Authority of the Federal Bureau of Investigation to Investigate Police Killings

• Decision Date: 16 January 1981
• Docket Number: 81-8
• Citation: Authority of the Federal Bureau of Investigation to Investigate Police Killings, 5 Op. O.L.C. 45, 81-8 (Op. O.L.C. Jan 16, 1981)
• Parties: Authority of the Federal Bureau of Investigation to Investigate Police Killings
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

5 Op. O.L.C. 45

Authority of the Federal Bureau of Investigation to Investigate Police Killings

No. 81-8

United States Department of Justice

January 16, 1981

John M. Harmon, Assistant Attorney General Office of Legal Counsel

Authority of the Federal Bureau of Investigation to Investigate Police Killings

The Federal Bureau of Investigation is not presently authorized to investigate killings of non-federal law enforcement officers which involve only violations of state law, even in response to a presidential directive.

MEMORANDUM OPINION FOR THE DIRECTOR, FEDERAL BUREAU OF INVESTIGATION

This responds to your request for our views on the extent of the Federal Bureau of Investigation's (FBI's) authority to investigate the killing of a non-federal law enforcement officer when requested to do so by a local law enforcement official.Your question is directed specifically to investigations involving violations of state law but not federal law.In addition to the threshhold question of authority, you also pose questions regarding the form of the request for assistance (whether written or oral); the need if any, to seek statutory authority for the investigation and the propriety of continuing the investigations in advance of this legislation.We conclude that the FBI does not presently have the authority to conduct these investigations.The form of the request for assistance is therefore irrelevant.Whether legislation should be sought to authorize investigations of this nature depends on whether the FBI desires to continue to respond to requests for assistance from local authorities.If so, legislation must be sought and the FBI has no authority to conduct such investigations in the interim.

I.Background

The FBI's investigation of killings of non-federal law enforcement officers apparently began in response to a presidential directive of November 1, 1970, from President Nixon to Attorney General Mitchell.^[1] Noting the increasing number of assaults on law enforcement [ 46] officers, President Nixon directed the Attorney General"to make available all appropriate investigative resources of the Department of Justice to work jointly with State or local police when requested in any case involving an assault upon a police officer."^[2] Subsequently, on June 3, 1971, President Nixon met with the Attorney General, the Director of the FBI, Representatives of Congress, and 19 police executives from around the country.The President announced that, in addition to the previously available services of the FBI laboratory, the Identification Division, the National Crime Information Center, and the investigation of out-of-state leads, the FBI would actively participate in the investigation of police killings when a local law enforcement agency requested the assistance.On June 4, 1971, the FBI Director instructed all field divisions regarding the new policy, advising them to obtain a written request for assistance and then "work the investigation like we would a bank robbery case, jointly, toward the solution of the killing."

An internal FBI memorandum of June 5, 1971, recognized "the unique situation involved [, ] there being at this time no Federal law providing penalties for the killing of a local law enforcement officer."Accordingly, the memorandum advised that the views of the Department of Justice should be sought on some of the legal issues incident to the new policy.By memorandum of the same date, the Director of the FBI requested an opinion from the Attorney General regarding the FBI's jurisdiction to investigate a purely local offense.^[3]

The Assistant Attorney General in charge of the Criminal Division replied by memorandum of June 28, 1971.Having noted a proposed line item for inclusion in the FBI's annual appropriation providing for investigation of police killings, the memorandum concluded that FBI jurisdiction to investigate posed no problem."Congressional authorization to expand funds for assistance of state law enforcement activities appears to us a proper exercise of the spending power."^[4]

