Respondents Brief — Colorado v. Symes

Supreme Court brief1932

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No. —, Original

Inthe Supreme Court of the United States

OcTOBER TERM, 1931

Ex Parte: THE Srate of COLORADO, PETITIONER

ON MOTION FOR LEAVE TO FILE PETITION FOR A WRIT OF

MANDAMUS TO TIE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT OF COLORADO

BRIEF FOR THE RESPONDENT IN SUPPORT OF RESPONSE

TO THE RULE

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CITATIONS

Cases:

Griffiths v. Hardenbergh, 41 N. Y. 464_-.-.------------- 10

McCain v. Des Moines, 174 U.S. 168_--.-.------------- 11

Maryland v. Seper (No. 1), 270 U. S. 9.----------- 2, 5-7, 8, 12

People of State of New York v. Walsh, 40 F. (2d) 58_-_---. 13

Rhode Island, Ex parte, 289 U.S. 580__._..--------.----- 13

State of Iowa v. City of Des Moines, 96 Iowa 521__-_-- .- am 11

State of Maryland v. Ford, 12 F. (2d) 289_... .........--- 12-13

State of Rhode Island v. Richardson, 32 F. (2d) 301__-..- .- 13

Tennessee v. Davis, 100 U. 8S. 257_....------------------ 10-11

Virginia v. De Hart, 119 Fed. 626._........------------ 10

We ees: ©. ne, TD Bi le dank icnnscnseess sececten 10

Statutes: Judicial Code, Sec. 33, as amended by the Act of

August 23, 1916, c. 399, 39 Stat. 532 (U. S. C., Title 28,

a ee re eee ee en eee ee 2-3

Miscellaneous: Bouvier, Law Tictionary, Color of Office. -.---- 10

106777—32——-1 (1)

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Inthe Supreme Gourt of the Anited States

OcToBrR TrRM, 1931

No. —, ORIGINAL

Ex Parte: THE STATE OF COLORADO, PETITIONER

ON MOTION FOR LEAVE TO FILE PETITION FOR A WRIT OF

MANDAMUS TO THE DISTRICT COURT OF THE UNITED

STATES FOR THE DISTRICT OF COLORADO

BRIEF FOR THE RESPONDENT IN SUPPORT OF RESPONSE

TO THE RULE

JURISVICTION

This is a motion by the State of Colorado for

leave to file an original petition for a writ of man-

damus directed to the District Court of the United

States for the District of Colorado and to the Judge

of that Court. The jurisdiction of this Court is in-

veked under Section 234 of the Judicial Code

(U.S. C., Title 28, See. 342) which provides:

The Supreme Court shall have power to

issue * * * writs of mandamus, in

cases warranted by the principles and usages

of law, to any courts appointed under the

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authority of the United States, or to per-

sons holding office under the authority of the

United States, where a State * * * ig

a party.

That the instant case falls within the class of

eases in which this Court may issue a writ of

mandamus is clear. Maryland v. Soper (No. 1),

270 U. 8. 9. On February 23, 1932, this Court or-

dered that a rule issue requiring the respondent to

show cause why leave to file the petition for

mandamus should not be granted. The rule was

made returnable on or before March 14, 1932.

STATUTE INVOLVED

Section 33 of the Judicial Code, as amended by

the Act of August 23, 1916, ¢. 399, 39 Stat. 532

(U. 8. C., Title 28, See. 76), provides, so far as

material here:

That when any civil suit or criminal

prosecution is commenced in any court of

a State against any officer appointed under

or aciing by authority of any revenue law

of the United States now or hereafter en-

acted, or against any persou acting under

or by authority of any such officer, on ac-

count of any act done under color of his

office or of any such law, or on account of

any right, title, or authority claimed by

such officer or other person under any such

law, * * * the said suit or prosecution

may at any time before the trial or final

hearing thereof be removed for trial into the

district court next to be holden in the dis-

trict where the same is pending upon the

petition of such defendant to said district

court and in the following manner: Said pe-

tition shall set forth the nature of the suit or

prosecution and be verified by affidavit and,

together with a certificate signed by an at-

torney or counselor at law of some court of

record of the State where such suit or prose-

cution is commenced or of the United States

stating that, as counsel for the petitioner, he

has examined the proceedings against him

and carefully inquired into all the matters

set forth in the petition, and that he believes

them to be true, shall be presented to the said

district court, if in session, or if it be not,

to the clerk thereof at his office, and shall be

filed in said oifice. * * *

;

