The power of the Sheriff over Federal agents


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tomrkba
January 21, 2014, 05:03 PM
I posed the following question in the SCOTUS denies cert on MT gun law (http://www.thehighroad.org/showthread.php?t=740803) thread.

Can Montana sheriffs revoke Federal agents' ability to enforce the law in their counties?

I think they have agreements in place to allow the Feds to come into their county, but I am not sure about that. How does this power work and what is currently in place?

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mljdeckard
January 21, 2014, 05:20 PM
I think where a law has been passed deliberately with the intent to create conflict between state and federal law, it will go to court pretty quickly. It will probably be argued and be a temporary nuisance, but the federal law will prevail.

Of course it is also possible that the Feds will pretend to ignore it, depending on projected expense and a larger strategynoflining up certain cases for challenge.

bainter1212
January 21, 2014, 05:57 PM
Well, here in CA the El Dorado county sheriff revoked the ability of the USFS to enforce STATE laws.......though they can still enforce Federal law.

This was because of massive complaints about harassment.

Sam1911
January 21, 2014, 06:06 PM
[Guys, let's stick to literal, factual answers to the question, not guesses and supposition about what the feds MIGHT do. And this needs to be specifically limited to GUN law ... it's borderline for being on-topic, so keep it gun-related.]

dogtown tom
January 21, 2014, 06:40 PM
tomrkba Can Montana sheriffs revoke Federal agents' ability to enforce the law in their counties?
No.
There is nothing to "revoke" in the first place. Second, Montana sheriffs don't get to decide who enforces federal law.......the feds do.


I think they have agreements in place to allow the Feds to come into their county, but I am not sure about that. How does this power work and what is currently in place?
Nonsense. No "agreement" is necessary for a Federal officer to perform his duties.

Arizona_Mike
January 21, 2014, 06:57 PM
The sheriff has no power over Federal agents within their scope of enumerated powers.

The problem is they blew up the Interstate Commerce Clause many years ago and just about everything under the sun that anyone might or might not do is considered interstate commerce and therefore a Federal concern.

Mike

Mike1234567
January 21, 2014, 07:15 PM
Have a look HERE. (http://oathkeepers.org/oath/) Have a look at the "Ten Orders We Will Not Obey" link.

Frank Ettin
January 21, 2014, 08:11 PM
While state and local law enforcement can not be required to assist federal agents enforce federal law, they may not prevent federal agents and federal courts from enforcing federal law. That's part of what Article VI of the Constitution means:...This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding....

316SS
January 21, 2014, 08:14 PM
As bainter1212 alluded to, there are agreements between counties and federal agencies with law enforcement to enforce state law (by deputizing federales). It appears he has some experience with feds "enforcing" state law. (http://www.calguns.net/calgunforum/showthread.php?t=716086)

http://sacramento.cbslocal.com/2013/06/21/el-dorado-county-sheriff-strips-forest-service-of-state-law-enforcement-power/
http://www.mtdemocrat.com/letters/public-nuisance-forest-ranger/

zxcvbob
January 21, 2014, 08:17 PM
I thought the Bighorn County (Wyoming) sheriff (what's his name, Matthis? Mack? something like that) won some kind of 10th Amendment case against the feds a few years ago, and all federal police actions in his county had to be coordinated with his office and meet his approval.

Frank Ettin
January 21, 2014, 08:32 PM
I thought the Bighorn County (Wyoming) sheriff (what's his name, Matthis? Mack? something like that) won some kind of 10th Amendment case against the feds a few years ago, and all federal police actions in his county had to be coordinated with his office and meet his approval. And I don't believe you.

Please find the case and some actual documentation. If you don't recall the name of the sheriff, why should we accept your characterization of the result?

ILikeLead
January 21, 2014, 08:34 PM
I think you refer to Richard Mack, who was an Arizona sheriff. There was a court case and he did prevail. Beyond that will require research.... Cause I can't remember details...

zxcvbob
January 21, 2014, 08:41 PM
And I don't believe you.

