Bipartisan, Bicameral Effort Underway to Provide Additional

Court Options for Federal Law Enforcement Officers

WASHINGTON - Senators Chuck Grassley of Iowa and Chris Coons of Delaware and Representatives Dave Reichert (WA-08) and Bill Pascrell, Jr. (NJ-8) yesterday introduced bipartisan, bicameral legislation that would allow federal law enforcement officers who acted under their official duties and charged with a crime in state court an opportunity to petition to have the agent's case heard before a federal court.

"Federal agents are extensively trained, at taxpayer expense, to protect and serve the American public and are never off-duty. To expect them to stand by while a victim suffers violent acts in their presence is contrary to the oath they take to protect others and is a waste of taxpayer funded training," Grassley said.  "This bill will help make our communities safer and help those who are sworn to guard and serve the public."

"Day in and day out, federal law enforcement officers put themselves in harm's way to protect Americans," Coons said. "When I was a county executive in Delaware, I worked closely with our local law enforcement professionals and witnessed firsthand how our brave officers are trained to detect and prevent dangerous situations, whether they are on-the-clock or not. The Officer Safety Act of 2012 will ensure that 'off duty' federal officers who intercede to protect the lives of others will be held to the same standards as when they are performing their official duties. This bill will help law enforcement better protect our neighbors and families. I applaud the leadership of Senator Grassley for developing this important legislation and I will continue to advocate on behalf of our brave first responders."

"As a former Sheriff I know far too well that law enforcement officers are never 'off duty.' Every day, they earn our trust and often step in to save lives and protect the innocent while risking their own safety?regardless of whether they are on or off the job. We owe these brave men and women this assurance so they can continue to focus on serving the American people," Reichert said.

"This legislation will allow federal agents to protect Americans, whether they are on or off duty. Our federal law enforcement agents are highly trained professionals who often go above and beyond what is required of them - and put themselves in harm's way in the process. They deserve our gratitude," said Pascrell. "I am proud to help advance this bipartisan legislation on behalf of dedicated federal agents throughout the country who work to keep us safe."

The Officer Safety Act of 2012 is modeled after the Good Samaritan Act, but is narrower, more restrictive, and provides no liability protection.  The bill does not provide immunity to federal law enforcement officers, but simply allows for case removal to federal court where the officer will be required to defend his or her actions.  In addition, it doesn't infringe upon states' rights, as they retain the same due process rights that have existed since the early 1800's.

Specifically, the Officer Safety Act of 2012

·                     allows a federal law enforcement agent, who stops a violent crime while off-duty and is indicted in a state court for those actions, to petition for the state criminal prosecution against him to be removed to a federal court, and

·                     clarifies the "color of law" prong required in the removal process, as courts have invited Congress to clarify.

The bill is supported by the Federal Law Enforcement Officers Association, the Federal Bureau of Investigation Agents Association, and the National Border Patrol Council.  It is expected to be referred to the Judiciary committees in both the Senate and the House.  The bill text can be found by clicking here.

Here is Grassley's prepared statement for the Congressional Record upon introduction of the bill.

Mr. President, as a 2003 Judiciary Committee report stated, "Law enforcement officers are never 'off-duty.'"  Many are required to carry an off-duty weapon.  When they fly on personal business, they are expected to carry their weapon and check-in with the airline as a federal law enforcement agent so they can defend the pilots and passengers if something bad happens.  In fact, federal agents are specifically paid to be available twenty-four hours a day, seven days a week.  And agents can be disciplined if they are not available when called.  They are not even allowed to engage in activities on their personal time that regular citizens take for granted, like coaching their kids' sports teams, if it might interfere with their ability to respond to a crisis.

Federal law enforcement agents are extensively trained, at the expense of the tax-payer for the benefit of the tax-payer.  They not only train in basic academies, but they are required to participate in additional and regular training and re-certifications many times each year.  If training is missed or if standards are not up to par, the agent is disciplined or removed.  Federal law enforcement agencies take training requirements very seriously.  And the United States is known for having the best trained federal law enforcement officers in the world.

So what if one of these exceptionally-trained federal law enforcement agents walks into the grocery store on a Saturday and witnesses a woman being repeatedly hit by her husband; do we want him to walk past the woman?  No.  The taxpayers spend money on his training so that he can protect victims, not walk away from them.  In this situation, we all hope that he would use his training to protect the victim.  But when he steps in to protect the victim from a crime of violence occurring in his presence, he risks state criminal prosecution and damage to his career.  And that might lead him to hesitate.  This is contrary to good public policy.  If we were the victim in this scenario, every one of us would want that federal law enforcement officer to help us.

If a federal agent acts to protect an individual in his presence from a crime of violence, as taxpayer dollars have trained him to do, and then is indicted in State court for that act, he should have the right to defend himself within the federal court system.

