Petition of Lloyd Clifton for a Writ of Habeas Corpus v. Gene Cox, Sheriff of Humboldt County, California

precise time. objection at a raise affecting sub- error plain we find When should, and often may, rights, we

stantial though objec- no even the issue consider

do made, either dur- has been whatsoever

tion appeal. Beadnell even on the

ing trial or (9th 1962). Cir. 303 F.2d

v. United ruling in this it, court’s the trial

As I see to raise the prosecutor

case, allowing the Helina’s agent’s access to our decision

records, pivotal. Under egregious er- ruling was

Fowle, supra, this dimension.

ror, constitutional error of held that the error was

Surely, it cannot be doubt,” reasonable beyond a

“harmless 18, 24, California,

Chapman v. 824, 17 L.Ed.2d 705 would reverse. Lloyd for a Writ CLIFTON

Petition Corpus, Petitioner-Appellee,

Habeas COX, County, Sheriff of Humboldt

Gene

California, Respondent-Appellant.

No. 75-1585. Appeals, States Court

United

Ninth Circuit.

March Jr., argued, John Ferroggiaro,

William F. Eureka, Cal., Buffington, Atty., Dist. for E. respondent-appellant. Jr., ar- Atty., Browning, L. U. S.

James Francisco, Cal., James R. McKit- gued, San trick, Matthews, McKit- Traverse & argued, Cal., trick, Eureka, petitioner-appellee. of Younger, Atty. Gen. Califor- Evelle J. Francisco, Cal., nia, for amicus curiae. San BROWNING, MERRILL and Before LAY,* Judges. Circuit OPINION LAY, Judge: Circuit for the District Court United States California, of the Honora- District Northern granted peti- presiding, ble Samuel Conti habeas Lloyd a writ of tioner Clifton discharging him from the constructive cus- Cox, Sheriff of tody respondent Gene California, and the County, State Humboldt California, permanently stayed It all arising proceedings criminal from state charging with second de- indictment Clifton manslaughter involuntary gree murder April shooting of Dirk Dickenson on for the serving spe- 4, 1972, as a while Clifton for the Bureau of Narcotics and cial (BNDD) in Dangerous Drugs the United Department Respondent of Justice.1 States grant We affirm the appeals.2 Cox writ.

