime, the Court received a Request for Extradition from Dixie, asking that CaribCannibal be transported to Dixie. The request was before this Court because the Western State does not have any judges. No doubt that a lack of a court system made extradition by a Western court difficult.
CaribCannibal remains in federal custody in Washington D.C. He has, however, raised concerns about his detention, specifically asking this Court to enjoin any transfer to Guantanamo Bay.
III.
I will begin with first principles. Extradition is a legal process where one sovereign transfers jurisdiction over a person to another sovereign for prosecution. 3 C.J.S. Extradition and Retainers § 3 (2018). Thus, the framers included a provision for transfers of prisoners from state to state. U.S. Const. Art. IV, § 2. There is no comparable federal to state provision. That makes sense because the federal government and the state governments exist in a system of dual, (not exclusive) sovereignty. See In re: Pub. L. B. 074 (The Police Reform Act of 2015), 100 M.S. Ct. 112 (2016). In contrast, the states do possess sovereignty exclusive from one another.
Dixie advances two theories in support of its request for extradition. First, because the Western State does not have any judges Dixie argues that the original power of extradition reverts to this Court. Second, because extradition would be required by the Western State, Dixie asks this Court to issue a mandamus order accomplishing the same. I analyze each argument in turn.
A.
First, I conclude that this Court does not have the original power of extradition. There is simply no role for court ordered extradition when people are transferred to a state government by federal officials for prosecution. 3 C.J.S. Extradition and Retainers § 3 (2018); see Davis v. Rhyne, 312 P.2d 626 (Kan. 1957). Accordingly, I deny Dixie’s request for extradition because extradition to a state is not a process recognized in the federal courts. Federal authorities remain free, of course, to transfer CaribCannibal to Dixie officials for prosecution, but extradition is not legally cognizable in this context.
While Dixie argues that the lack of a Western State forum grants this Court the power to extradite CaribCannibal, that argument must be rejected. First, extradition occurs between two coequal sovereigns. The states are not coequal with the federal government. U.S. Const. art. VI, cl. 2. Second, the core values of federalism counsel that the federal government does not have a general interstate extradition power. Criminal law is, broadly speaking, reserved for the states under their police powers. Federal courts can act to hold states to their obligation under the Constitution and extradition statutes. They do not, however, possess a freestanding ability to order interstate extradition. True, there is not a single Western State judge. But that does not revert the extradition power to the federal courts. It was never a power that the federal government held. The power remains with the states where it is constitutionally allocated.
Third, definitionally speaking extradition cannot be accomplished from the federal government to the states because there is no transfer of jurisdiction. Regardless of whether or not CaribCannibal is in Dixie or the Western State he would remain within the reach of the federal government. It follows that moving a person interstate can never be an extradition because the United States never surrenders jurisdiction over those within its borders.
Finally, recognizing a free-standing federal power to extradite any person in the United States would render any state extradition process meaningless. While the states’ actions are subject to review, the primary power is still entirely held by the states, not the federal courts.
This Court understands Dixie’s frustration with the Western State’s failure, but the proper answer cannot be the destruction of dual sovereignty. Instead the answer is simply for the Western State to repair its judiciary.
B.
Second, I hold that it would be inappropriate to issue mandamus ordering the Western State to extradite CaribCannibal. Dixie asks this Court to order the Western State to grant extradition consistent with Puerto Rico v. Branstad, 483 U.S. 219 (1987). Yet the problem remains that the subject of the request is not in the custody of a state government. A person in federal custody is not subject to interstate extradition.
Further, Branstad’s posture is entirely different from the case at bar. No interstate request for extradition has been made in this case, unlike Branstad. Had the Western State wrongfully denied extradition this Court could review the state’s action and issue mandamus if appropriate. But today’s case puts the proverbial cart before the horse. No extradition has been requested in the Western State; thus, there is no state court action for the Court to review.
C.
I have concluded that I lack any original power of extradition. I have also concluded that there is no Western State action to review, like there was in Branstad. Thus, I decline to evaluate the merits of the request or jurisdictional questions of the original charges, which must first be fully resolved by the Southern State Supreme Court. See American Civil Liberties Union of Sacagawea v. State of Sacagawea, №17–01 (2017).
Dixie spent a considerable amount of its time explaining why extradition should be granted. But unfortunately, ordering extradition is not within my power, and there is no court to issue mandamus to.