So the Officer Safety Act amends the removal statute, found in Title 28, United States Code, Section 1442, to clarify when a federal law enforcement officer is acting under the color of his office.  This bill does not provide immunity for law enforcement agents, and it does not grant them additional authority.  It doesn't even guarantee that the case will be moved from state to federal court: the State will be heard and its position will be weighed by the judge before deciding if removal is appropriate.  It does allow a federal law enforcement officer/agent, who is indicted in a State court for actions related to his protection of a victim of a violent crime that is committed in the officer's presence, to petition for that criminal case to be removed to federal court, where the officer will be required to defend his actions.

Current law provides that removal is proper so long as defendants demonstrate that they are officers of the United States that acted "under color of" their office and have a "colorable federal defense".

In general, a federal agent acts "under color of" his office when he takes actions that are necessary and reasonable for the discharge of his federal responsibilities.  Accordingly, the prototypical example of a federal officer acting under color of his office is a federal law enforcement officer who kills someone while performing an act related to federal law enforcement and, in the subsequent state homicide prosecution, claims he was acting in self-defense and/or is entitled to official immunity.  The Supreme Court has upheld this prototypical example as appropriate for removal from state court to federal court.

The primary restraint on the current statute's scope is its limitation to defendants who acted under color of a federal office or, in other words, while performing official duties.  Defendants must show in their petition for removal that there is a causal nexus between the actions challenged and their federal duties.

The history of the removal statute explains why this is important.  The statute dates back to 1815.  It was passed in response to the New England States' opposition to the trade embargo with England during the War of 1812.  The law provided for the removal to federal court of any suit or prosecution commenced in state court against a federal customs officer or other persons enforcing federal customs laws.  Thus, federal agents did not need to fear performing their jobs because the local authorities opposed the embargo and wanted to stop them from enforcing it.

A few decades later, the U.S. government encountered a similar problem in South Carolina, which in 1833 declared certain federal tariff laws unenforceable within its borders.  Congress responded by authorizing the removal of any suit or prosecution commenced in a state court against an officer of the United States for the enforcement of the federal revenue laws.

During the Civil War and the Reconstruction era, Congress' disenchantment with state courts in the South led to new federal officer removal laws.  In the 1863 Habeas Corpus Act, Congress provided for the removal of suits or prosecutions against persons acting under federal authority for actions, or failures to act, during the Civil War.  In addition, Congress passed a removal statue similar to those of 1815 and 1833, authorizing the removal of suits or prosecutions commenced in state court against federal officers for actions, or omissions, related to the collection of federal revenue.  However, it was not until the enactment of the Judicial Code of 1948 that Congress extended the statute to cover all federal officers.

The courts view the history behind section 1442 and its statutory predecessors as justification for construing the statute broadly to assure the supremacy of U.S. law and protect federal operations against interference from state judicial proceedings.

This bill does not infringe upon State's rights, as they retain the same due process rights to be heard on the question of removal that have existed since the early 1800's.  In fact, this Congress passed a bill by unanimous consent that amended this statute, without a word about state's rights.

Today, federal law enforcement officers, whether or not in uniform, require protections when they take actions to assist citizens.  Civil liability protections are provided to officers under The Good Samaritan Act, codified at Title 28, United State Code, Section 2671.  This bill, the Officer Safety Act, while modeled on the Good Samaritan Act, is narrower, more restrictive, and provides no liability protection.  Rather, this bill clarifies the "color of law" prong required in the removal process, as courts have invited Congress to clarify.

The bill makes no change to the current standards governing when removal is permissible, and therefore leaves alone existing standards and case law.  But it provides that in three situations, the law enforcement officer who is a defendant in a State criminal prosecution will be deemed to have acted under color of his or her office: (1) when the officer protects a victim from a violent crime committed in the presence of the officer; (2) when the officer provides immediate assistance to an individual who suffered or is about to suffer imminent bodily harm; and (3) when the officer prevents the escape of an individual the officer reasonably believes committed or was about to commit, in the presence of the officer, a crime of violence that resulted in or was likely to result in serious bodily injury.  I believe that in these situations, the federal courts should always determine that the law enforcement officer acted under the color of his or her office for purposes of determining whether to grant the officer's removal petition.  But the courts remain free to determine under current law that there are other circumstances in which an officer seeking removal satisfies the color of office standard.

So the bill is a modest change that nevertheless provides an important layer of safety for the people who risk their lives day-in and day-out to protect us.  It will help make our communities safer and protect those who are sworn to guard and serve the American public.

This principle and this bill are supported by the Federal Law Enforcement Officers Association, the Federal Bureau of Investigation Agents Association, and the National Border Patrol Council.

I want to thank Senator Coons, a member of the Committee on the Judiciary, who co-chairs the Senate Law Enforcement Caucus, and is a co-sponsor on this bill.  He understands the need to support law enforcement officers who risk their lives every day so that we can sleep safely at night.

Further, I want to thank Senators Coburn and Sessions, also members of the Judiciary Committee and cosponsors.  They, too, understand this allows us to support federal agents without spending a dollar.

"Law enforcement officers are never 'off-duty.'"  To expect them to standby while a victim suffers violent acts in his presence is contrary to the oath they take to protect and renders their tax-funded training wasted as a citizen becomes a victim.  Please join me in protecting those who protect us.

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