Clifton v. Cox

• Citation: 549 F.2d 722
• Decision Date: 04 March 1977
• Docket Number: No. 75-1585,75-1585
• Parties: Petition of Lloyd CLIFTON for a Writ of Habeas Corpus, Petitioner-Appellee, v. Gene COX, Sheriff of Humboldt County, California, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 722

549 F.2d 722

Petition of Lloyd CLIFTON for a Writ of Habeas Corpus Petitioner-Appellee, v. Gene COX, Sheriff of Humboldt County, California Respondent-Appellant.

No. 75-1585.

United States Court of Appeals Ninth Circuit.

March 4, 1977.

William F. Ferroggiaro, Jr., argued, John E. Buffington, Dist. Atty., Eureka, Cal., for respondent-appellant.

James L. Browning, Jr., U. S. Atty., argued, San Francisco, Cal., James R. McKittrick, argued, Matthews, Traverse & McKittrick, Eureka, Cal., for petitioner-appellee.

Evelle J. Younger, Atty. Gen. of California, San Francisco, Cal., for amicus curiae.

Appeal from the United States District Court For the Northern District of California.

Before BROWNING, MERRILL and LAY, ^* Circuit Judges.

OPINION

LAY, Circuit Judge:

The United States District Court for the Northern District of California, the Honorable Samuel Conti presiding, granted petitioner Lloyd Clifton a writ of habeas corpus discharging him from the constructive custody of the respondent Gene Cox, Sheriff of Humboldt County, California, and the State of California. It permanently stayed all state criminal proceedings arising from an indictment charging Clifton with second degree murder and involuntary manslaughter for the shooting of Dirk Dickenson on April 4, 1972, while Clifton was serving as a special agent for the Bureau of Narcotics and Dangerous Drugs (BNDD) in the United States Department of Justice. ¹ Respondent Cox appeals. ² We affirm the grant of the writ.

I

The district court held an evidentiary hearing, lasting three days, and found the following facts.

Petitioner was a member of a task force from various federal and state agencies which secured a federal search warrant authorizing a search of a ranch near Garberville, California, the alleged location of an illegal drug manufacturing operation. The task force also obtained a federal arrest warrant for Dirk Dickenson, one of the record owners of the property. A United States Army helicopter transported the task force to the raid site on April 4, 1972. It landed in front of the cabin raising a considerable amount of dust and debris and creating a lot of noise. During the commotion as the raiders debarked one agent (Agent Filben) outran his feet and fell to the ground. Clifton, thinking that Filben had been shot, rushed the cabin and kicked in the door. He did not knock, identify himself, nor announce his authority and purpose before making his forceful entry.

As Clifton entered the front door, Dickenson jumped over a bannister into the backyard and began running towards a nearby wooded area. Clifton leveled his pistol at the running figure, called "Halt," waited a few seconds, called "Halt" again, waited a second or two and then fired. The bullet entered Dickenson's back and he died en route to the hospital. Dickenson was unarmed and offered no physical resistance other than flight.

Clifton was indicted in the state court for second degree murder and involuntary manslaughter. He subsequently petitioned the federal district court for a writ of habeas corpus and release from state custody.

On the basis of the above facts the federal district court found that petitioner honestly and reasonably believed that: (1) the fleeing suspect was Dirk Dickenson, the individual named in the arrest warrant for felony violations of federal drug laws; (2) the fleeing suspect had just shot a fellow officer (Agent Filben); (3) the fleeing suspect was potentially armed and dangerous, and his successful entry into the woods would pose a danger to the lives of the pursuing officers. The district court granted a writ of habeas corpus under 28 U.S.C. § 2241(c)(2), which provides in part:

(c) The writ of habeas corpus shall not extend to a prisoner unless

(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; . . .

On appeal respondent urges that the district court erred in not requiring Clifton to stand trial on the state criminal charges for the following reasons: (1) material facts relating to the shooting incident were in conflict; (2) the district court should have given evidentiary value to the BNDD regulations requiring its officers to use weapons only in self-defense; and (3) there was no showing of "urgency."

