The state of Texas wants to prosecute a former Austin Police Department detective for using excessive force and killing a man, but the officer has so far avoided prosecution by claiming federal immunity because he was working on a task force organized by the FBI.
Austin P.D. Detective Charles Kleinert was investigating another case at a local bank when Larry Jackson approached the front door. Jackson allegedly falsely represented himself as another bank customer. Kleinert confronted Jackson. When Jackson couldn’t talk his way out of the situation, he took off running. Kleinert chased Jackson down, and during the ensuing scuffle, shot him in the neck. Jackson died at the scene.
According to the Huffington Post:
“Kleinert’s superiors concluded that his handling of the situation was not only unprofessional, but criminally reckless. Jackson was an unarmed, passive resister. That is, he was not attacking anyone, but was only trying to run away. Deadly force in such a situation would be illegal … Even though Kleinert may not have intentionally killed Jackson, his actions brought about his death. Texas prosecutors convened a grand jury and Kleinert was indicted for manslaughter.”
So far, Klienter’s attorneys have successfully argued that the state of Texas cannot prosecute him because he was working in a “federal capacity” at the time. Under this legal reasoning, the supremacy clause of the Constitution affords federal agents immunity from state prosecution. The argument follows the typical bastardized view of the supremacy clause. As HuffPo put it, “federal law must prevail over an inconsistent state law.”
Of course, that’s not what the supremacy clause says at all. It simply states that laws made in pursuance of the Constitution stand supreme. As Alexander Hamilton put it during the New York ratifying convention, “The laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding. In the same manner the states have certain independent powers, in which they are supreme.”
The question then becomes, does the federal government have the constitutional authority to form federal task forces to investigate crimes in a state?
Short answer: No.
Police powers remain exclusively under the purview of the states.
Nevertheless, the law has evolved in such a way that it allows all kinds of actions not authorized under the Constitution as ratified. Unsurprisingly, lower courts have all agreed Kleinert enjoys immunity due to his participation in the FBI task force.
The Supreme Court is considering whether to hear Kleinert’s case. But no matter what the Supreme Court decides (assuming it even takes the case), states can avoid situations like this simply by limiting state and local police participation in these joint task forces.
These law enforcement partnerships with the feds have proliferated in recent years. Most of them are connected to the unconstitutional war on drugs. They often serve as cash-cows for local law enforcement. Police can cash in on asset forfeiture money through the equitable sharing program. This allows local police to seize cash and assets, and keep up to 80 percent of the proceeds after the federal government prosecutes the forfeiture case. State and local law enforcement agencies also get large grants for participating in these task forces.
The federal government heavily skews policing priorities through these partnerships. Instead of focusing on local concerns, police divert resources and personnel to federal priorities. The federal government is effectively creating a national police force through these kinds of partnerships.
Police officers shouldn’t be able to get away with murder simply because they are working with the feds. The supremacy clause was never intended to serve as a get out of jail free card. If “federal immunity” allows Klienter to escape prosecution, it will be a huge miscarriage of justice.
But the root of the problem lies in the existence of these local/state/federal partnerships themselves. They have blurred the lines between state and federal authority, and allowed the federal government to insert itself and exercise power in areas meant to remain exclusively under the purview of states.
During the Massachusetts ratifying convention, Fisher Aims said, “A consolidation of the States would subvert the new Constitution, and against which this article is our best security. Too much provision cannot be made against consolidation. The State Governments represent the wishes and feelings, and the local interests of the people. They are the safeguard and ornament of the Constitution; they will protect the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.”
These local/state/federal law enforcement partnerships set the process of consolidation in motion. Once the feds insert themselves into the picture, state and local authorities lose all control. They can’t even punish a murderer.
The solution is simple. Stop the partnerships. Kick the feds out. Keep local policing local.
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE