Opposition Brief — Mesa v. California

Suorame Court, US.

‘ FILED

No. 871206 apr 28

IN THE SUPREME CO

OF THE UNITED STATES

OCTOBER TERM, 1987

KATHRYN ISABELLA MESA, PETITIONER

v.

PEOPLE OF THE STATE OF CALIFORNIA

SHABBIR EBRAHIM, PETITIONER

v.

PEOPLE OF THE STATE OF CALIFORNIA

RESPONSE TO PETITION FOR

A WRIT OF CERTIORARI

LEO HIMMELSBACH

District Attorney

KENNETH ROSENBLATT

Deputy District Attorney

Office of the District Attorney,

Santa Clara County

70 West Hedding St.

San Jose, California 95110

(408) 299-7400

ae ee PD ee | a oe |

QUESTION PRESENTED

Whether 28 U.S.C. 1442(a)(1) allows a

federal employee charged with committing a

misdemeanor traffic offense while on duty to

remove the ensuing prosecution to federal court

where the alleged violation is unrelated to any rights,

duties, privileges, immunities, or defenses provided

under federal law?

TABLE OF CONTENTS

Statement |

The Petition Should Be Denied 2

There Are No "Plain Terms" of Section 1442(a)(1) 5

The History of Section 1442(a) Supports

The Federal Defense Requirement 5

Willingham v. Morgan Supports The Federal

Defense Requirement 10

The Decision Below Will Not Allow State

Harassment of Federal Officials 16

Conclusion 17

TABLE OF AUTHORITIES

Cases:

Arizona v. Manypenny, 451 U.S. 232 (1981) 3, 14

Barr v. Matteo, 360 U.S. 564 (1959) 12

City of Aurora v. Erwin,

706 F.2d 295 (10th Cir. 1983) 3

Colorado v. Symes, 286 U.S. 510 (1932) Y

Commonwealth of Pennsylvania v. Newcomer,

618 F.2d 246 (3d Cir. 1980) 2, 14-15

il

Gay v. Ruff, 292 U.S. 25 (1934) 9

In Re Neagle, 135 U.S. 1 (1890) 16

Martin v. Hunter's Lessee,

14 U.S. (1 Wheat) 304 (1816) 7

Maryland v. Soper (No. 1),

270 U.S. 9 (1926) 1-2, 11-13, 15-16

Maryland v. Soper (No. 2),

270 U.S. 36 (1926) 9, 16

Morgan v. People of the State of California,

743 F.2d 723 (9th Cir. 1984) 14

Peerless Casualty Co. v. United States,

344 F.2d 495 (D.C. Cir. 1964) 10

People of the State of California v. Mesa,

813 F.2d 960 (9th Cir. 1987) 2, 11, 15-16

Stein-Sapir v. Birdsell,

673 F.2d 165 (6th Cir. 1982) 2

Tennessee v. Davis, 100 U.S. 257 (1880) 8-9, 12, 15

The Mayor v. Cooper, 73 U.S. 247 (1867) 8, 11

United States ex rel. Drury v. Lewis,

200 U.S. 1 (1906) 17

iil

Westfall v. Erwin, 484 U.S. _, 108 S.Ct. 580 (1988) 12

Willingham v. Morgan,

395 U.S. 402 (1969) 2,4, 10, 12, 13, 14

Statutes:

28 U.S.C. 1442(a)(1) passim

28 U.S.C. 1442(a)(3) 5,9

28 U.S.C. 2241(c)(2) 16

28 U.S.C. 2241(c)(3) 16

Judiciary Act of September 24, 1789, 1 Stat. 73 6

Act of February 4, 1815, 3 Stat. 198 5-7

Act of March 2, 1833, 4 Stat. 632, sec. 3 7

Act of March 3, 1863, 12 Stat. 756 7

The Internal Revenue Act of June 30, 1864,

13 Stat. 241 8

Act of May 11, 1866, 14 Stat. 46 8

Act of July 13, 1866,

ch. 184, 14 Stat. 98, 171 8-9

iV

Act of August 23, 1916, ch. 399,

39 Stat. 532 9

Miscellaneous:

Annals of Congress, 13th Cong.,

3d Sess., at 757 6

9 Congressional Debates, Part II,

22nd Cong., 2d Sess., 260 7

American State Papers, 1802-1815, Finance 6

Amsterdam, Criminal Prosecutions Affecting

Federally Guaranteed Civil Rights:

Federal Removal and Habeas Cvrpus

Jurisdiction to Abort State Court Trial,

113 U.Pa.L.Rev. 739 (1965) 15

STATEMENT

Petitioners Kathryn Mesa and Shabbir

Ebrahim were charged with misdemeanor traffic

offenses in unrelated cases arising out of their

driving while on duty as federal employees. Each

filed petitions for removal based solely upon their

having been on duty when the incidents occurred.