Please find the case and some actual documentation. If you don't recall the name of the sheriff, why should we accept your characterization of the result?

Don't be an ass. I told you what county it was, and the sheriff's name starts with an 'M'. That's all I remembered off the top of my head (I think that's pretty good.) I'll see if I can find the case and I'll report back.

Frank Ettin
January 21, 2014, 08:49 PM
I think you refer to Richard Mack, who was an Arizona sheriff...That case was Printz v. U.S., 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997).

It concerned certain provision of the Brady Act which (1) required the U. S. Attorney General to establish a system for performing background checks of persons buying guns; and (2) required state law enforcement officials to perform those checks until the federal system became operational. The Court struck down the latter provisions of the Act on the theory that the Constitution does not authorize the federal government to compel state officials to execute federal policy. Of course it is more complicated than. That's merely the Cliff's Noted version.

And it's because of that case that I wrote in post 8:...state and local law enforcement can not be required to assist federal agents enforce federal law,...

However, that's not anywhere close to what zxcvbob wrote in post 10.

zxcvbob
January 21, 2014, 08:54 PM
Okay, it's Sheriff Dave Mattis, the case was Castaneda v. USA... and there was no ruling at all about the 10th Amendment; it was widely misreported (unfortunately)
http://www.wyd.uscourts.gov/pdfforms/96cv99.pdf

Frank Ettin
January 21, 2014, 09:02 PM
Okay, it's Sheriff Dave Mattis, the case was Castaneda v. USA... and there was no ruling at all about the 10th Amendment; it was widely misreported (unfortunately)
http://www.wyd.uscourts.gov/pdfforms/96cv99.pdfIn fact there was no ruling at all (except perhaps to dismiss the case once it had been settled). And note the last paragraph of Judge Downes document, to which you linked:...Any person who interferes with federal officers in performance of their duties subjects themselves to the risk of criminal prosecution.

You have confirmed that I was correct to ask for documentation. What you originally wrote in post 10 was wrong and misleading.

Thank you for now providing the correct information.

Gaiudo
January 21, 2014, 10:16 PM
Not federal law, but state law as corresponds to national forest in California:


http://www.mtdemocrat.com/news/sheriff-strips-forest-service-of-power/

Sheriff strips Forest Service of power
By Cole Mayer

El Dorado County Sheriff John D’Agostini has been having problems with the U.S. Forest Service since he took office more than two years ago — and now is stripping it of its state law enforcement power in the county and the Eldorado National Forest.

“I have a folder an inch thick of e-mail and snail mail,” D’Agostini said, all complaints about the Forest Service. He estimates about 50 complaints total. They were all “complaints about services from the Forest Service. Or, I should say, lack thereof.”

. . .


He looked at the Memorandum of Understanding between EDSO and the USFS, looked into case law and the state Attorney General’s opinions.

The Sheriff sent the USFS a letter on June 22, giving USFS officials a 30-day notice before they are stripped of their law enforcement power.

“California Penal Code Section 830.8(a) limits the authority of Forest Service criminal investigators and law enforcement officers to exercise the powers of arrest of a California peace officer and to enforce California statutes without the written consent of the Sheriff or Chief of Police in whose jurisdiction they are assigned,” D’Agostini’s letter read. “I am terminating the agreement and giving 30 days written notice as required. Effective Monday, July 22, 2013, the cooperative agreement will no longer exist.” It goes on to say that the law enforcement officials of the USFS no longer have his consent or authorization to enforce state laws in the county, nor will EDSO accept evidence submitted by them.

“They can’t enforce state law,” D’Agostini said. That includes vehicle and penal codes, on both private and federal land. They can, however, enforce federal laws.

Forest Service Special Agent in Charge Scott Harris told the Mountain Democrat, “We have received the letter and are in the process of reviewing it. We have a meeting scheduled with the El Dorado County sheriff on Wednesday to consider our options for resolving this issue.”

dakota.potts
January 21, 2014, 10:29 PM
My feeling is it is largely symbolic, a warning to the federal government that they will fight it.

