This report explores when states can or cannot pursue prosecutions against federal officials and what that has looked like in practice. This practice stretches back to at least the early 1800s, but it comes with a mixed track record.
As state and local officials increasingly clash with federal officials over immigration enforcement,1 policing of protests,2 and much more,3 they could soon turn to a long-used tactic of state pushback: prosecuting federal agents or officials for violations of state laws.4
This practice stretches back to at least the early 1800s, and it comes with a mixed track record. Some state prosecutions of federal actors are relatively non-controversial, like charging postal workers for reckless driving while on the job.5 Others involve core disputes between states and the federal government, including on desegregation,6 slavery,7 and prohibition.8
The bottom line is that states are legally permitted to prosecute federal officials for state crimes—within limits. The limits stem from the federal constitutional principle that states should not be able to undermine federal policy via targeted criminal prosecutions, a doctrine known as Supremacy Clause immunity.9 But this principle only applies when federal officials are reasonably acting within the bounds of their lawful federal duties.10 When federal officials act beyond the scope of their duties, violate federal law, or behave in an egregious or unwarranted manner, state prosecutions can move forward. Even where charges are ultimately dismissed, states have occasionally used prosecutions as a form of pushback against controversial federal actions.
This explainer explores when states can or cannot pursue prosecutions against federal officials and what that has looked like in practice. This explainer details the relevant history and law; it does not advocate for or against any particular course of action. It also does not address the related but distinct question of when federal officials can face civil (rather than criminal) suits under state law for violating the federal constitution—a separate explainer on that issue is available here.
Part I lays out examples of state criminal cases against federal officials stretching back to the early 1800s. Part II outlines the legal hurdles to pursuing such charges—specifically, federal officials are sometimes immune from state criminal prosecutions for actions carried out as part of their federal duties. Part III then explains why these cases often end up in federal court, rather than state court. Finally, Part IV identifies several types of state criminal laws that may be most relevant to federal officials’ conduct.
States have a long history of prosecuting federal officials. They have done so with a variety of motives and with mixed success. At one end of the spectrum, some state prosecutions of federal actors have overtly aimed to frustrate federal policy. Such prosecutions have served as a way for state-level actors to express resistance and generate friction, but they generally have not resulted in valid convictions. At the other end of the spectrum, states have at times successfully prosecuted federal actors who committed on-the-job crimes that had little to do with the proper performance of their federal duties. Other cases fall somewhere in between, with state prosecutors contending that federal officers acted egregiously or used excessive force and officers responding that they were lawfully carrying out their duties. This Part provides an overview of some of these cases, stretching from the early 1800s to today.11
On the overt resistance end of the spectrum, many cases in the 1800s stemmed from states’ disagreements with federal policies and represented outright efforts to obstruct federal action. For example, during the War of 1812, some New England states openly resisted federal trade embargoes, including by pursuing state criminal actions against federal customs officers for seizing goods.12 In the mid-1800s, some Northern states opposed to the Fugitive Slave Act13 charged U.S. marshals for capturing or failing to release previously enslaved individuals. In some of these cases, state courts first ordered the marshals to release captured individuals under a writ of habeas corpus, and the marshals were then charged with criminal contempt and taken into custody if they disobeyed.14 The marshals typically then sought relief in federal court, also under writs of habeas corpus.15 In one prominent episode, Wisconsin authorities arrested an enslaver and two U.S. deputy marshals, charging them with kidnapping and assault and battery for capturing and jailing a previously enslaved person.16 A federal court ultimately ordered release of the trio, however, on the ground that they were acting in accordance with federal law.17
In the late-1800s and early 1900s, state prosecutions often centered on federal officers’ enforcement of revenue and prohibition laws.18 In an 1898 case, for example, Virginia prosecutors charged a federal tax collector’s posse with killing several cattle during a shoot-out.19 According to the federal officers, the shoot-out ensued after they were ambushed by a group defending violators of the tax laws.20 In other examples, states charged federal officers with murder or attempted murder for using lethal force while carrying out arrests or other enforcement actions,21 such as seizing equipment from an illicit distillery.22 The federal officers typically claimed they were reasonably performing their federal duties and/or were acting in self-defense.23 At times, federal courts agreed and ordered the officers to be released from state custody24; in other instances, federal courts allowed the state prosecutions to go ahead, such as where the officers’ use of force appeared to be unreasonable25 or where the charged crime was not integral to the effective discharge of federal duties.26