Neither petitioner alleged that their acts were

justified by, or depended upon, federal law. There

has been no suggestion that these prosecutions were

motivated by animus toward federal officials or

federal law.

These are typical traffic cases. The only

distinguishing feature is that the allegedly negligent

drivers are federal employees.

The United States District Court for the

Northern District of California simultaneously

granted the petitions and denied the State of

California's motions for remand. The State of

California (hereinafter referred to as “California")

sought review by the Ninth Circuit Court of Appeals

by direct appeal and mandamus.

The Ninth Circuit held that mandamus was

available to challenge the District Court's decision,

and petitioners do not seek review of that ruling.

The Ninth Circuit found that removal was prohibited

by this Court's decision in Maryland v. Soper (No.

1), 270 U.S. 9, 33-35 (1926) (hereinafter referred

to as "Soper (No. ])"), requiring that the employee

have alleged in his petition a defense to the charges

relying upon federal law. People of the State of

California v. Mesa, 813 F.2d 960, 965 (9th Cir.

1987). The Circuit found Soper (No. /) controlling,

and thus did not rely upon other authority.

The Circuit also found petitioner's reliance

upon a more recent decision to have been misplaced.

See Willingham vy. Morgan, 395 U.S. 402 (1969).

The Circuit noted that the defendants in that civil

case had also raised a federal defense (i.e. sovereign

immunity). Mesa, at 966.

Although some of the language in

Willingham, if applied literally, could support

removal in all traffic cases, the court declined to

supplant Soper (No. ]) by taking that language from

a civil case and "casually" applying it to this criminal

case. /d., at 966.

Petitioners claim that the Ninth Circuit has

misinterpreted section 1442(a)(1), and seek review

by this Court. See Petition For A Writ of Certiorari

(hereinafter referred to as "Petition").

THE PETITION SHOULD BE DENIED

Although there is a split between the Ninth and

Third Circuits,! not all such disagreements merit the

! Petitioners have incorrectly asserted that several Circuits

have disagreed with the decision below. The only decision

directly in conflict is Commonwealth of Pennsylvania vy.

Newcomer, 618 F.2d 246 (3d Cir. 1980). The Sixth Circuit

followed Newcomer in finding that a federal defense is

unnecessary in a civil case. See Stein-Sapir v. Birdsell, 673

F.2d 165 (6th Cir. 1982). That finding was dicta because the

attention of this Court. The more recent ruling from

the Ninth Circuit allows removal where it matters:

federal officials alleging federal defenses are still

absolutely entitled to removal. State sovereignty

remains intact, and yields only to cases invoking the

Supremacy Clause.

This is not one of those cases. At stake here is

the Solicitor General's claim that Congress intended

to create a national federal court for federal

employees. The Ninth Circuit's ruling rejecting that

argument does not create an emergency demanding

federal official had alleged a federal defense (sovereign

immunity).

The Tenth Circuit decision in City of Aurora v. Erwin, 706

F.2d 295 (10th Cir. 1983) is irrelevant because the

prosecution in that case did not contest the removal.

Nonetheless, petitioners infer from the facts of that case that

there was no federal defense available to support removal.

There are three problems with petitioner's interpretation.

First, it appears that the dog and its owner were interfering

with mail delivery (unlike the bicyclist and police vehicle in

our cases). /d., at 295 n.1. The mail carrier could rely upon

his federal authority and duty to deliver the mail free of

interference as a federal defense to the State charges.

Second, the Tenth Circuit recited the record as it appeared

after conviction in federal court. Defendant's removal petition

surely presented a stronger showing justifying removal than

did the court's summary. We cannot speculate whether

defendant's petition would have presented a sufficient

showing had removal been contested.

Finally, if petitioners wish to rely upon Aurora, they must

explain that court's statement that section 1442(a)(1) “is

intended to provide a forum free from local interests and

prejudice in which the federal officer can assert immunity

defenses based on official conduct." Id., at 296 (emphasis

added) (quoting Arizona v. Manypenny, 451 U.S. 232

(1981); Manypenny is discussed infra).

immediate review by this Court. This Court should

defer consideration of this issue until other Circuits

have addressed our problem in light of the Ninth

Circuit's analysis.