Will it do anything? I don't know. Colorado and Washington don't have the authority to deregulate marijuana, but they did it -- oh, except you can still go to jail for it, still be fired from your job, it can still be illegal on a county-wide basis, and banks won't deal with marijuana dispensaries, forcing them into massive cash handling transactions. We'll see how long it goes before people end up prosecuted for it again.

It's definitely a good signal and attention grabber. Beyond that, I don't know if the whole idea of nullifying federal laws will really change much for the state, especially with current readings of the Interstate Commerce Clause

Gaiudo
January 21, 2014, 10:40 PM
I don't know if the whole idea of nullifying federal laws will really change much for the state

If statewide the governor commands all state patrol to cease enforcement of federal law, and the sheriffs are in agreement, you don't think that would really change much on the state level? .Fed doesn't have the resources to actually enforce the average citizen who's off the radar. Not something I'd love to test out with a potential felony charge, but the fact of the matter is that federal law is largely enforced at the will of the state LEO.

savanahsdad
January 21, 2014, 10:48 PM
dose this have anything to do with Montana's "if it's made here , sold here and stays here" gun bill they pasted a few years back ?




.

Frank Ettin
January 21, 2014, 11:02 PM
Not federal law, but state law as corresponds to national forest in California...Which would, it appears, be entirely proper.

Federal authorities have no power conferred at the federal level to enforce state laws. Any authority they might have to do so must be conferred on them by the State.

...Colorado and Washington don't have the authority to deregulate marijuana, but they did it...Well, they actually do -- as a matter of state law. But conduct which is legal under state law can still be illegal under federal law.

The state-federal duality is something that is, perhaps, at least non-intuitive, if not outright counter intuitive. But it is there. There can be conflicting and overlapping rules, and which applies, how and with what result can be difficult to sort out. That's why there are a lot of judicial decisions on topics related to choice of law and preemption issues.

dose this have anything to do with Montana's "if it's made here , sold here and stays here" gun bill they pasted a few years back ?
Yes.

That law led to a lawsuit, Montana Shooting Sports Association v. Holder, No. 10-36094, (9th Cir., 2013). The Federal Court of Appeals for the Ninth Circuit affirmed the District Court's dismissal of the suit and ruled that the Montana law upon which plaintiff relied is preempted by federal law, which federal law Congress had the power under the Commerce Clause to enact. The Ninth Circuit relied substantially on Gonzales v. Raich, 545 U.S. 1 (2005) and United States v. Stewart, 451 F.3d 1071 (9th Cir. 2006).

The plaintiffs then asked the Supreme Court to hear the case. And now the OP has reported that the Supreme Court has declined to hear the case. That means that the decision of the Ninth Circuit stands and is the law at present in the Ninth Circuit.

dakota.potts
January 21, 2014, 11:14 PM
If statewide the governor commands all state patrol to cease enforcement of federal law, and the sheriffs are in agreement, you don't think that would really change much on the state level? .Fed doesn't have the resources to actually enforce the average citizen who's off the radar. Not something I'd love to test out with a potential felony charge, but the fact of the matter is that federal law is largely enforced at the will of the state LEO.
Seems to me that as the ATF holds as much power as they do with gun laws, you could still get a knock on your door in Montana for building machine guns, even if they made it legal under state law.

Gaiudo
January 21, 2014, 11:19 PM
you could still get a knock on your door in Montana for building machine guns

Yes, of course you could. ATF still holds jurisdiction. It's just a question of resources. When is the last time you actually encountered an ATF agent in daily life?

Let's be clear: I'm not saying that anyone should break federal law. I'm simply stating that local enforcement is key to federal enforcement, and withdrawing aid is an excellent way for state powers to neuter federal enforcement.

DMF
January 22, 2014, 02:55 AM
. . . fact of the matter is that federal law is largely enforced at the will of the state LEO.Well, I actually have direct experience in this for over a decade. That statement is completely, and utterly false.

