State of Ariz. v. Manypenny

• Decision Date: 28 September 1977
• Docket Number: No. CR-76-377-TUC-WCF.,CR-76-377-TUC-WCF.
• Citation: 445 F. Supp. 1123
• Parties: The STATE OF ARIZONA, Plaintiff, v. William Dale MANYPENNY, Defendant.
• Court: U.S. District Court — District of Arizona

445 F. Supp. 1123

The STATE OF ARIZONA, Plaintiff, v. William Dale MANYPENNY, Defendant.

No. CR-76-377-TUC-WCF.

United States District Court, D. Arizona.

September 28, 1977.

COPYRIGHT MATERIAL OMITTED

Stephen D. Neely, Pima County Atty., Daniel Smith, Deputy County Atty., Tucson, Ariz., for plaintiff.

James D. Whitney, Tucson, Ariz., for defendant.

ORDER

FREY, District Judge.

While acting as a Border Patrol Officer the defendant, William Dale Manypenny, shot and injured a fleeing alien. The event occurred on the Organ Pipe National Monument in Pima County, Arizona, not far from the Mexican border, or perhaps on the Papago Indian Reservation which is also in Pima County. Manypenny was indicted in Pima County Superior Court for assault with a deadly weapon or instrument, a violation of A.R.S., Section 13-249 A and B. The case was removed to this Court pursuant to Title 28, United States Code, Section 1442(a)(1). The defendant was tried, and the jury returned a verdict of guilty. When defendant moved for new trial and for arrest of judgment, the Pima County Attorney failed to respond, and the motion to arrest judgment was granted. The County Attorney immediately moved for reconsideration, and this Court granted the motion.

The motion for arrest of judgment contended that the State of Arizona, and therefore this Court on removal, had no criminal jurisdiction over the land within either the Organ Pipe National Monument or the Papago Indian Reservation. Defendant also contended that the area of immigration is preempted by the United States and that his prosecution is an attempt at regulation of immigration, and, therefore, void. He argued further that the federal criminal laws must be applied to his acts instead of Arizona laws, Title 18, United States Code, Section 13, and that his acts as a federal officer are not within the jurisdiction of the State.

The Court finds on reconsideration that Arizona has criminal jurisdiction over both the Organ Pipe National Monument and the Papago Indian Reservation, that the Arizona statute is not void as applied to the area of immigration and that the Arizona criminal statute can be used as to events occurring on said lands. However, the Court also finds that officers acting under color of federal law have a perfect defense to state criminal prosecutions when their actions are honestly and reasonably believed to be necessary and proper in carrying out their federal duties and that such defense is here established.

Jurisdiction over the place of occurrence will be discussed first. The general rule is that a state has complete jurisdiction over the land within its exterior boundaries. United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1881); People v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946). There are three exceptions. The first is provided by Article I Section 8, Clause 17 of the Constitution of the United States. The United States has exclusive jurisdiction over land "purchased" by the United States "by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings". Since the land here in question was not "purchased" and is not for one of the specified purposes, this first exception is admitted by defendant not to apply. Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 5 S.Ct. 995, 29 L.Ed. 264 (1885). Some examples of such land in Arizona are provided by A.R.S., Sections 26-251 through 253 (land for military purposes) and Sections 37-611 through 613 (land for penal purposes).

A second exception is recognized when a state affirms the United States' retention of exclusive jurisdiction at the time it is admitted into the Union. Defendant strongly urges the argument that Arizona has so affirmed in Section 20 of its Enabling Act, 36 Stat. 557, 1 A.R.S., p. 81 and Article XX, Paragraph Fourth of Arizona's Constitution, 1 A.R.S. p. 181:

"Fourth. The people inhabiting this State do agree and declare that they forever disclaim all right and title to the unappropriated and ungranted public lands lying within the boundaries thereof and to all lands lying within said boundaries owned or held by any Indian or Indian tribes, the right or title to which shall have been acquired through or from the United States or any prior sovereignty, and that, until the title of such Indian or Indian tribes shall have been extinguished, the same shall be, and remain, subject to the disposition and under the absolute jurisdiction and control of the Congress of the United States."

Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419 (1896), interpreted a clause from the Enabling Act of Montana which is very similar to Arizona's Enabling Act and which appears indistinguishable for the purposes of this case. The holding of the case was that the United States had no jurisdiction over a non-Indian who murdered a non-Indian on an Indian reservation and that Montana did have jurisdiction. The reasoning of the case was that the "absolute jurisdiction" language of the Act was intended only to preserve the complete control of the United States over the title to Indian lands owned by Indians outside of reservations. The United States had an interest in preventing the State of Montana from frustrating federal limitations on the alienability of Indian lands.

Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573, held that the disclaimer of "right and title" in a similar clause by Alaska was a disclaimer of proprietary rather than governmental interest. It held further that "absolute" means undiminished, not exclusive.

These cases show that Arizona did not disclaim governmental interests over any land within its external boundaries by this clause in its Constitution. Even a military reservation comes under the jurisdiction of the state on statehood where there is no express savings clause to prevent it. Fort Leavenworth R. Co. v. Lowe, supra. For an example of such an express savings clause, see, the Act admitting the State of Wyoming into the Union, 26 Stat. 222 and Title 16, United States Code, Section 24 (Yellowstone National Park).

The third exception is the cession of jurisdiction to the United States by an individual state after statehood. Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S.Ct. 1009, 82 L.Ed. 1502 (1938). Yosemite National Park came under the qualified jurisdiction of the United States by this means in 1919. Many National Parks and National Monuments are now under the "sole and exclusive" jurisdiction of the United States. E.g., Title 16, United States Code, Sections 95, 117, 124, 157 and many others. No such cession of jurisdiction was ever made by Arizona until 1976 after the events in this case. See 1964 U.S.Code Cong. & Admin. News, p. 3923 recognizing the facts as they then stood; and A.R.S. Section 37-620, Laws 1976, Ch. 54, Section 1 which cedes concurrent rather than exclusive jurisdiction to the United States over the Organ Pipe Cactus National Monument and other parks, monuments, forests and dams.

Since Arizona does have jurisdiction over the land in question, its power to prosecute an Immigration Officer acting under color of his federal duty must be examined. Further, since the Arizona criminal law concerning assault with a deadly weapon is not a direct attempt to regulate immigration, and since it expresses legitimate State concerns, the preemption doctrine does not prevent the applicability of this law unless it is an unreasonable burden on the implementation of federal immigration policy. Cf., Southern Pac. Co. v. State of Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). This is apparently the exact intent of Congress. Title 8, United States Code, Section 1358 provides for local jurisdiction within immigration stations to enforce state criminal laws. The reasonableness of the burden in this situation appears to this Court to involve many of the same considerations as the official duty doctrine protecting federal officers as set out in In re Neagle, 135...