# Petition of Lloyd Clifton for a Writ of Habeas Corpus v. Gene Cox, Sheriff of Humboldt County, California > Court of Appeals for the Ninth Circuit · March 4, 1977 · 549 F.2d 722 URL: https://www.frixlaw.com/law-library/cases/9463505 ## Case - **Full name:** Petition of Lloyd CLIFTON for a Writ of Habeas Corpus, Petitioner-Appellee, v. Gene COX, Sheriff of Humboldt County, California, Respondent-Appellant - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** March 4, 1977 - **Citations:** 549 F.2d 722; 1977 U.S. App. LEXIS 14455 - **Precedential status:** Published - **Opinion:** Dissent by Merrill - **Judges:** Browning, Merrill, Lay - **Cited by:** 52 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9463505 ## How later opinions describe it (automated extraction) - finding that the Court could not “on the basis of the overall record conclude that the[] findings [of the district court judge] are clearly erroneous” - noting that immunity “does not require [an officer] to show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be” - observing that when the defense applies “the prosecution has no factual basis upon which to prosecute [the defendant] and the entire proceeding is a nullity” ## Opinion text *731 MERRILL, Circuit Judge, dissenting: I respectfully dissent. The question under Ex parte Neagle, 135 U.S. 1, 75 , 10 S.Ct. 658, 672 , 34 L.Ed. 55 (1890), is whether Clifton was “held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as [agent] of the United States, and if, in doing that act, he did no more than what was necessary and proper for him to do * * Neagle holds, under the supremacy clause of the Constitution, that if Clifton was so acting pursuant to his authority and duty under federal law, then the state cannot hold such conduct to be criminal. As a matter of law, a crime has not been committed. Sixteen years after Neagle, in United States ex rel. Drury v. Lewis, 200 U.S. 1 , 26 S.Ct. 229 , 50 L.Ed. 343 (1906), the question was before the Court again. There the Court pointed out that federal habeas corpus jurisdiction to free a state prisoner pri- or to trial should not be freely exercised. It stated: “It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court, and subject to its laws, may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the state, and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a state be finally prevented.” 200 U.S. at 7 , 26 S.Ct. at 231 . The nature of the question before the federal habeas corpus judge was discussed: “The circuit court was not called on to determine the guilt or innocence of the accused. That was for the state court if it had jurisdiction * * Id. at 8 , 26 S.Ct. at 232 . 1 This distinction should, I feel, be kept in mind. It is not for the federal habeas judge to decide whether Clifton acted reasonably in responding as he did to the extraordinary pressures imposed by the situation. That question is for the criminal forum. The question for the habeas judge is whether the manner in which Clifton responded was authorized by the law of the United States; whether it was his duty as agent of the Bureau of Narcotics and Dangerous Drugs to do what he did. Where the authority to follow certain procedures is not the subject of explicit instructions, the reasonableness of the response to the pressures of the moment may well figure in the determination of authority by the habeas judge. Here, however, the answer to the question of authority is given by the Bureau regulations quoted in footnote 7 of Judge Lay’s opinion. Here the Bureau has anticipated the situation in which Clifton found himself and has explicitly forbidden him to act in the manner in which he acted. The language is categorical: “Agents will not fire at fleeing suspects or fleeing defendants.” The intent can hardly be more plainly expressed. Other language in the regulations (“Except to protect his own life or that of some other person”; “Agents will not remain passive in a threatening situation”) cannot be read by me to refer to anything other than a present threat. They cannot be read to include the hazards presented by some future confrontation without reading all meaning of the explicit language prohibiting firing at fleeing persons. I would suppose that every suspect or defendant who successfully escapes arrest can be expected *732 to pose a threat to officers in the process of capture. Clifton, it is true, was sent out to place Dickenson under arrest and everything done by Clifton was with the purpose of accomplishing that end. It could, therefore, be said that his conduct was within his “scope of authority” as that phrase is used in Judge Lay’s opinion. Neagle, however, uses “authority” and “duty” in a much narrower sense. It addresses the question of what specifically was done — the manner in which a concededly proper objective was sought to be achieved. It is to this inquiry that the regulation explicitly is directed. It may well be that Clifton, under the pressures of the moment, sincerely believed that he was acting properly and in accordance with the regulation. But, again, this is not the question for the habeas judge. If anything, this goes to the question of criminal guilt under state law. That such an inquiry is relevant serves only to establish that conduct in violation of the regulation is not per se criminal. It is, nevertheless, expressly proscribed and thus unauthorized. I would reverse. . A federal officer need not submit to a state court forum for trial of the criminal action against him, however. 28 U.S.C. § 1442 (a)(1) provides that a civil action or criminal prosecution commenced against him in a state court may be removed to the district court “embracing the place wherein it is pending” by “[a]ny officer of the United States * * * for any act under color of such office or on account of any * * * authority claimed under any Act of Congress for the apprehension * * * of criminals * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463505. Public record. Not legal advice.