Many prosecutions since the mid-1900s similarly have centered on alleged misconduct by federal law enforcement officers and include charges for assault and battery, burglary, manslaughter, and murder.27 Some of these cases played out amid wider disagreements and flashpoints between state officials and the federal government.28 A case in the 1960s, for example, stemmed from a segregationist riot at the University of Mississippi, where U.S. Marshals were seeking to facilitate the court-ordered enrollment of James Meredith, a Black student.29 During the ensuing confrontation, the chief marshal ordered federal officers to release tear gas into the crowd.30 Mississippi later charged the chief marshal with disorderly conduct for that decision, alleging that the use of tear gas was unlawful and had incited the riot, which left two dead.31 On the chief marshal’s petition for habeas relief, a federal district court ordered the charges dismissed because it concluded that the marshal “had reasonable cause to believe that drastic action was necessary to carry out his duties, and that he had reasonable cause to believe (and did so believe) that the use of tear gas, a discretionary choice of means on his part, was a proper measure to be taken.”32
Decades later, in 1992, another high-profile prosecution of a federal official involved the siege of anti-government separatist Randall Weaver’s cabin near Ruby Ridge, Idaho.33 Amid a controversial series of events, an FBI sniper accidentally killed Weaver’s unarmed wife, Vicki Weaver.34 The U.S. Attorney General decided not to prosecute the sniper under federal law, but Idaho prosecutors charged him with involuntary manslaughter under state law.35 After some uncertainty in prior court decisions, a split federal appeals court concluded that the Idaho case could tentatively go ahead because disputed facts left it unclear whether the sniper “acted in an objectively reasonable manner in carrying out [his] duties.”36 A week after that decision, however, the newly elected county prosecutor in Idaho chose to drop the charges.37
And in a case from 2006, Wyoming prosecutors charged federal wildlife officers with trespass and littering for entering private land while collaring wolves as part of a federal monitoring program.38 The Tenth Circuit concluded that the officers were immune from prosecution because they had an “objectively reasonable and well-founded” belief that they were on public land when conducting the collaring.39 The court also concluded that the prosecution “was not a bona fide effort to punish a violation of Wyoming trespass law, which requires knowledge on the part of a trespasser, but rather an attempt to hinder a locally unpopular federal program.”40
Other recent high-profile cases include a Virginia prosecution of U.S. Park Police officers who shot and killed a man in 2017,41 a Boston municipal court judge finding a U.S. Immigration and Customs Enforcement agent in contempt of court and referring the matter to the district attorney for prosecution after the agent detained a man in the middle of a municipal court trial,42 and an Oregon prosecution of a Drug Enforcement Administration officer who hit and killed a cyclist in 2023 while pursuing a suspected fentanyl trafficker.43 The first two cases were dismissed,44 and the Oregon case is still pending in a federal appeals court.45
Lastly, states also prosecute federal officials for on-the-job actions that have little or nothing to do with carrying out federal duties. For example, Arizona prosecutors charged a federal wildlife officer with animal cruelty for trapping his neighbor’s dog amid a “personal dispute” with the neighbor.46 A federal district court concluded that, although the trapping fell within the general federal authority of an urban wildlife specialist, the officer did not demonstrate that he “honestly believed” the trapping was reasonable and, even if he had, the trapping was not objectively reasonable.47 The trial therefore proceeded, though the jury ultimately found the officer not guilty of animal cruelty.48 In another state case, which ultimately reached the U.S. Supreme Court, prosecutors in Santa Clara County, California, obtained a conviction of a postal worker after she collided with and killed a bicyclist.49
In short, states have been filing criminal charges against federal officials in a variety of situations for more than two centuries. But, as discussed in further detail below, whether and when those prosecutions can ultimately proceed to trial and conviction is a much more complex question that turns in part on federal constitutional law.
In some of the examples outlined in the preceding Part, federal courts ultimately stepped in to halt the state prosecution based on Supremacy Clause immunity. This section provides an overview of when federal officials are and are not entitled to this immunity.