DMF
January 22, 2014, 03:06 AM
Federal authorities have no power conferred at the federal level to enforce state laws.That is not correct.

You may want to research the "Assimilative Crimes Act" (18USC13), which allows the federal government to prosecute state offenses committed in areas of exclusive federal jurisdiction in a particular state, if there is no equivalent federal statute that covers the offense.

hartcreek
January 22, 2014, 03:25 AM
I live in Washington and weed is legal to own in a certain quantity even in counties that have opted out of allowing growing and processing operations. Cities are now making individual decisions on what they are going to do. There is a huge amount of tax money to consider.

What doe this have to do with the topic......States can evidently decide what is legal in their own state. What the feds plan to do with no state support......?

Gaiudo
January 22, 2014, 03:40 AM
. . . fact of the matter is that federal law is largely enforced at the will of the state LEO.
Well, I actually have direct experience in this for over a decade. That statement is completely, and utterly false.

DMF, please elaborate. To be clear, you're saying that the enforcement of federal drug laws, federal firearm laws, etc. is primarily enacted via direct federal law enforcement. So, schedule 1 marijuana, confiscation of short barreled weapons on the street, etc? I'm interested in this, honest question.


I'm working from Margaret Lemos' paper from the NYU Law Review (vol 86, 2011), where she talks about the combination of federal and state enforcement powers to enact federal policy. These seem to be commonly, and often necessarily enforced by local authority. Available here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1685458

(p. 8) Many federal civil statutes explicitly provide for state enforcement. Those statutes single out the state attorney general as the primary agent of state enforcement, and empower him or her to bring a civil action to obtain specified remedies. Notably, most state-enforcement provisions specify that state attorneys general must sue in federal court,37 thereby departing from the default presumption that state courts retain concurrent jurisdiction over federal causes of action.38 . . . (p. 9) Express provisions for state enforcement appear largely (though not exclusively40) in the field of consumer protection. For example, state attorneys general may sue to obtain compliance with federal standards regarding flammable fabrics,41 hazardous substances,42 packaging of household substances,43 and consumer products.44 Other federal consumer protection statutes allow states to sue as parens patriae45 to obtain either damages or injunctive relief on behalf of their residents for violations of rules governing credit repair organizations,46 credit reporting agencies,47 pay-per-call services,48 telemarketers,49 professional boxing matches,50 sports agents,51 children’s online privacy protection,52 email spam,53 and the delivery and transportation of household goods.54 States have similar authority to enforce federal antitrust laws.55

(p. 11) State authority to enforce federal law is a relatively recent phenomenon, though it has roots in older practices. [See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons from History, 38 AM. U. L. REV. 275, 303-09 (1988) (discussing early state enforcement of federal criminal law).] Many state attorney general offices grew exponentially during the 1980s, partially as a response to Reagan-era devolution and a decline in enforcement by federal agencies.[ee Cornell W. Clayton, Law, Politics, and the New Federalism: State Attorneys General as National Policymakers, 56 REV. POL. 525, 538 (1994) (“During the 1980s the rate of growth in the budget of the attorney general’s office or state department of law outpaced increases in general government spending in every single state, in some states many times over.”); Andrew I. Gavil, Reconstructing the Jurisdictional Foundation of Antitrust Federalism, 61 GEO. WASH. L. REV. 657, 661-62 (1993) (suggesting that increased level of state enforcement activity in antitrust and consumer protection areas was in part a response to perceived inadequacy of federal enforcement).] As state attorneys general assumed new prominence, provisions for state enforcement began to proliferate in Congress.

