# State of Ohio v. Charles E. Wright, Ohio State Highway Patrol Trooper

> Court of Appeals for the Sixth Circuit · April 30, 1993 · 992 F.2d 616

URL: https://www.frixlaw.com/law-library/cases/9484216

## Case

- **Full name:** STATE OF OHIO, Plaintiff-Appellee, v. Charles E. WRIGHT, Ohio State Highway Patrol Trooper, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 30, 1993
- **Citations:** 992 F.2d 616; 1993 U.S. App. LEXIS 9934; 1993 WL 133987
- **Precedential status:** Published
- **Opinion:** Dissent by Kennedy
- **Judges:** Merritt, Keith, Kennedy, Martin, Jones, Milburn, Guy, Nelson, Ryan, Boggs, Norris, Suhrheinrich, Siler, Batchelder
- **Cited by:** 24 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/9484216

## How later opinions describe it (automated extraction)

- noting that “federal officer” remand order was not appealable even though the district court had to “examine and discuss the federal defense”
- discussing the difference between “colorable” and “valid” with respect to a federal defense serving as a basis for removal under 28 U.S.C. § 1442

## Opinion text

KENNEDY, Circuit Judge,
dissenting.
I respectfully dissent from the majority’s conclusion that we have no jurisdiction to review by mandamus the District Court’s order of remand in this case. Although the statute 28 U.S.C. § 1447 (d) states that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,” the majority of the Supreme Court in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 , 96 S.Ct. 584 , 46 L.Ed.2d 542 (1976), placed a limitation on that outright prohibition. Where the remand is on grounds permitted by the statute there is no review. But where a district court has not only “erred in applying the requisite provision for remand but has remanded a case on grounds not specified in the statute and not touching the propriety of the removal,” the appellate court has the power to correct the error. Id. at 352 , 96 S.Ct. at 593 (emphasis added). In creating this limitation the Court looked to the predecessor sections of 1447(d), 28 U.S.C. § 71 and 28 U.S.C. § 80 . Section 71 provided that:
Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal from the decision of the district court so remanding such cause shall be allowed.
28 U.S.C. § 71 (emphasis added). While section 80 provided:
If in any suit commenced in a district court, or removed from a State court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said district court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just.
28 U.S.C. § 80 (emphasis added); see Hermansdorfer, 423 U.S. at 347 -48 n. 12, 96 S.Ct. at 591 n. 12. The Court concluded that until 1948, when section 1447(c) and (d) came into being,
district courts were authorized to remand cases over which they had no jurisdiction or which had been otherwise “improperly” removed, arid district court orders “so remanding” were not appealable. It was held that a ease remanded for want of jurisdiction under § 80, which itself contained no prohibition of appellate review, was an “improperly” removed case under § 71 and hence subject to the reviewability bar of that section. Employers Reinsurance Corp. v. Bryant, 299 U.S. 374 [ 57 S.Ct. 273 , 81 L.Ed. 289 ] (1937). But under *627 the plain language of § 71, a case was “so remanded” and within the reviewability prohibition only if it had been improperly removed.
Id. at 348, 96 S.Ct. at 591-92 (emphasis in original). After reviewing the doctrine prior to the enactment of section 1447(c) and (d), the Court held that the current statute intended to restate the prior law with respect to remand orders and their reviewability. The Hermansdorfer Court thus concluded “[tjhere is no indication whatsoever that Congress meant the new statute to prohibit review allowed under prior law.” Id. at 350 , 96 S.Ct. at 592-93 .
In the present case, the District Court did not remand the instant case because it had been “improperly removed,” or that it did “not really and substantially involve a dispute or controversy properly within the jurisdiction of said district court.” Rather, it held that defendant was acting under the direction of agents of the Drug Enforcement Administration when he did not deposit the $12,000 in the municipal court. The District Court further held that the state court judge cited defendant for contempt not for the initial decision to turn the money over to the DEA but for allegedly disobeying the judge’s order to deposit the money with the state court. Nor did the District Court remand because the defendant did not have a “color-able” defense, a requirement explained in Mesa v. California, 489 U.S. 121 , 109 S.Ct. 959 , 103 L.Ed.2d 99 (1989). Rather, the District Court heard and decided the federal defense on its merits. As the Court stated in Mesa ,