First, as the historical examples in Part I indicate, federal officials are not categorically immune from state criminal prosecution, even while on duty.50 For example, a marine who hit and killed someone after failing to yield the right of way could be prosecuted for vehicular homicide under state law—he was not immune just because he was driving in a military convoy.51 But there is immunity if the federal official’s actions are necessary to carrying out a lawful federal duty. For example, in another driving-related case, a court held that a federal officer was immune from state enforcement of speeding laws while pursuing a fleeing suspect, so long as he acted with reasonable care and prudence in the circumstances.52
The basic idea behind this type of immunity is that states should not be able to undermine federal law by criminally charging federal officials who are properly discharging their lawful federal duties. This idea is rooted in the U.S. Constitution’s Supremacy Clause, which provides that federal law is the supreme law of the land and wins out over state law if the two conflict.53 As the Tenth Circuit explained in the wolf-collaring case discussed above: “These disputes permit of no easy answers, because while state criminal law provides an important check against abuse of power by federal officials, the supremacy of federal law precludes the use of state prosecutorial power to frustrate the legitimate and reasonable exercise of federal authority.”54 Accordingly, federal courts have long said that federal officials are insulated from state prosecutions if (1) the federal official was doing something authorized by federal law, and (2) the official’s actions were “necessary and proper” in fulfilling their federal duties.55 For example, in the foundational case on Supremacy Clause immunity, In re Neagle, a U.S. Marshal assigned to protect a U.S. Supreme Court justice shot and killed an attacker in California.56 The state charged the marshal with murder, but the U.S. Supreme Court concluded that the marshal could not be prosecuted because he was carrying out his official duties and was justified in killing the attacker as part of those duties.57
The Supremacy Clause immunity test has some clearcut cases—for example, when states prosecute postal workers for reckless driving on the job.58 But, for many cases, the immunity analysis is complex and contested, with outcomes hinging on court-specific elaborations of the legal standard and on the factual particulars.59 For example, when considering whether an officer’s actions were authorized by federal law, some courts have focused on whether the actions fall broadly within the general scope of the officer’s duties, while others have asked whether the officer was directly authorized to perform the specific action.60 Similarly, in deciding whether an officer’s actions are necessary and proper, some courts consider the officer’s subjective beliefs, some look to whether the actions were objectively reasonable, and others evaluate both subjective and objective considerations.61 The U.S. Supreme Court has provided minimal guidance on such questions, which means the answers depend largely on which lower court is hearing the case.
Factual disputes, meanwhile, can sometimes prevent a court from resolving an officer’s Supremacy Clause immunity defense at an early stage of the litigation. For example, in United States ex rel. Drury v. Lewis,62 the U.S. Supreme Court allowed a state prosecution to proceed against two federal soldiers charged with killing a man they believed was stealing copper fixtures from federal property.63 Under the soldiers’ account, they told the man to halt, warned him before shooting, and only shot when he continued fleeing.64 Two witnesses offered a different account, however, testifying that the man stopped, turned, and surrendered before the soldiers shot him without warning.65 Given these disputed facts, the court allowed the case to proceed, noting that, if the man had indeed surrendered, “it could not reasonably be claimed that the fatal shot was fired in the performance of a duty imposed by the Federal law.”66 (The soldiers were ultimately acquitted at trial.67 ) Similarly, in the Ruby Ridge case discussed above, the en banc Ninth Circuit held that the prosecution could tentatively proceed because key disputed facts would bear on whether Horiuchi acted lawfully under the Fourth Amendment.68 The court, however, concluded that the factual disputes regarding the immunity claim should “be resolved by the district court prior to trial.”69
In short, while Supremacy Clause immunity grants federal officials a partial shield from state prosecution, that immunity is not absolute. Where key facts are in dispute or where federal officials act unreasonably in the line of duty, violate federal law, or act entirely outside their duties, state prosecutions can generally move forward.70
Another key question that arises when states prosecute federal officials is where the dispute will play out: state court or federal court. While state and local prosecutors initiate prosecutions of federal officials in state court, Congress has enacted laws that allow federal officials to “remove” (i.e., shift) their cases from state court to federal court if certain requirements are met.
Specifically, 28 U.S.C. § 1442 allows federal officials to move criminal prosecutions that are brought against them from state to federal court if the case relates to the official’s employment71 and the officer has a “colorable federal defense.”72 This means that it’s not enough for the defendant to be a federal officer; to shift the case to federal court, the defendant must also offer some plausible defense based in federal law.
In most cases, the federal official’s asserted federal defense will be Supremacy Clause immunity, discussed in the preceding section. Whether or not the immunity defense ultimately succeeds, the defendant’s invocation of that immunity will usually be sufficient to get the case into federal court.73 But not always. The defense has to be “colorable”—i.e., plausible or reasonable. For example, a federal district court in New York sent a case back to state court where an FBI agent charged with aiding and abetting murders committed by a confidential informant merely asserted that “everything [the agent] did was in the context of the discharge of his federal duties” without providing more specifics for the immunity analysis.74 Similarly, another New York federal district court rejected Donald Trump’s attempt to remove his prosecution involving hush money payments to Stormy Daniels and returned it to state court because Trump “ha[d] not explained how hiring and making payments to a personal attorney to handle personal affairs” involved carrying out federal duties as president.75
Where federal officials lay out a plausible immunity claim, however, they can (if they choose) move the case from state to federal court. This system is aimed at preventing state courts from intentionally obstructing federal policies by targeting federal officers, as they have done at times in the past.76 As the U.S. Supreme Court explained in 1879:
[The federal government] can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offense against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection,—if their protection must be left to the action of the State court,—the operations of the general government may at any time be arrested at the will of one of its members.77
Scholars debate how relaxed or stringent the standard should be for removing state prosecutions to federal court.78 In particular, a shift to federal court can give federal defendants a tactical advantage over local prosecutors, potentially hindering prosecutors’ ability to pursue even strong cases.79 But the basic idea of this system is that it allows federal courts to step in more quickly when federal interests are at stake, acting as a check on state prosecutors and state courts.80
As is evident from the examples above, states have prosecuted federal officials for a wide range of crimes, from traffic violations to falsification of business records to murder. Federal officials are generally subject to the same laws as anyone else, but certain types of criminal laws may be especially relevant to their conduct. This Part outlines three categories in particular: (1) generally applicable laws that criminalize harm to persons or property (such as trespass, assault, or murder), which can come into play when federal officers carry out law enforcement or other coercive actions; (2) state anticorruption laws that, in some cases, can reach federal corruption; and (3) state laws that make it a crime to violate someone’s civil rights.
