The power of the Sheriff over Federal agents

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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......?
 
. . . fact of the matter is that federal law is largely enforced at the will of the state LEO.
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Well, I actually have direct experience in this for over a decade. That statement is completely, and utterly false.
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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
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(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.
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(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 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”).]
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(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
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(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.
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Regarding the necessity of state enforcement for federal drug policy, see here: http://www.opendemocracy.net/franci...rce-federal-drug-laws-and-global-consequences

Wanting to find out how utterly false my statement really was. What's your experience on this?
 
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DMF said:
Federal authorities have no power conferred at the federal level to enforce state laws.
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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.
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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.....
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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.

hartcreek said:
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?........
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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/franci...rce-federal-drug-laws-and-global-consequences...
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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.
 
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?
 
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.
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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, 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.
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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.
 
DMF said:
...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...
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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.
 
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.
 
DMF said:
...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...
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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.
 
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.
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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.
 
dakota.potts said:
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
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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.
 
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hartcreek said:
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......?
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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.
 
^

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.
 
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'...
 
I thought Indian Reservations were 100% federal - jurisdiction of the FBI.
 
Why did George Bush need permission from the LA Governor to send FEMA troops in after Katrina?
 
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.
 
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