No state prosecutions of fed agents

Why state officials can't arrest, prosecute, or otherwise impede federal agents who violate the Constitution

In response to a request from a county sheriff to South Carolina Attorney General Alan Wilson, the AG issued the opinion that if federal law enforcement officers attempt to enforce unconstitutional gun laws or even confiscate existing weapons, then neither state law nor state law enforcement officials can stand in the way. Going further, Wilson suggests that, if state or local law enforcement officials do attempt to impede federal assaults on the rights of South Carolinians, these state law enforcement officials would themselves be subject to criminal prosecution.

Yet Wilson’s opinion goes even further than stating that state and local law enforcement are unable to actually protect the rights of their citizens from federal assaults, it claims that federal agents are granted a type of immunity from state prosecution even if they are clearly violating Constitutional rights.The opinion states that “federal agents are immune from state prosecution even when their conduct violated internal agency regulations or exceeded their express authority.”


AG Alan Wilson is correct as a matter of how we can expect any resistance by state agents to be decided in federal court, to which it would be removed by the removal jurisdiction. However, the time has long since passed when we can expect federal courts to comply with the Constitution as originally understood. Our choices are limited to elections, to armed resistance, in which we will lose unless it grows into a nationwide revolution, or to passive non-cooperation, as I set forth at http://nullifynow.net/ which is more likely to prevail in the long run if we keep the pressure steady.

The case that is usually cited for that is In re Neagle, 135 U.S. 1 (1890), which held, among other things, that a federal officer cannot be prosecuted in a state court for acts done in the performance of his duties. It also suggested that the President has inherent powers not limited by the powers delegated to him under the Constitution, which was discussed in the dissent in the case. The line of precedents built on this case have established not only official immunity for federal agents from both state and federal laws, but alleged authority to criminally prosecute anyone who attempts to interfere with them, even when they are acting without lawful authority. See this commentary by Walker Lewis.

However, the Court has held that the feds may not commandeer the cooperation of state agents, in Mack and Printz v. United States, 521 U.S. 898 (1997). That means that a refusal to cooperate may not be considered interference subject to prosecution, and that in those situations in which the feds need the cooperation of state agents, a refusal to cooperate might raise their costs and risks enough to discourage continued enforcement. Since the feds often need no cooperation from state agents, in such situations resistance falls to non-cooperation by individuals, including those who may serve on a jury, provided that a case ever gets before a jury. Overcharging, plea bargaining, fabricated evidence, testilying, and inadequate defense counsel combine to prevent that in most cases.