I am of the opinion that the extradition request is not legally cognizable before this Court. While I sympathize with Dixie’s frustration over the lack of Western courts, the answer cannot be to upend the Constitution. The real answer is for the Western State to fix its judiciary.
With that holding in mind, the ultimate choice of whether to deliver CaribCannibal to Dixie officials is a matter of comity between the federal government and the state, not a legal question fit for my judicial resolution. Put another way, the Department of Justice does not need my approval to extradite CaribCannibal because no extradition is occurring. 3 C.J.S. Extradition and Retainers § 3 (2018). Thus, I cannot order the Department of Justice to do anything at this time.
IV.
Next, CaribCannibal also requested injunctive relief to prevent his detention in Guantanamo Bay. I decline to rule on that request because CaribCannibal should pursue that relief in the form of a habeas petition. The federal government is not a party to this case, and it would be inappropriate to enjoin their actions now.
Equity acts upon the person. Thus, for a court sitting in equity to enjoin an action the challenged party must be before the court. The in personam rule is at the historic core of this Court’s equitable powers. Emily Sherwin & Samuel L. Bray. Remedies (2d. ed. 2017). Historically, equity could only be done by the King’s Chancellor acting upon the conscience of the defendant. Id. Often, the Chancellor would imprison people to make their conscience a bit more upstanding. Id. The rule that only a person before the Chancellor could be enjoined limited the broad powers vested in his office. Today, the in personam rule limits equity courts in the same way.
The unavoidable conclusion is this: unless the United States is made party to a case a court cannot enjoin their actions.
Therefore, I hold that the proper way to challenge CaribCannibal’s detention is through a habeas proceeding where the federal government is a party. Of course, CaribCannibal remains free to pursue that relief. Should the government detain him in Guantanamo Bay, it would be concerning, at the least. But I decline to evaluate the injunctive relief requested in this posture.
V.
Finally, I address CaribCannibal’s invocation of immunity from state prosecution. He points to a well-written law review article as a basis for doing so. See generally Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 Yale L.J. (2003). Broadly put, a federal official acting in her official capacity is immune from state law prosecution. See U.S. Const., art. VI, cl. 2.
Should the states be given unlimited ability to prosecute federal officials for state offenses, they would possess the power to destroy the federal government. That power is outside of the realm of state ability. McCulloch v. Maryland, 17 U.S. 316 (1819).
Thus, CaribCannibal argues that he possesses immunity from prosecution in Dixie. If true, this would mean that he is “immune from state prosecution for taking any action that” he “reasonably” believes “is necessary and proper to the performance of” his federal duties. Waxman & Morrison, supra. There are therefore two prongs to the Constitutional immunity inquiry: (1) is the defendant a federal official; and (2) were the defendant’s actions within the scope of immunity.
Protection from prosecution can also be granted by federal statute. Two are relevant for our purposes, 28 U.S.C. § 1442 (2017) and 18 U.S.C. § 912 (2016). I begin my analysis with the statutory provisions. If the statutes end this case, there is no reason to examine the Constitutional question.
A.
The question before the Court is this: is a person claiming to be a federal official immune from state prosecution for allegedly impersonating an official? No other court, state or federal, has ever addressed this issue.
Allowing the state to decide would require the state to apply federal law. But this is nothing new. State courts must often apply federal law. On the other hand, the status of a federal official is a uniquely federal question. Moreover, as CaribCannibal argues, the federal government is harmed by impersonation of federal officials, far more than Dixie. As such, the federal interest is greater here, yet the Department of Justice has not pursued charges.
Looking at the relevant statutes, 28 U.S.C. § 1442 (2017) and 18 U.S.C. § 912 (2016), I conclude that the prosecution can go forward without my intervention. 28 U.S.C. § 1442(a) allows officials to remove criminal cases for federal resolution in order to protect their immunity. The immunity claimed by CaribCannibal could be resolved in this Court first if it is related “to any act under color of office or in the performance of his duties.” 28 U.S.C. § 1442(a)(3). What duties does that include?
28 U.S.C. § 1442(c) defines those duties as those necessary to prevent a presently occurring crime of violence, to provide assistance to someone’s bodily harm, or preventing escape of a violent person. Ultimately, the official status issue in the Dixie case falls outside of § 1442’s scope.