‘

SRA eee NE Rea Sa TE

PTI CY

PRs WIT

STATEMENT

The facts appear in the response to the rule to

show cause which is filed simultaneously with this

brief.

a a a ae ce

SUMMARY OF ARGUMENT

The petition for removal contains a full and

frank explanation of the petitioner’s relation to the

transaction involved in the proceedings in the

State court, and indicates no purpose on his part

to conceal any fact or circumstance which might

tend to show that the act charged against him as

a crime was performed otherwise than in the course

of his official duties as a Federal prohibition agent.

The allegations of the petition clearly negative the

possibility that at the time he dealt the blow which

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resulted in the death of the deceased the petitioner

was performing other than official acts upon which

the prosecution could ve based. The petition there-

fore fully complies with the requirements for re-

moval petitions under Section 33 of the Judicial

Code as laid down by this Court in Maryland vy.

Soper (No. 1), 270 U.S. 9.

It was not essential under the removal statute

that the petition show that the act charged againist

the petitioner as an offense was justified by his

official duty. It was enough that the act was done

‘under color of’’ the petitioner’s office. An act

is done “under color of office’? when it is ostensibly

done in the performance of the officer’s duties and

within the apparent scope of his authority. The

phrase ‘color of office’? embraces a claim which

may later turn out to be'’groundless, as well as a

elaim which on full investigation is shown to be

well founded.

The objections that the petition showed that the

petitioner used more foree than was reasonably

necessary to effect an arrest for a misdemeanor;

that it failed to show that the deceased had

knowledge of the petitioner’s official capacity, or

whether the deceased was a boy or a man, or of

large or smali physique, ete., all relate to the ques-

tion whether the petitioner was justified by his

Federal office in doing the act charged against him

as a crime, rather than to the only issue which

is involved in the present proceedings, namely,

whether the act was done ‘‘under color of’’ his

offiee.

ARGUMENT

THE CASE WAS PROPERLY REMOVED TO THE FEDERAL

COURT

In its petition for mandamus and supporting brief,

the State of Colorado challenges the sufficiency of

the petition for removal on the ground that it fails

to comply with the requirements for removals

under Section 33 of the Judicial Code laid down

by this court in Maryland v. Soper (No. 1), 270

U.S.9. In that case a prosecution of Federal pro-

hibition agents on a charge of murder was removed

from the Circuit Court for Harford County, Mary-

land, to the Federal District Court, and a motion by

the State that the Federal cvurt rescind its order

of removal was denied. The State thereupon ap-

plied to this Court for leave to file a petition for a

writ of mandamus to eompel the District Court to

rem. nd the case. Leave was granted and, follow-

ing a hearing, this Court rendered an opinion in

which it held that prohibition agents came within

the scope of Section 33 (pp. 30-32) and stated the

essentials to establish a case for removal under that

section as follows (pp. 33-84) :

The prosecution to be removed under the

section must have been instituted ‘‘on ac-

count of’’ acts done by the defendant as a

federal officer under color of his office or of

the revenue or prohibition law. There must

be a causal connection between what the of-

ficer has done under asserted official author-

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ity and the state prosecution. It must ap-

pear that the prosecution of him, for what-

ever offense, has arisen out of the acts done

by him under color of federal authority and

in enforcement of federal law, and he must

by direct averment exclude the possibility

that it was based on acts or conduct of his

not justified by his federal duty. But the

statute does not require that the prosecution

must be for the very acts which the officer

admits to have been done by him under fed-

eral authority. It is enough that his acts

or his presence at the place in performance

of his official duty constitute the basis,

though mistaken or false, of the state prose-

cution.

