Can state officials arrest violators of federal crimes?

Great Debates
1

One of the challenges and common arguments against the new Arizona immigration law is that it is supposed to be a federal and not a state issue.

Does this apply in other areas of federal law? If the Arizona police find people counterfeiting money, destroying postal boxes, pirating music, raising a standing army, or plotting treason, must they stand by smug in the belief that the feds should deal with it themselves?

I’m not trying to be snarky, but seriously trying to equate the scenarios.

2

As phrased, this is a GQ.

But I understand your thinking.

IN any event, the answer is that the law is not clear. Ultimately a prosecution of an individual charged with violatiing federal law must be in response to an indictment issued by a federal grand jury. That means that federal officials, and only federal officials, may prosecute federal crimes.

However, the federal circuit cuorts have split on the question of whether state law enforcement officials may arrest for violations of federal statutes. At least two federal circuits have held that state law enforcement has “inherent authority” to arrest for federal crimes. But it’s by no means a settled question.

In Arizona, state officials attempted to dodge this problem by defining the mere presence of an illegal alien on private or public land in Arizona as trespassing, thus creating a state crime out of a federal one.

3

Surely any officer has the power to make a citizen’s arrest for a crime not in his jurisdiction? Just the same as any other citizen.

4

Nice analysis of the problem; kudos! Petty nitpick: second paragraph’s reference to Federal grand juries is only for Federal felonies and serious misdemeanors. Disturbing the peace in D.C., speeding on a military reservation or national park lands, etc., would be examples of petty Federal crimes not requiring grand jury indictment to be prosecutable. IIRC, there are Federal procedural statutes granting concurrent jurisdiction to Federal and state law enforcement for such offenses occurring on Federally reserved land within states, such as national parks and military bases. This may be relevant to the bigger question.

5

Thanks. So where is the constitutional question? The state of Arizona is not enacting new laws regarding naturalization; they are simply enforcing the federal ones and adding a new statute of their own that is related to it.

Would anyone seriously argue, for example, that since the murder of the President is a federal crime, that state authorities would be powerless to pass their own murder laws as it relates to the President? Or not be able to thwart an assassination plot?

I guess I’m just not understanding the constitutional defect that is being alleged. I understand that people may honestly feel that it is a bad law and an ill-advised law, but what is the specific constitutional defect?

6

Unless federal immigration law has been “dowloaded” to state judiciaries via the very statutes you referenced, it’s probably not all that relevant.

7

In addition to Bricker’s answer, just because a federal statute may deal with a very specific crime, such as counterfeiting money, doesn’t mean that the underlying nature of the crime could not be covered by another non-specific state criminal statute. For instance, to take Arizona as an example, either possessing or manufacturing counterfeit money would be considered forgery:

[QUOTE=Arizona Revised Statute 13-2002]
13-2002. Forgery; classification

A. A person commits forgery if, with intent to defraud, the person:

  1. Falsely makes, completes or alters a written instrument; or

  2. Knowingly possesses a forged instrument; or

  3. Offers or presents, whether accepted or not, a forged instrument or one that contains false information.

B. The possession of five or more forged instruments may give rise to an inference that the instruments are possessed with an intent to defraud.

C. Forgery is a class 4 felony.
[/QUOTE]

Some federal crimes, such as treason or sedition, obviously likely don’t have state counterparts, though if the proposed treason involves some other crime such as homicide, then the homicide and the treason itself may be charged as a kind of conspiracy, depending on the specifics.

8

First, there is a question of preemption. Whether matters of immigration are exclusively federal. The second issue is more speculative and those denouncing this law claim a violation of due process and equal protection in the 14th Amendment.

9

Most states have their own laws dealing with most of these. The Arizona constitution has a clause dealing with standing armies:

Article 2 Section 26
*
The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men. *

I’m not sure to what extent that takes it to, though. Could it mean a security company that has armed guards is violating the state constitution?

10

What might be the analytical difference between

  • A state official observing a violation of federal law and detaining suspects and preserving evidence until federal law enforcement officials arrive

  • A state statute mandating that all state law enforcement officers to ascertain the status of a person or activity under federal law whenever there is suspicion that there might exist some condition that violates federal law? (My understanding is that the Arizona law requires an officer to determine legal presence when he or she suspects that someone might be an illegal immigrant.)

I suspect there’s not enough settled law on this question.

11

I guess that is my point. Since states enact laws that mirror federal laws all of the time, why is immigration such a law that must be hands-off, feds only, AZ troopers look the other way unless some FBI agent stumbles into the mix?

How about:

[QUOTE=Constitution]
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
[/QUOTE]

By this analogy, should Arizona pass a law against gasoline dealers fraudulently altering their pumps to dispense 9/10 gallon when they read 1 gallon, AZ would be interfering with federal regulation.

12

fixing a standard of weight/measurement doesn’t mean enforcing it. it means fixing the standard, so you don’t have each state defining a gallon as different volumes.

13

**Can state officials arrest violators of federal crimes?
**

In a nutshell, yes. Assume that I, as a deputy sheriff, gain lawful entry to a house (for whatever reason). While I’m in there, I see a press, paper, ink and what appears to be counterfeited money. I am obligated to arrest anyone in the house.

Now, they won’t be prosecuted at a state level, and I will turn my prisoner(s) over to federal agents ASAP. But I will make the initial arrest.