* Lay, drug as laws to be known United States forcement Donald P. The Honorable Circuit, sitting Drug Judge Eighth Enforcement Administration. for the Circuit designation. People filed 2. The State California respon- support Dangerous brief as amicus curiae in of Narcotics 1. The Bureau dent, represented (BNDD) Depart- Drugs States in the United private Reorg. Attorney was well as Plan United States was abolished of Justice ment July 1, plan also counsel. 1973. That 2 of eff. No. comprehensive agency en- for the created district court for a writ of habe- the federal custody. corpus and release as evidentiary held an court The district of the above facts the federal the basis On days, and found hearing, lasting three petitioner honestly district court found that following facts. (1) reasonably believed that: the flee- member was a of a Petitioner task force Dickenson, ing suspect was Dirk the indi- agencies and state from various the arrest warrant for vidual named in search warrant au- a federal which secured laws; drug (2) violations of federal felony near Garber- of a ranch thorizing a search just a fleeing suspect had shot fellow California, alleged location of an ville, Filben); (3) fleeing (Agent officer sus- manufacturing operation. The illegal drug potentially dangerous, armed and pect was a federal arrest also obtained task force entry into the woods and his successful Dickenson, one of the for Dirk warrant danger to the lives of the pose would a A United property. record owners grant- The district court officers. pursuing the task helicopter transported Army States corpus under 28 ed a writ of habeas U.S.C. 4, April 1972. It to the raid site on force 2241(c)(2), provides part: which in raising a con- in front of the cabin landed corpus not (c) The writ of habeas shall and debris and amount of dust siderable prisoner extend to a unless— During the commo- creating a lot of noise. one as the raiders debarked tion (2) custody in for an act done or He is Filben) outran his feet and fell to (Agent in of an Act of Con- pursuance omitted Clifton, thinking that Filben ground. order, judgment or gress, process, or an shot, and kicked been rushed cabin had judge of the United decree of court or knock, identify the door. He did not in States; . himself, announce his and nor urges that the dis- appeal respondent On making entry. his forceful purpose before requiring in Clifton to trict court erred door, the front Dick- As Clifton entered charges on the state criminal stand trial into the jumped enson over bannister following (1) material facts reasons: backyard began running towards a relating shooting incident were nearby wooded area. Clifton leveled conflict; (2) have the district court should “Halt,” running figure, pistol at the called regu- evidentiary value to the BNDD given seconds, again, a few called “Halt” waited weapons officers to use requiring lations its or two and then fired. The waited a second self-defense; (3) there was only no Dickenson’s and he died bullet entered back showing “urgency.” hospital. Dickenson was en route to physical and offered no resistance unarmed II flight. than other governing peti decision The landmark 1, 10 Neagle, was indicted in the state court for In re rights Clifton tioner’s is 135U.S. 658, involuntary (1890).3 degree second murder and 34 L.Ed. 55 There the S.Ct. petitioned Supreme recog- of the United States manslaughter. subsequently He Court Neagle, Terry In re 135 U.S. 3. The case of when the room and struck the entered struggle Terry an assault ensuing 34 L.Ed. 55 involved Justice twice. In the Supreme upon Justice of the United States Neagle thrust his hand in his coat and believed Neagle, Deputy a United States Mar- Court. going Neagle that he was to draw a knife. shal, assigned protect Mr. Justice Ste- fact, Terry. Terry shots and killed fired two anticipated phen that one Field. It was J. carrying a knife. was not attempt Terry take the Jus- S. would David Supreme affirmed the lower Court involvement in a civil tice’s life because of his discharge Neagle court’s from state Terry Terry contempt. held in suit where ground that he did no more than was on the frequent and vindictive denunciations made necessary proper performing an act publicly against threat- Mr. Justice Field do the law which he was authorized to day kill him. On the Mr. ened to United States. Neagle eating were breakfast Justice Field Clause, exercising juris- an extremely are delicate nized, Supremacy by reason of the Grice, officer Baker v. VI, a federal diction. See art. U.S.Const. 42 L.Ed. 748 charge on a state criminal S.Ct. be held cannot during the said: alleged crime arose Court .where duties. The of his federal performance the acts repeatedly We have held that held: Court to habeas Congress in relation require the circuit imperatively do not objection, argument, made in To from the cus- petitioners courts to wrest discharged by this writ prisoner is of trial tody of state officers in advance try state court to power courts, those courts offence, in the state and that reply for the whole him proper may discharge decline to is held in prisoner if the exercise of discretion. to answer for an act which he was court the law of the United authorized do U.S. at duty it was his to do as which not reviewed the Court has Supreme States, and, if, of the United marshal Neagle years Drury.5 rule in the 70 since act, doing that he did no more than what opinion was reported The last circuit court do, necessary proper was for him to Tumbleson, 31 F.2d in 1929. Birsch v. See the guilty he cannot be of a crime under (4th 1929). v. 811 also Castle Cir. See When law of the state of California. Lewis, 1918); West (8th Cir. 254 F. 917 shown, things are it is established these 1904). (4th Virginia Laing, 133 F. 887 Cir. v. any against crime that he is innocent of state, or of other the laws Ill authority, whatever. principles the Respondent contends that 75, 135 at 10 U.S. S.Ct. Drury, supra, expressed in of abstention conflicting there is Supreme should control because years later the Court Sixteen petitioner’s conduct to whether its evidence as principles enunciated in reviewed proper. He necessary and actually ex rel. was Neagle opinion. United States See was into the cabin 229, entry Lewis, 1, alleges 50 that 200 26 S.Ct. Drury v. U.S. Swiegert T. however, by Judge William adjudicated (1906).4 Drury, 343 L.Ed. 3109;6 18 be in violation of U.S.C. of a federal officer to Court denied release that, court’s find- contrary to the repeating warning district from state there was evidence that ings, there was discharging an individual under that law en- raiders as nothing identify to indictment federal courts state court Lewis, Drury corpus, scope ex rel. v. 200 habeas inso- In United States of 5. The of the writ 1, 229, (1906), concerned, 50 L.Ed. 343 a statutory language U.S. 26 S.Ct. has is far as the was, according military officer shot a man who pro- specific 1867. The not been altered since testimony, attempting escape to to the officer’s here, allowing challenge of vision involved committing felony. allegedly a arrest after person act done state detention of as to whether There was conflict felon authority, pursuant was the result of federal it at the time he was shot and had surrendered seeking imprisonment federal marshals of if the deceased was not a conceded that was fleeing Act in 1833. Tariff to enforce the controversial interposi- ground felon the for federal noted, 28 statutes U.S.C. removal As has been upheld Supreme failed. The Court tion 1442(a), a federal now allow 1442 and which §§ corpus rejecting habeas denial of the writ of charge a state officer to remove jurisdic- officer’s claim that the state lacked infrequency trial, may for the court for account try him for the criminal offense. The tion litigation. type See C. of this of habeas that the federal officer was free to held Court (2d ed. Wright and n. 10 209-10 Federal Courts carrying present that he was out his claim 1970). a defense in the state court. federal duties as conflicting evidence as to wheth- In view of the Arnold, (N.D. 72-479 No. 6. United States v. already victim had surrendered when he er the 18, 1972). Cal., shot, however, filed October issue the Court decided the nothing more than as to whether the officer did proper necessary was a what jury. fact for the 726 authority presents officers; petitioner’s Arnold that Judith