(p. 12) Like private litigation, then, state enforcement may be driven by a desire to compensate victims, and legislators and lobbyists sometimes invoke that goal as a reason for empowering both states and private parties.65 More frequently, state enforcement is justified as a means of ensuring compliance with federal law through a “multilayered approach to enforcement”66 that “bring[s] more allies into the fight.”[153 Cong. Rec. H16,882 (daily ed. Dec. 19, 2007) (statement of Rep. DeLaurio) (regarding state enforcement under CPSIA); see also 149 Cong. Rec. 25,526 (2003) (statement of Sen. Wyden) (“What is going to be important is for those who are charged with enforcement . . . to bring a handful of actions very quickly to establish that for the first time there is a real deterrent . . . . When the bill takes effect, for the first time those violators are going to risk criminal prosecution, Federal Trade Commission enforcement, and million-dollar lawsuits by the State attorneys general and Internet service providers.”); id. at 25,548 (statement of Sen. Cantwell) (“By allowing enforcement by State attorneys general and by Internet service providers, we have increased the odds of successful enforcement against the worst spammers.”); 137 Cong. Rec. 30,822 (1991) (statement of Sen. Hollings) (regarding common carrier regulation, describing state enforcement as a response to questions about “the will of the FCC to enforce the bill rigorously”); 153 Cong. Rec. S15,990 (daily ed. Dec. 19, 2007) (statement of Sen. Pryor) (arguing that CPSIA “ensures that [state attorneys general] can act as real cops on the beat, looking out for consumers and restoring confidence in the marketplace”); Consumer Product Safety Commission Reauthorization Hearing Before the Subcomm. On Commerce, Consumer Protection, and Competitiveness of the H. Comm. On Energy and Commerce, 101st Cong. 65 (1989) (statement of Dr. Widome, Professor of Pediatrics) (regarding Flammable Fabrics Act, arguing that state enforcement “would build a needed redundancy and failsafe provision into the [Consumer Products Safety] Commission and help assure that some of these products get off the market”); Consumer Product Safety Commission Reauthorization (Part 2): Hearing on H.R. 3343 and H.R. 3443 Before the Subcomm. On Commerce, Consumer Protection, and Competitiveness of the H. Comm. On Energy and Commerce, 100th Cong. 236 (1987) (statement of PIRG) (regarding CPSIA, arguing that state enforcement “would multiply by fifty the number of officials available to help ensure the safety of products that are distributed throughout the country”).]

(p. 13) Similarly, state enforcement of federal law must be distinguished from what I will call implementation of federal objectives by states. Consider the Clean Air Act, which instructs states to create and enforce “state implementation plans” governing emissions from stationary sources within the state, provided that total emissions satisfy federal standards.73 Federal standards set the floor; states may opt for more stringent standards if they wish, and retain substantial discretion in determining how to achieve their goals.74 Other federal environmental statutes follow a similar approach.75

(p. 17) State enforcement is likely to respond to interests and concerns that would be overlooked by other states and the federal government. In the antitrust context, for example, state enforcers report that they “typically focus on enforcement cases that have significant specific legal or regional impact upon their states, their consumers, and their public institutions.”95 As discussed in more detail below, elected state attorneys general have strong incentives to serve their local constituencies. State enforcers also are likely to have a better understanding of local conditions than their federal counterparts, simply by virtue of living and working in the state rather than in Washington DC.96 States may have an investigatory or enforcement apparatus in place—a local police force, for example—that would be costly for the federal government to replicate. And state enforcers’ relative closeness to local citizens gives them access to information federal enforcers may not have or lack the capacity to address.

Regarding the necessity of state enforcement for federal drug policy, see here: http://www.opendemocracy.net/francisco-e-thoumi/us-incapacity-to-enforce-federal-drug-laws-and-global-consequences

Wanting to find out how utterly false my statement really was. What's your experience on this?

Frank Ettin
January 22, 2014, 05:33 AM
Federal authorities have no power conferred at the federal level to enforce state laws.That is not correct.

You may want to research the "Assimilative Crimes Act" (18USC13), which allows the federal government to prosecute state offenses committed in areas of exclusive federal jurisdiction in a particular state, if there is no equivalent federal statute that covers the offense.That's not exactly correct. Under 18 USC 13, it's not a matter of the federal authorities enforcing state law on behalf of the State. It's a matter of the federal government adopting and enforcing state laws as federal law on federal property within a State.