Furthermore, the Ninth Circuit's ruling

merely restored the status quo established by this

Court's decisions since 1867. The legislative history

of section 1442(a)(1) and the relevant Supreme

Court decisions establishes that Congress and this

Court have always recognized that the removal

Statute required a federal defense.

The federal defense requirement is also

supported by common sense. The prospect of

hundreds or thousands of employees removing

simple traffic or parking tickets to federal court is

absurd. Removal in the absence of a federal defense

will burden the federal judiciary unnecessarily while

invading State sovereignty.

Petitioners present three arguments in favor

of removal in the absence of a federal defense. First,

that the "plain terms" of section 1442(a)(1) mandate

removal in the absence of a federal defense. See

Petition, at 5. Second, that the “causal connection"

language employed in Willingham controls this case

because there is no logical distinction between civil

and criminal cases. Petition, at 6-7. Finally,

petitioners assert that the Ninth Circuit's ruling must

be incorrect because it will allow State harassment of

federal officials. Petition, at 9-10. A brief

discussion of each argument reveals its

shortcomings.2

There Are No "Plain Terms" Of Section 1442(a)(1)

The statute allows removal for acts “under

color of office". Congress never defined that

inherently ambiguous phrase. Had Congress wished

to allow removal for acts committed in while in

performance of federal duties, it would have said so.

Indeed, as discussed below, Congress used that

language in allowing removal for court officers. See

28 U.S.C. 1442(a)(3). Since the statute is

ambiguous, the legislative history of section 1442(a)

is dispositive in determining Congressional intent.

The History of Section 1442(a) Supports The

Federal Defense Requirement

The early removal statutes were enacted as

reactions to State defiance of federal law. The first

removal statute, the Act of February 4, 1815, 3 Stat.

198 ("1815 Act"), was proposed to protect federal

customs agents in their enforcement of federal law.

The only available legislative history for that Act

consists of a letter from its proponent, the Secretary

2 California presents a brief synopsis of its position on the

merits to persuade this Court that the Ninth Circuit's decision

is clearly correct. California will present these and other

arguments in a more complete form should this Court decide

to hear this case.

of the Treasury. See Annals of Congress, 13th

Cong., 3d Sess., at 757-61 (also appearing in the

American State Papers, 1802-1815, Finance, at 881).

The Secretary related that the State of Vermont was

frustrating the enforcement of federal law by

insisting upon a niggardly construction of federal

customs laws. Vermont courts routinely granted

civil judgments against customs officials for seizures

mandated by federal law. Under the Judiciary Act of

September 24, 1789, decisions in civil cases could

only be removed to federal courts after the judgment

was affirmed by the highest court in the State. That

delay would have allowed the State to forestall

review until after the War ended.

The Secretary wanted to aliow removal of

civil cases before adjudication by any State court.

Id., at 760. But he clearly intended his remedy to

encompass only those cases where the customs

official relied upon federal law.

"A more effectual provision should be made

for transferring, from the State courts to the Federal

courts, suits brought against persons exercising an

authority under the United States, so that such suits

may be transferred, as soon as conveniently may be,

after they are commenced."

/d., at 761 (emphasis added). Congress passed the

1815 Act, which allowed certain officials to remove

civil anc criminal cases where the charged acts were

“agreeable to the provisions of this act, or under

colour thereof..." 1815 Act, sec. 8.

There is no evidence that Congress intended to

expand the previously limited powers of removal

under the Judiciary Act to encompass every

miscellaneous tort or petty offense committed by a

customs official while on duty. Congress would not

have attempted to expand the federal jurisdiction to

include cases presenting no federal issues when the

appellate jurisdiction of this Court to hear federal

question cases removed from State courts was in

dispute. See Martin v. Hunter's Lessee, 14 U.S. (1

Wheat) 304 (1816).

The 1815 Act was a temporary measure and

expired after the War of 1812. It was revived

during the next State-Federal conflict, when South

Carolina purported to nullify the federal tariff by

passing the Nullification Act in 1832. See Act of

March 2, 1833, 4 Stat. 632, sec. 3 ("1833 Act"). The

Senate debate indicates that Congress did not intend

to expand federal jurisdiction. See 9 Congressional!

Debates, Part II, 22nd Cong., 2d Sess., 260,

(Remarks of Senator Wilkins), 419 (Senator Dallas),

590 (Senator Webster). The 1833 Act tracked the

language of the 1815 Act.