The appropriation apparently relied on in that June 28, 1971, memorandum was not enacted as proposed; and questions about the FBI's jurisdiction continued.On November 1, 1979, the FBI's Legal Counsel Division, by memorandum for the Assistant Director, Planning and Inspection Division, discussed the legality of FBI investigations of police killings and concluded that there was no specific statutory authority.[ 47] The memorandum suggested that the investigations might be justified because Congress had been made aware of the investigations by statements by the Director in appropriations hearings."Subsequent Congressional action in appropriating funds for these activities could be construed as tacit approval . . . ."Still, the memorandum recognized the implication of a memorandum of this Office of March 22, 1978, entitled "FBI Cooperation with State or Local Authorities, "^[5] which advised that the FBI had no authority to conduct interviews for the benefit of state and local law enforcement agencies where there was no possible violation of federal law.Although noting that the March 22 memorandum did not specifically address the question of FBI authority to act in response to a presidential directive, the Legal Counsel Division concluded that our memorandum did "point out the necessity for clarification in this area."Your request for our advice followed.

II.The FBI's Legal Authority to Investigate

The FBI's investigative authority derives from the Attorney General's power to appoint officials to detect "crimes against the United States."28 U.S.C §533(1).By regulation, the FBI is empowered to investigate "violations of the laws of the United States."28 C.F.R. § 0.85(a)(1980).In construing the extent of this power, this Office has issued two memoranda, in addition to that of March 22, 1978, which are relevant.

In a memorandum of November 9, 1977, for the Director of the Federal Bureau of Investigation ("FBI Cooperation with Local Authorities"), we discussed various problems arising in the context of FBI participation in cooperative undercover efforts with local law enforcement authorities.We considered first an investigation initiated in the belief that violations of federal law may be involved, and we concluded that "[a]s long as there remains a legitimate basis for the view that the investigation of the underlying conduct may unearth violations of federal law, we believe that the FBI is authorized to proceed with the investigation."But we further considered the situation where, as the cooperative investigation proceeded, it became clear that the activity in question did not constitute a violation of federal law.We concluded that the FBI could not in such circumstances continue to cooperate with local authorities because "[t]he investigation of violations of state law alone would be beyond the authority conferred on the FBI by 28 U.S.C. §533(1) and 28C.F.R. §0.85."Moreover, incurring expenses other than those necessary for the detection and prosecution of crimes against the United States would result in a violation of 31 U.S.C. § 628, which precludes expenditures except for the purpose for which the [ 48] appropriation was made.The only exception that we noted was in the context of an investigation from which the FBI's abrupt withdrawal would result in a significant likelihood of physical harm to other participants.In that case, we indicated that the FBI would be justified in continuing its covert activity to the extent necessary to prevent such harm.

We also had occasion to consider related issues in a memorandum of February 24, 1978, for the Director of the Federal Bureau of Investigation ("Responsibility and Authority of FBI Agents to Respond to Criminal Offenses Outside the Statutory Jurisdiction of the FBI").That memorandum dealt with the commission of state law offenses in the presence or immediate vicinity of an FBI agent who then acts either on his own accord or in response to a summons by a local law enforcement officer to detain or arrest the offender.We stated at the outset that we thought it "clear that the FBI has no federal authority to take action with respect to violations of state law, even in the exigent circumstances . . . present[ed]."Noting that the FBI's statutory jurisdiction in every respect-investigation, execution of search or arrest warrants, and making arrests without warrants-was limited to acts involving violations of the laws of the United States, we concluded that "[a]ny action taken with respect to the violation of state or local law would thus be beyond the FBI's explicit statutory authority."We did find, however, that certain exigent circumstances would give rise to an agent's obligation and power under state law to intervene in state offenses, specifically, if state law designated the agent a peace officer, if the common law authorized a private citizen to act, or if the common law or state statutory law required a bystander to respond to a summons by a local law enforcement officer.

We see nothing in the question of FBI authority that you now raise that would permit a different answer than that which follows from the plain language of § 533(1) itself and from our three prior memoranda.^[6][ 49] If there is no reasonable expectation that the investigation will lead to evidence of a violation of federal law-and you specifically pose only the situation where there is none-there is no FBI jurisdiction or authority to investigate.None of the exceptions to this general rule outlined in our prior memoranda is applicable here.First the authority to begin an investigation cannot be premised on the danger to other law enforcement officials or informers that might...