The statute, 18 USC 13, reads, in pertinent part, as follows (emphasis added):(a) Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.....

It's a subtle but important distinction. An act, which if committed in a place of state jurisdiction would have been prosecuted by the State under state law, becomes a federal crime which would be prosecuted by the federal government under federal law if that act is committed in a place of exclusive federal jurisdiction within that State.

If someone is arrested by a federal agent for a crime in an area of federal jurisdiction pursuant to the authority of 18 USC 13, that person would be tried in federal court and go to federal prison. But we were discussing a situation in which a federal agent would have the authority, under state law, to arrest someone for committing a crime within state jurisdiction; and in that case that person would be tried in state court and go to state prison.

I live in Washington and weed is legal to own in a certain quantity even in counties that have opted out of allowing growing and processing operations....

What doe this have to do with the topic......States can evidently decide what is legal in their own state. What the feds plan to do with no state support?........Again, something may be legal under state law but illegal under federal law. That simply means that on is not arrested by local law enforcement, tried in state court and sent to state prison. One would be arrested by federal agents, tried in federal court and sent to federal prison.

...Regarding the necessity of state enforcement for federal drug policy, see here: http://www.opendemocracy.net/francisco-e-thoumi/us-incapacity-to-enforce-federal-drug-laws-and-global-consequences...And that focuses on the real, underlying, practical issue -- the availability or lack of adequate federal resources to effectively enforce federal law without the active participation of state authorities. It doesn't change the law, nor does it affect the authority of the federal government to enforce federal law, but unless the State helps, the federal government might lack the necessary manpower/resources to effectively enforce federal law all by itself.

It will be interesting to see how the federal government deals with that practical reality.

vamo
January 22, 2014, 08:47 AM
Everyone needs to quit comparing gun control to the weed situation in Washington and Colorado. The only reason people are being allowed to sell and use it in those two states (and the state with medical exemptions for that matter) is that the federal government is choosing to not enforce federal law in this one circumstance. The admin could change its mind tomorrow and be well within its legal authority as determined by the courts to shut it all down.

Do we even have to ask if the admin would should the same discretion to a state that attemps to nullify federal gun control laws within its own borders?

DMF
January 22, 2014, 09:32 AM
Quote:
Originally Posted by DMF
Quote:
Federal authorities have no power conferred at the federal level to enforce state laws.
That is not correct.

You may want to research the "Assimilative Crimes Act" (18USC13), which allows the federal government to prosecute state offenses committed in areas of exclusive federal jurisdiction in a particular state, if there is no equivalent federal statute that covers the offense.
That's not exactly correct. Under 18 USC 13, it's not a matter of the federal authorities enforcing state law on behalf of the State. It's a matter of the federal government adopting and enforcing state laws as federal law on federal property within a State.

The statute, 18 USC 13, reads, in pertinent part, as follows (emphasis added):

Quote:
(a) Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.....

It's a subtle but important distinction. An act, which if committed in a place of state jurisdiction would have been prosecuted by the State under state law, becomes a federal crime which would be prosecuted by the federal government under federal law if that act is committed in a place of exclusive federal jurisdiction within that State. Having investigated crimes that were prosecuted using 18USC13, I am well aware of the fact that the enforcement action and prosecution is done by federal agents, and in federal court. The point is they are in affect enforcing a state law, through the federal courts, because of where the crime occurs (exclusive federal jurisdiction), and the fact that there is a state law outlawing the crime, but not an equivalent federal law.

DMF
January 22, 2014, 09:36 AM
DMF, please elaborate. To be clear, you're saying that the enforcement of federal drug laws, federal firearm laws, etc. is primarily enacted via direct federal law enforcement.Yes. That is why you have federal law enforcement agencies, and federal prosecutors, with federal judges. For more than a decade I have been working in federal law enforcement, and agencies can and very often do conduct criminal investigations without any involvement of state/local law enforcement. While there often is cooperation amongst all levels of government (state/local/fed), as they often share the same goal of punishing offenders, and reducing crime, it is absolutely false to say fed LE is controlled by the will of the state.