* * * * *

In invoking the protection of a trial of a

state offense in a federal court under section

33, a federal officer abandons his right to re-

fuse to testify because accused of crime, at

least to the extent of disclosing in his appli-

cation for removal all the circumstances

known to him out of which the prosecution

arose. The defense he is to make is that of

his immunity from punishment by the State,

because what he did was justified by his duty

under the federal iaw, and because he did

nothing else on which the prosecution could

be based. He must establish fully and fairly

this defense by the allegations of his peti-

tition for removal before the federal court

ean properly grant it. It is incumbent on

him, conformably to the rules of good piead-

ing, to make the case on which. he relies, so

that the court may be fully advised and the

State may take issue by a motion to remand.

Referring then to the allegation of the petition

that the indictment was a criminal prosecution ‘‘on

account of acts alleged to have been done by * * *

petitioners at a time when they were engaged in the

performance of their duties as Federal Prohibition

Officers,’’ this Court held such allegation to be in-

sufficient, saying (p. 35):

These 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 perform-

ing their official duties. They do not nega-

tive the possibility that they were doing

other acts than official acts at the time and

on this occasion, or make it clear and spe-

cific that whatever was done by them lead-

ing to the proseeution was done under color

of their federal official duty. * * * In

order to justify so exceptional a procedure,

the person secking the benefit of it should

be candid, specific and positive in explain-

ing 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.

The petition was held to be further defective be-

cause of its failure to mention certain circumstances

which were within the knowledge of petitioners and

which had a tendency to show the reason and oc-

easion for the criminal charge against them. Hold-

ing, therefore, that a case for removal was not made

106777—32

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out by the petition, this Court ordered that man-

damus issue unless the District Court should per-

mit an amendinent of the petition which would sup-

ply the deficiencies pointed out in the opinion.

In the instant case the removal petition is not

open to the objections found by this Court in the

petition in Maryland v. Soper, supra. The present

petition avers that all the acts and doings of the

petitioner leading up to and including the act for

which the information was filed against him in the

State court were done under and by right of his

office as a Federal prohibition agent. It further-

more alleges that the charge against the petitioner

is based entirely upon the circumstances related in

the petition, thus negativing the possibility that

he was acting otherwise than officially when he

delivered the blow which resulted in the death of

the deceased. The petition indicates no purpose

on the part of the petitioner to conceal any fact

which might tend to show that such blow was dealt

otherwise than in the performance of his duties.

On the contrary, it contains a candid, specific, and

positive explanation of the petitioner’s relation to

the transaction growing out of which he was in-

formed against. Thus, after showing that peti-

tioner’s presence on the premises was in pursuance

of an order of his superior officer to investigate re-

ported violations of the National Prohibition Act

there, the petition states that upon seeing Smith in

the possession of the bottle of wine the petitioner

proceeded to take possession of the wine and to

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arrest Smith; that Smith ‘‘did resist arrest, did

attempt to destroy said bottle of wine, and did pro-

ceed to assault your petitioner and did attempt to

escape ’’; that thereupon one Al Green attempted

to assist Smith to assault the petitioner and to at-

tempt to escape; that ‘‘in the scuffle that ensued,

and while your petitioner was engaged in * * *

making, and attempting to make, said arrest of

said Melford Smith, and in protecting himself in

the discharge of his duties, and in attempting to

seize said bottle of wine, it became necessary i

order to subdue the said Melford Smith for your

petitioner to strike, and he did strike, the said Mel-

ford Smith on the head with your petitioner’s

gun,’’ and that, upon petitioner’s information and

belief, Smith died as a result of the blow given by

the petitioner.

It is submitted that these uncontroverted allega-

tions show that the criminal prosecution com-

meneed in the State court against the petitioner

was “on account of’? an act done by him ‘‘under

eolor of his office,’? and that the petition there-

fore adequately states a case for removal under

Section 33.

The brief filed on behalf of the State is largely

devoted to arguments which rest upon the assump-

tion that the petitioner was acting beyond the scope

of his authority when he delivered the blow which

resulted in the death of Smith. It is pointed out

that the possession of the bottle of wine by Smith

was but a misdemeanor, and many authorities are

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‘

LIS ITE TA Sex PE ENTE EM STR IEE PRT

a eC et oe tee

cited to show that a» officer is not justified in tak-

ing human life in order to etfeet an arrest for such

an offense. But the premise upon which these con-

tentions are based finds no support in the statute.

