If you think the concept of a state law enforcement officer arresting a federal police officer for violating state law is outlandish, you should probably know that it already goes on.
Byron McDonald, a lieutenant with the Bureau of Indian Affairs Justice Services, was arrested by Salt Lake City Police after he allegedly pointed a gun at an Uber driver Oct. 20. McDonald, who had been drinking with friends, became hostile to the driver once he dropped his friends off, according to KUTV. He allegedly pulled a gun on the driver, causing him to flee and call 911.
The following day, McDonald was taken into custody and charged with felony aggravated assault by Salt Lake City’s District Attorney, who stated that the Uber driver’s account was matched hotel security cameras which recorded the incident.
McDonald was able to get out on bail several days later.
The Department of the Interior, which oversees the Bureau of Indian Affairs, released a statement regarding the incident shortly after saying McDonald had been on official travel at the time of the incident.
Notice that nowhere did the DOT or McDonald claim he had some authority or privilege that prevented his arrest. The DOT did not say in their statement that the local police had no authority over federal police. In short, there is no controversy over whether or not local police have the authority to arrest federal police accused of violating state laws.
Ideally, this is how situations involving federal agents violating people’s rights in an attempt to enforce unconstitutional federal laws would play out.
Of course, a federal officer accused of committing assault is not considered the same as an officer attempting to enforce unconstitutional federal laws – even if it should be. That’s where the incorrect interpretation of the Supremacy Clause gets thrown around. Here, it did not apply because even the feds aren’t going to claim that officers have the right to point guns at cab drivers after a night of heavy drinking.
Yet, the principle behind the action remains. A federal agent pointing a gun at a cab driver’s head because he’s drunk is no different than pointing a gun at a cab driver’s head because he’s trying to enforce a federal law that violates the rights of the cab driver.
In practice, unfortunately, if a state were to arrest a federal agent going about their duty, the federal government would immediately challenge the arrest. The case would be immediately remanded to federal court. The state court system would immediately comply and turn the case over to the federal court. And once in federal court, a federal agent enforcing a federal act would likely be released, with the arresting state officers likely to face federal charges.
Not that we are actively wanting to hang on every word the federal courts say, but as long as the states comply with court orders in this way, this is the reality in which we have to work.
The problem with strong nullification laws, where federal agents risk arrest if they attempt to enforce unconstitutional federal laws, is that people still hang on to this misguided view that any active resistance against federal agencies or agents is verboten.
It’s like getting in a fight with a kid and having his mom decide who is right.
This is why, strategically, anti-commandeering laws are currently the most effective and practical for resisting unconstitutional federal laws. It allows us to thwart federal law enforcement in a state by refusing to provide them with necessary assistance. It is non-confrontational, as federal agents do not risk arrest. And unlike strong nullification laws, anti-commandeering has been upheld by the Supreme Court again and again.
In the film Michael Collins, which deals with the Irish War for Independence, future Irish president Éamon de Valera writes a letter to the titular character following the failed Easter Rising in 1916, explaining that they could “defeat the British Empire by ignoring it.”
That in essence is the strategy behind anti-commandeering. Until states are ready to defy federal courts on the matter of nullification, we defeat the feds by having the states ignore them when they pass laws that violate our rights.
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