forcement properly which we find was testified, question of law contrary companion) (Dickenson’s district court. resolved findings, Dickin- court’s to the district petitioner kicked after not flee until son did that a federal offi-' It is well-settled door; in viola- petitioner acted personally held liable in a cial cannot be in fir- regulations departmental of his tion for acts committed within civil suit Dickenson;7 and the use ing a shot duty. line perimeter of his See outer Army helicopter and the United States 1335, Matteo, 360 Barr v. U.S. law.8 of federal crew was violation (1959). “To be within that 3 L.Ed.2d 1434 absolutely privi perimeter, and therefore urges that Clifton’s use Respondent leged, only necessary that the action “exigency physical force exceeded ‘[I]t relation to and con Quot- some reasonable which he acted. bear process” under responsibilities McShane, nection with the duties F.Supp. ing In re ” Morrow, v. of the official.’ Scherer that: (N.D.Miss.1964), argues 1968), denied, (7th cert. F.2d Cir. corpus provision statutory habeas [t]he 21 L.Ed.2d 777 89 S.Ct. was not for the benefit of federal officers Brennan, quoting from Scherer the reach of a place beyond intended to denied, (7th Cir.), 379 F.2d cert. federal officials who state’s criminal law 592, 19 L.Ed.2d 666 they which cannot honest- employ means discharging ly consider reasonable or who otherwise act out of Matteo, their duties Supreme in Barr v. Court or with some criminal intent. malice propound test supra, gives approval to the Gregoire by Judge Learned Hand in v. ed Id. at 273. 579, 1949), Biddle, (2d cert. 177 F.2d 581 Cir. We turn to those contentions. 803, denied, 949, 94 70 L.Ed. 339 U.S. S.Ct. (1950): 1363 Scope Authority. of the officer by saying is meant that What exception conflicting of evi- With cannot acting power his must be within relating identity of the dence raiders occasion must be be more than that flight, timing and of Dickenson’s the fac- act, if he justified the such as would have respondent relate to the upon by tors relied power for of using had been his peti- act for which question of whether the it was vested whose account purposes on pursuant tioner is held was done to a law of in him. duty. and in the line of United States at 1340. 360 at 79 S.Ct. warrant, legality of the search that a execution, that the fact authority The Court concludes manner of its to by by law or required is not Army helicopter compliance petitioner use an as he did is superiors to act regulations BNDD all relate to the direction of his with the consider- controlling “the same scope petitioner’s authority. of The issue of not because regulations 7. BNDD which were in effect on to coerce or will not be utilized Firearms 4, 1972, April provided: suspects are defendants who intimidate or person. agent threatening or another not agent any person An will not shoot at ex- Regulations, cept protect Bureau of Narcotics Internal to his own life or that of some December, Drugs, person. Dangerous 1971. other Agents fleeting suspects will not fire at or provides: 8. 18 U.S.C. defendants, fleeting agents not fire at a will Whoever, except cir- in cases and under fleeing being simply automobile used as a expressly authorized the Con- cumstances escape. means of willfully Congress, uses or Act of stitution firing warning prohibited. of shots any part Army Air Force as a of the or the Agents passive in will remain a threaten- posse otherwise to execute However, comitatus or ing will en- situation. $10,000 more than or laws shall be fined not that made an accurate assess- sure he has considering imprisoned years, both. not more than two or ment of the situation in use of firearms. recognition infantry pri- underlie the of the those here. In that case two ations which as to acts done in connection with privilege superior vates were ordered their to mandatory duty apply equal with force to prisoners, pursue escaping attempt to to discretionary govern- acts at those levels of twice, shouting halt them “Halt” and to concept duty encompass- ment where disobeyed. shoot if the halt orders were discretionary es the sound exercise of au- orders, Following these shot Id. thority.” prison escapees, killed one the State of Nebraska instituted criminal concepts ap have The same been charges. There was some as to allegations plied examining in of criminal properly whether the order shoot was Calley of federal officials. Cf. conduct given light Infantry Regulations, but Callaway, 519 F.2d (5th 1975); Cir. it properly obeyed the court found that was Christopher, Montana v. F.Supp. granted habeas relief.9 decisions, (D.Mont.1972). early In two not withstanding questionable legality of a Lewis, Similarly in the case of In re 83 F. actions, recognized federal officer’s courts (D.Wash.1897), special employees of the general judgment rule that errors Department United Treasury States and a legal duty what one conceives to will be Marshal wrongfully Deputy United States not, alone, responsi criminal serve create private papers seized some executing while bility of a federal officer. a search warrant. The state brought rob- Fair,