Section 33 does not confine the right to remove to

cases where the suit or prosecution in the State

court is for an act which the officer was authorized

or required to do by his Federal duty. That would

require a complete justification by the officer,

whereas under the statute it suffices that the act be

done ‘‘under color of his offiee,’’ that is,.in the

ostensible pursuit of his duties and within the ap-

parent scope of his authority. As held by the Dis-

trict Court in this case, the phrase ‘‘color of office”’

covers a claim which may later turn out to be

groundless, as well as a claim which full investiga-

tion shows to have been well fomided. See Bouvier,

Law Dictionary, ‘‘Color of Office.’”? Virginia v.

De Hart, 119 Fed. 626 (C. C. W. D. Va.) ; Griffiths

v. Hardenbergh, 41 N. Y. 464 469-470; Wilson v.

Fouler, 88 Md. 601, 605. In Tennessee v. Davis,

100 U.S. 257, this Court, with reference to the iden-

tical provisions of Section 643 of the Revised Stat-

utes (which statute was reenacted as Section 33 of

the Judicial Code), said (pp. 261-262) :

But the act of Cougress authorizes the re-

moval of any cause, when the acts of the de-

fendant complained of were done, or claimed

to have becn done, in the discharge of his

duty as a Federal officer. It makes such a

claim a basis for the assumption of Federal

PM CGE So Taz

72.4 >

jurisdiction of the case, and for retaining.

it, at least until the claim proves unfounded.

(Italics ours. )

Regarding the similar phrase ‘‘color of law,’’ the

following was quoted in McCain v. Des Moines, 174

U. S. 168, 175, from the opinion of the Supreme

Court of lowa in State of Iowa vy. City of Des

Moines, 96 lowa 521, 535:

**Color of law’’ does not mean actual law.

‘*Color,’’? as a modifier, in legal parlance,

means ‘‘appearance as distinguished from

reality.’’ Color of law means ‘‘mere sem-

blance of legal right.’”? Kin. Law Dict. &

Gloss.

Where, therefore, an officer who is authorized to

arrest for an offense committed in his presence, or

to seize contraband property openly possessed in

his view, is obstructed in arresting the offender or

seizing the contraband, his act in overcoming such

resistance to the exercise of his lawful authority is

done ‘‘under color of his office,’’ within the mean-

ing of Section 33, regardless of whether he used

more force than was reasonably necessary to carry

out his duty. If the force used by the officer in

such case is excessive, and therefore beyond the

scope of his authority, he may be subjected therefor

to a civil suit or criminal prosecution. But if he

comes within the class of officers to which Section

33 applies, he is given the right by that statute to

have any civil suit or criminal prosecution com-

menced against him in a State court on account of

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the act thus performed ‘‘under color of his office”’

removed to the Federal court, where it will be tried

out on its merits.

Such is the effect given the decision in Maryland

v. Soper, supra, in the subsequent proceedings in

that case. Following that decision, Judge Soper,

pursuant to the authority therein given him, per-

mitted an amendment of the petition for removal,

and upon the filing of the amended petition again

ordered the case removed to his court. The State

of Maryland moved to rescind the removal order on

the ground that the allegations of the amended peti-

tion did not disclose facts entitling the petitioners

to the relief prayed. In an opinion denying that

motion Judge Soper said (State of Maryland v.

Ford, 12 F. (2d) 289, 291-292) :

The state of Maryland criticizes the new

petition substantially on two grounds: (1)

That the facts set out do not justify a homi-

cide; and (2) that it is very improbable that

the deceased was shot during the pursuit

of the men who fled, because they ran in a

northerly direction, whereas he was found

about 300 yards to the south of the site of

the still. In regard to the first point, it

may be said that it is not necessary, in order

tc justify a removal, that the agents show

in their petition that the homicide, if com-

mitted by them, was justified under the law.

The order of removal does not determine

either the guilt or innocence of the accused,

but merely that the prosecution is based

upon their official acts.

—L——

As to the second point, it is true that the

petition does not explain how the wounded

man reached the spot at which he was found.

But the incident is not in itself impossible,

and an explanation is not essential to the

petitioners’ case. Nor is it necessary for

the petitioners to demonstrate or admit that

one of them shot the deceased. ‘It is

enough that their acts or their presence at

the place in performance of their official

duty constitute the basis, though mistaken

or false, of the state prosecution.”’