The next federal official removal statute was

enacted during the Civil War. The Act of March 3,

1863, sec. 5, 12 Stat. 756, provided for removal

where the official acted "by virtue or under color of

any authority derived from or exercised by or under

the President of the United States, or any Act of

Congress." /d. There is no room for quibbling; this

Statute “by its plain terms" required a federal

defense.

This Court formally confirmed the federal

defense requirement in The Mayor v. Cooper, 73

U.S. 247 (1867). The Court upheld the

constitutionality of the removal statute based upon

the power of federal courts to hear federal questions.

Id., at 252-533

The next removal statutes were part of

internal revenue laws.4 The Act of July 13, 1866

was the first removal statute to allow removal for

acts “under color of office". Congress did not

discuss the new language, and this Court's view of

the federal defense requirement did not change.

“That the act of Congress does provide for the

removal of criminal offenses against the State laws,

when there arises in them the claim of the Federal

right or authority, is too plain to admit of denial."

Tennessee v. Davis, 100 U.S. 257, 261, 271, 272

3 The Mayor v. Cooper considered the 1863 Act as amended

by the Act of May i1, 1866, 14 Stat. 46. The changes to the

Act were not significant for our issue.

4 The 1833 Act applied only to collection of duties on

imports. The Internal Revenue Act of June 30, 1864, ch.

173, section 50, 13 Stat. 241 ("1864 Act"), provided that the

1833 Act was to be “taken and deemed as extended to and

embracing all cases arising under the laws for the collection of

{revenue]." That provision was repealed and replaced in 1866

with a different removal statute. See Act of July 13, 1866, ch.

i84, section 67, 14 Stat. 98, 171 ("1866 Act"), Gay v. Ruff,

292 U.S. 25 n.8 (1934). That Act was codified in 1874 as

section 643 of the Revised Statutes, and recodified as Section

33 of the Judicial Code of 1911, 36 Stat. 1097.

(1880) (emphasis added).5 Petitioners’ error

concerning "the plain terms" of section 1442(a) is

demonstrated most convincingly by section

1442(a)(3), allowing court officers to remove civil

and criminal actions "for or on account of any act

done under color of his office or in the performance

of his duties as such officer." Act of August 23,

1916, ch. 399, section 33, 39 Stat. 532 (emphasis

added). The apparent distinction created by

1442(a)(3) between acts "under color of office" and

"in performance of duties" indicates that merely

being on the job is insufficient for all officials except

court officers.®

> The Court upheld the constitutionality under Article III of the

1874 codification of the 1866 Act based upon the assumption

that a federal defense was required for removal. Petitioners

are incorrect in stating that self-defense arising out of

enforcement of federal law is "a state defense". Compare

Petition, at 7 with Davis , at 261, andMaryland v. Soper (No.

2), 270 U.S. 36, 42 (1926) ("such acts of defense are really

part of the exercise of his official authority. They are

necessary to make the enforcement effective.").

© Moreover, this Court has interpreted section 1442(a)(3)

restrictively to allow removal only when federal authority is at

stake; court officers .nay remove only those cases arising out

of their execution of court orders. See Gay v. Ruff, 292 U.S.

25 (1934) (denying removal to a federally appointed receiver

sued for negligence). This Court held that Congress did not

intend to expand federal jurisdiction in adding section

1442(a)(3). /d., at 37-38. The Court also denied removal

under 1442(a)(1) because the official did not allege a federal

defense to the suit. /d., at 39, see also Colorado v. Symes,

286 U.S. 510, 518 (1932) (denying removal because officials

“are not, merely because they are such, granted immunity

from prosecution in state courts for crimes against state law").

10

Although Congress amended section

1442(a)(1) in 1948 to include "[a]ny officer of the

United States or any agency thereof", the present

statute still only allows removal for acts “under

color of such office". The Reviser's Note states only

that the right of removal was extended to all federal

employees; there is no evidence that Congress

altered the parameters of that protection. Sections

revised in that 1948 Revision of the Judicial Code

“will be presumed to bear the same meaning as did

the original sections, unless an intent to change the

meaning is clearly and indubitably manifested."

Peerless Casualty Co. v. United States, 344 F.2d

495, 496 (D.C. Cir. 1964).

Thus, the legislative history of section 1442(a)

and the decisions of this Court over the last 100 years

clearly refute petitioners’ claims.

Willingham vy. Morgan Supports The Federal

Defense Requirement

Petitioners first argue that this Court's “causal

connection" test defines the standard for removal in

civil cases. They then suggest that this test must

apply to criminal cases because section 1442(a)(1) on

its face does not distinguish between civil and

criminal cases. Applying that standard in criminal

cases would eliminate the federal defense

requirement.

