State of Idaho v. Lon T. Horiuchi

*378 WILLIAM A. FLETCHER, Circuit Judge, with whom Circuit Judge THOMAS joins, concurring and dissenting:

I join in all but Part IV of the majority’s opinion.

I concur in the majority’s conclusion that there are disputed questions of fact material to agent Horiuchi’s defense of Supremacy Clause immunity. I agree with the majority that these disputed questions preclude a holding that agent Horiuehi is entitled, as a matter of law, to a dismissal of the criminal prosecution brought by the State of Idaho.

However, I dissent from the majority’s conclusion that these disputed questions of fact must be decided by a judge. I believe that a defendant in the position of agent Horiuehi is entitled to have a jury decide disputed issues of fact relevant to his immunity defense, for two independently sufficient reasons. First, our practice in dealing with the defense of qualified immunity in civil cases is to send disputed questions of fact to the jury. Second, the Sixth Amendment guarantees a jury trial.

We have held that a jury must resolve disputed questions of fact in determining whether a law enforcement officer is entitled to qualified immunity in a civil damages case. We held in Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993), that where the relevant facts are undisputed, the district judge rules on the issue of qualified immunity on summary judgment. However, when those facts are in dispute, the case must proceed to trial. If the case is tried to a jury, the jury determines those facts. Once it does so, the district judge decides the reasonableness of the officer’s behavior based on those facts. Id. at 873-74 . I note that the Ninth Circuit appears to be unique in holding that the jury is only to resolve factual disputes. Other circuits give to the jury not only questions of disputed fact but also questions of reasonableness. See, e.g., Hurlman v. Rice, 927 F.2d 74, 78-79 (2d Cir.1991); Santiago v. Fenton, 891 F.2d 373, 386-87 (1st Cir.1989); Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir.1989); Melear v. Spears, 862 F.2d 1177, 1184 (5th Cir.1989); Turner v. Dammon, 848 F.2d 440, 444 (4th Cir.1988), abrogated on other grounds by Johnson v. Jones, 515 U.S. 304 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995); Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987); Fludd v. United States Secret Service, 771 F.2d 549, 554 (D.C.Cir.1985); McSurely v. McClellan, 697 F.2d 309 , 321 & n. 20 (D.C.Cir.1982).

I am, of course, bound by our holding in Act Upl/Portland, although I also feel bound (in a different sense) to say that I disagree with it. See Act Up!/Portland, 988 F.2d at 874 (Norris, J., dissenting). The classic role of the jury, in both civil and criminal cases, is not only to resolve disputed questions of fact, but also to determine reasonableness based on the facts. But even taking Act Up!/Portland as good law, it is clear that in this circuit disputed questions of fact relevant to a defense of qualified immunity are to be resolved by a jury. I see no reason why disputed questions of fact concerning Supremacy Clause immunity should be treated differently.

Further, the Sixth Amendment guarantees a jury trial. Supremacy Clause immunity is an affirmative defense that can, and in this case does, involve disputes about whether the officer had an honest belief that what he did was necessary to perform his duty, and whether the officer was reasonable in his belief and actions. Where material facts are in dispute that prevent the summary resolution of these questions as a matter of law, the Sixth Amendment requires that they be sent to a jury.

*379 In United States v. Bailey, 444 U.S. 394 , 100 S.Ct. 624 , 62 L.Ed.2d 575 (1980), the Court emphasized the importance of the jury’s role in deciding questions of fact relevant to affirmative defenses. The Court held that before a defendant is entitled to a jury instruction on a defense, the judge must make a threshold determination that some evidence supports each element of the defense. The Court took pains to point out that its ruling was designed to strengthen, not weaken, the jury’s role:

The requirement of a threshold showing on the part of those who assert an affirmative defense to a crime is by no means a derogation of the importance of the jury as a judge of credibility.... On the contrary, it is a testament to the importance of trial by jury and the need to husband the resources necessary for that process by limiting evidence in a trial to that directed at the elements of the crime or at affirmative defenses.

Id. at 416 , 100 S.Ct. 624 .

The Supreme Court also emphasized the importance of the jury in United States v. Gaudin, 515 U.S. 506 , 115 S.Ct. 2310 , 132 L.Ed.2d 444 (1995). The Court held that due process and the Sixth Amendment right to a jury trial require, in a prosecution for making material false statements, that the jury determine whether a statement is material. In so holding, the Court rejected the Government’s position that the jury should only decide the factual components of elements of criminal offenses. Id. at 511 , 115 S.Ct. 2310 . The Court observed that “the application-of-legal-standard-to-fact ... commonly called a ‘mixed question of law and fact,’ has typically been resolved by juries.” Id. at 511-12 , 115 S.Ct. 2310 . Because a materiality ruling involves “ ‘delicate assessments of the inferences a “reasonable [decision-maker]” would draw from a given set of facts and the significance of those inferences to him,’ ” it “[is] peculiarly on[e] for the trier of fact.” Id. (quoting TSG Industries, Inc. v. Northway, Inc., 426 U.S. 438, 450 , 96 S.Ct. 2126 , 48 L.Ed.2d 757 (1976) (alterations in original)). Judgments about what inferences a reasonable deci-sionmaker would make, and how that deci-sionmaker would understand those inferences, are equally critical to the question of whether a defendant is entitled to Supremacy Clause immunity.

The majority does not discuss the Sixth Amendment, but it notes, without reference to the Amendment, that a jury is not required to resolve disputed questions of fact on a number of issues that can arise during the course of a criminal prosecution. The majority lists double jeopardy, immunized testimony and the scope of an immunity deal with the prosecution, attorney-client privilege, executive privilege, probable cause, and other evidentiary issues. In all of those cases, however, the judge decides issues that are collateral to the defendant’s guilt.

In a case involving Supremacy Clause immunity, disputed questions of fact go directly to what the defendant did, and to whether the defendant honestly and reasonably believed that his or her actions were justified. I see no difference, from the standpoint of the Sixth Amendment, between a defense based on Supremacy Clause immunity and one based on self-defense. Both defenses concern justifications for a defendant’s action; and both are based on assertions of an honest and reasonable belief held by the defendant which, if believed by the factfinder, require a verdict of not guilty. Neither is collateral to a defendant’s guilt. Rather, both go directly to the question whether the defendant’s conduct is, or can be, criminal under the law of the prosecuting authority.

*380 The majority justifies remanding this case to the district judge to resolve the disputed questions of fact on the ground that it believes that judges, rather than juries, wiU better protect defendants asserting a defense of Supremacy Clause immunity. I do not know whether that is true in this case. I also do not know whether it is likely to be true in Supremacy Clause immunity cases generally. I do know, however, that it is not for us to make that assessment.

The Sixth Amendment guarantees a criminal defendant a right to a jury trial, and Federal Rule of Criminal Procedure 23(a) does not allow it to be waived inadvertently or easily. This rule requires that a criminal defendant waive it in writing, and that he have the approval of the court and the consent of the government. Ostensibly acting on behalf of defendants asserting a Supremacy Clause defense, the majority today chooses to waive for such defendants the jury trial right guaranteed by the Sixth Amendment and protected against waiver by Rule 23(a). A criminal defendant may sometimes waive his right to a jury trial. We may never do so.