The decision of In re them, bery charges against 100 F. 149 but the district (D.Neb.1900), presents analogous granted facts court corpus.10 a writ of habeas discussing Fair, probable making in In re and with cause in an arrest (D.Neb.1900), Judge Munger 100 F. 149 said: they under a statute that believed to be valid.” Similarly, peti- The evidence in this Id. at 87 S.Ct. at 1218. case shows that malice; Rhodes, entirely tioners acted without Scheuer v. existing place the conditions at the and time 40 L.Ed.2d 90 the Court held: shooting were grounds such as to cause an It is the existence of reasonable part Morgan honest belief on their light the belief formed at the time and in would, probability, escape circumstances, all effect his coupled good- all the with disabled; they unless did not shoot with belief, qualified faith immunity that affords a basis for purpose killing, only but to disable. per- of executive officers for acts am mindful of the rule of law that a habe- formed in the course of official conduct. corpus proceeding as the court will not ex- 247-48, Id. at at 1692. purpose amine the evidence for the of deter- granting 10. In a writ of habeas in In re mining party pro- whether should be Lewis, (D.Wash.1897), Judge 83 F. 159 Hanford guilty nounced or innocent offense for observed: imprisoned; yet which he is in a case of this case, deciding say In this do not mean to only proper, necessary, character it is not but that warrant which Mr. Kiefer issued was par- for the court to determine whether the warrant, proceedings a lawful nor that wantonly intent, ties acted and with criminal proper proceedings. under it were I do not acts, though wrongful, or whether their were say petitioners mean to that the were lawful- judgment only. they errors of tonly, If acted wan- ly discharging their official duties in what intent, they with a criminal then were they my opinion, did. In the warrant itself acting scope authority not within the issued, improvidently erroneously was and conferred the laws of the United States. ill-advised, proceedings and the all hand, were and they On the other if acted without judgment. intent, conducted with bad officer, But where an criminal but in an honest belief that they from excess of zeal misinforma- only or discharging were the duties of a tion, good judgment per- soldier, or lack of offense, was, in the then their if offense it against state, formance of what he to be his conceives was not the laws of the and in officer, duties as an authority, transcends his jurisdiction. fact such case the state has no rights and invades the of individu- Id. at 155. als, government language he is answerable to the This or is similar to that used in the power appointment acting, discussing liability under whose more recent cases he is civil may lay rights and also state officials himself liable to answer to under the federal civil acts. Ray, private injured op- In Pierson v. individual who is or action; yet Supreme pressed 18 L.Ed.2d 288 his where there is no Court reaf- prevailing police part firmed the view' criminal intent on his he that officers not be- does they good process “should not be liable if acted faith come liable to answer to the criminal ever, petitioner, duly appointed as a is immaterial to