14

I agree with Clothahump. In the real world and IME, the extent to which state officials will arrest violators of federal crimes will largely depend on the diligence of the officials, the seriousness and obviousness of the offense, and the policy (if any) of their department.

Assassination of the President wasn’t a violation of Federal law in 1963, incredibly enough (it is now). So Lee Harvey Oswald was arrested by Dallas police and would likely have been prosecuted for murder in a Texas state court, had he lived.

15

On the flip side, in California, marijuana is legal to have for medicinal purposes, but Federal law still prohibits the sale of such. (IIRC, the Feds have pretty much stated that they will not be as vigorous in enforcing this statute, right?)

I imagine that any California state level law enforcement arresting someone for the Federal marijuana violation is not making a career enhancing decision.

I don’t believe the state level law enforcement officer can enforce Federal laws. I assume he/she needs some local law justification for the use of the LE powers. IMO, IANAL.

16

It does not appear that this made it into the final draft of the legislation, so this is a moot point.

17

It’s still in there.

[QUOTE=SB 1070]
Sec. 3. Title 13, chapter 15, Arizona Revised Statutes, is amended by adding section 13-1509, to read:
13-1509. Trespassing by illegal aliens; assessment; exception; classification
A. IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF TRESPASSING IF THE PERSON IS BOTH:

  1. PRESENT ON ANY PUBLIC OR PRIVATE LAND IN THIS STATE.
  2. IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a).
    B. IN THE ENFORCEMENT OF THIS SECTION, THE FINAL DETERMINATION OF AN ALIEN’S IMMIGRATION STATUS SHALL BE DETERMINED BY EITHER:
  3. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN’S IMMIGRATION STATUS.
  4. A LAW ENFORCEMENT OFFICER OR AGENCY COMMUNICATING WITH THE UNITED
    STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES BORDER PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
    C. A PERSON WHO IS SENTENCED PURSUANT TO THIS SECTION IS NOT ELIGIBLE FOR SUSPENSION OR COMMUTATION OF SENTENCE OR RELEASE ON ANY BASIS UNTIL THE SENTENCE IMPOSED IS SERVED.
    D. IN ADDITION TO ANY OTHER PENALTY PRESCRIBED BY LAW, THE COURT SHALL ORDER THE PERSON TO PAY JAIL COSTS AND AN ADDITIONAL ASSESSMENT IN THE
    FOLLOWING AMOUNTS:
  5. AT LEAST FIVE HUNDRED DOLLARS FOR A FIRST VIOLATION.
  6. TWICE THE AMOUNT SPECIFIED IN PARAGRAPH 1 OF THIS SUBSECTION IF THE
    PERSON WAS PREVIOUSLY SUBJECT TO AN ASSESSMENT PURSUANT TO THIS SUBSECTION.
    E. A COURT SHALL COLLECT THE ASSESSMENTS PRESCRIBED IN SUBSECTION D OF THIS SECTION AND REMIT THE ASSESSMENTS TO THE DEPARTMENT OF PUBLIC SAFETY, WHICH SHALL ESTABLISH A SPECIAL SUBACCOUNT FOR THE MONIES IN THE ACCOUNT ESTABLISHED FOR THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION APPROPRIATION. MONIES IN THE SPECIAL SUBACCOUNT ARE SUBJECT TO LEGISLATIVE APPROPRIATION FOR DISTRIBUTION FOR GANG AND IMMIGRATION ENFORCEMENT AND FOR COUNTY JAIL REIMBURSEMENT COSTS RELATING TO ILLEGAL IMMIGRATION.
    F. THIS SECTION DOES NOT APPLY TO A PERSON WHO MAINTAINS AUTHORIZATION FROM THE FEDERAL GOVERNMENT TO REMAIN IN THE UNITED STATES.
    G. A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR, EXCEPT THAT A VIOLATION OF THIS SECTION IS:
  7. A CLASS 3 FELONY IF THE PERSON VIOLATES THIS SECTION WHILE IN POSSESSION OF ANY OF THE FOLLOWING:
    (a) A DANGEROUS DRUG AS DEFINED IN SECTION 13-3401.
    (b) PRECURSOR CHEMICALS THAT ARE USED IN THE MANUFACTURING OF METHAMPHETAMINE IN VIOLATION OF SECTION 13-3404.01.
    (c) A DEADLY WEAPON OR A DANGEROUS INSTRUMENT, AS DEFINED IN SECTION 13-105.
    (d) PROPERTY THAT IS USED FOR THE PURPOSE OF COMMITTING AN ACT OF
    TERRORISM AS PRESCRIBED IN SECTION 13-2308.01.
  8. A CLASS 4 FELONY IF THE PERSON EITHER:
    (a) IS CONVICTED OF A SECOND OR SUBSEQUENT VIOLATION OF THIS SECTION.
    (b) WITHIN SIXTY MONTHS BEFORE THE VIOLATION, HAS BEEN REMOVED FROM THE UNITED STATES PURSUANT TO 8 UNITED STATES CODE SECTION 1229a OR HAS ACCEPTED A VOLUNTARY REMOVAL FROM THE UNITED STATES PURSUANT TO UNITED STATES CODE SECTION 1229c.
    [/quote]
18

Take a look at the U.S. Constitution itself, Art. VI, cl. 3:

…the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…

I believe that part of that responsibility, consistent with their duty to their state or locality, is to enforce Federal law when the occasion or need arises.

19

of course, taking a textualist view… “this Constitution” is not federal law…

20

What?!? Of course is.

Art VI: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land….