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State of Texas v. Kleinert

United States Court of Appeals, Fifth Circuit

April 20, 2017

STATE OF TEXAS, Plaintiff - Appellant
CHARLES KLEINERT, Defendant-Appellee

         Appeal from the United States District Court for the Western District of Texas

          Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.


         The District Attorney of Travis County, Texas, sought to prosecute federal task force officer Charles Kleinert for unintentionally shooting an unarmed suspect as Kleinert tried to arrest him. Invoking his status as a federal officer, Kleinert removed the state prosecution to federal court and asked the district court to dismiss the indictment. Kleinert argued that under the Supremacy Clause, he was immune from prosecution by the local district attorney because he acted in his capacity as a federal officer and his conduct was otherwise lawful. After a three-day evidentiary hearing at which the district attorney's office presented little evidence to rebut Kleinert's version of events, the district court-which the parties agreed would resolve all facts relevant to Kleinert's immunity defense-dismissed the indictment. Because the district court properly exercised jurisdiction and properly applied the doctrine of Supremacy Clause immunity, we affirm.


         Charles Kleinert began working for the Austin Police Department in 1994. In 2011, the FBI specially deputized Kleinert according to Titles 21 and 28 of the United States Code. These deputations "charged [Kleinert] with the duties of investigating violations of the . . . criminal laws of the United States . . . ." After his deputations, Kleinert worked full-time for the FBI's Central Texas Violent Crimes Task Force. He reported to work each day at an FBI agency, received top-secret security clearance from the federal government, was supervised by a superior FBI agent, and used FBI-issued equipment. As a task force officer, Kleinert's day-to-day duties included investigating federal crimes-specifically, bank robberies.

         On the morning of July 26, 2013, someone robbed Benchmark Bank in Austin, Texas. A bank employee described the robber as an older white man. The Central Texas Violent Crimes Task Force, including Kleinert, investigated the robbery. As part of the same-day investigation, Kleinert, in plain clothes, went to the bank to obtain surveillance footage from two employees, Sheila Bostick and Kimberly Menge. Although it was normal business hours, a sign on the front door indicated the bank was temporarily closed (due to the morning's robbery). While Kleinert, Bostick, and Menge discussed the robbery in Menge's office, a black man-later identified as 32-year-old Larry Jackson- came to the bank's front door. Seemingly realizing the bank was closed, Jackson appeared to leave, walking away to the north side of the bank, but returned one minute later from the south side and pulled on the locked door again.

         Thinking she could point Jackson to an open bank nearby, Bostick approached the front door to talk to him, while Kleinert and Menge remained in Menge's office where they could see and hear Bostick's conversation with Jackson. Jackson identified himself as a customer named "William Majors, " and asked to withdraw funds from "his" (Majors's) account. Both Bostick and Menge knew that Jackson was not William Majors; the two women knew Majors because he was not only a large account holder, but also close friends with the bank's president. Uncomfortable with Jackson's representations, Bostick left Jackson outside and asked Kleinert to talk to him.

         According to Kleinert, [1] he went outside "to detain Mr. Jackson and question him . . . about what he was attempting to do." Kleinert recounted his conversation with Jackson as follows:

I asked him if he was Mr. Majors. He said he was not. I said, "What are you doing here?" He said, "I'm trying to get money out of the bank." And I said, "But you're not Mr. Majors." And he said he was Mr. Majors'[s] brother. So I said, "Well let's call up your brother and see what's going on." He never attempted to make that call [and] that led me to believe that he was fabricating that as well. . . . He had the phone up to his face, and . . . said, "Mom, is the tow truck there yet?" And I said, "Were you involved in a collision?" And he said, "Yeah I was. That's why I'm here. I need to get money for a tow truck and for a rental car." And I said, "Well, where was it?" And he said that it was on I-35. And in looking at him dressed the way he was, dark blue shirt, I asked [him], "How did you get here?" And he said he walked. Well, I knew on that hot day, he did not look like he had been perspiring at all. And if he had walked from I-35, he definitely would have been.

