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.