Petitioners’ first premise is flawed. The

“causal connection" test in Willingham does not 20

1]

to whether a federal defense is required in civil and

criminal cases. Every Supreme Court case since The

Mayor v. Cooper, supra, has reaffirmed that

requirement. The "causal connection" test defines

what facts must be alleged to put the federal defense

into issue.

That is the import of Maryland v. Soper (No.

1), 270 U.S. 9 (1926), where this Court had to decide

whether a federal official could deny having

committed the charged act and still obtain removal.

The federal prohibition officers had found a slain

man while on duty, and were charged with murder.

They denied knowledge of the killing, but requested

removal because they were on duty when they found

the body.

Soper (No. 1) assumed the federal defense

requirement. Thus, the Court rejected the officials’

affidavits on the grounds that "[t]hese averments

amount to hardly more than to say that the homicide

on account of which they are charged with murder

was at a time when they were engaged in performing

their official duties." /d., at 35, see Mesa, at 965.7

The Court's concem was over how a federal

official ignorant of the facts surrounding the

incident could deny the charges and still allege a

federal defense. The Court fashioned a very strict

test because of the "exceptional" nature of the

? Thus, petitioners’ reliance upon Soper (No. 1) is misplaced.

See also Petition, at 9 (quoting Soper (No. ]) that the remova!

statute was designed to prevent interference with federal

officials enforcing federal law).

12

removal remedy.’ The official had to demonstrate

the "causal connection" by: 1) detailing all of his

actions and showing that each act was in enforcement

of, or in compliance with, federal law; and 2)

negating the possibility that he was prosecuted for an

act unprotected by federal law. /d., at 33-34.

By doing so, the official declared that the only

basis of the prosecution was either: 1) an act

protected by a federal defense; or 2) his mere

presence as a federal official at the scene while

enforcing federal law. /d., at 33. A prosecution

motivated only by the official's presence enforcing

federal law would violate the Supremacy Clause and

present a federal defense.

Petitioners’ confusion over the “causal

connection" test results from the emergence of the

sovereign immunity defense after Soper (No. /).

That defense only requires that the federal employee

have acted with discretion within the scope of his

employment. See Westfall v. Erwin, 484 U.S. __

(1988), Barr v. Matteo, 360 U.S. 564 (1959).

The federal officials in Willingham alleged

the sovereign immunity defense. Id., at 404, 409.

This Court quoted Tennessee v. Davis, supra, in

8 Jd., at 35. The Court required officials to waive their Fifth

Amendment rights and be "candid, specific and positive in

explaining his relation to the transaction growing out of which

he has been indicted, and in showing that his relation to it was

confined to his acts as an officer." /d., at 34, 35. Such a

waiver would not be necessary if an official could obtain

removal solely by stating he was on duty because such a

statement could not be inculpatory.

13

support of the federal defense requirement, noting

that the purpose of the removal statute was to

prevent State prosecutions of federal officials "for

an alleged offence against the law of the State, yer

warranted by the Federal authority they possess."

Willingham, at 406 (emphasis added). The sovereign

immunity defense can be included within this

category because it immunizes federal officials for

discretionary acts within their authority. Petitioners

fail to allege a federal defense in our case.

Willingham also addressed the more difficult

question of how to put the sovereign immunity

defense in issue. This Court noted that it had held in

Soper (No. 1) that the officials could deny having

committed the charged acts. However, the strict

“causal connection" test defined in that case posed a

dilemma in a civil case, where the federal prison

officials would be forced to describe all contacts

with petitioners. /d., at 407-09.

The solution was simple for civil cases. A

showing that an official acted within the scope of his

employment establishes the sovereign immunity

defense. An allegation that the official was on duty

therefore puts the defense in issue. Thus, the

allegation in Willingham that the officials were on

duty at the place of their employment at all relevant

times established the "causal connection" and was

sufficient to allege the sovereign immunity defense.

Id., at 409.

Footnote 4 of Willingham merely cautioned

that this easy formula might not apply to criminal

cases, where sovereign immunity is not a defense.

14

The only analogous defense to a criminal charge is

the federal immunity defense. But that defense

requires the official to do more than establish that he

was on duty at the time of the incident. He must

show that his actions were necessary and proper to

carry out his federal authority. See Morgan v.

People of the State of California, 743 F.2d 723, 733

(9th Cir. 1984). Petitioners do not raise a federal

defense.

