State v. Kleinert

• Citation: 855 F.3d 305
• Decision Date: 20 April 2017
• Docket Number: No. 15-51077,15-51077
• Parties: STATE of Texas, Plaintiff–Appellant v. Charles KLEINERT, Defendant–Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

855 F.3d 305

STATE of Texas, Plaintiff–Appellant

v.Charles KLEINERT, Defendant–Appellee

No. 15-51077

United States Court of Appeals, Fifth Circuit.

FILED April 20, 2017

Rosa Theofanis, Michael Scott Taliaferro, Assistant District Attorney, District Attorney's Office, Austin, TX, for Plaintiff–Appellant.

Randy Tom Leavitt, Law Office of Randy T. Leavitt, Eric J.R. Nichols, Beck Redden, L.L.P., Austin, TX, Eric J.R. Nichols, William R. Peterson, Beck Redden, L.L.P., Houston, TX, for Defendant–Appellee.

Gary Lynn Bledsoe, Bledsoe Law Firm, L.L.P., Robert Stephen Notzon, Law Office of Robert S. Notzon, Austin, TX, for Amici Curiae Austin Branch of the NAACP and Texas State Conference of NAACP Branches.

H. Thomas Byron, III, U.S. Department of Justice, Washington, DC, for United States.

Richard Lee Swick, Managing Senior Counsel, Swick & Shapiro, P.C., Washington, DC, for Amicus Curiae FBI Agents Association.

Michael L. Rickman, CLEAT, Austin, TX, William J. Johnson, National Association of Police Organizations (NAPO), Alexandria, VA, for Amicus Curiae National Association of Police Organizations.

Michael L. Rickman, CLEAT, Austin, TX, for Amicus Curiae Combined Law Enforcement Associations of Texas.

Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

The District Attorney of Travis County, Texas, sought to prosecute federal task force officer Charles Kleinert for unintentionally shooting an unarmed suspect as Kleinert tried to arrest him. Invoking his status as a federal officer, Kleinert removed the state prosecution to federal court and asked the district court to dismiss the indictment. Kleinert argued that under the Supremacy Clause, he was immune from prosecution by the local district attorney because he acted in his capacity as a federal officer and his conduct was otherwise lawful. After a three-day evidentiary hearing at which the district attorney's office presented little evidence to rebut Kleinert's version of events, the district court—which the parties agreed would resolve all facts relevant to Kleinert's immunity defense—dismissed the indictment. Because the district court properly exercised jurisdiction and properly applied the doctrine of Supremacy Clause immunity, we affirm.

I

Charles Kleinert began working for the Austin Police Department in 1994. In 2011, the FBI specially deputized Kleinert according to Titles 21 and 28 of the United States Code. These deputations "charged [Kleinert] with the duties of investigating violations of the ... criminal laws of the United States...." After his deputations, Kleinert worked full-time for the FBI's Central Texas Violent Crimes Task Force. He reported to work each day at an FBI agency, received top-secret security clearance from the federal government, was supervised by a superior FBI agent, and used FBI-issued equipment. As a task force officer, Kleinert's day-to-day duties included investigating federal crimes—specifically, bank robberies.

On the morning of July 26, 2013, someone robbed Benchmark Bank in Austin, Texas. A bank employee described the robber as an older white man. The Central Texas Violent Crimes Task Force, including Kleinert, investigated the robbery. As part of the same-day investigation, Kleinert, in plain clothes, went to the bank to obtain surveillance footage from two employees, Sheila Bostick and Kimberly Menge. Although it was normal business hours, a sign on the front door indicated the bank was temporarily closed (due to the morning's robbery). While Kleinert, Bostick, and Menge discussed the robbery in Menge's office, a black man—later identified as 32–year-old Larry Jackson—came to the bank's front door. Seemingly realizing the bank was closed, Jackson appeared to leave, walking away to the north side of the bank, but returned one minute later from the south side and pulled on the locked door again.

Thinking she could point Jackson to an open bank nearby, Bostick approached the front door to talk to him, while Kleinert and Menge remained in Menge's office where they could see and hear Bostick's conversation with Jackson. Jackson identified himself as a customer named "William Majors," and asked to withdraw funds from "his" (Majors's) account. Both Bostick and Menge knew that Jackson was not William Majors; the two women knew Majors because he was not only a large account holder, but also close friends with the bank's president. Uncomfortable with Jackson's representations, Bostick left Jackson outside and asked Kleinert to talk to him.

