State v. Ivory

• Decision Date: 02 July 1990
• Docket Number: No. 89-5123,89-5123
• Citation: 906 F.2d 999
• Parties: STATE of North Carolina, Plaintiff-Appellant, v. Lemans L. IVORY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 999

906 F.2d 999

STATE of North Carolina, Plaintiff-Appellant, v. Lemans L. IVORY, Defendant-Appellee.

No. 89-5123.

United States Court of Appeals Fourth Circuit.

Argued Dec. 7, 1989.

Decided July 2, 1990.

William Dale Talbert, Asst. Atty. Gen., North Carolina Dept. of Justice, Raleigh, N.C., argued (Lacy H. Thornburg, Atty. Gen., North Carolina Dept. of Justice, Raleigh, N.C., on brief), for plaintiff-appellant.

Rudolf A. Renfer, Jr., Asst. U.S. Atty., Raleigh, N.C., argued (Margaret Person Currin, U.S. Atty., Raleigh, N.C., on brief), for defendant-appellee.

Before PHILLIPS and WILKINSON, Circuit Judges, and SPENCER, United States District Judge for the Eastern District of Virginia, sitting by designation.

WILKINSON, Circuit Judge:

The question before us is whether a United States Marine may remove to federal court, pursuant to 28 U.S.C. Sec. 1442(a)(1), his state criminal prosecution arising out of an accident which occurred while he was driving in a military convoy. We agree with North Carolina's contention that Ivory's ground for removal was insufficient under Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989), because he did not aver a federal defense. We reverse the judgment of the district court and direct it to remand this case for further proceedings in the North Carolina courts.

I.

The state charges against Lemans Ivory, a United States Marine, resulted from an accident on August 16, 1988, while Ivory was driving a truck in a military convoy. The convoy was returning from Cherry Point to Camp LeJeune, North Carolina, traveling west on four-lane Highway 24. It proceeded to make a left hand turn across the eastbound lanes of the highway onto Highway 172. The first twenty trucks of the convoy made the turn without incident. Ivory approached the intersection traveling at about five to seven miles per hour, and accelerated through it without stopping. His truck collided with a car in the inside, eastbound lane of Highway 24 causing its driver, Jason Pickett, to be fatally injured.

On August 17, 1988, Ivory was charged with unintentional death by motor vehicle and failure to yield the right of way in violation of N.C.Gen.Stat. Secs. 20-141.4 and 20-155, respectively. The second charge was subsequently dismissed. Ivory then petitioned the Eastern District of North Carolina for removal pursuant to 28 U.S.C. Sec. 1442(a)(1). The state did not file a motion to remand, and the removal petition was granted on October 11, 1988. ¹

Ivory then moved to dismiss the charge on the ground that the state prosecution violated the Supremacy Clause. Following two evidentiary hearings, the United States magistrate concluded that Ivory was entitled to immunity from state prosecution because he was an agent of the federal government acting under the laws of the United States and because he believed that his conduct was necessary and justifiable. See In re Neagle, 135 U.S. 1, 75, 10 S.Ct. 658, 672, 34 L.Ed. 55 (1890). The district court adopted the magistrate's proposed findings of fact and recommended conclusions of law and granted defendant's motion to dismiss.

North Carolina appeals.

II.

Ivory contends that the removal of his case to federal court was proper because, at the time of the accident which gave rise to the state charges, he was driving in a military convoy and believed that it was safe to enter the intersection with his convoy truck. We hold, however that these allegations do not constitute a federal defense as required to support removal to federal court under Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). ²

In Mesa, United States Postal Service employees attempted to remove to federal court their state criminal prosecutions for traffic violations which arose in the course of their mail delivery duties. One employee had been charged with misdemeanor-manslaughter after she struck and killed a bicyclist with her mail truck. The second individual received a ticket for speeding and failing to yield the right-of-way after his mail truck collided with a police car. See California v. Mesa, 813 F.2d 960, 961 n. 2 (9th Cir.1987). The postal workers argued that they were entitled to remove under the federal officer removal statute, 28 U.S.C. Sec. 1442(a)(1), because "the state charges arose from ... accident[s] ... which occurred while defendant[s] [were] on duty and acting in the course and scope of [their] employment with the Postal Service." Mesa, 109 S.Ct. at 962. ³ The Supreme Court held, however, that a "scope of employment" defense was insufficient by itself to support removal. It stressed that Sec. 1442(a) is a pure jurisdictional statute which requires averment of a colorable federal defense in order to satisfy the requirement of Article III that a case arise under the Constitution or laws of the United States. Id. at 964, 968. Since defendants "ha[d] not and could not present an official immunity defense to the state criminal prosecutions brought against them," the Court held that they were not permitted to remove their cases to federal court. Id. at 967.