This Court recently reiterated the federal

defense requirement in dicta. “Federal involvement

is necessary in order to insure a federal forum, but it

is limited to assuring that an impartial setting is

provided in which the federal defense of immunity

can be considered during prosecution under state

law." Arizona v. Manypenny, 451 U.S. 232, 242

(1981) (allowing a State to appeal a judgment of

acquittal rendered by a federal court in a case

removed under section 1442(a)(1)) (emphasis

added).

Petitioners miss the point by arguing

(incorrectly) that Manypenny can be read as

supporting their views. See Petition, at 6 n.2. The

legislative history indicates Congress intended to

require a federal defense; strained constructions of

Supreme Court cases are an inadequate response.

In sum, petitioners are correct that there is no

distinction between civil and criminal cases

regarding the issue at bar: the federal defense

requirement exists in all cases. The Third Circuit in

Commonwealth of Pennsylvania v. Newcomer, 618

F.2d 246 (3d Cir. 1980), reached the wrong result

15

~

because it misinterpreted Willingham.? That error

has already been rectified by the Ninth Circuit's

decision below and does not require this Court's

attention.

The Ninth Circuit has clearly interpreted

Willingham (along with Soper (No. /)), as having

maintained the federal defense requirement. Mesa,

supra, at 965, 966. That it may have also relied

incorrectly upon Footnote 4 of Willingham in dicta

as additional refutation of petitioners’ reading of that

case may be regrettable, but is hardly reason for this

Court to expend its scarce resources by granting a

hearing. The Ninth Circuit has restored the status

quo; this Court should wait to see if other Circuits

9 The Third Circuit also stated that the removal statutes "were

enacted not so much to provide federal forums for federal

defenses, as to protect federal officers from interference with

the operations of federal government by the state."

Commonwealth of Pennsylvania v. Newcomer, 618 F.2d

246, 250. As discussed above, the court was clearly incorrect.

The court's only authority was a law review article. See

Amsterdam, Criminal Prosecutions Affecting Federally

Guaranteed Civil Rights: Federal Removal and Habeas Corpus

Jurisdiction to Abort State Court Trial, 113 U.Pa.L.Rev. 739

(1965).

This excellent article touches on our statute in its discussion

of the civil rights removal statute (28 U.S.C. 1443). Professor

Amsterdam did not support the Third Circuit's interpretation

of Congressional intent, although he noted that Congress

intended to protect both federal law and federal officials. See

Amsterdam, at 807, 808, n.70. The Third Circuit failed to

explain Professor Amsterdam's remark that a defendant

seeking removal under section 1442(a)(1) must show

colorable protection under federal law. /d., at 874 n.328

(citing Tennessee v. Davis, supra).

16

fail to adhere to the federal defense requirement

before entering this area.

The Decision Below Will Not Allow State

Harassment of Federal Officials

Petitioners suggest that the decision below will

allow States to harass federal officials. Petition, at

10 n.4. First, as noted by the Ninth Circuit, there is

no claim of harassment in this case; this Court can

always review such a case when and if it arises.

Second, the Ninth Circuit specifically stated that it

might allow removal if harassment were alleged.

Mesa, at 967.

Third, the "causal connection" test in Soper

(No. 1) provides an adequate means of obtaining

removal where the official is harassed while on duty.

The official need only show that his actions were in

enforcement of, or compliance with, federal law and

negate the possibility that he was prosecuted for an

act unprotected by federal law. /d., at 33-34. The

Court has already ruled that this test applies where

harassment is alleged. Compare Soper (No. 1) with

Maryland v. Soper (No. 2), 270 U.S. 36 (1926).

Finally, removal is only one of the

mechanisms protecting federal officials from

harassment. The writ of habeas corpus is a potent

and more useful weapon against harassment. See 28

U.S.C. 2241(c)(2) and (c)(3), In Re Neagle, 135 U.S.

1 (1890). The federal official does not have to wait

until trial to win his freedom because abstention does

17

not apply. United States ex rel. Drury v. Lewis, 200

U.S. 1 (1906). The procedure is economical because

only the harassment claim is removed for

adjudication.

Removal is useful to prevent State

adjudication of federal defenses; habeas corpus is

available to prevent harassment of federal officials

generally. It is enough for our purposes that the

Ninth Circuit's decision protects all federal officials

who allege a federal defense.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

LEO HIMMELSBACH

District Attorney for the

County of Santa Clara,

State or California

KENNETH ROSENBLATT

Deputy District Attorney

April 1988