Here the resolution of the acting agent, narcotics was em federal ultimate issue of whether em- firearms and execute powered carry ployed to means which he could consider rea- discharge search warrants under law. See 21 sonable in the duty. of his 878.11 We conclude that even U.S.C. § petition Determination of whether though may his acts have exceeded his ex shooting er’s necessary Dickenson was not press authority, necessarily this did find, proper, we only must rest not on strip petitioner power of his lawful to act subjective belief of the officer but also scope authority given under the to him objective finding on the that his conduct under the laws of the United States.12 may be said to be reasonable under the holding, In we do so not mean to existing Proper application circumstances. imply that the exercise of in and require petition of this standard does not places of itself a federal officer beyond the er to show that his action was in fact neces process. reach of a state’s criminal sary retrospect justifiable, only or in that significant question of whether the conduct thought Thus, reasonably it to be. in In necessary proper was under the circum Neagle, supra, Terry re the officer killed stances still must be answered. Essential (the alleged assailant) reasonably when he determination, assuming this the truth of thought Terry reaching was for a evidence, the state’s is whether the official knife. It was later learned Terry employs honestly rtieans which he cannot knife, carrying Neagle not but was dis discharging consider reasonable in charged from state because the duties or otherwise acts out of malice or necessary his act to believed be Court with some criminal intent. See re proper performance duty. of his McShane, supra, F.Supp. U.S. at 10 S.Ct. 658. Subsequent cases also indicate that Proper