         After this exchange, Jackson "took off running, " and Kleinert "immediately gave chase, " catching up to Jackson under a traffic bridge that travels over a large grassy area with footpaths. As Kleinert neared Jackson from behind, he "pulled [his] weapon, and . . . yell[ed]: 'Get down on the ground. Get down on the ground.'" Jackson "froze" for a moment before running away again. Kleinert chased Jackson and was "able to reach out with [his] left hand and grab [Jackson] by the shirt[.]" Kleinert still held his gun in his right hand. According to Kleinert, despite his hold on Jackson's shirt, Jackson continued to run with Kleinert in tow and tried to climb up a rocky incline leading to the traffic bridge. As Jackson tried to climb the incline, Kleinert used the "meaty part" of his right hand-the hand holding his gun-to hit Jackson twice on the lower back with a hammer-like motion and yelled, "Get down. Get down." When Kleinert tried to "hammer-fist strike" Jackson a third time, Jackson "came back towards [Kleinert] and knocked [Kleinert] down." As they fell, Kleinert accidentally pulled the trigger of his gun, firing one bullet into Jackson's neck, killing him.[2]

         On May 12, 2014, a Travis County grand jury indicted Kleinert for manslaughter. The indictment charges that he "recklessly cause[d]" Jackson's death

by striking and by attempting to strike Larry Jackson . . . while holding a loaded firearm[, ] by seizing and by attempting to physically control Larry Jackson while holding a loaded firearm, and by attempting to seize and physically control Larry Jackson without maintaining a distance between himself and Larry Jackson that was sufficient to . . . holster his firearm[.]

         Relying on 28 U.S.C. § 1442, the "federal officer removal" statute, Kleinert timely removed the state prosecution to federal court. After a hearing to evaluate its jurisdiction, the district court determined that removal was proper. On June 26, 2015, Kleinert asked the district court to dismiss the indictment according to Rule 12(b)(1) of the Federal Rules of Criminal Procedure.[3] Kleinert argued that under the Supremacy Clause, he was immune from prosecution by the local district attorney for conduct he undertook as a federal officer. Kleinert and the District Attorney ("the State") agreed that, when deciding Kleinert's motion to dismiss, the district court would "resolve any and all factual issues related" to his immunity defense. The State specifically "waive[d] the right to have any and all such factual issues be decided by a jury." After a three-day evidentiary hearing, the district court determined that Kleinert was entitled to Supremacy Clause immunity and dismissed the indictment. The State now appeals, arguing that the district court lacked subject matter jurisdiction and erroneously applied the doctrine of Supremacy Clause immunity.



         We review a district court's determination of subject matter jurisdiction de novo. United States v. Kaluza, 780 F.3d 647, 653 (5th Cir. 2015). We review factual findings underlying that determination for clear error. Funeral Consumers All., Inc. v. Serv. Corp. Int'l, 695 F.3d 330, 336 (5th Cir. 2012). Notably, "federal officer removal" under 28 U.S.C. § 1442 is unlike other removal doctrines: it "is not 'narrow' or 'limited.'" Willingham v. Morgan, 395 U.S. 402, 406 (1969) (quoting Colorado v. Symes, 286 U.S. 510, 517 (1932)). "Although the principle of limited federal court jurisdiction ordinarily compels us to resolve any doubts about removal in favor of remand, " we review a district court's decision to maintain federal-officer jurisdiction "without a thumb on the remand side of the scale." Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016).


         The federal-officer-removal statute provides that "any officer . . . of the United States or of any agency thereof" prosecuted "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" may remove the action to federal court. 28 U.S.C. § 1442(a)(1). Although not explicit in the text of the statute, the officer must also allege "a colorable federal defense" to satisfy Article III's "arising under" requirement for subject matter jurisdiction. See Mesa v. California, 489 U.S. 121, 129, 136-37 (1989) (explaining that § 1442 is an exception to the usual "well-pleaded complaint" rule). The district court's exercise of subject matter jurisdiction in this case therefore turns on three elements. First, the defendant must be an "officer . . . of the United States" or of a federal agency (colloquially, a "federal officer"). § 1442(a)(1). Second, the state's prosecution must be either (a) "for or relating to any act under color of such office" or (b) "on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals." Id. Third, the defendant must "raise a colorable federal defense" to prosecution by the state. Jefferson Cty. v. Acker, 527 U.S. 423, 431 (1999) (citing Mesa, 489 U.S. at 139).