See also, State of Rhode Island v. Richardson,

32 F. (2d) 301, 302-303 (D. R. I.), motion for

leave to file a petition for a writ of maadamus de-

nied, Kx parte Rhode Isiand, 280 U. 8. 5380; People

of State of New York v. Walsh, 40 F. (2d) 58, 61-

62 (E. D.N. Y.).

The further objections raised on behalf of the

State of Colorado to the removal petition in this

case, that it failed to allege that the deceased, Mel-

ford Smith, had knowledge of the petitioner’s of-

ficial capacity ; that it failed to show whether Smith

Was a boy or a man, or of large or small physique,

or was about to vverpower the petitioner, and that

it failed to state facts or circumstances which would

render the petitioner immune from punishment

under the laws of the State, all relate to the ques-

tion whether the petitioner was justified by his

Federal office in doing the act which is charged

against him as a crime, rather than to the only issue

which is involved in the present proceedings,

“7

namely, whether the act was done ‘‘under color of”’

his office.

CONCLUSION

The case was properly removed to the Federal

court. The rule should therefore be discharged and

the motion for leave to file a petition for mandamus

should be denied.

Respectfully submitted.

THomaAS D. THACHER,

Solicitor General.

G. A. YOUNGQUIST,

Assistant Attorney General.

MaAHLON D. KIEFER,

JOHN J. BYRNE,

ErRwWIN N. GRISWOLD,

Attorneys.

Of Counsel for the Respondents.

Marcu, 1932.

Bates aiewck.. Reyes Set Riera

APPENDIX

UniTep States District Court, District oF

CoLORADO

No. 7000

HeNryY DIERKS, PETITIONER

MEMORANDUM

November 13, 1931, Henry Dierks filed his peti-

tion in this court, asking for a writ of certiorari and

habeas corpus cum causa; Sec. 33, J. C., Sec. 76,

Tit. 28, U. S. C. A. Briefly, the petition alieges

that on the ninth day of November, 1931, a criminal

proceeding was commenced against him in the

state district court for the First Judiciai District

of Colorado, County of Arapahoe, by the filing of

an information charging that the petitioner on the

seventh of November, 1931, feloniously, unlaw-

fully, ete., killed and murdered one Melford

Smith; that he had been arrested pursuant thereto,

admitted to bail, and that said criminal proceeding

was still pending, and there had been no trial or

final hearing.

He further shows that prior to November 7,

1931, and on that date, he was a Federal officer,

acting under authority of the revenue laws of the

United States, to wit, a prohibition agent, and the

act for which he was informed against and held in

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the state court was performed while engaged in

the discharge of his duties as such prohibition

agent.

The facts set forth are that on November 7,

1931, he, together with prohibition agent Ellsworth,

was directed by his superior to investigate a com-

plaint of violations of the national prohibition law

reported as being committed at No. 3005 South

Broadway, Englewood, Arapahoe County, Colo-

rado; that pursuant thereto petitioner and Ells-

worth proceeded to the said location—a_ public

restaurant, or so-called ‘‘hamburger’’ stand—that

he entered, informed the proprietor, or man in

charge, tliat he was a Federal prohibition agent,

at the same time exhibiting his badge, stating that

he had come to investigate alleged violations of

the Prohibition Act on the premises and desired

to look around; that the said proprietor, or per-

son in charge, gave permission so to do; that there-

upon one Melford Smith, a young man, entered

the premises, walked to the rear, and seating him-

self on an unoccupied stovl at the customers’