Necessary and Standard. appropriate test does have an element of brings must, therefore, This us to the state’s contention subjectivity: inquiry “The conflicting that there was evidence concern- honesty be as to the of the relator’s belief ing the identification of the raiders13 justified and that the arrest was as to when flight.14 Dickenson took shooting reasonably necessary to ac- conflicts, resolution complish Cain, of these factual how- F.Supp. it.” Brown v. government. phrase “scope authority” of a different 12. The With our com- is most plex system frequently government, used in state and nation- connection with the law of al, agency gen- in civil cases. In those cases it is we would be in an intolerable if condition erally necessary employer put to show that an the state could in force its criminal laws permitted employee’s has authorized or discipline United States officers for the particular long act as as that act occurred in they discharge manner in which their duties. employee’s regular duties and Or, way, government take it the other if the employment. generally See Restatement prosecute of the United States should as (Second) Agency 228-49. §§ criminals sheriffs and other ministerial offi- cers, justices peace, judges the identity 13. As to the raisers’ the district court superior judgment, courts for errors of or dispute found there could be “no reasonable ignorance, causing discharge blunders in the that these individuals were . . law en- duties, bring of their it would on a condition indeed, officers; imagi- forcement it strains the a short chaos in time. Cliñon, nation to conclude otherwise.” In re at Id. 160. (N.D.Cal., Sept. filed No. C-74-1549 SC provides, part: 21 11. U.S.C. 878 1974) at 7. Any employee officer or of the Bureau of Dangerous Drugs designated Narcotics and petitioner 14. The determination of whether en- Attorney may— the General tered the cabin before or after Dickenson fled firearms; (1) carry only goes to the of whether there were (2) warrants, exigent justifying entry. execute and serve search ar- circumstances that attempt rest warrants . . . issued under the au- The fact remains that Dickenson did States; thority pursuit. of the United . . . flee and that Clifton shot him in suspended from his has been petitioner petitioner . . . “If (E.D.Pa.1944); position, urgency there is no service honest and he had an . that . . shows relief. The grant of habeas requiring was nec- what he did belief reasonable in Brown stated that district court . duty of his performance essary in be remanded to officer should government relief he seeks.” to the he is entitled then for trial “unless the case is the state court McShane, F.Supp. supra, re In urgency where the failure to dis- one of arrest war had an petitioner Here may or substantial- charge prisoner will thereby had the for Dickenson rant of the laws of the ly delay the enforcement him whether he duty to arrest and the right seriously or interfere with United petitioner As made or not. cooperated or the ad- operation government of its of debris in the swirl to the cabin way F.Supp. of its affairs.” 56 ministration blades, attempting helicopter caused warrants, heard noises he to execute the district rejecting In this contention and he simul gunshots like sounded which the observation made in court here relied on officer fall ab observed a fellow taneously McShane, supra: In re Petitioner had been ground. ruptly long disregard is in This contention armed suspects might be that the informed urgen- that sufficient standing with the proceeded dangerous ap- it is made to cy is shown whenever had been shot. He that an belief is detained on pear that a federal officer fleeing Dickenson subsequently observed law because of charges violating area. a wooded of his performance acts committed The district court observed: only would the trial official duties. Not facts, on undisputed In view of these discharge from the keep petitioner itself record, in view of the earlier Washington, but responsibilities of his by petitioner discussed belief system to our federal considerations basic potentially of the cabin were occupants subjecting scrutiny to state precludes this court con- dangerous, armed and peti- conduct which is within belief that Dicken- petitioner’s cludes official duties as a United States tioner’s Filben was both hon- Agent had shot son marshal. est and reasonable. at 274 n.13. F.Supp. (N.D.Cal., Clifton, re No. C-74-1549 SC here indeed involve major issue does 25, 1974) at 7. Sept. filed relation- question of federal-state a delicate petitioner’s concluded The court also underlying these general notion ships. escape into that Dickenson’s belief ordinary circum- that under questions is lives of danger to the pose would woods court should not interfere stances a federal rea- officers was honest and pursuing where the state is court actions with state cannot on the basis sonable. We own laws. See seeking to enforce its findings that these record conclude overall Harris, Younger v. clearly erroneous. are However, the situa- L.Ed.2d easily distinguished here is tion involved