         The State does not dispute that Kleinert is a federal officer, and our review of the record confirms his federal-officer status.[4] Kleinert worked full- time for the FBI investigating federal crimes. He received security clearance from the federal government and used federally issued equipment to carry out his regular job duties. Nothing in the record indicates that this federal assignment was merely temporary or otherwise limited in scope. Kleinert is therefore a federal officer for purposes of removal.

         To satisfy the second element-the "color of office test"[5]-the defendant must "show[] a 'causal connection' between the charged conduct and asserted official authority." Willingham, 395 U.S. at 409. In other words, "[i]t must appear that the prosecution . . . arise[s] out of the acts done by [the officer] under color of federal authority and in enforcement of federal law . . . ." Mesa, 489 U.S. at 132-33. Importantly, the State's allegations do not control the causal-connection analysis. Osborn v. Haley, 549 U.S. 225, 249-50 (2007). Rather, courts must "credit [the officer's] theory of the case" to determine whether the officer "ha[s] made an adequate threshold showing that the suit is 'for a[n] act under color of office.'" Jefferson Cty., 527 U.S. at 432 (citation omitted). For example, if, in opposing removal, the state contends that the federal officer was not acting in his official capacity but instead "may have been on a frolic of his own[, ]" then the officer "should have the opportunity to 'present his version of the facts to a federal court.'" Osborn, 549 U.S. at 251 (alterations omitted) (quoting Willingham, 395 U.S. at 409). An officer is not required to definitively "exclude[] the possibility that the suit is based on acts or conduct not justified by his federal duty" before removal. Id. at 249.

         Kleinert satisfied the color-of-office element. In his notice of removal, Kleinert said he was a specially deputized federal agent who investigated bank robberies for the FBI's local task force. Kleinert alleged that he first encountered Jackson while investigating a bank robbery-a federal crime- and, during their interaction, developed probable cause to believe that Jackson was trying to rob or defraud the same bank-also federal crimes-culminating in the chase. According to Kleinert, federal law authorized him to arrest Jackson based on probable cause, and Kleinert engaged in the conduct that the State charged as criminal (striking Jackson, attempting to physically control Jackson, and failing to holster his gun) during the arrest.

         Evidence presented at the district court's removal hearing supports these allegations. Another task force officer testified that the robbery at Benchmark Bank was indeed a federal investigation. The officer also testified that he too believed federal law authorized him to arrest, without a warrant, a person whom he has probable cause to believe committed a federal crime. Bank employees Sheila Bostick and Kimberly Menge both confirmed Kleinert's recollection of Jackson's conduct, including that Jackson pretended to be William Majors and ran away when Kleinert questioned him-facts that would support probable cause.

         Thus, crediting Kleinert's theory of the case-as Supreme Court precedent requires-the State seeks to prosecute him for actions he took as he tried to arrest Jackson, and federal law authorizes federal officers like Kleinert to arrest upon probable cause of a federal crime, such as bank robbery or bank fraud. Kleinert therefore made the "adequate threshold showing" that the State prosecuted him for acts he took "under color of [federal] office." See § 1442; accord Jefferson Cty., 527 U.S. at 432.

         To satisfy the third element, the officer must allege a "colorable" federal defense. See, e.g., Mesa, 489 U.S. at 129 ("[F]ederal officer removal must be predicated on the allegation of a colorable federal defense." (emphasis added)). "Colorable" here means plausible, not "clearly sustainable." Jefferson Cty., 527 U.S. at 432; accord United States v. Todd, 245 F.3d 691, 693 (8th Cir. 2001). "[R]equiring a 'clearly sustainable defense' . . . would defeat the purpose of the removal statute." Jefferson Cty., 527 U.S. at 432 (quoting Willingham, 395 U.S. at 407). Indeed, "one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court." Willingham, 395 U.S. at 407; see also Venezia v. Robinson, 16 F.3d 209, 212 (7th Cir. 1994) ("Once the federal defendant has a plausible federal defense, removal is appropriate so that the federal court may determine whether the defense succeeds.").

         The allegations outlined above likewise support Kleinert's defense of Supremacy Clause immunity. As we discuss more fully below, Supremacy Clause immunity protects federal officers, acting within their federal authority, from liability under state law. Because Kleinert plausibly alleged that he was acting as a federal officer at the time of the shooting, he sufficiently asserted a colorable federal defense. Kleinert ...

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