# Respondents Brief — Colorado v. Symes

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1932
- **Citation:** 286 U.S. 510

## Text

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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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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

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11

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——

13

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.

14

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

17

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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18

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.

Nr

19

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.

20

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.

See also In re Neagle, 135 U.S. 1.

In Ex parte Crouch, 112 U.S. 178, the petitioner
was an ordinary citizen charged with a violation
of the state law. The Court said in discharging
the writ that the only question was the sufficiency
of his defense to the information under which he
was held. There was_no claim that he was a Fed-
eral officer, or acting under the authority of the
United States, ete. The Chief Justice specifically
stated that its holding had no application to writs
of habeas corpus cum causa issued by the courts
| of the United States in aid of their jurisdiction
upon the removal of suits or prosecutions from the
state court for trial under the authority of an act
of Congress.

Ex parte Royall, 112 U. 8. 181, involved nothing
more than a question of appellate practice on 4
writ of habeas corpus. Likewise in Castle v. Lewis,
254 Fed. 917, Judge Sanborn w..3; considering said
Sections 451, 452, 453, and 461, Tit. 28. He theld
that the Federal courts had plenary jurisdiction
thereunder, to inquire into the cause of confine-
ment—where the petitioner alleges he is held in

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21

violation of the Constitution, or a law or treaty of
the United States—by means of habeas corpus,
and to discharge the prisoner in a proper case.

Sec. 33 of the Jud. Code has nothing in common
with the above. The writ provided for is not a true
habeas corpus writ. Habeas corpus is directed to
a person detaining another, commanding him to
produce the body of the prisoner, and to submit to
whatever the court or judge issuing the writ shall
consider in that behalf. It is a high prerogative
writ of the common law, the object of which is the
liberation of those who may be imprisoned without
sufficient cause.

The procedure we are here considering is really
the old writ of habeas corpus ad faciendum et
recipiendum, which according to Blackstone, was
issued in civil cases to remove the cause, as well as
the body of the defendant, from an inferior to a
superior court having jurisdiction. Its object is
to remove the cause, as explained by Chief Justice
Marsiuall in Ex parte Bollman, 4 Cranch 74, and all
this section authorizes is the removal of the cause
to the tederal court for trial, as a cause originally
commenced in the Federal court. The judge is-
suing the writ does not pass upon, nor is the peti-
tioner’s guilt or innocence involved. If sustained
the Federal court tries the case—in this instance
to a jury—on the same information and in the
same manner as it would be tried in the state court.
In short, this is nothing more than a proceeding
to remove a criminal case from the state to the
Federal court, in the same manner that many
other causes are removable from the state to the
Federal court, and upon a proper showing being
made this court has no discretion. The petitioner

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22

ean not be denied a right given him by the Con-
gress.

The case made by petitioner clearly entitles him
to removal. Acting under the authority of a Fed-
eral law, he was on the premises in question under
orders of his superior officer's, saw a Federal law
being violated, and savs the death of Smith re-
sulted from a blow received while resisting arrest
and assaulting petitioner. This is not denied.
Maryland v. Soper, 270 U.S. p. 9, after holding
that this section applies to prohibition agents,
says:

It is enough: «is acts or his presence at
the place in performance of his official duty
constitutes the basis, though mistaken or
false, of the state prosecution.

And that—

The defense he is to make is that of his

immunity from the punishment by the State,
because what he did was justified by his
duty under the Federal law and because he
did nothing else on which the prosecution
could be based.

Petitioner negatives the possibility that he was
acting otherwise than officially at the time. What-
ever he did leading to the prosecution was under
color of his official Federal duty. Unlike the
Soper case petitioner admits he brought about the
death of Smith.

The Attorney General of Maryland rightly ar-
gued in the Soper case that under Sec. 753, supra,
a petitioner must establish, inter alia, his innocence
of the crime charged as a condition of his release;
that under Sec. 33, supra, it is only necessary to
show that the act upon which the prosecution was

23

grounded was done in the probable pursuance of
his duties, and within the apparent scope of his
authority ; that all that is necessary is a prima facie
showing that the act was done under the color of
office. The phrase ‘‘color of office’? may cover a
claim that later turns out to be groundless, as well
as a Claim, which upon full investigation is shown
to be well founded, and the statute requires only a
fair showing that the officer was acting at the time
in the probable course of his duty. Tennessee v.
Davis, 100 U. S. 257; Maryland v. Soper, supra.

In that case the Supreme Court, in answer to
the direct question certified by the circuit court, as
to whether an indictment of a revenue officer of
the United States for murder found in the state
court under a state of facts alleged in the petition
for removal (identical with those in the case at
bar), is removable under this section, said (271):

It ought therefore to be considered as set-
tled that the constitutional powers of Con-
gress to authorize the removal of criminal
cases for alleged offenses against the state
laws, from the state courts to the circuit
court of the United States, when there arises
a Federal question in them, is as ample as
its power to authorize the removal of a civil
case.

The argument is pressed on us that the removal
of the case would violate the sovereignty of the
State of Colorado and prevent the state from try-
ing persons charged with the violations of its laws.
Such reasoning is plausible but fallacious. We
live under a dual sovereignty, that of the National
Government and the respective states. In adopt-
ing the Constitution the states surrendered some of
their sovereignty to the Federal Government.

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24

Neither the Federal nor the state government is
absolutely supreme. There is a division of judicial
powers both civil and criminal between the state
and national courts, and when a particular state of |
facts places a case under the powers of the Federal
Government, it of course must assume jurisdiction,
and the state can not complain. Likewise, the Fed-
eral courts almost daily take notice of the limita-
tions on their powers, by refusing jurisdiction and
remanding to the state courts matters beyond their
powers, and solely within the jurisdiction of the
states.

There can be no conflict of jurisdiction. The
judges and officers of the state and Federal courts
are in duty bound by their oath to observe and re-
spect each other’s jurisdiction, and the United
States Constitution, and the laws made thereunder
are supreme and binding on both. Tennessee v.
Davis, supra, p. 266. In the final analysis both
administer the same laws, whether they be enact-
ments of the National Congress or of the state leg-
islature, and are equally bound to observe the fol-
lowing rule of the Supreme Court. (Hz parte
Young, 209 U.S. 123.)

We have no more right to decline the exer-
cise of jurisdiction which is given than to
; usurp that which is not given. The one or
4 the other would be treason to the Constitu-
tion. Questions may arise which we would
gladly avoid, but we can not avoid them.
All we can do is to exercise our best judg-
ment, and conscientiously perform our duty.

Other pertinent cases are Davis v. South Carolina,
107 U.S. 597; State of Rhode Island v. Richardson,
32 Fed. (2d) 301; People of the State of New York

SSS VAM RDA

20

v. Walsh, 40 Fed. (2d) 58; Cleveland, Columbus,
etc., Railroad v. McClung, 119 U. 8S. 454.

State’s counsel admit the feeling against peti-
tioner in his district is such that he can not have a
fair trial. That this is in part, at least, the result
of the agitation and unfair publicity by the local
papers, will not be denied.

It is the paramount duty of a court, above all
other considerations, to assure a defendant a fair
trial by a jury drawn from a distriet where such
feeling does not exist.

If the Mooney case, so called, is, as stated by
one of our papers, a travesty on justice, and the
Sacco-Vanzetti trial a judicial murder, it was due
directly to unwarranted agitation and inflamed
and unreasoning public opinion.

Colorado does not need a cause celebre.

The motion to remand will be denied.

JANUARY 2, 1932.

U.S. GOVERNMENT PRINTING OFFICE: 1932

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