First, as discussed in various examples above, states sometimes prosecute federal officials for standard crimes like trespass, manslaughter, assault, and murder, that occur while the federal officer is carrying out federal enforcement functions or other responsibilities. For example, New Mexico argued that U.S. Forest Service officers should face trespass charges for inspecting a privately operated site in a national forest.81 (A federal court disagreed.82 ) In other cases, federal officers have killed individuals while driving recklessly or carrying out law enforcement operations, leading to manslaughter or murder charges.83 Federal officials can sometimes defend against these charges using Supremacy Clause immunity, discussed above, or standard criminal defenses, like a claim that the violence was carried out in self-defense. But where officials’ actions are egregious, unreasonable, or unauthorized, federal officials can ultimately face criminal liability like anyone else.
Second, states have a host of criminal laws that specifically address corruption. Some of these laws apply only to corruption involving state public officials, not federal officials.84 But others also apply to federal corruption—either because the definition of public official includes federal officials or because the statutes apply to anyone, regardless of employment. For example, Colorado and Maine both define “public servant” to include state and federal officials, so each state’s anticorruption laws explicitly cover federal corruption.85 These include statutes criminalizing bribery, improper gifts to public officials, public official misconduct, and the misuse of official information for private financial gain.86 Other states have broadly written anticorruption statutes that do not expressly refer to federal officials, but instead apply to anyone, which presumably includes federal actors. These include statutes criminalizing bribery of private or public employees, extortion, threats, and coercion.87 To date, state anticorruption laws do not appear to have been widely used to address federal corruption, but they are on the books as an option. And federal officials likely would not enjoy immunity from prosecution if their conduct does amount to corruption, given that corrupt conduct generally would not be a “necessary and proper” part of carrying out lawful federal duties.88
Finally, about a third of states have laws criminalizing the deprivation of state and/or federal constitutional rights,89in line with a similar federal criminal law.90 Some of these statutes only apply to state or local officials,91 but others apply to anyone. For example, California Penal Code § 422.6 provides that “[a] person, whether or not acting under color of law, shall not, by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of a right or privilege secured by the Constitution or laws of this state or by the Constitution or laws of the United States” based on certain protected characteristics, like disability, race, religion, sexual orientation, and gender.92 Similarly, Iowa Code Ann. § 729.5 makes it a crime for anyone “to injure, oppress, threaten, or intimidate or interfere with any citizen in the free exercise or enjoyment of any right or privilege secured to that person by the constitution or laws of the state of Iowa or by the constitution or laws of the United States.”93 Such statutes may come into play if federal officials deprive individuals of their constitutional rights, such as by conducting an unlawful arrest or detention. For conduct to fall under these types of statutes, the perpetrator usually must have acted “willfully” or “knowingly,” and the precise standard varies state to state. In Massachusetts, for example, a defendant only needs to have “engaged in activity which interferes with rights which as ... matter of law are clearly and specifically protected”94 ; in some other states, the individual needs to know that their conduct was unlawful in order to be subject to criminal consequences.95 This higher standard constricts how widely these laws are used,96 but they still offer options for addressing egregious federal misconduct.
In sum, states have a wide range of criminal laws at their disposal for addressing wrongdoing by federal officials, and state prosecutions of such officials have a long history. While Supremacy Clause immunity sometimes protects federal actors from state prosecution, it does not extend to conduct that federal law does not authorize or that is not necessary or proper to fulfilling lawful federal duties. Times of heightened tensions between states and the federal government have produced some of the most prominent examples of states using their criminal laws against federal actors. With the United States seemingly entering such a period, it may only be a matter of time before similar cases arise again.