II

The landmark decision governing petitioner's rights is In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890). ³ There the Supreme Court of the United States recognized by reason of the Supremacy Clause, U.S.Const. art. VI, that a federal officer cannot be held on a state criminal charge where the alleged crime arose during the performance of his federal duties. The Court held:

To the objection, made in argument, that the prisoner is discharged by this writ from the power of the state court to try him for the whole offence, the reply is that if the prisoner is held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as marshal of the United States, and, if, in doing that act, he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime under the law of the state of California. When these things are shown, it is established that he is innocent of any crime against the laws of the state, or of any other authority, whatever.

135 U.S. at 75, 10 S.Ct. at 672.

Sixteen years later the Supreme Court reviewed the principles enunciated in its Neagle opinion. See United States ex rel. Drury v. Lewis, 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343 (1906). ⁴ In Drury, however, the Court denied release of a federal officer from state custody repeating the warning that in discharging an individual under state court indictment the federal courts are exercising an extremely delicate jurisdiction. See Baker v. Grice, 169 U.S. 284, 291, 18 S.Ct. 323, 42 L.Ed. 748 (1898). The Court said:

We have repeatedly held that the acts of Congress in relation to habeas corpus do not imperatively require the circuit courts to wrest petitioners from the custody of state officers in advance of trial in the state courts, and that those courts may decline to discharge in the proper exercise of discretion.

200 U.S. at 8, 26 S.Ct. at 232.

The Supreme Court has not reviewed the Neagle rule in the 70 years since Drury. ⁵ The last reported circuit court opinion was in 1929. See Birsch v. Tumbleson, 31 F.2d 811 (4th Cir. 1929). See also Castle v. Lewis, 254 F. 917 (8th Cir. 1918); West Virginia v. Laing, 133 F. 887 (4th Cir. 1904).

III

Respondent contends that the principles of abstention expressed in Drury, supra, should control because there is conflicting evidence as to whether petitioner's conduct was actually necessary and proper. He alleges that the entry into the cabin was adjudicated by Judge William T. Swiegert to be in violation of 18 U.S.C. § 3109; ⁶ that, contrary to the district court's findings, there was evidence that there was nothing to identify the raiders as law enforcement officers; that Judith Arnold (Dickenson's companion) testified, contrary to the district court's findings, that Dickinson did not flee until after petitioner kicked in the door; that petitioner acted in violation of his departmental regulations in firing a shot at Dickenson; ⁷ and that the use of the United States Army helicopter and crew was in violation of federal law. ⁸

Respondent urges that Clifton's use of physical force exceeded the "exigency of the process" under which he acted. Quoting from In re McShane, 235 F.Supp. 262 (N.D.Miss.1964), he argues that:

(t)he statutory habeas corpus provision for the benefit of federal officers was not intended to place beyond the reach of a state's criminal law federal officials who employ means which they cannot honestly consider reasonable in discharging their duties or who otherwise act out of malice or with some criminal intent.

Id. at 273.

We turn to those contentions.

Scope of Authority.

With the exception of the conflicting evidence relating to the identity of the raiders and timing of Dickenson's flight, the factors relied upon by respondent relate to the question of whether the act for which petitioner is held was done pursuant to a law of the United States and in the line of duty. The legality of the search warrant, the manner of its execution, the authority to use an Army helicopter and compliance with the BNDD regulations all relate to the scope of petitioner's authority. The issue of petitioner's scope of authority presents a question of law which we find was properly resolved by the district court.

It is well-settled that a federal official cannot be held personally liable in a civil suit for acts committed within the outer perimeter of his line of duty. See Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). "To be within that perimeter, and therefore absolutely privileged, '(I)t is only necessary that the action bear some reasonable relation to and connection with the duties and responsibilities of the official.' " Scherer v. Morrow, 401 F.2d 204, 205 (7th Cir. 1968), cert. denied, 393 U.S. 1084, 89 S.Ct. 868, 21 L.Ed.2d 777 (1969), quoting from Scherer v. Brennan, 379 F.2d 609, 611 (7th Cir.), cert. denied, 389 U.S. 1021, 88 S.Ct. 592, 19 L.Ed.2d 666 (1967).

The Supreme Court in Barr v. Matteo, supra, gives approval to the test propounded by Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950):

What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. . . .

360 U.S. at 572, 79 S.Ct. at 1340.

The Court concludes that the fact that a petitioner is not required by law or by direction of his superiors to...