Frank Ettin
January 22, 2014, 09:48 AM
...The point is they are in affect enforcing a state law, through the federal courts, because of where the crime occurs (exclusive federal jurisdiction), and the fact that there is a state law outlawing the crime, but not an equivalent federal law...Nope. What the statute does is effectively create a federal crime equivalent to the state crime. That is not the same as federal authorities enforcing a law for the State.

DMF
January 22, 2014, 10:04 AM
Well if you want to continue splitting the hairs on this, they are "assimilating," ie adopting the state crime, in the federal system. Hence the name of the Act that made this law, the Assimilative Crimes Act. So again, what is occurring is the state law is being enforced/prosecuted by the feds, in federal court, because the crime does not exist in the federal statutes, and there is no mechanism for the state to enforce the law as the crime occurred in an area of exclusive federal jurisdiction, rather than the more common areas of concurrent jurisdiction. That is the spirit, intent, and practical effect of the Act. Again, I've actually done this in the real world. It's not some legal theory I've read about, I've actually implemented it in the real world.

Frank Ettin
January 22, 2014, 11:28 AM
...what is occurring is the state law is being enforced/prosecuted by the feds, in federal court, because the crime does not exist in the federal statutes, and there is no mechanism for the state to enforce the law as the crime occurred in an area of exclusive federal jurisdiction, rather than the more common areas of concurrent jurisdiction...There's no reason for the State to enforce its laws in areas of exclusive federal jurisdiction. Indeed the State has no power to enforce its laws in areas of exclusive federal jurisdiction.

The federal government is interested in enforcing order in areas of its exclusive jurisdiction, but it may lack specific laws enacted by Congress to allow it to do so. So Congress enacted a law adopting certain state laws as federal laws in areas of exclusive federal jurisdiction. Acts in areas of exclusive federal jurisdiction allegedly violation such laws are then prosecuted as federal laws by U. S. Attorneys in federal courts.

And thus these laws are not state laws being prosecuted by or on behalf of the State. Federal courts lack criminal jurisdiction to try state law crimes. The caption on a case arising under 18 USC 13 will read United States v. [ x ] not State v. [ x ]. The criminal plaintiff is thus the United States and not a State, and the action is to redress a wrong committed against the United States and not against a State.

Gaiudo
January 22, 2014, 11:30 AM
Yes. That is why you have federal law enforcement agencies, and federal prosecutors, with federal judges. For more than a decade I have been working in federal law enforcement, and agencies can and very often do conduct criminal investigations without any involvement of state/local law enforcement. While there often is cooperation amongst all levels of government (state/local/fed), as they often share the same goal of punishing offenders, and reducing crime, it is absolutely false to say fed LE is controlled by the will of the state.

Nowhere did I state that fed LE is "controlled by the will of the state"; that's a misreading of the whole discussion here. Rather, I said federal law is often "enforced by the will of the state". It's a discussion of enforcement (where I was specifically addressing the executive branch, not the judicial), and how that is carried out given the availability of federal resources to execute federal law.

If the state pulls resources entirely from cooperating and enforcing federal law (my examples being NFA and schedule 1 drug laws), will .fed have the resources (note, not the authority) to enforce effectively and practically? Having never actually run into a federal officer in daily life I'm having a hard time seeing how they would be very effective at deterring behavior.

CoalTrain49
January 22, 2014, 10:26 PM
My feeling is it is largely symbolic, a warning to the federal government that they will fight it.

Will it do anything? I don't know. Colorado and Washington don't have the authority to deregulate marijuana, but they did it -- oh, except you can still go to jail for it, still be fired from your job, it can still be illegal on a county-wide basis, and banks won't deal with marijuana dispensaries, forcing them into massive cash handling transactions. We'll see how long it goes before people end up prosecuted for it again.