IV federal absten- requiring those cases Younger conten line of cases15 a to the state’s final tion. In the We come prosecution under language from Brown v. seeks to avoid Relying tion. on challenging Cain, statute supra, argues the state that since a state criminal Harris, Boyle Landry, Younger (1971); 401 U.S. v. 401 v. 701 and 15. In addition to L.Ed.2d 37, 746, 77, 758, (1971). 91 27 L.Ed.2d 669 S.Ct. 27 L.Ed.2d 696 91 S.Ct. U.S. in 802, are discussed Medrano, abstention doctrines Cf., federal 94 416 U.S. S.Ct. Allee v. 2281, Miranda, 332, 422 U.S. Hicks v. 2191, (1974); and Steffel v. 40 L.Ed.2d 566 Mackell, (1975); v. 401 45 L.Ed.2d 223 Samuels 452, 1209, Thompson, S.Ct. 39 415 U.S. 94 764, 66, (1971); 27 688 91 L.Ed.2d U.S. S.Ct. (1974). L.Ed.2d 505 674, Ledesma, 27 v. 401 U.S. S.Ct. Perez record, viewing constitutionality of the statute in federal basis the overall 2241(c)(3).16 conflicting light facts in the court under 28 U.S.C. The and evidence state, most to the there exists no denying corpus reason for habeas relief in favorable support finding petition- evidence to petitioner those cases is that the can assert acting scope er was outside the of his au- his constitutional claim as a defense in the means which and, convicted, thority employed or that he he prosecution state court if honestly could not consider reasonable appeal to Supreme the United States Court. discharging Harris, his duties. Younger supra, See at U.S.