the removal statute “is broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.... In fact, one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court.” (Emphasis added)
Id. at 133 , 109 S.Ct. at 966 (quoting Willingham v. Morgan, 395 U.S. 402, 406-07 , 89 S.Ct. 1813, 1815-16 , 23 L.Ed.2d 396 (1969)) (emphasis added). The reason for federal officer removal is more expansively dealt with in the Willingham opinion, where the Court stated:
The federal officer removal statute is not “narrow” or “limited.” Colorado v. Symes, 286 U.S. 510, 517 [ 52 S.Ct. 635, 637 , 76 L.Ed. 1253 ] (1932). At the very least, it is broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law. One of the primary purposes of the removal statute — as its history clearly demonstrates — was to have such defenses litigated in the federal courts. The position of the court below would have the anomalous result of allowing removal only when the officers had a clearly sustainable defense. The suit would be removed only to be dismissed. Congress certainly meant more than this when it chose the words “under color of ... office.” In fact, one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court. The officer need not win his case before he can have it removed. In cases like this one, Congress has decided that federal officers, and indeed the Federal Government itself, require the protection of a federal forum.q
Willingham, 395 U.S. 402, 406-07 , 89 S.Ct. 1813, 1816 (1969) (emphasis added).
Here, the District Court remanded not because the case was improperly removed. Rather, it held that the customs’ seizure laws do not apply to drug seizures. Thus, the District Court’s remand order was more than a purely jurisdictional decision. 1
*628 Judge Jones’ separate concurrence fairly covers the authorities subsequent to Her-mansdorfer and, I believe, fairly states the issue: did the District Court make a substantive decision on the merits? My disagreement with Judge Jones is on what the District Court did. It did not say, Wright, you have no colorable defense since you were not acting as a federal officer. Rather, it said you were acting as a federal officer. It did not say, Wright, you have no colorable defense because there is no basis to claim any such defense. Rather, it went on to examine the defense and decided that the drug forfeiture laws do not incorporate the customs laws.
The consequences of the District Court’s collateral holding, that there is no incorporation, may well deprive Wright of this federal defense. It is the law of the case and may well be applied against Wright in the state court contempt proceeding, assuming Ohio would recognize a defense of federal official immunity. The right not to be subjected to a state contempt proceeding for lawfully implementing federal drug enforcement directives while acting as a federal officer is an important one. I believe that under Hermansdor-fer, an order making such substantive decisions on collateral issues apart from purely jurisdictional concerns, is reviewable.
Turning then to the merits of Wright’s defense, the District Court was correct in holding that Wright was acting under federal officials when he allegedly disobeyed Judge Kessler’s order to deposit the $12,000 which had been turned over to the DEA. The DEA had adopted the seizure. There can be no question but that the United States can adopt a seizure made by the governmental entities. United States v. One Ford Coupe Automobile, 272 U.S. 321 , 47 S.Ct. 154 , 71 L.Ed. 279 (1926). The federal defense that Trooper Wright seeks to assert is the Supremacy Clause of the Constitution which “shield[s] a federal agent from state prosecution, provided his acts are both authorized by the laws of the United States and necessary and proper to the performance of his duties.” Kentucky v. Long, 837 F.2d 727, 742-49 (6th Cir.1988) (emphasis in original) (extended discussion of the law in this area). Here, once the DEA adopted the seizure, Wright was required by the laws of the United States to turn the forfeited property over to the DEA. Thus, he was both authorized to do so and it was part of the performance of his duties. The District Court found that because the seizure was of drug proceeds and not of merchandise or baggage seized in violation of the customs laws, Wright was, even if acting as a federal agent, not authorized to seize the drug proceeds. The judge rejected Wright’s argument that 18 U.S.C. § 881 (d), which incorporates the law relating to the seizure of property in violation of the customs laws into the drug seizure statute, requires he be treated as acting as a person authorized by federal law to make seizures in turning over the seized property to DEA officers. It is unclear whether the judge held (1) that the customs’ seizure provisions do not apply to drug proceeds seizures or (2) that he concluded (as indicated in a footnote to his opinion) that only persons authorized