eounter, took out a pint bottle of wine from his

coat pocket, set it on the counter in full and open

view of petitioner, and proceeded to look around

for a drinking glass; that petitioner observing

this action and the wine, and believing that said

Smith was engaged in violation of the Prohibition

Act and internal revenue laws of the United

States, attempted to take possession of the wine

and arrest said Smith; that said Smith resisted

arrest, attempted to destroy the bottle, and did

proceed to assault your petitioner and attempt to

escape. Further, that a bystander, one Green, at-

tempted to assist Smith to assault petitioner and

to help him to escape, and that in the scuffle that

ensued, and while petitioner was engaged in the

discharge of his official duties in making, and at-

tempting to make, said arrest of Smith, and pro-

tecting himself in the discharge of his duties, and

in seizing said wine, it became necessary, in order

to subdue said Smith, for petitioner to strike, and

he cid strike said Smith on the head with his

gun; that thereupon the said prohibition agent

Ellsworth came to the assistance of petitioner and

they arrested Smith and others who had taken a

part in the affray, placed them in jail pending

the filing of charges for violation of the Prohibi-

tion Act and for assaulting an officer of the United

States; that at the time said Smith was placed in

the jail of the City and County of Denver he did

not appear to have received any serious injury, but

on the following day, after spending a night in

jail, he became sick and died. Petitioner is in-

formed—and on information and belief alleges—

that said Smith died from an injury to his head,

caused by a blow given to said Smith by petitioner

during the scuffle aforesaid; that said charge of

murder referred to is based entirely upon the cir-

cumstances surrounding said injury and subse-

quent death of Smith as related.

Petitioner further alleges that he is not guilty

of the crime of murder, or any other offense under

the jaws of the State of Colorado; that said crimi-

na! proceeding referred to arises solely out cf the

acts performed by said petitioner as an officer act-

ing under the revenue laws of the United States,

and while acting as United States prohibition

agent.

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On presentation of the petition this court issued

a writ of habeas corpus cum causa, which was

served upon the clerk of the state court, and agree-

able sheveto, the record and proceedings of said

cause in the state court were transmitted here.

The matter is now before the court on motion of the

state District Attorney for the County of Arapahoe

to quash the writ and remand the cause.

This motion sets up numerous grounds, but

without enumerating them in detail, it may be said

that the main coutention is that the petition does

not bring the case within See. 33 of the Judicial

Code of the United States (Tit. 28, See. 76, U.S.

C. A.).

Let us look at the statute:

When any civil suit or criminal prosecution

is commenced in any court of a state against

any officer appointed under, or acting by au-

thority of any revenue law of the United

States, or against any person acting under

and by authority of any such officer on ac-

count of any act done under color of his

office, or of any such law * * * the said

suit or prosecution may at any time before

trial, or final hearing thereof, be removed

for trial into the district court next to be

holden in the district where the same is

pending, upon the petition of such defend-

ant to said district court, and in the follow-

ing manner.

Then follow the procedural steps necessary to

transfer the case to the Federal court, upon com-

pliance with which the statute states:

It shall be the duty of the state court to stay

all further proceedings in the cause, and the

suit, * * * shali be held to be removed

to the district court.

It is admitted that the proper procedural steps

have been taken both in this court and the state

court to remove the cause here. Is the case made

covered by this section ?

Preliminarily, let us say that a good deal of the

argument and many of the cases cited in support

of the motion fo remand are not in point, being

based upon Sces. 451, 452, 453, and 461, Tit. 28,

U. S. C. A., which vest the Federal courts and

the judges thereof with plenary power to issue

writs of habeas corpus and to inquire into the

cause of restraint of liberty of any citizen and to

dispose of the party as law and justice require,

if he is in custody in violation of the Federal

Constitution.

Sec. 453, supra, provides that the writ of habeas

corpus shall extend to a person who is in custody

for an act done or omitted pursuant to a law of the

United States, ete. And Sec. 461 imposes upon

the Federal judge the duty to proceed in a sum-

mary way to determine the facts by hearing testi-

mony and arguments, and dispose of the party as

law and justice require.

The provisions and the remedies afforded by

these sections are entirely different from the ones

involved here. They give the Federal court in a

proper case the power to discharge the prisoner

from custody by the state even before trial, or

after trial and conviction, and while serving sen-

tence. This is a far more drastic power than that

granted by Sec. 33, supra, because they authorize

Federal courts to pass upon the guilt or innocence

of the petitioner in a proper case, and to free him

from prosecution or conviction in the state court.

Such was the question involved in Drury v.

Lewis, 200 U. 8. 1, where it is said (p. 7) quoting

from Baker v. Grice, 169 U. 8, 284, that:

a person under an indictment in a state

court and subject to its laws may, by the de-

cision 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.