Wednesday, June 30, 2004

Wow! This is better than the movies! If you're tired of the normal, staid Second Circuit decisions, you might want to read the facts of State v. Tanella, decided June 30, 2004. It's really riveting stuff (written by Judge McLaughlin). DEA agents had Egbert Dewgard (his parents must have hated him), an alleged drug dealer, boxed in. But that did not stop Dewgard. Judge McLaughlin writes:

"[R]amming Deterctive Corcoran's car and driving at high speed onto the sidewalk, Dewgard managed to escape. Agents Peterson and Tanella sounded their sirens. Detective Corcoran initially lend the pusuit, but because he had no siren, he pulled over and allowed the three agents to pass him. As Dewgard raced through the streets of a residential neighborhood, Peterson and Herbel [DEA agents] lost sight of Deward, leaving Tanella alone to pursue him. During the high-speed chase, Tanella continually used his radio to apprise the other members of the field team of his location.

"About three quarters of a mile into the chase, Dewgard careened, for a second time, ontot the sidewalk, where his car wedged between a telephone pole and a fire hydrant, narrowly missing a pedestrian who was pushing her three-year old daughter in a stroller.

"Dewgard jumped from his car and fled on foot carrying the black plastic bag [drugs]. Tanella radioed the other officers and pursued Dewgard on foot. He was about twenty-five feet behind Dewgard. Tanella displayed his badge, removed his gun from its left-side holster, identified himself as a police officer, and shouted to Dewgard to stop. Dewgard continued running down New York Avenue. Tanella testified that, because he was behind Dewgard, he was unable to see if Dewgard was armed.

"Dewgard finally stumbled and landed between a parked car and a parked van. He dropped the black bag, which was later found to contain three kilograms of cocaine. Tanella then caught up to Dewgard, who was still on the ground, and jumped on top of him. The two men struggled between the parked vehicles, with Dewgard continuing to resist arrest. At some point while they wrested, Tanella fired one shot which hit the lower right portion of Dewgard's back and killed him. Within a minute, Agents Peterson and Herbel, who had lost contact with Tanella during the foot chase, arrived at the scene. A search of Dewgard revealed he had no gun."

Whew! Well, of course the State tried to prosecute Tanella for manslaughter. Tanella petitioned the United States District Court for the Eastern District of New York for removal under 28 U.S.C. 1442(a)(1), which was granted. He then moved to dismiss the indictment, claiming immunity under the Supremacy Clause of the United States. The State argued that the issue of immunity should go to the jury. The District Court granted the motion, dismissing the indictment with prejudice and finding that Tanella "did no more than what was necessary and proper in the discharge of his duty " as a federal agent and was thus immune from prosecution.

The Second Circuit affirmed. It claimed that Tanella had a reasonable belief that Dewgard was about to grab his gun. Under such circumstances, even if Tanella incorrectly evaluated the circumstance, he was immune from prosecution under the Supremacy Clause.

The decision can be found here.

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