It's definitely a good signal and attention grabber. Beyond that, I don't know if the whole idea of nullifying federal laws will really change much for the state, especially with current readings of the Interstate Commerce Clause

They have the authority to pass legislation dealing with the state statute. They have no authority with federal statute. They have the authority to let county code prevail by not having language in state statute that would be contrary to any county code. A state trooper may not arrest you, but a U S Marshall or a county sheriff might. The City of Seattle tried to make it illegal to carry concealed in a park. State statute insures your right to do that, therefor it was found unconstitutional by the state constitution or state law.

RickD427
January 23, 2014, 01:24 AM
I live in Washington and weed is legal to own in a certain quantity even in counties that have opted out of allowing growing and processing operations. Cities are now making individual decisions on what they are going to do. There is a huge amount of tax money to consider.

What doe this have to do with the topic......States can evidently decide what is legal in their own state. What the feds plan to do with no state support......?
I also live in Washington.

Marijuana use remains illegal in our fine state.

It's quite true that state law sanctions have been removed. No Washington state law enforcement officer is going to take enforcement action against a user.

But marijuana use remains illegal under federal law, and the fine folks of Washington state cannot change that, not through our initiative process, and not through our reps in Olympia.

CoalTrain49
January 23, 2014, 08:02 PM
^

Exactly.

My barber was recently arrested for selling mj. I think the sheriff was the one who got him.

Not to worry, I now have another barber. This one is straight.

AlaskaMan
January 25, 2014, 06:34 PM
IANOL,
18 USC 13 requires either concurrent federal jurisdiction or partial exclusive federal jurisdiction. There is no location within the United States with true exclusive jurisdiction. If there was, an individual within that jurisdiction would not be subject to any state laws, including income tax, voting or vehicle registration.

Feds may enforce state law either through an MOU/MOA/GA (Memorandum of Understanding/Agreement/General Agreement) as allowed by state law, or where federal regulations allow the adoption (not assimilation) of state laws.

18USC 13 may not be used on federal lands under proprietary federal jurisdiction, ie., those lands that are not within the special maritime and federal jurisdiction of the United States. This includes the majority of BLM/Forest Service/Park Service lands within the United States.

just sayin'...

claiborne
January 27, 2014, 01:09 PM
Wow, this was worth reading for the educational benefit alone. Thanks

tepin
January 27, 2014, 05:33 PM
I thought Indian Reservations were 100% federal - jurisdiction of the FBI.

bainter1212
January 27, 2014, 05:38 PM
I thought Indian Reservations were 100% federal - jurisdiction of the FBI.

Only when a capital crime is commited.

tepin
January 28, 2014, 11:11 AM
Why did George Bush need permission from the LA Governor to send FEMA troops in after Katrina?

dogtown tom
January 28, 2014, 11:19 AM
tepin Why did George Bush need permission from the LA Governor to send FEMA troops in after Katrina?
Oh brother :scrutiny:

Frank Ettin
January 28, 2014, 11:31 AM
Why did George Bush need permission from the LA Governor to send FEMA troops in after Katrina?What makes you think he did.

In any case FEMA personel aren't "troops."

Derry 1946
January 28, 2014, 12:11 PM
The Governor had declared a state of emergency, and had asked the President to do likewise, which set the stage for activation of federal aid. This declaration has numerous ramifications in terms of insurance, indemnification, types of aid that can be deployed, etc. Such a declaration is regularly made in other emergencies such as Sandy, wildfires, drought, tornado events, and the like.

Hurricane Katrina was an unprecedented event in many ways, which makes it a fascinating subject for study, but not always a relevant point of reference. Martial law was declared and troops with what looked like M-16s manned checkpoints at every road in or out of New Orleans. Only my badge got me back in to check on the house and rescue the pets. Never seen anything else like it before or since, stateside.

dogtown tom
January 28, 2014, 02:39 PM
Frank Ettin ....In any case FEMA personel aren't "troops."
The Google Paranoia Translator shows:
FEMA troops= Louisiana National Guard

;)

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