by the Attorney General could make such seizures and Wright was not so authorized. If the basis of the District Court’s holding was the former, it was in error, and in view of the adopted seizure statute and the common law on adoptive seizures, Wright had at least a colorable defense. The Supreme Court’s recent discussion of seizure law and the incorporation of the customs’ seizure laws into drug seizure laws through the 1978 amendment to Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236 ( 21 U.S.C. § 881 (d)), removes any doubt *629 that the customs laws, including the common law relating to customs’ seizures, are applicable to the seizure of drugs and drug proceeds. See United States v. 92 Buena Vista Ave., Rumson, — U.S. —, 113 S.Ct. 1126 , 122 L.Ed.2d 469 (1993). So far as we know, there is no innocent owner in this case and the forfeiture has proceeded administratively-
If the basis of the District Court’s holding was that Wright had not been authorized by the Attorney General to make drug seizures, that too was likely in error. The drug seizure statute, 21 U.S.C. § 881 (d), provides that drug seizures “shall be performed ... by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General.”
Although the Supreme Court has not spoken about the effect of the federal government’s adoption of a state officer’s seizure upon that officer’s status, it has spoken with respect to private person’s status after a private seizure. In The Caledonian, 17 U.S. (4 Wheat.) 100, 103 , 4 L.Ed. 523 , 525 (1819), the Court stated:
[I]t is a general rule that any person may seize any property forfeited to the use of the government, either by the municipal law or by the law of prize, for the purpose of enforcing the forfeiture. And it depends upon the government itself, whether it will act upon the seizure. If it adopts the acts of the party, and proceeds to enforce the forfeiture by legal process, this is a sufficient recognition and confirmation of the seizure, and is of equal validity in law with an original authority given to the party to make the seizure. The confirmation acts retroactively, and is equivalent to a command. 2
(Emphasis added).
21 U.S.C. § 881 (d) provides that the Attorney General may designate any state or local law enforcement officer to make seizures of property under the Drug Abuse Prevention and Control statute. A law enforcement officer so authorized should be shielded by the supremacy clause from state contempt proceedings. 3 A district court should not be able to deprive the law enforcement officer of that shield in a way insulated from review. Congress cannot have intended these statutes to operate otherwise. Wright argues that in adopting a seizure the Attorney General retroactively authorizes the local law enforcement officer to act under the statute so that the retroactive authority is “of equal validity in law with an original authority” and thus provides a federal defense. I agree that he has raised more than a colorable defense. The effects of retroactive adoption of the seizure under either The Caledonian common law standard or the adoptive seizure provisions, are both issues which should be decided in a federal forum. The criminal action removal statute was designed for this very purpose.
. Section 881 states:
(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this subchapter, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter....
(d) The provisions of law relating to the seizure, summary and judicial forfeiture, and ' condemnation of property for violation of the customs laws; the disposition of such property *628 or the proceeds from the sale thereof; the remission or mitigation of such forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the customs officer or any other person with respect to the seizure and forfeiture of property under the customs laws shall be performed with respect to seizures and forfeitures of property under this subchapter by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effected by any customs officer.
21 U.S.C. § 881 (a)(6) and (d).
. The seizure here was a warrantless seizure so we do not have the possible complication of a seizure pursuant to a state search warrant. There were no state forfeiture proceedings.
. Removal to federal court of a state action against a law enforcement officer making a federally authorized seizure is provided by 28 U.S.C. § 1442 (a)(1). Under section 1442,
(a) A civil action or criminal prosecution commenced in state court against any of the following persons may be removed by them to the district court of the United States
(1) Any officer of the United States or any agency thereof, or person acting under him, for 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 or the collection of revenue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9484216. Public record. Not legal advice.