As to 18 U.S.C. § 912, it provides for federal criminal punishment for impersonating federal officials. I hold that this power is not exclusively federal for several reasons. First, the language of § 912 does not include language preempting state prosecution for similar offenses. Second, CaribCannibal maintains that “[t]his case should properly have been handled by the Department of Justice.” The Department of Justice disagrees. The Department of Justice has already recognized that state and local prosecution can occur against those impersonating federal officials for the offenses covered by § 912. See Office of the United States Attorneys, Dep’t of Justice, Criminal Resource Manual § 1447 (2017). Thus, Dixie prosecution for the offense is not preempted by either statute.
B.
Problematically the case at bar is not about whether CaribCannibal is being prosecuted for official actions, but instead whether he is an official at all. Contrast Idaho v. Horiuchi, 253 F.3d 359 (9th Cir.) (en banc), vacated as moot, 266 F.3d 979 (9th Cir. 2001). If he is a federal official, not only would he possess the immunity he claims, but he would also be innocent of the underlying crime. If he is not a federal official, he lacks constitutional immunity and may ultimately be guilty.
The distinction between official status and official actions is critical. An officer’s actions may be unlawful, but if arguably within the scope of her duties they receive protection. But if she was never an officer to begin with, then clearly no immunity attaches. The same logic applies here.
As discussed, Congress has not made this immunity question exclusively federal. State courts often examine constitutional questions, and I see no reason why the Dixie court cannot adequately determine CaribCannibal’s official status as part of the criminal case (and thus his immunity).
CaribCannibal marches a parade of horribles before this Court, arguing that should his prosecution continue then every federal law enforcement officer will temper their actions. These concerns would carry more weight if not for six reasons. First, there is no evidence of widespread state prosecution of federal officials. It is exceedingly rare. State cases about impersonating federal officials are even rarer. Throughout my research I could not find a single example of the facts before the court today.
Second, the logic of Younger v. Harris, 401 U.S. 37 (1971), applies with great force here. But should the states begin to target federal officials, then the federal courts do have the power to step in, just as Younger counsels. Third, I cannot stress enough that my decision is not applicable to broader official immunity claims. Instead, today’s holding is limited only to state prosecutions for impersonating federal officials.
Fourth, the political ramifications of wasting time and money by recklessly charging federal officials check the state officials’ actions. Fifth, Congress can, of course, make this determination exclusively federal, divesting the state courts of jurisdiction over the issue. At this point Congress has declined to do so. I will not create exclusive federal jurisdiction unilaterally. Finally, federal appellate review is always available to prevent, quash, and punish abuse of the state prosecutorial power.
C.
CaribCannibal’s claim of immunity can be based on the Constitution or statutes. Because his criminal liability is coextensive with his official status, I find that this Court has no basis for preempting the state prosecution. See generally, Younger, supra. It is for those reasons that I conclude the immunity and status questions should be answered in the first instance by the state court.
VI.
For the reasons discussed, extradition is not a legally cognizable form of relief that this Court can grant. Perhaps if the Western State had a functioning judiciary extradition could have been accomplished. But the juridical failures of Western cannot alter the constitutional structure of the United States. If extradition is to occur, it must be first considered by the Western State, not this Court.
While Dixie may understandably disapprove of this holding, the state should remember that it is out of profound respect for state sovereignty that I reach this conclusion. I can no more displace the Western State’s extradition power than I can Dixie’s. The interstate extradition power is subject to federal review, but remains an original power of the states themselves. While both parties addressed the merits of interstate extradition, I decline to do so because it is not a process this Court can engage in.
The posture of this case also makes CaribCannibal’s request for equitable relief inappropriate. He remains free to petition for habeas relief against the federal government, but I decline to grant that relief in a proceeding where the United States was not joined as a party.
Finally, I find that the immunity issue should first be resolved, if resolved at all, by Dixie court. While federal courts have some exclusive jurisdiction for the removal and resolution of immunity questions, this is not one of those cases. Thus, I also deny CaribCannibal’s motion claiming immunity in this Court. He is free to raise the issue and litigate it in the state court should that case proceed. Therefore, this Court’s work is done for the time being.
While I doubt that either party will be particularly thrilled by my holdings, I am confident that I tried to reach the correct answer instead of any particular outcome. Should CaribCannibal’s case proceed in Dixie the full Court may extend review if it so wishes.
I deny all pending motions. Appropriate orders follow.
ORDERS
Dixie’s Request for Extradition is DENIED. CaribCannibal’s Request for Injunctive Relief is DENIED. Carib Cannibal’s Motion for Protection of Official Immunity is DENIED.
It is so ordered.
Justice Bsddc
September 2, 2018
