The federal courts have on occasion pointed out that the immunity found in the Supremacy Clause is a “seldom litigated corner” of constitutional law.  Supremacy Clause immunity governs the extent to which states can impose civil or criminal liability on federal agents for alleged violations of state law committed in the course of their federal duties


The U.S. Supreme Court has held that the Clause protects a federal law enforcement officer held in state court for (1) an act that federal law “authorized” the officer to undertake,  and (2) “in doing that act, [the officer] did no more than was necessary and proper for him to do.”


Austin PD Officer, Deputized by FBI


Charles Kleinert was a member of the Austin Police Department in 2011. He had been with the department for 17 years. Under the provisions of Titles 21 and 28 of the United States Code, the FBI deputized Kleinert to assist the federal agency in some of its criminal investigations. Specifically, the state officer was assigned full-time to the FBI’s Central Texas Violent Crimes Task Force (Task Force). In that capacity, he enjoyed top-secret security clearance and was directly supervised by a superior FBI agent who allowed Kleinert to participate in federal bank robbery investigations.


The Benchmark Bank in Austin was robbed on the morning of July 26, 2013. A description of the robber as an “older white man” was sent to the Task Force. The FBI, with Kleinert, launched an investigation into the robbery. In civilian clothes, Kleinert went to the bank to obtain “surveillance footage” where he found a sign on the bank’s front door announcing its temporary closure.


FBI Task Force Conducts Bank Robbery Investigation


As Kleinert was discussing details of the robbery with bank employees, Larry Jackson, a 32-year-old black man, walked up to the bank’s front door. Apparently realizing the bank was closed, Jackson turned and walked away only to return a minute later at which time he pulled on the bank’s door. One of the bank employees went to the door to inform Jackson that the bank was closed. Kleinert and another bank employee were in a nearby office observing this interaction.


Jackson informed the bank employee that his name was “William Majors” and he wanted to withdraw money from his account. The bank employees knew Jackson was not being truthful. William Majors, it seems, was a friend of the bank’s president and had a substantial account with the bank. The bank employee at the door turned and asked Kleinert for assistance.


Deputized FBI Agent Suspect in Head with Gun, Discharged


Kleinert began questioning Jackson about his “William Majors” misrepresentation at which time Jackson “took off running” with the officer in pursuit. The officer managed to catch Jackson under a nearby traffic bridge where he pulled his weapon and ordered Jackson to the ground. The suspect hesitated before taking off again, but not before Kleinert managed to grab him by the back of his shirt. Jackson effectively dragged the officer a short distance before Kleinert struck him twice behind the head with the gun and meaty part of his hand, all the while yelling “Get down, get down.”


After Kleinert struck Jackson a third time, the suspect turned around and knocked the officer to the ground. While falling, Kleinert accidentally pulled the trigger of his gun. The bullet struck Jackson in the neck, killing him.


Agent Indicted on Reckless Homicide


The Travis County District Attorney’s Office subsequently indicted Kleinert for the unintentional shooting death of Jackson. The District Attorney’s office never argued in any way that the shooting death was an intentional homicide. The indictment charged instead that Kleinert “recklessly cause[d]” Jackson’s death “by striking and by attempting to strike” the suspect “while holding a loaded firearm.”


Case Removed to Fed Court, Raises Immunity


Under the “federal officer removal” statute, 28 U.S.C. § 1442, Kleinert’s attorney had the prosecution removed from state to federal court. Subsection (a)(1) of this statute, authorizes the removal of a federal officer’s prosecution from state to federal court when “any officer … of the United States or of any agency thereof” are charged with any act related to the “apprehension or punishment of criminals.” There are specifically three elements under § 1442 that must be met:


  • First, the state defendant must be an “officer of the United States;”
  • Second, the state’s prosecution must be (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 of criminals;” and
  • Third, the defendant must “raise a colorable federal defense” to a prosecution initiated by state authorities.


There was never any dispute, either at the federal or state level, that Kleinert was a federal officer within the meaning of § 1442. Thus, it came as no surprise that in July 2015 Kleinert’s attorney filed a Rule 12(b)(1) motion to dismiss under the Federal Rules of Criminal Procedure raising an immunity defense under the Supremacy Clause. The federal district court conducted a three-day hearing on the Rule 12(b)(1) motion before finding that Kleinert was indeed immune from prosecution by state authorities under the federal Supremacy Clause.


That did not end the matter. The State exercised its right to appeal the dismissal ruling to the Fifth Circuit Court of Appeals. On April 26, 2017, the Fifth Circuit upheld the district court’s Supremacy Clause ruling.


But, again, that did not end the matter.


The Fifth Circuit held while Kleinert satisfied every element of the immunity defense, the Supremacy Clause does not shield him from prosecution by federal authorities or civil liability under federal law. The appeals court concluded its ruling with this observation:


“Supremacy Clause immunity merely confirms that the Constitution and the laws of the United States are ‘supreme’ and cannot be obstructed—here, via local prosecution—by the laws of the individual states.”


Federal Prosecution or Civil Rights Lawsuit Still Option


The Fifth Circuit decision leaves open the possibility, albeit a miniscule one, that the U.S. Justice Department could still prosecute Kleinert for violating Jackson’s civil rights. And, finally, the door remains open for Jackson’s family to file a federal civil rights lawsuit against Kleinert and others responsible for Jackson’s death.