45, 91 746. S.Ct. is affirmed. judgment case, In a situation like the instant BROWNING, Judge, concurring: Circuit however, Supreme Court has deter petitioner mined that when a by held I concur because I believe the BNDD state “to answer for an act which he was regulations reasonably can be read as au- authorized to do the law of the United thorizing petitioner’s conduct as found States, duty which it was his to do . the district court. if, act, doing and he did no more Although regulations prohibit than what was necessary proper and agent firing fleeing suspects,” “at do, him to guilty cannot be of a crime they impliedly firing person authorize at a under the law of the . . ..” In [s]tate protect agent’s] “to own life or that of [the Neagle, re supra, 135 at U.S. S.Ct. at person.” some other It was not unreason- 672. prosecution When this is true the has agent regula- able for the to believe the no factual basis upon prosecute which to tions, together, read authorized him to and the entire proceeding is a nullity. Cf. fleeing suspect shoot a posed danger who parte Royall, Ex agent person. life of the or other (1886). L.Ed.2d 868 In circumstances provisions The two together, are to be read where, like these under view of the independent, not as absolute commands. facts, a federal officer does no more than is agent An required would not be to remain necessary proper performance passive suspect if a fired as he fled. The duty, the state should not be allowed to present only slight step case is removed. review the exercise of authority. federal The district court petitioner found that rea- One of the basic tenets in the application of sonably suspect Agent believed the had shot Supremacy Clause is that the states Filben dangerous, and was armed and power have no to determine the extent of that if suspect reached the cover of the authority.17 To rule otherwise woods pursuing the lives of the officers would punish allow a state to the exercise endangered. would be The court further of federal authority guise under the found that honestly acted questioning right of federal officials to reasonably shooting suspect. act. findings clearly are not light erroneous. In light In agree these observations we findings, conclude the acted with the McShane, statement made in In re within authority. of his See re supra. particularly where, This is so Fair, on the (D.Neb.1900). 100 F. 154-55 2241(c)(3) provides: legislature may, 16. 28 U.S.C. § If the of the several states will, judgments annul the of the courts of (c) The writ of habeas shall not destroy rights the United ac- prisoner extend to a unless— quired judgments, under those the constitu- mockery; tion itself becomes a solemn (3) He is in in violation of the deprived the nation is of the means of enforc- Constitution or laws or treaties of the United ing instrumentality its laws of its own States; . . . tribunals. Compare statement, Peters, Chief Justice Marshall’s Cranch) 115, (5 United States v. a somewhat different context: 3 L.Ed. 53 the accused. That was for state MERRILL, Judge, dissenting: court if Circuit * * jurisdiction it had respectfully I dissent. at 232.1 Id. at 26 S.Ct. parte Neagle, Ex under question should, feel, kept be in This distinction 658, 672, 34 L.Ed. 10 S.Ct. U.S. It not mind. is for the federal habeas “held in the was (1890), is whether Clifton to whether Clifton acted judge decide rea- for an act which he to answer court state he the sonably responding in as did to ex- by the law of the to do was authorized imposed the traordinary pressures by situa- States, duty it was his to do which United for the criminal question That is fo- tion. if, in [agent] of the United as judge the question rum. The for habeas is act, no more than what doing that he did the manner in which Clifton re- whether proper for to do necessary him * * by of sponded was authorized the law the holds, under su- Neagle the States; duty it whether was as United Constitution, if premacy clause of Bureau Narcotics and the of Dan- to acting pursuant his au- was so Clifton he Drugs to do what did. gerous law, then under federal thority duty be cannot hold such conduct to the state to authority Where the follow certain law, a of a has As matter crime criminal. subject explicit of procedures is the not been committed. instructions, the the reasonableness of re- the sponse pressures may of moment in years Neagle, after United Sixteen figure the of well in determination authori- Lewis, rel. Drury States ex Here, however, ty by judge. the habeas the (1906), the question 50 L.Ed. 343 given question authority to of is answer the again. the There the was before Court quoted regulations in by Bureau foot- habeas cor- pointed Court out federal Here Judge Lay’s opinion. 7 of note a jurisdiction prisoner pri- free state pus to anticipated has the situation in Bureau It freely to trial should not be exercised. or explic- Clifton found himself and has which stated: him in itly forbidden to act the manner jurisdiction exceedingly “It delicate is an categori- language which acted. The given by a to Federal courts which “Agents fleeing cal: will not fire at sus- person under indictment a state fleeing or defendants.” The pects intent laws, court, may, its subject hardly plainly expressed. more can be Oth- single judge of a of Federal decision (“Except language regulations er court, a of upon corpus, writ habeas be protect his own life or that of some other of of the officers of taken out person”; “Agents passive will not remain state, finally discharged there- threatening situation”) be read cannot from, and thus a trial state courts to anything me to refer other than a of an indictment found under laws of cannot read to present They threat. be finally prevented.” state be presented by include the hazards some fu- U.S. at reading ture confrontation without all nature before the of meaning explicit language prohibit- corpus judge habeas discussed: ing firing fleeing sup- I would persons. every or pose suspect “The circuit court was not called on to defendant who escapes expected guilt successfully determine the or innocence arrest can be place ing pending” by “[a]ny 1. A wherein it is federal officer need not submit * ** any court forum for trial of the criminal action officer the United States him, against 1442(a)(1) under however. U.S.C. act color such office or on account of * * * provides any prosecu- that a civil action or criminal claimed Act under * * * Congress against apprehension tion in a for the commenced him state court * * may be removed to the district court “embrac- criminals pose a threat to officers in the process acting that he was properly and in accord- capture. regulation. ance with the But, again, this question is not the judge. the habeas If Clifton, true, place it is was sent out to anything, goes this question of crimi- everything Dickenson under arrest and guilt nal under state law. That such an purpose done Clifton was with the inquiry is relevant only serves to establish could, accomplishing therefore, that end. It that conduct in violation regulation be said that his conduct was within his per is, nevertheless, se criminal. It “scope of authority” phrase as that is used expressly proscribed and thus unauthorized. in Judge Lay’s however, opinion. Neagle, “authority” uses “duty” in a much nar- I would reverse. rower sense. It addresses the what specifically was done—the manner in

which a concededly proper objective was

sought to be achieved. It is to inquiry this regulation explicitly is directed.

It may Clifton, well be that under the

pressures moment, sincerely believed

Case Details

Case Name: Petition of Lloyd Clifton for a Writ of Habeas Corpus v. Gene Cox, Sheriff of Humboldt County, California

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 4, 1977

Citation: 549 F.2d 722

Docket Number: 75-1585

Court Abbreviation: 9th Cir.