Like the Postal Service workers in Mesa, Ivory has not alleged a defense of federal immunity. ⁴ Ivory was subject to local traffic laws concerning rights of way, speed limits and the like, Johnson v. Maryland, 254 U.S. 51, 56, 41 S.Ct. 16, 65 L.Ed. 126 (1920); Lilly v. West Virginia, 29 F.2d 61, 64 (4th Cir.1928), and he has not alleged anything in the conduct of his federal responsibilities which justified his violation of these laws. See Maryland v. Soper, 270 U.S. 9, 34, 46 S.Ct. 185, 191, 70 L.Ed. 449 (1926); People v. Zidek, 691 F.Supp. 1177, 1178 (N.D.Ill.1988). To the contrary, as part of his standing orders as a military driver, Ivory was instructed that all motor transports were to comply with local traffic laws. Similarly, at his pre-convoy briefing, Ivory received orders to obey all traffic rules and to maintain the convoy only if oncoming vehicles yielded the right of way. Otherwise, he was to stop and let the other vehicles pass through safely.

Many of the facts in dispute here do not speak to the federal character of the incident and are simply matters for the state courts to resolve. North Carolina contends, for example, that Ivory failed to yield the right of way, as he was required by state traffic laws and his military orders to do. The state points out that there were no functioning traffic lights, signalmen or other mechanisms at the accident intersection that allowed the convoy to acquire the right of way. Thus, drivers of oncoming vehicles had no legal obligation to give up the right of way and every reason to believe that the military drivers would yield as the law required them to do. Ivory, on the other hand, asserts that because two cars in the eastbound lanes of Highway 24 had stopped, he assumed all other oncoming traffic would do the same. While this assertion may well serve as a defense to the state prosecution, it does not establish the basis of a claim of federal immunity. We conclude that Ivory's prosecution under local traffic laws was based on conduct "not justified by his federal duty," Soper, 270 U.S. at 33, 46 S.Ct. at 190, but, if anything, in conflict with it. Compare Montana v. Christopher, 345 F.Supp. 60 (D.Mont.1972) (officer immune from suit under state traffic laws where he had reported malfunctioning truck to superiors but was ordered to use it to complete emergency snow removal in connection with a flood).

Of course, an "officer need not win his case before he can have it removed," Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 1816, 23 L.Ed.2d 396 (1969), but under Mesa he must allege facts that would support a colorable immunity defense if those facts were true. Federal immunity has never extended so far as to " 'place [government officials] beyond the reach of the criminal law.' " Mesa, 109 S.Ct. at 967 (quoting Imbler v. Pachtman, 424 U.S. 409, 429, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976)). The " 'regulation of crime is pre-eminently a matter for the States,' " and there is a " 'strong judicial policy against federal interference with state criminal proceedings.' " Id., 109 S.Ct. at 969 (quoting Arizona v. Manypenny, 451 U.S. 232, 243, 101 S.Ct. 1657, 1665, 68 L.Ed.2d 58 (1981)). Every state has an interest in protecting its citizens from drivers who are reckless or intoxicated; that interest does not vanish whenever the driver happens to be a federal employee in a government car or a military truck. Where no colorable federal defense is averred, state prosecutors should not be forced to "choose between prosecuting traffic violations hundreds of miles from the municipality in which the violations occurred or abandoning those prosecutions." Mesa, 109 S.Ct. at 969. Moreover, if every traffic violation involving a military driver could be removed to a federal forum, it would quickly transform these tribunals into local traffic courts. See Georgia v. Waller, 660 F.Supp. 952, 954 (M.D.Ga.1987); Virginia v. Harvey, 571 F.Supp. 464, 465 (E.D.Va.1983).

Section 1442, of course, operates under the Supremacy Clause to displace state interests in the prosecution of traffic offenses, but only to the extent that its constitutionally-derived requirements are met. In the unusual case, where some special exigency exists, the state interest in regulation of its highways must give way under Sec. 1442 to the federal interests implicit in any defense of immunity. For example, state law will not apply to federal officials "engaged in the performance of a public duty where speed and the right of way are a necessity." Lilly, 29 F.2d at 64. However, Ivory has alleged nothing which justified his making the left hand turn without yielding the right of way to oncoming vehicles. The convoy was returning from a routine transport of marines; nothing resembling an emergency existed. Ivory had no reason to accelerate through the intersection. His orders...