According to Kleinert,¹ he went outside "to detain Mr. Jackson and question him ... about what he was attempting to do." Kleinert recounted his conversation with Jackson as follows:

I asked him if he was Mr. Majors. He said he was not. I said, "What are you doing here?" He said, "I'm trying to get money out of the bank." And I said, "But you're not Mr. Majors." And he said he was Mr. Majors'[s] brother. So I said, "Well let's call up your brother and see what's going on." He never attempted to make that call [and] that led me to believe that he was fabricating that as well.... He had the phone up to his face, and ... said, "Mom, is the tow truck there yet?" And I said, "Were you involved in a collision?" And he said, "Yeah I was. That's why I'm here. I need to get money for a tow truck and for a rental car." And I said, "Well, where was it?" And he said that it was on I–35. And in looking at him dressed the way he was, dark blue shirt, I asked [him], "How did you get here?" And he said he walked. Well, I knew on that hot day, he did not look like he had been perspiring at all. And if he had walked from I–35, he definitely would have been.

After this exchange, Jackson "took off running," and Kleinert "immediately gave chase," catching up to Jackson under a traffic bridge that travels over a large grassy area with footpaths. As Kleinert neared Jackson from behind, he "pulled [his] weapon, and ... yell[ed]: ‘Get down on the ground. Get down on the ground.’ " Jackson "froze" for a moment before running away again. Kleinert chased Jackson and was "able to reach out with [his] left hand and grab [Jackson] by the shirt[.]" Kleinert still held his gun in his right hand. According to Kleinert, despite his hold on Jackson's shirt, Jackson continued to run with Kleinert in tow and tried to climb up a rocky incline leading to the traffic bridge. As Jackson tried to climb the incline, Kleinert used the "meaty part" of his right hand—the hand holding his gun—to hit Jackson twice on the lower back with a hammer-like motion and yelled, "Get down. Get down." When Kleinert tried to "hammer-fist strike" Jackson a third time, Jackson "came back towards [Kleinert] and knocked [Kleinert] down." As they fell, Kleinert accidentally pulled the trigger of his gun, firing one bullet into Jackson's neck, killing him.²

On May 12, 2014, a Travis County grand jury indicted Kleinert for manslaughter. The indictment charges that he "recklessly cause[d]" Jackson's death

by striking and by attempting to strike Larry Jackson ... while holding a loaded firearm[,] by seizing and by attempting to physically control Larry Jackson while holding a loaded firearm, and by attempting to seize and physically control Larry Jackson without maintaining a distance between himself and Larry Jackson that was sufficient to ... holster his firearm[.]

Relying on 28 U.S.C. § 1442, the "federal officer removal" statute, Kleinert timely removed the state prosecution to federal court. After a hearing to evaluate its jurisdiction, the district court determined that removal was proper. On June 26, 2015, Kleinert asked the district court to dismiss the indictment according to Rule 12(b)(1) of the Federal Rules of Criminal Procedure.³ Kleinert argued that under the Supremacy Clause, he was immune from prosecution by the local district attorney for conduct he undertook as a federal officer. Kleinert and the District Attorney ("the State") agreed that, when deciding Kleinert's motion to dismiss, the district court would "resolve any and all factual issues related" to his immunity defense. The State specifically "waive[d] the right to have any and all such factual issues be decided by a jury." After a three-day evidentiary hearing, the district court determined that Kleinert was entitled to Supremacy Clause immunity and dismissed the indictment. The State now appeals, arguing that the district court lacked subject matter jurisdiction and erroneously applied the doctrine of Supremacy Clause immunity.

II

A

We review a district court's determination of subject matter jurisdiction de novo. United States v. Kaluza , 780 F.3d 647, 653 (5th Cir. 2015). We review factual findings underlying that determination for clear error. Funeral Consumers All., Inc. v. Serv. Corp. Int'l , 695 F.3d 330, 336 (5th Cir. 2012). Notably, "federal officer removal" under 28 U.S.C. § 1442 is unlike other removal doctrines: it "is not ‘narrow’ or ‘limited.’ " Willingham v. Morgan , 395 U.S. 402, 406, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969) (quoting Colorado v. Symes , 286 U.S. 510, 517, 52 S.Ct. 635, 76 L.Ed. 1253 (1932) ). "Although the principle of limited federal court jurisdiction ordinarily compels us to resolve any doubts about removal in favor of remand," we review a district court's decision to maintain federal-officer jurisdiction "without a thumb on the remand side of the scale." Savoie v. Huntington Ingalls, Inc. , 817 F.3d 457, 462 (5th Cir. 2016).

B

The federal-officer-removal statute provides that "any officer ... of the United States or of any agency thereof" prosecuted "for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals" may remove the action to federal court. 28 U.S.C. § 1442(a)(1). Although not explicit in the text of the statute, the officer must also allege "a colorable federal defense" to satisfy Article III's "arising...